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2003 DIGILAW 160 (ORI)

LABANYA SINGH v. TAPOI SINGH

2003-02-24

BASUDEVA PANIGRAHI

body2003
BASUDEVA PANIGRAHI, J. ( 1 ) PLAINTIFF in Title Suit No. 101 of 1993 of the Court of Civil Judge (Jr. Division), Bhubaneswar is in appeal. This appeal is against the reversing judgment passed by the lower appellate Court whereby the appellant's suit for cancellation of the registered sale deed No. 8878 dated 9-8-1989 was dismissed. ( 2 ) THE factual matrix leading to this appeal is as follows: the plaintiff-appellant is the owner and in possession of the suit land measuring an area of Ac. 0. 074 decimals out of Ac. 0. 110 decimals corresponding to plot No. 153, Khata No. 207 situated in mauza-Saradeipur. She is an illiterate village rustic lady. Defendant No. 2 is her son through her first husband. Defendant No. 1 is the wife of defendant No. 2. The appellant has been residing in the house of her second husband with her son Trinath. While the appellant was suffering from cataract in her eyes and she required treatment of her eye, the defendant No. 2 persuaded her to come to Bhubaneswar so that the cataract could be operated. Accordingly, the defendant No. 2, brought the appellant to Bhubaneswar and made her believe to give her statement to the Doctor before her treatment, on some papers. The defendant No. 2 taking advantage of her innocence, illiteracy and village rustic woman managed to get a sale deed registered in the name of the respondent No. 1. After some time, the appellant made a discreet inquiry from which it was ascertained that instead of a statement purported to be made before a Doctor, a sale deed was snatched by the respondent No. 2 in favour of his wife. So, she filed this suit for cancellation of the document. ( 3 ) THE respondents have filed a joint written statement by inter alia, alleging that the appellant sold the suit land for Rs. 4,000/- as consideration in order to meet the expenses towards the legal necessity. Pursuant to the sale deed, the appellant delivered possession to the respondent No. 1 who has been in possession of the same. The trial Court after considering the evidence of both parties, was, however, inclined to decree the suit on the ground that there was no consideration paid to the appellant. Pursuant to the sale deed, the appellant delivered possession to the respondent No. 1 who has been in possession of the same. The trial Court after considering the evidence of both parties, was, however, inclined to decree the suit on the ground that there was no consideration paid to the appellant. It has further observed that the stamp paper was purchased for the execution of a gift deed, but under what circumstances, instead of a gift deed, a sale deed was executed in favour of the respondent No. 1 has not been explained. The appellate Court after reappraisal of the evidence was inclined to upset the findings of the trial Court on the ground that the contents of the sale deed was read over to the vendor, who after having understood the same, put her L. T. I. in token of execution of the sale deed. Since the appellate Court held the execution of the sale deed as the conscious act of the appellant, therefore, he disagreed with the observation of the trial Court and allowed the respondents' appeal. ( 4 ) MR. Das, learned advocate appearing for the appellant has contended with strong intensity of conviction that the plaintiff has been duped by none other than her own son. It has been further high-lighted that the appellant was being an illiterate, rustic village lady and was taken to Bhubaneswar under the pretext of treatment of her defective eyes, but, instead, a document, purported to be a sale deed, was taken from her. ( 5 ) FROM the observation of both the Courts below, it is found that the appellant is an illiterate, rustic village lady. It is true that she did not have any independent advice before execution of such deed of conveyance in favour of the respondent No. 1. But it has to be looked into whether the execution of the document was her conscious act or not. In this regard, reliance can be placed on a decision of a Division Bench of this Court, reported in AIR 1986 Orissa 53 in the case of Narayan Mishra v. Champa Dibya (dead); where it has been held :"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 comprehensions, is, in itself, no real proof of a true understanding mind in the executant. In the case of execution of a deed by a paradnashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases rest 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 grantor. 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. "it is more in doubt that while a person claiming a sale deed to have been executed by an illiterate lady has to prove that she executed the document after having fully understood the contents of the same. In other words, such execution is the mental act of the maker. Therefore, in the light of the principle enunciated above by the Division Bench of this Court, the facts at hand are to be elaborately discussed. In this case, three witnesses have been examined by the defendants. D. W. 1-Kulamani Dutta was the scribe of Ext. A. His statement certified that he scribed the document on the instruction of the appellant. After the document was written at the dictation of the plaintiff, he read out the contents. Thereafter, the executant having understood the same put her L. T. I. The witnesses also were present, who have signed in the document. A. His statement certified that he scribed the document on the instruction of the appellant. After the document was written at the dictation of the plaintiff, he read out the contents. Thereafter, the executant having understood the same put her L. T. I. The witnesses also were present, who have signed in the document. Similarly, D. W. 2, who was an attesting witness to the document has corroborated the evidence of D. W. 1 and has further stated that the contents of the document were read over and explained by the scribe to the executant. She admitted the contents to be true and correct and then put her L. T. I. on the deed. Thereafter, the witnesses have signed in it. The plaintiff by her cross-examination to the attesting witnesses has been unable to shatter their evidence. D. W. 3 is the respondent No. 2 in this case. He further corroborated the evidence of D. Ws. 1 and 2. On the other hand, the plaintiff has only given a denial statement in her evidence, so also P. W. 2. On a comparative assessment of the evidence led by both the parties the appellate Court, rather, preferred to place more reliance on the testimony of the defendants' witnesses inasmuch as their testimony has not suffered from any serious infirmity so that it could be rejected. The document was executed in the year 1989. Thus, the appellate Court on a thorough evaluation of the evidence held that the defendants, on whom burden of proof lies in proving Ext. A has been seriously discharged. ( 6 ) SINCE the appeal does not involve any intricate question of law, therefore, the same is dismissed. But in the circumstances, the parties are directed to bear their own costs. Accordingly the plaintiff's suit is dismissed. Appeal dismissed.