Orissa High Court
Chaitan Charan Parida vs Maheswar Parida And Anr. on 23 August, 1990
Equivalent citations: AIR1991ORI125, AIR 1991 ORISSA 125, (1991) 1 CIVLJ 151 (1990) 70 CUT LT 579, (1990) 70 CUT LT 579
JUDGMENT A.K. Padhi, J.
1. The defendant is the appellant. Plaintiffs I and 2 are husband and wife. In the plaint it was pleaded, inter alia, that plaintiff No. 2 happens to be the second wife of plaintiff No. 1. The parties did not have any issue. To satisfy plaintiff No. 2 the wife, plaintiff No. 1 had executed a gift dead in favour of plaintiff No. 2. The gift deed in favour of plaintiff No. 2 was only a nominal one. The defendant happens to be agnatic nephew of plaintiffs and was looking after their affairs and the suit properties. In the year 1973 the defendant persuaded the plaintiffs to execute a power-of-attorney in his favour to protect the plaintiffs as there was an encroachment case started against the plaintiff No. 1. Instead of power-of-attorney the defendant took away a gift deed in his favour on 1-3-1973. Plaintiff No. 1 is an old and illiterate person and plaintiff No. 2 is an old illiterate paradanashin lady. They had executed the document without knowing it to be a gift deed. Subsequently, in the year 1974 when the defendant without the consent of the plaintiffs took away the paddy from thrashing floor, the plaintiffs objected. At that point of time defendant claimed to be the owner of the properties by virtue of the deed of gift. Plaintiff No. 1 applied for certified copy of the gift deed and came to know that his entire homestead and landed properties had been taken away by the defendant under the deed of gift, for which the plaintiff filed the suit be set aside the deed of gift on the ground of deception, fraud and misrepresentation and alternatively prayed that since the condition incorporated in the deed having not been fulfilled, it be revoked.
The defendant appeared and filed the written statement. In the written statement it was avered that gift deed executed by plaintiff No. 1 in favour of plaintiff No. 2 was valid and acted upon and that defendant was looking after the plaintiffs being the agnatic nephew and out of love the plaintiff No. 2 gifted the entire properties which was consented to by plaintiff No. 1. While executing the deed of gift plaintiff No. 2 knew the contents thereof. The document was read over and explained to her and she had independent advice of her husband who was throughout with her. Plaintiff No. 1 had also endorsed the document giving his consent to the said deed of gift. The question of defendant obtained the document by fraud and misrepresentation did not arise as there was no such notice to appear in the encroachment case at the relevant time. The defendant had also taken possession of the properties immediately after tbe deed of gift was executed. The deed of gift was acted upon.
2. The learned trial Court after considering the evidence and materials on record has recorded the findings that
(a) The gift deed by plaintiff No. 1 in favour of plaintiff No. 2 is valid and was acted upon.
(b) Plaintiff No. 2 admittedly being a paradanashin illiterate old lady the beneficiary in the said transaction must establish that the lady was aware of the consequence of the transaction and the burden of proof became hevier on the part of the beneficiary to show that the old lady acted as a free agent and executed the document by putting her L.T.I, of her free will after knowing the contents of the documents.
(c) The attesting witnesses having denied to have seen the attestation and D.W. 1 and D.W. 11 having failed to prove the attestation, the document cannot be held to be validily executed.
(d) The defendant has failed to prove that the document was read over and explained to plaintiff No. 2 and she had signed after undertaking the contents of the document.
(e) The document is also unconscionable in character as the entire properties including the homestead has been gifted under the document.
(f) The impugned deed of gift dated 1-3-73 executed by the plaintiff No. 2 was not acted upon and consequently no title passed in favour of the defendant under the said deed.
(g) Though there is a restriction clause in the deed of gift, the same cannot operate and the gift deed cannot be revoked on that ground, and with the above findings decreed the suit and declared that the gift deed dated 1-3-73 to be void, invalid, confirmed the possession of the plaintiff No. 2 or in the alternatively order that if the plaintiff No. 2 has been dispossessed, the same may be restored to her.
