A deed of settlement executed by an illiterate Paradanashin woman without independent advice and under the influence of the donee is void ab initio. Material alteration of a document renders it void.

K. P. MOHAPATRA, J.

( 1 ) THE reversing judgment and decree of the learned Additional Subordinate Judge, Berhampur, dismissing the plaintiff's suit for declaration that the deed of settlement in respect of the suit land dated 20-6-1962 (Ext. A/5) executed by Baidehi in favour of the defendant-respondent was a fraudulent, inoperative and void document got executed on perpetration of undue influence, for partition, for rendition of accounts and mesne profits, have been assailed in this second appeal. The plaintiff is the appellant.

( 2 ) THE plaintiff alleged the following facts. Kalu Sahu had two sons, namely, Gobinda and Nandakishore (defendant ). Baidehi was his widow. Gobinda died and his son, the plaintiff was posthumously born. The plaintiff, however, instead of living in the ancestral home, lived with his maternal uncle, practically detached from his uncle, the defendant and grandmother Baidehi. The suit property as was held in First Appeal No. 69 of 1958, disposed of on 22-12-1961, belonged to Baidehi who enjoyed the same in lieu of maintenance and had acquired absolute rights according to the provisions of S. 14 (1) of the Hindu Succession Act. Taking advantage of the above finding, the defendant perpetrated undue influence on his own mother who was practically dependent living with him and got the deed of settlement (Ext. A/5) executed by her on 20-6-1962 which was registered in the course on 29-6-1962. At the time of execution of the deed, Baidehi was a very old and illiterate Paradnashin lady and being completely under the influence of the defendant had no independent advice. The contents and recitals of the deed were neither read over nor explained to her and she did not understand the nature and purport of the document. The deed of settlement thus being a void and legally inoperative document did not vest title on the defendant in respect of the suit land. On the other hand, both the plaintiff and the defendant having succeeded to the same are entitled to half share each therein. Accordingly, the plaintiff prayed for partition claiming half share in the suit property with other incidental reliefs.

( 3 ) THE defendant pleaded that his mother Baidehi had in fact bequeathed all her movable and immovable property including the suit land by executing a will in his favour as long back as on 25-4-1966. Again she executed a deed of settlement in his favour on 20-6-1962 in respect thereof. Although she was living with the defendant, no undue influence or fraud was perpetrated on her. She was neither physically weak nor mentally unstable. She know the nature and purport of the document at the time of execution. As a matter of fact, voluntarily and being fully conscious of the nature and purport of the transfer, she executed and registered the deed of settlement (Ext. A/5) in favour of the defendant and later delivered possession of the property. Thus the defendant having become absolute owner thereof, the plaintiff's claim for declaration and partition is untenable.

( 4 ) THE learned Additional Munsif held that the impugned deed of settlement (Ext. A/ 5) was not a genuine, valid and properly executed document for the following reasons :- (a) Executant Baidehi was an old lady aged 70 years; (b) She was wholly dependent on the defendant who was maintaining her and was managing the suit land. She had no independent advice at and prior to the execution of the deed; (c) No provision was made for her maintenance in the deed of settlement; (d) Although Baidehi and the defendant were mother and son, there was fiduciary relationship between them; (e) Two of the witnesses (D. Ws. 3 and 4) stated that Baidehi gave out at the time of execution of the deed that she would be maintained out of the income of the suit land. But no such recital found place in it. It, therefore, goes to show that the deed was not scribed according to her instructions; (f) There was some variation in the evidence as to the place where the deed was scribed; (