JUDGMENT : A.K. Padhi, J. - Both the appeals arise out of one judgment as both the suits were heard analogously. Title Suit No. 17 of 1977, the judgment and decree of which is challenged in First. Appeal No. 293 of 1978 was filed by one Sandhyarani paul for declaration of title regarding schedule 'A' properties of that suit and for recovery of possession with ancillary reliefs. In First Appeal No. 292 of 1978 the judgment and decree passed in Title Suit No. 9 of 1977 are challenged. By Plaintiff Jogamaya Paul filed suit for declaration of her title and recovery of possession of Schedule 'A' properties described in that suit. In both the cases the Defendants are same and the facts alleged in both the cases are similar. 2. In both the suits, it is averred that Keshab and Kailash were two brothers who were separated from each other. Kailash died issue-less leaving his widow Saraswati Bewa. Defendants are the sons of Keshab. Kailash had acquired considerable amount of landed properties from his own earning to which Saraswati succeeded as his sole heir. As Saraswati became ailing and subsequently it was opined that she was suffering from uterus cancer she needed money for her medical treatment. Saraswati contacted both the Plaintiffs (Sandhyarani and Jogamaya) and took advance of Rs. 1,000/- from each on 5-11-1976 and thereafter on 10-11-1976 Saraswati conveyed the disputed properties in both the suits by registered sale deeds accepting the balance amount of Rs. 5000/from each of the Plaintiffs in presence of the Sub-Registrar. Saraswati died on 12-12-1976-Both the Plaintiffs applied for mutation which was objected to by the Defendants. The Defendants also prevented the Plaintiffs on 23-1-1977 from possessing the suit land which necessitated the filling of the suit. 3. Defendants filed their written statement alleging therein that Sarswati was ailing for a long time. The husband of 'Sandhyarani Paul, Dr. Nityananda Paul was treating her Radhashyam Paul, husband of Plaintiff in Title Suit No. 9 of 1977 is the nephew and also the compounder of Dr. Nityananda Paul. Both Radhashyam Paul and Nityananda Paul exercising undue influence, taking advantage of the helplessness of Saraswati, took away two sale deeds in favour of their respective wives without payment of consideration. At the time of execution of the sale deed Saraswati was not in a condition to move about due to the prolonged illness. Nityananda Paul. Both Radhashyam Paul and Nityananda Paul exercising undue influence, taking advantage of the helplessness of Saraswati, took away two sale deeds in favour of their respective wives without payment of consideration. At the time of execution of the sale deed Saraswati was not in a condition to move about due to the prolonged illness. She was not in fit condition to understand her actions. After the death of Kailash. Saraswati was dominated by her brother Umakanta and her cousin sister's son Makhan alias Baidyanath Paul. Kailash had left sufficient landed property and she was very affluent. There was no need for-Saraswati to sell any property to raise any fund. Not only the present Plaintiffs have taken away by fraudulent deeds, but also Umakanta, the brother of Saraswati had taken away by fraudrilent deed 'from Saraswati - in respect of the dwelling house with its homestead lands. All these fraudulent actions of the Plaintiffs were with the connivance of Kanhei and Makhan and the scribe and his associates. They also got the sale deeds registered when the Sub-Registrar was absent. Since the sale deeds have been obtained by fraud, coercion and undue influence without any consideration, no title can pass to the purchasers. 4. The learned trial Court after assessing the evidence on record has given the findings that: (a) Plaintiffs have to prove that the documents were read over, explained to Saraswati and consideration passed through the documents and so also Saraswati had independent advice as the executant of the document was a paradanasin, illiterate and ailing lady; (b) Evidence on record shows that the documents were readover and explained to Saraswati and the documents were scribed on the direction- of Saraswati. She after understanding the import of the documents had executed the documents; (c) P.W. 7, the nephew of Saraswati who was all along staying with her and taking care of her was also present during the -execution of the documents and so also at the time of negotiation. Hence Saraswati had independent advice; (d) As Saraswati was ailing, she had necessity of raising immediate funds. There was necessity for selling the lands ; (e) Defendants have failed to prove that the sale deeds were obtained by exercising fraud or undue influence; and (f) Under the sale deeds full consideration had passed. Hence Saraswati had independent advice; (d) As Saraswati was ailing, she had necessity of raising immediate funds. There was necessity for selling the lands ; (e) Defendants have failed to prove that the sale deeds were obtained by exercising fraud or undue influence; and (f) Under the sale deeds full consideration had passed. With the above findings he decreed both the suits declaring the tide of the Plaintiffs and also ordered for recovery of possession. These findings of the learned trial Court in, both the suits are challenged in those First Appeals by the Defendants. 