Srikant Singh vs Ram Kesari Devi

R.B.Mehrotra, J.—The present second appeal has been instituted by defendant appellant.

The essential facts necessary for adjudication of the appeal are as under;

Dhannu Singh and Smt. Ramkesari Devi who is daughterinlaw of Dhanni Singh, filed Suit No. 48/5 in the Court of Sixth Additional Munsif Ghazipur against Srikant and in that suit prayed for the relief that the sale deed dated 20111974 executed by Dhannu Singh in favour of Srikant be cancelled and it be declared that the said sale deed is void.

According to the plaintiffdefendants so committed fraud (sic) Dhannu Singh and got executed the sale deed dated 2811974 in respect of the property: in suit in favour, The plaintiff has alleged as under in the suit. The following pedigree with regard to plaintiff and defendant is worthy of mention :

Inarman Singh

Mahangi Singh Begam Singh

Laxman Singh Chandra Singh Shiobarat Salik Ram Barat

Naurang Singh Dhannu Jagannath.

(plff No. 1)

Srikant (Defendant)

Brahma

Ram Kesari (widow)

(plft. No. 2)

Sharda (son)

Dhannu Singh plaintiff number one''s son was Brahma Singh Brahma Singh''s wife Ramkesari Devi was plaintiff No, 2 Brahma Singh had died earlier. The present suit has been filed by Dhannu Singh and the widow of Brahma Singh jointly as plaintiff against the remote collateral Srikant. It was alleged in the plaint that the property described in Schedule "B" of the plaint was acquired by the ancestors of Dhannu Singh and in the said property Dhannu Singh and Brahma Singh have had halt'' share each. Both the parcel of land were the property of joint family prior to abolition of Zamindari and after the abolition of Zamindari the plaintiff had been joint bhumidhars of the property in suit. Brahma Singh the son of plaintiff suddenly died in 1974 and after the death of Brahma Singh his widow Ramkesari Devi became member of the joint Hindu family of plaintiff No, 1, and got half share in the property in suit some land described in Schedule B came under consolidation and the Consolidation Officer has carved out a Chak in favour of plaintiff No. 1, the said property is described in Schedule A. The plaintiff Dhannu Singh has attained the age of 90 years, he is old man having impaired eye sight, as such unable to see. Brahma Singh was the sole son of Dhannu Singh, the said son suddenly died and his condition in old age became miserable and the loss of the son resulted in the loss of the mental faculties of plaintiff No. 1. The mental faculties of Dhannu Singh became confused over taken by old age and grief of death of son resulted in the plaintiff No. 1, reaching a stage of lunatic. The plaintiff No, 1 has a daughter named Ramyati who is married to Mahatam Singh, and the only daughterinlaw of plaintiff No. 1 is Smt. Ram Kesari Devi who figures as plaintiff No. 2, Sharda Devi is the sole daughter of Brahma Singh and Smt. Ram Kesari plaintiff No. 2 and the marriage of Sharda Devi aged 18 years was arranged to take place with Sheshnath. The defendant Sri Kant Singh is a distant collateral of plaintiff No. 1, however, he is cosharer in the property shown in Schedule B.

It has further been alleged in the plaint that the plaintiff No. 1 was at the verge of death and keeping in mind that after his death there can arise a dispute between his collaterals and his daughterinlaw and daughter, and on one side there will be a widowed daughterinlaw and weak daughter, on the other side will be powerful collaterals. The plaintiff after full comprehension and with an idea of keeping peace in the family executed a registered Will on 1101974 and the said Will devised 1/3 share each to his daughter Ramvati, daughterinlaw Smt. Ramkesari, collateral Sri Kant Singh in respect of the property in suit and as per Will in the disputed property the 1/3 share of the plaintiff was to go to the above three persons after the death of the plaintiff.

