Sri Zahiruddin vs Nairunnisa Bibi

V.K. Shukla, J.—Second appeal has been preferred against the judgment and decree dated 12.12.1988 passed by the Ist Additional District Judge, Ghazipur in Civil Appeal No. 395 of 1982 allowing the appeal arising out of judgment and decree passed by 5th Additional Munsif Ghazipur dated 29.07.1982 in Original Suit No. 138 of 1979 (Smt. Sadulan Bibi (deceased) v. Zahiruddin).

Brief background of the case is that Mst. Sadulan Bibi filed Original Suit No. 138 of 1979 (Smt. Sadulan Bibi (deceased) v. Zaheeruddin) contending therein that she is pardanashin widow lady and has one daughter Zulekha. Said Zulekha has step son Jahandaad Khan and said Jahandaad Khan used to help plaintiff also in carrying out her activities. Plaintiff was interested in getting Will executed in favour of her daughter Zulekha and for this purpose she had gone to Tehsil Zamaniya and at Tehsil zamaniya in stead of getting Will in question executed, to the contrary sale deed in question was got executed in favour of Zahiruddin Khan whereas fact of the matter is that at no point of time she has ever intended to execute any sale deed in favour of Zahiruddin Khan and further at no point of time any amount in question had ever been paid to her by way of sale consideration. Said suit was contested by Zahiruddin Khan by taking specific plea that amount in question had been paid to Mst. Sadulan Bibi and after accepting amount in question at her place in presence of witness she has gone to the office of Sub-Registrar and after being fully explained the contents and nature of transaction, she has voluntarily appended her signature on the instrument in question and as such there is no fraud and misrepresentation on the part of the defendant-appellant and to the contrary plaintiff fully and well knowingly that she was executing sale deed with open mind after accepting sale consideration has executed sale deed in question. After pleadings inter se parties were exchanged issues were framed which were seven in number. Oral as well as documentary evidence has been led from both sides and thereafter trial court scrutinized evidence led by both parties and concluded that plaintiff has utterly failed to prove her case that disputed sale deed was not executed and she has not received any consideration. Against the said judgment and decree appeal being Civil Appeal No. 395 of 1982 had been filed by Mst. Sadulan Bibi and during the pendency of said appeal Mst. Sudulan Bibi died and then application was moved from the side of appellant for substitution on the basis of Will executed by Sadulan Bibi during her life time. Said substitution application was allowed with condition that genuineness of the Will has to be substantiated by adducement of evidence at appellate stage and thereafter evidences were led on Will from both sides and additional issue was also framed at the appellate stage regarding genuineness of Will and Will in question has been found to be genuine thereafter appeal in question has been allowed holding therein that Smt. Sadulan Bibi was Pardanashin lady and at no point of time she was ever made to understand exact nature of the transaction in question and further passing of monetary consideration has not been established. At this juncture present Second Appeal has been filed.

Sri Syed Mehmood, learned Counsel for the defendant-appellant contended with vehemence that in the present case substantial question of law, which arises, for consideration is that lower appellate court has erred in law in not considering evidence of namely DW-1, DW-2 and DW-3 in its correct prospective and on totally erroneous approach to the matter has recorded perverse findings and the findings recorded are contrary to the evidence available on record and alternatively, it has also been mentioned that accepting for the purposes of the case that amount in question has not been passed on, even then same will not vitiate the sale as has been provided for u/s 54 of Transfer of Properties Act, as such judgment and decree passed by court below is liable to be set aside.

Countering said submission Sri Aizaz Ahmad Khan, Advocate contended that in the present case lower appellate court has recorded categorical finding of facts that Mst. Sadulan Bibi was Pardanashin lady and at no point of time had ever been explained of the contents of the document which was signed by her and there was transaction whatsoever qua passing of the consideration amount and in this background once courts below have recorded finding that fraud has been practised on the Pardanashin lady then in this background said finding of fact based on appreciation of evidence cannot be termed to be perverse, raising any substantial question of law and as such judgment and decree passed by lower appellate court deserves to be affirmed.

After respective arguments have been advanced factual position qua which there is no dispute and on which no challenge has been made that Smt. Sadulan Bibi at the point of time of execution of sale deed, was about 75 years of age, hard of hearing, rustic, illiterate lady of the village.

Hon''ble Apex Court in the case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai, has laid down principle governing deeds of Pardanashin ladies in the following words:

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 entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other, evidence, direct and circumstantial.

