CHAITAN CHARAN PARIDA Vs. MAHESWAR PARIDA

JUDGEMENT

(1.) The defendant is the appellant. Plaintiffs 1 and 2 are husband and wife. In the plaint it was pleaded, inter alia, that plaintiff No. 2 happens to be the second wife of plaintiff No. 1. The parties did not have any issue. To satisfy plaintiff No. 2 the wife, plaintiff No. 1 had executed a gift deed in favour of plaintiff No. 2. The gift deed in favour of plaintiff No. 2 was only a nominal one. The defendant happens to be agnatic nephew of plaintiffs and was looking after their affairs and the suit properties. In the year 1973 the defendant persuaded the plaintiffs to execute a power-of-attorney in his favour to protect the plaintiffs as there was an encroachment case started against the plaintiff No. 1. Instead of power-of-attorney the defendant took away a gift deed in his favour on 1-3-1973. Plaintiff No. 1 is an old and illiterate person and plaintiff No. 2 is an old illiterate paradanashin lady. They had executed the document without knowing it to be a gift deed. Subsequently, in the year 1974 when the defendant without the consent of the plaintiffs took away the paddy from thrashing floor, the plaintiffs objected. At that point of time defendant claimed to be the owner of the properties by virtue of the deed of gift. Plaintiff No. 1 applied for certified copy of the gift deed and came to know that his entire homestead and landed properties had been taken away by the defendant under the deed of gift, for which the plaintiff filed the suit be set aside the deed of gift on the ground of deception, fraud and misrepresentation and alternatively prayed that since the condition incorporated in the deed having not been fulfilled, it be revoked. The defendant appeared and filed the written statement. In the written statement it was avered that gift deed executed by plaintiff No. 1 in favour of plaintiff No. 2 was valid and acted upon and that defendant was looking after the plaintiffs being the agnatic nephew and out of love the plaintiff No. 2 gifted the entire properties which was consented to by plaintiff No. 1. While executing the deed of gift plaintiff No. 2 knew the contents thereof. The document was read over and explained to her and she had independent advice of her husband who was throughout with her. Plaintiff No. 1 had also endorsed the document giving his consent to the said deed of gift. The question of defendant obtained the document by fraud and misrepresentation did not arise as there was no such notice to appear in the encroachment case at the relevant time. The defendant had also taken possession of the properties immediately after the deed of gift was executed. The deed of gift was acted upon.

(2.) The learned trial Court after considering the evidence and materials on record has recorded the findings that (a) The gift deed by plaintiff No. 1 in favour of plaintiff No. 2 is valid and was acted upon. (b) Plaintiff No. 2 admittedly being a paradanashin illiterate old lady the beneficiary in the said transaction must establish that the lady was aware of the consequence of the transaction and the burden of proof became hevier on the part of the beneficiary to show that the old lady acted as a free agent and executed the document by putting her L.T.I. of her free will after knowing the contents of the documents. (c) The attesting witnesses having denied to have seen the attestation and D.W. 1 and D.W. 11 having failed to prove the attestation, the document cannot be held to be validily executed. (d) The defendant has failed to prove that the document was read over and explained to plaintiff No. 2 and she had signed after undertaking the contents of the document. (e) The document is also unconscionable in character as the entire properties including the homestead has been gifted under the document. (f) The impugned deed of gift dated 1-3-73 executed by the plaintiff No. 2 was not acted upon and consequently no title passed in favour of the defendant under the said deed. (g) Though there is a restriction clause in the deed of gift, the same cannot operate and the gift deed cannot be revoked on that ground, and with the above findings decreed the suit and declared that the gift deed dated 1-3-73 to be void, invalid, confirmed the possession of the plaintiff No. 2 or in the alternatively order that if the plaintiff No. 2 has been dispossessed, the same may be restored to her.

(3.) The learned advocate for the appellant submits that :