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2018 DIGILAW 181 (ORI)

Sachala Nath v. Harekrishna Nath

2018-02-12

A.K.RATH

body2018
JUDGMENT : Dr. A.K. Rath, J. Defendants 1 and 2 are the appellants against a confirming judgment. 2. Plaintiffs-respondents 1 and 2 instituted the suit to set aside the sale deeds executed by defendant no.3 in favour of defendant no.2 and defendant no.2 in favour of defendant no.1, declaration of title, confirmation of possession, recovery of possession in case of dispossession and permanent injunction. Case of the plaintiffs was that suit land measuring Ac.0.03 dec. appertaining to Khata No.481, Plot No.3715 is a part of their ancestral homestead. The same has been recorded in the name of their grandfather Nisha Nath. After death of their grandfather, their father Chadhei, the plaintiffs and defendant no.3 (mother) became the owners in possession of the suit land. Due to disturbance in the family, defendant no.2 approached defendant no.3 to stay in her house for some time. Defendant no.2 stayed with her family. Subsequently defendant no.2 vacated the suit land in the year 1987. While the matter stood thus, defendant no.1 trespassed into the suit land and threatened to dispossess them and defendant no.3. They ascertained that defendant no.2 had fraudulently obtained a sale deed in the year 1984 from defendant no.3 and sold the same to defendant no.1 by means of a sale deed of the year 1987. Defendant no.1 mutated the land in her name. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. Defendants 1 and 2 entered contest and filed a written statement challenging the maintainability of the suit. It was pleaded that for legal necessity, defendant no.3 had executed the registered sale deed on 9.3.1984 in favour of defendant no.2 for a valid consideration and delivered possession of an area of Ac.0.03 dec. of land. No fraud had been played. Thereafter, defendant no.2 sold the property to defendant no.1 by means of a registered sale deed dated 20.7.1987 for a valid consideration and delivered possession. The land was mutated in her favour. She constructed a dwelling house over the same. Defendant no.3-mother of the plaintiffs filed a written statement supporting the stand of the plaintiffs. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial court came to hold that the suit is maintainable. She constructed a dwelling house over the same. Defendant no.3-mother of the plaintiffs filed a written statement supporting the stand of the plaintiffs. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Parties led evidence, both oral and documentary to substantiate their case. Learned trial court came to hold that the suit is maintainable. Plaintiffs, who were minors, are being duly represented by the next friend (father’s sister’s husband). Defendant no.3 is a Paradanashini and illiterate lady. There is no due execution of the sale deed in favour of defendant no.2. The sale deed is void. Fraud has been played by the vendee. Held so, it decreed the suit. Unsuccessful defendants 1 and 2 filed Title Appeal No.8 of 1993 before the learned Civil Judge (Senior Division), Anandapur, which was eventually dismissed. 5. This appeal was admitted on 30.12.1998 on the following substantial question of law; “Whether in the absence of pleading that the lady was paradanasin, can she avail the protection of the principle applicable in case of execution of a deed by a paradanasin lady?” 6. Heard Mr. Smita Ranjan Patnaik learned advocate along with Mr. Paresh Ku. Mohanty, learned advocate for the appellants. None appeared for the respondents. 7. Mr. Patnaik, learned counsel for the appellants submitted that the burden lies on the plaintiffs to prove that defendant no.3 is a paradanashin or illiterate lady. Thereafter, onus shifts to the contesting defendants to prove the genuineness of the documents. There is no pleading that defendant no.3 is a paradanashin or illiterate lady. The plaintiffs alleged that defendant no.3 was a semi-mad. There is no evidence on record that she was a semi-mad. He further submitted that for legal necessity, defendant no.3 alienated the suit land in favour of defendant no.2 by means of a registered sale deed. She put her signature on the sale deed. She filed Misc. Case No.111 of 1987 before S.D.O styling herself as Thuni Nath. She had also filed a protest petition in the mutation case before the Tahasildar. She attended the court. She was prosecuting the lis. She came to Anandapur and purchased stamp papers. The contents of the sale deed were read over and explained to her. After understanding the contents thereof, she put her signature. She is able to know the worldly affairs. She attended the court. She was prosecuting the lis. She came to Anandapur and purchased stamp papers. The contents of the sale deed were read over and explained to her. After understanding the contents thereof, she put her signature. She is able to know the worldly affairs. Therefore, it can not be said that defendant no.3 is a paradanashin or illiterate lady. 8. The plaintiffs assert that after death of their father, defendant no.3 lost her mental balance. Taking advantage of the same, defendant no.2 managed to execute the sale deed in his favour. The contents of the sale deed were not read over and explained to her. No consideration was paid. It was further pleaded that their mother is illiterate. 9. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC 1203 , the apex Court held thus; “In India paradahnashin ladies have been given a special protection in view of the social conditions of the times; 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. xxx xxx xxx 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 pardahnashin ladies or not. xxx xxx xxx In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court has to ascertain that the party executing them had 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 paradahnashin woman. xxx xxx xxx The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin 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. xxx xxx xxx The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin 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.” 10. In Agadhei Malikani and another v. Abhimanyu Mallik and others, ILR 1968 Cut. 576, this Court held that the principles which govern the proof of execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman. 11. There is no evidence on record that defendant no.3 lost her mental balance. Both the courts proceeded on the premises that defendant no.3 is an illiterate lady. The recital of the sale deed would show that the contents of the sale deed vide Ext.B-1 were read over and explained to defendant no.3-vendor. After understanding the contents thereof, she put her signature. Thus the finding of the court below that there is absolutely no material on record that the contents of the sale deed were understood by the executant defendant no.3 and after understanding the contents thereof, she executed the same is perverse. 12. The property was sold to clear up the outstanding dues. Defendant no.3 came to Anandapur and purchased the stamp papers on 19.3.1984. The scribe was examined as D.W.2. He deposed that the contents of the sale deed were read over and explained to the executant. She understood the same and thereafter signed on the deed. D.W.3, attesting witness, also stated that the contents of the sale deed were read over and explained to the executant. After understanding the same, she signed on the same. Thus inescapable conclusion is that to press the legal necessity, defendant no.3 alienated the suit land in favour of defendant no.2 for a valid consideration. The contents of the sale deed were read over and explained to her. After understanding the same, she put her signature. Further, she filed a petition before the S.D.O. in Misc. Case No.111 of 1987. She also filed a petition in mutation case before the Tahasildar. The contents of the sale deed were read over and explained to her. After understanding the same, she put her signature. Further, she filed a petition before the S.D.O. in Misc. Case No.111 of 1987. She also filed a petition in mutation case before the Tahasildar. She used to attend the court in each and every date. 13. Though such contention was raised, but the courts below negatived the same on untenable and unsupportable grounds. Learned courts below held that these are the antecedents after execution of the sale deed. Defendant no.2 executed the registered sale deed in favour of defendant no.1. Evidence on record shows that the defendant no.1 has constructed a dwelling house. 14. In Umakanta Das and another v. Pradip Kumar Ray and others, 61 (1986) CLT 480, this Court held that if the term in the sale deed is not ambiguous then any external aid to find out the true intention of the parties cannot be availed of and the narration in the document would be the sole determining feature. Under Sec. 54 of the Transfer of Property Act, title passes upon execution and registration of the sale deed and the provisions of Sec. 54 contemplate that there can be a valid sale even for a deferred consideration. The substantial question of law is answered accordingly. 15. In the wake of the aforesaid, the impugned judgments are set aside. The appeal is allowed. Consequently the suit is dismissed. There shall be no order as to costs.