5. The learned advocate for the Appellants submits; (i) from the evidence on record, it will be apparent that Saraswati never understood her actions at the time of execution of the sale deeds due to prolonged illness and she had executed the documents without understanding the same ; (ii) after the death of Kailash, Saraswati came in the clutches of her brother . Umakanta, her nephew Makhan and with their connivance the sale deeds were taken away by practising undue influence; (iii) since the Plaintiffs have failed to prove that in fact Saraswati was suffering from cancer and she had real need of going to Vellore, the execution of the sale deeds are to be presumed to be taken by undue influence and coercion; (iv) the Plaintiffs have failed to prove that consideration passed under the sale deeds, hence no title has passed under those documents; (v) Saraswati was a paradanasin illiterate ailing lady. The onus is very heavy on the Plaintiffs to prove that Saraswati had executed the documents after under standing the import and contents there of The Plaintiff have also to prove that she had independent advice. Since there is no evidence on record that she had independent advice, the sale deeds are void; (vi) Dr. Nityananda Paul and Makhan, the nephew of Saraswati had the opportunity to dominate over the will of Saraswati as she was an issuless helpless, old and ailing lady. Undue influence and dominating the will of Saraswati has to be presumed from the circumstances of the case; and. (vii) The witnesses examined on the side of the Plaintiffs are all partisan witnesses for which their testimony should not be accepted. P.Ws. 8 and 9 are the associates of the scribe (P.W. 1), P.Ws. Undue influence and dominating the will of Saraswati has to be presumed from the circumstances of the case; and. (vii) The witnesses examined on the side of the Plaintiffs are all partisan witnesses for which their testimony should not be accepted. P.Ws. 8 and 9 are the associates of the scribe (P.W. 1), P.Ws. 2, 3, 4 and 9 are Plaintiffs and their husbands, P.W. 7 is the nephew of Saraswati. Hence none of the witness is an independent witness and evidence should be rejected as they are tainted evidence. 6. Learned advocate for the Respondents on the other hand submits: (a) As has been admitted by the Defendants, Saraswati was ailing. She sold her properties to raise money for her treatment; (b) After the death of Kailash, Saraswati herself was looking after the landed properties and she was capable of managing her own affairs though illiterate; (c) From the evidence of the witnesses, it is dear that Saraswati instructed the scribe to write the documents according to her instructions. There is also evidence on record that the documents were finally read over and explained to her, hence she had executed the documents after knowing the contents thereof; (d) It is in evidence that after the death of Kailash, Defendants never looked after Saraswati. Makhan, her nephew with his wife were staying with her throughout and looking after her. Even when her husband was living Makhan and his wife were living with them. Hence, she had independent advice from Makhan; (e) There is no evidence on record that Dr. Nityananda Paul or Radhashyam Paul have taken away the documents by exercising undue influence on Saraswati; and (f) When there is endorsement before the Sub-Registrar that money was paid before the Sub-Registrar and when the witnesses have deposed that consideration had passed, the finding of the trial Court that consideration passed is correct finding. 7. Admittedly Saraswati was illiterate, old Paradanashin lagy. In Narayan Mishra and Others Vs. Champa Dibya (dead) and Others their Lordships after considering various decisions of the Supreme Court and of our own High Court have observed; The disposition made must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it. In Narayan Mishra and Others Vs. Champa Dibya (dead) and Others their Lordships after considering various decisions of the Supreme Court and of our own High Court have observed; The disposition made must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it. The Court must be satisfied that the deed had been explained to and understood by the party under disability, either before execution or after it under circumstances showing that the deed has been executed with full knowledge and comprehension. Mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension is in itself, no real proof of true understanding mind in the executant. In the case of execution of a deed by a paradanashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases test not with those who attack, but with those who rely on it. It must be proved affirmatively and conclusively that the deed was not only executed by but was explained to and really understood by, the granter. Ordinarily, the Courts insist on proof that the lady had independent legal advice although this may be an absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property. But the general rule is that save in such exceptional cases, the Court would demand affirmative proof on the subject of the lady's intelligent understanding and execution of a deed and would not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice. Following the decision of 66 (1988) C.L.T. 495 (Khali Panda and Anr. v. Rahas Patro and Ors.) in Rankanidhi Sahu Vs. Nandakishore Sahu his Lordship has opined that in a case of execution of a document by an illiterate paradanashin lady burden is heavy on the person getting advantage under the document that the contents of the documents were read over and explained to her, she understood them, she had independent advice at the relevant time of the execution of the document. The position of law is that since Saraswati was an illiterate and paradanashin lady, it is for the Plaintiff to prove that Saraswati had executed the documents after understanding the contents of the documents, knowing the import there of and that she had independent advice at the time of execution of the documents. 8. Regarding the question as to whether Saraswati had executed the documents after the documents were explained to her and she understood the contents, the Plaintiffs examined P.Ws. 1, 5, 6, 7 and 9. The Defendants have examined P.W. 2. P.W. 1 is the scribe P.W. 1 has stated: ...I had scribed the sale deeds Exts. 1 and 2 at her instructions on 10-11-1976...1 scribed the deeds in presence of the witnesses and read these over to her. She admitted these to be correct and put her L.T. Is.... Through it is suggested to him that Saraswati was not capable of instructing and was inside the car when he took her L.T. Is. the same has been denied by him. P.W. 5 has stated: Saraswati purchased the stamps. Paresh Babu (P.W. 1) scribed the 3 sale deeds as per instructions of Saraswati. He read these over to Saraswati in presence of myself and witnesses. She admitted these to be correct. P.W. 1 took the L.T. Is. of Saraswati and signatures of the witnesses.... It has been suggested to him that Saraswati was almost unconscious inside the car under a baniyan tree and her L.T. Is. were taken, which has been denied by him. P.W. 6 is a co-villager of Saraswati. He has stated: Saraswati purchased the stamp papers. Paresh Babu scribed the sale deeds, and read these over to Saraswati who admitted them to be correct. Then Paresh Babu took her L.T. Is and signatures of witnesses in presence of Saraswati. It has been suggested to him that Saraswati was not in a fit condition for which P.W. 6 came to the car and hold the wrist of Saraswati while others took the L.T. Is. to which he denied. P.W. 7, the nephew of Saraswati has stated: On return, Saraswati proposed to sell the homestead and some lands. I found out customers Myself, Mausi, Dr. Nityananda Paul and Radhesyam Paul went to see the lands to be sold. Price was settled at Rs. 12,000/- Rs. to which he denied. P.W. 7, the nephew of Saraswati has stated: On return, Saraswati proposed to sell the homestead and some lands. I found out customers Myself, Mausi, Dr. Nityananda Paul and Radhesyam Paul went to see the lands to be sold. Price was settled at Rs. 12,000/- Rs. 2,000/- were paid by Radhasyam Paul, at our house for Sandhyarani Paul and Jogamaya Paul He further stated: Saraswati intimated Paresh Babu that she wanted to self lands to 3 persons. She gave the particulars. Paresh babu read over the 3 sale deeds to her. She admitted these to be correct. We were present. I have signed in two deeds. Exts. l/c and 2/c are my signatures. Exts. 1/d and 2/d are signatures of my brother Udit put in my presence. P.W. 9 is the husband of the Plaintiff in Title Suit No. of 1977. He has stated: Saraswati got the deeds scribed. These were readover to her and she admitted these to be correct. 3 such deeds were executed. Saraswati put her L.T. Is. and witnesses signed. It has been suggested to him that along with others fraudulently he had obtained the sale. deeds without payment of consideration to which be denied. D.W. 2 has stated: Umakanta suggested to bring down Saraswati to Rairangpur for medical examination. Hence we boarded in the Car of Ramsevak at the house of Kailash, Makhan, Umakanta, Saraswati, myself, and the driver came in the car to house of Dr. Nidyananda Paul. Putun, the younger brother of Makhan along with Ramsevak and Syam Babu got into the car at that place. We came to the place under the baniyan trees in front of the Court at Rairangpur. All the time, I was holding Saraswati in my arms. Others left us in the car and went away. By then, Saraswati was unable to talk or walk and was gasping (Suku Suku). Paresh, Hara and Sonu Majhi took her L.T.Is. is a number of papers inside the car. Hara was holding her wrist while the L.T.Is. were taken. When I asked, Umakanta asked me to keep quiet. She has further stated: We were taken in the car to another building. At the direction of Umakanta, I carried Saraswati to the door of that office. Her head was resting at my chest. She was unable to talk or understand. Hara was holding her wrist while the L.T.Is. were