1989 PLP 418 (CLC)

This Civil Revision by the defendants arises out of a suit filed by Mat. Chiragh Bibi for seeking declaration of invalidity about a registered sale‑deed dated 5‑7‑1980 with regard to a share belonging to her in a house which she had inherited upon the death of her father Karam Elahi; on the grounds that she is illiterate, simpleton and a purdahnashin lady and had never intended to transfer any property to defendant No.l who had duped her into securing the .sale‑deed in suit without paying any consideration, on account only of misrepresentation and fraud. She also claimed a decree of permanent injunction being passed as a consequential relief to restrain interference with her rights in it.

2. Defendants contested the suit on the basis of a joint written statement wherein they denied the correctness of the assertions made in the plaint and reiterated that a valid and genuine transfer by sale had been voluntarily made by her in favour of defendant No.l after receiving the sale‑price. Pleadings of the parties led to the framing of seven issues whereof issue No. 6 related to the legality and voluntary nature of the sale and also about its consideration. Parties led their evidence wherein plaintiff made her statement as P.W.4 in support of her case but the defendants concentrated their attention upon the matters relating to execution and registration of the sale‑deed (Exh.D.l) and they did not lead any evidence with regard either to any deal made between the parties for making the sale or even about the intention of the plaintiff to sell the property and muchless any regarding the voluntary nature of the transaction as having been made by her after comprehending the same. They alleged a consideration of Rs.4,000 to have been paid to her at home but did not mention any reason for not having paid the consideration at the time of registration and did not produce any receipt to establish payment to her of such an amount. After considering the evidence of the parties, trial Judge opined that the plaintiff could not be considered such an illiterate and pardahnashin lady as may not have conducted transactions about property and held that since the plaintiff had got the sale‑deed executed and registered, therefore, there was no legal or factual defect in the sale‑deed sued for. In consequence, by his judgment dated 11‑1‑1987, he dismissed the suit with ordinary costs but did not award any compensatory costs against the plaintiff because she happened to be an old lady and mother of defendant No.l. Plaintiff's appeal there against was assigned to an Additional District Judge who reconsidered the evidence and came to the view that since the plaintiff had denied execution of the relevant deed, therefore, onus got shifted on to the holder thereof to establish on the basis of overwhelmingly convincing evidence that she had executed the deed with her free consent, after fully comprehending the nature and contents thereof. He held her entitled to the privilege available and protection extended to a purdahnashin lady and held that since the defendant had not been able to establish lawful execution by her of the sale‑deed, therefore, he could not be allowed to capitalize from the other documents for a conclusion that she would have executed also ,the sale‑deed in dispute (Exh.D.l), even the payment of consideration whereabout had not been satisfactorily proved. Resultingly, by his judgment dated 26‑9‑1988, he accepted the appeal into reversing the trial Court's judgment and decree which he substituted by a decree prayed for by the plaintiff. The defendants have now come up to this Court on revision. Learned counsel has conceded before me that there is no evidence at all led about the transaction which was intended to be embodied in the disputed deed. He, however, contends that it was the duty of the plaintiff to have proved the factors which entitled her to avoid the sale‑deed in question and more particularly so, when onus of issue No.6 had also been placed on her. It is not possible to contribute to the view sought to be propounded because the law with regard to execution of documents has been stated in Raja Singh and others v. Chaichoo Singh A 1 R 1940 Patna 201 as under:‑ "Where an old and illiterate person executes a document under the impression that it is a lease when in fact it was a deed of gift, there cannot be a real execution since his mind was directed to one thing whereas what he put his hand to was something of an altogether different character. Since his mind was not with his hand there was no real execution and the document must be deemed to be void and not merely voidable. The case does not fall within the purview of Article 95 or 91 as the deed does not require to be set aside or cancelled." and the case of Hem Singh v. Bhagwat Singh, A I R 1925 Patna 140, was cited with approval. Therein it was held:‑ "A distinction has been drawn in the more modern cases between misrepresentation as to the character of a document and misrepresentation as to the contents of a document and it seems to be the modern view that when there is a mis representation as to the contents of a document but not as to the character of the document, the plea of non est factum is not available to the party deceived unless‑and this is very important‑he is blind or illiterate the rule does not apply to a man who can read but who forbears to read the document." Judged upon the above criteria, it is not proved that the plaintiff‑respondent had 'executed' the sale‑deed, in the legal sense of the term. (Refer to Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others A I R 1938 PC 38). The two Courts below have concurrently found the, plaintiff to be an old and illiterate lady wherefore the appellate Court has even extended to her the privilege of a purdahnashin. I have been taken through the evidence led in the suit and do not find any good reason for taking a contrary view because there are certain big questions staring the petitioner‑defendant No.l right in his face, namely, that why may the old mother have desired to sell away the property and why may she have charged a petty price from her own son to whom she could have well‑gifted it and why to one only out of her five children and, if at all, to only one son by ignoring the second son or not to all others? Moreover, if she had to charge any price for the transfer then why may he not have been any one else to pay the proper price and why may the said son have not waited to pay the money before the Sub‑Registrar or at the time of drawing up for the deed and why may he have made the payment earlier and that too without any receipt when he had taken the precaution of paying it in the presence of others to be able to bear testimony to it ? These and a number of other questions remain unanswered on the record and it is difficult to term the sale as genuine and more particularly so, in the absence of any evidence led with regard to the transaction itself having over been contemplated by her to be made in his favour. These matters become determinative of the fate of this litigation also because it is the Court's duty to be satisfied on the basis of evidence that undue advantage of old, infirm and illiterate persons is not taken. Such evidence in this case had to be led by the defendant, which he has not. A large number of decided cases on the point are available but suffice to refer to Shamshad Ali Shah and others v. Syed Hassan Shah and others P L D 1964 SC 143‑162, Peoples Bank of Northern India Ltd. v. Mian Ghulam Jan and another A I R 1938 PC 276, Srimati Saratkumari Dasi v. Amullyadhan Kundu and others A I R 1923 PC 13, Srimati Sabitri Thakurain v. Mrs. F.A. Savi and others A I R 1933 Patna 306, Nur Muhammad v. Mst. Karim Bibi P L D 1959 Lah. 932 and Sree Sree Gopal Jeo Bigraha and others v. Mst. Mahmuda Begum and others PLD 1968 Dacca

265. The mere fact that she had also executed some other documents by presenting herself in the Court premises would not, by itself, be sufficient for depriving her of` the protection by law extended to old and illiterate ladies. There is no doubt that her position as such is privileged. In that view of the matter, it was obligatory for the defendant to have established not merely that she had understood the transaction but also that she had independent advice available to her before executing the document. Whereas there is an adverse finding of fact (A I R 1940 PC 147 refers) reached on the first point by the appellate Court which is binding for the purposes hereof as a justified finding relating to a question of fact because it has not been shown to have resulted from any error of jurisdiction, there is not an iota of evidence led about the other point relating to the availability to her of independent advice. A simple denial by the plaintiff had the effect of shifting the onus during the trial on to defendant No.l to establish validity of the transaction held by him. The contention fails thus and is accordingly repelled. Actually, absence of evidence with regard to the transaction has the indisputable effect of knocking the very bottom out of the case of the defendant who does not seem to have any case worth consideration made out on the present record. Decree passed in the appeal below is unexceptionable and no case exists for exercise of revisional jurisdiction. Hence, dismissed in limine. A.A./M‑1013/1 Appeal dismissed.