Somanath Misra vs Narahari Das and Others

S. Acharya, J.—The Plaintiff has preferred this appeal against the judgment of the Additional District Judge, Cuttack in Title Appeal No. 32 of 1972 confirming the decision of the Second Munsif, Cuttack in Title Suit No. 2 of 1969.

The Plaintiff''s suit is for declaration of title and confirmation of possession or in the alternative for recovery of possession of the suit plot comprising an area only of Ac. 0.38 decimals as described in the plaint.

Undisputedly, the suit land was previously recorded in the name of one Narayan Mohanty. Udia Barik, husband of Defenant No. 5, purchased the said land on 27-1-1938 from Narayan Mohanty under the registered sale deed Ext. D. According to the Plaintiff, he, in May, 1938, orally purchased the suit land from Udia Barik and obtained possession of the same. Thereafter, he amalgamated the said plot with his adjoining plot of land. The Plaintiff further alleged that the oral sale in his favour by Udia was acknowledged by Udia''s wife in the acknowledgment deed Ext. 6 dated 24-5-1962 wherein she admitted the Plaintiffs'' right, title and possession over the suit property on the basis of the said oral sale. The Plaintiff also alleged an alternative case of adverse possession over the suit land.

Defenant No. 5 and Defenant No. 8 are respectively the widow and minor son of Udia. Defenants 3, 4, 6 and 7 are the daughters of Udia. Defenant No. 2 is the husband of Defenant No. 3. According to the Defenants, Defenant No. 5. sold the suit land to Defenants 2 and 3, who in their turn sold it to Defenant No. 1.

Defenants 1, 2, 3 and 5 contested the suit Defenants 2, 3 and 5 supported Defenant No. 1''s case that he purchased the suit land from Defenants 2 and 3, got delivery of possession thereof and is in possession of the same.

6 The trial Court dismissed the suit by disbelieving the Plaintiffs case of oral sale and rejecting his case of adverse possession. It also held that the said acknowledgment deed, Ext. 6, was a fabrication.

The appellate Court has confirmed all the said findings of the trial Court.

Mr. Misra, the learned Counsel for the Appellant, has not been able to raise any convincing ground to assail the concurrent findings of fact that the Plaintiffs case of oral purchase of the suit land is false, and that he did not acquire any right to the suit land by adverse possession.

Mr. Misra, however, contends that the finding of the Court below in respect of Ext. 6 is illegal and incorrect as the said finding has been arrived at by placing wrong and uncalled for onus on the Plaintiff to prove certain things in respect of that document which be under the law was not required to prove in this case.

Ext. 6 is an unregistered deed. According to the Plaintiff, by that deed Defenant No. 5 acknowledged the Plaintiff''s title and possession over the suit land. Both the Courts have negatived the Plaintiff''s case of oral purchase of the suit land. Defenant No. 5 admittedly is an illiterate woman. The Court of course has not placed reliance on her case in her written statement that the Plaintiff on one occasion obtained her thumb impressions in a blank paper on some false pretext. Apart from that case, she also alleged that the contents of Ext. 6 were not known to her and she did not execute the said acknowledgment deed. The other contesting Defenants in their written statement specifically alleged that Defenant No. 5 was an illiterate woman, and the said document was obtained from her without reading and explaining its contents to her. Defenant No. 5 in her deposition in Court has herself stated that after the death of her husband she, a Purdanashin and illiterate lady, was left helpless with only her minor son near her, and that the said document was never read over and explained to her and its contents and purport were not at all made known to her. As Defenant No. 5 is admittedly an illiterate woman and the Defenants in their written statement specifically alleged as stated above, the Plaintiff, in order to rely on the said document, should have taken care to adduce suitable evidence to establish the fact that before Defenant No. 5 executed the said document the contents of that document were read over and explained to her and that she affixed her thumb impression to the said document after fully understanding the contents and purport of the said document.

In the decisions of this Court in Agdhei Malikani and Anr. v. Abhimanyu Mallik and Ors. 34 (1968) C.L.T. 874, Srimati Suna Devi and Ors. v. Srimati Janhabi Devi 1975 (1) C.W.R. 512 and Laxmi Bai v. Kesarimal 1974 (1) C.W.R. 630, it has been held that the principles which govern proof of execution of documents taken from Purandashin woman are equally applicable to the documents taken from illiterate women. In the decision AIR 1937 274 (Privy Council) , on the facts that the impugned document was in English and its executant was not conversant with that language their Lordships in dealing with the question of due execution of that document observed that:

There is no doubt that, as the document was in the English language and the Omanhene knew no English, the onus lay upon Upper Wassaw to establish that the document had in fact been properly explained and interpreted so as to make the Omanhene of Aowin understand its real import.

An illiterate person cannot read the contents of the document, 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 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.

In Ext. 6 there is no endorsement that the contents of the said deed were read over and explained to Defenant No. 5 and that she executed the said deed after understanding the contents of the same. Defenant No. 5, examined as d, w. 3, has asserted that the said document was not read over to him and he did not know the contents of the said document. The scribe of the said deed d. w. 6 has testified to the fact that he did not scribe that document on the instruction of Defenant No. 5 and that he did not even see Defenant No. 5 when he scribed that document. He further stated that on the request of the Plaintiff, who was his teacher, he copied out in Ext. 6 all that had been written in a draft made over to him by the Plaintiff. He says that when he wrote out Ext. 6, he saw thumb impressions in that document, but there was no other writing or signature in the said document. This witness has also admitted that he and the Plaintiff purchased a piece of land jointly and were jointly involved in a litigation in connection with that land. The Plaintiff has also admitted the last-mentioned fact. The evidence of the scribe to the above effect has not been successfully assailed. In the face of such evidence it was incumbent on the Plaintiff to establish the fact that the contents of the said document were read over and explained to Defenant No. 5, an illiterate woman, and that she appended her thumb impression on the said document after understanding the contents of the same. As that has not been pone, the Court below has rightly held that due execution of the said document has not been proved in this case, and so that document is of no consequence. Thus the finding of the Court below on the above aspect of the matter is perfectly correct and justified.

I, therefore, do not see any merit in this appeal and it is accordingly dismissed with costs.

Appeal dismissed.