Normally, when execution of a document is either admitted or proved and when no disabling factor or vitiating circumstance is alleged or proved, admission or proof of signature with the necessary formalities, if any, will be proof of execution with knowledge of the contents atleast, prima facie, for the purpose of shifting the burden. If a person denies the execution of a document which contains his signature, he must first explain how the signature happened to be there without actual execution. That may be by getting the signature in a blank paper or under other circumstances which disclose that there was no conscious or voluntary execution. When a person's signature appears at the place" where the "executant would normally sign, the signature may be accepted prima facie as having been put in token of execution. There is the presumption under Section 114 of the Evidence Act that a person only puts signature, in a document in token of execution. Ordinarily, persons do not sign documents without intending to execute them. That is the common course of human conduct or the common course of their public or private business (Sivaramakrishnayya v. Kasiwiswanadham MANU/AP/0212/1956 : A.I.R. 1957 AP 584). If any person wants to rely on any special circumstance, which abrogates the common course of public or private business, he must allege and prove it for the purpose of shifting the burden (Dalchand Mulchand v. Hasanbi - A.I.R. 1938 Nag 153). The question whether a person is a purdanashin lady or an illiterate person who was made to put the signature under vitiating circumstances is a special circumstance to be alleged and proved in order to shift the normal initial burden. Otherwise, when execution is admitted or proved, it is not necessary to prove that the contents of the document were read over and explained (Mahabir Saha v. Haripada Saha - MANU/WB/0084/1982 : A.I.R. 1982 Cal 353).
IN THE HIGH COURT OF KERALA
A.S. No. 202 of 1980
Decided On: 19.06.1990
A. Pathu and Others
Vs.
Katheesa Umma and Others
Vs.
Katheesa Umma and Others
Hon'ble Judges/Coram:
S. Padmanabhan, J.
S. Padmanabhan, J.
Citation:1990(2) KLJ 115
1. Deceased Mohammedkutty married five ladies in succession. We are concerned only with two among them, first plaintiff and first defendant. In the first plaintiff, he left 12 children, who are plaintiffs 2 to 13 and in the first defendant seven, defendants 2 to 8, totalling 19, This suit for partition involves only one item. It is B schedule over which first defendant had a kanom right. She is alleged to have sold her kanom right to her husband under the original of Ext. A1 on 16-10-1943 pursuant to which he purchased the jenmom right under Ext. A2 on 8-8-1951. Alleging that Mohammedkutty was in possession of the suit property as full owner when he died, the plaintiffs claimed their share. First defendant denied execution of Ext. A1 and, in the alternative, pleaded limitation and adverse possession. Defendants 2 to 6 supported her. Defendants 3 and 4 in addition claimed special right over some constructions. Trial court dismissed the suit finding that execution of Ext. A1 is not proved. Hence the plea of adverse possession was not considered. That is how the plaintiffs came up in appeal. No attesting witness to Ext. A1 is alive and available for examination. FW 2 is the scribe and stamp vendor. He could not swear to execution or attestation. He said that the stamp was supplied and the document written by him. The document is a registered one The impression of the left thumb of the first defendant was taken in court and it was compared by an expert with the thumb impression contained in the register kept in the Sub Registrar's office for having registered the original of Ext. A1 which is not available. PW 4 is the expert. In Ext. C1 opinion and in the court he said that both impressions are of the same thumb. Not only that the trial Judge was not convinced by these items of evidence, but he is also of opinion that even if these items of evidence are accepted, they are not sufficient to show that she consciously affixed her thumb impression knowing and understanding the contents of the document and no vitiating factor was played on her. Without any contention from the first defendant, the trial Judge assumed her to be a purdanashin or illiterate lady on whom fraud or misrepresentation might have been played and the burden in that connection was not discharged.
2. There is the evidence of the fourth plaintiff as PW 1 regarding possession There is the admission of the first defendant in the box that till his death Mohammed Kutty lived with her and he died at her residence. Ext. A1 was in 1943. In 1951, Mohammedkutty took Ext. A2 sale of the jenmon right from the wife of PW 3 mentioning his right and possession under Ext. A1. During his life time, there is no evidence of any dispute regarding right over the property. He had no reason to play any fraud on his wife. These factors coupled with registration and proof of thumb impression are normally more than sufficient to establish execution. Courts should not overlook probabilities and assume contentions not taken up by parties.