It has further been mentioned in the plaint that the disputed property which has been described in Schedule B, half share was owned by plaintiff No. 1 and half by Srikant defendant and out of that share 1/4 was of his son Brahma Singh. This way, the plaintiff had executed his Will in favour of both parties regarding only 1/4 of his share. According to plaint the share of Brahma Singh came to be owned by Smt. Kesari Devi and in this light the aforesaid Will should be held to operate to the extent the plaintiff had the power to execute Will pertaining to his own share. In this very sequence it has been further averred in the plaint that on 28111974 the defendant Sri Kant told plaintiff that the Will dated 3101974 has to be obtained from registrar''s office as Registrar of Ghazipur told him that the copy of the Will be given only to Dhannu Singh, so it was necessary for Dhannu Singh to visit the registration office and as per that statement the plaintiff Dhannu Singh went to Qasba Zamania with Srikant. The defendant No. 1 sent the plaintiff to registrar''s office and got prepared a saledeed without knowledge of the plaintiff No. 1 and obtained thumb mark from the plaintiff merely by telling that the copy of Will can be available only after putting thumbmark, believing that suggestion the plaintiff put his thumbmark on many places as directed in the registry office, thereafter when the plaintiff No. 1 came to his house, demanded the copy of Will from defendant and asked the defendant as to why he had obtained his thumb marks at many places, even then when he did not get the copy of Will, a suspicion arose to plaintiff that his thumbmarks have been obtained at many places in the registry office some cheating may have been done, upon which many a time the plaintiff demanded from defendant the copy of the Will, however, the defendant, indulged in pretexts. Thereupon, that plaintiff No. 2 along with Mahatim the brotherinlaw of her husband, went to registry office Zamania, on search it was found that on 28111974 on the pretext of getting back the Willdeed the defendant had got executed saledeed from Dhannu Singh in respect of properties of Schedule A, and it was also stated that Ohannu Singh has not executed any will deed, there, and on getting the enquiry done, the plaintiff No. 2 told the entire happenings to plaintiff No. 1 upon which the dispute arose, consequently both the plaintiffs filed suit No. 48/75.

The defendants contested the aforesaid suit. The trial Court framed issues on the pleadings of parties out of the framed issues, the following issues are relevant for decision in this Second Appeal.

Issue No. 1:

Whether the saledeed dated 28111974 has been got executed from plaintiff after perpetration of fraud if so its effect.

Issue No. 8:

Whether the saledeed dated 28111974 is barred by Section 5 of Chakbandi Act ?

Issue No. 10:

Whether Dhannu Singh used to place reliance on defendant. If yes, then its effect?

The trial court by its judgment dated 2581980 partly decreed plaintiff''s suit and cancelled the saledeed dated 28111974 with respect to 1/4 share of disputed property and to that extent declared the saledeed as void. The trial court held that the plaintiff has failed to establish that the saledeed has been got executed by committing fraud on Dhannu Singh. The trial court decided issue No. 5 and in favour of plaintiff and against the defendant holding that the suit is not barred under Section 5 of the Consolidation of Holdings Act. Issue No, 10 was decided against the plaintiff and it was held that the plaintiff has failed to establish that the defendant enjoyed active confidence of the plaintiff. Aggrieved by the aforesaid judgment both the parties preferred appeal. The appeal of Sri Ramkesari Devi is Civil Appeal No. 255/80 and the appeal of Srikant is Civil Appeal No. 259/80.

The plaintiff has preferred appeal against that portion of judgment whereby the whole saledeed has not been cancelled and the appeal preferred by Srikant is for that portion by virtue of which the saledeed has been cancelled to the extent of 1/4 share by the trial court.

The lower appellate Court has decided both the appeals together and by its judgment dated 1371984 has allowed the appeal of Smt. Ramkesari Devi viz. Civil Appeal 255/80 with costs and dismissed with cost the appeal No. 259/80 of Srikant a ad cancelled the saledeed executed by Dharmu Singh in favour of Srikant and declared the saledeed to be void and directed the defendant not to interfere with the possession of plaintiff over the disputed property by permanent injunction. Aggrieved by the said judgment the present second appeal has been instituted by Sri Kant. This Court admitted the appeal for adjudication of substantial questions involved. The substantial question of law are incorporated as under:

"(1) Because the lower appellate court has proceeded on a wholly wrong assumption of fact when the effect of the saledeed was to make plaintiff No. 2 Smt. Ram Kesari Devi a destitute whereas, the fact was that Dhannu Singh had not sold the entire property owned by him ; this assumption of fact has vitiated the en tire judgment of the learned Special Judge/lower appellate court.

(2) Because the saledeed related to only one Chak which was in two parts, which measured 6 bighas 13 bigwas 13.5 dhoors, and the remaining land was about 5 bighas 10 biswas hence the assumption of the lower appellate court that Dhannoo Singh would not have entered into this transaction, is patently illegal.

(4) Because the finding of the lower appellate court that the plaintiff is in possession on the date of the suit is based on no evidence ; he has not referred to any evidence, whatsoever in his judgment, but has straightway jumped to the conclusion that the plaintiff is in possession, and on that basis ha has been issued injunction which is wholly unjustified."

Before considering the above substantial questions of law, I feel it necessary to refer to the findings recorded by the lower appellate court in regard to issue No. 1.

