An illiterate purdanashin lady in mourning for her deceased husband cannot be presumed to have voluntarily and consciously executed a deed of gift, and the burden of proving otherwise lies heavily on the person getting advantage under the document.

JUDGMENT :

K.P. Mohapatra, J. - Title Suit No 65 of 1971 was instituted by Respondent No. 5 against the Appellants, Respondents 1 and 2 and their husbands, Respondent No. 3 and some others for issue of permanent? injunction. Title Suit No. 66 of 1971 was also instituted by Respondent No. 5 against Respondents I, 2, their husbands and Respondent No. 3 for recovery of possession of immovable property. Title Suit No. 8 of 1972 was instituted by Respondents 1 and 2 against the Appellants and other Respondents for partition of schedule ?Ka? property which is also involved in the two other suits. The suits came up for hearing before the learned Subordinate Judge, Aska analogously and while he dismissed the previous two suits, he passed a preliminary decree for partition in that later suit defining the shares of Respondents 1 to 5 and further directing the lands alienated in favour of 3rd. party purchasers, Respondents 6 to 9 should be apportioned to the shares of the vendors. While passing the decree, two deeds of gift in respect of two different parcels out of the suit land in favour of the Appellants executed by Respondents 3 and 5 were set aside. The present appeal was preferred by the donees of the aforesaid two deeds of gift.

2. Shorn of unnecessary details, the following facts which were not disputed may be stated. The suit land belonged to Jata Panda. Respondent No. 3 is his widow and Respondents 1. 2 and 4 are his three married daughters. Respondent No. 5 is the natural born son of Respondent No. 4. The Appellants are the nephews of Jata Panda. When he was alive and was exclusively in possession of the suit land. Jata Panda executed a deed acknowledging adoption in favour of Respondent No. 5 on 11-11-1968. He died on 3-2-1969. On or after the 10th. day of the Sradha of Jata Panda two .deeds of gift came into existence in respect of two different parcels out of the suit land. One of the gift deeds was purported to have been executed by Respondent No. 3 in favour of her two daughters, Respondents 1 and 2 and the second deed of gift was purported to have been executed by Respondents 3 and 5 in favour of the Appellants.

3. The dispute amongst the widow, daughters, Respondent No. 5 and the Appellants centres round the deed acknowledging adoption (Ext. 1) dated 11-11-1968 and the deed of gift (Ext. B) dated 12-12-1969. It is the case at Respondents 3, 4 and 5 that Respondent NJ. 5 had been adopted as son by Jata Panda. This fact, however, has been denied by Respondents 1 and 2 and the Appellants. According to them, there was no adoption? ceremony and the act of giving and taking connected with it. Further, the Appellants have averred that on the 10th. day of the Sradha of Jata Panda, Respondent No. 3 executed a deed of gift in their favour in respect of the specific land out of the suit land and so they are entitled to hold the gifted land as donees. With regard to this gift, the case of Respondents 3 and 5 is that the deed of gift was not at all executed by the former. On the other hand, while she was in mourning on account of death of her husband and when all male relations of the family had gone to the burning Ghat for performance of Dashah, the Appellants by perpetration of force and fraud took her thumb impressions on blank stamp papers which were subsequently manufactured into a deed of gift. That is why she did not attend the office of the registration officer for registration of the document.

4. The learned Subordinate Judge held that Respondent No. 5 was legally adopted by Jata Panda, the deed of gift (Ext. B) purported to have been executed in favour of the Appellants was not a legal and valid document voluntarily executed by Respondent No. 3, but on the other hand, her thumb impressions were obtained by force on blank papers and subsequently a deed of gift was manufactured; in the event of partition Respondents 1 to 5 have defined shares in the suit land left by Jata Panda and accordingly the learned Court passed a prelimin