Orissa High Court
Bhagirathi Khuntia (Dead) vs Golapi Gouduni (Dead) on 19 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A No.121 of 1994
(From the judgment dated 24.3.1994 and the decree in
T.A.No.3/1992 confirming the judgment and decree
dated 3.4.1994 and 15.4.1994 passed by Addl.
Munsif, Bissamcuttack in T.S. No.2/1991)
Bhagirathi Khuntia (Dead)
Sudam Charan Khuntia (Dead)
their legal heirs Nakhyatramala
Mohankudo
and others
... Appellants
-versus-
Golapi Gouduni (Dead)
her legal heirs Jugal Gouda
and others ... Respondents
Advocates appeared in the case through hybrid mode:
For Appellants : Mr. S.S.Rao,
Sr. Advocate
Mr.B.K.Mohanty,
Advocate
For Respondents
: Mr. Ghanashyam Dash,
Advocate.
------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19.03.2026
S.A. No.121/1994 Page 1 to 22
Sashikanta Mishra,J. This is a defendant’s appeal
against a partly reversing judgment. Judgment dated
24.3.1994 followed by decree passed by learned Civil
Judge (Sr. Division), Gunupur in T.A. No.3/1992 is
under challenge whereby the judgment dtd.03.4.1992
followed by decree passed by learned Addl. Munsif,
Bissamcuttack in T.S. No.2/1991 was modified, though
the appeal was dismissed.
2. For convenience, the parties are referred to by their
respective names to avoid confusion.
3. At the outset, it would be proper to refer to the
genealogy showing relationship between the parties.
Father Common Ancestor
Bhika Gouda= Khali Gouda
Jasoda (wife)
Radhika=Bhagirathi Magata Sakuntala Golapi Gouda
Khuntia(Def-1) (Died Issueless) (Def-2) (Plaintiff)
S.A. No.121/1994 Page 2 of 22
4. The plaintiff’s case, briefly stated, is that Bhika
Gouda and Khali Gouda were two brothers and
constituted a joint Hindu family. They acquired the suit
properties as such. Bhika died somewhere in the year
1951 leaving behind his widow Jasoda, two daughters
namely, Radhika and Sakuntala and a son namely,
Magata, who died unmarried. Radhika died in 1979
leaving behind her husband Bhagirathi (defendant No.1).
Jasoda died in 1988. During her lifetime, Jasoda
executed two gift deeds relating to the suit property, one
in favour of Golapi (Plaintiff) in respect of ‘A’ schedule
property and the other in favour of Sakuntala (Defendant
No.2) in respect of ‘B’ Schedule property. Subsequently,
Sakuntala sold the said property to Golapi in 1986
through a registered sale deed. Thus, the Plaintiff-Golapi
claims to be the owner in possession of the suit
properties. Bhagirathi filed T.S. No.1/1990 against the
Plaintiff in the same Court for recovery of possession of
the ‘B’ schedule property. Said suit was decreed.
Defendant No.1, on the strength of the said decree
dispossessed the plaintiff from ‘B’ schedule property on
S.A. No.121/1994 Page 3 of 22
23.2.1991. Hence, the suit for declaration of right, title,
interest and possession and to declare the judgment and
decree passed in the aforementioned suit as void.
5. Pursuant to notice, Defendant No.2 appeared and
filed written statement supporting the case of the
Plaintiff.
6. Defendant No.1 contested the suit by filing written
statement denying the plaint averments, inter alia,
taking the stand that Bhika and Khali were separated
during their lifetime. Khalia died somewhere in 1976
leaving behind his widow Pana Gouda and daughter
Golapi (Plaintiff). Pana is also dead. Bhika had no male
issue. As such, he brought Defendant No.1 to his house
as illatom son-in-law. Defendant No.1 performed the
obsequies of Bhika and maintained his widow and
daughter Sakuntala. He was also looking after the
properties of Bhika and performed the marriage of
Sakuntala. He was in possession of the properties to the
knowledge of Sakuntala openly and continuously for
more than 30 years, for which the plaintiff and defendant
No.2 have lost their title by way of adverse possession.
S.A. No.121/1994 Page 4 of 22
It is further claimed the suit properties are the exclusive
self-acquired properties of Bhika Gouda and not jointly
acquired with his brother. As such, Khali Gouda has no
right over the property. The claim regarding execution of
gift deed by Jasoda in favour of Golapi and Sakuntala
was specifically denied. It was stated that Jasoda was
very old and not in a sound state of body and mind and
also lost her eyesight for which she was not competent to
execute the deed. As such, no title can be said to have
passed through such deeds.
