JUDGMENT : R.N. Misra, J. - The Defendant No. 2 is in appeal against an affirming decision of the learned Subordinate Judge, Kendrapara, in a suit for title and possession. 2. The Plaintiff's case was that the original Defendant No. 1 Bairagi Das had two sons - Risi and Dasarathi. Risi had died long before and Dasarathi died in the month of November, 1956 in a hospital at Calcutta. The second Defendant who is now the Appellant is the widow of Dasarathi. The Plaintiff was also residing in Calcutta where he ran a cloth shop. He had undertaken the treatment of the second Defendant and when inspite of all his care and attention Dasarathi died, his cremation was also made by the Plaintiff. The Defendants 1 and 2 were poor and helpless. He also met their expenses for the obsequies of Dasarathi. Dasarathi had settled to purchase one acre and odd decimals of land from one Murari Charan Rout (p.w. 4) for a consideration of Rs. 1279/-. It had been agreed that after the payment of full consideration title would pass to the second Defendant. Out of the consideration money Dasarathi had paid Rs. 605/- and died before the rest could be paid. Murari had to receive the balance consideration money. The Plaintiff paid the same in the circumstances indicated above and obtained the sale deed after registration. In the village, some gentlemen came forward to persuade the Plaintiff' to accept the charge of maintenance of the Defendant No. 1 who was very old and of the Defendant No. 2 the helpless widow. It was settled that the Defendants would execute a deed of gift in favour of the Plaintiff in respect of their entire properties and the Plaintiff would undertake the liability of their maintenance. Dasarathi died on 13-11-1956. Within 14 days from the date of his death Ext. 1, the deed of gift came to be executed. The subject-matter of this deed of gift is about three acres of land including the land which was purchased by Dasarathi. Though the Plaintiff has abided by the terms of settlement and has paid away the debts incurred by the Defendants, they being misguided by home local people threatened to dispossess the Plaintiff. He, therefore, came with the action. 3. The Defendant No. 1 died during the pendency of the suit. In his place came the two daughters. Though the Plaintiff has abided by the terms of settlement and has paid away the debts incurred by the Defendants, they being misguided by home local people threatened to dispossess the Plaintiff. He, therefore, came with the action. 3. The Defendant No. 1 died during the pendency of the suit. In his place came the two daughters. The written statement bad, however, been filed by the original Defendant No. 1 and the Defendant No. 2. They disputed all the allegations made by the Plaintiff and denied even the deed of gift. They stated that while they were in mourning and had received a great setback on account of the death of Dasarathi, the Plaintiff appeared in the scene as a well-wisher, and posed as their protector. The Plaintiff prevailed upon them to execute a will and took them to the registration office and they executed a document under the impression that it was a Will. These Defendants were illiterate. The Defendant No. 2 happens to be a pardanashin lady. They never knew that they were being robbed of all their assets in the world. In February, 1961, the Plaintiff gave out that he had obtained a deed of gift from them and thereby had become owner of the property. Immediately after coming to know about the maneuvering of the Plaintiff they executed a deed of annulations on 3-4-1961. The Plaintiff who was coming to their house took away the rent receipts, house tax receipts, the sale, deed executed by Murari and certain other material documents and came up with the dispute raising a false claim. 4. At the trial, four witnesses in all were examined for the Plaintiff. p.w. 1 is a grandson of the Defendant No. 1. He is an attesting witness to the deed of gift, Ext. 1. p.w. 2 is the scribe of Ext. 1. p.w. 3 is the Plaintiff and p.w. 4 is Murari, the vendor of Ext. E, the sale deed in favour of Dasarathi. On the side of the Defendant, the Defendant No. 2 was examined as d.w. 2. An officer of the Land Acquisition Department was examined as d.w. 1 to show that Borne compensation was paid for the acquisition to the Defendant. Several documents were exhibited on either side. The learned trial Judge came to hold that the gift deed was a genuine one and it was intended to be acted upon. An officer of the Land Acquisition Department was examined as d.w. 1 to show that Borne compensation was paid for the acquisition to the Defendant. Several documents were exhibited on either side. The learned trial Judge came to hold that the gift deed was a genuine one and it was intended to be acted upon. The Plaintiff was also in possession. He accordingly confirmed his possession. The suit was decreed. 5. Before the lower appellate Court, several contentions were raised disputing the correctness of the decree of the trial Court. The main contention was on the basis that due execution of Ext. I had not been established and as such the gift cannot be said to be operative. It was further contended that possession of the disputed property was admittedly with the Defendants and merely on the basis of the settlement deed (Ext. 3) it was not open to the trial Court to hold that the Plaintiff was in possession because he had agreed that the Defendants would remain in possession during their life time. The defence case was that they had agreed to execute a will in favour of the Plaintiff so that they would remain as full owners in possession during their life time and it was only upon their death the Plaintiff would acquire title by virtue of the will. The Plaintiff maneuvered to obtain a deed of gift purporting to convey title in present in his favour whereas the Defendants knowing that they were executing a will went to the Sub-Registrar's office and got the document registered. 