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2016 DIGILAW 906 (ORI)

Ghana Jena v. Duli Bewa

2016-10-05

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Ad hoc Additional District Judge (Fast Track Court No.II), Puri in title Appeal No.71/24 of 2001-1991 setting aside the judgment and decree passed by the learned Additional Civil Judge (Sr. Division), Puri in O.S. No.166/4 of 1983-81-I. The predecessor-in-interest of the appellant no.1, namely, Smt. Dhobi Dei with the appellant no.2 as plaintiffs had filed the suit, i.e., O.S. No.166/4 of 1983-81-I against one Banamali Jena, who is the predecessor-in-interest of the respondents. The suit having been decreed, the unsuccessful defendant-Banamali, had carried the appeal. During appeal when he died, the present respondents getting themselves substituted as his legal representatives pursued the appeal. The appeal having been allowed, being aggrieved by it, the plaintiff no.2 and the surviving legal representative of plaintiff no.1 are now with this second appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that one Nitei Jena had three sons, namely, Bhagaban, Rajan, Bhobani and two daughters, namely, Padma and Sukumari. It is stated that Bhagaban had been given in adoption to one Shyam Parida and thereby got severed from the family of Nitei. It is next stated that Nitei died before 1959 living Rajan and Bhobani who continued to remain joint in mess and estate. In the year 1959, Padmabati, daughter of Nitei filed a suit for partition impleading Rajan, Padma and Sukumari as the defendants in respect of the properties left by Nitei and other properties. The suit stood compromised where Rajan being allotted with schedule A-1 property continued to possess the same. He had no son. So, he adopted plaintiff no.2, i.e., Gauranga in the year 1966. The plaintiff no.2 thus from the time of adoption stayed as such with Rajan. It is next stated that Rajan died on the following year of adoption leaving plaintiff no.1, who then jointly possessed the property left by Rajan with plaintiff no.2. It is also the case of the plaintiffs that schedule ‘A’ property are the joint family properties possessed by the plaintiffs and Gurei and those mentioned in schedule A-1 and A-2. It is next stated that Rajan died on the following year of adoption leaving plaintiff no.1, who then jointly possessed the property left by Rajan with plaintiff no.2. It is also the case of the plaintiffs that schedule ‘A’ property are the joint family properties possessed by the plaintiffs and Gurei and those mentioned in schedule A-1 and A-2. The schedule A-1 and A-2 properties are included in Schedule A. After the death of Gurei in the year 1978, the plaintiff continued to possess schedule ‘A’ land on his own right. It is alleged that the defendant in order to grab the same got a proceeding under section 145 Cr.P.C. initiated and in course of that, the plaintiffs came to know that defendant managed to create a forged sale deed purported to have been executed by Gurei so as to advance a claim over the suit properties. It has been averred that the so-called sale deed said to have been executed by Gurei in favour of the defendant is an out and out forged one, without any consideration and the defendant was never in possession of the land covered under it being never delivered with it at any time. It is also stated that Gurei had no right to alienate the property and, therefore, by such sale deed, the defendant has not been conferred with any right, title and interest in so far as the suit lands are concerned. The plaintiffs are not bound by the said transaction and since the defendant disturbed the possession of the plaintiffs over the suit land, taking advantage of that forged deed, finding no other alternative, the plaintiffs had to file a suit. 4. The defendant coming to contest the suit in his written statement denied the plaint averments except the genealogy to the extent that Nitei had three sons and two daughters. It has been pleaded that the suit property fell to the share of Rajan and Padi, the widow of Bhoboni in a partition suit and after the death of Rajan his widow Gurei succeeded to it as sole heir and possessed the same separately. It is stated that in the year 1969 Gurei the successor of Rajan and the successor of Bhobani, namely, Padi while in separate possession of lands as of their share intended to alienate their share to meet their various necessities. It is stated that in the year 1969 Gurei the successor of Rajan and the successor of Bhobani, namely, Padi while in separate possession of lands as of their share intended to alienate their share to meet their various necessities. Accordingly on 01.09.1969 Gurei and Padi executed registered sale deed in respect of their share of properties in faovur of defendant for a consideration of Rs.2,000/-. The possession was delivered and the vendors had handed over all their documents including those of title in respect of the suit land to the defendant and they ceased to be the owner of the transferred property any more. The defendant thus while in possession of the properties, the settlement operation commenced and his acquired land as well as the suit lands was recorded in his name and accordingly he received the record of right. The defendant as ill-luck would have it got affected by leprosy. In view of that, the plaintiffs who were actually the sons of Landa Parida and being in no way related to Rajan filed the suit and it is said that the move is to deprive the defendant of exercising the right over the suit land which he has acquired under valid registered sale deed obtained from the widow of Rajan and Bhobani. 