1 CGHC010065762023 2026:CGHC:33508-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved for Judgment on : 16.07.2026 Judgment Delivered on : 03.08.2026 Judgment Uploaded on : 03.08.2026 FA No. 31 of 2023 Swatantra Pandey S/o Ramashankar Pandey Aged About 23 Years R/o Near Paramhans Temple, Jawahar Nagar Raipur, Tehsil And District Raipur Chhattisgarh --- Appellant/plaintiff versus Smt. K. Mahalaxmi Reddy W/o Shri K.Sukaru Reddy Aged About 54 Years R/o House No. 3256, Danganiya, Tatibandh Colony, M.I.G. Dumartalab, Tehsil And District Raipur Chhattisgarh --- Respondent/Defendant ____________________________________________________________ For Appellant : Mr. Uttam Pandey, Advocate For Respondent : Mr. Hemant Gupta, Advocate Division Bench Hon'ble Shri Parth Prateem Sahu, Judge Hon'ble Shri Sachin Singh Rajput, Judge CAV Judgment Per Parth Prateem Sahu, J 1. Appellant/plaintiff has filed this appeal questioning the legality and sustainability of the impugned judgment and decree dated 23.11.2022, passed in Civil Suit No.15-A/2017, whereby learned Third Additional BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN 2 District Judge, Raipur, District – Raipur (C.G.) has dismissed the civil suit filed by appellant/plaintiff. 2. Facts relevant for disposal of this appeal are that appellant/plaintiff filed a civil suit for specific performance of contract with respect to the land owned and possessed by respondent/defendant bearing Kh. No. 424/7, measuring 1100 sq.ft., situated at Village- Dumartalab, P.C. No.104, R.I. Circle, Tahsil and District- Raipur, out of which a house is built on 700 sq.ft. and remaining 400 sq. of land is vacant. It was pleaded in the plaint that when defendant was in need of money to meet out her personal expenses and family need, she offered the suit land for sale to plaintiff. The deal between them was finalized for total sale consideration of Rs.13,00,000/-. On 17.03.2025, out of the total sale consideration of Rs.13,00,000/-, a sum of Rs.12,00,000/- was paid to defendant in presence of witnesses, and a registered agreement to sell was executed. The defendant acknowledged receipt of the said amount before the witnesses in the office of the Sub- Registrar, Raipur. As per agreement, defendant was required to execute the sale deed in favour of the plaintiff within six months. After execution of agreement, plaintiff remained ready and willing to get the sale deed registered in his favour. He repeatedly requested the defendant to provide the necessary documents required for registration of the sale deed. However, the defendant kept postponing the matter on one pretext or another and failed to furnish the required documents, as a result of which, plaintiff could not get the sale deed executed within stipulated period of six months. It was further pleaded that on 10.09.2015, defendant executed another agreement stating that, due to her busy schedule, she had been unable to execute the 3 sale deed in favour of plaintiff and extending the time for registration of the sale deed in respect of the suit land till 10.09.2016. However, even thereafter, defendant did not take any steps to execute the sale deed in favour of plaintiff. It was pleaded that thereafter, the plaintiff, through his advocate, sent a registered legal notice to the defendant, which the defendant deliberately refused to receive. On 24.02.2017, the plaintiff, along with a witness, visited the defendant's house and requested her to execute the sale deed. In the presence of the witness, the defendant assured the plaintiff that she would appear before the office of the Sub-Registrar on 06.03.2017 along with the necessary documents for execution of the sale deed. It was further pleaded that on 06.03.2017, the plaintiff, along with witnesses, remained present at the office of the Sub-Registrar waiting for defendant; however, defendant failed to appear. It was also pleaded that defendant was attempting to sell the suit property to a third party at a higher price and, therefore, was unwilling to execute and register the sale deed in favour of the plaintiff. 3. The defendant filed her written statement specifically denying the averments made in the plaint. It was pleaded that suit property was purchased by her husband on 15.02.2010 in her name, and her husband constructed a house thereon from his own income. Defendant is an illiterate lady having no independent source of income. It was further pleaded that, in March 2015, when she was in need of Rs.1,00,000/-, she mortgaged the suit property with plaintiff and borrowed a sum of Rs.1,00,000/- with interest at the rate of 12% per annum, for which plaintiff took her to office of the Sub-Registrar and obtained her thumb impression on certain documents. Being an 4 illiterate lady, defendant was incapable of reading or understanding the contents of those documents. Plaintiff assured her that the suit property was being mortgaged only as security for the loan and upon repayment of borrowed amount, original documents would be returned to her and the property would be released from mortgage. Defendant specifically denied having entered into any transaction for sale of suit property in favour of plaintiff or having received a sum of Rs.12,00,000/- or any other amount towards its sale consideration. She further denied execution of any agreement for sale in respect of the suit property in favour of plaintiff. It was pleaded that the alleged agreements to sell dated 17.03.2015 and 10.09.2015 are forged and fabricated documents on the basis of which, plaintiff do not get any right over the suit property. It was also pleaded that plaintiff fraudulently obtained a general power of attorney in his favour. She specifically denied