V.N. Khare, J.
1. When this second appeal was heard it appeared that the parties may settle the dispute by negotiated compromise. Since no compromise was arrived at I proceed to dispose of the appeal on its merit.
2. This second appeal arises out of suit filed by plaintiff-respondent for cancellation of gift deed dated 1-8-1974 registered on 20-9-1974 with respect to the property detailed at the foot of the plaint partly situate in village Bilsoori and partly in village Derha, Pargana Sikandarabad, District Bulandshahr.
3. In brief the plaint allegations were that the defendant-appellants, Mst. Mallo, Mst. Narain and Mst. Kalawati are the three married daughters of plaintiff-respondent, Mst. Bakhtawari. The plaintiff is the widow for last 30 years. The defendant-appellant, Mst. Mallo on 30-7-1974 came to the plaintiff's house along with her husband and asked her to move an application for giving her entire land to all the three daughters equally after her death and for that purpose took her to Sikandarabad on 1-8-1974. At Sikandarabad Mst. Malloo and her husband Jaspal Singh, in collusion with the scribe obtained the plaintiff-respondent's thumb impressions on several papers on the pretext that those documents were required in order to give equal share to all the three daughters after her death. After, sometime Mst. Mallo and Jaspal Singh went to plaintiff, village Bilsaori and asked plaintiffs husband's brother to give possession over the land alleging that the plaintiff had already gifted the entire land in her favour. The plaintiff further alleged that the attesting witnesses Chandra Pal and Vir Narain are not the residents of the plaintiffs village nor the plaintiff has any knowledge of them. The plaintiff further alleged that the gift-deed in question was not read over and explained to her and she was under the impression that she was putting her thumb impressions on the documents which shall give the property in question equally to all her three daughters after her death.
4. The defendant-appellant Mst. Mallo filed written statement and denied the plaint-allegations. The defendant-appellant pleaded that she was looking after the plaintiff and, therefore, the plaintiff wanted to gift her entire property to her and for that purpose the plaintiff executed the gift-daed in question on her own free will. No fraud was ever played over the plaintiff for executing the documents in the defendant's favour. The gift deed is valid and effective. Apart from this other pleas were also taken.
5. The learned Munsif-framed several issues and decided the material issues against the plaintiff. The learned Munsif held that the gift-deed was not obtained by fraud as alleged in the plaint and the gift deed is valid. In view of the above finding the suit was dismissed.
6. On appeal by the plaintiff, the Appellate Court allowed the appeal and decreed the suit as prayed for by the plaintiff-respondent.
7. Learned counsel for the defendant-appellant urged that the appellate Court has erroneously cast burden of proof on the defendant for proving that the document is really a valid gift-deed. Argument of the learned counsel for the appellant is that the allegation of plaintiff that she never meant execution of the gift-deed while she put her thumb impressions on the document, the burden of proof was on her. It is undisputed fact that the plaintiff is a widow for last 30 years and is also illeterate. In view of the two undisputed facts it is to be seen as to whether the burden of proof in regard to the validity of the gift-deed rests upon the defendant or on the plaintiff.
8. In case of any transaction by Pardahnashin lady the burden of proof is always on the person who seeks to sustain a transaction entered into a Pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction and this burden can only be discharged only by proving that the document was explained to her and she understood it but also on the other evidence, direct and circumstantial.
9. The rule regarding transaction by Pardanashin lady apply equally to illiterate widow though she may not be in strict sense a pardahnashin lady. In the case of (Parasnath Rai v. Tileshra Khuar) 1965 All LJ 1080 it was held that
'Rules regarding transactions by Pardahnashin lady are equally applicable to an illeterate and ignorant woman though she may not be a pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardahnashin lady but by reason of those disabilities which a life of seclusion lived by a Pardahnashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well as old age, infirmity, ignorance, illeteracy ailing mental deficiency, inexperience and dependance upon others may by themselves create disabilities that may render the protection equally necessary. If it, therefore, proved that a woman, who is not a Pardahnashin lady, suffers from disabilities to which a Pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a Pardahnashin lady.'
In this case it is undisputed fact that the plaintiff is an illeterate and a widow for last 30 years, Evidence on record does show that plaintiff is ignorant, inexperience and has to depend on others. The appellate Court has recorded a finding that plaintiff is illeterate widow for 30 years. In view of the finding the burden of proof was rightly cast on the defendants.
10. The second submission of learned counsel for appellant is that once the plaintiff alleged that the document is gift-deed, it would be deemed to have alleged that it was duly attested document as required under Section 123 of the Transfer of Property Act and no witness for attestation was required to be produced and view taken by the Appellate Court is erroneous.
11. According to Section 123 of the Transfer of Property Act gift-deed is required to be attested at least by two witnesses. In : AIR1932All527 (Lachman Singh v. Surendra Bahadur Singh) two questions were framed to be answered by the Full Bench, First was when a mortgagee sues to enforce his mortgage, and execution and attestation of the deed are not admitted, what must the mortgagee prove in order to obtain a decree? The Full Bench of this Court answered that question thus, 'Where a mortgagee sues to enforce his mortgage and the execution of the deed are not admitted, the mortgagee need prove only this much that mortgagor signed the document in the presence of an attesting witness and one man attested the document provided the document on the face of it bears the attestation of more than one person, but if the validity of the mortgage be specially denied, in the sense that the document did not effect a mortgage in law then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses.'
