In a transaction involving an illiterate person, the burden of proof lies on the person seeking to sustain the transaction to establish that the document was executed after clearly understanding the nature of the transaction.

JUDGMENT :

G.B. Pattnaik, J. - Defendant is the appellant against an affirming decision in a suit for declaration of title, confirmation of possession and injunction in respect of the disputed land measuring Ac.2 .00 1/2 decimals in mauza Pandiakera and Bagipada as per the schedule appended to the plaint.

2. Plaintiffs case in nutshell is that he was the exclusive owner in possession of the suit land. But on account of his old age as he found it difficult to manage the settlement work himself, he decided to authorise the defendant who happens to be his sister's son to look after the settlement operation on his behalf. For that purpose he intended to execute a power-of-attorney in favour of the defendant on 12-8-1972. He came to Sakhigopal and registered the document. The document was scribed by a Deed Writer of the choice of the defendant and plaintiff in good faith executed the same believing it to be a power-of- attorney. On 10-10-1977, when defendant threatened to interfere with the plaintiffs possession, the plaintiff enquired and found that the document executed by him was a sale deed and not a power-of-attorney. Therefore, the plaintiff filed the suit.

3. The defendant in his written statement resisted the suit on the ground that the settlement operation had taken place long prior to the execution of the deed and, therefore, the plaintiff's case that ha wanted to execute a power-of-attorney is nothing but a myth. It is further contended that to meet the domestic necessity the plaintiff consciously executed the sale deed in favour of the defendant after receiving the consideration from the defendant and the said sale deed was scribed according to the plaintiff's instruction by a Deed Writer with whom the plaintiff had previous acquaintance and plaintiff knew the contents of the same before execution and, therefore, the sale deed executed by the plaintiff in favour of the defendant conveyed valid title to him.

4. On these pleadings, the learned Trial Judge framed five issues and on considering all the issues together, he came to hold that Ext. A is a document which is neither valid nor binding and the defendant does not acquire any title on the basis of Ext. A and the plaintiff did not execute the document after the document was read over and explained to him and after he knew the contents thereof. With these findings, the Trial Judge having decreed the plaintiff's suit and having restrained the defendant carried the matter in appeal.

5. The lower appellate Court re-considered the entire evidence on record and after analysing the evidence adduced on behalf of the defendant came to hold that the evidence of the defendant is not trustworthy. Then on consideration of the other materials on record including the plaintiff's evidence, the lower appellate Court came to hold that the plaintiff was an illiterate man and was very much old and was dependent upon the defendant for the smooth management of his affairs. With regard to the question as to whether the document (Ext. A)was read over and explained to the plaintiff whereafter he executed the same, the lower appellate Court came to hold that there is no cogent evidence Ied by the defendant on that score and, therefore, it could be safely held that the defendant did not derive any title on the basis of the execution of Ext. A. With these conclusions, the lower appellate Court having dismissed the appeal and confirmed the judgment and decree of the Trial Judge, the present second appeal has been preferred.

6. Mr. Rath appearing for the appellant raises a question of law in assailing the concurrent judgments of the two Courts below to the effect that the plaintiff having alleged fraud and having failed to establish fraud, the plaintiff's suit is bound to fail, inasmuch as it is well-settled position that one who alleges fraud must establish the same. He further urges that the said allegations of fraud not having been established, the burden will never shift to the defendant to further