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Case Number

Second Appeal No. 3323 of 1978*

Attorney(S)

K. B. L. Gour
S. P. Kumar
N. S. Singh
B. D. Tripathi and Dr. Gyan Prakash

Judges

V.N Khare, J.

Acts

S. 123 of the Transfer of Property Act
S. 34 of the Registration Act

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Smart Summary

Summary of Legal Opinion

Factual and Procedural Background

This second appeal arises from a suit filed by the plaintiff-respondent, Mst. Bakhtawari, seeking cancellation of a gift-deed dated 1-8-1974 and registered on 20-9-1974 relating to agricultural land partly in village Bilsoori and partly in village Derha, Pargana Sikandarabad, District Bulandshahr. The plaint alleged that the defendant-appellants — Mst. Mallo, Mst. Narain and Mst. Kalawati (three married daughters of the plaintiff) — obtained the plaintiff's thumb impressions on several papers by misrepresentation and collusion on the pretext that the documents would give equal shares to all daughters after the plaintiff's death. The plaintiff further alleged the gift-deed was not read to her, she believed she was executing a will, and the attesting witnesses were strangers to her village.

The defendant-appellant Mst. Mallo denied the allegations, claiming the plaintiff willingly gifted her the property and that no fraud was played. The learned Munsif framed issues and decided material issues against the plaintiff, holding the gift-deed valid and dismissing the suit. On appeal, the Appellate Court allowed the plaintiff's appeal and decreed the suit as prayed. The present second appeal was heard after an initial attempt at negotiated compromise failed; the Court proceeded to dispose of the appeal on merits.

Legal Issues Presented

On whom does the burden of proof lie regarding the validity of a transaction (gift-deed) executed by an illiterate widow — does the burden rest on the plaintiff to prove non-consent, or on the defendants/donees to prove the document was explained and understood?
Whether, when the validity of a gift-deed is specifically denied, attesting witnesses required by S. 123 of the Transfer of Property Act must be produced to prove attestation.
What is the probative value of a registration endorsement (note by the Registrar under S. 34/58 of the Registration Act) when circumstances of execution are suspicious?
Whether the Appellate Court's finding of fraud in obtaining the gift-deed was supported by the evidence or was based on misreading/ignoring defendant evidence and mere presumptions.
What is the correct remedy where a document alleged to be a gift-deed is held void — whether the suit for cancellation can be decreed or must be dismissed because no enforceable document exists to cancel.

Arguments of the Parties

Appellant's Arguments

The Appellate Court erroneously cast the burden of proof on the defendant to prove the document was a valid gift-deed; where the plaintiff alleged she never intended to execute the gift-deed, the burden was on the plaintiff to prove that allegation.
Once the plaintiff alleged the document was a gift-deed, it should be deemed to have been duly attested under S. 123 of the Transfer of Property Act and attesting witnesses need not be produced; the Appellate Court's contrary view was erroneous.
The Appellate Court's finding of fraud (that Mst. Mallo and her husband obtained the gift-deed by fraud) was based on misreading and ignoring the defendants' evidence and mere presumptions drawn from circumstances.
The Appellate Court wrongly held that the document was never read over and explained to the plaintiff; the registrar's endorsement (made under S. 34 of the Registration Act as required under S. 58) purportedly indicated the document was read and understood.
If the Appellate Court found that no rights were transferred because the gift-deed was not proved to be valid, the suit for cancellation could not be decreed (there being no valid document to cancel) and should have been dismissed instead.