12. Following the above Full Bench decision a Bench of this Court in the case reported in : AIR1936All169 (Bindeshri Prasad v. Panchayati Akhare Maha Nirbani Goshain) held that the execution of a document is one thing, and the attesting of it as required by law is quite another thing. An admission by the executant of the signature on the document does not dispense with the proof of its attestation as required by law, particularly when the attestation is specifically denied.
13. In AIR 1972 Gauh 44 it was held that the 'Attestation' and 'Execution' are two different acts, one following the other in the order stated. Attestation is meant to ensure that the executant was a free agent, and not 'under pressure nor subject to fraud while executing the same.
13A. In view of law laid down it has now be seen as to whether the witnesses for attestation were required to be produced. In the present case the validity of the gift deed was specially denied, in the sense that the , document had no effect in law. In such circumstances it was necessary for the donee to have produced the attesting witnesses of the gift-deed. The appellate Court on the assessment of evidence found that the attestation of gift deed in question was not proved rather it was disproved. In view of that finding the Appellate Court correctly held that the gift-deed in question did not confer any right on donee the defendant-appellant in respect to the property in question.
14. The third submission made by the learned counsel for the appellant is that the finding of the Appellate Court that the fraud was perpetuated on the plaintiff by Smt. Mallo defendant-appellant and her husband in getting the gift-deed executed was based on misreading and ignoring the defendant's evidence on record and has been recorded merely on the presumption drawn from the circumstances. The Appellate Court has considered various aspects while recording finding in regard to fraud perpetuated on the plaintiff by Smt. Mallo these aspects are viz., firstly, that there was no evidence of preference of plaintiff for Smt. Mallo. Secondly, the document alleged to be gift-deed was never read over to her and she put. her thumb impressions on the document believing it to be will. Thirdly, that the gift was unusual as plaintiff had no other source of income left other than the property effected by the document. Fourthly, that no attesting witnesses were residents of village Bilsoori where the plaintiff resided and the attesting witnesses to the gift-deed were from village of defendants. The learned counsel for the appellant challenged the findings of the Appellate Court in regard to the aforesaid aspects.
15. Learned counsel for the appellant urged that the finding of the Appellate Court that there is no evidence on record to show that Smt. Mallo was residing continuously with the plaintiff Smt. Bakhtawari is not based upon the evidence on record. Learned counsel for Appellant referred to the statement of Chanderpal Singh (D.W. 1) who, accordingto him, had specifically stated that Smt. Mallo used to live with Smt. Bakhtwari most of the . time and used to look after her affairs. A perusal of the statement of D.W. 1 shows that he, in the course of examination, stated that Smt. Mallo, often resided in Bilsoori. He nowhere stated that Smt. Mallo permanently and continuously resided with l,he plaintiff at Bilsoori. There is no merit in this argument and must be rejected.
16. Learned counsel for the appellant then urged that the finding of the Appellate Court that document was never read to the plaintiff and she thumb marked it taking it to be a will, is erroneous. Submission is that plaintiff in her statement admitted to have gone to Registry for the registration of document and the Registrar after making an enquiry, under Section 34 of the Registration Act had made the following note as required under Section 58 of the Act, the presumption would be of its being duly performed : --
'IS PRALEKH PATRA KE V1VARAN KO BHALI BHATI SUN WA SAMAJH KAR ISKEY NISHPADAN KO SW1KAR KIA.'
17. In AIR 1918 Oudh 120 it was held that the Court is not bound to treat registration endorsement as conclusive proof of execution. Endorsement cannot be resorted to if circumstances of execution arc suspicious.
18. The plaintiff appearing as P.W. 1 consistently stated on oath that the document was not read over and explained to her before she was made to put her thumb impression thereon.
Vir Narain (P.W. 2) stated that the document in question was not read over and explained to the plaintiff. Even Chandra Pat Singh (D.W. 1) in the mutation proceeding vide paper No. 40/C 2 stated that the document was written prior to his arrival. Khusi Ram (D.W. 2), who is the scribe of the document, slated that he does not know Mst. Bakhtawari personally and also does not remember anything on the basis of memory. He further states that whatever he has stated regarding the execution of the document it is all based on his going through the contents of this document. The appellate Court on the basis of evidence on record concluded that the document was not read over and explained to the plaintiff. The defendant-appellant did not prove the document by other evidence, direct and circumstantial that the document was read over and explained to the plaintiff at the time of execution.
19. Learned counsel for the appellant lastly argued that after the finding was recorded by the appellate Court that, no rights were transferred by the document in favour of Mst. Mallo as it was not proved that it was a valid gift-deed, the suit could not be decreed tut it has to be dismissed as there was no document which could be cancelled.
20. The suit of plaintiff was for declaration that the gift deed dated 1-8-1974 and registered by the Sub-Registrar, Registration Office, Sikandrabad on 20-9-1974 at BAHI No. 1 JILD 1007 at S.'No. 3128 in pages No. 14/17 with respect to the agricultural land detailed at the foot of the plaint be declared void and the same be cancelled. On various findings the Appellate Court held that the document alleged to be executed by the plaintiff was a void document and confer no right on the defendant Smt. Mallo. No doubt the gift-deed. if found void, can be ignored. The Appellate Court has not committed any manifest error in cancelling the gift-deed.
21. In view of above there is no force in this second appeal. It is accordingly dismissed with costs.