The need for precise pleading of fraud and misrepresentation, and the burden of proof to show understanding of the nature and effect of the executed deeds.

JUDGMENT :

A.K. Rath, J.

These are appeals against the common judgment dated 29.4.1989 of the learned District Judge, Sundargarh.

2. Plaintiffs-appellants instituted T.S. No.56 of 1984 in the court of the learned Subordinate Judge, Sundargarh for declaration of the gift deed no.230/82 dated 10.2.82 executed in favour of the defendant-Ashok Kumar Patel as null and void. The case of the plaintiffs is that plaintiff no.1 is the husband of plaintiff no.2. Plaintiff no.1 was suffering from T.B. The plaintiffs were in search of a suitable person to look after their comforts during their old age and to manage the affairs of their properties. The defendant, who is the brother’s son of plaintiff no.2 and his wife, Bharati came forward to look after them. Bharati is the daughter-in-law of plaintiff no.1’s younger brother. The plaintiffs requested the defendant and his wife to live in their house and look after them. But the defendant and his wife insisted upon to transfer some properties to them and execute a deed in their favour. The plaintiffs intended to execute a will in favour of the defendants in a feeble state of mind. But then, the defendant and his wife with the help of their close relatives obtained two gift deeds on 10.2.82. The contentions of the gift deeds were not read over and not explained to them. They signed on those documents in good faith with an impression that those documents were wills. Thereafter they mutated the land in their favour. Plaintiffs never intended to execute gift deeds in favour of the defendant and his wife. They cancelled the gift deeds on 25.8.83. With this factual scenario, they instituted the aforesaid suit seeking the relief’s mentioned supra.

3. The defendant entered contest and filed written statement. It was pleaded that the plaintiffs were issueless. They develop intense love for Bharati, daughter-in-law of plaintiff no.1’s younger brother, from her childhood. Bharati brought up in the house of the plaintiffs. They treated Bharati as their daughter. They performed the marriage of Bharati with the defendant, who is the brother’s son of plaintiff no.2. The plaintiffs out of their own accord and free will executed two gift deeds in their favour, so that they could lead a blissful marital life. The marriage of the defendant was solemnized in the house of the plaintiffs. The suit land was mutated in the name of the defendant and his wife at the instance of plaintiff no.1. After marriage, the defendant and his wife looked after the comforts of the plaintiffs. It was further pleaded that plaintiff no.1 had not suffered from T.B. Defendant and his wife were 23 years and 19 years old respectively when the gift deeds were executed. No fraud was practised upon the plaintiffs.

4. The plaintiffs have also instituted T.S. No.57 of 1984 in the same court seeking for a declaration that the gift deed no.231/1982 dated 10.2.82 executed in favour of Bharati Patel, w/o-Ashok Kumar Patel as void. The defendant entered contest and filed a written statement. The pleading in the suit is same as that of earlier suit. It is apt to state here that during pendency of the appeals, both the appellants died. Their legal heirs/representatives have been substituted on the basis of a will said to have been executed by the appellants during their life time.

5. Stemming on the pleadings of the parties, learned trial court struck issues. Both the suits were heard analogously. Parties led evidence. Learned trial court came to hold that P.W.1 does not know English. From the signature of P.W.1, it appeared that he was able to sign his name. His wife, plaintiff no.2, is an illiterate woman. There is no mention in the gift deeds that Bharati was treated like the daughter and was brought up in the house of the plaintiffs. The plaintiff no.1 had five brothers. There is no evidence that plaintiff no.1 had ill feeling with his brothers. The defendants could not say the details of the property gifted to him. Bharati’s behaviour with the plain