The burden of proof lies with the defendants to establish the understanding and willingness of an illiterate or pardanasheen woman in executing a document.

This appeal, under Section 100 of the C. P. C. has been preferred against the judgment and decree dated 27-8-2001 passed by Civil Judge (S. D.) Roorke thereby dismissing First Appeal No. 5/2001, Smt. Rabiya v. Ali Hussain & others, thereby con firming the judgment and decree dated 19-1-2001 passed by Civil Judge (J. D.) dismissing Suit No. 155/96, Smt. Rabiya v. Ali Hussain & others.

2. Brief facts of the case are that plaintiff /appellant filed a suit against the defendants/ respondents for cancellation of sale deed dated 10-5-1995, registered in Sub Registrar Office, Jagadari, Roorkee, at Bahi No. 1, Zild 02, 25 on 22-5-1995. According to the plaint case the plaintiff Smt. Rabiya inherited the property, shown in the Schedule of property given at the foot of the plaint, from her father late Sri Ahamad and now she is owner in pos session of the said land. The defendant Nos. 1 and 3, Ali Hassan and Abdul Hassan, re spectively are the sons of her great grand father and Smt. Raqiba, defendant No.

2, is the wife of Ali Hassan (defendant No. 1 ). The defendant No. 1, in order to grab the property of the plaintiff, got prepared forged power of attorney, in the name of the plaintiff on 25-4-1995. Thereafter, the defendant No. 1, Ali Hassan, on the basis of forged power of at torney, also got prepared forged sale deed with regard to the property belonging to the plain tiff for a consideration of Rs. 1,50,000/- on 10-5- 1995 in favour of defendant Nos. 2 and 3 and also got it registered. According to the plaintiff the sale price of the disputed land in any manner could not be less than Rs. 3,00,000/ -. In the sale deed the witness Tosheef is the man of the defendants and scribe is the Clerk Advocate Asif Ali. It is also alleged in the plaint that there is no recital that who had actually received the sale con sideration of Rs. 1,50,000/ -. The further as sertion of the plaintiff is that she is in actual possession of the disputed land and the forged sale deed was never acted upon. She also al leged that Roorkee Tehsil is nearer to her village and there was no occasion for her to pre pare power of attorney instead of registering the sale deed directly. Therefore, the plaintiff sought a decree for cancellation of sale deed allegedly obtained by playing fraud.

3. The defendant No. 1 contested the suit by filing written statement and admitted this fact that the plaintiff inherited the disputed property from her father late Sri Ahamad, but he alleged that the said property remained in his possession and used to plough, to sow and to harvest the crops over it upto 15-5-1995. Thereafter the disputed land was handed over to defendants 2 and 3. According to him, the plaintiff lives in her Sasural in village Ikkar which is about 30 kilometers away from vil lage Landhora. Her husband is a labour by profession and he often used to go to Haryana and Punjab and the plaintiff also accompany him. Therefore, the disputed land was being looked after by the defendant No. 1. The de fendant No. 1 used to give her half of the crops obtained from the disputed land, but the plain tiff was not satisfied with it she directed him to search for a purchaser of the said land and also asked him for preparation of a power of attorney. In the month of April 1995 die plain tiff had come Roorkee for preparation of power of attorney and its registration but there it was informed that the Collector had for bidden for doing registration of power of at torney and for that purpose permission of Collector was necessary. At this the plaintiff suggested that he should visit Jagadari where she will execute power of attorney in his fa ther. Thereafter on 25-4-1995 the plaintiff got executed power of attorney in favour of de fendant by free consent empowering the de fendant No. 1 to act on her behalf. Before its execution the contents of power of attorney were read over and explained to the plaintiff /appellant in presence of witnesses of power of attorney namely Shri Rati Ram and

Click Here to Read the rest of this document