Akshaya Kumar Rath JUDGMENT
Dr. Akshaya Kumar Rath, J.
1. Defendant No. 1 is the appellant against a confirming judgment.
2. Plaintiffs-respondent Nos. 1 and 2 instituted the suit for declaration that the gift deed dated 15.12.67 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. One Mohan Pasayat was the common ancestor of the parties. His daughter, Chandrama married to Balaram Pasayat. Balaram died leaving behind him two sons, namely, Kanhei and Gajaraj, defendant No. 1. Kanhei died leaving behind the plaintiffs and proforma defendant Nos. 2 and 3. The case of the plaintiffs was that after death of Balaram, Mohan gifted the suit property to Chandrama by means of a registered gift deed dated 31.3.35. Thereafter Chandrama shifted to her father's house with defendant No. 1, when he was three years old. Kanhei remained alone. Defendant No. 1 obtained a gift deed in respect of schedule 'A' property from Chandrama and Kanhei on 15.12.67 by playing fraud. The M.S.R.O.R. stands in the name of Chandrama. While matter stood thus, defendant No. 1 filed the gift deed before the consolidation authorities on 10.3.81 during consolidation operation. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendant No. 1 filed a written statement denying the assertions made in the plaint. The specific case of the defendant No. 1 was that Chandrama and Kanhei executed the gift deed dated 15.12.67 in his favour. The gift deed was acted upon. Kanhei was a man of high intelligence. The gift deed is a genuine one. Proforma defendant Nos. 2 and 3 had been set ex parte. The suit land was mutated in his name on 24.2.72, Ext. E. The suit land was also mortgaged on 13.1.75, Ext. H.A. portion of the suit land was sold on 21.9.76 to which Chandrama was a witness.
4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary, to substantiate their cases. 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. Ext. B was registered at Sambalpur instead of Bargarh. Ext. B was obtained by exercising fraud. The unsuccessful defendant No. 1 filed T.A. No. 31/22/5 of 1985-86-87 before the Additional District Judge, Bargah, which was eventually dismissed.
5. The second appeal was admitted on the following substantial question of law.
"Whether the finding of the lower appellate court that the gift deed Ext. B was hit by fraud is sustainable in absence of analysis of evidence and the challenges made to the finding of the trial court by the appellant as noted in para-9 of the judgment of the lower appellate court shall be considered."
6. Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondents.
7. Mr. Das, learned counsel for the appellant, submitted that there is no evidence on record that defendant No. 1 played fraud and obtained the gift deed, Ext. B. The finding of the courts below is perverse. Due execution of Ext. B had been proved. Thus the learned lower appellate court is not justified in holding that the evidence on record does not confirm the standard of proof as required in the case of an illiterate lady. There is no specific pleading that the defendant No. 1 has played fraud.
8. The principle governing the execution of deed by an illiterate woman is well known. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, MANU/SC/0392/1962 : AIR 1963 SC 1203, the apex Court........