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IN THE HIGH COURT OF ALLAHABAD
V. N. KHARE
MALLO - Appellant
Versus
BAKHTAWARI - Respondents
Second Appeal 3323 Of 1978
Decided On : 12/18/1984
GIFT DEED - VALIDITY - BURDEN OF PROOF - PARDANASHIN LADY - ILLITERATE WIDOW - ATTESTATION - FRAUD - CANCELLATION OF GIFT DEED.
Fact of the Case:
Plaintiff-respondent filed a suit for cancellation of a gift deed executed by her in favor of defendant-appellants, her three married daughters, alleging that the gift deed was obtained by fraud and undue influence and that she was not aware of the contents of the document.
Finding of the Court:
The court held that the burden of proof was on the defendant-appellants to prove that the gift deed was valid and that the plaintiff-respondent understood the nature of the transaction. The court also held that the plaintiff-respondent was an illiterate widow and that the gift deed was not read over and explained to her before she executed it. The court further held that the defendant-appellants failed to produce the attesting witnesses of the gift deed and that the plaintiff-respondent was not aware of the contents of the document.
Issues: 1. Whether the burden of proof was on the defendant-appellants to prove that the gift deed was valid and that the plaintiff-respondent understood the nature of the transaction. 2. Whether the plaintiff-respondent was an illiterate widow and that the gift deed was not read over and explained to her before she executed it. 3. Whether the defendant-appellants failed to produce the attesting witnesses of the gift deed and that the plaintiff-respondent was not aware of the contents of the document.
Ratio Decidendi: 1. The court held that the burden of proof was on the defendant-appellants to prove that the gift deed was valid and that the plaintiff-respondent understood the nature of the transaction because the plaintiff-respondent was a Pardahnashin lady and an illiterate widow. 2. The court held that the plaintiff-respondent was an illiterate widow and that the gift deed was not read over and explained to her before she executed it because the plaintiff-respondent consistently stated on oath that the document was not read over and explained to her before she was made to put her thumb impression thereon. 3. The court held that the defendant-appellants failed to produce the attesting witnesses of the gift deed and that the plaintiff-respondent was not aware of the contents of the document because the defendant-appellants did not prove the document by other evidence, direct and circumstantial that the document was read over and explained to the plaintiff at the time of execution.
Final Decision: The court dismissed the second appeal and upheld the decision of the appellate court, which had decreed the suit and cancelled the gift deed.
( 1 ) WHEN this second appeal was heard it appeared that the parties may settle the dispute by negotiated compromise. Since no compromise was arrived at I proceed to dispose of the appeal on its merit.
( 2 ) THIS second appeal arises out of suit filed by plaintiff-respondent for cancellation of gift deed dated 1-8-1974 registered on 20-9-1974 with respect to the property detailed at the foot of the plaint partly situate in village Bilsoori and partly in village Derha, Pargana Sikandarabad, District Bulandshahr.
( 3 ) IN brief the plaint. allegations were that the defendant-appellants, Mst. Mallo, Mst. Narain and Mst. Kalawati are the three married daughters of plaintiff-respondent, Mst. Bakhtawari. The plaintiff is the widow for last 30 years. The defendant-appellant, Mst. Mallo on 30-7-1974 came to the plaintiffs house along with her husband and asked her to move an application for giving her entire land to all the three daughters equally after her death and for that purpose took her to Sikandarabad on 1-8-1974. At Sikandarabad Mst. Malloo and her husband Jaspal Singh, in collusion with the scribe obtained the plaintiff-respondents thumb impressions on several papers on the pretext that those documents were required in order to give equal share to all the three daughters after her death. After sometime Mst. Mallo and Jaspal Singh went to plaintiff, village Bilsaori and asked plaintiffs husbands brother to give possession over the land alleging that the plaintiff had already gifted the entire land in her favour. The plaintiff further alleged that the attesting witnesses Chandra Pal and Vir Narain are not the residents of the plaintiffs village nor the plaintiff has any knowledge of them. The plaintiff further alleged that the gift-deed in question was not read over and explained to her and she was under the impression that she was putting her thumb impressions on the documents which shall give the property in question equally to all her three daughters after her death.
( 4 ) THE defendant-appellant Mst. Mallo filed written statement and denied the plaint-allegations. The defendant-appellant pleaded that she was looking after the plaintiff and, therefore, the plaintiff wanted to gift her entire property to her and for that purpose the plaintiff executed the gift-deed in question on her own free will. No fraud was ever played over the plaintiff for executing the documents in the defendants favour. The gift deed is valid and effective. Apart from this other pleas were also taken.
( 5 ) THE learned Munsif-framed several issues and decided the material issues against the plaintiff. The learned Munsif held that the gift-deed was not obtained by fraud as alleged in the plaint and the gift deed is valid. In view of the above finding the suit was dismissed.
( 6 ) ON appeal by the plaintiff, the Appellate Court allowed the appeal and decreed the suit as prayed for by the plaintiff-respondent.
( 7 ) LEARNED counsel for the defendant-appellant urged that the appellate Court has erroneously cast burden of proof on the defendant for proving that the document is really a valid gift-deed. Argument of the learned counsel for the appellant is that the allegation of plaintiff that she never meant execution of the gift-deed while she put her thumb impressions on the document, the burden of proof was on her. It is undisputed fact that the plaintiff is a widow for last 30 years and is also illeterate. In view of the two undisputed facts it is to be seen as to whether the burden of proof in regard to the validity of the gift-deed rests upon the defendant or on the plaintiff.
( 8 ) IN case of any transaction by Pardahnashin lady the burden of proof is always on the person who seeks to sustain a transaction entered into a Pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction and this burden can only be discharged only by proving that the document was expla
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