JUDGMENT : A.K. Rath, J. 1. Defendant No. 1 is the appellant against a confirming judgment in a suit for declaration that the sale deed executed by the plaintiff in favour of defendant No. 1 and agreement for sale in favour of defendant No. 2 are not valid and binding on the plaintiff, delivery of possession and mesne profit. 2. The facts shortly stated are thus: R. Byragi is the husband of the plaintiff and father of defendant No. 1. During life time of her husband, there was a partition of the joint family properties between him and his two sons on 4.5.1969 and the same was registered in the office of the Sub-Registrar, Parlakhemundi. On 7.8.1973, her husband executed a will and bequeathed all his properties in her favour. While the matter stood thus, to press her legal necessities, she intended to alienate some properties to one G. Chinammi. Defendant No. 1 also wanted to sell his land measuring an area of Ac.0.69 cents to G. Chinammi. Both executed the registered sale deed on 13.8.1975 in favour of G. Chinammi for a valid consideration. The consideration amount was proportionately divided between them. But the defendant had obtained the registered sale deed bearing No. 2511/75 by playing fraud on her in respect of item No. 1 of the suit schedule property. She was not aware of the execution of the sale deed. She is an old and illiterate lady. She is hard of hearing. After death of her husband, she entrusted the management of the properties to defendant No. 1. She had implicit faith on him. It is further stated that defendant No. 1 proposed to sell some land that fell to his share to defendant No. 2 adjoining to her land. He made a misrepresentation to her that she would be an attesting witness to the deed of agreement. Believing his version, she put her LTI on the agreement for sale executed in favour of defendant No. 2 in respect of schedule of item No. 2 property. She had not received the advanced consideration. Defendant No. 1 delivered the possession of the land to the defendant No. 2. It is further stated that she is a member of Scheduled Caste. Defendant No. 2 belongs to General Category. No prior permission was obtained from the competent authority by the plaintiff. The agreement for sale was tainted with fraud. She had not received the advanced consideration. Defendant No. 1 delivered the possession of the land to the defendant No. 2. It is further stated that she is a member of Scheduled Caste. Defendant No. 2 belongs to General Category. No prior permission was obtained from the competent authority by the plaintiff. The agreement for sale was tainted with fraud. The plaintiff further asserts that defendant No. 1 is in forcible possession of schedule of item No. 3 property without paying usufructs of the same to her. Item nos. 1 to 3 properties are part of the properties bequeathed by her husband in her favour. Defendants have no semblance of right, title and interest over the same. It is apt to state here that during pendency of the appeal, respondent No. 1-plaintiff died; whereafter her legal heirs representatives have been substituted. 3. Pursuant to issuance of summons, defendant nos.1 and 2 entered appearance and filed separate written statements. Defendant No. 1 has not disputed the factum of partition and execution of the will by his father in favour of his mother on 7.8.1973. His case is that he has purchased Ac.0.36 cent of land from the plaintiff for a consideration of Rs.1200/- on 13.8.1975 by means of registered sale deed. After sale, he exercised all acts of ownership over the land. No fraud was played on her. With regard to agreement for sale, it is stated that the plaintiff had executed an agreement for sale in favour of defendant No. 2 and received the advanced consideration. There was no question of fraud or misrepresentation. With regard to item No. 3 of the suit properties, it is stated that he is in possession of Ac.0.36 cents of land bequeathed to the plaintiff and used to pay usufructs to her. It is further stated that the suit is barred by time inasmuch as the plaintiff had knowledge the execution of the sale deed on 13.8.1975. The suit was not filed within three years from the date of execution of the sale deed. 4. Defendant No. 2 took the same plea to that of defendant No. 1. The case of the defendant No. 2 is that agreement for sale with regard to item No. 2 property was executed on 25.1.1978 by the plaintiff on receipt of advanced consideration amount with her full knowledge and consent. 4. Defendant No. 2 took the same plea to that of defendant No. 1. The case of the defendant No. 2 is that agreement for sale with regard to item No. 2 property was executed on 25.1.1978 by the plaintiff on receipt of advanced consideration amount with her full knowledge and consent. The plaintiff and defendants applied before the S.D.O., Parlakhemundi seeking permission under Section 22 of the OLR Act to sell the land. 5. On the basis of inter se pleadings of the parties, learned trial court struck eleven issues, which are as follows: “1. Whether the sale proceeds received from G. Chinammi regarding the sale of land measuring Ac.0.34 cents belonging to the plaintiff was received by him? 2. Whether by misrepresentation and playing fraud upon the plaintiff the defendant No. 1 got the sale deed dated 13.8.1975 in his favour from the plaintiff and whether the said sale is valid and binding upon the plaintiff? 3. Whether the consideration covered by the agreement for sale in favour of Defendant No. 2 was received by the plaintiff, and whether the plaintiff put her L.T.I. on the alleged agreement for sale having full knowledge of the contents hereof. 4. Whether the Defendant No. 1 has not been managing the lands of the plaintiff? 5. Whether the defendant No. 1 was inducted as tenant into the plaintiff’s land measuring Ac.0.36 cents and whether he delivered bhag to the plaintiff for the year 1978-79 and 1979-80? 