JUDGMENT :

A.K. RATH, J.

1. Defendants are appellants against a reversing judgment.

2. Mst. Dulana, predecessor-in-interest of the respondents, as plaintiff instituted the suit for a declaration that the registered gift deed dated 12.6.1985 is void, confirmation of possession or in the alternative for recovery of possession, if she is dispossessed from the suit land and permanent injunction.

3. An area of Ac. 8.51 dec. of land appertaining to Khata No. 169/107 and Ac. 0.15 dec. of land appertaining to Khata No. 127 of Mouza-Marjakud, District-Boudh is the subject-matter of dispute. Case of the plaintiff is that the suit land belonged to her father. After the death of her father, she succeeded to the same. She was issueless. She brought defendant no. 1 to her house to look after the cultivation. Gradually defendants shifted their family members to her house. They used to reside in the suit house. She was a rustic illiterate woman. Defendant no. 1 and his father brought the plaintiff to Boudh to execute the mortgage deed for securing a loan from the Government. On the pretext of mortgage, they managed to execute the gift deed on 12.6.1985. She could know the same on 18.4.1987, when the defendants 1 and 2 approached the settlement authorities. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

4. Defendants filed a written statement stating, inter-alia, that the plaintiff was an intelligent woman. She was able to read and write Oriya. She alienated Ac. 4.41 dec. of land to one Rama Majhi by means of a registered sale deed dated 24.10.1959, vide Ext.B. She was treating defendant no. 1 as son. She had incurred a loan from the Cooperative Bank, Athamallik. As a friendly gesture, defendant no. 2 gave her Rs. 10,000/- to repay the loan. She brought defendant no. 1 to her house. She was looked after by defendant no. 1. She executed the gift deed in favour of defendant no. 1 and delivered possession. The gift deed was acted upon.

5. Stemming on the pleadings of the parties, learned trial court framed eleven issues. Parties led evidence, both oral and documentary. Learned trial court dismissed the suit holding, inter-alia, that the plaintiff purchased the stamp papers on 10.6.1985 and instructed the scribe to scribe the deed. She put her signature in the registered sale deed executed by her in favour of one Rama Majhi in the year 1959, vide Ext.B. She put her signature in the gift deed dated 12.6.1985, vide Ext.A. She was not an illiterate Paradanashin lady. The plaintiff had failed to prove fraud. The gift deed had been acted upon. The plaintiff was in sound disposing state of mind. She executed the gift deed out of her own volition and will. Gift deed is a valid one. Defendant no. 1 has right, title and interest over the suit land. Donee is in possession of the land and house. Felt aggrieved, the legal heirs of the plaintiff filed Title Appeal No. 4 of 1993 before the learned District Judge, Phulbani. Learned appellate court came to hold that so, this court is of the view that Dulana was a self-styled illiterate lady, devoid of getting independent advice although. Defendant nos. 1 and 2 have not breathed a word that the gift deed was explained to Dulana before she put her signature. Fraud had been practised on the donor. Placing reliance on the decision of this Court in the case of Krushna vs. Kami, 1988 (2) OLR 582, learned appellate court allowed the appeal. It is apt to state here that during pendency of the suit, the sole plaintiff died, whereafter her legal representatives have been substituted.

6. The second appeal was admitted on the following substantial question of law:

“Whether the lower appellate court committed error in holding that the doner of the properties under Ext.A was a paradanashin lady which was contrary to the evidence on record and therefore wrong in decreeing the plaintiff’s suit.”

7. Heard Mr. D.P. Mohanty, learned counsel for the appellants and Mr. R.K. Mohanty, learned Senior Adv