JUDGMENT
K.P. Mohapatra, J.
1. The reversing judgment and decree of the learned Additional Subordinate Judge, Berhampur, dismissing the plaintiff’s suit for declaration that the deed of settlement in respect of the suit land dated 20-6-1962 (Ext. A/5) executed by Baidehi in favour of the defendant-respondent was a fraudulent, inoperative and void document got executed on perpetration of undue influence, for partition, for rendition of accounts and mesne profits, have been assailed in this second appeal. The plaintiff is the appellant.
2. The plaintiff alleged the following facts. Kalu Sahu hud two sons, namely, Gobinda and Nandakishore (defendant). Baidehi was his widow, Gobinda died and his son, the plaintiff was posthumously born. The plaintiff, however, instead of living in the ancestral home, lived with his maternal uncle, practically detached from his uncle, the defendant and grandmother Baidehi. The suit property as was held in First Appeal No. 69 of 1958, disposed of on 22-12-1961, belonged to Baidehi who enjoyed the same in lieu of maintenance and had acquired absolute rights according to the provisions of Section 14(1) of the Hindu Succession Act. Taking advantage of the above finding, the defendant perpetrated undue influence on his own mother who was practically dependent living with him and got the deed of settlement (Ext. A/5) executed by her on 20-6-1962 which was registered in the course on 29-6-1962. At the time of execution of the deed, Baidehi was a very old and illiterate Paradnashin lady and being completely under the influence of the defendant had no independent advice. The contents and recitals of the deed were neither read over nor explained to her and she did not understand the nature and purport of the document. The deed of settlement thus being a void and legally inoperative document did not vest title on the defendant in respect of the suit land. On the other hand, both the plaintiff and the defendant having succeeded to the same are entitled to half share each therein. Accordingly, the plaintiff prayed for partition claiming half share in the suit property with other incidental reliefs.
3. The defendant pleaded that his mother Baidehi had in fact bequeathed all her movable and immovable property including the suit land by executing a will in his favour as long back as on 25-4-1966. Again she executed a deed of settlement in his favour on 20-6-1962 in respect thereof. Although she was living with the defendant, no undue influence or fraud was perpetrated on her. She was neither physically weak nor mentally unstable. She know the nature and purport of the document at the time of execution. As a matter of fact, voluntarily and being fully conscious of the nature and purport of the transfer, she executed and registered the deed of settlement (Ext. A/5) in favour of the defendant and later delivered possession of the property. Thus the defendant having become absolute owner thereof, the plaintiff’s claim for declaration and partition is untenable.
4. The learned Additional Munsif held that the impugned deed of settlement (Ext. A/5) was not a genuine, valid and properly executed document for the following reasons:–
(a) Executant Baidehi was an old lady aged 70 years;
(b) She was wholly dependent on the defendant who was maintaining her and was managing the suit land. She had no independent advice at and prior to the execution of the deed;
(c) No provision was made for her maintenance in the deed of settlement;
(d) Although Baidehi and the defendant were mother and son, there was fiduciary relationship between them;
(e) Two of the witnesses (D.Ws. 3 and 4) stated that Baidehi gave out at the time of execution of the deed that she would be maintained out of the income of the suit land. But no such recital found place in it. It, therefore, goes to show that the deed was not scribed according to her instructions;
(f) There was some variation in the evidence as to the place where the deed was scribed;
(g) A clause in the deed providing maintenance to Baidehi was scored through without her knowledge and consent and thus there was a material alteration of the deed. Baidehi was an illiterate and Paradnashin lady. No certificate was given in the deed by the scribe that the contents of it were read over and explained to her and she understood the same whereafter it was executed by her.
Having held as above, the learned additional Minsif set aside the deed of settlement (Ext. A/5) and decreed the suit for partition with consequential reliefs.
