lady. Thus, onus is on the defendants, who derived the benefits out
of the deed executed by the plaintiff, i.e., Ext.A, to prove and
establish that the document was read over and explained to the
plaintiff and thereafter, she put her signature after fully
understanding the contents thereof. Law is no more res integra on
this point. (See Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964)
CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others,
reported in AIR 1983 Orissa 172). Mr. Pradhan, learned counsel for
the respondents submitted that the contents of Ext.A was read over
and explained to the plaintiff in Odia by the scribe and she put her
signature after being fully satisfied with the said terms and recitals.
Ext.A was admitted into evidence without any objection. Moreover,
P.W.1, the plaintiff at paragraph-6 of her deposition, has admitted
execution of Ext.A and registration thereof. She categorically
admitted in her evidence that on the date of execution and
registration of Ext.A, she had gone to the Sub-Registrar Office with
her husband, namely, Purna Chandra Paikray. However, she
deposed in her evidence at paragraph-10 that on enquiry, she found
that in order to grab the entire property, the defendant No.3 has
attempted to become the absolute owner by practising fraud and no
consideration money as indicated in the alleged deed of sale has been
paid to her. Though at paragraph-6 of her evidence, she admitted
about execution of Ext.A, but in paragraph-7, she deposed that she
does not know English and the entire fact of Power of Attorney
having not been apprised to her, she signed the same on good faith
and she was not aware of the details of said Power of Attorney. The
execution of Ext.A is not disputed by the plaintiff. She only took
exception to Clause-6 of the said Ext.A. The scribe, namely, Sri Kirti
Chandra Swain, an Advocate of Bhubaneswar, had given his 12
endorsement (as stated above), which makes it abundantly clear that
Ext.A was read over and explained to the plaintiff in Odia and she
had put her signature in the said deed being satisfied with its terms
and conditions. The plaintiff does not challenge the endorsement
given by the Scribe, Sri Kirti Chandra Swain. Further, defendant
No.3 against whom allegations have been made that he had obtained
Ext.A fraudulently, though filed his written statement did not come
to the witness box to testify his statement on oath. Thus, the stand
taken by defendant No.3 in his written statement cannot be taken
into consideration. P.W.1 (plaintiff) in her evidence has categorically
admitted that she was accompanied by her husband to the SubRegistrar
Office. Her husband is also an attesting witness to the
Power of Attorney. Thus, she had an opportunity of independent
advice in the matter. In that view of the matter, initial onus on
defendant Nos.1 and 2 to the effect that Ext. A was read over and
explained to the plaintiff and on being satisfied, she put her
signature, is duly discharged. Accordingly, the onus shifts on to the
plaintiff to prove that the contents of the deed was not read over and
explained to her. At paragraph-6 of Nitei Sahu’s case (supra), this
Court has held as under:-
“6. It must, however, be made clear that if the
plaintiff satisfies the Court, after evidence has been
gone into, that she is either a puradanashin or an
illiterate lady, then the onus would shift to the
defendants to establish that the document was read
over and fully explained to her and it was thereafter
that she put her signature after fully understanding
the contents thereof. In many cases the burden is a
shifting one.”
14. Once the initial burden of proof is discharged by the
defendants, onus shifts and heavily lies on the plaintiff to prove her
contention as she challenges the solemnly executed registered
document as fraudulent transaction. She has to prove the
circumstances, which would establish that it was a fraudulent one.
[See Parasnath Thakur Vs. Mohini Dasi (dead) and another, reported
in AIR 1959 SC 1204] HIGH COURT OF ORISSA: CUTTACK
RFA NO.231 OF 2009
Smt. Haramani Paikray
V
Hadibandhu Senapati and others
Dated: 24.06.2016
P R E S E N T:
SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2016 (NOC) 633 Orissa
assailing the judgment and decree dated 23.09.2009 and 8.10.2009
respectively passed by the 1st Additional Civil Judge (Senior Division),
Bhubaneswar in C.S. No.38/735 of 2008/2006.
