JUDGMENT : P.K. Misra, J. - Defendant No. 2 is the appellant. The suit was filed for declaration that the sale deed dated 31.5.1978 and sale deed dated 10.2.1986 in favour of defendant No. 2 are null and void and further that no title passed thereunder and for confirmation of possession of plaintiff No. 1, or for recovery of possession, and for permanent injunction restraining defendant No. 2 from coming upon the disputed land. In effect, the plaintiffs challenged the sale deeds purported to be executed by defendant No. 1. 2. Plaintiffs 1 and 2 are the two daughters of defendant No. I and plaintiff No. 3 is the son of a pre-deceased daughter of defendant No. 1. It is claimed that Sindhu Das died in the year i 977 leaving his widow (defendant No. 1) and the plaintiffs as his heirs. It is further stated that Sindhu had ancestral property measuring Ac. 1.32-5 decimals in village Tagilo, as described in "A" Schedule of the plaint, which had been gifted to his wife (defendant No. 1) and mutated in her name in Mutation Case No. 42 of 1963-64. It is further claimed that though Sindhu had gifted the property, yet he had not parted with possession of the land and was in enjoyment of the usufructs of the disputed land till his death. After his death, plaintiff No. 1 was in cultivating possession of the disputed land through her husband and was giving usufructs to defendant No. 1. It is further claimed that plaintiffs are the heirs entitled to the property of defendant No. 1 and Sindhu, and they have a right to protect their interest. It is further stated that defendant No. 2 had snatched away an inoperative, void sale deed on 31.5.1978 in respect of Ac. 1.33 decimals of land as described in "B" Schedule by incorporating certain false recitals and without payment of any consideration. The said sale deed had not been read over or explained to defendant No. 1, nor defendant No. 1 had executed the same after understanding its contents. The sale deed had been obtained by exercising undue influence. It is further alleged that similarly in 1986, another sale deed was obtained in respect of 'C Schedule property measuring Ac. 0.49-5 decimals of land. The sale deed had been obtained by exercising undue influence. It is further alleged that similarly in 1986, another sale deed was obtained in respect of 'C Schedule property measuring Ac. 0.49-5 decimals of land. There was no necessity for such a sale deed, nor any consideration had been paid and the sale deed had not been read over and explained to defendant No. 1, nor she had understood the contents thereof. The sale deed was also the outcome of undue influence. 3. The aforesaid suit was filed on 13.4.1987. On 21.8.1987, defendant No. 1 purported to file a written statement containing her thumb impression, wherein it was claimed that the disputed property belonged to defendant No. 1 and she had executed voluntarily the sale deeds in favour of defendant No. 2. Defendant No. 1 expired on 18.9.1987 and since her legal representatives were on record, her name was expunged. Defendant No. 2 also filed a written statement denying the plaint averments. It was his case that the property had earlier been gifted to defendant No. 1 by her husband in the year 1963 and had been mutated in her name and she was the owner of the property. It is further stated that there was no undue influence and defendant No. I had executed the sale deeds and consideration amount had been paid. 4. The trial Court found that due execution of the documents had not been proved and the sale deeds had been obtained by exercising undue influence. Accordingly, it found that the sale deeds were not binding on the plaintiffs and no title had passed thereunder in favour of defendant No. 2, who was permanently restrained from entering upon the disputed land. 5. In this appeal, it was first contended by the counsel for the appellant that in view of the finding of the trial Court that the disputed properties belonged to defendant No. 1 and were her absolute properties, the alienations in favour of defendant No. 2 could not be challenged by the plaintiffs during the life-time of defendant No. 1. 5. In this appeal, it was first contended by the counsel for the appellant that in view of the finding of the trial Court that the disputed properties belonged to defendant No. 1 and were her absolute properties, the alienations in favour of defendant No. 2 could not be challenged by the plaintiffs during the life-time of defendant No. 1. It is contended that if defendant No. 1 would have been a limited owner, question of filing a declaratory suit relating to illegality of alienation could arise during the life-time of the limited owner by the reversioners, but where the property is sold by an absolute owner, no such declaratory suit can be filed during the life-time of such alien or by a person on the footing that such person is likely to succeed to the property of the alienor on his death. 