Shivamma vs Abdur Rahman

Manohar Pershad, J.—This is a plaintiff''s second appeal which arises out of a suit filed on her behalf for a declaration of title, possession of the land, cancellation of the sale-deed, and for mesne profits. It is alleged in the plaint that Plaintiff is the owner of the suit property, Plaintiff is blind and she could not cultivate the suit land. The Defendant told the Plaintiff that if she would execute an ''Ekrarnama'' in his favour stating, that after her death the Defendant would be entitled to the suit property, Defendant would maintain her till her lifetime. Relying on the statement of the Defendant, the Plaintiff agreed to execute an ''Ekrarnama'' in favour of the Defendant. Accordingly, the Defendant took her to Sangareddy and took her signature on some papers. After the execution of the ''Ekrarnama'' Defendant did not maintain the Plaintiff. Suspecting the Defendant, the Plaintiff started making enquiries and on her enquiry, it appeared that the Defendant taking advantage of the blindness of the Plaintiff got a sale-deed executed in his favour duly registered instead of an Ekrarnama. As the Defendant has got the sale-deed executed in his favour by practising fraud, Plaintiff is entitled to a decree.

Defendant in his written statement admitted that Plaintiff is blind, and alleged that it is not correct that the Defendant got the sale-deed executed in his favour by practising fraud on her, but stated that as the Plaintiff wanted some money to start business, she came and pressed the Defendant to purchase the property. Defendant agreed but as the sale-deed could not be executed without the permission of the Taluqdar, proceedings had to be taken, so the Plaintiff first executed a mortgage deed, having received Rs. 600/- and later executed the sale-deed. It was further stated that after the sale, the Defendant has constructed a house and has spent sufficient money on the property. A legal objection also was raised that the suit is time-barred. On these pleadings, the trial court framed certain issues. Parties led evidence. The trial court, on a consideration of the evidence, dismissed the Plaintiff''s suit, having held that Plaintiff has failed to establish fraud. This judgment was affirmed in appeal. Hence this second appeal on behalf of the Plaintiff.

In this appeal, it is urged on behalf of the Plaintiff that admittedly Plaintiff is blind, and the Defendant has failed to prove that the sale deed in his favour was executed after taking all the necessary precautions, and as there is no evidence in the case, Plaintiff''s suit should be decreed.

On behalf of the other side it is urged that the evidence produced on behalf of the Plaintiff is not sufficient to establish fraud. The only crucial point in this case is whether fraud as alleged by the Plaintiff is proved. Plaintiff has produced four witnesses including herself. Plaintiff in her oral testimony has stated that Defendant had promised to maintain her and in lieu of that had asked her to execute an Ekrarnama''; relying on his statement she agreed to execute an ''Ekrarnama but to her surprise she found that taking advantage of her blindness, instead of executing an ''Ekrarnama'' he got a sale-deed registered. She denies having received any money.

5-12. (His Lordship went through the evidence of witnesses on behalf of the Plaintiff and also on behalf of the Defendant and then continued).

Plaintiff is admittedly blind. Plaintiff alleges that Defendant wanted the Plaintiff to execute an ''Ekrarnama'' and instead of getting the ''Ekrarnama'' Defendant got the sale-deed executed. In her deposition she has clearly stated that the document was not read over to her and she does not know the contents of the document. She only relied on the statement of the Defendant and put her impression on the document. Plaintiff is admittedly not only blind but also illiterate. In such cases a heavy burden is laid on the Defendant to prove that she had not only agreed to sell but she knew What was being written and the document was executed in accordance with the terms of the agreement.

After giving a careful consideration to the evidence, I am of the opinion that the evidence is not sufficient to establish that Plaintiff had agreed to sell the land to the Defendant. Defendant has stated that the talk of purchase of the land was arranged through the Plaintiff''s brother-in-law, Yenkanna. Yen-kanna, who has been produced on behalf of the Plaintiff is P. W. 4, and he has totally denied having accompanied the party and having had any talk regarding the same. There is no other evidence on behalf of the Defendant that any of the Plaintiff''s relations or any other man on her behalf was present at the time of the transaction. When Plaintiff is admittedly blind, her signature on the sale-deed cannot have any force. This is clearly laid down in the leading case of - Foster v. Mackinnon (1869) 4 CP 704 at p. 711, where it has been observed:

It seems plain on principle and on authority that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper, which the blind or illiterate man afterwards signs; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.

There is no evidence that there was any other person present, and Plaintiff in her oral testimony has stated that she had agreed to execute an ''Ekrarnama'' there is no reason to disbelieve her statement. Thus, in my opinion, the facts alleged on behalf of the Plaintiff are sufficient to prove fraud.

On behalf of the Respondent it is urged before me that if for any reason it is held that the sale-deed is ineffective, even in that case Plaintiff would not entitled to a decree as previous to the sale she had executed a mortgage-deed having received Rs. 600/-. In this connection, the learned Vakil drew my attention to this fact that the Plaintiff has admitted the mortgage.

On behalf of the Plaintiff it is contended that Plaintiff has denied the fact of the mortgage. From a perusal of the record I find that the Plaintiff has endorsed her denial on the mortgage-deed, and in the case there is no evidence regarding the mortgage. Reliance is placed on the following statement of the Plaintiff:

at the time of the execution of the mortgage deed, Patwari was not present.

and it is urged that from this the fact of the execution of the mortgage is admitted. I am afraid, I cannot accept this contention. Plaintiff has totally denied the execution of the mortgage: Plaintiff is an illiterate woman: she was only questioned whether Gunde Rao was present at the time of the execution of the mortgage, and she said that he was not present. Merely on this statement and when she has totally denied, I am not inclined to hold that the fact of the mortgage is admitted. Thus, I see no force in this contention and it fails.

On behalf of the Plaintiff it is urged that as the Defendant has been in possession and availing of the mango trees, Plaintiff is entitled to mesne profits, at the rate of Rs. 200/- per annum. On behalf of the Defendant it is urged that Plaintiff is not entitled to any mesne profits, and further that Plaintiff has not proved the amount of the mesne profits.

From a perusal of the record I find that Plaintiff has claimed mesne profits at the rate of Rs. 200/- per annum, and in her oral testimony she has stated that when she was in possession, she used to get Rs. 200/- as mesne profits. Defendant has said nothing about the mesne profits in his statement. But merely on the statement of the Plaintiff I am not inclined to give a decree for mesne profits when I find that it is not definite also. Appeal is, therefore allowed, judgments of the courts below are set aside and Plaintiff''s suit is decreed to the extent of the possession of the suit land, cancellation of the sale-deed and declaration of title and dismissed to the extent of mesne profits. Plaintiff would be entitled to costs all throughout.