Civil Suit No. 631 of 2011 · High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.164 OF 2022 - (I) & RSA No.184 of 2022 - (II) In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 07.05.2022 and 13.05.2022 respectively passed by the learned District Judge, Balasore in RFA No.70 of 2019 setting aside the judgment and decree dated 28.03.2019 and 05.04.2019 passed by the learned 1st Additional Senior Civil Judge, Balasore in C.S. No.631 of 2011-I (6371 of 2014). ……… RSA NO.164 OF 2022 Rehana Bibi :::: Appellant. Shikharani Singh & Others :::: Respondents. -:: VERSUS ::- RSA NO.184 OF 2022 Sultan Beg :::: Appellant. Shikharani Singh & Others. :::: Respondents. -:: VERSUS ::- Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … Mr. Soumya Mishra, Advocate in RSA No. 164 of 2022 … Mr.Ashok Kumar Dash, Advocate in RSA No.184 of 2022. For Respondents … Mr. S.K. Mishra, Advocate, (Caveator-Respondent No.1) in RSA Nos.164 & 184 of 2022. … Mr. A.K. Dash, Advocate, (R-6) in RSA No.164 of 2022. … Mr. Soumya Mishra, Advocate (R-6) in RSA no.184 of 2022. {{ 2 }} CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Judgment: 27.01.2023 --------------------------------------------------------------------------------------- D.Dash,J. Since both these Appeals as at (I) and (II) arise out of one suit, i.e., C.S. No.631 of 2011 of the Court of the First Additional (Senior Civil Judge), Balasore giving rise to one Frist Appeal, i.e., R.F.A. No.70 of 2019; those were heard together for their disposal by this common judgment. The Respondent No.1 as the Plaintiff had filed the suit for specific performance of contract praying therein to direct the Appellants and others (Defendants) to execute and register the sale deed in respect of the suit land described in schedule ‘Ka’ and for permanent injunction. The suit, i.e., Civil Suit No.631 of 2011- (I) having been dismissed by the learned First Additional (Senior Civil Judge), Balasore by its judgment and decree dated 28.03.2919 and 05.04.2019 respectively; the Respondent No.1 as the unsuccessful Plaintiff had filed the Appeal under section 96 of the Code. That Appeal numbered as RFA No.70 of 2009 having been allowed by the learned District Judge, Balasore vide judgment and decree dated 07.05.2022 and 18.05.2022 respectively and the suit thus having been decreed granting the Respondent No.1 (Plaintiff) all the reliefs which she had claimed; the Appellant as the Defendant No.3 has filed this Page 2 of 22 {{ 3 }}
Facts
Second Appeal as at (I) and another Defendant, i.e., Defendant No.5 as the Appellant has filed as at (II). At this stage, it be stated that the original Defendant No.1, namely, Sk. Idris is the son of deceased Hanifan Bibi whereas the rest Defendants are the two daughters of said Hanifan. Said Idris having died during pendency of the suit, his legal representatives have been arraigned as Defendant No.1 (Ka) to 1 (Gha) and they are now the Respondent Nos.2 to 5. These two Appellants (Defendant Nos.3 and 5) are the sisters of said deceased Defendant No.1, the predecessors-in-interest of the Respondents Nos.1 to 5 (Defendant No.1 (Ka) to 1 (Gha). 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiffs case is that the suit land described in schedule ‘Ka’ of the plaint was the exclusive property of Hanifan Bibi who is the predecessor- in-interest of original Defendant Nos.1 and the Defendant Nos.2 as well as the Defendant No. 3. The said property stood recorded in her name in the record of right. It is said that while possessing the suit land, Hanifan in order to meet her legal necessities offered to sale the land to the Plaintiff who then expressed her willingness to purchase and the consideration for said transaction was finalized at Rs.10 lakhs. Page 3 of 22 {{ 4 }} It is next stated that the Plaintiff was then not able to pay the entire consideration money. So she paid advance consideration of Rs.7 lakhs on 12.06.2008. On that day, Hanifan executed an agreement for sale in favour of the Plaintiff. As per the terms and conditions of the said agreement, the Plaintiff was to pay the balance consideration of Rs.3 lakhs within a period of six months; on or before 11.12.2008. Hanifan on receiving the consideration amount was to execute and register the sale deed in favour of the Plaintiff in respect of the suit land. The Plaintiff asserts that within the said stipulated period, although she requested Hanifan several times to execute the sale deed and register the same, she did not do so and so also her successors, i.e., the Defendants being called upon to execute and register the sale deed in favour of the Plaintiff at her cost on receiving the balance consideration of Rs.3 lakhs, they went on deferring the matter on some plea or other. The Plaintiff, therefore, served notice upon the Defendants through her counsel on 05.05.2011 calling upon them to execute and register the sale deed within a period of seven days of the receipt of the notice averring therein that the Plaintiff was ready and willing to pay the balance consideration money for execution and registration of the sale deed. It is further stated that the Plaintiff was ready and willing to pay the consideration money for execution and registration of the sale deed right from the time of execution of the said agreement for sale. But the Defendants receiving the notice did not turn Page 4 of 22 {{ 5 }} up and lastly on 20.06.2011, they while refusing to execute the sale deed; rather threatened the Plaintiff. Hence, the Plaintiff filed the suit seeking the reliefs as already stated. 