3. The learned advocate for the appellant submits that:
(a) Due execution is to be proved in accordance with Section 68 of the Evidence Act but when the attesting witnesses turned hostile, then the party can prove the execution of the document under Section 71 of the Evidence Act.
(b) As D.Ws. 9 and 10 the attesting witnesses turned hostile, Section 71 of the Evidence Act can be restored to by the defendant and due execution has been proved by evidence of the defendant (D.W. 1) and also by the evidence of the D.W. 11.
(c) Plaintiff No. 2 had taken a deed of gift from plaintiff No. 1. As such, she knew the impact of a gift deed and after understanding the contents which was read over and explained to her, she had executed it out of her free will.
(d) The deed of gift was acted upon and the title had passed to the defendant which cannot be revoked.
(e) The plaintiffs pleaded that defendant had taken the document by misrepresentation. The misrepresentation is said to be on the ground that when a notice of the encroachment case was served on the plaintiffs they sought advice of defendant and to represent the plaintiffs in the encroachment case the defendant wanted a power-of-attorney. In the garb of the power-of-attorney, the defendant took away a deed of gift. As plaintiffs have failed to prove such misrepresentation, the suit is liable to be dismissed. There was no such notice at the relevant time served on the plaintiffs.
(f) That the endorsement by the Sub-Registrar and the endorsement of the scribe should be taken to have proved that the document was read over and explained to plaintiff No. 2 and she executed the document after understanding the import of the same.
(g) As the husband of plaintiff No. 2, i.e., plaintiff No. 1 was throughout present with her, it has to be presumed that she had independent advice.
4. The learned counsel for the respondents submits that the deed of gift having been executed by a paradanashin illiterate lady, the onus is heavy on the beneficiary of the document to prove that she had executed the document after it was read over and explained to her and understanding the import thereof she executed it and she had independent advice.
The attesting witnesses D.Ws. 9 and 10 have deposed that the executant had not signed in their presence. The evidence of P.W. 11 is not acceptable. The defendant's evidence is not also acceptable, since the defendant has failed to prove that the document was validly executed.
5. That the most important point which arises for consideration whether the deed of gift Ext. 8 was validly executed by plaintiff No. 2 after understanding the contents thereof and it was read -over and explained to her and she had independent advice.
6. The plaintiffs to prove their case have examined five witnesses out of whom P.W. 1 is plaintiff No. 1 and P.W. 5 is plaintiff No. 2.
The defendant has examined 11 witnesses out of whom D.Ws. 1, 9, 10 and 11 proved the execution of the document and the rest of the witnesses proved the possession being delivered under the document. P.W. I has stated that as there was an encroachment case, he consulted the defendant. The defendant gave him to understand that unless he executes a power-of-attorney, the defendant cannot look after his case and if the case is not properly looked after, then the plaintiff may suffer from serious consequence. Thereafter the plaintiff No. 2 gave her L.T.I, thinking if to be a power-of-attorney and under the gift deed her entire properties including the homestead has been taken away by practising fraud and misrepresentation. He signed without understanding the same.
P.W. 2 speaks about the possession of the disputed land by the plaintiff No. 1 even after the execution of the gift deed. To the same effect it is also the evidence of P.W. 3. P.W. 4 proves Exts. 4 and 4/ a the water rate receipts. P.W. 5 is the plaintiff No. 2. According to her with the impression that she was executing a power-of-attorney she gave her L.T.I, without understanding the import of the document. In the cross-examination it has been suggested to her that out of love she has executed the document by her free will after understanding the contents of the document, which suggestion was denied by her.
D.W. 1 is the defendant. His evidence is to the effect that as he was an agnetic nephew, he was looking after the plaintiffs looking after their health. Out of love the plaintiff had executed the gift deed in his favour. Plaintiff No. 2 along with plaintiff No. 1 expressed their desirs to execute a deed of gift in his favour and so they called the scribe who scribe the document on their direction. The scribed read over and explained the document to plaintiff No. 2 who after understanding the import thereof executed the deed of gift. Plaintiff No. 1 was throughout with plaintiff No. 2. So the plaintiff No. 2 had independent advice. D.W. 1 has categorically denied the suggestion that he had taken away the deed of gift in garb of the power-of-attorney.
