JUDGMENT : K.P. Mohapatra, J. - Title Suit No 65 of 1971 was instituted by Respondent No. 5 against the Appellants, Respondents 1 and 2 and their husbands, Respondent No. 3 and some others for issue of permanent? injunction. Title Suit No. 66 of 1971 was also instituted by Respondent No. 5 against Respondents I, 2, their husbands and Respondent No. 3 for recovery of possession of immovable property. Title Suit No. 8 of 1972 was instituted by Respondents 1 and 2 against the Appellants and other Respondents for partition of schedule ?Ka? property which is also involved in the two other suits. The suits came up for hearing before the learned Subordinate Judge, Aska analogously and while he dismissed the previous two suits, he passed a preliminary decree for partition in that later suit defining the shares of Respondents 1 to 5 and further directing the lands alienated in favour of 3rd. party purchasers, Respondents 6 to 9 should be apportioned to the shares of the vendors. While passing the decree, two deeds of gift in respect of two different parcels out of the suit land in favour of the Appellants executed by Respondents 3 and 5 were set aside. The present appeal was preferred by the donees of the aforesaid two deeds of gift. 2. Shorn of unnecessary details, the following facts which were not disputed may be stated. The suit land belonged to Jata Panda. Respondent No. 3 is his widow and Respondents 1. 2 and 4 are his three married daughters. Respondent No. 5 is the natural born son of Respondent No. 4. The Appellants are the nephews of Jata Panda. When he was alive and was exclusively in possession of the suit land. Jata Panda executed a deed acknowledging adoption in favour of Respondent No. 5 on 11-11-1968. He died on 3-2-1969. On or after the 10th. day of the Sradha of Jata Panda two .deeds of gift came into existence in respect of two different parcels out of the suit land. One of the gift deeds was purported to have been executed by Respondent No. 3 in favour of her two daughters, Respondents 1 and 2 and the second deed of gift was purported to have been executed by Respondents 3 and 5 in favour of the Appellants. 3. One of the gift deeds was purported to have been executed by Respondent No. 3 in favour of her two daughters, Respondents 1 and 2 and the second deed of gift was purported to have been executed by Respondents 3 and 5 in favour of the Appellants. 3. The dispute amongst the widow, daughters, Respondent No. 5 and the Appellants centres round the deed acknowledging adoption (Ext. 1) dated 11-11-1968 and the deed of gift (Ext. B) dated 12-12-1969. It is the case at Respondents 3, 4 and 5 that Respondent NJ. 5 had been adopted as son by Jata Panda. This fact, however, has been denied by Respondents 1 and 2 and the Appellants. According to them, there was no adoption? ceremony and the act of giving and taking connected with it. Further, the Appellants have averred that on the 10th. day of the Sradha of Jata Panda, Respondent No. 3 executed a deed of gift in their favour in respect of the specific land out of the suit land and so they are entitled to hold the gifted land as donees. With regard to this gift, the case of Respondents 3 and 5 is that the deed of gift was not at all executed by the former. On the other hand, while she was in mourning on account of death of her husband and when all male relations of the family had gone to the burning Ghat for performance of Dashah, the Appellants by perpetration of force and fraud took her thumb impressions on blank stamp papers which were subsequently manufactured into a deed of gift. That is why she did not attend the office of the registration officer for registration of the document. 4. The learned Subordinate Judge held that Respondent No. 5 was legally adopted by Jata Panda, the deed of gift (Ext. That is why she did not attend the office of the registration officer for registration of the document. 4. The learned Subordinate Judge held that Respondent No. 5 was legally adopted by Jata Panda, the deed of gift (Ext. B) purported to have been executed in favour of the Appellants was not a legal and valid document voluntarily executed by Respondent No. 3, but on the other hand, her thumb impressions were obtained by force on blank papers and subsequently a deed of gift was manufactured; in the event of partition Respondents 1 to 5 have defined shares in the suit land left by Jata Panda and accordingly the learned Court passed a preliminary decree for partition defining their shares and further directing that lands alienated in favour of Respondents 6 to 9, be apportioned to the shares of the vendOrs. 5. Mr. K T. Rao, learned Counsel appearing for the Appellants, urged that the impugned deed of gift (Ext. 8) was voluntarily executed by Respondent No. 3 on her own behalf, as well as on behalf of the minor adopted son, Respondent No. 5 being fully aware of its contents and the consequences. Therefore, in a suit for partition brought at the instance of Respondents 1 and 2, it was not open to the learned Subordinate Judge to set aside the deed of gift, although Respondents 3 and 5 did not specifically pray for setting aside the same either in the previously instituted suits or by a separate suit. Mr. G. Rath, learned Counsel appearing for Respondents 3 and 5, on the other hand contended that as rightly held by the learned Court below, the deed of gift (Ext. B) was a completely invalid document because, it was not executed by Respondent No. 3. On the other hand, by perpetration of force and fraud her thumb impressions were obtained on blank stamp papers .and the deed of gift was subsequently manufactured. She had no reason to make a gift of substantial immovable property in their favour while still in mourning and as Respondent No. 6 had been adopted as son by her late husband. The controversy in the First Appeal is thus limited to the question of the validity or invalidity of the deed of gift (Ext. B). She had no reason