1. Champa Dibya. Who originally figured as the respondent 1 and has been substituted on her death by the respondent 1/a Bhabani Dei, had instituted a suit for declaration of her title over B, C and D schedule lands after setting aside the deeds of gift in respect of B and C schedule lands (Exts. A and A(1)) said to have been executed by her in favour of appellant 1 and respondent 3 who had figured as defendants 2 and 4 respectively in the suit and the sale deed said to have been executed by her in favour of appellant 3 (defendant 5) which had been got executed by appellant 2, one of the gift deeds being in favour of his son (appellant 1) (defendant 2) then a minor who has attained majority, by practising fraud and deception and by falsely representing to her that she should execute a power-of-attorney in favour of appellant 2 to effectively look after her properties. The case of the deceased respondent Champa was that her late husband Gobardhan had three brothers, namely, Dhoi, Jagannath and Chakradhar, who were members of a joint family and the lands mentioned in schedules B, C and D formed parts of the schedule A lands which were the joint family properties of the brothers. Dhoi predeceased his father. Gobardhan and Chakradhar (husband of Gurubari, defendant 1) continued to live as members of a joint family and possessed the A schedule properties. On the deaths of her husband and Chakradhar survived by defendant 1 and Bhabani, his daughter, dissensions arose in the family and she (Champa) became separate although the properties were under the control and management of defendant I who got the same cultivated through her son-in-law Balaram. Champa took ill and appellant 2 approached her and took up her treatment. Taking advantage of this, he persuaded her to execute a power-of-attorney for effective management of her affairs and to look after her properties and ultimately in connivance with his own scribes and persons close to him, managed to get two deeds of gift and a sale deed executed by her without her knowledge about the real nature of the transactions by practising fraud on her. There was no occasion or necessity on the part of the deceased respondent Champa to execute the deeds of gift and the sale deed and she was not aware of the execution of such documents. Advantage was taken by appellant 2 as the deceased respondent Champa was a pardanashin and illiterate lady who was not in a position to and had not obtained any independent advice.
2. Defendants I and 5 did not contest the suit and were set ex parte. Appellants 1 and 2 defendants 2 and 3) filed a joint written statement denying the allegations made in the plaint. According to them, after Jagannath died issueless, there was dissension between Gobardhan and Chakradhar who became separate from each other. Both of them had purchased some properties jointly. Gobardhan had also purchased some properties out of his own income. After his death, Champa approached appellant 2 Benu, her nephew, to look after her affairs and accordingly, he took care of her and managed her properties. After appellant 1 was born, the deceased respondent Champa become very affectionate towards him, took him to her house and brought him up and performed his sacred thread ceremony. On 8-8-1966, Champa, out of her natural love and affection, executed a deed of gift in favour of appellant 1 and put him in possession of the lands conveyed thereunder. She also executed a deed of gift in respect of 16 decimals of land in favour of respondent 3 (defendant 4), her sister's son. She sold some properties to appellant 3 (defendant 5) to meet her legal necessities. According to them, the suit was barred by res judicata and estoppel as the suit, instituted by defendant 1 Gurubari (Title Suit No. 154 of 1967) had been dismissed. The guardian ad litem for defendant 4 has filed a written statement denying the allegations made in the plaint.
3. On a consideration of the oral and documentary evidence adduced by the parties, the learned Subordinate Judge has accepted the case of the deceased respondent Champa and decreed the suit preliminarily on contest against defendants 2 to 4 with costs and ex parte against defendants 1 and 5 without costs. The gift deeds (Exts. A and A/1) in favour of defendants 2 and 4 respectively and the sale deed in favour of defendant 5 dated 8-8-1966 have been held to be invalid and have been set aside. The plaintiff's title over the suit properties has been declared and it has been held that the deceased respondent Champa and defendant 1 were each entitled to eight-annas share out of Schedule 'A' properties. The trial Court has ordered that if there would be no amicable partition within a month, the plaintiff would pray for partition by depositing the fees of the survey knowing Commissioner. Accordingly a decree has been passed. The judgment and decree are assailed in this appeal by three of the defendants.