5. The trial Court on such rival pleadings framed as many as ten issues. First going to answer issue nos.3 and 4 as regards the adoption of plaintiff no.2 by Rajan and status of plaintiff no.1 as daughter of Rajan, upon threadbare discussion of evidence let in by the parties, the finding on both the issues have been in the affirmative. Next going to the crucial issue, i.e., issue no.7 regarding the impeachment of the sale deed (Ext.1) said to have been executed by Gurei and Padi in favour of the defendant for a consideration of Rs.2,000/-followed by delivery of possession, the trial court’s answer has been that by the said Ext.A there has been no transfer of title of the land covered under it from the hands of the vendors, i.e., Gurei and Padi unto the defendant. The findings on the above issues have led the trial court to answer the other issues accordingly so as to finally decree the suit. 6. The findings on the above issues have led the trial court to answer the other issues accordingly so as to finally decree the suit. 6. The appeal being preferred by the unsuccessful defendant and that being pursued by his legal representatives, the lower appellate court has concluded in favour of the status of plaintiff no.2 as the adopted son of Rajan. Then going to the validity of Ext.A, the answer has been recorded that the defendant has purchased the suit property for valuable consideration and as such the plaintiff’s family have no right, title and interest over the same and are not entitled to any relief. So saying, the trial court’s finding on that score has been set aside. Therefore, the plaintiffs having been non-suited are now before this Court with this second appeal. 7. The appeal has been admitted on the substantial questions of law as find mention under Ground Nos.A,B,C and D of the memorandum of appeal which run as under: “(A) whether on the face of materials available in record and the conclusions arrived at by the learned trial court which had the advantage of looking at the witnesses and recording their evidence, the approach made by the learned lower appellate court while reappraising the evidence and the findings recorded by it accepting due execution of the document and holding that consideration was paid by assigning reasons in the impugned judgment can be said to be legally sustainable? (B) Whether the learned court made a comparative analysis of evidence and reached at a finding that the plaintiffs are in possession, whether a contrary conclusion arrived at by the learned trial court without scanning the parole evidence adduced by t he parties but on the basis of some rent receipts (claimed to be in relation to the disputed lands) produced by the defendant (even not validly proved) can be accepted.” (C) Whether appreciation of evidence made by the learned lower appellate court with regard to the sale deed under Ext.A can be accepted as legal or to be termed as erroneous and perverse so that the impugned judgment and decree can be set aside and whether findings on that score can be said to be illegal on account of errors of law committed by the learned court below? (D) Whether the question with regard to authority of Gurei to transfer the disputed lands and about the legal necessity of the vendors have been correctly answered by the learned lower appellate court?” 8. Learned counsel for the appellants contends that the lower appellate court has completely erred in law and fact by accepting the registered sale deed (Ext.A) as a valid one to a have clothed the defendant with the title in respect of the land covered under it. According to him, the document having been executed by illiterate Pardanashin lady, the lower appellate court ought to have placed the burden of proof of execution of the same both physical and mental to be resting with the defendant and accordingly would have proceeded to scrutinize the oral evidence side by side the documentary evidence available on record so as to conclude with regard to its validity. According to him, the lower appellate court has erred in law concluding on that score of execution basing on the finding of payment of consideration, which according to him is also untenable being founded upon the recitals of said deed under challenge. He next contends that the finding on the factum of possession has not been properly recorded by the lower appellate court and it is not sustainable in the eye of law as the oral evidence on that score having been overlooked, the finding is completely based upon production of some rent receipts. In view of all these, when there is also no evidence with regard to legal necessity on the part of the so-called vendor under Ext.A at the time of sale and that having not been established by the ultimate beneficiaries under that transaction, the lower appellate court ought not to have dismissed the suit by setting aside the judgment and decree passed by the trial court. In reply the learned counsel for the respondents strenuously contends that all the above findings which are now impugned in this appeal rests upon the appreciation of evidence and the findings so recorded by the lower appellate court by scrutinizing the evidence and assessing those being neither perverse nor having been so rendered being oblivious of the settled position of law governing the field, there remains no scope for interference with the same in this second appeal. 9. 9. The substantial questions of law as have been formulated in this appeal when are carefully read for the purpose of recording the answers to the same and then the rival submissions of the learned counsel for the parties are viewed, it becomes clear that those concern with the validity of the said sale deed (Ext.A) said to have been executed by Gurei and Padi. 10. At this juncture, the rival pleadings need be taken note of. It has been stated in the plaint that the said document is a fraudulent one as is said to have been executed by Gurei in favour of the defendant. It is again stated that the same is a nominal sale deed without payment of consideration and delivery of possession and as such not binding on the plaintiffs when Gurei has also no right to alienate the same. The defendant, on the other hand, asserts the same to be a genuine one, for consideration followed by delivery of possession and it is further said that the defendant being the vendee has thus been in peaceful possession of the same to the knowledge of the plaintiffs who have remained in possession of the same since then and the sale deed (Ext.1) is said to be wholly binding on the plaintiff. Admittedly, the suit properties and other properties have ultimately been allotted to Rajan and Padi, widow of Bhobani in a partition suit and they possessed and enjoyed the same as of their respective share. Gurei is the widow of Rajan and Padi is the widow of Bhobani. This plaintiff no.1 is the daughter of Rajan and plaintiff no.2 is the adopted son of Rajan. The deed is questioned as is culled out from the plaint averments insofar as the execution of the same by Gurei is concerned. There remains neither the pleading nor the evidence that Gurei was wholly remaining confined within the four walls of the house having no other experience. So far as fraud is concerned, there is no such pleading in clear and specific term nor any evidence has been let in. The