IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.288 of 2009 Smt. Ram Sakhi Devi, wife of Sri Gopal Singh R/o village Moriawan, Pergana Maner, P.S Bikram, District-Patna …..Plaintiff-Appellant-Appellant. Versus 1. Shri Anjani Kumar 2. Shri Akhilesh Kumar, both sons of Sri Surendra Sharma, R/o village Moriawan, Pergana-Maner, P.S. Bikaram, District Patna. 3. Smt. Umrawati Devi, wife of Narmadeshwar Singh 4. Shyam Nandan Singh, son of Late Brij Nandan Singh 5. Dhananjay Kumar, son of Sri Shyam Nandan Singh 6. Bibha Kumari, daughter of Sri Shyam nandan Singh, 7. Shobha Kumari, daughter of Sri Shyam nandan Singh, Respondent no. 5,6 and 7 minor son and daughter of Sri Shyam nandan Singh under guardianship of their father Sri Shyam nandan Singh, 8. Smt. Geeta Devi wife of Sri Krishnandan Singh, respondents no.3 to residents of village Sikandarpur, pergana Maner, P.S. Bikram, District-Patna 9. Sri Surendra Sharma, son of late Babu Kapildeo Singh, resident of village Moriawan, P.S. Bikram, District Patna ……Defendants-Respondents-Respondents. ---------------------------------- 5 13.09.2011 Heard Mr. Ram Suresh Roy, learned counsel appearing on behalf of the appellant and Mr. K.N. Choubey, learned Senior Counsel appearing on behalf of respondents. This appeal has been filed by the plaintiff after losing her appeal in the appellate court below. There is no dispute that the original plaintiff Kunti Devi filed Title Suit No. 578 of 1988 for declaration that the deed of gift dated 12.5.1980 executed by her in favour of defendant nos. 1 and 2 is forged, fabricated, illegal and inoperative and further for recovery of possession. It was the case of the plaintiff that she was a deaf and dumb lady and the deed of gift in question had been obtained by the defendants exercising undue influence and practicing fraud upon her. During the pendency of the suit the original plaintiff Kunti 2 Devi died and had been substituted by the present appellant. The donees, who were defendants no. 1 and 2, filed their written statement and has contested the claim of the plaintiff asserting that the deed of gift in their favour is valid legal and genuine document executed by the original plaintiff with her own free will and volition. It has been the case of the defendants that the original plaintiff Kunti Devi was an intelligent lady and had good understanding of the worldly affairs and she had been dealing with her property after the death of her husband. The parties led their evidences on the issues framed in the suit and thereafter the trial court considering the submissions and analyzing the evidence on record came to the finding that the original plaintiff had knowingly and willingly executed the gift deed in question with further finding that she had full understanding of the worldly affairs and was aware of the consequences of dealing with her properties. It has also been held that the original plaintiff Kunti Devi had full knowledge of the mutation case filed by the defendants on the basis of gift deed in question in the year 1980 and she did not object to the same and on this basis it has been held that the suit was barred by limitation being filed in the year 1988. In appeal thereafter the appellate court reappraised the evidence in view of the submissions and pleadings of the parties and came to the crucial conclusion that the original plaintiff Kunti Devi was not a pardanashin lady and she had been dealing with her property after the death of her husband by executing deeds since 1957 onwards and entering 3 into material transactions. It has also been found by the appellate court below that the original plaintiff Kunti Devi had been served with a notice of the mutation case filed by the defendants on the basis of the gift deed in question in the year 1980 itself and as such the suit filed in the year 1988 was clearly barred by limitation. Learned counsel appearing on behalf of the appellant has submitted that the finding on the issue of limitation is not in accordance with law as the service of notice of the mutation proceeding upon the original plaintiff Kunti Devi has not been proved by examining the process server. It has been further submitted that both the courts below have wrongly placed the burden of proof upon the plaintiff to establish the fraud as pleaded in the plaint whereas in view of section 16 of the Contract Act burden was upon the defendants, in the facts and circumstances of the case, when they are beneficiary from a deaf and dumb lady. Reliance by the appellant has been placed upon a decision reported in 1984 PLJR 622 as well as a decision reported in S.A. R (Civil) 2003 page 762. In reply, the learned counsel appearing on behalf of respondents has submitted that both the courts below have concurrently come to the finding that the notice of the mutation case had been validly served upon original plaintiff Kunti Devi and the LTI of Kunti Devi appearing upon the notice (Ext.M/1) had also been examined by the handwriting expert who had reported that the said LTI was of Kunti Devi. It has further been 4 submitted that in view of the finding regarding intellect and capacity of understanding of the original plaintiff Kunti Devi, the courts below have rightly not allowed her the status and protection of a Pardanashin Lady and it has been also urged that the issue of burden of proof becomes academic when both the parties have led their evidence on the issues and the findings have been recorded after considering those evidence. After hearing the learned counsel for the parties and perusing the impugned judgment I find that both the courts below on the basis of documentary evidence on record have come to the finding that the original plaintiff Kunti Devi had been dealing with her property and had full knowledge of worldly affairs. This finding has been based upon several registered deeds executed by the original plaintiff Kunti Devi right from the year 1957. Thus the contention that the original plaintiff Kunti Devi was a pardanashin lady entitle to legal protection has rightly been rejected. There is no infirmity in this finding coupled with the finding that the original plaintiff Kunti Devi had the knowledge even of the mutation case filed by the defendant on the basis of gift of deed in question in the year 1980. Both the courts below have, therefore, rightly held that the suit is barred by limitation having been filed in the year 1988. It is not the case of the appellant that the finding of facts as aforementioned recorded by the courts below are perverse and vitiated for non-consideration of evidence or misappreciation of evidence. The issues arising between the parties are concluded by concurrent findings of fact 5 and there does not arise any substantial question of law for consideration in this appeal. This appeal is accordingly dismissed. M.Rahman (V. Nath, J)