Dismissed

Rukmani v. Rahas

Orissa HC16 Apr 2018SA/157/1995

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed an appeal against a judgment confirming the validity of a sale deed. The appellant, an elderly woman, claimed fraud, alleging the document was a sale deed disguised as a power of attorney. The High Court upheld the lower appellate court's finding that she was neither illiterate nor a pardanashin lady, as she was capable of verifying and distinguishing documents.

What did the court decide?

The appeal was dismissed; the judgment of the lower appellate court confirming the validity of the sale deed was upheld.

Rukmani Vs Rahas — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.157 of 1995

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From the judgment and decree dated 27.4.1995 and 9.5.1995 respectively passed by Sri P.B. Pattnaik, learned Addl. District Judge, Jajpur in T.A. No.54 of 1992 reversing the judgment and decree dated 18.9.1992 and 24.9.1992 respectively passed by Sri S. Roulo, learned Subordinate Judge, Jajpur in T.S. No.240 of 1986.

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Rukmani Dei (since dead) through L.Rs.

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………..…… Appellants

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---versus—

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Rahas Bihari Baral and others

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Rahas Bihari Baral and others ……………… Respondents For Appellants : Mr. Abhijeet Pal, Advocate For Respondents : Mr. S.N. Mishra, Advocate

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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---------------------------------------------------------------------------Date of Hearing :04.04.2018 │ Date of Judgment:16.04.2018

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Dr. A.K. Rath, J. Plaintiff is the appellant against a reversing judgment. The suit was for declaration of title, confirmation of possession and to set aside the sale deed dated 26.3.84/27.3.84 as fraudulent and invalid.

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02. The case of the plaintiff was that she had purchased the suit land by means of a registered sale deed dated 20.10.59. Her husband was ailing for a considerable period. Some disputes were raised by the boundary tenants of the suit land. The original defendant was an agnatic relation of her husband. He approached her to execute a power of attorney in his favour, so that he will look after the suit land on her behalf. Believing him, she went to the Sub-Registrar’s Office and executed the deed. According to her, it was a power of attorney. Thereafter, the defendant threatened her

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to dispossess from the suit land stating that he had purchased the suit land. She obtained the certified copy of the sale deed and came to know that in the garb of a power of attorney, the defendant snatched away the document in shape of a sale deed. No consideration was paid to her. She is an illiterate pardanashin lady and only knows how to sign her name. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.

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03. The defendant entered contest and filed a written statement denying the assertions made in the plaint. According to him, the plaintiff purchased the suit land on 20.10.59 from Gopinath Sahu. She was the owner of the suit land. To press her legal necessity, she wanted to sell the suit land for a consideration of Rs.9,900/-. The defendant agreed to the proposal and paid Rs.1500/- to the plaintiff. The balance Rs.8400/- was to be paid at the time of registration. The plaintiff supplied the required documents. The deed was scribed at her instance. She executed the document after fully understanding the contents of the documents. She received the consideration amount. The land was mutated in his favour. He paid land revenue. Since then, he is in possession of the land. The plaintiff is not a pardanashin or illiterate lady. She can write her name and read the document. She is able to distinguish different documents.

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04. On the interse pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court came to hold that the plaintiff does not know reading or writing. She had only learnt to put her signature. She had not attended the school. She is an illiterate pardanashin lady. She had no independent advice either from her husband or from her illatom son-in-law or daughter

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residing with her. There is no endorsement that the plaintiff signed or appended her signature after understanding the contents to be correct. The scribe had not put her signature below the certificate of endorsement. The scribe did not say that the Sub-Registrar had read over and explained the contents to the plaintiff. The defendant failed to discharge the burden that lay on him. No consideration was paid. The sale deed is not legal and valid. Held so, it decreed the suit. The legal heirs of the defendant preferred T.A. No.54 of 1992 before the learned Additional District Judge, Jajpur. Learned lower appellate court allowed the appeal with findings that the plaintiff is not an illiterate pardanashin lady. She executed the sale deed after receiving the amount from the defendant and delivered possession. It is apt to mention here that during pendency of the second appeal, the sole appellant died. The legal heirs have been substituted.

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05. The second appeal was admitted on the following substantial questions of law.

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“1. Whether the learned lower appellate court was correct in his finding that the plaintiff was neither a pardanasin nor illiterate lady simply because she could on verification purported to have distinguished various documents ?