4. The legal representatives of original Defendant No.1 who happens to be the son of Hanifan filed a written statement supporting the case of the Plaintiff. They have admitted the execution of the agreement for sale on 12.06.2008 by said Hanifan Bibi. They also state that they are ready and willing to execute the sale deed in favour of the Plaintiff. Side by side they have taken a plea that the original Defendant No.1 and Defendant No.2 are the two successors of Hanifan Bibi and not the Defendant No.3, whose stands as the daughter of Hanifan has been denied. 5. The Defendant No.2 in her written statement while traversing the plaint averments admitted the fact that the suit land belonged to Hanifan Bibi. It is also stated that the suit land was recorded in the name of Hanifan who happens to her mother and that she died in the year 2008 leaving behind her son, the Defendants No.1 (dead) and daughters, the Defendant No.2 as well as the Defendant No.3. It is stated the suit land constitutes a tank and embankment along with small patch of agricultural bari land adjoining to the land under major settlement plot No.35, over which the house of their father situates. She states to be residing in one of the houses of her father with her family members and that the suit land is adjoining the paternal undivided dwelling house of the Defendants. It is Page 5 of 22 {{ 6 }} further stated that the Defendant No.3 has filed a partition suit bearing no.345 of 2010 against all the successors of Hanifan and Sk. Idris (husband of Hanifan), which is subjudice and in that suit ad interim injunction has been issued. It is her case that after institution of the said suit, the original Defendant No.1 had approached her. She states that taking advantage of the relationship, the original Defendant No.1 having colluded with one Ranjan Singh, the brother of the Plaintiff had managed to obtain a power of attorney from her by fraudulently inserting the clause, conferring power upon the brother of the Plaintiff to alienate all the family properties including the suit land. It is stated that the Defendant No.2 had executed the said power of attorney only for looking after the litigation. It is next stated that taking advantage of the said power of attorney, the brother of the Plaintiff had also alienated part of the properties to third persons. Knowing about said transfers, this Defendant No.2 then had cancelled the power of attorney and subsequently, filed the suit for partitions. It is her specific case that the brother of the Plaintiff is a land broker and has colluded with the original Defendant No.1, basing upon a created and manufactured as also fraudulent agreement for sale to grab the suit land and has set up his sister, the Plaintiff to file the suit. It is further stated that the LTI of Hanifan appearing in the agreement is forged. She states that Hanifan had never executed any agreement and she being an illiterate paradanasin lady belonging to Muslim Community was Page 6 of 22 {{ 7 }} having no idea regarding the property affairs and she was knowing to sign her name and was totally dependent upon her son, the Defendant No.1, who was in possession of all the title deeds and documents of the family property. It is stated that taking advantage of the position, the deceased Defendant No.1 has created the agreement for sale in collusion with the brother of the Plaintiff. Further, it is stated that the Plaintiff has failed to perform her part of the contract and has filed the suit basing upon a forged document, which is projected as an agreement for sale purported to have been executed by Hanifan in favour of the Plaintiff. The Defendant No.3 in her written statement has supported the case projected by the Defendant No.2 by reiterating all such facts as stated in the written statement of Defendant No.2. 