Respondent's (Plaintiff's) Allegations and Position

The plaintiff alleged she was an illiterate widow for about 30 years, ignorant and dependent, and that Mst. Mallo and her husband, in collusion with the scribe, obtained her thumb impressions on several papers by misrepresentation, believing she was executing documents that would give equal shares to all three daughters after her death.
The plaintiff asserted the gift-deed was not read over or explained to her, and that the attesting witnesses were not known to her or residents of her village.
The plaintiff sought declaration that the gift-deed was void and its cancellation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parasnath Rai v. Tileshra Khuar, 1965 All LJ 1080	The rules regarding transactions by a Pardahnashin lady apply equally to an illiterate and ignorant woman; protection derives from disabilities (age, infirmity, ignorance, illiteracy, dependence) that justify placing the burden on the person seeking to sustain the transaction to prove the document was explained and understood by her.	The Court applied this principle to hold that because the plaintiff was an illiterate widow, ignorant and dependent, the burden of proof regarding validity of the gift-deed was rightly cast on the defendants/donees to show the document was explained and understood.
Lachman Singh v. Surendra Bahadur Singh, AIR 1932 All 527 (Full Bench)	Where execution and attestation of a deed are not admitted, a mortgagee need only prove signature in presence of an attesting witness if the document bears more than one attestation on its face; but if validity is specially denied (i.e., the document did not effect the transaction in law), the deed must be proved to have been attested by at least two witnesses.	The Court relied on this Full Bench rule to hold that because the validity of the gift-deed was specially denied, the donee had to produce attesting witnesses as required by law; mere admission of signature was insufficient.
Bindeshri Prasad v. Panchayati Akhare Maha Nirbani Goshain, AIR 1936 All 169	Execution of a document and its attestation as required by law are distinct acts; admission of signature does not dispense with proof of attestation, especially where attestation is specifically denied.	The Court applied this distinction to conclude that attestation had to be proved independently and that attestation was not proved in the present case.
AIR 1972 Gauh 44	Attestation and execution are two different acts; attestation is meant to ensure the executant was a free agent and not under pressure or subject to fraud while executing the document.	The Court cited this to support the necessity of proving attestation to guard against fraud/coercion in the execution of the gift-deed.
AIR 1918 Oudh 120	A registration endorsement by the Registrar is not conclusive proof of execution and cannot be relied upon when the circumstances of execution are suspicious.	The Court relied on this principle to hold that the registrar's endorsement did not conclusively prove the document was read and understood where other evidence made the circumstances suspicious.

Court's Reasoning and Analysis

The Court proceeded stepwise, addressing each contested legal point by reference to evidence on record and established legal principles:

Burden of proof regarding transactions by an illiterate widow: The Court explained that the protective rule applied to Pardahnashin women extends to illiterate, ignorant, dependent women. Citing Parasnath Rai v. Tileshra Khuar, the Court reasoned that because the plaintiff was an illiterate widow for about 30 years and evidence showed she was ignorant, inexperienced and dependent, the burden was rightly shifted to the donee-defendants to prove the gift-deed was explained to and understood by the plaintiff. The Court therefore rejected the appellant's contention that the burden lay with the plaintiff alone.
Requirement of attestation under S. 123, Transfer of Property Act: The Court noted that S. 123 requires attestation by at least two witnesses. Relying on the Full Bench decision in Lachman Singh and the subsequent authority in Bindeshri Prasad, the Court observed that execution (signature) and attestation are distinct and where validity is specifically denied, attesting witnesses required by law must be produced. Because the gift-deed's validity was specially denied in this case, the donee was obliged to produce attesting witnesses.
Assessment of attestation proof and Registrar's endorsement: The Court considered the registrar's note made under S. 34 (and S. 58) but recalled the principle from AIR 1918 Oudh 120 that registration endorsement is not conclusive proof when execution circumstances are suspicious. On the evidence, the plaintiff (P.W.1) consistently stated the document was not read or explained; P.W.2 and evidence from the scribe and others did not corroborate that the document was read to the plaintiff. The appellate court's finding that attestation was disproved was accepted.
Findings on fraud and circumstantial indicators: The Appellate Court had considered multiple aspects — absence of evidence of preference for Mst. Mallo, the document not being read over, the unusual nature of the gift given the plaintiff's lack of other income, and that attesting witnesses were not residents of plaintiff's village — in concluding fraud. The present Court reviewed the record (including statements of witnesses such as Chanderpal Singh, Khusi Ram the scribe, Vir Narain, and the plaintiff) and found sufficient support for the Appellate Court's conclusion that the document was not read and that fraud was established on the evidence rather than mere presumption.
Remedy where deed found void: The Court addressed the contention that if the gift-deed conferred no rights then a suit for cancellation could not be decreed. It noted the plaintiff's suit specifically sought declaration that the gift-deed be declared void and cancelled; because the Appellate Court had validly found the document void and conferring no rights, cancellation was an appropriate disposition. The Court found no manifest error in the Appellate Court's cancellation of the deed.

