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Judgment
Dr. A.K. Rath, J.
1.This is a plaintiffs’ appeal against reversing judgment. The suit was for declaration of right, title, interest, confirmation of possession or in the
alternative for recovery of possession, permanent injunction and for declaration that the sale deeds dated 7.11.84 are legal and valid and the sale deeds
dated 3.12.85 and 8.1.86 respectively executed by the defendant no.1 in favour of defendant no.2 are not binding on the plaintiffs.Â
The case of the plaintiffs was that the defendant no.1 was the owner of the suit lands. Defendant no.1 incurred a loan from the Bank for which
she wanted to sell the suit lands. She entered into an agreement dated 25.2.84, Ext.1, with the plaintiffs. She received a sum of Rs.5,000/- towards
advance and delivered possession. At the time of execution of agreement, it was disclosed that S.A. No.16/80 was pending before this Court. As the
aforesaid second appeal was pending, the plaintiffs did not insist upon execution of sale deed and agreed to execute the sale deed after disposal of the
second appeal. It was further pleaded that the defendant no.1 received a further sum of Rs.1000/- on 8.10.84. The defendant no.1 executed two
registered sale deeds in favour of the plaintiffs; viz., sale deed no.6513 dated 7.11.84, Ext.2 for a consideration of Rs.8000/- and sale deed no.6515
dated 7.11.84, Ext.3 for a consideration of Rs.6790/-. In the registered sale deed no.6513 dated 7.11.84, the defendant no.1 mentioned that she had
received Rs.6000/- from the plaintiffs out of consideration amount of Rs.8000/-. It was agreed upon that the remaining Rs.2000/- would be paid on
endorsement of the ticket. So far as Ext.3 is concerned, the defendant no.1 agreed that the amount shall be paid at the time of endorsement of ticket.
The endorsement was waited till disposal of second appeal. Defendant no.1 received a sum of Rs.1200/- on 21.12.84 and granted receipt vide Ext.4.
Similarly she had received a sum of Rs.5000/- on 25.12.84 and granted receipt vide Ext.5. The defendant no.1 did not receive the balance amount of
Rs.2590/-. The plaintiffs issued notice to the defendant no.1 for delivery of sale deeds, but there was no response. Though the defendant no.2 was
aware of the aforesaid agreement and sale deeds, still then he obtained two registered sale deeds dated 3.12.85 and 18.1.86 vide Exts.A and B
respectively from the defendant no.1 and threatened to dispossess the plaintiffs. With this factual scenario, they instituted the suit seeking the reliefs
mentioned supra.
The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. The case of defendant no.1 was that
there was no agreement. No consideration was paid. She is an illiterate pardanashin lady. One Joysing Patnaik, P.W.2, took her signature in some
blank papers to utilize the same in High Court in a case where she was a party. Joysing Patnaik asked her to execute the power of attorney in his
favour. By misrepresentation, the sale deeds vide Exts.2 and 3 were obtained without reading over and explaining the contents thereof. Thereafter,
she came to know that instead of power of attorney, sale deeds had been taken from her. She cancelled those sale deeds. Thereafter she sold the suit
lands to the defendant no.2. The defendant no.2 filed written statement taking the plea that he was not aware of any sale deed or agreement. He is a
bonafide purchaser for value of the suit lands.
On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their
respective cases. Learned trial court came to hold that the execution of the agreement, Ext.1 and the sale deeds, Exts.2 and 3 had been proved by
P.Ws.1, 2 and 4. The husband of the defendant no.1 was a witness of Ext.1, but he had not been examined in the suit and as such the signature of the
husband of defendant no.1 in the blank papers is not supported by any evidence. It further held that there is no material on record that P.W.2 was
looking after the case on behalf of defendant no.1. The husband of defendant no.1 was literate. The defendant no.1 had independent advice. The
defendant no.2 had not verified any documents before his purchase, Exts.A and B. The consideration amount was paid. Held so, it decreed the suit.
Feeling aggrieved, the defendant no.1 appealed before the learned District Judge, Bhubaneswar, which was subsequently transferred to the court of
learned 2nd Additional District Judge, Bhubaneswar and renumbered as T.A. No.21/11 of 1993/91. Learned lower appellate court allowed the appeal
with a finding that the plaintiffs had not proved due execution of Exts.1, 2, 3, 4 and 5. There was no delivery of possession.
