Decided on February 13,1973

Banchhanidhi Swain Appellant
Sulav Bewa Respondents


B.K. Ray, J. - (1.) THE unsuccessful Plaintiff in both the Courts below is the Appellant.
(2.) THE facts giving rise to the present appeal are as follows: -The Appellant filed a suit for a declaration that the deed of gift dated 10 -11 -1942 (Ex. C) in his favour is binding on the Defendant Respondent, she having voluntarily executed the same and for declaration of his title and confirmation of his possession in respect of the suit properties covered by Ex. C. The Respondent is the widow of Appellant's brother. The Appellant and his brother were separate in mess and property by the time the latter died. The Respondent after the death of her husband requested the Appellant to look after her properties as she was a lady and the Appellant looked after the properties of the Respondent as requested. The Respondent being satisfied with the Appellant gifted the suit properties to which she had succeeded on the death of her husband in favour of the Appellant voluntarily by executing Ex. C on 10 -11 -1942. According to the Appellant, he became the owner in possession of the suit properties since the gift in his favour. The Respondent being prevailed upon by the enemies of the Appellant cancelled Ex. C by a registered cancellation deed dated 21 -1 -1964 (Ex. B). It is said that this deed of cancellation cannot affect the Appellant's right, title, interest and possession in respect of the properties in suit which he had got under Ex. C. The Respondent denies the aforesaid allegations and contends that she is an illiterate purdahnashin lady and was in a helpless condition after the death of her husband. Therefore, she had to depend for the management of her properties on the Appellant. The Appellant taking advantage of his position persuaded her to execute a power -of -attorney in his favour in order to enable him to effectively manage her properties. The Respondent agreed to this proposal and subsequently under the belief that she was putting her thumb marks to a power -of -attorney put her thumb marks on a document as desired by the Appellant without knowing that the said document was gift deed. It was only when the Appellant wanted to mutate his name in respect of the properties in suit, the Respondent on enquiry could learn that instead of a power -of -attorney, a deed of gift had been taken from her. In these circumstances, she was compelled to cancel the deed of gift (Ex. C) by the registered cancellation deed (Ex. B).
(3.) THE trial Court accepted the Respondent's contention and on a finding that Ex. C was not voluntarily executed by her dismissed the Appellant's suit. On appeal by the Appellant, the lower appellate Court also confirmed all the findings of the trial Court and dismissed the appeal. The Appellant thereafter has preferred this appeal.;

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