In the light of principle indicated above the lower appellate court has examined evidence and has found that the burden that lay on the defendants remained un-discharged and they failed to prove that the plaintiff voluntarily executed the sale deed after understanding its nature and effect and on consideration having been passed on.

Question of law which has been formulated and canvassed before this Court is that evidence of DW-1, DW-2 and DW-3 have not at all been considered in its prospective and totally erroneous approach has been taken in the matter.

At this juncture this Court notices the conclusion which has been drawn by lower appellate court after taking into account circumstances which were available on record:

(1) When plaintiff was hard of hearing, rustic village and of very advance age, therefore, there should have been special precaution to show that contents of the disputed document concurred with the mind of the executant. There is no evidence to show that at the time of alleged execution of the sale deed, extra precaution were taken by the sub-Registrar or by the vendee or by his witness to take her understand to the very contents of the document. Even endorsement of the Sub-Registrar does not contain that plaintiff was hard of hearing etc. No witness examined from the side of defendant admitted that such precaution was taken. It is the condition, then it is highly improbable that Smt. Sadulan Bibi could have understood the contents of the document. The alleged sale deed could be binding on the plaintiff only when there is a clear proof of execution of the deed. Execution, in fact, has not been proved because Smt. Sadulan Bibi was a rustic, ignorant, hard of hearing and of very advance age. Hence genuineness of the documents cannot be established.

(2) So far as consideration is concerned, alleged vendee was not proved that consideration has passed to the plaintiff. Consideration has been allegedly given about one or two days advance of the alleged sale deed. Defendant contends on oath that a sum of Rs. 10,000/- was given to Smt. Sadulan Bibi on her dilapidated residence in presence of the witnesses and that her grand-son Sri Jahandaad Khan was also present and he had counted the money and given to Smt. Sadulan Bibi. There is no proof as to where from the defendant had this ready money at his residence. Defendant states on the date when consideration was paid, he was informed by the witnesses that Smt. Sadulan Bibi intended to sell and on that very date he approached Smt. Sadulan Bibi and soon thereafter he had given ready money from his home. This shows that defendant has ready money at his house. Defendant states again that he had three or 4 bighas of land and one wife and 3 or 4 children to depend upon the agriculture. He does not have any other occupation also. He again states that his two sons are in service outside. He again states that he has been in the R.P.F. Till 1976 and he had ready money at his residence. But he had not explained the sources of this ready made money. He has not said that his money was from his service payments. No service payment record has been filed. It is possible that before he left the service, he must have utilized his money in connection with the office and no money was left to be drawn at the time of leaving the service. Had some record of the payment been produced, source of payment could be explained then. Similarly there is no statement that this ready money of Rs. 10,000/- was given by his sons. It is again not explained that money was income from the agricultural sources. A sum of Rs. 10,000/- is very handsome amount for a villager. This money had not been withdrawn from the bank or post office. Thus, it is clear that defendant had no ready money at his residence at the time when he alleges to have made payment to Smt. Sadulan Bibi. If there was no such a source of money, then there cannot be any question of payment of consideration. Witnesses saying that the money was paid in their presence are great liar. When there is no consideration, the sale deed is not genuine.

No circumstances have been explained to show as to how the consideration was utilized by the plaintiff. There is no evidence to show that money was looted or that the plaintiff raised construction of that plaintiff went on pilgrimage or Haj. Though this not the only circumstances to prove malafides of the vendees. Smt. Sadulan Bibi was a lady of advance age. At that stage no lady thinks that the house should be constructed. She intended to go for Haj, but because she had no money hence she did not go.

It is clear that no close relation of Smt. Sadulan Bibi as taken to the office of Sub-Registrar at the time of execution of the sale deed. Smt. Sadulan Bibi had her brother-in-law, daughter-in-law and daughter as well. None of them was taken by the vendee. The explanation given by the respondent is that Smt. Sadulan informed that all of her relations were in Calcutta. But what was hurry in the sale deed when close relations of Smt. Sadulan Bibi were out. Further more there is no evidence to show that Smt. Zulakha daughter of Smt. Sadulan Bibi and her brother-in-law and daughter-in-law also out. They could be taken easily. As they were not taken, malafide on the part of defendant-respondent are not removed.