D.W. 2 stated regarding the possession of defendant after the gift deed was executed and that possession was delivered to defendant No. 1. In the cross-examination when he was confronted he was not able to say khata number, plot number or area; of the suit land. His evidence shows that he had no knowledge regarding the suit land.
D.W. 3 is also a signatory to the delivery of possession. According to him P.W. 1 the plaintiff No. 1 delivered the possession of the disputed properties.
D.W. 4 has stated that after the gift deed was executed the possession was delivered. He has stated that even after the execution of the gift deed the defendant was staying in the house of the plaintiffs, which is not the case of the defendant.
D.W. 5 also states regarding the possession of the defendant after the gift deed. But he was not able to say the plot number, khata number and the boundary of the suit land.
D.W. 6 speaks about the defendant maintaining the plaintiffs D.W. 7 also speaks regarding the defendant maintaining the plaintiffs.
D.W. 8 is a witness regarding possession of the defendant of the suit properties.
D.W. 9 is one of the attesting witnesses to gift deed. In his examination-in-chief he stated that he cannot say who scribed the document. He admits to have signed in the said document. He is also an identifying witness. He denied the fact that the document was readover to Nila Dei who executed it. He has been declared hostile.
D.W. 10 is the other attesting witness. He has specifically stated in his chief-examination that he had not seen Nila Dei putting her L.T.I, in his presence, though he had signed the document.
D.W. 11 claims to be present when the document was executed. He claims to be a Deed Writer and claims to be present at the time when Shyamsunder Mohanty scribed the deed of gift. In the chief-examination he has stated that he knows the plaintiffs and the defendant. A question was put by the Court and the answer given by the P.W. 11 are as follows:
"Q. Can you say whether the plaintiffs came to execute any document in favour of defendant in Shyamsunder's sirasta? Ans.--Without referring to the document I cannot answer this fact. (The witness reads the document and answers)."
In the cross-examination D.W. 11 stated like this:
"On 1-3-73 Pari Sahu and my brother Anadi had not joined our sirasta. I had not scribed any deed on that day. I do not maintain any diary. I cannot say if on any other date in the year 1973.1 had not written any document. I cannot say definitely whether 1 have not written any document in any of the days after 1973 till 1977."
In paragraph 11 of the cross-examination he has stated :
"..... I was released after due admonition. Defendant Chaitan got one affidavit through me a few days before as D.W. 9 and Duryo-dhan Parida always persueded me not to depose this suit. I stated in the affidavit what I have deposed today in the Court....."
In paragraph 13 he has stated :
"I did not see Ext. B/5 on the day when I swore the affidavit. I did not state in the affidavit that Maheswar was not ill on 1-3-73. So also I did not mention in the affidavit that Mathurananda had no licence. I did not state in the affidavit that Narahari Bhadra was working in the sirasta of Syamsundar."
7. Since the attesting witnesses have turned hostile, theexecution of thedocument can be proved under Section 71 of the Evidence Act. In this case the attesting witnesses who were called have denied the execution. In AIR 1940 Cal 189 (Jaikarandas Agrawalla v. Protapsing Agarwalla) and in AIR 1938 Pat 380 (Bank of Bihar Ltd., Chapra v. Muhammed Ismail) it has been held that beneficiary under the document if present at the time when the document was executed is competent to give evidence under Section 71 of the Evidence Act. (1973) 39 Cut LT 672 : (AIR 1974 Ori 170) (Harish Chandra Sahu v. Basanta Kumar Sahu) is relied upon by respondents. In this case a question arose as to when an attesting witness omitted to state regarding valid execution of a document, whether any other witness can depose regarding the same and in that context his Lordship opined that since the attesting witness had omitted to state regarding the execution, Section 71 shall have no application. An omission in the evidence of the attesting witness cannot be filled up by invoking Section 71 of the Act. This decision has no application to the facts of this case.