6. The Trial Court, on the above rival pleadings framed as many as seven issues. Answering the first issue on the question of limitation, the suit has been held to be not barred by the law of limitation. Then coming to the crucial issues as to the validity of the agreement for sale (Ext.2) as well as the readiness and willingness of the Plaintiff and consequently, the Plaintiff’s entitlement to the decree of specific performance of contract, upon examination of evidence and their evaluation, the answers have been returned as under:- Page 7 of 22 {{ 8 }} (a) that the Plaintiff has successfully established that the agreement for sale has been duly executed by Hanifan Bibi in her favour; and (b) that the Plaintiff has failed to establish that she was ready and willing to perform her part of contract for completion of the execution and registration of the sale deed by Hanifan and her successors in respect of the suit land in her favour. The second answer as at (b) has led the Trial Court to dismiss the suit. 7. The Plaintiff thus being non-suited by the Trial Court with the above said finding as at (b), carried the First Appeal. The First Appellate Court on going through the evidence, both oral and documentary, and making an assessment of the same at its level, has concurred with the finding of the Trial Court that the agreement for sale (Ext.2) was duly executed by Hanifan in favour of the Plaintiff for sale of the suit land to her for a consideration of RS.10.00 lakhs as agreed upon. It has, however, over turned the finding of the Trial Court on the question of readiness and willingness of the Plaintiff to perform her part of the contract. The First Appellate Court has held that the Plaintiff has proved through evidence that she was all along ready and willing to perform her part of the contract right from the time when Hanifan was alive and even thereafter. Accordingly, the First Appellate Court has decreed the suit directing the Defendants to execute the sale deed in respect of the suit Page 8 of 22 {{ 9 }} land and register the same on receipt of the balance consideration of Rs.3.00 lakhs. 8. The Defendant Nos.2 and 3 being aggrieved by the aforesaid judgment and decree passed by the First Appellate Court have preferred these Second Appeals as already stated. 10. The Appeal has been admitted to answer the following substantial questions of law:- (1) Whether the Courts below on the available evidence on record and in view of the principles of law settled in catena of decisions as regards of proof of execution of a document by an illiterate paradanasin lady are justified in holding that the Plaintiff has proved the factum of due execution of the agreement for sale (Ext.2) by Hanifan Bibi and such finding having been rendered by overlooking the surrounding circumstances as emerge from the evidence suffer from the vice of perversity? (2) Whether the finding of the First Appellate Court that the Plaintiff has established through evidence that she was and is all through ready and willing to perform her part of the contract is based on perverse appreciation of evidence on record and without being alive to the surrounding circumstances as those emanate from the pleadings as well as the evidence on record and in that way whether the First Appellate Court is justified to upset the finding of the Trial Court which had held that the Plaintiff has failed to establish that she was ready and willing to perform her part of the contract? Page 9 of 22 {{ 10 }} 9.
Legal Reasoning
to deprive his other sisters. This also is prima facie evident from the fact that the legal representatives of Defendant No.1 have been supporting the case of the Plaintiff in saying that such Ext.2 had been executed by Hanifan when they even have no direct knowledge at all about such execution of the document. Interestingly, the daughter-in-law of Hanifan- Defendant No.1(Ka) has come to depose in favour of the Plaintiff. She in her anxiety to see that the Plaintiff is not non-suited, has said that Hanifan had executed such agreement and had received a sum of Rs.7.00 lakhs as advance and after death of Hanifan her husband and after her husband she is willing to perform her part of the contract. Having deposed as above, she however is unable to say the extent of land that was owned by her husband and what was extent of land of her husband has left behind and which lands have been sold by her husband and mother-in-law. 15. The Courts below, in my considered view, have proceeded in a mechanical manner by simply giving importance to the evidence of the scribe and other witness given in a generalized manner without Page 21 of 22 {{ 22 }} appreciating their evidence in proper prospective keeping in view the surrounding circumstances and attending factors which have the definite impact in the matter of judging the issue as to due execution of a document by an old paradanasin illiterate Muslim widow. For all these aforesaid, thus due execution of the document (Ext.2) by Hanifan, is held to have not at all been proved by the Plaintiff and she is found to have failed to discharge the burden of proof on that score lying on her. The finding on the score even although is concurrent, for the above aforesaid discussion, this Court is of the view that the finding on the score of proof of due execution of Ext.2 by Hanifan suffers from the vice of perversity. The substantial question of law as at (a) is accordingly answered against the Plaintiff. 16. The substantial question of law as at (a) having received the answer as afore-stated, this Court finds no such necessity to answer the next substantial question of law as at (b). Accordingly, it is held that the suit filed by the Plaintiff is liable to be dismissed. 17.