execution of any General Power of Attorney in favour of the plaintiff. On 07.03.2015, plaintiff obtained her thumb impression on certain blank and pre-printed papers by saying that such documents were necessary for mortgage. Being unable to understand the nature and contents of the documents, she affixed her thumb impression only on the assurance given by plaintiff. Plaintiff, taking undue advantage of her illiteracy, by practicing fraud and deception, got the alleged agreements to sell dated 17.03.2015 and 10.09.2015 executed, which are forged and fabricated documents. She has already repaid the entire loan amount along with interest and no amount remains due and payable to plaintiff. However, when she asked plaintiff to return original documents of the mortgaged property, plaintiff refused to return the same and instead started pressuring her 5 to execute a sale deed in his favour on the strength of the alleged forged and fabricated agreements to sell. It was pleaded that plaintiff had fraudulently procured a forged and fabricated agreement to sell in his favour and the present suit has been filed with the malafide intention to grab the suit property. 4. Learned trial Court based on the pleadings made by respective parties formulated 3 issues for consideration. Parties led their evidence and upon appreciation of the documentary and oral evidence brought on record, learned trial Court, by the impugned judgment and decree, dismissed the suit filed by plaintiff, holding that the registered agreements to sell (Ex.P-1) is not proved to have been duly executed and their execution remained doubtful. It is also held that plaintiff also failed to duly prove the source of amount of Rs.12,00,000/- and payment of same to the defendant at the time of execution of (Ex.P-1). Being aggrieved by the impugned judgment and decree whereby the suit was dismissed, plaintiff has preferred this present appeal. 5. Learned counsel for appellant/plaintiff would submit that impugned judgment and decree passed by learned Trial Court is bad in law, perverse and without appreciation of documentary and oral evidence brought on record. It is contended that learned trial Court erred in disbelieving the registered agreements to sell (Ex.P-1 and Ex.P-2), despite the fact that the said documents were duly executed and registered before the competent authority. Learned trial Court failed to properly appreciate the evidentiary value of the registered documents and wrongly accepted the plea of defendant regarding illiteracy and alleged misrepresentation, without there being any cogent evidence to 6 establish fraud or misrepresentation. Learned Court below ought to have considered that defendant failed to prove the alleged fraud or misrepresentation committed by the appellant/plaintiff by any cogent evidence. Mere allegations of fraud, without proof, could not be a ground to disbelieve the duly registered documents. It is contended that appellant/plaintiff had duly proved execution and genuineness of the sale agreement (Ex.P-1 and (Ex.P-2) by producing clinching evidence and examining the attesting witnesses as well as the registering authority of the said document, who categorically supported the execution of the agreement by the parties and affirmed the presence of the executants at the time of its execution. It is contended that the attesting witnesses to the documents (Ex.P-1 & P-2) have clearly stated that the contents of the documents were read over and explained to the defendant at the time of their execution. Relying upon the judgment of the Hon’ble Supreme Court in the case of Shyam Kumar Inani Vs. Vinod Agrawal & Others, reported in (2025) 3 SCC 286, it is submitted that merely taking a plea of illiteracy by the defendant does not absolve her from the consequences arising out of the execution of a document. Defendant is a mature lady of 54 years, of sound mind, and is capable of understanding the nature and consequences of the sale agreement entered into between the parties. It is also contended that defendant failed to enter into the witness box for her cross-examination to substantiate defence pleaded in her written statement. In absence of any evidence in support of her defence, an adverse inference can be drawn against defendant. In support of the aforesaid submission, reliance is placed upon the 7 judgment of Hon'ble Supreme Court in case of Iqbal Basith & Others v. N. Subbalakshmi & Others, reported in (2021) 2 SCC 718. 6. Learned counsel for respondent/defendant opposes the submission of learned counsel for appellant and supports the impugned judgment and decree. It is contended that respondent/defendant, being an illiterate lady with no independent source of income, was in need of money for domestic expenses and had borrowed a sum of Rs. 1,00,000/- from plaintiff/appellant at an interest rate of 12% per annum. He further submits that plaintiff, taking advantage of the defendant's illiteracy, fraudulently got an agreement to sell executed in his favour and also obtained her thumb impressions on certain blank and pre- printed papers by representing that as security of borrowed amount, her property was being mortgaged. He further contended that defendant had neither executed any agreement to sell with plaintiff nor received a sum of Rs.12,00,000/- towards sale consideration, as alleged by the plaintiff. It is further contended that the plaintiff had also fraudulently got executed the power of attorney (Ex.D-1) in respect of the suit property on the same day on which the agreement to sell (Ex. P-1) was allegedly executed, thereby authorising plaintiff to sell the suit property. If the agreement to sell had in fact been validly executed by defendant, there was no necessity