3. It is an established fact that the science of identification of thumb impression has reached a stage of almost perfection that its correctness cannot be disputed provided the materials supplied by the opinion are capable of inspiring confidence. The document was presented for registration by her and the thumb impression indicates that she gave consent. Ext. C1 and the evidence of PW 4 gave sufficient materials and reasons in support of the conclusion of identity of impressions. No vitiating circumstance is alleged and there is no allegation that she is a purdanashin or illiterate lady who executed and registered the document without understanding what the content is. On her own admission, though illiterate, she conducted cases of her own, gave instructions for filing written statement, reply notice. etc. and appeared before police station, court, Sub Registrar's office and office of lawyers.
4. Normally, when execution of a document is either admitted or proved and when no disabling factor or vitiating circumstance is alleged or proved, admission or proof of signature with the necessary formalities, if any, will be proof of execution with knowledge of the contents atleast, prima facie, for the purpose of shifting the burden. If a person denies the execution of a document which contains his signature, he must first explain how the signature happened to be there without actual execution. That may be by getting the signature in a blank paper or under other circumstances which disclose that there was no conscious or voluntary execution. When a person's signature appears at the place" where the "executant would normally sign, the signature may be accepted prima facie as having been put in token of execution. There is the presumption under Section 114 of the Evidence Act that a person only puts signature, in a document in token of execution. Ordinarily, persons do not sign documents without intending to execute them. That is the common course of human conduct or the common course of their public or private business (Sivaramakrishnayya v. Kasiwiswanadham MANU/AP/0212/1956 : A.I.R. 1957 AP 584). If any person wants to rely on any special circumstance, which abrogates the common course of public or private business, he must allege and prove it for the purpose of shifting the burden (Dalchand Mulchand v. Hasanbi - A.I.R. 1938 Nag 153). The question whether a person is a purdanashin lady or an illiterate person who was made to put the signature under vitiating circumstances is a special circumstance to be alleged and proved in order to shift the normal initial burden. Otherwise, when execution is admitted or proved, it is not necessary to prove that the contents of the document were read over and explained (Mahabir Saha v. Haripada Saha - MANU/WB/0084/1982 : A.I.R. 1982 Cal 353).
5. Purdanashin ladies are so excluded 'from ordinary social inter -course that ac amount of incapacity for business must be subscribed to them. I do not mean to say that the protection is confined to that class alone. But outside that class, the protection must depend in each case on the character and position of the individual woman, whether those who deal with her are or are not bound to take special precautions that her actions shall be intelligent and voluntary and to prove that it was so in the case in dispute. No Such character and position is alleged or proved in this case and, in fact, it was disproved also. First defendant is an independent woman of more than ordinary capacity for, and experience in, dealing with property.
6. Registration of a document is a solemn act to be performed in the presence of the Sub Registrar, who is statutorily authorised for that purpose. He is duty bound to see that documents are executed by proper and competent persons. He has to get the parties indentified - by proper persons if they are not personally known to him. He has to ascertain from the executant that the execution was on free will after understanding the contents. When it is proved that the document was executed and registered, the presumption is that all the formalities were properly and regularly undergone by the registering authority. Then it is for the party challenging execution and registration to prove that some deliberate fraud was played on the Sub Registrar and the registration was not legal and proper (Gangamoyi Devi v. Trilokhyanath Chowdhary - I.L.R. 1933 Cal 537 P.C. Kunhamina Umma v. Special Tahsidar - I.L.R. 1976 (2) Ker 678, Sumathi Amma v. Kunjulakshmi Amma - 1964 K.L.T. 945, and Mathu v. Cherchi - 1990 (1) K.L.T. 416). No such plea or evidence is there.
7. In the above circumstances, nobody could say that execution and registration are not proved These are the only facts denied. The Subordinate Judge was not justified in going beyond the pleadings and assuming that the first defendant is an incapacitated or illiterate woman who requires the protection of law to insist on special precautions as in the case of pardanashin ladies before accepting the document. Presumption arising from execution and registration had to be rebutted by the first defendant for which even the allegations were not there, much less, proof. Still the Subordinate Judge rejected Ext A1 on the possibility of it being executed and registered without knowing what it is by incapacity or vitiating factors. These reasons cannot be sustained. Status or entitlement of the plaintiffs to get shares are not factors in dispute in case it is found that Mohammedkutty was the owner. But adverse possession and claim for mesne Profits as well as quantum of shares were not decided. The case must, therefor, go back.
The appeal is allowed. Decree and judgment under appeal are set aside. It is found that Mohammedkutty was the owner and the property is available for partition between plaintiffs and defendants. The case is remanded for disposal on the merits subject to what is stated above, after allowing evidence, if any, to be let in. Parties will suffer costs incurred before this court. Office will transmit the records forthwith and the parties will appear before the trial court on 6-8-1990.
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