4. At the hearing, Mr. S. D. Das wanted to canvass a ground not taken earlier, viz., that the suit was barred by the law of limitation. Inviting our attention to Article 59, Limitation Act, that a suit to cancel or set aside an instrument would have to be instituted within three years from the time when the facts entitled the plaintiff to have the instrument cancelled or set aside first became known to the plaintiff and to a stray statement made by the deceased respondent Champa in her cross-examination that two to four days after the registration, she came to know that Benu had got deeds of gift and sale-deed executed by her and five to seven days thereafter, she came to Jajpur and obtained certified copies and knew that two deeds of gift and a sale deed had been obtained from her, it has been contended that the suit was barred by the law of the limitation. The Supreme Court has laid down in AIR 1965 SC 1325 Chitoori Subhana v. Kudappa Subhanna, that a pure question of law not depending on the determination of any question of fact should be allowed to be raised for the first time in the grounds of appeal in the first appellate Court and such a question is allowed to be raised for first time at later stages also. But as has rightly been submitted by Mr. Misra for respondent 1/a, no such plea had been raised in the written statement and no issue had been framed in this regard. Even in the memorandum of appeal, this question has not been raised. The date of knowledge of a person with regard to the execution of some deeds and the contents thereof is a question of fact. No person can be taken unawares when such a question had not been raised in the suit. If it had been, proper evidence could be led by the plaintiff as to when and under what circumstances, she obtained knowledge about the execution of the three deeds and the contents thereof. For these reasons, the appellants have not been allowed to raise this contention for the first time in this appeal.
5. Mr. Das has contended for the appellants that there was paucity of evidence that Champa was an illiterate lady as sought to be established by her and the evidence and circumstances would show that she had duly executed three documents being fully aware of the contents thereof and that she had executed the documents voluntarily without being influenced by appellant 2 or anyone else. According to Mr. Das, Champa did have independent advice before execution of the documents and had admitted the contents thereof before the Sub-Registrar. It has been submitted on behalf of respondent 1/a that these contentions cannot prevail and the findings of the trial Court are unassailable.
6. We have been taken through the relevant evidence at the hearing of this appeal. The trial Court has rightly concluded that the evidence already indicated that the deceased respondent Champa was an illiterate lady and that she could only sign her name.
7. It is incumbent of the person transacting with a pardanashin or illiterate lady to show that the terms are fair and equitable and that she had been given independent advice in the matter. To charge such a lady upon an instrument alleged to have been executed by her, it must be shown by satisfactory evidence that the document had been explained to and understood by her. Where the person sets up the validity of a deed executed by a pardanashin or illiterate lady, the onus is upon him to prove that she had understood the nature and effect of her act.
8. The Judicial Committee of the Privy Council had observed and held in the case of Mt. Farid-un-nisav. Munshi Mukhtar Ahmad, AIR 1925 PC 204:
'The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully understanding the nature and effect of what they are doing. 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......'
Relying on the observations made in AIR 1925 PC 204 (supra) and AIR 1940 P. C. 134 Hem Chandra Roy Choudhury v. Suradhani Debya Choudhurani, the Supreme Court has laid down in AIR 1963 SC 1203 Mst. Kharbuja Kuer v. Jangbahadur Rai:
'In the instant case the learned Munsif, and on appeal, the learned Subordinate Judge found concurrently that the two widows put their thums 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, paradnashin 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.........
XXX XXX XXX XXX XXX XXX
.....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.'As held by this Court in (1960) 26 Cut LT 304 : (AIR 1961 Orissa 100) Chandhala Bewa v. Madhab Panda, when a question arises as to whether the documents have duly been -executed by an old and illiterate lady belonging to a village, in order that the documents may be enforced against her, or, as a matter of that, in order that it may be found by the Court that the documents were properly executed, the vendee must prove that the documents were read over and explained to the illiterate executant, who is a lady, and she knew the nature and character of the transactions while she became a willing party to the documents and particularly that she was aware of the acreage involved in the transactions.
In our view, there is no justification as to why a rule applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not also apply to the case of a poor lady who is equally ignorant and illiterate, but is not pardanashin, simply because she does not belong to that class, the object of the rule of law being to protect the weak and the helpless, the distressed and the down-trodden and it should not be restricted to a particular class or community. Even in the case of a lady who is outside the pardanashin class, it is for those who deal with her to establish that she had the capacity of understanding that she had been entering into the transactions voluntarily and with full knowledge and import of what the transactions actually meant.
9. It admits of no doubt from the evidence that after dissension arose and Champa was taken ill, she took shelter under the appellant 2 who looked after her properties and took up her treatment, being a close relation of hers. There was no paucity of evidence that Champa was an illiterate lady. Appellant 2 was in a position to exercise influence on Champa who had no other person from whom she could take independent advice. The facts and evidence set out in the trial Court's judgment would show that on the pretext that Champa was to execute a power-of-attorney in favour of appellant 2, the latter got the three deeds signed by Champa who, under that impression, admitted the contents of the documents to be correct before the Sub-Registrar. Champa was ailing then and was under the care of appellant 2.