2. The suit was filed for declaration that the registered sale
deed nos.6476 and 6477 dated 21.2.2004 executed in favour of
defendant Nos.1 and 2 in respect of the suit property by virtue of the 2
Power of Attorney No.806 dated 15.09.2001 are fraudulent,
inoperative, void and not binding on the plaintiff. She also prayed
for a decree of permanent injunction against the defendants.
3. The suit was filed in respect of the property appertaining
to Plot No.63, Khata No.105 under mouza-Baramunda in the district
of Khurda. The plaintiff had purchased the suit property from one
Bhima Charan Swain vide RSD No.3689 dated 12.4.1982 followed by
delivery of possession. After purchase, the plaintiff constructed a
temporary shed over the suit land and rented it out to different
tenants. In the year 2001, the husband of the plaintiff fell ill and
could not look after the family. Thus, all her sons decided to
construct a permanent structure over the suit land. Out of three
sons of the plaintiff, the elder two did not agree to take up the
responsibility. Her husband being ill was confined to bed and was
unable to shoulder any responsibility. Defendant No.3, the youngest
son of the plaintiff, agreed to look after the development of the suit
land. Accordingly, a registered Power of Attorney bearing No.806
dated 15.09.2001 was executed by the plaintiff in favour of defendant
No.3 for development of the suit property. The contents of the Power
of Attorney was not read over or explained to the plaintiff and the
plaintiff could not know about the terms and recitals of the same. It
was further contended in the plaint that defendant No.3 had
obtained the Power of Attorney by misrepresentation. It is only on
15.10.2006, when defendant Nos.1 and 2 tried to evict the tenants 3
from the house constructed over the suit land, the plaintiff came to
know that the Power of Attorney was obtained fraudulently by the
defendant No.3 authorizing him to sell the suit property. By virtue of
such authorization, the defendant No.3 sold away the suit land to
defendant Nos.1 and 2. The sale deeds executed in favour of
defendant Nos.1 and 2 by defendant No.3 were nominal. No
consideration money was paid to the vendor by virtue of such sale
and no delivery of possession was given to defendant Nos. 1 and 2
pursuant to execution of such sale deeds. The plaintiff also
challenged that the sale deeds were undervalued. She claimed to be
in possession over the suit property. As her possession over the suit
land was threatened by the defendant Nos. 1 and 2, she prayed for
the aforesaid relief.
4. The defendant Nos. 1 and 2 filed their written statement
jointly refuting the averments made in the plaint. They challenged
the maintainability of the suit so also the cause of action for filing
the same. They also contended that the suit was barred by limitation
and also bad for non-joinder of necessary party. According to them,
the plaintiff, who was the owner of the suit property, executed
registered Power of Attorney No. 806 dated 15.9.2001 in favour of
defendant No.3 authorizing him to negotiate and sell the suit
property. Accordingly, defendant No. 3 sold the suit property in their
favour for valuable consideration followed by delivery of possession.
The consideration money was paid to defendant No.3 through4
different cheques, which were encashed by defendant No.3. Thus,
the sale deeds in question were valid, operative and binding on the
plaintiff as well as defendant No.3. Pursuant to such sale, the
defendant Nos. 1 and 2 mutated the property in their name and the
R.O.Rs. were corrected accordingly by renumbering the plot numbers
as 813/1362 and 813/1361. They also contended that they were
paying the rent and holding tax in respect of the suit property. The
electricity connection was also taken in the name of defendant Nos. 1
and 2. Thus, they prayed for dismissal of the suit claiming that the
suit was filed by the plaintiff in collusion with the defendant No. 3
and other family members to harass the defendant Nos. 1 and 2, who
are bona fide purchasers of the suit property.
5. Defendant No.3 filed a separate written statement
supporting the claim of the plaintiff, but he narrated a different story
altogether. The written statement filed by defendant No.3 revealed
that one Rabindra Kumar Paikray by mis-representing had managed
to create the Power of Attorney and also registered the sale deeds in
favour of defendant Nos. 1 and 2. The sale deeds executed in favour
of defendant Nos. 1 and 2 were nominal and no right or possession
whatsoever had been passed on to those defendants by virtue of such
sale deeds. No consideration money was paid to defendant No. 3 for
sale of the suit land. Further, he denied the allegation of the plaintiff
to the effect that he had obtained the Power of Attorney fraudulently
in order to garb the suit property. Hence, he claimed that the 5
defendant nos. 1 and 2 had acquired no title pursuant to the sale
deeds in question.