for the execution of a power of attorney in favour of the plaintiff on the same day without any consideration authorising him to sell the suit property to a third party. Execution of both the documents on the same day appears to be unusual and improbable circumstance, which creates serious doubt regarding genuineness, authenticity of its due execution as also the conduct of the plaintiff/appellant. It is contended that plaintiff had failed 8 to establish the alleged payment and acknowledgment of Rs. 12,00,000/- in cash towards sale consideration. The evidence led by plaintiff, including the testimony of the witnesses, does not prove the alleged payment, nor plaintiff has been able to establish the source from which the said amount was arranged. He submits that the finding recorded by learned trial Court is on proper appreciation of facts and evidence brought on record by the respective parties, which does not call for any interference. 7. We have heard learned counsel for parties and perused record of the trial Court. 8. Having regard to the pleadings of the respective parties, the rival contentions advanced, and the evidence available on record, the main issue that arises for determination by this Court is whether the agreement to sell dated 17.03.2015 (Ex. P-1), allegedly executed between the parties in respect of the suit property, was validly executed by the defendant upon receipt of Rs.12,00,000/- from the plaintiff towards sale consideration, and whether the plaintiff has duly proved its execution, authenticity, and enforceability in accordance with law. 9. Plaintiff in order to establish his case has placed on record registered agreement to sell dated 17.03.2015 as Ex.P-1, sale agreement dated 15.09.2015 as Ex.P-2, legal notice dated 14.02.2017 as Ex.P-3, postal receipt as Ex.P-4, receipt of publication of public notice as Ex.P-5, Public Notice as Ex.P-6, notice sent to defendant in closed envelop as Ex.P-7 and registered general power of attorney dated 17.03.2015 as Ex.D-1 and examined himself as (P.W.-1), Raj Kumar Shukla as (P.W.- 9 2), Arvind Tripathi as (P.W.-3), Shailendra Dani, Record Keeper, Sub- Registrar Office as (P.W.-4), Ramashankar Pande as (P.W.-5), Ramesh Chandra Shukla as (P.W.-6) and Lekhram Dhurve, Sub- Registrar as (P.W.-7). 10. Plaintiff Swatantra Pandey (P.W.-1), in his examination-in-chief, deposed as per plaint averments that defendant, being in need of money, entered into a sale transaction in respect of suit property for a total consideration of Rs. 13,00,000/-, out of which Rs. 12,00,000/- was paid by him to defendant in cash in presence of witnesses. He stated that an agreement to sell dated 17.03.2015 (Ex. P-1) was executed before the Sub-Registrar, Raipur, fixing the time for execution of sale deed within six months. He further deposed that he was always ready and willing to perform his part of the contract, but the defendant failed to provide the requisite documents and execute the sale deed. He further stated that period for execution of sale deed was extended up to 10.09.2016 by a subsequent agreement; however, even thereafter, defendant failed to execute the sale deed. Thereafter, plaintiff sent a legal notice to defendant and also got a general notice published in a daily newspaper. In his cross-examination, he admitted that defendant is unable to read and write and she cannot write and read Hindi. He further admitted that at the time of sale transaction, he was aged about 22-23 years and was pursuing his studies. He admitted that he had no independent source of income at the time of the alleged transaction. He further admitted that on the date of execution of agreement to sell (Ex. P-1), another document, a general power of attorney (Ex. D-1), was also executed between the same parties in respect of the same property, without any consideration. He 10 admitted that stamp papers for both the documents were purchased on the same day and that both documents were prepared by the same person. He further stated that the general power of attorney was executed for the purpose of security. He stated that through power of attorney (Ex. D-1), defendant authorised him to sell the suit property. He further admitted that a power of attorney authorising sale of a property is generally executed when the property has not already been transferred in favour of the person receiving such authority. He also admitted that he had not produced any document on record to establish that he possessed Rs.12,00,000/- at the time of execution of sale agreement. He stated that the said amount was obtained from his father; however, he had not produced any document to substantiate the availability of such funds with his father. He further admitted that he had not mentioned about execution of power of attorney by the defendant in the plaint, legal notice, or in his examination-in-chief. 11. Ramashankar Pandey (P.W.-5), father of the plaintiff (P.W.-1), is also an attesting witness to agreement to sell (Ex. P-1), subsequent agreement executed for extension of period for execution of the sale deed (Ex. P-2), and the General Power of Attorney (Without Consideration) (Ex. D-1). In his examination-in-chief, he deposed that on 17.03.2015, defendant along with her husband visited his residence, where parties finalized transaction for sale of suit property for a total sale consideration of Rs. 13,00,000/-. He further deposed that defendant received a sum of Rs. 12,00,000/- in cash towards sale consideration and, on the same day, a registered agreement to sell was executed in Registry Office, Raipur. He also stated that he and Raj Kumar Shukla (P.W.