taken. When I asked, Umakanta asked me to keep quiet. She has further stated: We were taken in the car to another building. At the direction of Umakanta, I carried Saraswati to the door of that office. Her head was resting at my chest. She was unable to talk or understand. There also some unknown persons took a number of L.T.Is. from Saraswati. No money was paid to Saraswati at that place. It is false to say that she took the money and tied the same in her wearing cloth and that I helped her in placing a tight Knot. She has admitted incross-examination that she was working with Pratap, Defendant No. 1 the main contesting Defendant. According to D.W. 2 they had gone in the car of one Ramsevak. The said Ramsevak had been examined and he has specifically denied that he had: given his car to Saraswati for going to Rairangpur on 10-11-1976. If D.W. 2's evidence is acceptable, then there can be only one condusion that Saraswati was incapable- of moving and was taken to Rairangpur by misrepresentation and the documents were taken from her while she was in semi-conscios stage that means she was not capable of understanding the document nor she had the capacity to form the mental act of understanding the document. D.W. 2's evidence cannot be accepted for the reasons- she was working earlier with Defendent No. 1 as admitted by her and it is she who informed Defendant No. 1 immediately after the death of Saraswati. Her statement that Saraswati was taken in the car of Ramsevak by misrepresentation and almost in a stage when she was unconscious is belied by the fact that Ramsevak denies to have taken Saraswati in his car and the specific evidence of P.W. 7 being he along with Saraswati, Sura, Putun and Radhasyam came by bus to Rairangpur is supported by the evidence of P.W. 9. Hence the evidence of D.W. 2 is rejected. After assessing the evidence, I hold that Saraswati had executed the documents after the documents were read over to her and understanding the contents thereof, and she was also in fit state of mind. 9. The learned advocate for the Appellants had argued that Saraswati was in affluent condition and there was no need to sell the properties. After assessing the evidence, I hold that Saraswati had executed the documents after the documents were read over to her and understanding the contents thereof, and she was also in fit state of mind. 9. The learned advocate for the Appellants had argued that Saraswati was in affluent condition and there was no need to sell the properties. It has been brought out in the evidence that even during life time of Kailash, he had sold some properties and has incurred some loans. It is also in evidence from both the sides that Saraswati was an ailing person. Hence the finding of the trial Court that Saraswati was in need of money for medical treatment is a correct finding. After assessing the evidence on record, I am also of opinion that though Saraswati had 25 Manas of landed property, still as she was ailing, she was in need of money. 10. Regarding the question as to whether Saraswati had independent advice before executing the document, the evidence on record shows that Saraswati was looking after her own affairs after the death of her husband as she was issueless. It has been also specifically stated by Defendant No. 1 that Saraswati was not pulling on well with them. P.W. 6 has stated that before the execution of the sale deeds Saraswati had called him and had consulted with him regarding the transaction. Saraswati had expressed before him that she needed money to go to Vellore for her treatment. This amounts to consultation with a person who does not gain anything from the sale deeds P.W. 7 has categorically stated: In Kartik or Margasir of 1976, I had taken Saraswati to Dr. Tripathy of Tata. On his advice, I took her to the Gynic specialist Dr. Dasgupta. He examined her. He opined that Cancer has developed in her and advised her removal to Vellore. On our query, he said that rupees fifteen to twenty thousand would be necessary. This consultation of Saraswati with P.W. 7 amounts to independent advice as P.W. 7 is a person who had nothing to gain by the sale deeds and admittedly he was looking after Saraswati after the death of her husband and even from the time when her husband was living. P.W. 8 has stated: I know the parties and the suit lands. P.W. 8 has stated: I know the parties and the suit lands. In October, 1976, I had negotiations with Saraswati Bewa for purchase of the said lands for Rs. 12000.00. As 15 to 20 days there after I received the allotment of a Truck I' had applied for, I refused to purchase the lands due to want of funds. When I had made the contract, Saraswati and Makhan had taken me to see the lands Saraswati's condition was good. She said that she needed money in order to go to Vellore as per advice of the Doctor of Tata. This evidence of P.W. 8 has not been challenged in the cross examination. The evidence of P.W. 8 proves that Saraswati herself had earlier contacted P.W. 8 to sell these lands in the same price. All these evidence go to show that Saraswati was capable of looking after her own affairs and she had independent advice and had consulted others before selling her lands. Since Saraswsati did not have husband or any issue and the Defendants who were nephews did not look after her, only she could have consulted the third persons. After assessing the evidence on record, I hold that Saraswati had independent advice before execution of the documents. 