JUDGMENT
M.Y. Eqbal, J.
1. This appeal under Clause 10 of the Letters Patent is directed by the appellant against the judgment dated 26.9.2001 passed in F.A.No. 22/1986(R) whereby learned Single Judge allowed the appeal and set aside the judgment and decree passed by the trial court.
2. Plaintiff-respondents filed suit being Title Suit No. 64/1976 in the court of Sub-Judge, Garhwa for declaration that the deed of gift executed by one Kismati Devi on 2.9.76 in favour of defendant No. 1 is illegal and ineffective and the same did not confer title upon defendant No. 1.
3. The facts of the case lie in a narrow compass:
Kismati Devi was the wife of one Mathura Singh. She died leaving behind four daughters, namely, Brijbas Devi, Mukhraj Devi, Peyari Devi and Jaibas Devi. Her husband alongwith three daughters filed the aforesaid suit against fourth daughter, Brijbas Devi and her husband Rameshwar Prasad Singh for declaration that execution of deed of gift by Kismati Devi was not her conscious act and it was in-operative and ineffective document and did not confer any title upon defendant No. 1, Plaintiffs’ case inter alia is that defendant No. 2, husband of defendant No. 1 manovered execution of gift deed fraudulently. Kismati Devi was seriously ill and was suffering from Cancer. Her condition detoriated day by day and on 30th August 1976 she became unconscious. In the meantime, defendant No. 2 proposed to take her to Varanasi for treatment on the plea that if she did not survive, her last rites would be performed there. On that pretext, she was brought to Garhwa to catch train for Varanasi, but instead of taking her to Varanasi, defendant No. 2 on 2.9.1976 got a deed of gift executed by her at Garhwa and, thereafter, brought her back to the village and announced that he could not arrange sufficient money and so she could not be taken to Varanasi. After few days Kismati Devi expired at village. Plaintiffs’ further case is that defendant No. 2 obtained L.T.I. of Kismati Devi on the deed and for that purpose she was brought on the Varanda of Registry Office, Garhwa in a state of unconsciousness and mother of defendant No. 2 impersonated her before Registrar. The scribe managed the affairs in collusion with staff of the Registration Office.
4. Defendant-appellants contested the suit by filing written statement stating inter alia that deed of gift executed by Kismati Devi was in sound state of mind and she was never seriously ill and was also not suffering from Cancer. Any proposal to take her to Varanasi for treatment or for performing her last rites there on her death was also denied. Defendants further case was that Kismati Devi willingly decided to give her properties to defendant No. 1 who is youngest daughter because she was not economically sound.
5. The trial court after hearing the parties dismissed the suit holding that deed of gift (Ext.1) executed by Kismati Devi in favour of defendant No. 1 was valid and genuine. Learned Single Judge after reappreciation of the entire evidence came to the conclusion that plaintiffs failed to prove that Kismati Devi had executed the deed while she was fully conscious and aware of the contents thereof. Learned Single Judge further held that none of the attesting witnesses came to prove that the deed of gift was executed by Kismati Devi. For better appreciation, paragraph 10 to 15 of the judgment of the learned Single Judge is quoted herein below:
10. Admitted position was that Mathura Singh and Kismati Devi had no male issue and they had only four daughters. The suit properties were Stridhan properties of Kismati Devi. Defendants claimed that Kismati Devi of her own accord decided to make gift of her properties to her youngest daughter, defendant No. 1 and went to Registration Office at Garhwa on 2.9.1976 for the said purpose.
11. In normal course, if Kismati Devi had to go to Registration Office to execute a deed of gift with prior consultation ad agreement with her husband, three daughters and sons-in-law, then she being an illiterate lady, her husband ought to have attested her LTI on the deed of gift and identified her. Absence of her husband, created a doubt.
12. Secondly, none of co-villagers or relatives, including her sons-in-law or daughters were attesting witnesses on the said gift deed; rather three strangers acted as attesting witnesses. Two of them were local Tayeeds and third one was also a resident of different village and very surprisingly none of them came to depose on behalf of the defendants in order to prove execution of Ext.1
13. The Scribe D.W.1 and identifier, D.W.6 cannot be said to be attesting witnesses and, in my opinion, defendants miserably failed to prove execution of the gift deed, Ext.1 by Kismati Devi. It is important to mention here that D.W.6 admitted in his evidence that he purchased part of the suit land from defendant No. 2 and D.W.9 also admitted this fact.