5. On appeal, the learned Additional Subordinate Judge reversed all the findings and held that the deed of settlement (Ext. A/5) was legally executed by Baidehi out of her own free will after knowing and understanding the contents thereof. No undue influence or fraud was perpetrated on her. The deed is, therefore, a legally valid document. Further, the suit was barred by Article 59 of the Limitation Act.
6. Mr. S. S. Basu, learned counsel appearing for the plaintiff-appellant, raised the following contentions :–
(1) The deed of settlement (Ext. A/5) was not a legally executed document by an illiterate Paradanashin lady. Therefore, it was a document void ab initio;
(2) There was material alteration of the deed without the knowledge and consent of the executant rendering it wholly void; and
(3) The executant of the deed having died on 2-11-1970 and the suit having been filed within three years on 28-9-1973 was not barred by Article 59 of the Limitation Act.
Mr. N. Behera, learned counsel appearing for the respondent, on the other hand, supported all the findings of the learned appellate Court stating that the deed was voluntarily executed by Baidehi after fully knowing and under-standing the contents thereof, the alteration was not at all material and did not change the nature of the deed, and the suit was barred by Article 59 of the Limitation Act. He further submitted that in second appeal, findings of fact by the appellate Court based on legal evidence should not be disturbed.
7. It is not disputed and further it is borne out from the evidence that the plaintiff is the grandson of Baidehi and the defendant is her son. The plaintiff, however, alienated himself from his paternal family on account of the fact that from infancy he lived with his mother in the family home of his maternal uncle. For some reason or other there was no love and affection between the parties and even if Baidehi had affection for him, it has not been disclosed in evidence. It is also undisputed that throughout Baidehi lived with the defendant who maintained her till death. She was practically under full control of the defendant and had no independent advice of her own. The evidence of the scribe indisputably shows that she was a pretty old lady around 80 years of age. In Ext. A/5 itself she was described to be aged 70 years. These facts unmistakably show that at the time of execution of the deed, she was a feeble old lady wholly dependent on the defendant who had the advantage of controlling her thought and actions. She had no independent advice of her own.
8. Some peculiar features appear from the evidence of the scribe of the deed (D.W. 1). He stated that at first he prepared a draft of the deed and after the contents were approved by Baidehi, he scribed the deed. The draft, if any, was neither produced nor proved in the suit and is said to have been destroyed. Although the deed according to D.W. 1 was scribed on 20-6-1962, for some unknown reason it was not registered on the same day or on the following day, but was presented for registration on 29-6-1962. At the time of execution, the son of her brother was serving in civil Court at Berhampur, but there is nothing on record to show that she had taken some advice from him. He did not append a certificate which is usually done at the foot of the deed that he had read over the contents of the deed and explained the same to the executant, whereafter having understood the same she put her left thumb impressions in token of execution of the deed. This was very essential requirement which was not complied with. The stamp papers for engrossing the deed were not purchased by the executant Baidehi but by D.W. 1. This was father unusual. The deed was scribed not in the Court premises or in the premises of the registration office, but inside the outer room of the house of the defendant which indicates that some secrecy was manoeuvred at the time of writing the deed and/or its execution. Baidehi is said to have stated to D.W. 1 that long back she had executed a will in favour of the defendant and now she wanted to execute a deed of settlement. It was doubtful whether an old lady like Baidehi understood what a deed of settlement was. Although an explanation was given by D.W. 1 regarding delay for presentation of the deed for registration to the effect that Baidehi wanted to show the document to her brother’s son, yet no attempt was made to obtain his signature on the document. D.W. 3 was an attesting witness to the deed. Some important revelaiions appear from his evidence. He stated that along with the defendant and D.W. 1, he is a member of the trust board of Jagannath Mahaprabhu of the village. This admission shows the relationship of the scribe, the attesting witness and the donee and silently speak a volume with regard to the legality and validity of the transaction. He further staled that the deed was scribed inside the house of Baidehi and not in the outer room of the house of the defendant. The house may be same, but the places seem to be different according to the version of D.Ws. 1 and 3. He made an attempt to show that at the time of execution of the deed Baidehi was not living with the defendant, though the latter was maintaining the former. He did not inform the defendant that his mother was executing a deed of settlement in his favour and in fact he had no talk with the defendant about the matter. According to him, neither in the office of the Sub-Registrar nor in his presence any alteration was made in the deed by the scribe, The Sub-Registrar also did not give any direction to make any alteration. This statement is contrary to the statement of D.W. 1 who stated that at the suggestion of the Sub-Registrar erasure by way of correction of the deed was made. D.W. 2 proved the statement of Baidehi (Ext. 2) in Title Suit No. 211 of 1966 of the Court of the Munsif, Berhampur. She stated that out of her free will she gifted the suit land in favour of the defendant. It was a voluntary act and she was never influenced. The statement was made when she was examined under Order 10, Rule 1, of the Code of Civil Procedure. In dealing with this statement it was rightly held by the learned Additional Munsif that it was neither on oath nor was tested by cross-examination. Over and above, it can well be said that while Baidehi made the statement, she was controlled by the defendant. The first contention of Mr. Basu, therefore, must prevail.