Holding and Implications

Holding: The second appeal is DISMISSED with costs. The Appellate Court's decree in favor of the plaintiff-respondent canceling the gift-deed stands.

Implications:

Direct effect: The Appellate Court's decree declaring the gift-deed void and cancelling it is affirmed; the defendant-appellant Mst. Mallo obtains no rights under the impugned gift-deed.
Legal principle: The Court applied established precedents to confirm that special protection (and corresponding burden shift) applies to an illiterate, dependent widow analogous to a Pardahnashin woman; attestation required by S. 123 must be proved where validity is specially denied; and registrar's endorsement is not conclusive when circumstances of execution are suspicious.
No new precedent: The opinion applies existing case law and statutory provisions; it does not purport to lay down a new legal principle beyond applying established authorities to the facts of this case.

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Smt. Mallo v. Smt. Bakhtawari And Others

1. When this second appeal was heard it appeared that the parties may settle the dispute by negotiated compromise. Since no compromise was arrived at I proceed to dispose of the appeal on its merit.

2. This second appeal arises out of suit filed by plaintiff-respondent for cancellation of gift deed dated 1-8-1974 registered on 20-9-1974 with respect to the property detailed at the foot of the plaint partly situate in village Bilsoori and partly in village Derha, Pargana Sikandarabad, District Bulandshahr. In brief the plaint allegations were that the defendant-appellants, Mst. Mallo, Mst. Narain and Mst. Kalawati are the three married daughters of plaintiff-respondent, Mst. Bakhtawari. The plaintiff is the widow for last 30 years. The defendant-appellant, Mst. Mallo on 30-7-1974 came to the plaintiff's house along with her husband and asked her to move an application for giving her entire land to all the three daughters equally after her death and for that purpose took her to Sikandarabad on 1-8-1974. At Sikandarabad Mst. Malloo and her husband Jaspal Singh, in collusion with the scribe obtained the plaintiff-respondent's thumb impressions on several papers on the pretext that those documents were required in order to give equal share to all the three daughters after her death. After sometime Mst. Mallo and Jaspal Singh went to plaintiff, village Bilsaori and asked plaintiff's husband's brother to give possession over the land alleging that the plaintiff had already gifted the entire land in her favour. The plaintiff further alleged that the attesting witnesses Chandra Pal and Vir Narain are not the residents of the plaintiff's village nor the plaintiff has any knowledge of them. The plaintiff further alleged that the gift-deed in question was not read over and explained to her and she was under the impression that she was putting her thumb impressions on the documents which shall give the property in question equally to all her three daughters after her death.

3. The defendant-appellant Mst. Mallo filed written statement and denied the plaint-allegations. The defendant-appellant pleaded that she was looking after the plaintiff and, therefore, the plaintiff wanted to gift her entire property to her and for that purpose the plaintiff executed the gift-deed in question on her own free will. No fraud was ever played over the plaintiff for executing the documents in the defendant's favour. The gift deed is valid and effective. Apart from this other pleas were also taken.

4. The learned Munsif-framed several issues and decided the material issues against the plaintiff. The learned Munsif held that the gift-deed was not obtained by fraud as alleged in the plaint and the gift deed is valid. In view of the above finding the suit was dismissed.

5. On appeal by the plaintiff, the Appellate Court allowed the appeal and decreed the suit as prayed for by the plaintiff-respondent.

6. Learned counsel for the defendant-appellant urged that the appellate Court has erroneously cast burden of proof on the defendant for proving that the document is really a valid gift-deed. Argument of the learned counsel for the appellant is that the allegation of plaintiff that she never meant execution of the gift-deed while she put her thumb impressions on the document, the burden of proof was on her. It is undisputed fact that the plaintiff is a widow for last 30 years and is also illiterate. In view of the two undisputed facts it is to be seen as to whether the burden of proof in regard to the validity of the gift-deed rests upon the defendant or on the plaintiff.

