B.N. Misra, J.
1. The plaintiff has filed this appeal against the reversing judgment of the learned Additional Subordinate Judge, Purl Respondents 1 to 9 and pro forma respondent No. 10 were defendants 1 to 10 respectively in the trial court. The lands described in Schedule 'Kha' appended to the plaint arc in dispute. The following genealogy describes the relationship between the plaintiff and defendant No. 10.
The late Krutibas Mishra
| | |
The late The late The late
Balabhadra = Hadibandhu Narasingha
(defendant No. 10) (plaintiff).
2. According to the plaintiff, the lands described in Schedules 'Ka' and 'Ga' appended to the plaint belonged to the late Krulibas who died leaving behind him three sons, Balabhadra, Hadibandhu and Narasingha. Hadibandhu died issueless around 1926 while he was in a state of jointness with his brothers Balabhadra and Narasingha. After the death of Handibandhu, Balabhadra and Narasingha amicably partitioned their properties. Balabhadra received the 'Ga' schedule properties and Narasingha received the 'Ka' schedule properties. Ever since the amicable partition Balabhadra and Narasingha separately possessed their respective shares and lived in separate mess and estate. Balabhadra died around 1938 leaving behind his widow Keli Dibya who possessed the 'Ga' schedule property as a limited owner till 1956 when the Hindu Succession Act came into force and thereafter she became the full and absolute owner of the self-same property. After Narasingha's death around 1942, his sons defendant No. 10 and the plaintiff, divided the 'Ka' schedule property between themselves into two equal shares at an amicable partition in 1965. Defendant No. 10 took the western half and the plaintiff took the eastern half of the 'Ka' schedule lands at the partition and this half share of the plaintiff in the 'Ka' schedule property is described as schedule 'Kha' in the plaint. Schedule 'Ga' property lies to the east of Schedule 'Ka' property. The 'Ka' and 'Ga' schedule lands measure 1.40 1/4 decimals each and Schedule 'Kha' lands measure 0.70 1/4 decimals. Keli Dibya who was in possession of the 'Ga' schedule lands as the absolute owner voluntarily executed a registered deed of gift on 25-9-69 and conveyed Schedule 'Ga' property to the plaintiff and since then the plaintiff has been in possession of the same. The plaintiff amalgamated the 'Ga' schedule landswhich he received by way of gift fromKeli Dibya and the 'Kha' schedule landswhich he received as his share in thepartition between him and defendantNo. 10 and he remained in possession ofthe entire area. However on 28-10-69defendant No. 10 who was in possessionof the western half of the 'Ka' scheduleland executed a sham and collusive deedof sale in favour of defendants 1 to 9purporting to transfer the entire 'Ka'schedule property though he had noright over the 'Kha' schedule lands. Onthe strength of the aforesaid collusivedeed of sale defendants 1 to 9 removedpaddy crops grown by the plaintiff onthe 'Kha' schedule lands in the years1970 and 71 as a result of which theplaintiff suffered a loss of Rs. 1000/-. Inthese circumstances the plaintiff filedthe present suit against defendants 1 to10 and has prayed for declaration of hisright, title and interest and confirmation of possession overthe 'Kha' schedule lands, fordamages of Rs. 1000/- and for declaration that the sale-deed dated 28-10-69executed by defendant No. 10 in favourof defendants 1 to 9 is illegal, inoperative and void.