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Whether the learned lower appellate court was correct in throwing onus of proof on the plaintiff to the effect that she was to prove fraud by the defendant in the matter of execution of the deed in question by passing the question raised in the pleadings of the parties answered by the learned trial court that onus was on the defendant to prove that the plaintiff executed the document in question after fully understanding the contents they are being read over and explained and on furnishing a certificate to that effect by the scribe as it was conclusively found that the plaintiff was an illiterate pardanasin lady ?

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Whether the finding of passing of consideration is based on materials on record or mere endorsement by the Sub-Registrar on the document would prove passing of consideration ?

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Whether the finding of possession by the learned lower appellate court was correct on the basis of evidence on record ?”

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06. Heard Mr. Abhijeet Pal, learned counsel, on behalf of Mr. A.K. Mishra, learned counsel for the appellants and Mr. S.N. Mishra, learned counsel for the respondents.

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07. Mr. Pal, learned counsel for the appellants, submitted that plaintiff is an illiterate pardanashin lady. She had not attended the school. Learned trial court, on a threadbare analysis of the evidence on record and pleading, held that the contents of the document were not read over and explained to the plaintiff. There is no certificate of endorsement to that effect. No consideration was paid. On the pretext of execution of power of attorney, the defendant managed to get the sale deed registered in his favour. Plaintiff had not executed the sale deed in favour of the defendant. But then, learned lower appellate court on untenable and unsupportable ground reversed the judgment and decree. To buttress his submission, Mr. Pal placed reliance on the decisions in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai and others , AIR 1963 SC 1203, Narayan Mishra and others vs. Champa Dibya (Dead) and others, AIR 1986 Ori.53, Chidambaram Pillai and others vs. Muthammal and others, (1993) 1 MLJ 535, Hakimuddin vs. Mohammad Anis, 1998 (1) AWC 476 and Rada Jagga Rao vs. Rada Kakamma (since dead) after her Pada Kakamma and others, 2016(II) ILR-CUT-868.

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08. Per contra, Mr. Mishra, learned counsel for the respondents, submitted that the plaintiff is not an illiterate pardanashin lady. Plaintiff asserted that she purchased the property in the year 1959. It pre-supposes that she had gone to the office of the Sub-Registrar in the year 1959 for execution of the deed. She

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sold the property to the defendant by means of a registered sale deed dated 26.3.1984 for a valid consideration and thereafter delivered possession.

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09. The plaintiff purchased the suit property by means of a registered sale deed dated 20.10.1959. She had gone to the office of the Sub-Registrar at the time of execution of the sale deed. Learned trial court held that plaintiff had no independent advice either from her husband or from her illatom son-in-law or daughter. Her daughter and illatom son-in-law were residing with her. Then what was the occasion for the plaintiff to execute the power of attorney in favour of the defendant instead of her illatom son-in-law to look after the affairs of the property ?

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10. On an analysis of evidence of plaintiff, P.W.1, learned lower appellate court held that plaintiff had purchased the property thirty years prior to her deposition. She used to go to the land to look after the cultivation. She had normal business capacity to deal with her property. Her illatom son-in-law and other members were residing with her. She knows that a power of attorney is necessary to deal with the property. Further, in her evidence, she stated that she handed over the document required for registration of sale deed and without verification of document, she could not say what was the document. It shows that she has the capacity to distinguish different documents and on verification she could say the nature of that document. Not only she is able to write her name, but also able to read, otherwise she could not have distinguished different documents after verification. She is not an illiterate pardanashin lady. Plaintiff had received the consideration. There is no perversity in the said finding. The substantial questions of law are answered accordingly.

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11. The decisions cited by Mr. Pal, learned counsel for the appellants, are distinguishable on facts. In Mst. Kharbuja Kuer (supra), the apex Court held that in India paradahnashin 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. It was further held that the burden of proof always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial. There is no quarrel over the proposition of law. As held above, the plaintiff is not a pardanashin or illiterate lady.

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12. Mst. Kharbuja Kuer (supra) has been referred to in Champa Dibya (Dead) and others (supra), Chidambaram Pillai and others (supra), Hakimuddin (supra) and Rada Jagga Rao (supra).

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13. In the wake of aforesaid, the appeal, sans merits, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack

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The 16^th April, 2018/Basanta

Rukmani v. Rahas

Case brief

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Rukmani v. Rahas

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