Sankirtan Sha and Others vs Jaya Krushna Patel

B. Panigrahi, J.—The Defendants in T.S. No. 6/39 of 1981 of the Court of Subordinate Judge, Sundargarh in a suit for declaration of right, title, interest and confirmation of possession over the suit schedule land and for permanent injunction, having lost in both the Courts, below has filed this appeal.

The case of the Plaintiff-Respondent in the trial Court is as follows:

Plaintiff purchased 1.0 Acre of land described in Schedule A of the plaint from Appellant No. 1 who was the Karta of the Joint family in the year 1965 for a consideration of Rs. 500/-. Appellant No. 1 sold the land for purchasing cattle and also for constructing a house. The Appellants are ''Bhuyan'' by caste which has been mentioned to be a Scheduled Tribe. Therefore, without obtaining permission from the competent authority it was not possible for Defendant No. 1 to transfer the land in favour of the Plaintiff-Respondent. Thus, Defendant No. 1 applied for obtaining permission for sale of 1.00 Acre of land in Misc. Case No. 107 of 1966-67. The petition for permission was sent to the Tahasildar for an enquiry and report. On the basis of the report of the Tahasildar, the S.D.O. accorded permission for sale of the land to the Plaintiff.

Defendant No. 1 executed the sale deed after having understood the contents of the same by putting his L.T.I. The attesting witnesses also signed in the sale deed which was registered on 4.11.67. Immediately after the registration the Plaintiff continued to be in possession. After purchase by the Plaintiff, he applied for mutation of the land. Accordingly the name of the Plaintiff was mutated in respect of A0.91 decimals. Since the Appellants committed trespass over the suit land and forcibly sold the paddy, the Plaintiff Respondent filed a case u/s 447, Indian Penal Code in ICC No. 29/78. The Defendants also committed theft of paddy crop for which G.R. Case No. 64/78 was registered. In both the cases Appellant No. 1 took the plea that he had given the suit land to the Plaintiff on the basis of the usufructuary mortgage and after 7 years of possession by the Plaintiff he resumed possession. In 1979 there was a proceeding u/s 144 Code of Criminal Procedure in the Court of S.D.M. - cum- Executive Magistrate in Criminal Case No. 43/79. But it was converted later on into a proceeding u/s 145 Code of Criminal Procedure Since Appellant No. 1 being emboldened after he was acquitted in a criminal case of trespass, therefore, the Plaintiff-Respondent filed the suit for the aforesaid relief.

The Appellants case as described in their written statement is as follows:

The suit land was never intended to be sold by Appellant No. 1 to the Plaintiff-Respondent. The Plaintiff Respondent as a matter of fact took the suit land on possessory mortgage. Defendant No. 1 being an illiterate Scheduled Tribe person, therefore, believing it to be usufructuary mortgage put his L.T.I. He was a liquor addict and under the influence of liquor, the Plaintiff-Respondent maneuvered to take a document from him. Defendant No. 1 after expiry of 7 years got into possession and since then he has been enjoying the same. As the Plaintiff-Respondent is rich man in the locality, he therefore, started one case after Anr. taking advantage of simplicity of Defendant No. 1. The Plaintiff taking advantage of Defendant No. 1''s illiteracy and simplicity got the deed fraudulently executed by taking the L.T.I. from Defendant No. 1, but it was never meant to be a deed of conveyance. The market value of the suit land was much more than Rs. 5000/- for which it is allegedly conveyed to the Plaintiff.

The trial Court held that Defendant No. 1 sold the suit land to the Plaintiff for a consideration of Rs. 500/- and executed a deed of conveyance on 4.11.67. It has been further held that after such sale deed the Plaintiff''s name was mutated in the record of right. Defendant No. 1 having executed the document knowingly, therefore, he divested all his right from the suit land. With these observations he decreed the suit.

The appellate Court while confirming the judgment has also held that since before execution of the sale deed, the permission was obtained after due enquiry. Thus it cannot be said that the Plaintiff might have procured the sale deed by practicing fraud.

Mr. Dutta, learned Advocate appearing for the Appellants has advanced a serious contention by stating that Appellant No. 1 being an illiterate Scheduled Tribe man, therefore, the Plaintiff-Respondent ought to have led evidence that it was the conscientious execution of Defendant No. 1. In this case no witness to the document was examined by the Plaintiff who ought to have led clear, trustworthy and unimpeachable evidence to prove that Defendant No. 1 executed such a sale deed. Usually the expression "execution" is meant to be a mental act of the executor of a document. It has, therefore, to be established that the person who executed the document should be aware of the consequences of such a transaction. In a case where the executant is being deprived of his/her entire property, this requirement is all the more necessary and the burden of leading evidence to sustain the transaction becomes heavier. In this respect a decision reported in Vol. 37 (1971) C.L.T. 282 in the case of Gokhani Bewa v. Gayadhar Das and Ors. is relevant. It has been held in the above case as follows:

It has been held in this Court that in order to show that execution is the mental act of the executant of a document, it has to be established that she was aware of the consequences of the transaction. In a case where the executant was being deprived of her entire property, this requirement is all the more necessary and the burden of leading evidence to sustain the transaction becomes heavier. As already indicated, in this case the executants of the deed of gift were losing all their assets and under the deed it was contemplated that they were to be deprived of the immediate possession.