6. The learned, appellate judge came to reiterate the findings of the trial Court and dismissed the appeal. This affirming decision of the learned appellate judge is being challenged in second appeal at the instance of the second Defendant. 7. Mr. Patra contends that the Courts below have not looked into the matter from the proper angle and have not tested the evidence in this case by remaining aware of the position that the execution was by two illiterate persons one of whom was a pardanashin lady. Admittedly, by the time of execution of the deed of gift, the original Defendant No. 1 was about 75 years old. p.w. 1 has stated so. The deed of gift (Ext. 1) however puts his age as 68. Mr. Patra contends that the executants of Ext. Admittedly, by the time of execution of the deed of gift, the original Defendant No. 1 was about 75 years old. p.w. 1 has stated so. The deed of gift (Ext. 1) however puts his age as 68. Mr. Patra contends that the executants of Ext. 1 being a very old and illiterate man and a pardanashin widow, were entitled to the protection normally given by Courts and a heavy onus lay on the Plaintiff to prove due execution of the deed of gift., The Courts below, according to Mr. Patra, have not examined the evidence with due care and have not given due weight to the fact that the document came to be executed at a time when the executants had not revived from the shook they had received on account of the untimely death of Dasarathi. He contends that the same standard of protection which has been extended to pardanashin ladies is available in the case of very old illiterate persons and therefore, a special burden lay on the Plaintiff to establish that the deed of gift came into existence free from fraud, duress, undue influence etc. For that purpose he relies upon two decisions of their Lordships of the Supreme Court, firstly in the case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai, and secondly in the case of Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others. In the first case, their Lordships laid down: In India Pardanarshin 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...as regards documents taken from pardanashin 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 a pardanashin woman. In Kali Baksh v. Ram Gopal 43 Ind. App. 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 pardanashin woman. In Kali Baksh v. Ram Gopal 43 Ind. App. 23 at p. 29 (P.C.), Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardanashin lady was a party in the following words: In the first place, the lady was a pardhanashin lady, and the Jaw 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 conclusively 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. The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind. App. 342 at p. 352 : 89 Ind. Cas. 649 (Privy Council) at p. 2104, it was stated: The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. "While affirming the principle that" the burden is upon the person who seeks to sustain a document executed by a perdahnashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in AIR 1940 134 (Privy Council) . Further citation is unnecessary. The legal position has been very well settled. Shortly, it may be stated thus : The burden of prove shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document are executed by her after clearly understanding the nature of the transaction. It should be established that it was not only by 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, by other evidence, direct and circumstantial. The position seems to have been laid down very clearly upon good authority and it is not necessary to look for any other precedent. 8. In this case p.w. 1 has clearly admitted that both the Defendants were illiterate p.w. 1 stated that the deed of gift and the agreement-were read over to the Defendant No. 1 by the scribe at his sherists p.w. 2, the scribe has said: The contents of the deed of gift and the agreement are contradictory to each other. I did not explain to the executants of Exts. 1 and 3 that both these documents contained recitals contradictory to each other. I knew at that time that these, contradictory to each other.... P.w. 3, the Plaintiff has admitted that the original Defendant No. 1 was about years old when Ext. 1 was executed. Dasarathi was the only living son and when he died, both the Defendants kept on crying even until the 12th day after his death. I knew at that time that these, contradictory to each other.... P.w. 3, the Plaintiff has admitted that the original Defendant No. 1 was about years old when Ext. 1 was executed. Dasarathi was the only living son and when he died, both the Defendants kept on crying even until the 12th day after his death. He has said in paragraph 41 of his evidence: Within 2 or 4 days after the 12th day of death, marriage proposal for the execution of the deed of gift was mooted. I was not ready to accept the gift. 3 days after the proposal for the gift was mooted I agreed to accept the mortgage. Defendant No. 1, Defendant. No. 2, Banshidhar Das, p.w. 1 Mani and others made me to agree to accept the gift. Banshi was then serving at Calcutta but he had come to the village. I did not agree to accept the gift for about three days though all these persons were every day persuading me to accept the gift. The terms of the gift were not settled at the village. The term a were settled at the house of a lawyer