6. Taking into consideration the rival pleadings of the
parties, the learned trial court framed the following issues.
i) Whether, the suit is maintainable?
ii) Whether, the plaintiff has the cause of action
for the suit?
iii) Whether, the suit is bad for non-joinder of
any necessary party (ies)?
iv) Whether, the suit is barred by time?
v) Whether, the power of attorney by plaintiff in
favour of Defendant No.3 authorised the
Defendant No.3 to alienate the suit land?
vi) Whether, the suit sale deeds by Defendant
No.3 conveyed title to the defendants 1 and
2?
vii) Whether, the plaintiff holds title to the suit
land?
viii) Whether, the plaintiff or defendants 1 and 2
are in possession over the suit land?
ix) To what relief, the plaintiff is entitled?
7. In order to substantiate their respective cases, the
plaintiff examined as many as five witnesses including herself as
P.W.1. She also relied upon Exts.1 to 4 including the certified copies
of registered sale deed Nos. 6476 and 6477 dated 21.12.2004
executed by defendant No. 3 in favour of defendant Nos.1 and 2
(Exts.1 and 2), R.O.R. No. 813/417 of the suit land (Ext.3), which 6
was prepared in her name and Ext. 4, i.e., the sale deed No. 3689
dated 12.4.1982 by virtue of which she had purchased the suit land.
Defendant Nos.1 and 2 in support of their case, examined three
witnesses including defendant No.1 as D.W. 1. They also relied upon
different documents including the registered Power of Attorney (Ext.
A), the sale deeds executed in favour of defendant Nos. 1 and 2 (Exts.
B and C), copies of cheques (Ext. D/1) by virtue of which
consideration money was paid to defendant No. 3, pass book (Ext. E)
and relevant entries made in the pass book (Ext. E/1). They also
relied upon Exts. F and G, the mutation R.O.Rs. in respect of the
suit land in their favour. Exts. H to H/9 are rent receipts and Exts.
J to J/9 are assessment and payment of holding tax. They further
relied upon Exts. K to K/10 which were electricity bills and receipts
in respect of the suit property. Defendant No.3 neither examined any
witness nor produced any document in support of his case.
8. The learned trial court took up all the issues together for
consideration and answered those negatively. Accordingly, the suit
was dismissed.
9. Mr. Parija, learned counsel for the appellant canvassed
that Issue No. (v) is the vital issue for consideration in this appeal.
He contended that the plaintiff is an illiterate and paradanasini lady.
She can not read and write in Odia except signing her name in Odia.
Thus, onus lies heavily on the defendant Nos. 1 and 2 to prove that
Power of Attorney (Ext.A) was properly executed and the plaintiff7
after understanding the contents thereof had put her signature on it.
In support of his case, Mr. Parija relied upon the decisions in the
cases of Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964) CLT
463 (para-6) and Brundaban Misra Vs. Iswar Swain and others,
reported in AIR 1983 Orissa 172. He also contended that the sale
deeds were nominal and no consideration money was paid to the
plaintiff pursuant to execution of such sale deeds. The plaintiff is
still in possession of the suit land and the possession of the suit land
was never delivered to defendant Nos.1 and 2 pursuant to the sale
deeds (Exts.1 and 2). He further contended that the learned trial
court has not assessed the evidence and the materials on record
properly which resulted in grave miscarriage of justice. Thus, he
prayed for setting aside the impugned judgment and decree and to
grant the relief as prayed for in the suit.
10. Mr. Pradhan, learned counsel for the respondent Nos.1
and 2, on the other hand, refuting the submission made by Mr.