7. Basing on the rival pleadings, the trial Court framed
the following issues;
1. Whether the suit is maintainable?
2. Whether the suit is under-valued?
3. Whether this Court has pecuniary jurisdiction to try
the suit?
4. Whether the plaintiff has a right, title and
possession over the suit land?
5. Whether the gift deed nos. 141/80 and 142/80 dt.
07.03.80 executed by Jasoda Gouduni are duly
executed?
6. Whether the defendant no.1 has any manner of
right, title and possession over the suit property?
7. Whether the defendant no.1 is the illatom son-in-
law of Bhika Gouda?
8. Whether the suit is barred by principle of res-
judicata?
9. To what other relief the plaintiff is entitled to?
8. Issue No.5 was taken up for consideration at the
first instance. Examining the oral and documentary
S.A. No.121/1994 Page 5 of 22
evidence adduced by the parties in respect of the gift
deeds (Exts.1 and 2) as also the settled position of law,
the trial Court held that Jasoda was not only the
Pardanashin but also illiterate. The Plaintiff did not prove
that Jasoda had independent legal advice or shown to
have business capacity and strength of will. As such, it
was held that the execution of gift deeds by her was not
proved.
On Issue Nos.6 and 7, the trial Court on the basis
of admission of Golapi in the earlier suit held that the
Defendant No.1 was the illatom son-in-law of Bhika. As
such, he cannot get any share from the property, but
there is evidence to show that he was in possession.
On Issue No.4, the trial Court, held that in the
absence of any evidence being laid, it cannot be held that
the property was joint. As such, Golapi cannot have any
share in the property after death of Khali or Bhika. But
as the suit property originally belonged to Bhika Gouda,
after his death, her widow Jasoda and two daughters
would succeed to the property in equal share. Applying
the principles of Hindu Succession Act, the trial Court
S.A. No.121/1994 Page 6 of 22
held that after death of Jasoda, her share will be divided
equally between Radhika and Sakuntala. The main
issues being answered as above, the remaining issues
were answered accordingly and the suit was decreed in
part by declaring the plaintiff’s title only over ‘B’ schedule
property.
9. Being aggrieved, Defendant No.1 preferred appeal.
The first appellate Court, after independently analysing
the oral and documentary evidence on record, held that
as there is no specific challenge in the written statement
to the gift deeds as being obtained by fraud, the finding
of the trial Court to the contrary was held incorrect. It
was further held that in the absence of evidence to the
contrary, a Hindu family is presumed to be joint. So,
when Bhika died in 1951, the properties came to the
hands of Khali Gouda by way of survivorship and after
1956, the widow became the absolute owner. As such,
she and Khali Gouda each have half share in the
property. After death of Khali Gouda in 1976, Golapi
became the owner of his half share. So, the gift deed
executed by Jasoda in respect of half of the properties
S.A. No.121/1994 Page 7 of 22
was held to be valid. The first gift deed was held valid
whereas the subsequent deed was held invalid. Brushing
aside the decree passed in the earlier suit as void, the
First Appellate Court further held that the Plaintiff had
proved her possession over the suit land. On such
findings, the appeal was dismissed, but the trial Court
decree was modified only to the extent of declaring the
plaintiff’s title over the entire suit schedule properties
with permanent injunction against Defendant No.1.
10. Being further aggrieved the original Defendant No.1
has preferred the present Second Appeal, which was
admitted on the following substantial questions of law:
i) Whether in the absence of any appeal by the
plaintiff against the judgment and decree of the trial
Court holding that Ext.1 is invalid, if it open to the
learned lower appellate Court to give a finding that
Ext.1 has been righlty proved and binding upon the
defendant-appellant.
ii) Whether the learned lower appellate Court is
correct in law in holding the gift Ext.1 as valid and
genuine particularly when it does not disturb the
finding of the trial Court which after scanning the
evidence on record come to a finding that there was
no conscious execution by Jasoda?
11. Heard Mr. S.S.Rao, learned Senior counsel with Mr.
B.K.Mohanty, learned counsel appearing for the
S.A. No.121/1994 Page 8 of 22
Defendant No.1-Appellants and Mr.Ghanashyam Dash,
learned counsel appearing for the Plaintiff-Respondents.