9. Law is well settled that the principles which govern proof of execution of documents taken from Paradanashin woman are equally applicable to documents taken from illiteriate woman. (AIR 1983 Ofissa 172. Brundaban Misra v. Iswar swain. Further in a case of execution of a document by an illiterate Paradanashin woman, burden is heavy on the person getting advangage under the document to establish that the contents of the document were read over and explained to her, she understood them, she had independent advice at the relevant time and that the execution of the document was not only a physical act, but also a mental act. (AIR 1925 PC 204, Mt. Farid-un-nisa v. Munshi Mukhtar Ahmad and (1988) 66 Cut LT 495, Khalli Panda v. Rahas Patro. If the evidence referred to above with regard to the execution of the deed is tested on the touchstone of the settled principles referred to above, it will appear to a trained legal mind that there was a large extent of artificiality in the mode and manner the evidence was tendered. It would appear that the executant was an illiterate old lady who had no independent advice prior to the alienation. She was entirely under the influence of the defendant who obviously had an eye to grab the suit land of which she was the absolute owner. In such circumstances, undue influence and/ or some sort of coercion could not be ruled out. Even though Baidehi might have a very soft corner for the plaintiff, her grandson and she might not have a sincere desire to completely deprive him of the suit land after her death, it was possible that she could not give vent to her inner thought and resist the defendant.
10. Having very anxiously considered the evidence on record, I hold in disagreement with the learned appellate Court and in agreement with the learned Additional Munsif that the deed of settlement (Ext. A/ 5) was not legally executed by Baidehi and was, therefore, a void and inoperative document which did not confer any title in respect of the suit land on the latter.
11. In Ext. A/5 it was recited as an important condition of the deed of settlement that so long the donor was alive, the donee should serve her, The service meant and included maintenance. In other words, the recital was to the effect that so long she was alive, the defendant should maintain her and look after her well being. This was the clear intention of Baidehi, because by executing the deed she was divesting herself of the suit land in respect of which she had absolute interest. She was expected to be fully aware that after the alienation, she had no property of her own to fall back upon. Therefore, her clear intention was that after she divested herself of the suit land, she should be maintained and properly looked after till her death. The importance of this recital in the deed cannot be undermined. But this recital was withdrawn and the deed was corrected. According to the version of the scribe (D.W. 1) and the defendant (D.W. 4) at the instance of the Sub-Registrar, the recital was excluded from the document. There is, however, no evidence in support of their evidence. The Sub-Registrar was not examined to state as to under what circumstances he directed deletion of the recital, if at all he had instructed to that effect. There is also nothing to show that the important recital was deleted from the deed by making alteration with the consent and knowledge of the executant. Taking advantage of this fact, Mr. Basu contended that on account of material alteration of the document, the same became void, if at all it was legally executed by Baidehi in favour of the defendant. In fact this arm of the argument is based on the assumption that the deed (Ext. A/5) was legally executed by Baidehi.
