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2018 Supreme(Ori) 197
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Maguni Charan Dey - Appellant
Versus
Ujaimani Dei & others - Respondents
S.A. No. 1 of 1989
Decided On : 23-04-2018
Advocate Appeared:
For the Appellant : Mr. Manoj Kumar Agarwal, Adv.
The burden of proof rests on the party seeking to uphold a transaction with an illiterate person to establish that the person clearly understood and concurred with the contents of the document before executing it.
Headnote:
sale deeds - ownership dispute - Mst. Kharbuja Kuer v. Jang Bahadur Rai and others, AIR 1963 SC 1203; Somanath Misra v. Narahari Das and others, Vol. XLIV 1977 CLT 26
Fact of the Case:
Plaintiff claimed ownership of land through sale deeds, while defendant no.1 disputed the execution and delivery of possession. Trial court decreed in favor of plaintiff, but the appellate court reversed the decision.
Finding of the Court:
Appellate court's finding that the sale deeds were not executed with the intention of conveying title and that possession was not delivered was set aside. The suit was decreed in favor of the plaintiff.
Issues: Dispute over execution and delivery of possession of sale deeds, application of principles of law relating to illiterate and pardanashin ladies, inconsistency in defendant's written statement, evidentiary value of mutation order, and onus of proof.
Ratio Decidendi: The burden of proof rests on the person seeking to sustain a transaction with an illiterate person to establish that the document was executed after the person clearly understood the nature of the transaction. Due execution of a document by an illiterate person requires establishing that the contents were read over and explained to the person and that the person understood and concurred with the contents before affixing their signature or mark.
Final Decision: The impugned judgment was set aside, and the appeal was allowed, decreeing the suit in favor of the plaintiff.
JUDGMENT :
A.K. Rath, J.
Plaintiff is the appellant against a reversing judgment in a suit for permanent injunction, recovery of documents and damages.
2. Case of the plaintiff is that defendant no.1 was the owner in possession of the land appertaining to Khata No.124, Plot No.411 Ac.0.61 decimals in Village-Kanhupur, District-Balasore. She executed two registered sale deeds dated 28.2.1977 and 24.2.1981 in favour of the plaintiff in respect of the area of Ac.0.36 dec. and Ac.0.25 dec. respectively for valid consideration and delivered possession. After purchase, he mutated the suit land in his favour. He is in possession of the suit land. On 4.6.1984 while he was returning from Nilgiri Kacheri, all the defendants detained him near the house of defendant no.5, forcibly took away the sale deeds, rent receipts and other documents. He reported the matter to the police, but to no avail.
3. The defendants entered contest and filed the written statement denying the assertions made in the plaint. It is pleaded that the suit land originally belonged to Jagabandhu Pradhan, father of defendant nos.1 and 5. Defendant no.6 is the husband of defendant no.1. Their mother pre-deceased their father. Defendant no.1 had no absolute title over the suit property. She is a pardanashin illiterate woman. The plaintiff is a moneylender. She approached him to lend money. The plaintiff asked her to execute the sale deeds by way of security on the condition that on repayment of the loan amount with interest, he would return the documents. Neither she sold the suit land nor delivered possession of the same to the plaintiff. After repayment of money, the plaintiff returned the documents to her. She is in possession of the land. She is paying the rent. The plaintiff mutated the land in his favour clandestinely.
4. On the inter se pleadings of the parties, learned trial court framed nine issues. Both the parties led evidence. Learned trial court decreed the suit holding, inter alia, that the sale deeds dated 28.2.1977 and 24.2.1981, vide Exts.1 and 2 respectively, are genuine documents executed by defendant no.1 in favour of the plaintiff. Possession was delivered to him. The plaintiff has right, title and interest over the suit property. Defendants have never mortgaged the suit property in favour of the plaintiff. The mutation order passed by the Tahasildar is binding on the defendants. The plaintiff is not entitled to damages. Felt aggrieved, defendant no.1 filed M.A No.46 of 1986-I before the learned District Judge, Balasore. The appellate court placing reliance on the decisions of the apex Court in the case of Mst. Kharbuja Kuer v. Jang Bahadur Rai and others, AIR 1963 SC 1203 and this Court in the case of Somanath Misra v. Narahari Das and others, Vol. XLIV 1977 CLT 26 held that defendant no.1 is an illiterate woman. The contents of the documents had not been read over and explained to defendant no.1 and that she understood the contents thereof. The plaintiffs had failed to prove that the execution of the sale deed in question was the mental act of the defendant no.1. He failed to produce the sale deeds from his custody. No delivery of possession was made. Held so, it allowed the appeal.
5. The second appeal was admitted on the substantial questions of law enumerated in ground nos. B, C, D, E, F and G of the appeal memo. The same are -
“B. For that the learned appellate court erred in law in applying the principles of law relating to documents executed by illiterate and paradanashin ladies to the fact of the present case though in view of the evidence on record it could not be found that the defendant no.1 was an illiterate lady much less a paradanashin lady.
C. For that in view of the clear proof and finding that the husband of defendant no.1 was present at the time of execution and registration of the documents it could not be said that in fraud whatsoever was practised on the defendant no.1 by the plaintiff.
D. For that the learned appellate court erred in l