7. In case of any transaction by Pardahnashin lady the burden of proof is always on the person who seeks to sustain a transaction entered into a Pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction and this burden can only be discharged only by proving that the document was explained to her and she understood it but also on the other evidence, direct and circumstantial.

8. The rule regarding transaction by Pardanashin lady apply equally to illiterate widow though she may not be in strict sense a pardahnashin lady. In the case of (Parasnath Rai v. Tileshra Khuar) 1965 All LJ 1080 it was held that—

“Rules regarding transactions by Pardahnashin lady are equally applicable to an illeterate and ignorant woman though she may not be a pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardahnashin lady but by reason of those disabilities which a life of seclusion lived by a Pardahnashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well as oldage, infirmity, ignorance, illeteracy ailing mental deficiency, inexperience and dependance upon others may by themselves create disabilities that may render the protection equally necessary. It it, therefore, proved that a woman, who is not a Pardahnashin lady, suffers from disabilities to which a Pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a Pardahnashin lady.”

9. In this case it is undisputed fact that the plaintiff is an illeterate and a widow for last 30 years. Evidence on record does show that plaintiff is ignorant, inexperience and has to depend on others. The appellate Court has recorded a finding that plaintiff is illeterate widow for 30 years. In view of the finding the burden of proof was rightly cast on the defendants.

10. The second submission of learned counsel for appellant is that once the plaintiff alleged that the document is gift-deed, it would be deemed to have alleged that it was duly attested document as required under S. 123 of the Transfer of Property Act and no witness for attestation was required to be produced and view taken by the Appellate Court is erroneous.

11. According to S. 123 of the Transfer of Property Act gift-deed is required to be attested at least by two witnesses. In AIR 1932 All 527 (Lachman Singh v. Surendra Bahadur Singh) two questions were framed to be answered by the Full Bench, First was when a mortgagee sues to enforce his mortgage, and execution and attestation of the deed are not admitted, what must the mortgagee prove in order to obtain a decree? The Full Bench of this Court answered that question thus, “Where a mortgagee sues to enforce his mortgage and the execution of the deed are not admitted, the mortgagee need prove only this much that mortgagor signed the document in the presence of an attesting witness and one man attested the document provided the document on the face of it bears the attestation of more than one person, but if the validity of the mortgage be specially denied, in the sense that the document did not effect a mortgage in law then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses.”

12. Following the above Full Bench decision a Bench of this Court in the case reported in AIR 1936 All 169 (Bindeshri Prasad v. Panchayati Akhare Maha Nirbani Goshain) held that the execution of a document is one thing, and the attesting of it as required by law is quite another thing. An admission by the executant of the signature on the document does not dispense with the proof of its attestation as required by law, particularly when the attestation is specifically denied.

13. In AIR 1972 Gauh 44 it was held that the ‘Attestation’ and ‘Execution’ are two different acts, one following the other in the order stated. Attestation is meant to ensure that the executant was a free agent, and not under pressure nor subject to fraud while executing the same.

14. In view of law laid down it has now to be seen as to whether the witnesses for attestation were required to be produced. In the present case the validity of the gift deed was specially denied, in the sense that the document had no effect in law. In such circumstances it was necessary for the donee to have produced the attesting witnesses of the gift-deed. The appellate Court on the assessment of evidence found that the attestation of gift deed in question was not proved rather it was disproved. In view of that finding the Appellate Court correctly held that the gift-deed in question did not confer any right on donee the defendant-appellant in respect to the property in question.

