MAGUNI CHARAN DEY vs UJAIMANI DEI AND OTHERS

Dr. A.K.Rath, J.

Plaintiff is the appellant against a reversing judgment in a suit for permanent injunction, recovery of documents and damages.

Case of the plaintiff is that defendant no.1 was the owner in possession of the land appertaining to Khata No.124, Plot No.411 Ac.0.61 decimals in

Village-Kanhupur, District-Balasore. She executed two registered sale deeds dated 28.2.1977 and 24.2.1981 in favour of the plaintiff in respect of the

area of Ac.0.36 dec. and Ac.0.25 dec. respectively for valid consideration and delivered possession. After purchase, he mutated the suit land in his

favour. He is in possession of the suit land. On 4.6.1984 while he was returning from Nilgiri Kacheri, all the defendants detained him near the house of

defendant no.5, forcibly took away the sale deeds, rent receipts and other documents. He reported the matter to the police, but to no avail.

The defendants entered contest and filed the written statement denying the assertions made in the plaint. It is pleaded that the suit land originally

belonged to Jagabandhu Pradhan, father of defendant nos.1 and 5. Defendant no.6 is the husband of defendant no.1. Their mother pre-deceased their

father. Defendant no.1 had no absolute title over the suit property. She is a pardanashin illiterate woman. The plaintiff is a moneylender. She

approached him to lend money. The plaintiff asked her to execute the sale deeds by way of security on the condition that on repayment of the loan

amount with interest, he would return the documents. Neither she sold the suit land nor delivered possession of the same to the plaintiff. After

repayment of money, the plaintiff returned the documents to her. She is in possession of the land. She is paying the rent. The plaintiff mutated the land

in his favour clandestinely.

On the inter se pleadings of the parties, learned trial court framed nine issues. Both the parties led evidence. Learned trial court decreed the suit

holding, inter alia, that the sale deeds dated 28.2.1977 and 24.2.1981, vide Exts.1 and 2 respectively, are genuine documents executed by defendant

no.1 in favour of the plaintiff. Possession was delivered to him. The plaintiff has right, title and interest over the suit property. Defendants have never

mortgaged the suit property in favour of the plaintiff. The mutation order passed by the Tahasildar is binding on the defendants. The plaintiff is not

entitled to damages. Felt aggrieved, defendant no.1 filed M.A No.46 of 1986-I before the learned District Judge, Balasore. The appellate court placing

reliance on the decisions of the apex Court in the case of Mst. Kharbuja Kuer v. Jang Bahadur Rai and others, AIR 1963 SC 1203 and this Court in

the case of Somanath Misra v. Narahari Das and others, Vol. XLIV 1977 CLT 26 held that defendant no.1 is an illiterate woman. The contents of the

documents had not been read over and explained to defendant no.1 and that she understood the contents thereof. The plaintiffs had failed to prove that

the execution of the sale deed in question was the mental act of the defendant no.1. He failed to produce the sale deeds from his custody. No delivery

of possession was made. Held so, it allowed the appeal.

The second appeal was admitted on the substantial questions of law enumerated in ground nos.B, C,D,E,F and G of the appeal memo. The same

are -

“B. For that the learned appellate court erred in law in applying the principles of law relating to documents executed by illiterate and paradanashin

ladies to the fact of the present case though in view of the evidence on record it could not be found that the defendant no.1 was an illiterate lady much

less a paradanashin lady.

C. For that in view of the clear proof and finding that the husband of defendant no.1 was present at the time of execution and registration of the

documents it could not be said that in fraud whatsoever was practised on the defendant no.1 by the plaintiff.

D. For that the learned appellate court erred in law in not holding that the defendant no.1 had placed two inconsistent cases in her written statement

and that either of the two cases had not been supported by the evidence on record.

E. For that the learned appellate court erred in holding that the defendant no.1 had been paying rent in respect of the suit land without considering the

fact that the plaintiff could not pay rent in his name till his name was mutated in respect of the suit land.

F. For that the learned appellate court erred in law for not attaching proper evidenciary value to the order of the Tahasildar granting mutation in favour

of the plaintiff.

G. For that the learned First Appellate Court had not considered the case of the parties from their proper prospective and erred in law in placing onus

of proof, on the plaintiff to establish his case.â€​

Heard Mr. Manoj Kumar Agarwal on behalf of Mr. D.P. Das, learned counsel for the appellant. None appeared for the respondents.

Mr. Agarwal, learned counsel for the appellant submitted that defendant no.1 had executed the sale deeds, vide Exts.1 and 2, in favour of the

plaintiff for a valid consideration and thereafter delivered possession. The contents of the documents were read over and explained to the vendor. The

finding of the learned appellate court is perverse.

Exts.1 and 2 are the registered sale deeds executed by defendant no.1 in favour of the plaintiff. On scrutiny of the documents, it is revealed that the

contents of the documents were read over and explained to the vendor and after understanding the contents thereof, she put her signature. Defendant

no.6, husband of defendant no.1, was the attesting witness in both the documents. Thus the finding of the learned appellate court that the plaintiff

failed to prove the execution of the sale deed in question was the mental act of defendant no.1 and the sale deeds have not been executed with the

intention of conveying the title of the plaintiff is perverse.

In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC 1203, the apex Court held that 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. 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.

In Somanath Misra (supra), this Court held that an illiterate person cannot read the contents of the documents, and so one who wants to rely on

such a document must establish that the illiterate person knew the contents and purport of the document before affixing his or her L.T.I or mark to

that document. Merely on the proof of the signature or thumb impression of such an illiterate person on such a deed a Court cannot hold that the said

document was duly executed, as due execution of a deed does not merely mean signing on or putting one’s mark to a deed without knowing the

contents of the same. Due execution of a document must always indicate that the mind of the executant did concur with the contents of the document

and with such concurrence she put her signature or thumb impression in the deed. So long that is not done it cannot be said that the document was

duly executed. One who wants to rely on a document executed by an illiterate person must be able to establish that the contents of the said document

were read over and explained to that person and the signature or thumb mark was appended to it by the executant after understanding the purport

and/or the contents of the document. There is no quarrel over the proposition of law. As held above, the contents of the sale deeds, vide Exts.1 and 2,

were read over and explained to the defendant no.1 and after understanding the contents thereof, she put her signature. The substantial questions of

law are answered accordingly.

A priori, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is decreed. The parties shall bear their own costs

throughout.