6. The above contention raised by the counsel for the appellant though appears to be attractive cannot be accepted in view of the peculiar facts and circumstances of the present case. Admittedly, in the present case, defendant No. 1 died on 18.9.1987 during pendency of the suit. It is true that in normal circumstances, the plaintiffs could not have filed a declaratory suit challenging the alienations by defendant No. 1 during her life-time. However, since defendant No. 1 had admittedly died and plaintiffs are her legal heirs, there is no difficulty to hold that such a suit could have been filed after death of defendant No 1. The question now raised by the counsel for the appellant had not been raised by the contesting defendant No. 2 in his written statement. Even though technically speaking, the suit was not maintainable on the date of its institution, it can be said to have become maintainable on the death of defendant No. I. Moreover, if such a point would have been raised earlier, the plaintiffs could have either withdrawn the suit immediately or filed appropriate application for amendment. Even though technically speaking, the suit was not maintainable on the date of its institution, it can be said to have become maintainable on the death of defendant No. I. Moreover, if such a point would have been raised earlier, the plaintiffs could have either withdrawn the suit immediately or filed appropriate application for amendment. Besides, the plaintiffs had also averred that the disputed property belonged to Sindhu and they had succeeded to the property along with defendant No. I. It is, of course, true that there was no serious attempt to prove such a case and, as a matter of fact, it has been found by the trial Court that though some of the properties had originally belonged to Sindhu, defendant No. 1 had become owner of the same by virtue of the deed of gift in the year 1963. Even though their contention to the effect that they are heirs of Sindhu entitled to the property along with defendant No. I has not been subsequently proved, it cannot be said that the suit was not maintainable in strict sense of the term, at the time of its filing. During pendency of the present appeal, an application for amendment has been filed indicating that the plaintiffs became the owners of the disputed property after death of defendant No. 1. No objection to such amendment has been filed by the appellant, but it has been stated that such amendment should not be permitted at the appellate stage. However, in view of the observation that the suit was maintainable, it is unnecessary to consider the amendment in this appeal. 7. The learned counsel for the appellant has submitted that the plaintiffs have failed to prove undue influence and as such the judgment of the trial Court cannot be sustained. In this connection, he has submitted that the trial Court has committed certain errors of record. For example, the trial Court had observed that deceased Padmabati (defendant No. 1) was residing in the house of Balabhadra Das, the son-in-law of defendant No. 2, and she died in the said house. It is pointed out by the counsel for the appellant that such observation of the trial Court was based on error of record. In this connection, he has pointed out the evidence of plaintiff No. 1 (P.W.4) to the effect that her mother (defendant No. 1) died in her own house. It is pointed out by the counsel for the appellant that such observation of the trial Court was based on error of record. In this connection, he has pointed out the evidence of plaintiff No. 1 (P.W.4) to the effect that her mother (defendant No. 1) died in her own house. On going through the materials on record, I do not think that it can be said that an error of record has been committed by the trial Court. As a matter of fact, the trial Court has referred to other evidence on record and admission of witnesses of defendant No. 2 to the effect that Padmabati was residing in the house of Balabhadra Das and expired there. 8. Even assuming that the contention of the learned counsel for the appellant to the effect that undue influence has not been proved is correct, in my opinion, the appellant cannot succeed unless it is established that defendant No. 1 had executed the sale deed in favour of the appellant after understanding the contents thereof. The materials on record clearly indicate that defendant No. 1 was an illiterate lady. Any person who purchases any property from an illiterate widow, is required to prove that the sale deed has been executed by the illiterate lady after fully understanding the contents thereof. In this context, it has been laid down in several decisions that when the transaction is with an illiterate lady, the burden is on the person transacting with such lady to prove that not only the illiterate lady understood the contents of the document, but also she had independent advice. In the above back-ground, the facts and circumstances of the present case have to be examined. 