Parija, contended that the plaintiff in her evidence has categorically
admitted the execution of Power of Attorney. Though she claimed
that she had no knowledge about contents of the terms and
conditions of Power of Attorney and the Power of Attorney was only
executed for development of the suit property, the scribe of the deed
of General Power of Attorney had in clear terms endorsed that the
contents of the deed was read over and explained to the plaintiff in
Odia and after being satisfied, she signed the same. Thus, she had
knowledge of the contents as well as the terms and recitals of the
Power of Attorney. The consideration money was paid to defendant
No. 3 through cheques (Exts. D and D/1). The entry of the cheques
in the bank account of defendant No. 3 was also proved through
Exts. E and E/1. In support of possession of defendant Nos.1 and 2
over the suit property, Mr. Pradhan relied upon Exts. F to K/10,
which are mutation R.O.R., rent receipts, holding tax receipts etc.
and electricity bills and receipts in respect of the suit property. Those
documents clearly disclose that after purchase of the suit property,
defendant Nos.1 and 2 mutated the same in their name, paid the
land revenue and holding tax in respect of the suit property. They
also took electricity connection in their names and paid the
electricity charges. He also contended that the recitals of the sale
deeds (Exts.1 and 2) clearly stipulate that consideration money was
received and possession of the suit property was delivered to
defendant Nos.1 and 2 pursuant to execution of the sale deeds.
Thus, the sale deeds as well as the Power of Attorney cannot be said
to have been obtained fraudulently and the same are binding on the
plaintiff. Mr. Pradhan, further contended that there is no prayer in
respect of Ext.A, the Power of Attorney. When there is no prayer
either to declare the Ext. A as null and void or to declare the same
not binding on the plaintiff, the contention of Mr. Parija to the effect
that Ext.A was obtained fraudulently, is not sustainable in the eye of
law and the genuineness of Ext.A cannot be questioned. The learned 9
trial court has rightly assessed the evidence and the materials on
record and came to a definite finding to the effect that the sale deeds
were properly executed in favour of defendant Nos.1 and 2 and
delivery of possession was given to them pursuant to such execution
of the sale deeds. Thus, he prayed for dismissal of the appeal.
11. This matter had come up before this Court for
consideration of the interim application (Misc. Case No.141 of 2015)
on 21.7.2015. In course of hearing of the interim application, both
the parties prayed to make an endeavour to dispose of the appeal
finally. Thus, this Court proceeded to dispose of the matter finally
dispensing with the formal admission of the appeal. Accordingly, Mr.
Parija filed the paper book on compulsory documents and Mr.
Pradhan filed the photocopies of the relevant exhibited documents,
copies of which were exchanged between learned counsel for the
parties.
12. Mr.Parija, learned counsel for the appellant drew
attention of this Court to different terms and conditions of the Power
of Attorney. On perusal of Ext.A, it appears that the principal,
namely, the plaintiff had made a declaration that she being a
Paradanasin lady unable to appear before various competent
authorities and do certain acts, deeds and things for which she
executed a General Power of Attorney in favour of her son, namely,
Susanta Kumar Paikray, defendant No.3 as her true and lawful
attorney. Clause-6 of the Power of Attorney stipulates that defendant 10
No.3 was authorized to sell the suit property, purchase stamp
papers, sign and execute the sale deed and any other deed of
conveyance, agreements etc. on behalf of the plaintiff. It is further
disclosed from Ext.A that the scribe, namely, Sri Kirti Chandra
Swain, Advocate, Bhubaneswar has given his declaration, which is
as follows:-
“Drafted by me as per the instruction of the
executant and explained the contents of this
deed in Oriya to the executant who being
satisfied signed this Deed.
Sd/-
(K.C.Swain)15.09.2001
Advocate, Bhubaneswar”
Three things are apparent from perusal of Ext.A, such as (i) the
principal, namely, the plaintiff has described himself as Paradanasin
lady; (ii) Clause-6 of Ext.A empowers/authorizes defendant No.3 to
sell the suit property and execute the deed of conveyance; and (iii)
the scribe has made a declaration to the effect that he has read over
and explained the contents of Ext.A to the plaintiff who put her
signature on being satisfied. Further, it appears from Ext.A that the
plaintiff had put her signature in Odia as the principal.