14. In the aforesaid circumstances, I find that plaintiffs failed to prove that Kismati Devi had executed the deed, Ext.1 while she was fully conscious and aware of the contents thereof. None of its attesting witnesses came to prove that actually Ext.1 was executed by Kismati Devi herself.
15. I have, therefore, no option but to set aside the impugned judgment and decree passed by the trial court. The suit is, accordingly, decreed holding that deed of gift dated 2.9.1976 was invalid, ineffective and inoperative document. It did not confer any title upon defendant No. 1 in respect of properties, detailed in Schedule A to the plaint.
6. Mr. Manjul Prasad, Learned Counsel for the defendants-appellants assailed the impugned judgment passed by the learned Single Judge as being contrary to law and facts and evidence on record. Learned Counsel firstly submitted that the impugned judgment passed by learned Single Judge is not in accordance with the requirement as contemplated under Section 96 of the C.P.C. While reversing the judgment of the trial court, learned Single Judge ought to have taken all the materials on record and reasonings given by the trial court. Learned Counsel then submitted that scribe of deed can also be attesting witness and therefore non-examination of attesting witnesses cannot be fatal and it cannot be held that gift deed was not sufficiently proved.
7. On the other hand, Mr. V.K. Prasad, Learned Counsel appearing for the plaintiff-respondents submitted that deed of gift was allegedly executed on 2.9.1976 and two days thereafter, doner Kismati Devi died. After her death when the fact of execution of deed of gift came to the knowledge of the plaintiffs, suit was filed immediately on 22.9.1976. Learned Counsel drawn our attention to the trial court judgment and submitted that the trial court has not at all considered the fact that gift deed was not proved to have been executed by the deceased Kismati Devi.
8. Before appreciating the submissions of the Learned Counsel, I would first like to discuss some of the ratio decided by the Supreme Court and the High Court with regard to onus to prove a document executed by a illiterate lady. Admittedly, Kismati Devi was an illiterate rustic village lady.
9. In the case of “Ruhulla and Ors. v. Hassanalli Degumia” AIR 1928 P.C.-303, their Lordships held that
There is no dispute a to the law, and it may be said that where as in this case the pardanashin lady is illiterate, the Court will be especially alert to see that the burden cast on those supporting her disposition is satisfactorily discharged.
10. In the case of “Most. Kharbuja Kuer. v. Jangbahadur Rai and Ors.” , the Supreme Court considered the principle with regard to burden proof of a document executed by a pardanashin or illiterate lady. Their Lordships observed:
5. It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India pardahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad 52 Ind App 342 at. p.350 : AIR 1925 PC 204 at p.209, Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed:
In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.
The learned Lord also points out:
Of course fraud, duress and actual undue influence are separate matters. It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as, fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.
11. In the case of “Satyadeo Prasad v. Smt. Chanderjoti Debi and Ors.” , Patna High Court also considered similar question and held as under:
Village Bhatpar Rani falls within the jurisdiction of two Registration offices, namely, Deoria and Gorakhpur. Deoria is at a distance of about 18 miles from Bhatpar Rani, whereas Gorakhpur is at a distance of 40 miles. It is not known why the deed of partnership, instead of being presented for registration at Deoria Registration office, was presented before the Registrar of Gorakhpur. From all these facts, I agree with the finding of the learned Sub-Ordinate Judge that the partnership deed was executed without explaining contents thereof to the plaintiff. It is also too well established principle of law that those who want to take advantage of a document executed by a purdanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences, and that she had independent advice in the matter. In such a case, the burden is always, in the first instance, on the person founding on that document to show that the grantor intelligently understood the deed, and if they fail to establish that point, then the document is not binding on the executant or any one else and is void ab initio. If any authority is needed, reference may be made to the decisions in Sabitri Thakurain v. Mrs. F.A. Savi A.I.R. 1933 Patna 306 at p.326; Hirday Narain v. Baburam A.I.R 1941 Oudh 172 and Bank of Khulna Ltd. v. Jyoiti Prakash Mitra AIR 1940 PC 147. In my opinion, therefore, the statements referred to above made in Ext.M are not binding on the plaintiff.