12. In AIR 1926 Bom 491, Namdev Jayram Khole v. Swadeshi Vvapari Mandali Ltd., a Division Bench ruled that changing the date of a surety bond is a material alterarendering the document void. In AIR 1940 PC 160, Nathu Lal v. Mt. Gomti Kuar, it was held as follows:–
“If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance however is not ab initio or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration and so as to prevent the person who has made or authorised the alteration and those claiming under him, from putting the deed in suit to enforce against any party bound thereby who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made.
A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.”
In AIR 1943 All 24, Hardwar Singh v. Hari Parshad Rai, a Division Bench ruled that when any deed is altered in a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by interlineation, addition, erasing, or by drawing of a pen through a line or through the midst of any material word, the deed thereby becomes void. So that even if a single word which is material is erased, it destroys the instrument. The deed thus altered no longer continues the same deed and no person can maintain an action upon it. In AIR 1947 Nag. 145, Pachkodi Gulab Badhai v. Krishnaji a Division Bench held that any change in an instrument, which causes it to speak a different language in legal effect from that which it originally spoke, which changes the legal identity or character of the instrument either in its terms or the relation of the parties to it, is a material change, or technically, an alteration, and such a change will invalidate the instrument against all parties not consenting to the change.
13. It is thus the settled principle of law that a material alteration of a document makes it void. Ext. A/5 suffers from this defect. Material part and recital of the deed was deleted, thereby making it void. I would accordingly accept the contention of Mr. Basu and hold that on account of material alteration Ext. A/5 became a void and inoperative document conferring no title on the defendant.
14. The last point for consideration is whether the suit was barred by Article 59 of the Limitation Act. Article 59 is reproduced below for easy reference :–
Description of suit.
Period of Limitation.
Time from which period begins to run.
59. To cancel or set aside an instrument or decree or for the rescission of a contract.
Three years.
When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract
rescinded first become known to him.”
Article 59 will apply when a suit is filed for cancellation or for setting aside a document which is not void ab initio. If a document is void ab initio and is an illegal document from its very inception it is not required either to cancel or to set it aside by filing a suit, because according to law such a document does not exist. It has been held while deciding the first contention that Ext.A/5 was not a legally executed document by Baidehi and was a void document ab initio, or in other words it did not exist in law. Therefore, by applying Article 59 of the Limitation Act it was not required to cancel or set it aside. This being the position. Article 59 of the Limitation Act is not attracted to the suit. The learned appellate court has rightly observed that the said Article is inapplicable to a document which is void.
15. It is true that the plaintiff had filed Title Suit No. 211 of 1966 during the lifetime of Baidehi for setting aside Ext. A/5. The suit was, however, withdrawn under Order 23, Rule 1, of the Code of Civil Procedure. Whether the action was correct or not is not a relevant consideration at this stage. After the death of Baiclehi, succession to her absolute estate reopened and there was a fresh cause of action for the plaintiff to claim partition. According to Section 15 read with Section 16 of the Hindu Succession Act, the heirs of Baidchi in respect of the suit land are the plaintiff being the son of predeceased son and the defendant son. Both of them arc preferential heirs and take in equal shares. This being the position of law, Article 59 of the Limitation Act is inapplicable and there was a fresh cause of action for the suit after the death of Baidehi in the year 1970 for the plaintiff to claim partition as one of her heirs under Section 15 read with Section 16 of the Hindu Succession Act.
16. In the ultimate analysis, Ext. A/5 is declared to be a void and a legally nonexistent document, and the plaintiff is entitled to a decree for partition in respect of half share in the suit land.
17. Tn the result, the appeal is allowed with costs. The judgment and decree passed by the learned Additional Subordinate Judge are set aside and the judgment and decree passed by the Additional Munsif are restored. Advocate’s fee at Rs. 300/-.