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Orissa High Court · body

2016 DIGILAW 488 (ORI)

Lalatendu Behera v. Muna Behera

2016-07-04

D.DASH

body2016
JUDGMENT : In this appeal, the appellants have called in question, the judgment and decree passed by the learned Addl. District Judge, Jajpur in T.A. No. 100 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division) Jajpur in T.S. No. 77 of 1990 decreeing the suit filed by the predecessor-in-interest of the respondent no. 1, who was the original plaintiff declaring the registered gift deeds said to have been executed by him in favour of the appellant and respondent no. 2, the defendant no. 1 and 2 respectively with respect to the suit property as void. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. It may be stated that during the suit, the original plaintiff having died, the respondent no. 1 being one of his sons and as such one legal representative having got substituted himself as the plaintiff pursued the suit and also contested the appeal. 3. The case of the plaintiff is that he had only Ac. 10 decimals of homestead land at his native place. From his earning from fodder business, at Kolkata, he purchased Ac. 2.46 ½ decimals of land at village Kundapada. He had four sons and two of them namely, Khetrabasi and Kanhu were given in adoption. From among the rest two, elder one was a teacher in primary school of the village and other one who is the substituted plaintiff was serving at Rourkela. The original plaintiff at his old age came to his native place leaving Kolkata and looked after cultivation of his lands. It is alleged that on 15.10.1988, Ratnakar, the defendant no. 3 took him to his house at village Chapri for his treatment and better care. Some days thereafter, the defendant no. 3 requested his father to contribute some amount for his daughter’s marriage. However, that was not agreed upon by the original plaintiff. He of course then expressed his willingness to divide Ac. 1.00 dec. of land from out of his purchased land between his two sons. It is alleged that the defendant no. 3 then having taken the plaintiff to Sub-Registrar’s Office fraudulently managed to obtain two gift-deeds in favour of his minor sons i.e. defendant no. 1 and 2 in respect of his entire land. 1.00 dec. of land from out of his purchased land between his two sons. It is alleged that the defendant no. 3 then having taken the plaintiff to Sub-Registrar’s Office fraudulently managed to obtain two gift-deeds in favour of his minor sons i.e. defendant no. 1 and 2 in respect of his entire land. This being known during the next cultivation season, the plaintiff on 15.04.1989 executed a deed of cancellation of those two deeds of gift. 4. The defendant no. 1 to 3 contested the suit inter alia pleading that the deeds of gift were not taken by fraud and those had been duly executed by the plaintiff out of his own free will and volition being overwhelmingly satisfied with the service rendered by the defendant no. 3 and his wife at his old age. The gifts are said to have been accepted. The plaintiff having delivered possession of those lands to the donees through the guardian, those are accordingly in their possession. 5. The trial court in view of rival case framed seven issues. Out of those, the issue no. 3 is the crucial one concerning the validity of the deeds of gift and the decision on this issue alone has the effect of deciding the fate of the suit so as to either grant or refuse the reliefs to the plaintiff. The trial court applying the principle of law relating to execution for the deed by pardanashin woman in view of the old age of the plaintiff and his illiteracy, having placed the onus of proof upon the defendant no. 1 to 3 to discharge by leading clear and acceptable evidence on the aspect of execution of the deeds of gift eliminating the practice of fraud in the matter, has on analysis of evidence found that the defendant no. 1 to 3 have failed to do so. Thus, the two registered gift deeds have been declared void. However, in view of death of the original plaintiff since the property came to be succeeded by all his Class-I heirs as find mention in the schedule of the Hindu Succession Act, the prayer for declaration of exclusive title advanced by original plaintiff has been held redundant. 6. Thus, the two registered gift deeds have been declared void. However, in view of death of the original plaintiff since the property came to be succeeded by all his Class-I heirs as find mention in the schedule of the Hindu Succession Act, the prayer for declaration of exclusive title advanced by original plaintiff has been held redundant. 6. The lower appellant court having held the plaintiff to be an illiterate person, has approved the view of the trial court that the protection of law as available to the pardanashin woman in the matter of execution of document evidencing the transfer of right, title and interest over the immovable property is available to the plaintiff. Next it has held that the burden of proving it lies upon the person seeking to be benefited by said transactions eliminating the suspicions circumstances, that it was bonafide and the execution being the mental as well as physical act with independent advice. As is seen at para 8 to 10 of the judgment, the evidence on record being further put to microscopic examination by an independent exercise, the view of the lower appellate court has remained the same as that of the trial court and consequentially the result of the suit stood unvaried. The unsuccessful defendant no. 1 and 3 are now thus in second appeal, wherein they challenge the concurrent findings of both the courts as also the result in decreeing the suit declaring the deeds of gift (Ext. B-1 and C-1) as void to have clothed the vendees i.e., defendant no. 1 and 2 with no right title and interest in respect of the properties involved therein. 7. The appeal has been admitted on the following substantial question of law:- Whether the learned courts below have committed an error by not taking into consideration the admission of the executants of the gift deed while decreeing the suit? 8. Learned counsel for the appellants submits that the courts below have committed serious error of law by ignoring the admission of the plaintiff-executants in the gift deeds Ext. B-1 and C-1 in writing and as those have remained unexplained; the findings against the proof of the execution of the deeds of gift are wholly indefensible. Thus, he contents for recording answers to the substantial question of law in favour of the appellants. He has cited the decisions reported in case of Natabara Behera Vs. B-1 and C-1 in writing and as those have remained unexplained; the findings against the proof of the execution of the deeds of gift are wholly indefensible. Thus, he contents for recording answers to the substantial question of law in favour of the appellants. He has cited the decisions reported in case of Natabara Behera Vs. Batakrushna Dash, 1999(II) OLR 319: Ranyammat Vs. Kuppuswami and Another, 2011(II) OLR (SC) 278 and Mst. Jhunkaribabu @ Katrawali and Another Vs. Phool Chand @ Manik Chand Chhotelal Jain and Others, AIR 1958 M.P. 261 . 