Makha Bewa vs Bimbadhar Kandi

S. Acharya, J.—The Plaintiff has preferred this second appeal against the decision of the District Judge, Balasore in S.J.A. No. 80/70-1

dated 21-10-1971 reversing the decision of the trial Court in Title Suit No. 2/69.

The Plaintiff''s case, in short, is that being in need of money she wanted to mortgage some of her agricultural lands in favour of the Defendant,

and on that impression she executed the document Ext, A dated 7-2-I968 which later transpired to be a sale deed. Having come to know that the

Defendant manipulated to get a sale deed executed by her, the Plaintiff instituted this suit for declaration that the said sale deed Ext. A is a

fraudulent document. She also has prayed for recovery of possession of the suit land and for permanent injunction restraining the Defendant from

interfering with the Plaintiff''s possession over the suit land.

The trial Court found that the Plaintiff did not intend to sell the suit land to the Defendant; the price as stated in the sale deed was too low; no

consideration actually passed on the said deed and that the Plaintiff has subsisting title to the suit property. It also found that the Plaintiff being an

illiterate lady she did not understand the contents and purport of Ext. A which she executed on 7-2-1968.

The lower appellate Court reversed the aforesaid decision of the trial Court on the findings that the Plaintiff understood the contents and purport

of the said document; the transaction between the Plaintiff and the Defendant was a bonafide one; and that consideration for the said sale as agreed

upon between the parties was paid to the Plaintiff. On the said findings the appellate Court dismissed the Plaintiff''s suit.

Mr. Kar, the learned Counsel for the Plaintiff- Appellant contends that the appellate Court has not at all approached the case in the correct legal

perspective. It is urged by Mr. Kar that as the Plaintiff, the executant of the deed Ext. A, is an illiterate lady, the Court should have bestowed its

attention to see if all the tests which are necessary to be proved in a case d this nature were established by the Defendant who based his title on the

sale deed.

On a perusal of the impugned judgment I find that the Court below at the beginning correctly summarised the law on the subject, but thereafter it

proceeded entirely on a wrong line and entered into irrelevant considerations and made a wrong approach to the matter thereby completely

diverting its attention from the important factors and considerations which required its assessment, as a result of which the Court below made a

substantial error in the procedure in deciding this case It is well known that u/s l00(1)(c), CPC an appeal shall lie to the High Court from every

decree passed in appeal by a subordinate Court if a substantial error or defect in the procedure provided by the CPC or by any other law for the

time being in force may possibly have produced error or defect in the decision of the case upon the merits. In this case, as the Court below

proceeded entirely on a wrong track as stated above and did not decide as to whether the different facts which could sustain a transaction of this

nature were established in this case or not, the finding arrived at on such wrong approach to the matter is liable to be challenged because of the

defect in the procedure. Moreover, the Court below also has ignored material and substantial pieces of evidence and circumstances appearing on

the evidence on record, and the findings and the decision of the Court below so arrived at are vitiated due to such substantial error or defect in the

procedure. That being so, the findings even of fact and conclusions and decisions of the Court below arrived at on such substantial error or defect

in the procedure can be interfered with in this second appeal.

Admittedly, the alleged sale deed Ext. A has en executed by an illiterate lady. It is well known that the protections which are available to

Purdanashin ladies are equally available to illiterate ladies, and the principles which govern proof of execution of documents taken from

purdanashin women are applicable to documents taken from illiterate women. (See 1968 C.L.T. 874 and 1964 C.L.T. 463).

In the decision reported in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, it has been held:

... as regards documents taken from pardahnashin women the Court has to ascertain that the party executing them has 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 pardahnashin woman.

Their Lordships quoted with approval the following observations of the Privy Council in Kali Baksh v. Ram Gopal 43 I.A. 23:

In the first place the lady was a pardahnashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof

shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively

and can elusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case it must

also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor.

Their Lordships, after referring to the later decisions of the Privy Council reported in 89 Ind. Cas. 649 (Privy Council) and AIR 1940 134 (Privy

Council) , on this point, summed up the position of law as follows:

.... The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardhanashin 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.

That being the position of law in a matter of this nature, it has now to be seen as to whether the Defendant, who seeks to sustain the transaction of

sale, has been able to establish in this case that the Plaintiff executed Ext. A after clearly understanding the contents, purport and the nature of the

said document. In Ext. A there is no certificate to the effect that the Plaintiff executed the said deed after understanding the contents of the same. It

is merely stated therein that the said deed was read over and explained to her. D.w.1, the scribe of the deed, has not stated that the contents of the

deed were understood by the executant and after understanding the same she executed the said deed. D.w.1 merely stated in examination-in-chief

that the document was read over and explained to the executant and she admitted its contents. Even if the above-mentioned evidence of D.w.1 in

his examination-in-chief is taken on its face value, that would not satisfy the required test that the illiterate executant of the deed executed the same

after clearly understanding the contents and the nature of that document. Moreover, the above-mentioned evidence of D.w.1 in examination-in-

chief is not worthy of much credit. This witness in his cross-examination stated that he did not remember as to who instructed him to write the deed

though in his examination-in-chief he had stated that he scribed the deed on the instruction of the executant. Apart from the fact that the said

discrepancy creates suspicion on his veracity, his inability to remember such an important fact creates doubt as to whether really the other

formalities, said to have been observed by him in connection with the execution of the deed by the illiterate woman, were at all observed or not. He

also could not say as to who were the other persons who came along with the Plaintiff on the day she executed the deed. On the above

considerations the effect of his evidence in examination-in-chief that he read over and explained that document to the executant and she admitted

the contents of the same is lost. The proof of that fact moreover does not satisfy the necessary requirements. D.w.2 is the Defendant himself.