6. Whether the defendant No. 1 cleared off his father’s debts and whether he is entitled to be reimbursed from out of the lands of the plaintiff? 7. Whether there is cause of action? 8. Whether the plaintiff is not entitled to recover possession of her lands? 9. Whether the suit is in time? 10. To what relief? 11. Whether the suit is bad for mis-joinder of cause of action?” 6. To substantiate the case, the plaintiff had examined four witnesses including herself and on her behalf, two documents were exhibited. Defendant No. 1 had examined four witnesses and on his behalf, seven documents were exhibited. Defendant No. 2 had examined one witness and on his behalf two documents were exhibited. 7. To substantiate the case, the plaintiff had examined four witnesses including herself and on her behalf, two documents were exhibited. Defendant No. 1 had examined four witnesses and on his behalf, seven documents were exhibited. Defendant No. 2 had examined one witness and on his behalf two documents were exhibited. 7. On an anatomy of the pleadings and the evidence on record, learned trial court came to hold that defendant No. 1 has failed to discharge the burden that the sale deed vide Ext.E was read over and explained to the plaintiff and after understanding the contents of the same, she put her LTI. The plaintiff being an illiterate woman, burden of proof lies heavily on the defendant No. 1. Defendant No. 1 has not discharged that burden and, therefore, the sale deed vide Ext.E is not valid and binding on the plaintiff and answered issue No. 2 in favour of the plaintiff. 8. The learned trial court further held that neither defendant No. 1 nor the legal guardian of defendant No. 2 in their evidence stated that after execution of Ext.A/1, the same was read over and explained to the plaintiff and she having understood the contents and full application of mind put her LTI. They have not stated that the scribe of the deed read over and explained the contents of the deed to the plaintiff. It further held that D.W.3, the scribe of the deed of agreement for sale, deposed that he read over and explained the contents of the same to the plaintiff but he has not stated that he explained the deed in Telgu language and the plaintiff understood the contents of the deed. There is no endorsement in Ext.A/1 that it was explained to the plaintiff and she understood the same. It is only stated that the same was read over. The plaintiff is a Telgu woman. There is no presumption that she understands Oriya language. That apart, she is deaf. Therefore, extra caution ought to have been taken by the scribe as well as defendant No. 1 and guardian of defendant No. 2 while executing the document. The scribe has admitted in his cross-examination that he has not mentioned the deed that he explained the same in Telgu language. Therefore, the transaction made vide Ext.A/1 cannot be sustained as it is not genuine. The defendants have not discharged the burden successfully. The scribe has admitted in his cross-examination that he has not mentioned the deed that he explained the same in Telgu language. Therefore, the transaction made vide Ext.A/1 cannot be sustained as it is not genuine. The defendants have not discharged the burden successfully. The agreement for sale is not genuine and, as such, not binding on the plaintiff. The learned trial court further held that defendant No. 1 is not in possession of the land under item No. 3 as a tenant. Defendant No. 1 is not in possession of the property. Thus the plaintiff is entitled to recover the possession. Learned trial court further held that the suit was filed within the time and answered issue No. 9 in favour of the plaintiff. 9. Assailing the judgment and decree passed by the learned trial court, defendant No. 1 filed Title Appeal No. 46 of 1984 before the learned District Judge, Ganjam, Berhampur, which was transferred to the court of learned 1st Addl. District Judge, Ganjam, Berhampur and re-numbered as Title Appeal No. 13 of 1985. Learned lower appellate court concurred with the findings of the learned trial court with regard to all issues except issue No. 9 and dismissed the appeal. Learned lower appellate court held that the suit for declaration of sale deed dated 13.8.1975 is invalid and barred by law of limitation. It was further held that even if without granting relief to the plaintiff, she is entitled to recover possession of suit item No. 1 property, since defendant No. 1 has not acquired any valid title over the same as she has prayed for recovery of possession. 10. Heard Mr. T.K. Pattnaik, learned counsel on behalf of Mr. J. Pattnaik, Senior Advocate for the appellant. None appears for the respondents. 11. While admitting the appeal, ground Nos. A and B of the memorandum of appeal were formulated as substantial questions of law. The same are as follows: “A. As to whether when a party cannot challenge a registered sale deed executed in favour of another party, if prayer for recovery of possession can be granted to such party? 11. While admitting the appeal, ground Nos. A and B of the memorandum of appeal were formulated as substantial questions of law. The same are as follows: “A. As to whether when a party cannot challenge a registered sale deed executed in favour of another party, if prayer for recovery of possession can be granted to such party? B. As to whether when prima facie one of the parties claims tenancy right in respect of agricultural property, it is to be considered whether Section 67 of the Orissa Land Reforms Act bars the jurisdiction of the Civil Court in investigating the question of relationship of landlord and the tenant?” 