to make a gift of substantial immovable property in their favour while still in mourning and as Respondent No. 6 had been adopted as son by her late husband. The controversy in the First Appeal is thus limited to the question of the validity or invalidity of the deed of gift (Ext. B). Therefore, before entering into a discussion about it with reference to the evidence on record, I would like to point out the settled positson of law to the effect that in the case of execution of a document by an illiterate purdanashin lady, burden is heavy on the person getting advantage under the document to establish that the contents of the document were read over and explained to her, she understood them, she had independent advice ?at the relevant time and that the execution of the document was not only a physical act, but also a mental act (see Nimma Chitti Appayyamma Vs. P.V. Narasimham, and Tulabati Sahuani v. Khetra Sahu and Ors. ILR 1979 Cutt. J77) In this view of the law onus is heavy on the Appellants to establish that the impugned deed of gift (Ext. B) was voluntarily executed by .Respondent No. 3 with full knowledge of the transaction, the contents of the document were read .over and explained to her, she understood them and she had independent advice at the time so as to give away specific immovable property belonging to her deceased husband. 6. P. w.3 (Respondent No. 3) Radha Panda is the widow of Jata Panda. She stated in her evidence that after adoption, Respondent No. 5 lived with her. Her husband died on 3-2-1969. On the 10th. day of death that is, Dashah her son-in-law Raghunath Patra and the Appellants forcibly took her thumb impressions on six blank stamp papers at about 5 p. m. At that time the other male relations of the family who bad come to attend the Dashah were absent at home as they had gone to the burning Ghat. Her daughter, Respondent No. 4 and Anr. woman relation of Sialia village, who is now dead, were present at that time and they had protested. As she did not execute any document, she did not attend the office of the registration officer for the purpose of registration of the document. Her thumb impressions appear in Ext. Her daughter, Respondent No. 4 and Anr. woman relation of Sialia village, who is now dead, were present at that time and they had protested. As she did not execute any document, she did not attend the office of the registration officer for the purpose of registration of the document. Her thumb impressions appear in Ext. B which shows that she is illiterate. She belongs to a Brahmin family of a village and was sufficiently aged at the relevant time. Undoubtedly she was purdanashin. Her evidence discloses that she was in mourning on account of death of her husband. Her thumb impressions were obtained in blank stamp papers by force. One of her daughters protested and as other male relations were not at home she had no independent advice. P. w. 4 is Respondent No. 4 she supported the version of p.w. 3 completely by stating that the Appellants and the husband of Respondent No. 1 forcibly took the thumb impressions of her mother on blank stamp papers on the 10th. day of Sradha of her deceased father when other male relations had gone to the burning Ghat. D. w. 1 is Raghunath Patra, husband of Respondent No. 1 who is one of the Plaintiffs in the partition suit. He stated that on the 10th. day of the Sradha ceremony his mother-in-law Respondent No. 3 gifted away 7 Varans and 11 Nautis of land in favour of the Appellants and 20 Varans and 5 Nautis of land in favour of his wife and Anr. daughter by executing two registered deeds of gift in the presence of priest Udayanath Misra, Somanath Naik and other relations. Kishore Mohanty of Athagada Patna was the scribe of the documents. He stated in cross-examination that Appellant Khalli Panda and his wife Respondent No. 1 went to Boirani and purchased the stamp papers on the very day when the documents were executed. He suggested Respondent No. 3 to postpone execution of the documents, but she declined. Therefore, on a day of mourning the documents had to be executed. He was present when the documents were scribed at 1. 00 p. m. and the entire transaction was over at 3. 00 p. m.. He suggested Respondent No. 3 to postpone execution of the documents, but she declined. Therefore, on a day of mourning the documents had to be executed. He was present when the documents were scribed at 1. 00 p. m. and the entire transaction was over at 3. 00 p. m.. The aforesaid statements show that the deeds of gift were brought into existence in a hurry at time when all male members were expected to be at the burning Ghat for performance of Dashah ceremony. The evidence of this witness is highly interested in the case of his wife who is a Plaintiff in the partition suit and cannot be accepted without a pinch salt. D. w. 2, Rahas Patra, Respondent No. 1, is the wife of d. w. 1. She stated that one or two days after the death of Jata Panda, the sisters (meaning all the daughters of Jata Panda) sat together and came to the decision that the properties left by their father would be dealt with after the Sradha was over. But on the 10th. day of Sradha her mother executed two deeds of gift, one in favour of Respondents 1 and 2 and the other in favour of the Appellants. According to her, Respondent No. 3 went to Boirani but did not register the documents. The evidence of this witness also indicates that the documents were brought into existence in a hurry in the absence of any independent advice. D. w. 4, Udayanath Misra claim to be the priest and stated that he was present along with Somanath Naik when Respondent No. 3 executed Ext. B. He attested the document. The contents of the document were duly read over and explained to her and thereafter she put her thumb impressions. From cross-examination of this, witness it would appear that the document was said to have been executed between 2.00 to 3.00 p. m.. He could not identify