11. The learned advocate for the Appellants had vehemently argued that the documents had been obtained by misrepresentation, coercion, fraud and undue influence. It is no more res integra that the instances of fraud has to be specifically pleaded. It has been pleaded in the plaint that Dr. Nityananda Paul being the family physician practised undue influence and with the connivance of Umakanta, the brother of Saraswati and P.W. 7 the nephew of Saraswati and the scribe and his associates had played fraud on her. The Defendants have failed to prove that either Dr. Nityananda Paul or Radhesyam Paul have obtained the documents by undue influence, The evidence on record shows that Dr. Nityananda Paul being a private practitioner might have treated Saraswati in some occasions as she was ailing lady, but there is nothing on record to come, to a conclusion that Dr. Nityananda Paul had obtained the documents by undue influence and coercion and I hold that the documents were not obtained by undue influence, misrepresentation or by practising fraud. 12. The next question as to whether consideration passed, it has been endorsed that the balance of Rs. Nityananda Paul had obtained the documents by undue influence and coercion and I hold that the documents were not obtained by undue influence, misrepresentation or by practising fraud. 12. The next question as to whether consideration passed, it has been endorsed that the balance of Rs. 5,000/- were paid before the Sub-Registrar. P.W. 1 has stated that the vendees in both the deeds paid the consideration amount of Rs. 5,000/- each in presence of the Sub-Registrar at the time of registration and the vendor admitted that she had taken Rs. 1,000/- from each prior to the execution of the documents. P.W. 2, the Plaintiff in Title Smt No. 17 of 1977 has categorically stated that she had sent Rs. 1,000/- as advance through her nephew Radhasyam and on the date of execution she had given Rs. 5,000/- to Radhasyam to be paid to Saraswati, the vendor. Similarly also P.W. 3, the Plaintiff in Title Suit No. 9 of 1977 has stated that she had advanced Rs. 1,000/- earlier and had sent Rs. 5,000/- on the date of execution through her husband. P.W. 4 has stated that he knew the settled price to be Rs. 12,000/- for both the documents and his wife had sent the money through his nephew on the date of execution of the document P.W. 6 has deposed that he had seen Rs 5.000/- being paid before the Sub-Registrar. P.W. 7 has stated that Saraswati had taken Rs. 2,000/- as advance for both the sale deeds and Rs. 10,000/- was paid before the Sub-Registrar, and P.W. 9 has categorically deposed that he had advanced Rs. 2,000/- earlier on the date of execution of the sale deeds, he had gave Rs. 10,000/- for both the sale deeds, Rs. 5,000/- on behalf of his wife and Rs. 5,000/- on behalf of his count. Coupled with the oral evidence, P.W. 9 has produced his pass book (Ext. 3) showing that on the very date of execution of Exts. 1 and 2 he had withdrawn Rs. 5,000/- from the Bank as per Exts. 3/a and 3/b. From all these evidence on record i.e. the endorsement on the registered documents, simultaneous withdrawal by P.W. 9 from his pass book and positive evidence of the witnesses prove that Saraswati had received the consideration under the sale deeds. 13. After assessing all the evidence on record, I hold that Exts. 3/a and 3/b. From all these evidence on record i.e. the endorsement on the registered documents, simultaneous withdrawal by P.W. 9 from his pass book and positive evidence of the witnesses prove that Saraswati had received the consideration under the sale deeds. 13. After assessing all the evidence on record, I hold that Exts. 1 and 2 were executed by Saraswati after the documents were read over and explained to her and she had executed after knowing the true import of the documents and understanding the same. Saraswati was also capable of looking after her affairs and also had independent advice before execution of the sale deeds. Saraswati had real need of money as she was ailing for which she sold the properties. Saraswati was not bed-ridden and was capable of understanding when the documents were executed. The documents were not obtained by practising undue influence, misrepresentation, coercion or by fraud. Saraswati received the full consideration before executing the document. The Plaintiffs have discharged the heavy onus which is on them that Saraswati being an illiterate old ailing paradanashin lady had executed the docment ts after the documents read over and explained to her and she had independent advice and it was her mental act. In view of my above findings, the appeals have no merit and are dismissed. But in the circumstances of the case, there shall be no order as to cost. Appeals dismissed. Final Result : Dismissed