In this case D.W. 9 and D.W. 10 the attesting witnesses have denied execution. D.W. 11 had deposed after being bound down to his previous statement. Moreover, the tenor of his evidence does not inspire confidence. He does not remember the documents to which he had scribed. He appears to be a procured witness and had come to depose and I do not place any reliance in his evidence. D.W. 1 is the defendant No. 1. His evidence if acceptable, will prove the valid execution and so also that the document was executed by plaintiff No. 2 after understanding the contents thereof and after understanding the import of the document out of her free will and she had independent advice. Plaintiff No. 2 has gifted her entire properties including the homestead. The documents is unconscionable document for which the evidence of D.W. 1 cannot be accepted to come to a finding that the plaintiff No. 2 had given all her properties to the defendant by making herself homeless.
D.W. 1 is also the beneficiary under the document. For this reason I do not place any reliance on his evidence. The main question in this case is when the document has been taken from a paradanashin illiterate lady, the illiterate lady though she has filed the case as a plaintiff and had challenged the document on the ground of fraud and misrepresentation on whom the burden lies. In AIR 1983 Ori 172 (Brundaban Misra v. Iswar Swain) his Lordship has opined that the party seeking benefit under the deed must prove that it was validly executed. In AIR 1986 Ori 53 (Narayan Misra v. Champa Dibya (dead)) Hontile Justice Behera speaking in the Court has observed (Para 10):
"..... In the case of execution of a deed by a paradanashin or illitarate lady, the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on it....."
In AIR 1990 Ori 64 (Rankanidhi Sahu v. Nandakishore Sahu) it has been observed (Para 9):
".....Further in a case of execution of document by an illiterate paradanashin woman, burden is heavy on the person getting advantage under the document to establish that the contents of the document were read over and explained to her, she understood them, she had independent advice at the relevant time and that the execution of the document was not only a physical act, but also a mental act....."
Hence, the law is well settled that though ordinarily the burden is on a person who attacks a document, in case of a paradanashin illiterate old lady, the burden is on the person who is the beneficiary under the document to prove that the document was executed by her by understanding the import of the document, she had independent advice, that after the document was read over and explained to her she executed it and such execution of the document was not only a physical act but also a mental act. The law protects her by demand ing that the burden of proof shall in such cases lie on the persons who rely on it. Although this may not be an absolute and unvariable rule and there may be exceptions such as when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property the burden will be on the lady who attacks the document. In this case the circumstances and the evidence are to be carefully scrutinised. Both Nila and her husband continued to stay in the house. The entire landed properties and the homestead have been conveyed under the gift deed. This would give an indication that she was not aware of the contents of the document.
8. The learned counsel for the appellant vehemently urged that the endorsement by the scribe and the endorsement by the Sub-Registrar proved that the document was validly executed. For this the learned advocate relies on AIR 1977 Ker 41 (Kunhamina Umma v. Special Tahsildar). In my opinion the endorsement of the scribe and that of the Sub-Registrar are the relevant pieces of evidences. But they by themselves do not prove valid execution. After assessing the total evidence on record, the evidence of D.W. 11 hold that the defendant has failed to. prove that plaintiff No. 2 after knowing and understanding that she is going to be deprived of entire properties including her homestead had executed the deed of gift in favour of the defendant and the finding of the trial Court is correct.
9. The learned advocate for the respondents submits that the finding of the trial Court to the effect that the gift deed cannot be revoked basing on the recital in the gift deed that the plaintiffs were to be maintained by the defendant as the defendant has failed to maintain the plaintiffs as per the stipulation in the gift deed, the gift deed should be revoked as an incorrect finding. The recital in the gift deed being a contract between the parties can be enforced.
The learned advocate for the appellant on the other hand contended that the recital in the gift deed being only an undertaking by the defendant was not a contract between the parties. The plaintiffs can only file a suit for maintenance and for arrear maintenance. The gift deed cannot be revoked on that ground.
Since I have already held that the gift deed is void, no further finding is necessary on this issue and I express no opinion on this point.
10. In the result, the appeal is dismissed, but in the circumstances of the case, there shall be no order as to costs.