10. The disposition made must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it. The Court must be satisfied that the deed had been explained to and understood by the party under disability, either before execution or after it under circumstances showing that the deed has been executed with full knowledge and comprehension. Mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is, in itself, no real proof of a true understanding mind in the executant. In the case of execution of a deed by a paradnashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on it. It must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by the grantor. Ordinarily, the Courts insist on proof that the lady had independent legal advice although this may be an absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property. But the general rule is that save in such exceptional cases, the Court would demand affirmative proof on the subject of the lady's intelligent understanding and execution of a deed and would not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice.
11. Much advantage is sought to be taken of the fact that Champa had admitted before the Sub-Registrar about the execution of the documents stating that the contents were correct. The fact, however, remains that she was then under the care of appellant 2 who had represented to her that she was executing a power-of-attorney in his favour so that he would look after the properties. As held by this Court in (1958) 24 Cut LT 157 : (AIR 1958 Orissa 62) Bhikary Ram v. S. Hedait Mohammad Sahaji, merely because a lady says when questioned by the Sub-Registrar that the document is all right, it does not follow that she understood the terms of the same. Although Champa did make a statement before the Sub-Registrar that the documents were all right, immediately having come to know that fraud had been committed, she did raise words of protest, as would be clear from the evidence,
11A. The evidence of D.Ws. 1, 2 and 4 with regard-to the circumstances in which the deeds had been executed was discrepant, as rightly noticed by the learned Subordinate Judge in para 6 of the judgment. Appellant 3 deposing as D.W. 4 had testified that D.W. 3 had prepared a draft which was referred to by the scribe Padmanav when he prepared Ex.A(1), but D.W. 3 had not spoken about it and D.Ws. 2 and 3 had not testified in their evidence that Champa had understood the contents of the deeds. It would be seen from the evidence that the father of defendant 4, having realised that the deed of gift in favour of his son was the outcome of fraud and had not been acted upon, had returned the deed of gift to Champa, Ext. 1 had come from the custody of Champa. Defendant 5 did not even come forward to support the execution of the sale deed in his favour and chose to remain ex parte. Nor the reasons recorded in the body of the judgment, the learned trial Judge has found that the contents of none of the deeds had been read over and explained to Champa and that she was not aware of the true nature of the transactions. The scribe of Ex.A(1) was dead and the scribes of Ex. 1 and the sale deed had been examined by the defendant. D. W. 2 had gone to the length of deposing that Champa read the documents herself, but this had not been deposed to either by D, W. 3 or D. W. 4 (appellant 2).
12. Although Champa continued to reside in her house, even her homestead and house had been conveyed under Ex. A(1), This would give an indication that she was not aware of the contents of the documents. The learned Subordinate Judge had rightly taken note of another suspicious feature that almost all the properties of Champa had been taken away by the execution of the documents in question.
13. For the reasons recorded by the learned Subordinate Judge, he has rightly held that the transactions as per Ex.A(1) and Ex. 1 and the sale-deed said to have been executed in favour of defendant 5 are unconscionable and the contesting defendants have failed to establish that the deeds of gift and the sale-deed were genuine documents and had duly been executed by Champa.
14. In a case of this nature, the findings recorded by the trial Court which had the advantage of seeing the witnesses and marking their demeanour and forming impressions about their evidentiary character would assume importance. Relying on the principles laid down in AIR 1829 P. C. 15 W.C. Macdonald v. Fred Latimer. AIR 1949 PC 32 Sara Veeraswami v. Tallun Narayya (deceased), 1947 AC 484 Watt v. Thomas and AIR 1951 SC 120 Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh, the Supreme Court has held in the case of Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114 as follows :
'..........When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W. C. Macdonald v. Fred Latimer, AIR 1929 PC 15, 18 where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Court's findings as to the truth of the oral evidence, the appellate Court can interfere only on very clear proof of mistake by the trial Court. In Watt v. Thomas 1947 AC 484, 486 it was observed:
It is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. This was adverted to with approval by the Privy Council in Sara Veeraswami v. Talluri Narayya (deceased), AIR 1949 PC 32 and found favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh, 1950 SCR 781, 783 : AIR 1951 SC 120 at p. 121. It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact.'Keeping in mind these salient principles, we notice that there are no justifiable reasons to dislodge the findings recorded by the trial Court on a careful consideration of the conflicting oral evidence adduced by the parties to the suit. The question as to whether Champa executed the three deeds voluntarily and with knowledge as to the contents thereof or as to whether the deeds had been got executed fraudulently by exercising undue influence on that illiterate lady who had no independent advice was a question of fact and for clear and cogent reasons, the trial Court had found that the contesting defendants have failed to establish that the deeds had been executed by Champa in the manner sought to be established by them.
15. For the foregoing reasons, we would accept the findings recorded by the learned Subordinate Judge and maintain the judgment and decree.
16. The appeal fails and is dismissed with costs to respondent 1/a.
P.C. Misra, J.