-2) signed the said agreement as attesting 11 witnesses to Ex.P-1. This witness further deposed regarding failure on the part of defendant to execute sale deed within the stipulated period. He also stated that, thereafter, a subsequent agreement to sell dated 10.09.2015 was executed between the parties, whereby the period for execution of the sale deed in respect of the suit property was extended for one year. In his cross-examination, he stated that at the time of the alleged transaction, plaintiff was pursuing his studies and had no independent source of income. He further stated that plaintiff was residing with younger brother of this witness. He also admitted that defendant was an illiterate lady, who used to affix her thumb impression, and she was a housewife. He further deposed that defendant could not read the agreement, but the same was read over to her by her husband. He also admitted that, on the date of execution of the agreement to sell (Ex. P-1) between the plaintiff and the defendant, a power of attorney (Ex. D-1) in respect of the suit property was also registered between the parties without any consideration. He further admitted his signature appearing on the portion marked 'B' to 'B' in Ex. D-1. He further stated that the power of attorney (Ex. D-1) was executed as security for the amount paid to the defendant. He also stated that the reason for execution of the said power of attorney (Ex. D-1) has not been mentioned therein. 12. Raj Kumar Shukla (P.W.-2), in his examination-in-chief, corroborated the testimony of the plaintiff (P.W.-1) regarding sale transaction, execution of registered agreement to sell between the parties with respect to the suit property, and payment of Rs. 12,00,000/- to the defendant. He further stated that he was one of the attesting witnesses to the agreement to sell (Ex. P-1). In his cross-examination, he stated 12 that on 17.03.2015, two documents relating to the suit property were executed, one of which was the registered agreement to sell (Ex. P-1). When questioned about Ex. D-1, he stated that a General Power of Attorney, without any consideration, had also been executed on the same day. He admitted his signature at the portion marked 'A' to 'A' on Ex. D-1. He admitted that there was no mention of Ex. D-1 in his examination-in-chief. He deposed that through document Ex. D-1, defendant authorized plaintiff to sell and execute documents relating to suit property. He also admitted that a power of attorney authorizing the sale of a property is generally executed only when property has not already been sold. He further admitted that while Ex.P-1 and Ex.D-1 were executed, husband of defendant Sukaru Reddy was present. 13. Arvind Tripathi (P.W.-3), in his examination-in-chief, also deposed in conformity with the testimony of the plaintiff regarding suit property and execution of agreement to sell and payment of sale consideration of Rs.12,00,000/- to defendant. He further stated that he was an attesting witness to the subsequent agreement dated 10.09.2015 (Ex.P-2), executed between the parties, whereby period for execution of the sale deed in respect of the suit property was extended till 10.09.2016. In his cross-examination, this witness admitted that negotiations for sale of suit property were not conducted in his presence. He further admitted that payment of Rs. 12,00,000/- in connection with the sale transaction was also not made in his presence and he came to know of the said facts only from the plaintiff, who was his friend. This witness also admitted that there was a variation in his signatures appearing on Ex. P-2. 13 14. Ramesh Chandra Shukla (P.W.-6) deposed that the defendant had entered into a transaction with the plaintiff for the sale of suit property and the registration of the sale deed was fixed for 06.03.2017. He further stated that, at the request of Ramashankar Pandey, he went to the Registry Office on the said date along with Chudamani Mishra. He stated that Arvind Tripathi, Raj Kumar Shukla, and plaintiff were also present at the Registry Office. According to him, they remained there until about 4:00 p.m., awaiting for the defendant for execution and registration of the sale deed; however, defendant did not appear, therefore, sale deed could not be executed and registered. In his cross-examination, he stated that he had gone to the office of the Sub- Registrar, Raipur, at the instance of the plaintiff. He admitted that he had no personal knowledge regarding the alleged transaction between plaintiff and defendant. He further admitted that he had not produced any document to show his presence at the office of the Sub-Registrar on 06.03.2017. He also stated that he came to know about the case, from the plaintiff and further that he appeared before the Court to depose at the request of the plaintiff. 15. Plaintiff examined Shailendra Dani (P.W.-4), Record Keeper of the office of Sub-Registrar, who produced original record of Document No. 1651A and stated that Ex. P-1 was a true copy of the registered sale agreement executed between K. Mahalaxmi Reddy and Swatantra Pandey. He stated that sale consideration was Rs.13,00,000/-, of which Rs.12,00,000/- had been paid and the balance of Rs.1,00,000/- was payable at the time of execution of the sale deed. He stated that he was not present at the time of execution of document. In cross- examination, he admitted that he had no personal knowledge of the 14 transaction, as his testimony was based solely on the contents of the document. 16. Lekhram Dhruve, retired Sub-Registrar, was examined as P.W.