The second appeal was admitted on the substantial questions of law enumerated in ground nos.1 and 4 of the memorandum of appeal. The same
are:
“1. Whether in view of the evidence of P.W.1, 2 and 4 and in view of the fact that Ext.1 to 7 were marked without objection, if the learned lower
appellate court committed serious illegality in holding that Ext.1 to 7 have not been duly proved?
In view of Ext.1 to 10 and in view of oral evidence of P.W.1 to 4, if the finding of the learned lower appellate court relating to possession is
perverse and if such finding is vitiated due to wrong approach to the execution of agreement and sale deeds ?â€Â
Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the appellants and Miss Arundhati Sahoo, learned
counsel on behalf of Mr. A.K. Mishra, learned counsel for the respondents.
Mr. Das, learned counsel for the appellants, submits that defendant no.1 was the owner of the suit land. She entered into an agreement with the
plaintiffs and received a part consideration. Thereafter, she executed two sale deeds on 7.11.84, Exts.2 and 3 in favour of the plaintiffs for valid
consideration and delivered possession. The plaintiffs were in possession of the suit land. Clandestinely, defendant no.1 executed two sale deeds on
3.12.85 and 8.1.86 Exts.A and B in favour of defendant no.2. By the time the sale deeds were executed, the defendant no.1 had no title over the suit
land. Thus any alienation is void. He further submits that there is cogent evidence on record that defendant no.1 executed two sale deeds in favour of
the plaintiffs. The contents of the sale deeds were read over and explained to the vendor and after understanding the same, she put her L.T.I. On a
vivid analysis of the evidence on record and pleadings, learned trial court decreed the suit, but the learned lower appellate court upset the said finding
on untenable and unsupportable grounds. He further submits that the learned lower appellate court committed a manifest illegality in not refunding the
consideration amount to the plaintiffs. Â
Per contra, Miss Sahoo, learned counsel for the respondents, submits that defendant no.1 is an illiterate pardanashin lady. She had not executed
any sale deeds in favour of the plaintiffs. There is no endorsement in the sale deeds that the contents of the sale deeds were read over and explained
to the vendor and after understanding the same, she put her L.T.I. Learned lower appellate court had rightly held that the sale deeds were not
executed in favour of the plaintiffs. She further submits that defendant no.1 had not alienated the suit land in favour of the plaintiffs. Defendant no.1
executed two registered sale deeds dated 3.12.85 and 8.1.86 vide Exts.A and B in favour of defendant no.2 and delivered possession. The defendant
no.2 is in possession of the same.
Admittedly, defendant no.1 is an illiterate pardanashin lady. She put her L.T.I. on the sale deeds, Exts.2 and 3. The principle governing the
execution of sale deeds by an illiterate woman is proved and well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC 1203,
the apex Court held thus;
“In India paradahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an
imperfect knowledge of the world, as by the pardah system they are practically excluded from social intercourse and communion with the outside
world. It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud,
duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.In Geresh Chunder Lahoree v. Mst.
Bhuggobutty Debia, 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court has to
ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary
presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradahnashin woman. The
burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said
document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act
but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also
by other evidence, direct and circumstantial.â€
In Agadhei Malikani and another v. Abhimanyu Mallik and others, ILR 1968 Cut.576, this Court held that the principles which govern the proof of
execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman.
Reverting to the facts of the case and keeping in view the enunciation of law, this Court finds that there is no endorsement in the sale deeds,
Exts.2 and 3 that the contents of the sale deeds were read over and explained to the vendor and after understanding the same, the defendant no.1 put
her L.T.I. Rightly, the learned lower appellate court came to hold that plaintiffs failed to prove the execution of sale deeds vide Exts.2 and 3.
The submission of Mr. Das, learned counsel for the appellants, that the learned lower appellate court committed a manifest illegality in not
directing the defendant no.1 to refund the consideration amount is difficult to fathom. When there was no execution of sale deeds by defendant no.1,
the question of refund of consideration amount does not arise at all. The substantial questions of law are answered accordingly.
In the wake of aforesaid, the appeal, sans merits, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.