An illiterate person who enters into a transaction is entitled to independent advice and the burden of proving that such advice was given lies on the person transacting with the illiterate person.

JUDGMENT :

P.K. Misra, J. - Defendant No. 2 is the appellant. The suit was filed for declaration that the sale deed dated 31.5.1978 and sale deed dated 10.2.1986 in favour of defendant No. 2 are null and void and further that no title passed thereunder and for confirmation of possession of plaintiff No. 1, or for recovery of possession, and for permanent injunction restraining defendant No. 2 from coming upon the disputed land. In effect, the plaintiffs challenged the sale deeds purported to be executed by defendant No. 1.

2. Plaintiffs 1 and 2 are the two daughters of defendant No. I and plaintiff No. 3 is the son of a pre-deceased daughter of defendant No. 1. It is claimed that Sindhu Das died in the year i 977 leaving his widow (defendant No. 1) and the plaintiffs as his heirs. It is further stated that Sindhu had ancestral property measuring Ac. 1.32-5 decimals in village Tagilo, as described in "A" Schedule of the plaint, which had been gifted to his wife (defendant No. 1) and mutated in her name in Mutation Case No. 42 of 1963-64. It is further claimed that though Sindhu had gifted the property, yet he had not parted with possession of the land and was in enjoyment of the usufructs of the disputed land till his death. After his death, plaintiff No. 1 was in cultivating possession of the disputed land through her husband and was giving usufructs to defendant No. 1. It is further claimed that plaintiffs are the heirs entitled to the property of defendant No. 1 and Sindhu, and they have a right to protect their interest. It is further stated that defendant No. 2 had snatched away an inoperative, void sale deed on 31.5.1978 in respect of Ac. 1.33 decimals of land as described in "B" Schedule by incorporating certain false recitals and without payment of any consideration. The said sale deed had not been read over or explained to defendant No. 1, nor defendant No. 1 had executed the same after understanding its contents. The sale deed had been obtained by exercising undue influence. It is further alleged that similarly in 1986, another sale deed was obtained in respect of 'C Schedule property measuring Ac. 0.49-5 decimals of land. There was no necessity for such a sale deed, nor any consideration had been paid and the sale deed had not been read over and explained to defendant No. 1, nor she had understood the contents thereof. The sale deed was also the outcome of undue influence.

3. The aforesaid suit was filed on 13.4.1987. On 21.8.1987, defendant No. 1 purported to file a written statement containing her thumb impression, wherein it was claimed that the disputed property belonged to defendant No. 1 and she had executed voluntarily the sale deeds in favour of defendant No. 2. Defendant No. 1 expired on 18.9.1987 and since her legal representatives were on record, her name was expunged.

Defendant No. 2 also filed a written statement denying the plaint averments. It was his case that the property had earlier been gifted to defendant No. 1 by her husband in the year 1963 and had been mutated in her name and she was the owner of the property. It is further stated that there was no undue influence and defendant No. I had executed the sale deeds and consideration amount had been paid.

4. The trial Court found that due execution of the documents had not been proved and the sale deeds had been obtained by exercising undue influence. Accordingly, it found that the sale deeds were not binding on the plaintiffs and no title had passed thereunder in favour of defendant No. 2, who was permanently restrained from entering upon the disputed land.

5. In this appeal, it was first contended by the counsel for the appellant that in view of the finding of the trial Court that the disputed properties belonged to defendant No. 1 and were her absolute properties, the alienations in favour of defendant No. 2 could not be challenged by the plaintiffs during the life-time of defendant No. 1. It is contended that if defendant No. 1 would have been a limit