-7. He deposed that Ex. P-1 is the registered agreement to sell, registered by him and it bears his signature at portion F to F. He stated that Ex. P-1 records a sale consideration of Rs.13,00,000/-, out of which Rs.12,00,000/- was received by the seller, K. Mahalaxmi Reddy, who affixed her thumb impression on the document. He further stated that, as recorded in Ex. P-1, the balance amount of Rs.1,00,000/- was payable at the time of registration of the sale deed. In cross- examination, he admitted that his statement regarding sale consideration and payment was based on the contents of Ex. P-1. 17. Though the defendant did not enter the witness box, however, on her behalf, Dhirendra Pradhan, the son-in-law of the defendant, is examined as (D.W.-1). He deposed that the suit property was purchased by his father-in-law in the name of his mother-in-law and that no agreement or transaction for its sale was entered into by defendant with plaintiff on 17.03.2015. He further deposed that when plaintiff started pressurising his mother-in-law to execute and register sale deed of suit property, he came to Raipur and started residing there. He stated that his mother-in-law informed him that, in March 2015, she was in urgent need of money for household expenses as his father-in-law had been admitted to a hospital. As she could not arrange the funds, she borrowed Rs.1,00,000/- from the plaintiff by mortgaging the suit property, affixing her thumb impression on certain documents, and depositing the original title documents with the 15 plaintiff. He further deposed that he, along with his mother-in-law, met the plaintiff, who assured them that original documents would be returned upon repayment of the loan with interest. He stated that after repaying the entire loan amount along with interest, he and his mother- in-law approached the plaintiff for return of the signed documents and the original title deeds. However, the plaintiff initially avoided returning the documents and subsequently refused to do so, instead pressurising his mother-in-law to execute a sale deed in his favour. Upon refusal of plaintiff to return the original documents, a public notice was published in a daily newspaper, and a legal notice was also sent to plaintiff through an advocate. His mother-in-law is an illiterate woman, she cannot read or write, neither she understand Hindi nor she speak Hindi properly. He further deposed that his mother-in-law infected with COVID-19 in the year 2020 and became seriously ill. Although she recovered from infection, her health continued to deteriorate, and for the past one year she is bedridden, requiring assistance for her daily activities. He deposed that his mother-in-law never entered into any agreement with plaintiff for sale of suit property nor executed any power of attorney in his favour, and has not received a sum of Rs.12,00,000/- from plaintiff towards the alleged sale transaction. His mother-in-law had only borrowed Rs.1,00,000/- from plaintiff, which was subsequently repaid with interest. He further stated that plaintiff has filed the present suit based on forged and fabricated documents with the intention to grab the suit property by taking advantage of his mother-in-law, who is illiterate and does not know Hindi. In cross-examination, he stated that he was not present in Raipur when Ex. P-1 and Ex. P-2 were executed and had no 16 knowledge regarding the transactions mentioned therein. He further admitted that, in the year 2015, he informed the plaintiff that he would repay the amount of Rs.1,00,000/- in four or five installments. The plaintiff agreed and stated that the documents would be returned after repayment. He further stated that after repayment of the amount along with interest, he demanded the original documents, but the same were not returned. 18. Perusal of the sale agreement (Ex. P-1) reveals that the document was executed on a stamp paper of Rs.50/-. On the reverse side of the said stamp paper, name of the seller is mentioned as K. Mahalaxmi Reddy herself; however, there is no signature or endorsement of the person who purchased the said stamp paper. Perusal of contents of agreement to sell (Ex. P-1) further reveals that defendant agreed to sell suit property to plaintiff for a consideration of Rs.13,00,000/-. It is mentioned therein that Rs.12,00,000/- was received in cash by defendant in presence of witnesses, and balance amount of Rs.1,00,000/- was payable at the time of execution and registration of sale deed and period for completion of sale transaction was fixed as six months from the date of agreement. 19. The plaintiff has also placed on record Ex. D-1, the document titled as a Registered Power of Attorney (Without Consideration), purportedly executed by the defendant in favour of plaintiff. The said document appears to have been executed on the same date as the agreement to sell (Ex. P-1) was executed i.e. on 17.03.2015 by defendant in favour of the plaintiff. Perusal of the contents of Ex. D-1 reveals that the defendant executed the said registered power of attorney without any 17 consideration in favour of the plaintiff in respect of the suit property, i.e., a portion of the house situated over Khasra No. 424/7, Village Doomartalab, Raipur, admeasuring 1100 square feet, out of which a permanent house has been constructed over 700 square feet. By virtue of the said power of attorney, defendant authorised plaintiff to sell the aforesaid property, obtain B-1, tax receipts, maps, and, if required, get the same verified/certified by the Tehsildar. Plaintiff was further authorised to complete all necessary formalities after the sale, including execution and completion of documents in favour of the purchaser, which were to be deemed as acts performed by defendant, and for which defendant agreed to remain bound. It is further mentioned in Ex. D-1 that plaintiff, as power of attorney holder, was authorised to finalise the sale transaction of the said property