D.w.3 is another person who allegedly was present when the deed was written out by d.w.1 and the Plaintiff affixed her thumb mark to the same.

Both of them do not say that the executant executed the said deed after understanding the contents of the same. They merely state that D.w.1

wrote out the said deed, read over and explained the same to the Plaintiff and she affixed her thumb mark. They do not even corroborate the

evidence of D.w.1 to the effect that the executant admitted the contents of the said deed when it was read over to her. Mr. Pal, appearing for the

Respondents, could not show any other evidence on record on which the above-mentioned test of clearly understanding the contents of the deed

can be said to have been established in this case. On a perusal of the evidence on record I am satisfied that the Defendant who seeks to sustain his

title to the suit property on Ext. A has utterly failed to establish that the executant, i e. the Plaintiff, an illiterate woman, executed the said deed after

clearly understanding the contents of the deed and nature of the said transaction.

Apart from the above, the Plaintiff has specifically alleged that the consideration money, stated in the sale deed was not paid to her after the

execution of the said deed, and on that ground also no title passed to the Defendant on that deed.

According to the Defendant, the consideration money on the sale deed was paid on the day following the execution of the sale deed when the

registration ticket was handed over by the Plaintiff to the Defendant and possession of the suit land was delivered to the Defendant. The Defendant

himself has stated in his cross-examination that when the sale deed was registered in the registration office he had sufficient money with him to pay

the consideration amount to the Plaintiff and he offered the same to the Plaintiff, but she did not accept the same at that place as she was a woman

and she wanted that the said amount should be paid to her at her house. In the deed itself it is stated that the Plaintiff sold the suit property as she

was in need of money for purchasing land elsewhere. The Defendant (D.w.2) has stated that the Plaintiff purchased some other property elsewhere

and so she wanted to dispose of the suit property. If that was so, it is not understood why the Plaintiff did not accept the money allegedly offered

to her at the time of the registration of the said deed and deferred its acceptance till the next day. It also sounds improbable that even if money was

offered to her at the time of the registration of the deed she did not accept the same, though one Babu who was looking after the affairs of the

Plaintiff, was allegedly present at that place.

The only other witness who speaks about the payment of the consideration money is d.w.3. He in examination- in-chief states that the

consideration money of Rs. 2,000/ - was paid to the vendor on the day following the registration of the deed, and on receipt of the consideration

money the vendor handed over the registration ticket to the Defendant. Having stated so in his examination-in-chief, in cross-examination he stated

that he did not remember the day or the month of the registration of the deed. He further stated that the registration receipt was endorsed in favour

of the Defendant on the same day the sale deed was executed. That completely falsifies the evidence of D.w.3 and that of the Defendant regarding

payment of the consideration money.

Apart from the evidence of D.w.3 and that of the Defendant (d.w.2), there is no other evidence regarding the payment of consideration. D w. 4

has categorically stated in his cross-examination that he was not present when the payment was made. D.w.5 is not a witness to the payment of

consideration and his evidence also is of no effect or avail as in the last sentence of his deposition he admitted that he heard all that he stated in his

deposition from the Plaintiff.

Apart from the above-mentioned unsatisfactory and unreliable evidence regarding the payment of consideration, that amount stated in Ext. A

also appears to be rather very low. D. w 3 has stated that it would cost Rs. 4, 000/ - to construct a house of the type standing on 9 decimals of the

suit homestead land. Apart from the house, there was also a granary on that 9 decimals of the suit land. Besides the granary and the house on that

9 decimals of land, 14 decimals of agricultural land also was mentioned as sold as per that sale deed. Accordingly, 23 decimals of land and a

house and a granary were allegedly conveyed by that sale deed only for Rs. 2, 000/ -. The trial Court on a discussion of this aspect of the matter

has arrived at the finding that the consideration amount, stated in the sale deed, appears to be rather very low.

Apart from the aforesaid unconvincing and unsatisfactory features of the evidence on record regarding the sale deed, it is also seen that there is

no mention about the granary and the tiled house in the sale deed. Non-mention of the said house and the granary in the sale deed is a suspicious

feature, more so when considered in the context of the facts stated above.

On the above discussion, considerations and findings I am satisfied that Ext. A did not convey any title in the suit property to the Defendant.

The Plaintiff, an illiterate female, did not know that the document to which she appended her thumb mark was a sale deed and accordingly her title

in the suit property was not conveyed to the Defendant by the said document. The Plaintiff therefore has right, title and interest over the suit

property, and the alleged sale deed Ext. A is declared to be a sham and invalid document and the Defendant is directed to give back possession of

the suit property to the Plaintiff, failing which the Plaintiff will take possession of the said property through Court. After delivery of possession the

Defendant cannot in any manner interfere with the possession of the Plaintiff over the suit property, and he is permanently restrained from any such

act.

The judgment and decree of the appellate Court are accordingly set aside, and the appeal is allowed with costs.