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1973 DIGILAW 29 (ORI)

BANCHHANIDHI SWAIN v. SULAV BEWA

1973-02-13

B.K.RAY

body1973
JUDGMENT : B.K. Ray, J. - The unsuccessful Plaintiff in both the Courts below is the Appellant. 2. The facts giving rise to the present appeal are as follows:-The Appellant filed a suit for a declaration that the deed of gift dated 10-11-1942 (Ex. C) in his favour is binding on the Defendant Respondent, she having voluntarily executed the same and for declaration of his title and confirmation of his possession in respect of the suit properties covered by Ex. C. The Respondent is the widow of Appellant's brother. The Appellant and his brother were separate in mess and property by the time the latter died. The Respondent after the death of her husband requested the Appellant to look after her properties as she was a lady and the Appellant looked after the properties of the Respondent as requested. The Respondent being satisfied with the Appellant gifted the suit properties to which she had succeeded on the death of her husband in favour of the Appellant voluntarily by executing Ex. C on 10-11-1942. According to the Appellant, he became the owner in possession of the suit properties since the gift in his favour. The Respondent being prevailed upon by the enemies of the Appellant cancelled Ex. C by a registered cancellation deed dated 21-1-1964 (Ex. B). It is said that this deed of cancellation cannot affect the Appellant's right, title, interest and possession in respect of the properties in suit which he had got under Ex. C. 3. The Respondent denies the aforesaid allegations and contends that she is an illiterate purdahnashin lady and was in a helpless condition after the death of her husband. Therefore, she had to depend for the management of her properties on the Appellant. The Appellant taking advantage of his position persuaded her to execute a power-of-attorney in his favour in order to enable him to effectively manage her properties. The Respondent agreed to this proposal and subsequently under the belief that she was putting her thumb marks to a power-of-attorney put her thumb marks on a document as desired by the Appellant without knowing that the said document was gift deed. It was only when the Appellant wanted to mutate his name in respect of the properties in suit, the Respondent on enquiry could learn that instead of a power-of-attorney, a deed of gift had been taken from her. It was only when the Appellant wanted to mutate his name in respect of the properties in suit, the Respondent on enquiry could learn that instead of a power-of-attorney, a deed of gift had been taken from her. In these circumstances, she was compelled to cancel the deed of gift (Ex. C) by the registered cancellation deed (Ex. B). 4. The trial Court accepted the Respondent's contention and on a finding that Ex. C was not voluntarily executed by her dismissed the Appellant's suit. On appeal by the Appellant, the lower appellate Court also confirmed all the findings of the trial Court and dismissed the appeal. The Appellant thereafter has preferred this appeal. 5. It is well settled that the protection available to a purdahnashin lady is equally available to an illiterate lady. There is no dispute that the Respondent is an illiterate lady. It is admitted by the Appellant that he was managing the properties of the Respondent after the death of her husband who died in a separate state from him. It is admitted by learned Counsel for Appellant that the deed of gift (Ex. C) covers a major portion of the properties left to the Respondent by her husband. The onus therefore is very heavy on the Appellant to establish that the Respondent, an illiterate lady executed Ex. C after having understood its contents and that she had independent advice at the time of execution of such document. The certificate given at the foot of Ex. C does not say that the contents of the document were explained to the Respondent before she executed it. The scribe and one of the attesting witnesses to the document are said to be dead. The only attesting witness who is living has been examined by the Plaintiff. His evidence does not disclose that the contents of Ex. C were read over and explained to the Respondent before she was asked to execute it. This witness admits that it had been settled before execution of the gift deed (Ex. C) that the Appellant would maintain the Respondent throughout her life. To the same effect is the evidence of the Appellant also. But curiously, no such condition has been mentioned in the recitals of Ext. This witness admits that it had been settled before execution of the gift deed (Ex. C) that the Appellant would maintain the Respondent throughout her life. To the same effect is the evidence of the Appellant also. But curiously, no such condition has been mentioned in the recitals of Ext. C. It is also admitted that it is the Appellant who purchased the stamp paper required for the deed of gift and this would go to show that just before scribing of the document the Respondent had no opportunity to know as to what document would be scribed on the said stamp paper. Mr. B. Harichandan, learned Counsel for Appellant argues that the Respondent is not entitled to the protection available to a purdahnashin illiterate lady under the law, because it is clear from the evidence of the Respondent herself that she has sufficient business experience that she manages her own properties and that she looks after several cases pending between her and the Appellant. It may be remembered in this connection that the deed of gift (Ex. C) was taken from the Respondent in the year 1942. Differences between the Appellant and Respondent arose only 3 to 4 years prior to the present litigation. What is required under the law is to see if at the time of execution of an impugned document by a purdahnashin illiterate lady, she is entitled to the protection given to her under the law. A lady may be entitled to the protection at the time of execution of a document by her on account of the fact that she is illiterate at that time. It may be that a lady who was illiterate and was entitled to the protection might gather business experience subsequently, but that would not disentitle her to the protection at the time of execution of the impugned document, because there can be presumption that the business experience which she is found to have possessed subsequently was also there in her at the time she executed the document. In this view, I am not satisfied with the argument of learned Counsel for Appellant that because long after the execution of Ex. C the Respondent is found to have business experience and to be looking after her own affairs and litigations being compelled by circumstances, she possessed the business experience at the time of execution of Ex. In this view, I am not satisfied with the argument of learned Counsel for Appellant that because long after the execution of Ex. C the Respondent is found to have business experience and to be looking after her own affairs and litigations being compelled by circumstances, she possessed the business experience at the time of execution of Ex. C. It is then argued by learned Counsel for Appellant that the Appellant being in possession of the suit properties since the date of Ex. C in his favour, even assuming that Ex. C is not a valid one on the ground that the Respondent was not aware of its contents at the time of its execution, he has perfected his title to the suit properties by adverse possession. On the question of possession, both the Courts below have found against the Appellant and this finding is binding in second appeal. To establish possession for more than the statutory period, learned Counsel for Appellant relies upon the rent receipts (Ex. 2 series). These receipts show that rent has been paid under them on behalf of the Respondent. The parcha of the suit lands (Ex. H), khatian (Ex, E series) and the rent receipts produced by the Respondent (Ex. G series) go to show that the properties have stood in her name. Further, the original deed of Gift. (Ex. C) has been produced by the Respondent. Taking into consideration the aforesaid documents as well as the oral evidence on record and other circumstances, the Courts below having negatived the Appellant's case of adverse possession neither it is open to me to set aside this finding in second appeal nor I am inclined to take a view different from that taken by the Courts below on this question therefore, hold that no title has passed to the Appellant under Ex. C, the same not having been voluntarily executed by the Respondent and that the Appellant has no subsisting title to and is not in possession of the suit properties on the date of institution of the suit. 6. In the result, the appeal fails and is accordingly dismissed with costs.