Arguments
Learned counsels for the Appellants in both the Appeals submitted that the executant of the agreement for sale (Ext.2) being a Muslim illiterate paradanasini lady and its execution being seriously disputed by the Defendant Nos.2 and 3, the two daughters of Hanifan (executant), the Courts below have gone to appreciate the evidence in a completely mechanical manner without reading the evidence on record in entirety and without keeping in view the surrounding suspicious features which emerge from the evidence which have not been removed by the Plaintiff through any clear, cogent and acceptable evidence. They further submitted that the Courts below in arriving at such a conclusion have not viewed the decisions which they have been referred to in their judgments in their proper prospective in testing the facts and circumstances as obtained in evidence in the touch stone of the letter and spirit of those decisions. It was further stated that with the available evidence on record, the findings of the Courts below that the Plaintiff has discharged the burden of proof of valid execution of the agreement for sale by Hanifan suffers from the vice of perversity when even the evidence on record reveals several suspicious features favouring to term the purported transaction and the document as a fraudulent one; those have not been viewed in right prospective. They also stated that when the Defendants have specifically pleaded that the Defendant No.1 who happens to be their brother having colluded with the brother of the Plaintiff has brought Page 10 of 22 {{ 11 }} this agreement for sale into being in order to deprive these Defendant Nos.2 and 3 who are his sister of the property of their mother, the Courts below have not at all bestowed due attention to that aspect at all when as per law, the Plaintiff was under the obligation to dispel all such features in support of collusion by leading evidence. They also submitted that keeping in view the pleadings advanced in the plaint and the evidence let in, when the attending factors as have emerged from evidence are taken into account, the Trial Court’s finding that the Plaintiff has not specifically pleaded and proved that she was all along ready and willing to perform her part of the contract, that finding of the Trial Court ought not to have been set aside by the First Appellate Court and answered in favour of the Plaintiff. 10. Learned counsel for the Respondent No.1 submitted all in favour of the findings returned by the Courts below insofar as the due execution of the agreement for sale (Ext.2) is concerned. He submitted that the overwhelming evidence let in by the Plaintiff that Hanifan had executed the agreement for sale being aware of the contents of the sale and it was her conscious execution involving her mental and physical act by examining the scribe of the document as well as other witnesses, the Courts below did commit no mistake in holding that the Plaintiff has discharged the burden of proof of due execution of the said agreement for sale and the onus of proof shifting upon these Defendants having not been Page 11 of 22 {{ 12 }} discharged, said issue has been right answered by the Courts below. According to him, this concurrent finding as to the proof of execution of the said agreement for sale and its validity as returned by the Courts below do not suffer from the vice of perversity. He next submitted that the First Appellate Court has rightly set aside the finding of the Trial Court with regard to the readiness and willingness of the Plaintiff to perform her part of the contract and thus is right in decreeing the suit. In this connection, he further submitted that the Plaintiff having examined herself and other witnesses and proving the notice issued to the Defendants since has proved the fact that she was all along ready and willing to perform her part of the contract, the Trial Court’s finding being contrary to the evidence on record has been rightly rectified by the First Appellate Court in finally decreeing the suit. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement as also have perused the evidence, both oral and documentary, more importantly including the vital document Ext.2, which has been projected as the trump card by the Plaintiff. 12. Before proceeding to find out the answer to the substantial question of law as at (a), it is felt apposite to take note of the settled position of law with regard to the proof of execution of a document by Paradanasin ladies and persons with such akin infirmities. It has been held in case of Mst. Page 12 of 22 {{ 13 }} Kharbuja Kuer Vrs. Jangbahadur Rai & Ors.: AIR 1963 SC 1203, that in India, Paradanasin 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 communication with the outside world. The rule evolved for the protection of paradanasin ladies should not be confused with other doctrine such as fraud, duress and actual undue influence, which apply to all persons whether they be paradanasin ladies or not. It has also been held at paragraph-6 of the said judgment that as regards documents taken from paradanasin women, the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradanasin women. The burden of proof shall always rests upon the person who seeks to sustain a transaction entered into with a paradanasin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but her mental act too. The burden can be discharged not Page 13 of 22 {{ 14 }} only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial. 13. Law is well