sale deed having come into being in the year 1969, the suit has been filed in the year 1981 when the plaintiff no.1 was 36 years of age and plaintiff no.2 was 22 years of old. So far as fraud is concerned, there is no such pleading in clear and specific term nor any evidence has been let in. The sale deed having come into being in the year 1969, the suit has been filed in the year 1981 when the plaintiff no.1 was 36 years of age and plaintiff no.2 was 22 years of old. The document is a registered one and most importantly nothing is stated challenging the execution part of the same by Padi. 11. At this juncture let me place my considered view which emerges on application of settled law keeping its objective in view to cases of this nature. The settled position of law is that in case of execution of a document by a pardanashin lady or illiterate lady or old person having no such experience etc. divesting her interest by the said document, the burden of proving due execution of the deed both the physical and mental act lies upon the beneficiary and the law thus provides a cloak of protection to such category of the executants with further requirement of proof in appropriate cases as regards independent advice and true understanding of the nature and impart of the transaction even as regards the average involved and the consequences. These are all for the purpose of keeping a jealous watch over the exploitation if any. But when a document is executed by two persons and challenge to its execution in so far as the one of the executants is concerned is leveled on the score that he/she had no knowledge of such document, its nature and contents as also the implication etc. But when a document is executed by two persons and challenge to its execution in so far as the one of the executants is concerned is leveled on the score that he/she had no knowledge of such document, its nature and contents as also the implication etc. even though assuming that the said executant is an illiterate and pardanashin lady the protection as available under the law by placing the burden of proof upon the beneficiaries of the transaction to establish its due execution by leading clear, cogent and acceptable evidence and all other facts concerning the same as also by repelling any such suspicious circumstance would not get attached in the absence of any pleading and proof that the other co-executant was in collusion with the beneficiaries under the transaction in creating such deed so as to deprive the said co-executant and strip her of the right that she had over the properties for the joint gain of said co-executant as also the beneficiaries or that it was that co-executant’s handiwork so as to make gain solely unto himself in causing deprivation to the other either with or without the knowledge of the beneficiary. In the absence of that case being set up, the Court cannot ask the beneficiary to prove as above as. By adoption of such a course, the part of execution of other co-executant which stands admitted would for no reason be put under cloud which is not permissible in case where lthe deed in entirety is questioned. Moreover, in such a peculiar situation the exercise of finding out due execution in case of one executant accepting the execution by the other in my considered view would not be permissible in a transaction where both the executants stand in one pedestal being the persons parting with the property. In that event the challenge as above even though made there would not be any departure from ordinary rule that the challenger has to establish his case and not the beneficiary which arises in case of special category of executants. 12. Now adverting to the present case when the defendants have proved the document (Ext.A) through the scribe and another witness, in my considered view the lower appellate court has rightly concluded Ext.A to have been duly executed. Here it is the case of joint execution by two executants. 12. Now adverting to the present case when the defendants have proved the document (Ext.A) through the scribe and another witness, in my considered view the lower appellate court has rightly concluded Ext.A to have been duly executed. Here it is the case of joint execution by two executants. The sale deed is called in question at the instance of legal heirs and successors of one of the executants and there is no challenge from the side of the other executant neither here nor even so done in any earlier or later proceeding. There is absolutely no pleading that the other executant had colluded with the vendee-defendant in getting the sale deed, so as to deprive the predecessor-in-interest of the present plaintiffs who was the other executant. Assuming for the sake of argument that the Gurei was an illiterate paradanasin lady, from the very documents, it cannot be said that she had no independent advise in absence of other executant who is not the illiterate and having no such understanding so as to be placed in the pedestal of paradanasin lady. So the interest of Bhabani has already passed unto the defendant-purchaser by virtue of the sale executed and now passing of the title in respect of the interest of the other executant which is called in question and the acceptance of the same would necessarily lead and need be by recording the finding that the sale in its entirety is void. But that way, the suit has also not been laid and no relief has been claimed. This is also the situation with regard to the finding of the lower appellate court on the question of legal necessity on the part of the executant in the situation which was prevailing at the time of the execution of the document. The conclusion of the lower appellate court as regards payment of consideration finding support from the recital of Ext.A and in the absence of any evidence from the side of the plaintiffs showing some circumstances creating doubt in mind with regard to the payment of consideration are found to be just and proper. The finding of the lower appellate court also on the factum of possession of the suit land does not appear to be a flawed one. 10. The finding of the lower appellate court also on the factum of possession of the suit land does not appear to be a flawed one. 10. In view of all these above, this Court is not in a position to search out the answers to the substantial questions of law in any way so as to run in favour the appellant. 11. In the result, the appeal stands dismissed. There would, however, be no order as to cost.