In this case also after the Defendants became unsuccessful in both the Courts below challenged in this Court regarding the execution purported to have been made by her. The same view also has been reiterated in a latter judgment reported in Rankanidhi Sahu Vs. Nandakishore Sahu, Considering the case of the Appellant in a judgment reported in Miti Bewa Vs. Daitari Nayak and Others, it is found that the facts of that case is aptly applicable to the present case. It has been held that where a suit was filed by an illiterate lady for declaration of title and setting aside sale deed executed by her on allegation that the sale deed was taken from her on the pretext of power of attorney by her son-in-law, who was living with her for a score of years and was managing her property, the burden to prove intelligent execution of sale deed by lady was on the purchaser.

On consideration of the judgment passed by both the Courts below, it is found they have not at all discussed the evidence and expressed firm opinion about conscious execution by the Appellant No. 1. There can be least doubt that whatever principle applicable to a pardanashin illiterate lady is in pari materia applicable to an illiterate person. The principle governing a case where a person seeks a document to sustain a transaction entered into with an illiterate person has to establish that the said document was executed by him only after clearly understanding the nature or character of the transaction. Such burden unless is discharged the physical act of signing the document cannot be treated as the ''mental act'' of its author.

Keeping the aforesaid principle in mind let me now advert to the evidence placed before the trial Court. P.W.1 who is Plaintiff in this case deposed to have advanced Rs. 500/- two years before the registration of the land in his favour. Appellant No. 1 required the money for purchase of a pair of bullock and for construction of a house. He also gave delivery of possession of the suit land. From his evidence it further transpired that the Appellant No. 1 was an illiterate person, therefore, he had been asked to put his L.T.I. Tara Babu typed out the sale deed in English. From a brief resume of the evidence it has, however, not spelt out that before execution of the documents the scribe read out the contents to Appellant No. 1 who after having understood the contents put his L.T.I. No. certificate by the scribe has been attached in the document to suggest that he read out the contents to Appellant No. 1. It appears all the more necessary because the document had been typed out in English which was not understandable to the executant. It was quite unusual for a person to advance Rs. 500/- for purchase of bullocks and for construction of house two years before the execution of the document. There has been no independent document to establish that Defendant No. 1 has received the consideration two years preceding the execution of the document. It is stated that since the attesting witnesses became hostile against the Plaintiff-Respondent, therefore, they were not examined. In case the witnesses demonstrated any act of hostility it cannot be said that the Plaintiff did not have any other alternative remedy. He could have taken steps to summon those witnesses for the purpose of cross-examination. The evidence of P.W.2 was mainly relied upon to prove that it was written by Tara Kanta Misra. He only proved the signature of Tara Kanta Misra. From the testimony of P.W.2 it did not, however, appear that it was typed by deceased Tarankanta Misra in his presence. He was also not present at the time of execution of the document. P.W.3 has stated that he had seen a plain paper document executed by Defendant No. 1 but no such plain paper document has been produced in Court. It has also been admitted that the Defendants created problems about possession of the land by the Plaintiff. P.W.3 has claimed that the Defendant No. 1 stated to have agreed to sell the land for Rs. 500/-, but has not claimed to be present at the time of paying Rs. 500/- to Defendant No. 1 by the Plaintiff. Therefore, his evidence is not substantially helpful to the Plaintiff.

D.W.1 is Defendant No. 2 in this case. He has deposed that Defendant No. 1 was a strong addict of liquor. He further deposed that the value of the suit land would be more than Rs. 5000/- to Rs. 10,000/- D.W.2 also corroborated the evidence of D.W.1 that Defendant No. 1 was a liquor addict. D.W.2 was cited as an attesting witness to the document who also supported the Defendants version that the suit land was given on possessory mortgage for Rs. 500/- When there has been ample evidence that the value of the suit land was more than Rs. 5000/- at the time of execution of the document and only Rs. 500/- was shown to have been paid under the document, it was unlikely that Defendant No. 1 must have consciously executed the deed of conveyance. D.W.3 has also stated that the value of the land would be more than Rs. 5000/-.

The record of the S.D.O. in the permission case was filed in Court. From the record it has transpired that an application purported to have been submitted by the Appellant subscribing his signature thereon. But the Plaintiff in his evidence unequivocally stated that Defendant No. 1 was an illiterate person. In such situation, it is not understood whether Defendant No. 1 had put his signature or some one else signed in the application. In the field enquiry by the Enquiring Officer the L.T.I. of Defendant No. 1 was taken. If Defendant No. 1 was an illiterate man, why his L.T.I. was not taken in the application for permission of sale.

I am shocked to note that both the Courts below unfortunately overlooked above aspect and decreed the Plaintiff''s suit.

In this case when Defendant No. 1 claims to be an illiterate Schedule Tribe person. Both the Courts below should have insisted the Plaintiff to lead evidence regarding the conscious execution of document by Defendant No. 1. Therefore, in the above situation I am not in a position to agree with the observation of both the Courts below.

Accordingly the appeal is allowed. The judgments and decrees passed by both the Courts below are hereby set aside. The Plaintiff''s suit for declaration of right, title and interest and for confirmation of possession is hereby dismissed. No costs.