with any person or organisation, execute an agreement on behalf of defendant, prepare the sale deed after receiving earnest money, and present and register sale deed before office of Sub-Registrar on behalf of defendant. Further perusal of the registered Power of Attorney (Without any Consideration) (Ex. D-1) reveals that it does not contain any reference to the registered agreement to sell (Ex. P-1), nor does it state that the said power of attorney was executed as a security for the amount of Rs.12,00,000/- allegedly paid by plaintiff to defendant. Similarly, agreement to sell (Ex. P-1) also does not contain any recital or reference regarding execution of registered Power of Attorney (Without any Consideration) (Ex. D-1) on the same date. 20. It is an admitted position that the defendant is an illiterate lady who is unable to read or write Hindi. Since defendant has specifically denied execution of agreement to sell (Ex. P-1), the burden squarely lies upon 18 plaintiff to establish that contents of the said agreement to sell were duly read over and explained to the defendant in a language understood by her, and that she affixed her thumb impression thereto only after fully understanding and voluntarily agreeing to the contents of the agreement. 21. Although it has been averred in the plaint and deposed by the plaintiff's witnesses that the defendant's husband was present at the time of execution of the agreement to sell (Ex. P-1) and general power of attorney (Ex.D-1) and that he had read over and explained the contents thereof to the defendant, it is noteworthy that the defendant's husband is neither an attesting witness to Ex. P-1 or Ex. D-1, nor any attempt has been made to examine him by plaintiff, as witness. In absence of his testimony, plaintiff has failed to adduce the best available evidence to establish that the contents of the documents were duly read over and properly explained to the defendant before she affixed her thumb impression thereon. 22. The High Court of Orissa, Cuttack Bench, in Damodar Sahoo & Others v. Natabar Sahoo & Others, in SA No.144 of 1987 decided on 16.05.2025 held as under:- “21. As such, when due and proper execution of the sale deed Nos.5066 and 5067 vide Exts. A and C dated 30.06.1981 by an old, ailing and illiterate vendor i.e. plaintiff in favour of the defendant Nos.1 and 2 has remained under challenge on the allegation against the defendants that, they (defendants) have managed to execute the same from him (plaintiff) by practising fraud and misrepresentation and when it is the case of the old, ailing and illiterate executant i.e. plaintiff that, he (plaintiff) has not executed the said deeds with his intention and knowledge of execution thereof, then in these nature of 19 allegations and counter allegations, the burden of proof lies upon whom has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) In a case between Sankirtan Sha & Others Vrs. Jaya Krushna Patel reported in (2003) CLR 780 in Para No.8 that, the principle applicable to a pardanashin lady is in pari materia application to an illiterate person. The person, who relies on a document to sustain a transaction entered into with an illiterate person has to establish that, the said document was executed by him (illiterate person) only after clearly understanding the nature and character of the transaction. The burden unless is discharged physical signing of the document cannot be treated as the mental act of the author. (ii) In a case between Smt. Sarada Sawalka Vrs. Swatantra Kumar Agarwal reported in 2014 (Supp.II) OLR 744 in Para No.10.2 that, protection applicable to a Pardanashin woman can be extended to an illiterate and rustic village woman or to documents made by old, invalid, infirm and illiterate persons. (iii) In a case between Smt. Hiramani Swain (died) Chaitan Swain & Others Vrs. Ramesh Chandra Senapati & Others reported in 2001 (1) OLR 648 that, when a document is executed by an illiterate pardanashin lady, she need not prove fraud. It is the person, who depend upon the document is to prove that, it had been read over and explained to the executant and she signed the same after understanding the contents thereof. (iv) In a case between Maguni Charan Dey Vrs. Ujaimani Dei & Others reported in 2018 (II) CLR 503 in Para No.10 that, one who wants to rely on a document executed by an illiterate person must be able to establish that, the contents of the said documents 20 were read over and explained to that person and the signature or thumb mark was appended to it by the executant after understanding the purport and/or the contents of the document. (v) In a case between R.J. Gounder Vrs. V.T. Elaiya reported in AIR 1972 Mad. 336 that, onus of proof relating to executions by illiterate person. Burden of proving that, document was properly explained and interpreted to illiterate person before he affixed his marks thereupon is on the party relying on the document. (vi) In a case between Somanath Mishra Vrs. Narahari Das reported in AIR 1977 NOC 304 (Orissa) that, an illiterate person cannot read the contents of the documents and so one who wants to rely on such a document must establish that, the illiterate person knew the contents and purport of the document before affixing his or her left hand thumb impression or mark to that document. Merely on the proof of the signature or thumb impression of such an illiterate person on such a deed, a court cannot hold that, the said document was duly executed, as due execution of a deed does not merely mean singing on or putting one’s mark to a deed without knowing the contents of the same. Due execution of a document must always indicate that, the mind of the executant did concur with the