12. Mr. Rao would argue that the plaintiff, having
never challenged the judgment of the trial Court
invalidating the gift deed either by filing an independent
appeal or a cross-appeal in the appeal preferred by
Defendant No.1, it was not open to the first appellate
Court to reopen the issue of validity of the gift deeds and
give a contrary finding. He further argues that even
otherwise, when the trial Court, after analyzing the
evidence on record held that the gift deeds were not
consciously executed by Jasoda, which was not
specifically held to be erroneous, the first appellate Court
could not have held the gift deed vide Ext.1 as valid.
13. Per contra, Mr. Dash would argue that as per
Order XLI Rule 33 of CPC, the appellate Court possesses
ample powers to pass any order which ought to have
been passed even in favour of a party who has not filed
an appeal or cross-objection, if the circumstances of the
case so require. This power, according to Mr. Dash, is
provided to the Court to ensure complete justice and to
S.A. No.121/1994 Page 9 of 22
avoid multiplicity of litigation. Therefore, even if the
plaintiff did not file any appeal or cross appeal, once the
decree was challenged the entire matter became open for
re-examination. Mr. Dash, further argues that unless
fraud, coercion or undue influence is specifically pleaded
in the written statement as mandatory under Order VI,
Rule 4 of C.P.C., a mere challenge to a registered
instrument cannot be entertained. Once the execution of
a registered document is proved, the burden shifts to the
person challenging it. The Defendant No.1 could not
produce any credible evidence to rebut the presumption
of due execution of the gift deeds.
14. As already stated, the first point urged by the
Defendant No.1-appellant is that the First Appellate
Court could not have entered into the question of validity
of the gift deeds or disturbed the findings of the trial
Court in such regard in the absence of any appeal or
cross appeal being preferred by the plaintiff. It has been
argued that the plaintiff did not question the finding of
the trial Court as the decree had substantially granted
the relief sought by her with respect to Schedule ‘B’
S.A. No.121/1994 Page 10 of 22
property. This is a plausible explanation for not filing any
appeal/cross-appeal. The question is whether, in the
absence of appeal/cross-appeal, it is open to the first
appellate Court to reopen the issue in question. The
answer to this lies in the provision under Order XLI Rule
33 of CPC, which is reproduced below:
“33. Power of Court of Appeal.–The Appellate Court
shall have power to pass any decree and make any
order which ought to have been passed or made and to
pass or make such further or other decree or order as
the case may require, and this power may be exercised
by the Court notwithstanding that the appeal is as to
part only of the decree and may be exercised in favour
of all or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or
objection 1 [and may, where there have been decrees in
cross-suits or where two or more decrees are passed in
one suit, be exercised in respect of all or any of the
decrees, although an appeal may not have been filed
against such decrees:
Provided that the Appellate Court shall not make any
order under section 35A in pursuance of any objection
on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order.”
15. In the case of Bihar Supply Syndicate v. Asiatic
Navigation1, the Supreme Court examined the power of
the Court under Order XLI Rule 33 of CPC and observed
as follows:
“29. Really speaking the Rule is in three parts. The first
part confers on the appellate court very wide powers to
pass such orders in appeal as the case may require. The1
(1993) 2 SCC 639S.A. No.121/1994 Page 11 of 22
second part contemplates that this wide power will be
exercised by the appellate court notwithstanding that
the appeal is as to part only of the decree and may be
exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not
have filed any appeal or objection. The third part is
where there have been decrees in cross-suits or where
two or more decrees are passed in one suit, this power
is directed to be exercised in respect of all or any of the
decrees, although an appeal may not have been filed
against such decrees.”
16. Similar view was taken in Koksingh v. Deokabai2,
wherein the following was observed:
“4. The second point raised by the appellant was that
the respondent did not appeal from the decree of the
trial court negativing her claim in the suit for a charge on
the property. It was contended that the High Court was
wrong in granting a decree for enforcement of the charge
as the decree of the trial court became final so far as the
respondent was concerned as she did not file any
appeal therefrom. We are unable to accept this
contention. Under Order 41 Rule 33 of the Civil
Procedure Code, the High Court was competent to pass
a decree for the enforcement of the charge in favour of
the respondent notwithstanding the fact that the
respondent did not file any appeal from the decree.”
