IN THE HIGH COURT OF JUDICATURE AT PATNA M.J.C.No.183/1999 Shri Ram Janki Maharani and another……………………………… Petitioners Versus Prem Lal Mahto and others………………………………………. Respondents For the petitioners : Mr.T.N.Maitin, Advocate Present: Hon’ble Mr.Justice Dipak Misra, Chief Justice Hon’ble Mr.Justice Mihir Kumar Jha --------------------------------------------------------------------------------------------------- O R D E R 12.4.2010 As per Dipak Misra, C.J.- This is an application under section 151 of the Code of Civil Procedure to restore L.P.A.No.1129/1996 to its original number. Be it noted in this application for restoration, on many an occasion orders came to be passed with regard to substitution and the same cannot be effected. 2. In view of the aforesaid, we asked learned counsel for the appellant whether he has any objection to address on merits of the case so that this Court can really keep the application for restoration alive inasmuch as there should not be an exercise in futility. We must appreciably record that learned counsel for the appellant fairly stated that matter may be dealt with on merits and if this Court is convenienced, may proceed in the M.J.C. application. 3. An appeal under section 96 of the Code of Civil Procedure came to be filed before this Court challenging the decree passed in Title Suit No.87 of 1983/9 of 1988 whereby the leaned Subordinate Judge has decreed the suit which was instituted by the respondents No.1 and 2 to the appeal, being the deity ‘Shri Ram Janakiji Maharani’ and one Nandlal Singh claiming to be its ‘Sebait’. Initially the suit was instituted against Most.Chania who was defendant No.1 and after her death the appellants in the first appeal were substituted as her legal heirs. One Shyam Nandan Mishra was impleaded as defendant. In the suit an order dt. 30.3.1983/8.4.1983 passed by Director of Consolidation confirming a previous order dated 17.1.1978 in Revision Case No.218/1977, was assailed on the ground -2- that said orders were passed without jurisdiction and are void in law. A further declaration was sought that deed of dedication dt. 21.5.1976 which was executed by Most.Chania in favour of the plaintiff-deity was genuine and has been executed voluntarily in a sound state of mind. 4. The learned Subordinate Judge decreed the suit recording the finding in favour of the plaintiffs. 5. The learned Single Judge, as is manifest from the order, after adverting to the contentions raised at the Bar posed two questions, namely, whether the deed of dedication (Exhibit-1) was a genuine and valid document or it had been got executed by practising fraud on Most.Chania and whether the finding in this regard was correct; and that whether the proviso to section 34 of the Specific Relief Act would be applicable and the suit ought to have been dismissed on the said score. After posing the said questions the learned Single Judge discussed the evidence on record and eventually came to hold that Most.Chania was illiterate and ‘pardanashin’ lady and she had put her thumb impression on the documents and deed of dedication (Exhibit-P-1) which contained several piece of lands and it is difficult to believe that illiterate lady would specify all the plot numbers to the scribe while he was drafting the deed; that PW.3 does not claim to have put signature or was in any way concerned with the document, though the said document was executed in his presence. The learned Single Judge has proceeded to state that the plaintiff had categorically admitted that Most.Chania was ‘pardahanashin’ lady and was wearing a veil for the purpose of maintaining ‘parada’. Regard being had to be material brought on record the learned Single Judge proceeded to conclude and hold that executant was illiterate and ‘paradahanashi’ and was indisposed at the time of execution and registration of document; that her thumb impression was obtained on various sheet papers; that she has also filled up the form for obtaining permission from the Consolidation Officer; that possession was not parted; that it was not improper on the part of illiterate lady to understand the contents of the deed; it could not be proven that she had knowledge about the documents executed; and that the cumulative effect of the evidence on record would clearly show that the said documents, by an illiterate and ‘pardahanashin’ lady, would be executed after understanding its contents is not acceptable. He also observed that no person has been examined on behalf of the plaintiffs to say that after the dedication deed was executed, any person of the village went to the house for worshipping the deities installed. Be it noted, the learned Single Judge in paragraphs 29 and 30 held thus:- -3- “29. It may be noticed here that when a document is said to have been obtained from a „pardahashin‟ lady, the genuineness of which is challenged, a heavy burden lies on a person, who claims title under the document and the law gives some protection to the „paradanashin‟ lady in this regard. This position is settled by several decisions. An observation made in this regard by the Hon‟ble Supreme Court is in one of the decisions reported in 1963 S.C. 1203 (Most.Kharbuja Kuer v. Jangbahadur Rai and others) will suffice here.”…… the legal position has been very well settled. Shortly it may be stated thus: The burden of proof shall always rest upon the persons who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial. 30. It appears that the learned court below does not seem to have appreciated this position of law and some of the reasoning given by the learned court below in coming to the finding in favour of the plaintiffs appear to be completely misconceived. As regards the burden of proof, the learned court has observed that “if the defendants pleads any fraud or cheating in execution of the deed then the burden of proving fraud will be on the defendants.” This observation does not take into consideration the legal position about special protection which pardahnashin is entitled to in such a matter. One of the reasoning of the learned court below is that if there would have been any faul play, then the work of permission, execution and registration would have been done hurriedly; and another that if there would have been any fraud then generally it would be registered at the Registry Office; but these documents were registered at the residence. I do not think that such sort of reasoning can constitute good reason for taking a view as to whether or not any document is genuine. In the instant case, there was certainly time gap of -4- about four weeks between the date of execution and the date of registration. The plaintiff in his evidence wanted to make out a case that after the execution of the deed of dedication, Most.Chania was chastised by the present appellants and for that reason she fell ill, but other witnesses of the plaintiffs said that she was indisposed even at the time of execution of the deed. So, when the „Pardahnashin‟ and illiterate lady, who was also not physically well, according to the evidence of the plaintiffs‟ witnesses at the time of execution of the deed or at the time of the registration and was executing two other deeds of gift, it can be seen that in such a situation it was very easy to obtain from her thumb impressions on a deed of dedication fraudulently, after apprising her of the contents of deeds of gifts only.” 6. Having perused the evidence on record and the reasoning given by the learned Single Judge we are of the considered opinion that the onus has actually not been discharged and thus, there is no scope for interference in this appeal. When there is no scope for interference in this appeal, we are disposed to think that there is no justification to keep the application for restoration alive. 7. In the result, the present M.J.C. stands dismissed. (Dipak Misra) Chief Justice (Mihir Kumar Jha) Judge