3. Defendant No. 10 did not file any written statement or contest the suit and accordingly he was set ex parte. Defendants i to 9 have filed a joint written statement. According to these defendants, defendant No. 10 was no doubt the natural born son of Narasingha, but he had been adopted by Hadibandhu The three brothers Balabhadra, Hadibandhu and Narasingha died in that order and 'ill their respective deaths they were joint in mess and estate. Balabhadra died in the year 1933 while he was in a state of jointness with his brothers Hadibandhu and Narasingha upon whom the entire property devolved after Balabhadra's death. Subsequently Hadibandhu and after him Narasingha died in a state of jointness and accordingly thereafter defendant No. 10 and the plaintiff remained in joint possession of the entire lands described in Schedules 'Ka' and 'Ga' of the plaint. Keli Dibya, widow of Balabhadra, had no right and was never in possession of the 'Ga' schedule property. There was never any partition between Balabhadra and Narasingha. Till her death Keli Dibya had only a right of maintenance, but she had no other right or possession over the joint family property. The plaintiff has admitted in several documents that defendant No. 10 had been adopted by Hadibandhu and as such had eight annas share in the family property. Balabhadra had never separated from his brothers nor had Keli Dibya taken over separate possession of the 'Ga' schedule property. Keli Dibya was a Purdanashin and illiterate lady and she was too old and ailing at the time of execution of the alleged deed of gift. The deed of gift was a fraudulent document and had not been duly executed by 'Keli Dibya nor attested according to law. The gift is also otherwise invalid as Keli Dibya had no right to gift away the 'Ga' schedule property, The plaintiff was also never in exclusive possession of the 'Ga' schedule property. It is denied that there was any partition between the plaintiff and defendant No. 10 around 1965. The allegation of amalgamation of the 'Kha' and 'Ga' schedule lands by the plaintiff is denied. Since 1960 defendant No. 10 and the plaintiff had let out the joint family property on Bhag basis to defendant No. 1. The allegation of illegal removal of paddy crops is denied. It is stated that in Feb., 1969 the plaintiff and defendant No. 10 amicably partitioned the joint family properties and separated in mess. The plaintiff was allotted eight annas share on the eastern side and defendant No. 10 was allotted eight annas share on the western side. Defendant No. 10 said his share on the Western side to defendants 1 to 9 by a registered deed of sale dated 28-10-69 for Rupees 1500/-. The sale was necessary in order to pay off debts incurred by defendant No. 10. Defendants 1 to 9 have claimed right, title and possession over the lands conveyed to them by defendant No. 10 under the sale-deed dated 28-10-69. They have accordingly prayed for dismissal of the suit.
4. The learned Munsif found that Balabhadra had died after 1937 and therefore the limited interest of his widow Keli Dibya ripened into that of an absolute owner after passing of the Hindu Succession Act, 1956, that she was in possession of the 'Ga' schedule property which she conveyed to the plaintiff under the gift deed Ext. 3, that the 'Kha' schedule lands had fallen to the share of the plaintiff at the amicable partition between him and defendant No. 10 and that the plaintiff is entitled to recover damages from defendants 1 to 9. The plaintiff's suit was accordingly decreed. Defendants 1 to 9 appealed against the judgment and decree of the trial court The learned lower appellate court held that Balabhadra had died in 1940 or 41 and therefore Keli Dibya's limited interest in the 'Ga' schedule property ripened into full and absolute right after the passing of the Hindu Succession Act, 1956, The learned lower appellate court further held that the gift deed executed by Keli Dibya in favour of the plaintiff was invalid and illegal and no title passed under it. The appeal was accordingly allowed and the plaintiff's suit has been dismissed with the declaration that the plaintiff has right, title and interest and possession ever only the 'Ga' schedule property.
5. As already noted the concurrent finding of fact of the trial court and the lower appellate court is that Balabhadra and died in 1940 or 41. This finding has not been challenged by either party in this appeal and it is based on a proper appreciation of the oral and documentary evidence adduced in this case. Hence this finding must fee confirmed. Thus Keli Dibya became a widow after the Hindu Women's Right to Property Act, 1937 had come into force. The courts below have rightly held that the limited interest of Keli Dibya ripened into absolute right after the Hindu Succession Act, 1956 came into force.
6. The only question which remains to be considered is whether the deed of gift, Ext. 3, executed by the late Keli Dibya in favour of the plaintiff is valid or invalid. Admittedly Keli Dibya was an illiterate lady. Ext. 3 was executed on 25-9-69 and in the deed it is mentioned that Keli Dibya was 85 years' old at that time. There is also no dispute that Keli Dibya died within three months after the execution of Ext. 3. Learned counsel for the appellant has submitted that defendants 1 to 9 have no locus standi to challenge the validity of Ext. 3 and in support of this contention reliance is placed on a decision of this Court reported in AIR 1967 Orissa 89, Sudhakar Sahu v. Achutananda Patel. In that case it was held that a rank trespasser and stranger to the transaction could not question the non-passing of consideration. However this is not a case where defendants 1 to 9 have challenged the no-passing of consideration. These defendants have urged, that the deed of gift is a fictitious document and was never properly executed according to law. Learned counsel for the respondents relies on AIR 1977 Orissa 194, Sanatan Mohapatra v. Hakim Mohammad Kazim Mohammad, wherein it was held (at p. 197):--
'In the case of Lal Achalram v. Raja Kazim Hussain, (1965) 32 Ind App 113 (PC) the Judicial Committee enunciated a principle that a stranger to a deed which is intended to be real or operative between the parties thereto cannot dispute payment or non-payment of consideration and its adequacy or inadequacy. This, however, is not act absolute one. It has no bearing in a case where a deed is challenged as fictitious never designed to operate as a real deed or to effect a transfer of title. Generally, where a transaction is not impugned as fictitious and that it was intended or designed to be a genuine deed in order to effect a transfer of title and was acted upon as such by the parties to the transaction, it would be no concern of a third party that such a deed may be set aside by a party to the transaction on the ground available to him. But when a deed is challenged as a fictitious document which was never designed as a genuine deed in order to effect a transfer of title, it would be open to a stranger to the deed to impeach it as absolutely void and wholly invalid on all available grounds without any restriction. (See the cases of Kamni Kumar Deb v. Durga Charan Nag, AIR 1923 Cal 521; Saradindu Mukherji v. Kunja Kumini Roy, AIR 1942 Cal 514 and Jugal Kishore v. Umesh Chandra, AIR 1973 Pat 352).'
