Smt. Dulari Kuer and Others vs Shivanandan Prasad Singh and Another

B.P. Jha, J.—Defendants 2 to 4 preferred second appeal before this Court.

The plaintiff filed the suit for specific performance of contract on the basis of a ''mahadanama'' (contract of sale) dated 11th November, 1964 (Ext. 4) which was executed by Must. Bhatni Kuer (defendant No. 1) in favour of the plaintiff for Rs. 5,000/- in respect of the suit land. Out of Rs. 5,000/-, a sum of Rs. 2,000/- was paid at the time of the execution of the ''mahadanama'' (Ext. 4). It was also stipulated in the ''mahadanama'' (Ext. 4) that by 15th December, 1964, defendant No. 1 was to execute the sale deed in favour of the plaintiff on receiving balance of the consideration amount, that is, Rs. 3,000/-. The plaintiff also prayed for execution of the sale deed in favour of the plaintiff by defendants 1 to 4. It was also prayed that if defendants 1 to 4 did not execute the sale deed according to the direction of the court, the court itself should execute the sale deed in favour of the plaintiff after the balance of the consideration amount, that is Rs. 3000/- was deposited by the plaintiff

The suit was resisted by defendants 2 to 4 on the basis of three registered sale deeds dated 27th November, 1964 (Exts. A to A/2) which were executed by defendant No. 1 in favour of defendants 2 to 4. It is on the basis of the registered sale deeds that defendants 2 to 4 claimed that they were bona fide purchasers. They also pleaded that they had no notice of the ''mahadanama'' (contract of sale) dated 11th November, 1964 (Ext. 4) which was executed by defendant No. 1 in favour of the plaintiff. Defendants 2 to 4 also denied the execution of the ''mahadanama'' by defendant No. 1.

On these facts, both the courts below concurrently held:

(1) That Must. Bhatni Kuer (defendant No. 1) executed the ''mahadanama'' (Ext. 4) on 11th November, 1964 in favour of the plaintiff.

(2) That defendants 2 to 4 were not the bona fide purchasers of value and they had notice about the ''mahadanama'' dated 11th November, 1964.

On these facts, learned Counsel for the appellants contends:

(1) That the ''mahadanama'' was not properly executed by defendant No. 1 for the simple reason that the ''mahadanama'' was not read over and explained to her.

(2) That the lower appellate court erred in law in rejecting the testimony of DW. 5.

(3) That the Munsif had no pecuniary jurisdiction to try the suit.

So far as point No. 1 is concerned, learned Counsel for the appellants contends that the onus was on the plaintiff to prove that the ''mahadanama'' was read over and explained to defendant No. 1. In other words, he means to say that defendant No. 1. In other words, he means to say that defendant No. 1 being a pardanashin lady, the onus was on the plaintiff to prove that the ''mahadanama'' was read over and explained to her. In this connection, the lower appellate Court referred to the evidence of P.W. 3 in paragraph No. 18 of its judgment P.W. 3 was the scribe of the ''mahadanama'' dated 11th November, 1964 (Ext. 4). His evidence was discussed by the lower appellate court in that paragraph. It is relevant to quote the discussion of the lower appellate court in paragraph No. 18 of the judgment which runs as fallows:

This P.W. 3 has consistently supported the proper execution of Baibeyana in question.

P.W. 3 stated in his evidence that he had scribed the document (Ext. 4) at the instance of Must. Bhatni Kuer (defendant No. 1). He also stated in his evidence that he had read over and explained to her, and, that after fully understanding the document she had put her thumb impressions on the document. In my opinion, learned Counsel for the appellants erred in contending that the plaintiff did not prove the factum that Must. Bhatni Kuer gave her thumb impressions after fully understanding the document. The evidence of P.W. 3 clearly suggested that defendant No. 1 put her thumb impressions after the document was read over and explained to her and after fully understanding the contents of the document. If it is so, the plaintiff proved that she put her left thumb impression after understanding the contents of the document. The lower appellate court accepted the evidence of P.W. 3. I, therefore, reject the contention of the learned Counsel of the appellants in this connection.

In this connection, learned Counsel for the appellants relied on the decisions in AIR 1934 208 (Privy Council) and in Amir Alam Vs. Mt. Bibi Salma and Another, . In these two cases, the Ending of the Courts below was that the lady executant did not understand the document. In the Privy Council case (supra), the executant of the document was a deaf lady, whereas in the Patna case (supra) the executant of the document was a blind lady. It is for this reason that their Lordships upheld in both the cases the judgment of the court below to the effect that the executant lady being pardanashin did not understand the contents of the document. In my opinion, these decisions can be distinguished from the facts of the present case. In the present case, there is no finding that the executant was either deaf or blind. In the Patna case, the scribe was not examined. In the present case, the scribe (P.W. 3) was examined to prove that the contents of the document were read over and explained to her, and that she signed the document after fully understanding the contents thereof. In these circumstances, I hold that on the facts of the instant case, the decisions referred to by the learned Counsel for the appellants are not applicable.