9. Learned counsel for the respondent no. 1 submits that such execution of the deeds by the persons who come within the special cloak of protection of law that in case of challenge to execution of the documents affecting their interest, the recitals of the documents cannot be taken to be their admission as in cases of other category of executants and those will come to have their play only when the beneficiary of the document proves due execution both to be mental and physical act of the executant with independent advice. Therefore, he urges that the substantial question of law has to be answered in the line that the courts below have rightly kept so called admission of the executants, the plaintiff out of consideration. 10. The position of law is too well settled that in case of execution of a document affecting the right by a pardanashin woman, the burden of proof shall always be upon the person who seeks to sustain the transaction to establish by clear and acceptable evidence by preponderance of probability that said execution was merely not the physical act but mental act too. It can only be discharged by showing that said executant had understood the nature of the document and the purpose of it and that having duly understood the same being read over and explained with the recitals executed it knowingly. There was independent advice and also that the acreage involved in the transaction was within the knowledge of the executants. The law is fairly well settled that above protection is also available so far as illiterate old person is concerned when he stands as an executant of a document under challenge on that score. There was independent advice and also that the acreage involved in the transaction was within the knowledge of the executants. The law is fairly well settled that above protection is also available so far as illiterate old person is concerned when he stands as an executant of a document under challenge on that score. This applies in full force in the facts and circumstances of the case when it is further seen that the executant, the original plaintiff is none other than the grandfather of the donees who were then represented by the son of the donor because of their minority and the deed in question are deeds of gift which concern with the transaction without any consideration. Moreover, the defendant no. 3 in his evidence admits the donor to be illiterate knowing only to sign, his age at the time being seventy six; he has executed both the deeds of gift on one day that too gifting away all his properties as has been deposed to by the witness, D.W. 5 examined on behalf of the defendant no. 1 to 3. By such execution of the documents, the executant has thus gone to become totally landless and depriving his other son and daughter. Furthermore, admittedly the executant was then residing with the defendant no. 1 under his care and control, thus said defendant no. 1 remaining in a position to dominate the will of the executant is not ruled out. The documents rendering the executants totally landless remaining under the mercy of others for the rest period of his life to pass prima facie shows that those are unconscionable. In view of all these above, I do not find the approach of the courts below to be flawed one when it has been said that the burden of proof of execution of the deeds of gift Ext. B-1 and C-1 rests squarely upon the defendant no. 1 to 3. In such situation, the documents themselves cannot be taken along with their recitals to say that those stand as admission of the executant to bind himd and thus estopp him to assail. B-1 and C-1 rests squarely upon the defendant no. 1 to 3. In such situation, the documents themselves cannot be taken along with their recitals to say that those stand as admission of the executant to bind himd and thus estopp him to assail. In view of all the aforesaid the courts below are found to have committed no error in going to examine the evidence both oral and documentary as well as the circumstances and other relevant factors arising from evidence to take a final view as to the sufficiency of the proof of execution of Ext. B-1 and C-1 by the plaintiff in searching out as to whether the defendant no. 1 to 3 have discharged the burden of proof of said fact resting on them eliminating the scope of practice of fraud and misrepresentation as also explaining away all those surrounding circumstances raising eye brows over the concerned transactions. 11. Coming to examine the defensibility of the findings rendered concurrently by the courts below, the evidence comes from the side of the defendant no. 1 to 3 through the scribe D.W. 4. He has merely deposed that the recitals of Ext. B-1 and C-1 were read over and explained to the plaintiff. D.W. 5 has also so deposed. However, D.W. 4 has stated on oath to have not known the plaintiff earlier. He has also stated that defendant no. 3 had gone to him with the plaintiff. On this aspect, the defendant no. 3 examined as D.W. 3 has stated that he had not gone and the plaintiff had taken his wife and he had no knowledge about it and is also unable to give any reason for it. Next he states to have arranged the attesting witnesses. The scribe, D.W. 4 further states that defendant no. 3 had shown the land documents and stated the names and age of the donees. The wife of D.W. 3 being examined as D.W. 5 is silent on the score as to how that D.W. 4 was chosen as the scribe. In such state of affair, the evidence, of the plaintiff assumes great importance and derives good support when he has stated that he did know about the contents of Ext. B-1 and C-1. The wife of D.W. 3 being examined as D.W. 5 is silent on the score as to how that D.W. 4 was chosen as the scribe. In such state of affair, the evidence, of the plaintiff assumes great importance and derives good support when he has stated that he did know about the contents of Ext. B-1 and C-1. Giving a careful reading to all the decisions (supra) as cited by the learned counsel for the appellants, I find that the principles of law find mention therein does not come to the aid of the plaintiff since the facts and circumstances of those cases are fully distinguishable. In view of above, this Court unhesitently holds that the views of the courts below are not the outcome of perverse appreciation of evidence and finds that the defendant no. 1 to 3 have failed to discharge the burden of proof of due execution of those deeds of gifts. It is also seen that on the question of acceptance of the gift, the lower appellate court being quite conscious of the law as contained in the provision of section 122 of the T.P. Act has found the same to have not been proved by defendant no. 1 to 3 in view of the evidence of their own witness i.e. D.W. 7 who in clear terms has stated that Ratnakar, the plaintiff was in possession of the suit land till his death. The aforesaid, discussion and reasons provide necessary answer to the substantial question of law running against the appellant. In the upshot of above, this Court finds no other alternative but to accord the seal of approval to the judgments and decrees passed by the courts below. 12. Resultantly, the appeal stands dismissed and in the facts and circumstances, however, without cost.