S. Acharya, J.
1. Defendants 2, 3 and 4 have preferred this appeal.
2. The undisputed genealogical tree given below will indicate the relationship between the parties.
Kartik Sethi Hari Sethi
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Khetro Ranko Kinei Minei
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Chintamani. Puri | Jogi.
@ Purna |
= Parbati |
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Dhandei Nisei =Kanhei (D.1)
3. The plaintiff (respondent No. 1 herein) instituted this suit for partition of her half share in the Ka schedule lends and for setting aside the sale deed dated 16-4-70 (Ext. A) conveying the lands described in schedule Kha in favour of Budhi Sethi (D. 2), the minor son of deceased defendant No. 1 and defendant No. 4. The lands described in the Kha schedule are included in schedule Ka of the plaint. It is not disputed that the Kha schedule property is the joint family ancestral property of the parties; and Ranka and Kinei, the ancestors of the plaintiff end the defendants, were living jointly, and there was no partition of the said properties by metes and bounds.
4. According to the plaintiff, the sale of the Kha schedule property as per Ext. A dated 16-4-70 by her in favour of defendant No. 2 was aerated by fraud and misrepresentation, and the said sale should be set aside. According to the appellants, the said sale was made by the plaintiff to pay off the loan taken by her husband and to meet the Sudhi ceremony of her husband, and she made the said sale out of her free will and with full knowledge and the consequences of the same. The appellants have no objection to partition the Ka schedule property minus the Kha schedule property' in equal shares between the defendants and the plaintiff. The other facts alleged by the parties need not be stated.
5. This appeal is not confined only to the consideration of the fact as to whether the sale of the Kha schedule property effected as per Ext. 1 by the plaintiff was a valid sale or not.
6. The trial court held the said sale to be a valid sale, whereas the appellate court has negatived that finding and it has held that the sale deed was obtained by fraud and misrepresentation of the appellants.
7. Admittedly, the plaintiff at the time of the execution of the sale deed Ext, A was an inexperienced country girl of 18-19 years of age. Her husband had died of cholera on 5-4-70. The sale deed was executed on 16-4-70. It is an admitted fact that at the time when the said sale deed was executed the plaintiff was in a late stage of pregnancy. On the evidence, and specially that of P. W. 11, the Government doctor at the Ananda-pur Hospital at the relevant time, it is established that the plaintiff was hospitalised in the Aaiandapur GovernmentHospital en 22-4-70, and on that date she delivered a child. From the above facts it is quite evident that the sale deed was obtained from the plaintiffwhen the plaintiff was in deep mental agony due to the death of her husband at her young age end at that advanced stage of her pregnancy must have completely unnerved her and she must have lost her mental equilibrium. The execution of the sale deed by a young unsophisticated woman in that state of her health and mental condition, and that too in favour of a relation of the other branch who could have waited for some time, by itself smacks of suspicion. True it is that the plaintiff has not been able to satisfactorily establish her case that she was given some medicine on the way by the appellants and their associates when she was being taken by them to the Sub-Registrar's office due to which she could not know what papers she signed in the Sub-Registrar's office. But from the above facts and circumstances and the time of the execution of the deed it appears that she executed Ext. A either under duress or under misrepresentation and not out of her own free will. From the depositions of the plaintiff (P W. 7) and her father (P. W. 6) it is established that very soon after the execution of that document the plaintiff informed her father that she had been made to execute a power of attorney by the appellants. P. W. 6 states that as soon as he got the said information from his daughter (P. W. 7), he went to the Sub-Registrar's office, and only there be could know that P. W. 7 did not execute a power of attorney, but instead executed Ext. A, a sale deed in favour of the appellants. On receiving this information P. W. 6 informed certain local authorities about the same -and also con-vened a Panchayat in the village on 23-4-70. In that Panchayat defendant No. 4, the other guardian of the minor defendant No. 2 fin whose favour the sale deed Ext. A was executed), admitted that no consideration money was paid for the said sale and so she could return the sale deed to the plaintiff and would also execute a cancellation deed in respect of the same. The said undertaking was recorded in the Panchayati and Suka Dei, defendant No. 4, appended her thumb mark on it in the presence of witnesses who too signed the said document. In support of the