settled that in such case of execution of deed of conveyance, the requirement of law in case of paradanasin lady also extends to an illiterate lady. This Court in case of Kuma Dei Vrs. Md. Abdul Latif, 1993 (II) OLR 568 relying upon the decision in case of Narayan Mishra & two Others Vrs. Champa Dibya (dead) and after her Bhabani Dei & two Others: 1985 (II) OLR 417 has held that in case of execution of a deed by paradanasin or illiterate lady, the burden of proof rests not with those who attack but with those who rely on it. It has been further relied that execution of such deed must be proved in showing that the document was explained to her and really understood by her. It is further held that ordinarily the Courts below insist on proof that the lady had independent legal advice although this may not be an absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property. The principle that a document executed by a paradanasin lady has been explained to her is not the only mode of discharging the burden but the fact whether she voluntarily executed the document or not has to be ascertained from other evidence and surrounding circumstances in the case. Page 14 of 22 {{ 15 }} 14. Keeping the aforesaid guiding principles in mind, it has to be examined whether the Plaintiff who seeks specific performance of the agreement for sale (Ext.2) said to have been executed by deceased Hanifan (proposed vendor) has discharged the heavy burden of proof in establishing that the deed was executed by Hanifan after its contents was read over and explained to her and she had really understood the same and executed the deed voluntarily free from duress and without undue influence and has taken the benefit out of it and that no such suspicious features surround thereto in order to conclude that it was the outcome of her physical as well as mental act. (a) In the plaint, it has been averred that Hanifan on account of her personal necessity requested the Plaintiff to purchase the land and accordingly, the Plaintiff agreed to purchase and the consideration amount was fixed at Rs.10.00 lakhs. It has next been stated that as the Plaintiff at that point of time could not arrange the agreed consideration and since Hanifan was in need of some amount, the Plaintiff paid a sum of Rs.7.00 lakhs on 12.06.2008 when Hanifan executed the agreement for sale vide Ext.2. The Plaintiff is unable to say when she first came in contact with Hanifan, the executant. The Plaintiff is a Christian whereas Hanifan’s religion is Muslim. The Plaintiff and Hanifan profess different religion. They again are not the residents of the same locally. The Plaintiff is a Government servant of 48 years old whereas Hanifan was Page 15 of 22 {{ 16 }} then a widow of 72 years. The Plaintiff does not have the idea as to the distance between suit land from her place of stay. She does not say to have visited the suit land before and that these fraction plots of land too have not been identified before at her instance. This Ext. 2 the so-called agreement for sale, which is the foundational document for the suit does not, however, indicate the important fact that as the Plaintiff then could not arrange the total consideration amount, the said agreement came into being. Thus the very reason as to creation of the agreement for sale is conspicuously missing in that document’s recital/description. It is then said that as Hanifan was need of some amount, the Plaintiff paid a sum of Rs.7.00 lakhs and she executed Ext.2. However, it has just been recited therein that out of the total consideration amount agreed upon the Plaintiff in presence of the witnesses paid a sum of Rs.7.00 lakhs and that being received by the Hanifan, she executed the agreement for sale and undertook thereby that on receipt of a sum of Rs.3.00 lakhs within a period six months therefrom, i.e., on or before 11.12.2008, she would execute the sale deed in respect of the land described in the schedule appended to the said agreement. So, when the very purpose behind creation of this Ext.2 which the Plaintiff now states is not indicated in that Ext.2; suspicion arises in mind, more so when the Plaintiff thereby is seen to have suppressed her own deficiency being not in a position to pay the total agreed consideration. Page 16 of 22 {{ 17 }} (b) This Ext.2 dated 12.06.2008 consists of two pages and is an unregistered one. Hanifan’s Left Thumb Impression (LTI) does not appear on the first page and such LTI is appearing on the second page only. It is also seen that as on the date of execution of said Ext.2, the age of Hanifan, who is a Muslim lady was 72 years. The land involved in Ext.2 comes from Khata No.557, Khasada No.33, Khasada No.34 and Khasada No.36. Out of all these three Khasada, some portions are said to be the subject matter and not the whole area covered thereunder. There is no mention as to the boundaries of those portions nor even it has been stated towards which direction those part lands which are the subject matter of the agreement are situated. The acreage involved in the transaction is not stated by any of the witnesses examined by the Plaintiff including the Plaintiff herself and they do not state that such acreage of land forming the subject matter was clearly started by that Hanifan or was made known to her that as per her desire, it was also indicated. The Plaintiff in fact has no knowledge as to if in Ext.2, the boundary of the land which she agreed to purchase was mentioned or any map had been appended or that those