12. In the case of “Brundaban Misra v. Iswar Swain and Ors.” , while considering the same issue the Court held that where persons seeking benefits in gift deed executed by illiterate woman heavy onus lay on the party to prove the document. The Court held:
Keeping in view the principles enunciated in the aforesaid decisions, the validity or otherwise of Ext.3 may now be considered. The plaintiff has examined himself and P.W.2 one of the attesting witnesses. Initially both of them stated that Keli Dibya was in good and normal health at the time of execution of Ext.3. But in cross-examination both of them admitted that Keli Dibya was suffering from arthritis on account of which her hands were trembling. In his evidence the plaintiff has said that at the time of execution of Ext.3 Keli Dibya was 50 years of age. According to P.W.2 at that time Keli Dibya was 72 years’ old. Thus the plaintiff and P.W.2 have not merely contradicted each other as regards the age of Keli Dibya at the time of execution of Ext.3, their statements cannot be accepted as true in view of the clear recital in Ext.3 itself that at that time Keli Dibya was 85 years of age. It is also worthy of note that in Ext.B, petition dated 31.12.1969 filed by the plaintiff in the 144 Cr.P.C. proceeding, it has been stated that Keli Dibya died 22 days prior to the date of petition i.e. on 9.12.1969. Thus Keli Dibya died only two and half months after execution of Ext.3. In these circumstances it has been rightly observed by the learned lower appellate court that in spite of the evidence of the plaintiff and P.W.2 that Keli Dibya was in good health at the time of execution of Ext.3 it would appear that due to extreme old age Keli Dibya could not have understood the nature and contents of Ext.3 under which she was going to be deprived of her entire property. It is also significant that in Ext.3 itself there is no mention at all that Keli Dibya was executing the deed in exercise of her independent judgment without any coercion or under influence from any quarter. P.W.2 is the only attesting witness who has been examined and he has admitted that he has deposed against defendants 1 to 9 in several criminal and civil cases. Thus P.W.2 cannot be said to be an independent witness. There is no other independent evidence to corroborate or support the evidence of P.W.2. Neither the other attesting witness nor the scribe has been examined by the plaintiff. I would therefore agree with the learned lower appellate court that the plaintiff has failed to prove that Keli Dibya knew the contents of Ext.3 and executed it with full knowledge of its effects and consequences and had exercised her independent and free judgment without any undue influence or coercion. Ext.3 has been rightly held to be invalid and void.
13. Coming back to the instant case, as noticed above, admittedly, the doner Kismati Devi was an illiterate old village lady having four daughters. It was the specific case of the plaintiffs, three daughters that husband of the youngest daughter procured deed of gift in favour of the fourth daughter from the executants who was in unconscious state of mind. Admittedly, no attesting witnesses have been examined to prove the document. We have meticulously and minutely perused the original gift deed (Ext.1).
14. Curiously enough, the person who identified LTI of the executants has simply put his signature. There is no whisper in the deed of gift that contents of the document was read over and explained to the executants who after fully understanding the contents of the same put her LTI on the said documents. Learned Single Judge has rightly observed that in normal course if Kismati Devi had to go to Registration Office to execute a deed of gift with prior consultation with her husband and three daughters and sons-in-laws, then she being illiterate lady her husband ought to have attested her LTI on the deed of gift and identified her. Absence of her husband created serious doubt on the genuineness of the transaction. Learned Single Judge further held that none of the co-villagers or relatives including her sons-in laws were attesting witness on the said gift deed, rather three strangers acted as attesting witnesses.
15. Considering the entire facts and circumstances of the case, we fully agree with the finding recorded by the learned Single Judge in holding that deed of gift did not confer any right title or interest upon the donee.
16. In course of argument, it was brought to our notice that during the pendency of the suit defendant No. 1 in whose favour gift was made died and immediately after her death defendant No. 2 who is the husband, sold most of the suit properties. This also cast serious doubt on the case of the defendants that suit property was gifted by Kismati Devi in favour of her 3rd daughter-defendant No. 1.
17. Having regard to the entire facts of the case, we do not find any merit in this appeal, which is, accordingly, dismissed. However, there shall be no order as to costs.