17. In view of the legal pronouncement as above, this
Court holds that even if the Plaintiff had not challenged
the findings relating to the validity of the gift deeds, the
first appellate Court was not denuded of its powers to re-
examine the matter, more so, as the same was necessary
for a just decision of the case. It is needless to mention
2
(1976) 1 SCC 383
S.A. No.121/1994 Page 12 of 22
that validity of the gift deeds remain central to the
dispute between the parties.
18. Though this Court has held that the first appellate
Court was well within its power to re-examine the issue
even in the absence of appeal, it is still required to be
seen whether its finding in such respect can be
sustained. As already stated, the trial Court held the gift
deeds were not proved to have been validly executed. In
this context, the trial Court referred to the evidence of
P.W.1, P.W.2 and D.Ws.1, 2, 4 and 5. After going through
such evidence, the trial Court held that the donor,
Jasoda was old, unable to move and was under
treatment at the time of executing the gift deeds.
Undisputedly, she was illiterate. The trial Court did not
find any evidence that Jasoda had independent legal
advice or was shown to have business capacity and
strength of will. It is no longer res-integra that when an
instrument purported to have been executed by an old,
ailing and illiterate woman is sought to be proved, the
burden is on the propounder of the instrument to prove
its valid execution.
S.A. No.121/1994 Page 13 of 22
19. It is worthwhile to refer to certain relevant statutory
provisions:
Section 63 of the Indian Succession Act deals with
execution of Wills and reads as follows:
“63. Execution of unprivileged wills- Every testator, not
being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged,
or a mariner at sea, shall execute his Will according to
the following rules: (a) The testator shall sign or shall
affix his mark to the Will, or it shall be signed by some
other person in his presence and by his direction. (b) The
signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the
writing as a Will. (c) The Will shall be attested by two or
more witnesses, each of whom has seen the testator
sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the
direction of the testator, or has received from the testator
a personal acknowledgement of his signature or mark,
or the signature of such other person; and each of the
witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than
one witness be present at the same time, and no
particular form of attestation shall be necessary.”
Section 68 of the Indian Evidence Act relates to proof of
execution of document required by law to be attested and
reads as follows:
“68. Proof of Execution of document required by law to
be attested- If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court
and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of anyS.A. No.121/1994 Page 14 of 22
document, not being a Will, which has been registered in
accordance with the provisions of the Indian
Registration Act, 1908 (XVI of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied.”
20. Thus on a conjoint reading of the aforequoted
provisions, it is manifest that the requirements
enshrined under Section 63 of the Succession Act had to
be strictly complied with for the execution of the Will,
which in turn is to be proved in terms of Section 68 of
the Evidence Act. In the case of Meena Pradhan and
others v. Kamla Pradhan and another3, the Supreme
Court observed as follows:
“9. A will is an instrument of testamentary disposition of
property. It is a legally acknowledged mode of
bequeathing a testator’s property during his lifetime to
be acted upon on his/her death and carries with it an
element of sanctity. It speaks from the death of the
testator. Since the testators/testatrix, at the time of
testing the document for its validity, would not be
available for deposing as to the circumstances in which
the Will came to be executed, stringent requisites for the
proof thereof have been statutorily enjoined to rule out
the possibility of any manipulation
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1)
SCR 426 : AIR 1959 SC 443] (three-Judge
Bench), Bhagwan Kaur v. Kartar Kaur [Bhagwan
Kaur v. Kartar Kaur, (1994) 5 SCC 135] (three-Judge
Bench), Janki Narayan Bhoir v. Narayan Namdeo
Kadam [Janki Narayan Bhoir v. Narayan Namdeo
Kadam, (2003) 2 SCC 91] (two-Judge Bench), Yumnam
Ongbi Tampha Ibema Devi v. Yumnam Joykumar
Singh [Yumnam Ongbi Tampha Ibema Devi v. Yumnam3
(2023) 9 SCC 734S.A. No.121/1994 Page 15 of 22
Joykumar Singh, (2009) 4 SCC 780 : (2009) 2 SCC (Civ)
348] (three-Judge Bench)
and Shivakumar v. Sharanabasappa [Shivakumar v. Sh
aranabasappa, (2021) 11 SCC 277] (three-Judge
Bench), we can deduce/infer the following principles
required for proving the validity and execution of the
will:
10.1. The court has to consider two aspects : firstly,
that the will is executed by the testator, and secondly,
that it was the last will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind
has to be applied.