12. Mr. Pattnaik, learned counsel for the appellant, submitted that the plaintiff, to press the legal necessities, executed the sale deed vide Ext.E in favour of defendant No. 1 for a valid consideration. The contents of the deed were read over and explained to the plaintiff whereafter she put her LTI. Both the courts below committed patent error of law in placing the burden of proof on defendant No. 1. The finding with regard to execution of Ext.E is perverse. He further submitted that defendant No. 1 is a tenant and, as such, the suit is hit under Section 66 of the OLR Act. 13. The scope and extent of protection to which an illiterate woman is entitled to have been succinctly stated by the apex Court in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203 . The same is locus classicus on the subject. Taking a cue from the decisions of the Privy Council in the case of Mst. Farid-Un-Nisa v. Mukhtar Ahmad, AIR 1925 PC 204 , Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moo Ind App 419 (PC), Kali Bakhsh v. Ram Gopal, 41 Ind App 23 and Hemchandra v. Suradhani Debya, AIR 1940 PC 134 , the apex Court in para 5 and 6 held as follows: “5. It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case, the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case, the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India, pardahnashin ladies have been given a special protection in view of the social conditions of the time; they are presumed to have an imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind App 342 at p. 350: ( AIR 1925 PC 204 at p.209, Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed: "In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. The learned Lord observed: "In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.” The learned Lord also points out: "Of course fraud, duress and actual undue influence are separate matters." It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardanashin ladies or not. (6) The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardanashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman. In Kali Baksh v. Ram Gopal, 43 Ind App 23 at p.29 (PC), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardanashin lady was a party in the following words: “In the first place, the lady was a pardanashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor." The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind App 342 at p.352 : ( AIR 1925 PC 204 at p.210) it was stated : "The mere declaration by the settlor, subsequently made, that she had not under stood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settler or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them." While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Hem Chandra v. Suradhani Debya, AIR 1940 PC 134 . Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus: “The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus: “The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.” 14. The principles which govern the proof of execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman as has been held by this Court in Agadhei Malikani and another v. Abhimanyu Mallik and others, ILR 1968 Cut. 576. 15. Admittedly the plaintiff is an illiterate Telgu woman. She is deaf. Heavy burden lies on the defendants, who seek to sustain transactions, that the documents in question, i.e., Ext.E and A/1 had been executed by the plaintiff after the same were read over and explained to her, she clearly understood the nature of transactions and contents of the deed. On an anatomy of the pleadings and evidence, both oral and documentary, both the courts below held that defendant No. 1 has failed to discharge the burden that the sale deed vide Ext.E was read over and explained to the plaintiff and after understanding the contents of the same, she put her LTI. Therefore the sale deed vide Ext.E is not valid and binding on the plaintiff. 16. On a bare perusal of the sale deed vide Ext.E, it is found that there is no endorsement to the effect that the plaintiff executed the sale deed after understanding the contents of the same. It is merely stated that the said deed was read over and explained to her. D.W.3, scribe of the deed, has not stated that the contents of the deed were understood by the executant and after understanding the same, she executed the deed. The same do not specify the test enunciated by the apex Court in the case cited supra with regard to the documents executed by the illiterate executant. D.W.3, scribe of the deed, has not stated that the contents of the deed were understood by the executant and after understanding the same, she executed the deed. The same do not specify the test enunciated by the apex Court in the case cited supra with regard to the documents executed by the illiterate executant. Both the courts below have rightly held that the sale transaction is not valid and not binding on the plaintiff. 17. Learned trial court came to hold that the suit is in time and answered issue No. 9 in favour of the plaintiff. But then, the learned lower appellate court upset the same and held that the suit is barred by limitation and even if the issue of limitation is decided against the plaintiff instead of defendant No. 1, then also she is entitled to relief of recovery of possession as she has prayed for the same. The finding of the learned lower appellate court that the suit is barred by limitation is not correct. Issue No. 9 has been correctly decided by the trial court; but on untenable and unsupportable grounds, the learned lower appellate court reversed the same. Thus the substantial question of law enumerated in Ground No. A is answered in favour of plaintiff by holding that the suit was filed within the prescribed period of limitation. 18. Both the courts below concurrently held that the defendant No. 1 was not a tenant within the meaning of OLR Act in respect of item No. 3 the suit schedule property. The same is essentially a finding of fact. There is no perversity in the findings of the courts below. Accordingly, Ground No. B of substantial question of law is answered. 19. The inescapable conclusion is that appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.