The lower appellate Court considered the evidence of the plaintiff''s witnesses between paragraph No. 16 and paragraph No. 23 of its judgment. After considering the evidence of the plaintiff''s witnesses, namely, P.Ws. 2, 3, 4, 5, 6, 7, 8 and 10, the lower appellate court held in paragraph No. 23 that defendant No. 1 executed the ''mahadanama'' (baibeyana) dated 11th November, 1964 (Ext. 4) in favour of the plaintiff and that it was valid, genuine and for consideration. Hence, in view of the fact that both the courts below have held that the ''mahadanama'' (Ext. 4) is valid, genuine and for consideration and these findings being concurrent findings of facts, I am unable to disturb the findings of facts arrived at by the lower appellate court.

So far as point No. 2 is concerned, learned Counsel for the appellants contends that the veracity of the evidence of D.W. 5 cannot be challenged by the plaintiff, as the plaintiff did not cross-examine this witness. In this connection, he cites a Division Bench decision of this Court in Karnidan Sarda and Another Vs. Sailaja Kanta Mitra and Another, . In that case, the Division Bench held that, if a witness was not cross-examined, then his evidence was to be accepted, unless, of course, there were inherent improbabilities. The evidence of D.W. 5 has been considered by the lower appellate court in paragraph No. 7 of the judgment. The appellate court rejected the evidence of D.W. 5 on the ground that he was not deposing truly before the court. P.W. 5 stated in his evidence that before the execution of the sale deeds (Exts. A to A/2), defendants 2 to 4 paid Rs. 1500/-to defendant No. 1. The lower appellate court disbelieved this portion of the evidence of D.W. 5 on the ground that there was no document to support such payment, Most of the D.Ws. including D.Ws. 1, 2, 3, 5, 6 and 7 stated that before executing the sale deeds (Exts. A to A/2) on 27th November, 1964, these defendants paid Rs. 1500/-in total as earnest money to defendant No. 1. This part of the defence version was not accepted by the lower appellate court in paragraph No. 7 of the judgment for the simple reason that there was no document to support such payment. In my opinion, the lower appellate Court was justified in rejecting the evidence of D.W. 5, because there were inherent improbabilities in the evidence of D.W. 5. In my opinion, the Division Bench decision of the Patna High Court in Karnidan Sarda''s case (supra) does not support the point raised by the learned Counsel of the appelant. Hence, I reject this contention as well.

Learned Counsel of the appellants contends that on the basis of the consideration amount of the sale deeds (Exts A to A/2), the Munsif had no jurisdiction to try the case. He contends that the Munsiff who tried the suit had pecuniary jurisdiction to try the suit up to Rs. 5,000/-. The consideration of each of the sale deeds (Exts. A to A/2) being Rs. 2,000/-, as such the valustion of the suit would be Rs. 6,000/-. If the valuation of the suit be Rs. 6,000/-, then the Munsif dated 4th August, 1969. The learned Munsif held enquiry in respect of the valuation matter and held that the suit was properly valued on the basis of the consideration amount mentioned in the ''mahadanama'' (Ext. 4). The consideration amount mentioned in the ''mahadanama'' was Rs. 5,000/-, and, as such, the plaintiff was justified in valuing the suit at Rs. 5,000-. In this connection, learned Counsel for respondent No. 1 relied on a Division Bench decision of this Court in Kashi Prasad and Others Vs. Baiju Paswan and Others, . In that case a Division Bench relying on Section 7(x) of the Court Fees Ac held that the suit would be valued according to the consideration amount mentioned in the contract of sale. Relying on this decision, I hold that the plaintiff right valued the suit on he basis of the consideration amount mentioned in the ''mahadanama'' dated 11th November, 1964. Under the ''mahadanama'' (contract of sale) the consideration amount was Rs. 5000/-. In my opinion on the basis of Section 7(x) of the Court Fees Act, the plaintiff was justified in filing the suit on the valuation as mentioned in the contract of sale. Hence I reject the contention of the learned Counsel of the appellant in this connection. In view of the concurrent findings of facts arrived at by the courts below, I am unable to disturb these findings of facts.

Ultimately, learned Counsel for the appellants prayed that the following remark of the lower appellate court in paragraph No 7 of the judgment be expunged:

In this way D.Ws. 1, 2, 3, 5, 6, and 7 all deserve to be criminally prosecuted.

Learned Counsel for respondent No. 1 has no objection if the remark is expunged. Hence I expunge the above mentioned remark in paragraph No 7 and hold that D.Ws. 1, 2, 3, 5, 6 and 7 should not be prosecuted.

In the result, the appeal fails and is dismissed. The parties will bear then own costs throughout.