13. There is no quarrel that the plaintiff is a Paradanasin
lady. Thus, onus is on the defendants, who derived the benefits out
of the deed executed by the plaintiff, i.e., Ext.A, to prove and
establish that the document was read over and explained to the
plaintiff and thereafter, she put her signature after fully
understanding the contents thereof. Law is no more res integra on11
this point. (See Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964)
CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others,
reported in AIR 1983 Orissa 172). Mr. Pradhan, learned counsel for
the respondents submitted that the contents of Ext.A was read over
and explained to the plaintiff in Odia by the scribe and she put her
signature after being fully satisfied with the said terms and recitals.
Ext.A was admitted into evidence without any objection. Moreover,
P.W.1, the plaintiff at paragraph-6 of her deposition, has admitted
execution of Ext.A and registration thereof. She categorically
admitted in her evidence that on the date of execution and
registration of Ext.A, she had gone to the Sub-Registrar Office with
her husband, namely, Purna Chandra Paikray. However, she
deposed in her evidence at paragraph-10 that on enquiry, she found
that in order to grab the entire property, the defendant No.3 has
attempted to become the absolute owner by practising fraud and no
consideration money as indicated in the alleged deed of sale has been
paid to her. Though at paragraph-6 of her evidence, she admitted
about execution of Ext.A, but in paragraph-7, she deposed that she
does not know English and the entire fact of Power of Attorney
having not been apprised to her, she signed the same on good faith
and she was not aware of the details of said Power of Attorney. The
execution of Ext.A is not disputed by the plaintiff. She only took
exception to Clause-6 of the said Ext.A. The scribe, namely, Sri Kirti
Chandra Swain, an Advocate of Bhubaneswar, had given his 12
endorsement (as stated above), which makes it abundantly clear that
Ext.A was read over and explained to the plaintiff in Odia and she
had put her signature in the said deed being satisfied with its terms
and conditions. The plaintiff does not challenge the endorsement
given by the Scribe, Sri Kirti Chandra Swain. Further, defendant
No.3 against whom allegations have been made that he had obtained
Ext.A fraudulently, though filed his written statement did not come
to the witness box to testify his statement on oath. Thus, the stand
taken by defendant No.3 in his written statement cannot be taken
into consideration. P.W.1 (plaintiff) in her evidence has categorically
admitted that she was accompanied by her husband to the SubRegistrar
Office. Her husband is also an attesting witness to the
Power of Attorney. Thus, she had an opportunity of independent
advice in the matter. In that view of the matter, initial onus on
defendant Nos.1 and 2 to the effect that Ext. A was read over and
explained to the plaintiff and on being satisfied, she put her
signature, is duly discharged. Accordingly, the onus shifts on to the
plaintiff to prove that the contents of the deed was not read over and
explained to her. At paragraph-6 of Nitei Sahu’s case (supra), this
Court has held as under:-
“6. It must, however, be made clear that if the
plaintiff satisfies the Court, after evidence has been
gone into, that she is either a puradanashin or an
illiterate lady, then the onus would shift to the
defendants to establish that the document was read
over and fully explained to her and it was thereafter
that she put her signature after fully understanding
the contents thereof. In many cases the burden is a
shifting one.”
14. Once the initial burden of proof is discharged by the
defendants, onus shifts and heavily lies on the plaintiff to prove her
contention as she challenges the solemnly executed registered
document as fraudulent transaction. She has to prove the
circumstances, which would establish that it was a fraudulent one.
[See Parasnath Thakur Vs. Mohini Dasi (dead) and another, reported
in AIR 1959 SC 1204]
15. The Plaintiff (P.W.1) in her evidence has not whispered a
single word with regard to the manner of fraud committed on her.
On the other hand, during cross-examination, she did not cooperate
and also refused to recognize her signature and that of her husband
on Ext.A, though she admitted execution of the same. Further, the
specific pleading of the plaintiff to the effect that her husband was ill
and confined to bed and was unable to look after the development of
the land, for which the Power of Attorney was executed in favour of
defendant No.3, cannot be accepted for the sole reason that her
husband accompanied her to the Sub-Registrar Office and stood as
an attesting witness to Ext.A. Admittedly, neither the Scribe nor the
husband of the plaintiff was examined in the suit. Their examination
could have thrown some light on the veracity of the statement of the
plaintiff. In absence of the circumstances as shown above, only
conclusion that can be drawn is that the plaintiff by virtue of Power
of Attorney (Ext.A) had authorized defendant No.3 to alienate the suit
land. Thus, I find no infirmity in the finding of the learned Trial
Court in respect of issue No.(v).