The principle enuciated, in the aforesaid decision clearly applies to the facts of this case. Here the defendants have challenged Ext. 3 as a fictitious document which was never designed as a genuine deed in order to effect a transfer of title and therefore they have the right to impeach it.
7. As regards execution of documents by Purdanashin ladies, in AIR 1963 SC 1203, Mst. Kharbuja Kuer v. Jangbahadur Rai, it was held (at p. 1206):--
'......The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to estabish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was net 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 ether evidence, direct and circumstantial.'
In AIR 1966 Patna 110; Satyadeo Prasad v. Smt. Chanderjoti Debi it was held (at p. 123):--
'.........It is to well established principle of law that these who want to take advantage of a document executed by a purdanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences, and that she had independent advice in the matter. In such a case the burden is always, in the first instance, on the person founding on that document to show that the granter intelligently understood the deed, and if they fail to establish that point, then the document is not binding on the executant or anyone else and is void ab initio............'.
Also, I respectfully agree with the view expressed in (1968) 34 Cut LT 874. Agadhei Mahkani v. Abhimanyu Mallik, that the principles which govern proof of execution of documents taken from Purdanishin women are equally applicable to documents taken from illiterate women.
8. Keeping in view the principles enunciated in the aforesaid decisions, the validity or otherwise of Ext. 3 may now be considered. The plaintiff has examined himself and P.W. 2, one of the attesting witnesses. Initially both of them stated that Keli Dibya was in good and normal health at the time of execution of Ext. 3. But its cross-examination both of them, admitted that Keli Dibya was suffering from arthritis on account of which her hands were trembling. In his evidence the plaintiff has said that at the time of execution of Ext. 3 Keli Dibya was 50 years of age. According to P. W. 2 at that time Keli Dibya was 72 years' old. Thus the plaintiff and P. W, 2 have not merely contradicted each other as regards the age of Keli Dibya at the time of execution of Ext. 3, their statements cannot be accepted as true in view of the clear recital in Ext. 3 itself that at that time Keli Dibya was 85 years of age. It is also worthy of note that in Ext. B, petition dated 31-12-1969 filed by the plaintiff in the 144 Cr. P. C. proceeding, it has been slated that Keli Dibya died 22 days prior to the date of petition i. e. on 9-12-1969. Thus Keli Dibya died only two and half months after execution of Ext. 3. In these circumstances it has been rightly observed by the learned lower appellate Court that in spite of the evidence of the plaintiff and P.W, 2 that Keli Dibya was in good health at the time of execution of Ext. 3 it would appear that due to extreme old age Keli Dibya could not have understood the nature and contents of Ext. 3 under which she was going to be deprived of her entire property. It is also significant that in Ext. 3 itself there is no mention at all that Keli Dibya was executing the deed in exercise of her independent judgment without any coercion or undue influence from any quarter. P. W. 2 is the only attesting witness who has been examined and he has admitted that he has deposed against defendants 1 to 9 in several criminal and civil cases. Thus P. W. 2 cannot be said to be an independent witness. There is no other independent evidence to corroborate or support the evidence of P. W. 2. Neither the other attesting witness nor the scribe has been examined by the plaintiff. I would therefore agree with the learned lower appellate Court that the plaintiff has failed to prove that Keli Dibya knew the contents of Ext. 3 and executed it with full knowledge of its effects and consequences and had exercised her independent and free judgment without any undue influence or coercion. Ext 3 has been rightly held to be invalid and void.
9. In the result, this appeal is dismissed. The judgment and decree of the learned Additional Subordinate Judge are confirmed. In the facts and circumstances of this case, parties will bear their own cost throughout.