at Kendrapara, Myself, Maheswar Das, Banshidhar Das, Chakradhar Raut, Golak Chandra Jena had been to the lawyer's house and none others. Maheswar Das and we the rest all after getting the draft from the lawyer went back to the village. On our return to the village we did not see p.w. 1 at the village.... He again said: On the date of registration of the deed of gift, the contents of it were read over to the Defendants 1 and 2....That day before the deed of settlement was read over to me, the deed of gift was read over Defendants. The deed of gift was read over to the Defendants 1 and 2 only once. It is on this evidence that Mr. Patra for the Appellant contends that there is no evidence to show that execution was made after clearly understanding the nature of the transaction. There has been failure to establish that it was not only a physical act but also a mental act of the executants. The evidence of the scribe in chief that he had read it over and explained to the executant seems to run counter to the statement of the attesting witness p.w. 1 and of the donee p.w.3. There has been failure to establish that it was not only a physical act but also a mental act of the executants. The evidence of the scribe in chief that he had read it over and explained to the executant seems to run counter to the statement of the attesting witness p.w. 1 and of the donee p.w.3. On the evidence of all the three witnesses on this question it would be fair to conclude that Ext. 1 had only once been read out and there had been no attempt to explain its contents to either the Defendant No. 1 or the Defendant No. 2. Ext. 1, the deed of gift and Ext. 3, the deed of settlement though executed on the selfsame day and in respect of the selfsame property, contained contradictory statement of facts and the terms were also contradictory as stated by p.w. 2, the scribe. There has indeed been a contradictory statement in regard to the manner of enjoyment of the property. 9. 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. 10. In the lower appellate Court reference has been made to the very decision of the Supreme Court which I have referred to above and the learned appellate judge was, therefore, aware of the principle to be applied to the facts of the case. The discussion that has followed in paragraphs 8 and 9 of the appellate judgment, however, has not touched this aspect from the proper stand-point. Undue emphasis has been given to the fact that p.w. 1 is a grandson of the deceased Defendant No. 1 and there would be no justification for him to come and support the Plaintiff as against the Defendant No. 2, a close relation. Undue emphasis has been given to the fact that p.w. 1 is a grandson of the deceased Defendant No. 1 and there would be no justification for him to come and support the Plaintiff as against the Defendant No. 2, a close relation. Banshidhar who has not been examined in this case is said to be another grandson of the Defendant No. 1. The learned appellate judge has attached a. Jot of importance to this fact that the two grandsons were brought into the picture for the settlement. It cannot be said that this is not a relevant item of consideration but it has certainly to be taken into account as a circumstance along with the other features which I have indicated above. 11. The learned appellate judge has not weighed all the facts and has not brought into his fold of considerations all the features which really required consideration to come to the conclusion in a case of this type. Whether Ext. 1, the deed of gift has been duly executed is normally a question of fact. But where the matter has not been approached from the proper angle and a right conclusion from the facts has not been reached and an impression is given that the faulty conclusion is the outcome of an improper approach to the matter, the finding reached in the final Court of fact cannot be binding in second appeal. The learned appellate judge overlooked the evidence on record and did not notice the pertinent features in coming to his conclusion. I do not, however, propose to come to a final conclusion of my own on the basis of reassessment of evidence but I think it is a fit case where the appellate judgment should be vacated and the learned appellate judge should be called upon to take into consideration all the materials on record to come to a fresh conclusion on the point in issue. He should keep the law in view to decide as to whether the execution of Ext. 1 has been established. 12. The Plaintiff in this case sued for confirmation of possession. Admittedly, the Defendants were in possession. The Plaintiff came forward to contend that the possession of the Defendants was permissive as would appear from Ext. 3. He should keep the law in view to decide as to whether the execution of Ext. 1 has been established. 12. The Plaintiff in this case sued for confirmation of possession. Admittedly, the Defendants were in possession. The Plaintiff came forward to contend that the possession of the Defendants was permissive as would appear from Ext. 3. But in the Court he stated: I have filed the suit as the Defendants are not giving possession of the properties covered by the deed of gift to us. It shall be open to the lower appellate Court to examine in these facts as to whether without asking for recovery of possession a suit for confirmation of possession would be maintainable. 13. I would accordingly allow the appeal, reverse the decree of the lower appellate Court and remit the matter to the learned appellate judge for a fresh disposal in accordance with law and keeping in view the observations indicated above. Costs shall follow the event. Final Result : Allowed