10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is
to say:
(a) The testator shall sign or affix his mark to the will or
it shall be signed by some other person in his presence
and by his direction and the said signature or affixation
shall show that it was intended to give effect to the
writing as a will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the will or has seen
some other person sign the will, in the presence and by
the direction of the testator, or has received from the
testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in
the presence of the testator, however, the presence of all
witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the
will, at least one of the attesting witnesses, who is alive,
subject to the process of court, and capable of giving
evidence, shall be examined;
10.5. The attesting witness should speak not only
about the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses
can be dispensed with;
10.7. Where one attesting witness examined to prove
the will fails to prove its due execution, then the other
available attesting witness has to be called to
supplement his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
S.A. No.121/1994 Page 16 of 22
propounder to remove all legitimate suspicions before it
can be accepted as the testator’s last will. In such
cases, the initial onus on the propounder becomes
heavier.
10.9. The test of judicial conscience has been evolved
for dealing with those cases where the execution of the
will is surrounded by suspicious circumstances. It
requires to consider factors such as awareness of the
testator as to the content as well as the consequences,
nature and effect of the dispositions in the will; sound,
certain and disposing state of mind and memory of the
testator at the time of execution; testator executed the
will while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However,
even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes the
duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
10.11. Suspicious circumstances must be “real,
germane and valid” and not merely “the fantasy of the
doubting mind [Shivakumar v. Sharanabasappa, (2021)
11 SCC 277] “. Whether a particular feature would
qualify as “suspicious” would depend on the facts and
circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a
suspicious circumstance, for example, a shaky
signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a
leading part in the making of the will under which he
receives a substantial benefit, etc.”.
(Emphasis Added)
It was also held in the said judgment that
“Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions before
it can be accepted as testator’s last Will. In such
cases, the initial onus on the propounder becomes
heavier.”
xxx xxx xxx xxx xxx
The test of judicial conscience has been involved for
dealing with those cases where the execution of the
Will is surrounded by suspicious circumstances. It
requires to consider factors such as awareness of the
S.A. No.121/1994 Page 17 of 22
testator as to the content as well as the
consequences, nature and effect of the dispositions in
the Will; sound, certain and disposing state of mind
and memory of the testator at the time of execution;
testator executed the Will while acting on his own free
will.
As to suspicious circumstances, it has been held that
they must be real, germane and valid and not merely
‘the fantasy of the doubting mind’. Whether a
particular feature would qualify as ‘suspicious’ would
depend on the facts and circumstances of each case.
Any circumstance raising suspicion legitimate in
nature would qualify as a suspicious circumstance;
for example, a shaky signature, a feeble mind an
unfair and unjust disposition of property, the
propounder himself taking a leading part in the
making of the Will under which he receives a
substantial benefits etc.
Thus, the broad parameters for accepting a will as
valid have been summarized as follows;
(a) The testator signed the Will out of his own free
Will,
(b) At the time of execution he has a sound state of
mind;
(c) He was aware of the nature and effect thereof; and
(d) The Will was not executed under any suspicious
circumstances.”
It is needless to refer to more authorities in this
regard as the judgment in Meena Pradhan (supra) more
or less summarizes the long settled position with regard
to execution and proof of Will.
21. Another aspect that needs mention is the law
relating to proof of a Will executed by an old, illiterate,
ailing or Pardanashin lady.
22. In this regard, reference may be had to the oft
quoted judgment of the Supreme Court in the case of
S.A. No.121/1994 Page 18 of 22
Kharbuja Kuer v. Jangbahadur Rai4,wherein the
Supreme Court held as follows;
“While affirming the principle that the burden is upon
the person who seeks to sustain a document executed
by a pardanashin lady that he executed it with a true
understanding mind, it has been held that the proof of
the fact that it has been explained to her is not the only
mode of discharging the said burden, but the fact
whether she voluntarily executed the document or not
could be ascertained from other evidence and
circumstances in the case. The same view was again
reiterated by the Judicial Committee, through Sir George
Rankin, in Jagadish Chandra v. Debnath A.I.R. 1940
P.C.. Further citation is unnecessary. The legal
positionhas been very well settled. Shortly it may be
stated thus. The burden of proof shall always rest upon
the person who seeks to sustain a transaction entered
into with a pardanashin 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 providing that the document was explained to
her and that she understood it, but also by other
evidence, direct and circumstantial”.
