K.P.Singh - (1.) -The contesting opposite parties in the present writ petition had claimed right in the disputed land on the basis of an alleged sale deed executed by the petitioner, Smt. Saghiran. The present petitioner had claimed right in the disputed land and had asserted that the contesting opposite parties had obtained sale deed by placing fraud upon her and by not making her understand the contents of the sale deed relied upon by the contesting opposite parties.
(2.) FIRST two courts gave judgments for the petitioner but the revisional court has given judgment against the petitioner. Aggrieved by the judgment of the revisional court the petitioner has approached this court under Article 226 of the Constitution of India. I have perused the judgments attached with the writ petition and have also heard the counsel for the parties. In the facts and circumstances of the present case it appears that the revisional court has placed burden on wrong shoulder and have arrived at patently erroneous conclusion. The first two courts bad treated the petitioner as an old illiterate lady, therefore, they had placed burden on the contesting opposite parties to prove that the sale deed was not executed by the petitioner after appreciating the contents thereof. The revisional court has accepted the alleged sale deed only on the ground that it is a registered document and has failed to meet the reasoning of the first two courts thereby the alleged sale deed was not treated as a valid and genuine document. The bare perusal of the impugned judgment indicates that the approach of the revisional court is patently erroneous, perverse and unreasonable. To my mind, the impugned judgment deserves to be quashed. At this stage the learned counsel for the opposite parties has pointed out the ruling reported in AIR 1934 Alld. 507 Mst. Azizunnisan v. Siraj Husain and has seriously contended that no suit for cancellation of a voidable sale deed has been brought within limitation, therefore, the claim of the contesting opposite party was rightly accepted by the revisional court and no exception can be taken to the impugned judgment of the revisional court. It is note-worthy that the petitioner had alleged that the document in question was obtained from her on the pretext of a partition deed and this aspect of the matter has been dealt with by the revisional court in the following words :- ".........In the statement opposite party also developed that before the Sub- Registrar, she was told that the partition deed is being written, but if it was really so all the persons recorded ought to have been present before the Sub- Registrar but from her own statement, it is clear that all the persons recorded in the Khata were not before the Sub-Registrar........." Impliedly it appears that the revisional court has not accepted the plea raised on behalf of the petitioner regarding partition, but the revisional court has dealt with this aspect in a very perfunctory manner. I have already indicated above that the burden has been placed upon wrong shoulder by the revisional court, therefore, its approach to the problem is patently erroneous. If the contention raised on behalf of the petitioner is correct that on the plea of partition deed, the sale deed was obtained by the contesting opposite party, the nature of the document would be nothing but void and the ruling relied upon by the learned counsel for the contesting opposite party would be against him. In view of the aforesaid ruling also on the facts involved in the present case, a heavy burden lies upon the persons who enjoy confidence of the executant and deceive the executant to prove that the document obtained by such persons had been executed after fully understanding the contents thereof. The Division Bench ruling referred to by the learned counsel for the opposite party also indicates that the revisional court has patently erred in placing burden on the petitioner to prove that the sale deed was vitiated by fraud. The revisional court has also patently erred in expecting from the petitioner to prove that she had not executed the document without understanding the contents thereof.
(3.) ON the facts involved in the case if the sale deed is treated as void, no question of limitation for getting the sale deed cancelled would be involved. The vendees are relations of the petitioner and were in a position to dominate the will of the petitioner and also they were co-sharers in the disputed land, therefore, no question of getting the sale deed cancelled would be involved. The theory of partition set up by the contesting opposite party was not accepted by the first two courts and that reasoning has not been met by the revisional court. Therefore, the impugned judgment of the revisional court suffers from patent error of law. In 1965 ALJ 1080, Parasnath Rai v. Tileshar Kunwar a learned Single Judge has indicated the law regarding the transaction executed by a Pardah-nasheen lady or an illiterate ignorant woman though she may not be Pardah-nasheen in the following words : " Rules regarding transactions by a Pardahnashin lady are equally applicable to an illiterate and ignorant woman though she may not be a Pardahnashin. 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. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and dependence upon others, may, by themselves create disabilities that may render the protection equally necessary. If, therefore, it is proved that a woman, although she is not a Pardahnashin lady, suffers from the 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. Where the plaintiff was illiterate and when she executed the deed in question she was not only more than sixty years old but was also hard of hearing and she was described by the defendants themselves as a foolish and rustic woman completely devoid of intelligence, and according to the finding of the lower appellate court she was correctly described as such, and besides the defendants stood in relation to her in a position of active confidence held that there could be no doubt that she was as much entitled to the protection of the law as a Pardahnashin lady........." " It is not necessary to ascertain whether fraud, misrepresentation or undue influence has been established when it has been found that a deed executed by a Pardahnashin lady has not been executed by her volutnarily and after appreciating the nature and import of the transaction, and the latter finding alone is sufficient for holding that the deed is not binding on her and it conveyed no title. " ;