the? handwriting of the scribe. The stamp papers had been obtained on the previous day. Although this witness is an independent witness yet, it would appear from his statement that he was not clear of all aspects of execution of the .document so much so that he was unable even to identify the handwriting of the scribe. handwriting of the scribe. The stamp papers had been obtained on the previous day. Although this witness is an independent witness yet, it would appear from his statement that he was not clear of all aspects of execution of the .document so much so that he was unable even to identify the handwriting of the scribe. His statement was challenged on the ground that he was no longer the priest of the family which seems to have some force because, as a priest of the family, he should have been present at the burning Ghat and not at home witnessing the scribing and execution of documents. Therefore, it is not possible to place whole reliance on his evidence. D. w. 8 is one of the Plaintiffs. He stated that he was asked to bring stamp papers .by Respondent No. 3 who intended to execute a deed of gift in his favour and in favour of his cousin, the other Appellant because, her husband had expressed prior to his death to give some lands to them. Accordingly, the witness and Respondent No. 1 purchased stamp papers on the 10th. day of Sradha and two deeds of gift were scribed by Kishore Chandra Mohanty according to the instructions of Respondent No. 3. The contents of documents were read over and explained to her and she executed the documents by putting her thumb impressions. D. w. 4 was one of the attesting witness to the documents. It will appear from his cross-examination that the stamp papers were purchased in his name. Details of lands included in the deeds of gift were obtained from the partition deed which was with Respondent No. 3. Although there was suggestion to postpone execution of the documents~ Respondent No. 3 insisted that they should be executed on that very day. Needless to say that he is highly interested in the deed of gift (Ext. B) and his evidence has not found corroboration from independent sources except that of p.w. 4 whose evidence is not very, reliable. 8. From the aforesaid evidence it appears that while the executant an illiterate purdanashin lady, in mourning of her deceased husband denied execution of the deed of gift (Ext. 8) and alleged perpetration of force and fraud in obtaining her thumb impressions on blank stamp papers, evidence of voluntary and conscious execution of the document by her is almost absent. 8. From the aforesaid evidence it appears that while the executant an illiterate purdanashin lady, in mourning of her deceased husband denied execution of the deed of gift (Ext. 8) and alleged perpetration of force and fraud in obtaining her thumb impressions on blank stamp papers, evidence of voluntary and conscious execution of the document by her is almost absent. Except d. w. 4, the evidence of the defence witnesses referred to above is tainted, with interestedness and the evidence of d. w. 4 is not wholly reliable. For some unexplicable reason the scribe of the document was not examined. Other relations, who might have come to attend the Sardha, were not examined. No co-villager or neighbour was also examined in order to know about the mental state of Respondent No. 3 for execution of the document. On the other hand, it appears highly improbable that while still in mourning, the widow gifted away substantial immovable property belonging to her deceased husband to the nephews (Appellants) although a son bad been adopted. In a Hindu society, particularly in the rural area gift of property during prohibited mourning period may not be extraordinary, but certainly it was uncommon. Above all, she had no independent advice at the relevant time. In the absence of the scribe, it cannot also be said that the contents of the document were read over and explained to her. For all these reasons, I hold in agreement with the learned Subordinate Judge that the deed of gift (Ext. 8) was not legally executed by Respondent No. 3. It did not confer title on the Appellants in respect of different parcels of the suit land alleged to have been gifted under it. The Appellants have failed to discharge the heavy onus enjoined by law. 9. As contended by Mr. Rao it is true that there is no specific prayer by Respondents 3 and 5 for setting aside the deed of gift (Ext. 8) as an illegal document, but it should be remembered that in a suit for partition validity of documents, by which portions of the subject matter of partition are alienated are also challenged and decided. Otherwise, a valid and executable decree for partition cannot be passed. This appeal arises out of the partition suit (Title Suit No. 8 of 1972) and unless the legality and validity of the deed of gift (Ext. Otherwise, a valid and executable decree for partition cannot be passed. This appeal arises out of the partition suit (Title Suit No. 8 of 1972) and unless the legality and validity of the deed of gift (Ext. B) was determined, it was not possible to pass a valid decree for partition. More over, the necessary parties to the deed of gift (Ext. 8) were before the court, they had opportunity of leading evidence and absolutely no prejudice was caused to them. So there was no reason why the learned Subordinate Judge could not hold that the deed of gift (Ext. B) was an illegal and invalid document liable to be set aside. This being the position, I am unable to agree with Mr. Rao and hold that in the suit for partition the deed of gift (Ext. 8) was available to be challenged at the instance of Respondents 3 and 5 who were vitally affected by it. 10. For the reasons stated above, there is no merit in this appeal, Accordingly, it is dismissed with costs and the judgment and decree passed by the learned Subordinate Judge are affirmed. Advocate?s fee at Rs. 250/-. Final Result : Dismissed