16. The contention of the Mr. Pradhan to the effect that the
genuineness of Ext.A cannot be called in question as no relief to that
effect is sought for, cannot be accepted solely because the issue to
that effect, namely, issue No.(v), has been framed; all the parties to
the suit have led evidence and produced materials in support of their
respective cases with regard to genuineness and binding effect of
Ext.A.
17. The contention of Mr. Parija with regard to non-receipt of
consideration money by the plaintiff cannot have any effect on the
validity of the sale deed, i.e., Exts. 1 and 2 for the reason that the
defendants 1 and 2 had paid the consideration money to defendant
No.3 (the Attorney of the plaintiff) vide Exts.D to D/1. The pass book
(Ext.E) and relevant entries dated 22.12.2004 (Ext.E/1) makes it
abundantly clear that the consideration money was paid to
defendant No.3 and the same was credited to the bank account of
defendant No.3 as per Ext.E/1. Moreover, the deposition of D.W.1
(defendant No.1) to that effect is not challenged. In that view of the
matter, the contention of Mr.Parija cannot be accepted.
Mr. Parija further contended that the plaintiff-appellant
is in possession over the suit land and the same has not been
delivered to the defendants 1 and 2 pursuant to Exts. 1 and 2 (Exts. 15
B and C). In order to testify the veracity, I have gone through the
recitals of registered sale deeds marked as Exts. B and C. The sale
deeds in clear and unambiguous terms reveal that the delivery of
possession was given to defendant Nos.1 and 2 pursuant to
execution of the same. Further, after purchase of the suit land, the
defendants 1 and 2 got the land mutated in their name and the ROR
was corrected accordingly as per Exts.F and G. After correction of
ROR, Khata numbers were corrected as 813/1362 and 813/1361
respectively in favour of defendant Nos.1 and 2. Ext. H series (Ext. H
to H/9) disclose that defendant Nos.1 and 2 have been paying land
revenue in respect of the suit land. Ext.J to J/9 disclose that they
have been paying holding tax in respect of the suit land. Defendant
nos.1 and 2 have also taken electricity connection and have been
paying the electricity dues, which is apparent from Ext.K to K/10.
These documents were admitted into evidence without any objection.
The statement on oath of D.W.1 with regard to the veracity of the
aforesaid exhibits was not challenged. In that view of the matter, it
is very difficult to accept the contention of Mr.Parija to the effect that
the plaintiff still retains the possession of the suit land with her. All
these documents amply prove that defendant nos.1 and 2 are in
possession over the suit land pursuant to execution of Exts. 1 and 2
and are exercising their right, title and interest thereon.
Mr. Parija further contended that the pleadings of
defendant No.3 in his written statement goes uncontroverted as the 16
defendant nos.1 and 2 did not file any additional written statement
challenging the same. Thus, the relief sought for by the plaintiff
should be granted being upon the pleadings of defendant No.3
following the doctrine of non-traverse as enumerated in 38 (1972)
CLT 110. Mr. Pradhan strongly refuted the same contending that it
was beyond the scope of the suit for adjudication. On perusal of the
pleadings in the written statement of defendant No.3, it appears that
he had narrated a completely different story than that of the plaintiff.
However, he had supported the plea of the plaintiff to the effect that
Ext.A was an outcome of misrepresentation. The defendant No.3 has
not come to the witness box to testify his statement made in his
written statement. Thus, the story narrated by him cannot be taken
into consideration and the plaintiff cannot take any advantage of the
same. She could have succeeded on the strength of her own case.
Thus, the contention of Mr. Parija merits no consideration.
18. In the facts and circumstances of the case stated above,
I find no infirmity in the findings of the learned 1st Additional Civil
Judge (Senior Division), Bhubaneswar and accordingly, I confirm the
same. The appeal being devoid of any merit is dismissed, but in the
circumstances, there shall be no order as to costs.
………………………….
K.R. Mohapatra, J.
Orissa High Court, Cuttack
Dated the 24th June, 2016/bks/ss
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