were shown to her or that she had identified those fraction plots of land.The Plaintiff is not able to say as to what documents had been referred to at the time. It is again interesting to watch that the two stamp papers used for preparing Ext.2 bear serial no.15575 and 15576 and although those are Page 17 of 22 {{ 18 }} purported to have been purchased by Hanifan, the LTIs on the reverse as the recipient of those clearly look different to the naked eyes and it is astonish to note that in the stamp paper bearing the serial no.15576, the endorsement of the stamp vendor put in is in respect of serial no.15575 whereas in the stamp paper bearing serial no.15575, there is no such endorsement. These facts hint at some sort of hurry in the matter. (c) The Plaintiff simply states that Hanifan received the advance consideration of Rs.7.00 lakhs and her son the deceased Defendant No.1 was present at the time. She states to have paid the advance money of Rs.7.00 lakhs. The agreement being dated 12.06.2008, as stated by P.W.1 Hanifan died on 05.12.2008. When it has not been stated that by P.W.1 that she has not obtained the sum of Rs.7.00 lakhs from her Bank account; it is obvious that she must have carried the cash for payment to Hanifan. She is not stating that she had carried such huge sum with her and having paid it, Hanifan herself or someone else received on her behalf. Evidence is not there on record that Hanifan counted that sum of Rs.7.00 lakhs and when it is said that son of Hanifan, the deceased Defendant No.1 was present, it is not stated that the money paid to Hanifan then an old Muslim lady of seventy two years old was received by deceased Defendant No.1 on her behalf after counting the same. In such state of affairs, for a Muslim lady of the age of 72 yeas who is said Page 18 of 22 {{ 19 }} to have executed the document by putting her LTI, it is per se not believable that she counted such huge sum herself. The scribe of the document is P.W.2. When P.W.1 states that the agreement (Ext.2) was prepared in the house of Hanifan; the scribe P.W.2 states that Ext.2 was prepared in Kuchery in his Sherista, the place where he used to sit and transact his daily professional activities and there Hanifan was explained with the contents; she again says to have not known the scribe (P.W.2). She is even silent as to how then P.W.2 was chosen to scribe that Ext.2 or at whose instance or advice. P.W.3, a retained labourer under the deceased-Defendant No.1 is a witness to that Ext.2, who says that Ext.2 was prepared in Moharir’s Sherista. It is simply stated by P.W.2 that he scribed under the instruction of Hanifan which was executed by Hanifan in favour of the Plaintiff and he had read over and explained the contents of the same to Hanifan and the Plaintiff who understanding the contents and true effect of the document admitted to those to be correct. It being his evidence that Hanifan herself received a sum of Rs.7.00 lakhs, he then states nothing about counting. He admits to have not referred to any document while preparing Ext.2 and to have not indicated the boundary of each plot and to have not put his signature while attesting the LTI of Hanifan. It is his evidence that he had no acquaintance with Hanifan and it was for the first time that on her request, he prepared the document in the Court premises, while further admitting Page 19 of 22 {{ 20 }} that he has not written in the Ext.2 that Rs.7.00 lakhs was given to Hanifan by the Plaintiff in his presence. It is hard to believe that Hanifan, a Muslim lady of 72 years would go to the court premises and directly contact P.W.2 to scribe the agreement. This P.W.2 is also not stating as to who gave such detail particulars to be mentioned in the document whether it was verbally told or any slip was given. It has been stated by P.W.3 who is a signatory to Ext.2 that Hanifan executed the agreement after receiving a sum of Rs.7.00 lakhs in his presence but he too does not state as to whether Hanifan herself counted the money or it was done by somebody else on her behalf being so directed. Thus from the evidence of all these three witnesses, strong suspicious features arise as to due execution of Ext.2 by Hanifan, with regard to the payment and receipt of such huge advance consideration. (d) The executant being an old illiterate lady hailing from Muslim community, the Plaintiff in order to prove due execution of this document under challenge is under legal obligation also to prove that the contents of the agreement are all true as regards their happenings and more importantly to prove that the executant received the benefit out of the said agreement which in the present case is the consideration of Rs.7.00 lakhs. There is absolutely no evidence as to what Hanifan did with that Rs.7.00 lakhs and what was the need for her to have that money at that point of time. Page 20 of 22 {{ 21 }} (e) With such features appearing in evidence merely because the deceased-Defendant No.1 is a witness to the document (Ext.2), the Courts below, in my considered view, have erred in holding that the executant was having the independent advice especially when it is alleged by the Defendants that said deceased Defendant No.1 was the mastermind and he in collusion with the brother of the Plaintiff has created this document
Decision
In the result, both the Appeals are hereby allowed. The suit filed by the Respondent No.1 (Plaintiff) is dismissed. No order as to cost is, however, passed. Himansu (D. Dash), Judge. Page 22 of 22