contents of the document and with such concurrence he/she put her signature or thumb impression on the deed. So long, that is not done, it cannot be said that, document was duly executable. Law Courts, therefore, consider it desirable and necessary that, one who wants to rely on a document executed by an illiterate person must be able to establish that, the contents of the said document were read over and explained to that person and the 21 signature or thumb mark was appended to it by the executant after understanding the purport and/or the contents of the document. (vii) In a case between Makha Bewa Vrs. Bimbadhar Kandi reported in 41 (1975) CLT 978 that, no certificate in the deed to the effect that, the illiterate executant executed the deed after understanding the contents of the same, but, merely stated that, the deed was read over and explained to the executant is not sufficient.” 23. The High Court of Delhi, in Smt. Keshar & Another v. Shri Sandeep Lakra, O.M.P. No. 548 of 2008, decided on 06.12.2015, while referring to the decision of the High Court of Orissa at Cuttack and the ratio of law laid down in case of Damodar Sahoo (supra), reiterated the settled principle of law that the burden lies upon the party relying on the agreement to sell to prove that its contents were duly read over and explained to the executant before obtaining his or her signature or thumb impression. 24. 24. Hon’ble Supreme Court in case of Krishna Mohan Kul v. Pratima Maity, reported in (2004) 9 SCC 468 has held that the principles of equity mandate that where the circumstances raise a presumption of influence whether by reason of relationship, mental or physical infirmity, illiteracy, or inability to comprehend the nature of the act the beneficiary must establish that the transaction represents the conscious and voluntary act of the executant. This requirement extends beyond the mere physical act of signing or affixing a thumb impression and obliges the beneficiary to demonstrate the mental act of understanding and assent. The relevant portion reads as under:- 22 “13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the court.” 25. So far as the claim of plaintiff regarding alleged payment of Rs.12,00,000/- to defendant at the time of execution of the agreement to sell is concerned, the plaintiff (P.W.-1) and Ramashankar Pandey (P.W.-5) have deoposed at the relevant time, plaintiff was pursuing his studies. Plaintiff had no independent source of income. Witnesses have further admitted that the plaintiff has not produced any documentary evidence to show that he or his father Ramashankar Pandey (P.W.-5) had Rs.12,00,000/- available with them on the date of the alleged transaction. In a suit seeking relief of specific performance, founded upon an alleged payment of a substantial amount in cash, plaintiff is under an obligation to satisfactorily establish the source and availability of the consideration amount. The absence of any cogent and reliable evidence in this regard creates a serious doubt with respect to the claim of plaintiff having paid Rs.12,00,000/- to the defendant at the time of execution of the agreement to sell. The oral evidence led by plaintiff does not cure these deficiencies. Raj Kumar Shukla (P.W.-2) and Ramashankar (P.W.-5) are admittedly interested or closely connected witnesses, and 23 their evidence, though supportive in form, does not remove the intrinsic improbabilities arising from the surrounding circumstances. Arvind Tripathi (P.W.-3) candidly admitted that he had no personal knowledge of the negotiation or payment of money, and Ramesh Shukla (P.W.-6) also had no independent knowledge of the transaction. Shailendra Dani (P.W.-4) posted in registry office as Record Keeper and Lekhram Dhruve (P.W.-7), retired Sub-Registrar, have merely proved the registration and contents of the document, but their evidence is based on the record and not on any personal knowledge of payment or intention of the parties. 26. On the other hand, the defendant has taken a specific plea that she had borrowed a sum of Rs.1,00,000/- from the plaintiff and had put her thumb impression on certain papers only as security for repayment of the said loan. It is true that defendant has not entered the witness box to prove this plea. However, it is a settled principle of law that the plaintiff has to succeed on the strength of his own case and not on the weakness of the defence. Therefore, non-examination of the defendant does not, by itself, prove the plaintiff's case, more so when witness examined on behalf of defendant clearly made statement that the defendant is not keeping well. The defence version finds support from the surrounding circumstances and the documentary evidence available on record. It is an admitted fact that both agreement to sell (Ex.P-1) and general power of attorney (Ex.D-1) were executed and registered on the same day by the same parties with respect to the same property, without any reference to the other document. 24 27. The execution of two separate and distinct documents relating to the suit property between the same parties on the same date, without any reference to each other or any recital explaining the purpose, nature, and connection between the said documents, creates a doubt regarding the circumstances in which such documents were executed. The absence of any mention in either document about the existence or effect of the other document raises questions regarding their authenticity, correctness, and legal validity. 