Gajraj Pasayat Vs. Debraj Pasayat and Ors. - (High Court of Orissa) (30 Apr 2018)

Burden of proof to establish that transaction was entered into by pardanashin lady, after clearly understanding its nature, rest upon person who seeks to sustain a transaction

MANU/OR/0230/2018

Civil

In instant case, Defendant No. 1 is the Appellant against a confirming judgment. Plaintiffs-Respondent Nos. 1 and 2 instituted the suit for declaration that, the gift deed dated 15th December, 1967 executed by the mother and brother of Defendant No. 1 in favour of the Defendant No. 1 is a fraudulent one and not binding on them and proforma Defendants. The specific case of the defendant No. 1 was that Chandrama and Kanhei executed the gift deed in his favour. The gift deed was acted upon. Learned trial Court decreed the suit with the finding that, the burden of proving the absence of fraud lies on the Defendant No. 1 in view of relationship. Defendant No. 1 was claimed to be the adopted son of Mohan before the settlement authorities. The same is a strong circumstance against him.

The principle governing the execution of deed by an illiterate woman is well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, the apex Court held that "in India, pardanashin 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”.

The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin 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."

In Agadhei Malikani and another v. Abhimanyu Mallik and others, present Court held that, the principles which govern the proof of execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman.

The gift deed, reveals that, Chandrama had put her L.T.I. There is no endorsement in the gift deed that, the contents of the gift deed had been read over and explained to Chandrama and after understanding the contents thereof, she put her L.T.I. Learned trial Court held that, it is highly inconceivable that, Chandrama executed a gift deed in favour of Defendant No. 1 in respect of her entire property. The gift deed had not been acted upon. Both the Courts concurrently held that, Defendant No. 1 played fraud and obtained a gift deed. There is no perversity or illegality in the said finding. The substantial question of law is answered accordingly.

Relevant : Mst. Kharbuja Kuer v. Jangbahadur Rai and othersMANU/SC/0392/1962,: AIR 1963 SC 1203, Agadhei Malikani and another v. Abhimanyu Mallik and others, MANU/OR/0133/1968: ILR 1968 Cut. 576

Tags : GIFT DEED EXECUTION FRAUD