Sri Jahandaaad Khan, a step-son of Smt. Zulekha has not been examined to clarify the circumstances. In the plaint itself it has been alleged by plaintiff that fraud was played on her by Jahandaad Khan in favour of the respondent. Because there is such allegations, Jahandaad Khan could not be examined by the plaintiff. Respondent could very well examine him because he states that he had no enmity with him and that he is known to him. Because the respondent has to lead evidence of bonafides, burden to examine him very well rests on the respondent. The respondent did not do it.

Said conclusions have been examined in the light of the statement of DW-1, DW-2 and DW-3. The conclusion which have been arrived at cannot be said to be perverse conclusion or occupied by any erroneous approach to the matter, inasmuch as once this was established fact that Smt. Sadulan Bibi was about 75 years of age on the date of transaction, hard hearing, rustic and illiterate lady of the village then extra precaution ought to have been taken which had not at all been taken to explain the contents of documents then inevitable conclusion was that plaintiff-appellant has signed on the papers on which she never intended to sign and she never intended to enter into transaction to which she unknowingly became party. DW-1 Badshah Khan has stated in his statement made before concerned court that money in question was paid to Mst. Sadulan Bibi at about 2.00 pm in the afternoon. DW-1 in his statement at no point of time made statement that at the point of time when instrument in question was produced before Sub-Registrar, Sub-Registrar had taken any extra care on account of said lady being hard of hearing to explain her the contents of the documents on which she was becoming party. DW-2 is Zahiruddn, and most surprising feature of the statement of DW-2 is that DW-1 has stated on oath that amount in question was paid at about 2.00 pm in the afternoon whereas Zahiruddin in his statement has made categorical statement before the concerned court that amount of Rs. 10,000/- was paid in between 11.30 to 11.45 am. Thus, there is material difference in between statement made by DW-1 and DW-2 qua payment of amount in question. Appellate court has noted in extenso after taking into account the statement of DW-1 Zahiruddin that he has failed to show and substantiate as fromwhere he has ready amount in question and source of amount has also not at all been clear and has found the theory in question doubtful, in this background has proceeded further to disbelieve theory of passing on consideration of amount. DW-3 is deed writer and is not at all witness to consideration being passed, in this background it cannot be said that statement of DW-1, DW-2 and DW-3 has not at all been considered rather statement of all these three witness has been considered in its correct perspective and there is no erroneous approach to the matter and thereafter rightful finding of fact has been returned in the present case. In this background as no extra precaution has been taken to explain real nature of the document to which plaintiff was going to become party and even the passing of consideration was not proved, in this background qua finding of fact returned, there is no wrong approach and neither there is any perversity, as such said finding of fact is not at all liable to interfered with and specially in the backdrop when this Court has also after scrutinizing the evidence of DW-1 and DW-2 has found that there is material difference qua the time of passing of consideration.

Emphasis has also been laid on the fact that vendee was not a man of confidence of Mst. Sadulan, as such there was no occasion for him to influence vendee. Precise case has been that relation of trust was with Jahandad Khan and it was Jahandad Khan who was in collusion with vendee. As burden was on the defendant to show that it was valid transaction, he could have produced him in evidence to support his claim, which admitted has not been done in the present case. Argument on this score is sans substance.

Alternatively argument has been advanced that here entire transaction has been sought to be non-suited merely on the ground that amount in question has not been passed on as there was no proof coming forward qua source of the amount in question and for this purpose reliance has been placed on the judgment of Hon''ble Apex Court in the case of Kaliaperumal v. Rajagopal and Anr. reported in 2009(107) RA 63 by contending that title would be pass to purchaser even if sale price or part thereof is not paid. In case of non-payment, remedy of vendor only is to sue for the balance price and he may not avoid sale. This judgment will not come to the rescue of the appellant, inasmuch as said judgment itself proceeds to mention that normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed, but this is not invariable rule, as the true test of passing of property is the intention of parties and registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question as to whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties.

In the present case in extenso evidence has been scrutinized and then finding of fact has been returned that executor at no point of time has ever intended to execute sale deed in question and at no point of time Sub-Registrar had ever taken any extra precaution to explain recital of the instrument in question and there was no proof of sale consideration being passed, in this background reliance placed on the judgment of Hon''ble Apex Court is totally out of context and same has been decided in different perspective on the facts of said case. Therefore in the facts of the present case finding recorded by lower appellate court warrants no interference as second appeal is concluded by pure finding of fact.

Consequently, present second appeal is dismissed.