In a suit challenging the execution of documents by an illiterate executant, the burden of proving proper execution lies on the vendees, and mere endorsement by the Sub-Registrar is insufficient to establish consideration.

JUDGMENT :- This is a plaintiffs second appeal against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title and for confirmation of possession, or, in the alternative, for recovery of possession. The plaintiff who is an old and illiterate widow impugns the two transactions Exs. A and C dated 31-5-45 and 14-8-45 respectively on the ground that she was never aware of the execution of the documents and she did never convey the properties which were the subject matter of these two documents in favour of the vendees.

The defendants are the vendees and also subsequent transferees from the Vendees, Ex. A is in respect of an area 1.311 which purports to be for a consideration of Rs. 300/- and Ex. C in respect of homestead with an area of .041 which purports to be for a consideration of Rs. 100/-. The defence is that the transactions are bona fide and for consideration and that that suit is hit by the provisions of Article 91 of the Limitation Act and as such is liable to be dismissed on the ground of limitation.

2. The trial Court gave a conditional decree in favour of the plaintiff that she would be entitled to got possession of the properties in dispute only on payment of Rs. 400/- to defendants 1 and 2. The lower appellate Court however, has dismissed the plaintiffs suit and allowed the appeal brought by defendants 3 and 4 mainly on the ground of limitation finding that the suit is governed by the provisions of Article 91 of the Limitation Act.

3. It is to be noted that the plaintiff bad filed a cross appeal before the lower appellate Court against the condition imposed by the trial court for the payment of Rs. 400/-. The lower appellate Court, in the view that he took that the suit was barred by limitation did not think it necessary to consider the cross-appeal at all. So the present second appeal has been brought in respect of the entire suit properties described in the two schedules (Ka and Kha).

4. I must observe at the outset that the lower appellate Court has completely misconceived the nature of the suit. While he was engaged in discussing the question of limitation be was obsessed by the impression that the plaintiff had not made out the particulars of fraud and from the date of the knowledge of fraud she had not come within time to set aside the documents. The real position is whether the documents have been duly executed by the plaintiff at all. She is an old illiterate woman belonging to village in the district of Puri.

The transactions include the homestead and a large acreage also. In order that such 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 woman 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. The lower appellate Court has gone wrong in law in having completely ignored this aspect of the case.

5. Now to prove execution of the documents I find there is no evidence worth the name, the attesting witness to Ex. A has been examined on behalf of the plaintiff as P.W. 1. He stated in his chief that the document was not read over and explained to the executant. In his cross-examination he has given a go by. This witness, who is capable of making contradictory statements, I must say, capable of lying, can never be relied upon by any court of justice.

6. Mr. Roy, appearing on behalf of the respondents, placed before me the evidence of D.W. 2, the scribe of Ex. A. On going through the evidence of this witness, it is not possible for me to place reliance on his evidence, because even though he happens to be the scribe of one document only, he speaks about both the documents being read over and explained to the widow, the executant. He appea