above, Ext. 1 has been produced and some witnesses (P. Ws. 1, 2, 4 and 6) who signed that document andthe scribe (P. W. 3) of the said document have been examined. On their evidence the court below has arrived at the finding that Ext. 1 is a genuine document and that Suka Dei, defendant No. 4 executed the same with full knowledge of the contents of the same. After going through the evidence on record and on hearing the counsel appearing for both the parties I do not see .any reason to differ from the said finding of fact. In Ext. 1 it is mentioned that no consideration was paid to the vendor of the said sale deed and that the sale deed would be returned and cancelled by another registered cancellation deed. From the evidence regarding the Panchayati and the undertaking given by Suka Dei in Ext. 1 it is evident that the sale as per Ext. A had not been made as per the free will, knowledge and consciousness of the vendor. If really the vendor was in want of money then why did she execute the said sale deed without receiving payment of the full consideration money for the said sale? According to the appellants, out of Rs. 3,000 which had been settled to be the consideration money for the said sale, Rs. 1,200 had been paid in advance before the execution of the said sale deed. There is absolutely no evidence worth the name to establish the said fact. The evidence of payment of the balance amount of Rs. 1,800 is also not convincing and cannot be believed specially in view of the contents of Ext. 1, scribed and executed in the presence of so many persons in the village. Defendant No. 4 does not state that the L.T.I, on Ext. 1 is not that of here, but she says that that L.T.I, was taken from her by force and coercion. Her case to the effect was not stated in the written statement; the same has not been established on the evidence on record; and the same does not inspire confidence in the background in which it is alleged.
Apart from the above consideration, it is also seen from the sale deed Ext. A that there is no endorsement thereon to the effect that the said document was read over and explained to the executant or that she appended her signature after understanding the contents of the same. Mr. Rao appearing on behalf of the appellants contends that it was not necessary for the executant of the deed was not a purdanashin or illiterate woman, she has signed that document in Oriya, and in her deposition she has stated that she knows reading and writing. At one place in her cross-examination she hasof course simply stated that she knows reading and writing, but there is no proof of the fact that she was capable of reading handwritten documents as Ext. 1. There is also no evidence of the fact that before actually executing the said deed it was read over and explained to her or that she herself read that document and after understanding the contents of the same she appended her signature on it. The document was executed at a time when she without doubt was in deep agony due to the death of her husband only a few days prior thereto. D. W. 4 and P. W. 5 have stated that the plaintiff was not keeping good health after the death of her husband. Within a very short time after the execution of the document Parbati delivered a child in the hospital. As the said sale deed was obtained under the aforesaid situation and circumstances, and the plaintiff took a definite stand both in her pleading and in her deposition that the sale deed was taken from her by practising fraud on her and by misrepresentation of facts, the defendants should have proved in this case that the plaintiff while executing the said sale deed was fully conscious of the fact that she was executing a sale deed in respect of some property and that too in favour of her close relations. Here, proof of her signature in the deed, in the facts and circumstances of this case, is not sufficient to prove that the plaintiff knew what she was doing and understood the real import of her said act,
On the above facts and circumstances one feels inclined to believe the plaintiff's plea that she did not execute the said deed while being conscious of the contents of the deed or the import of her said act. On a careful perusal of the evidence on record and on hearing the counsel appearing for both the parties I also feel hesitant in this second appeal to differ from the conclusion of the court below that 'fraud has been proved to have been perpetrated on the plaintiff by the defendant No. 4 and under fraud the impugned sale deed was executed although there was no legal necessity and passing of consideration thereunder'.
8. On the above findings and tha undisputed facts stated above, the plaintiff will be entitled to half share in the entire Ka schedule property, which includes the Kha schedule property. The order of the court below cancelling the sale deed Ext. A has to be and is herebyconfirmed. There is, therefore, no merit in this appeal and it is accordingly dismissed. In the facts and circumstances of the case each party will bear his own costs of this appeal.