28. Proof in civil cases is to be tested on the preponderance of probabilities. Hon’ble Supreme Court in case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 while dealing with the issue has observed as under :- “28. Whether a civil or a criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be “proved” when, if considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. “The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: ‘There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere 25 preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required.’ (Best, § 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edn., pp. 58-59.) In the words of Denning, L.J. (Bater v. Bater [(1950) 2 All ER 458 : 1951 P 35 (CA)] , All ER at p. 459 B-C): It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of law, Hodson, L.J. said: “Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” (Hornal v. Neuberger Products Ltd. [(1956) 3 All ER 970 : (1957) 1 QB 247 : (1956) 3 WLR 1034 (CA)] , All ER at p. 977 D). 29. The expression of preponderance of probabilities has been explained by Hon’ble Supreme Court in case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, in the said case Hon’ble Supreme Court has applied the test of prudent man, who upon weighing the various probabilities finds that preponderance is in favour of the existence of particular fact and further that there may 26 be degrees of probabilities within that standards and it depends on the subject matter. It was observed thus : “The standard of proof 720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly : If therefore, the evidence is such that the court can say “we think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.] In Miller v. Ministerof Pensions [Miller v. Minister of Pensions, (1947) 2 All ER 372] , Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms : (All ER p. 373 H) “(1) … It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater [Bater v. Bater, 1951 P 35 (CA)] , where he formulated the principle thus : (p. 37) 27 “… So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter.” (emphasis supplied) 722. The definition of the expression “proved” in Section 3 of the Evidence Act is in the following terms: “3. … “Proved”.—A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” 723. Proof of a fact depends upon the probability of its existence. The finding of the court must be based on: 723.1. The test of a prudent person, who acts under the supposition that a fact exists. 723.2. In the context and circumstances of a particular case. 724. Analysing this, Y.V. Chandrachud, J. (as the learned Chief Justice then was) in N.G. Dastane v. S. Dastane [N.G. Dastane v. S. Dastane, (1975) 2 SCC 326] held : (SCC pp. 335-36, para 24) “The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two 28 may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note:‘the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue [ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 (Aust).] , CLR at p. 210’; or as said by Lord Denning, ‘the degree of probability depends on the subject- matter’. In proportion as the offence is grave, so ought the proof to be clear [Blyth v. Blyth, 1966 AC 643 : (1966) 2 WLR 634 : (1966) 1 All ER 524 (HL)] , All ER at p. 536’. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.” (emphasis supplied) 30. One another important aspect of the case is that, when Rs.12,00,000/- out of total consideration of Rs.13,00,000/- was paid in cash at the time of agreement to sell, then why not the sale deed itself is registered, making payment of entire sale consideration when the agreement to sell is registered in the office of Registrar. No explanation is offered. Though statement is made of making available relevant documents, but not specifically stated about what document is not available. Payment of about more than 90% of total sale 29 consideration at the time of agreement to sell without pleading any extra ordinary circumstances makes the case of plaintiff doubtful. 31. Considering entirety of the facts and circumstances of the case, evidence brought on record, as also the defence taken by defendant that she is illiterate and this fact was accepted by witness of plaintiff we are of the considered view that defence taken by defendants appears to be more probable. 32. The case law relied upon by learned counsel for appellant in Shyam Kumar Irani (supra) is distinguishable on facts as well as law as in this case, there was neither any pleading nor any evidence to suggest that executor of the document was a Pardanashin lady. Hon’ble Supreme Court held that merely because a person is old and illiterate, she cannot be treated as a Pardanashin lady unless the necessary facts establishing such status are pleaded and proved. The reliance placed upon the case of Iqbal Basith (supra), contending that the defendant did not enter the witness box to prove the misrepresentation and deceit allegedly practised by the plaintiff, also does not assist the plaintiff. The initial burden was upon plaintiff to first prove that the agreement to sell (Ex.P-1) was validly executed by defendant especially in view of the surrounding circumstances. Since the plaintiff failed to prove the execution of (Ex.P-1), burden to prove anything further never shifted upon defendant. 33. For the foregoing discussions and in view of the ratio of law laid down by Hon’ble Supreme Court, we are of the considered view that the findings recorded by the Trial Court that the finding recorded by the trial Court are based on proper appreciation of documentary and oral 30 evidence brought on record by the respective parties and do not suffer from any perversity or illegality warranting interference. The appeal being devoid of merit is liable to be and it is hereby dismissed. 34. The Decree be drawn accordingly. 35. The parties to bear their own costs. Sd/- Sd/- (Parth Prateem Sahu) (Sachin Singh Rajput) Judge Judge Balram