23. This Court in the case of Narayan Mishra and
others vs. Champa Dibya and others5,held as follows;
“The disposition made must be substantially understood
and must really be the mental act, as its execution is the
physical act of the person who makes it. The Court must
be satisfied that the deed had been explained to and
understood by the party under disability, either before
execution or after it under circumstances showing that
the deed has been executed with full knowledge and
comprehension. Mere execution by such a person,
although unaccompanied by duress, protest or obvious
signs of misunderstanding or want of comprehension, is,
in itself, no real proof of a true understanding mind in
the executant. In the case of execution of a deed by a
paradnashin or illiterate lady, the law protects her by4
AIR 1963 SC 1203
5
AIR 1968 Ori 53S.A. No.121/1994 Page 19 of 22
demanding that the burden of proof shall in such cases
rest not with those who attack, but with those who rely
on it. It must be proved affirmatively and conclusively
that the deed was not only executed by, but was
explained to and really understood by the grantor.
Ordinarily, the Courts Insist on proof that the lady had
independent legal advice although this may be an
absolute and invariable rule and there may be
exceptions when the lady is shown to have business
capacity and strength of will and the deed is shown to
be in the circumstances not an unnatural disposition of
her property. But the general rule is that save in such
exceptional cases, the Court would demand affirmative
proof on the subject of the lady’s intelligent
understanding and execution of a deed and would not
readily hold this onus to have been discharged where it
is not shown that the lady had any independent
advice.”
24. Thus, law demands that the burden of proof in
such cases shall be on person who relies upon the Will
executed by a Pardanashin or illiterate lady.
25. The fact that Jasoda was a Pardanashin, old, ailing
and illiterate lady is of great significance. Though there is
some evidence to show that the gift deeds were read over
and explained to her and she apparently consented on
her own sweet will, yet there is lack of evidence as to if
she had independent legal advice or the capacity to
execute the gift deed. The trial Court therefore, rightly
held the gift deeds were not proved to have been validly
executed. In view of the position of law discussed herein
before, this Court fully concurs with such findings.
S.A. No.121/1994 Page 20 of 22
26. Another issue that requires mention is that the first
appellate Court was swayed away by the fact that there
was no specific averment in the written statement filed
by Defendant No.1 that the gift deed was obtained by
fraud. In this regard, this Court has perused the relevant
averments of the written statement, which are
reproduced below:
“The facts in para no.7 of the plaint are not true and
correct Jasoda Gouduni did not execute two gift deeds
for the suit properties in favour of the plaintiff on
07.03.1980 for Rs 1000.00 and another in favour of
Sakuntala Gouda (defendant no. 2) on 07.03.1980 for
Rs 1000.00. Jasoda Gouduni has no right, title, interest
to execute gift deeds of the properties. She was very old
by the year 1980. She was also not in a sound state of
mind and body to execute deeds. She lost her eye sight
by 1980. She was not competent to execute gift deeds of
the properties said to have been conveyed under the
deeds. The said deeds are created and void in law.
They are not binding on the defendant-1. Under the
deeds the donees did not get possession and title to the
properties said to have been donated.”
(Emphasis Added)
27. As held in the case of Meena Pradhan (Supra),
even in the absence of allegation of fraud, if there are
circumstances giving rise to doubt, then it becomes duty
of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
S.A. No.121/1994 Page 21 of 22
28. As can be seen, Defendant No.1 raised certain
pertinent and relevant issues governing the age, state of
mind, eyesight etc. of the executant Jasoda. It is not the
mandate of law that the burden of proving valid
execution of document shall shift to the propounder only
if fraud has been alleged. The reasoning adopted by the
first appellate Court is therefore, not tenable.
29. Both substantial questions of law are answered
accordingly.
30. Thus, from a conspectus of the analysis of facts,
law, the contentions raised and the discussion made,
this Court is persuaded to interfere with the impugned
judgment of the first appellate Court.
31. Resultantly, the appeal succeeds and is therefore,
allowed. The impugned judgment of the1st Appellate
Court is set aside.
…………………………….
Sashikanta Mishra,
Judge
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court ofAshok Kumar Behera
Orissa, Cuttack
Date: 19-Mar-2026 17:04:37
S.A. No.121/1994 Page 22 of 22