15. The third submission made by the learned counsel for the appellant is that the finding of the Appellate Court that the fraud was perpetuated on the plaintiff by Smt. Mallo defendant-appellant and her husband in getting the gift-deed executed was based on misreading and ignoring the defendant's evidence on record and has been recorded merely on the presumption drawn from the circumstances. The Appellate Court has considered various aspects while recording finding in regard to fraud perpetuated on the plaintiff by Smt. Mallo these aspects are viz., firstly, that there was no evidence of preference of plaintiff for Smt. Mallo. Secondly, the document alleged to be gift-deed was never read over to her and she put her thumb impressions on the document believing it to be will. Thirdly, that the gift was unusual as plaintiff had no other source of income left other than the property effected by the document. Fourthly, that no attesting witnesses were residents of village Bilsoori where the plaintiff resided and the attesting witnesses to the gift-deed were from village of defendants. The learned counsel for the appellant challenged the findings of the Appellate Court in regard to the aforesaid aspects.

16. Learned counsel for the appellant urged that the finding of the Appellate Court that there is no evidence on record to show that Smt. Mallo was residing continuously with the plaintiff Smt. Bakhtawari is not based upon the evidence on record. Learned counsel for Appellant referred to the statement of Chanderpal Singh (D.W 1) who, according to him, had specifically stated that Smt. Mallo used to live with Smt. Bakhtwari most of the time and used to look after her affairs. A perusal of the statement of D.W 1 shows that he, in the course of examination, stated that Smt. Mallo, often resided in Bilsoori. He nowhere stated that Smt. Mallo permanently and continuously resided with the plaintiff at Bilsoori. There is no merit in this argument and must be rejected.

17. Learned counsel for the appellant then urged that the finding of the Appellate Court that document was never read to the plaintiff and she thumb marked it taking it to be a will, is erroneous. Submission is that plaintiff in her statement admitted to have gone to Registry for the registration of document and the Registrar after making an enquiry, under S. 34 of the Registration Act had made the following note as required under S. 58 of the Act, the presumption would be of its being duly performed:—

“IS PRALEKH PATRA KE VIVARAN KO BHALI BHATI SUN WA SAMAJH KAR ISKEY NISHPADAN KO SWIKAR KIA.”

18. In AIR 1918 Oudh 120 it was held that the Court is not bound to treat registration endorsement as conclusive proof of execution. Endorsement cannot be resorted to if circumstances of execution are suspicious.

19. The plaintiff appearing as P.W 1 consistently stated on oath that the document was not read over and explained to her before she was made to put her thumb impression thereon.

20. Vir Narain (P.W 2) stated that the document in question was not read over and explained to the plaintiff. Even Chandra Pal Singh (D.W 1) in the mutation proceeding vide paper No. 40.C2 stated that the document was written prior to his arrival. Khusi Ram (D.W 2), who is the scribe of the document, stated that he does not know Mst. Bakhtawari personally and also does not remember anything on the basis of memory. He further states that whatever he has stated regarding the execution of the document it is all based on his going through the contents of this document. The appellate Court on the basis of evidence on record concluded that the document was not read over and explained to the plaintiff. The defendant-appellant did not prove the document by other evidence, direct and circumstantial that the document was read over and explained to the plaintiff at the time of execution.

21. Learned counsel for the appellant lastly argued that after the finding was recorded by the appellate Court that no rights were transferred by the document in favour of Ms. Mallo as it was not proved that it was a valid gift-deed, the suit could not be decreed but it has to be dismissed as there was no document which could be cancelled.

22. The suit of plaintiff was for declaration that the gift deed dated 1-8-1974 and registered by the Sub-Registrar, Registration Office, Sikandrabad on 20-9-1974 at BAHI No. 1 JILD 1007 at S. No. 3128 in pages No. 14/17 with respect to the agricultural land detailed at the foot of the plaint be declared void and the same be cancelled. On various findings the Appellate Court held that the document alleged to be executed by the plaintiff was a void document and confer no right on the defendant Smt. Mallo. No doubt the gift-deed, if found void, can be ignored. The Appellate Court has not committed any manifest error in cancelling the gift-deed.

23. In view of above there is no force in this second appeal.

24. It is accordingly dismissed with costs.

25. Appeal dismissed.

Smt. Mallo v. Smt. Bakhtawari And Others

Summary of Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's (Plaintiff's) Allegations and Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Mallo v. Smt. Bakhtawari And Others

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