9. It is no doubt true that defendant No. 2 has examined the scribes of both the sale deeds who have stated that the document was scribed as per the instruction of defendant No. 1 and the contents had been read over and explained to her. However, there is no endorsement that defendant No. 1 had executed the documents after fully understanding the contents thereof. Besides, there is absolutely no evidence on record regarding availability of any independent advice to defendant No. 1 before the alleged execution of the two sale deeds. In respect of Ext. However, there is no endorsement that defendant No. 1 had executed the documents after fully understanding the contents thereof. Besides, there is absolutely no evidence on record regarding availability of any independent advice to defendant No. 1 before the alleged execution of the two sale deeds. In respect of Ext. B, it has been stated by P.W. 1, who was one of the attesting witnesses, that the document had not been read over and explained to defendant No. I. That apart, there is no acceptable evidence relating to payment of consideration in respect of Ext. B. The scribe has stated that the executant admitted in the presence of the witnesses that she had received consideration. However, the attesting witnesses do not support such a version. Similarly, relating to Ext. C also, apart from the mere statement of the scribe, there is no other evidence relating to payment of consideration. 10. In spite of the aforesaid weaknesses in the evidence relating to due execution of the documents and regarding payment of consideration, the counsel for the appellant has vehemently contended that due execution of the documents should be taken to have been proved in view of the averments made in the written statement filed by defendant No. 1 herself. As already indicated, defendant No. 1 purported to file a written statement on 21.8.1987 containing her thumb impression. She died on 18.9.1987 hardly four weeks thereafter. The trial Court has refused to place any reliance upon such "admission" contained in the written statement of defendant No. 1 on the ground that her thumb impression had not been attested and there was no evidence on record indicating that the written statement had been read over and explained to defendant No 1. Such approach of the trial Court appears to be correct. If defendant No. 1 would have been examined and admitted about execution, that would have been the end of the matter. Unfortunately, however, due to her death, she could not be examined as a witness. It is no doubt true that the contents of the written statement, if approved, could have been utilised as material in support of the contention relating to due execution of the sale deeds. Unfortunately, however, due to her death, she could not be examined as a witness. It is no doubt true that the contents of the written statement, if approved, could have been utilised as material in support of the contention relating to due execution of the sale deeds. However, in the present case, as rightly observed, there is no material on record to prove that the written statement had been read over and explained to defendant No. 1 and she had put her thumb impression after understanding the contents thereof. If defendant No. 2 wanted to rely upon the contents of the written statement, he should have taken steps to examine any competent witness to prove about the due execution of the written statement. Merely because, a written statement purporting to contain the thumb impression of defendant No. I had been filed through an Advocate, it cannot be assumed that the said written statement contained the admission of defendant No. 1 relating to due execution of the sale deeds in question. 11. The trial Court has discarded the story of defendant No. 2 regarding possession by the latter. It is to be remembered that Balabhadra is an agnatic nephew of defendant No. 1 and he is the son-in-law of defendant No. 2. It may be that defendant No. 1 after her daughters were given in marriage in different places, was relying upon her nephew Balabhadra for agricultural operation, but the materials on record do not prove that after the sale deeds, defendant No. 2 remained in exclusive possession. 12. Since materials on record do not indicate due execution of the two sale deeds by defendant No. 1 and it is not proved that consideration had been paid thereunder, defendant No. 2 did not acquire any title under both the sale deeds. The first sale deed was executed in the year 1978 and the subsequent sale deed was executed in the year 1986. Even assuming that defendant No. 2 was in possession, it cannot be said that he had perfected his title by adverse possession by the time of death of defendant No. 1. In such view of the matter, plaintiffs' suit had been rightly decreed. 13. In the result, I dismiss the appeal. There will, however, be no order as to costs of this appeal. Final Result : Dismissed