While deciding the appeal, the lower appellate Court, in respect to issue No. 1 framed the following points for determination as points 2, 3, 4 which are reproduced below:

(2) Whether the impugned saledeed was liable to be set aside for any of the reasons mentioned in para 18 of the plaint ?

(3) Whether there exists any fiduciary relationship between Dhannu Singh and the defendant Srikant Singh and the sale deed in dispute was obtained by Srikant Singh by exploiting the trust reposed in him by Dhannu Singh, if so, is saledeed unconscionable ?

(4) Whether the saledeed has been obtained by Srikant Singh by playing fraud upon Dhannu Singh ? If so, its effect ?

While considering the above paints the lower appellate Court has exhaustively examined and discussed the evidence of the parties and attending circumstances and on that footing arrived at the conclusion that from the evidence of the parties and the circumstances of the case it has been fully proved that Srikant got thumb mark of Dhannu Singh on the sale deed by practising fraud and on that basis held that the saledeed is liable to be cancelled on account of being the outcome of fraud committed against Dhannu Singh and accordingly held that the aforesaid saledeed being the result of fraud qua Dhanuu Singh is declared as void. The lower appellate court has ultimately arrived at the conclusion after full discussion and the same i$ being extrated here as under:

The result is that Srikant Singh has failed to prove that the sale deed was conscionable. It has further bean proved that the sale deed was not mental or conscious act of Srikant Singh. It has further been established that sum of Rs. 14,000 shown to have been paid earlier was false. Under such circumstances, there can be no escape from the inference that the sale deed was obtained fraudulently by Srikant Singh. The circumstances of the case also lead to the same inference. All points are thus answered against Srikant Singh and in favour of the Smt Ram Kesara Devi. The result is that the impugned saledeed is liable to be cancelled. All the points are answered accordingly.

With reference to the above conclusion, I deem it desirable to mention the circumstances and evidences which have been taken into consideration by the lower appellate court.

On 1101974 itself Dhannu Singh after 8 years of the death of his only son Brahma Singh executed a Will taking into consideration the interests of his widowed daughterinlaw, daughter devising 1/3, 1/3, 1/3 in favour of Ramkesara Devi the widowed daughterinlaw, his own daughter and collateral Srikant Sing and after the registration of the said Will, there was no justification for Dhannu Singh to execute a saledeed in favour of Srikant Singh for the entire property, within two months of the Will, nor Dhannu Singh had any need for the alleged money. Dhannu Singh was old man of 90 years of his age, he bad lost, his eye sight and was out of senses on account of the death of son. Taking into consideration these circumstances the lower appellate court expressed the view that it was for the vendee Srikant Singh to satisfy by proving that Dhannu Singh had executed the saledeed after full comprehension and in the circumstances of the case. The onus to prove, that Dhannu Singh in fit mental condition and after due deliberation executed the saledeed in favour of Shrikant was on Shrikant. In this sequence, the lower appellate court referred to the ruling of this Court, and at Supreme Court expressed the view, that the law laid down by the Supreme Court and Privy Council in respect of paradanashin ladies, same principles are attracted in regard to Dhannu Singh as well, for the purposes of the present suit, therefore the burden lay on Srikant to prove that Dhannu Singh executed the sale deed after full comprehension in a healthy conditions of body and mind. In Paras Nath Rai v. Jileshara, 1965 ALJ 1980 illustrious Hon''ble Justice Ganeshwar Prasad held that under special circumstances the burden lay on defendant to prove that the deed was executed by the plaintiff, after full comprehension in a fit state of body and mind the relevant portion of the judgment is as under.

"Obviously it is not by reason of the Pardah itself that the law throws its protection round a Pardanashin lady but by reason of those disabilities which a life of seclusion lived by a pardanashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age infirmity ignorance illiteracy mental deficiency inexperience and dependence upon others may by themselves create disabilities that may render the protection equally necessary. If therefore it is proved that a woman although she is not a Pardanashin lady suffers from the disabilities to which a pardahnashin lady is presumed to be subject to validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a pardahnashin lady."

While interpreting to ratio laid down in the above case I have held as under in Second Appeal No. 365/84 Riaz Ahmad v. Prabhu Singh, decided on 2511995 [Since reported in 1995(1) JCLR 606] as under:

"The exceptions carved out for pardahnashin ladies by the Privy Council and the Hon''ble Supreme Court in Mst. Kharbuja Kaur''s case are based on the philosphy that the persons in the society who are oppressed and are not in a position to interact in the society freely, are to be treated in different class. In Parasnath Rai''s case this court illustrated that these exceptions can also be on the basis of old age, infirmity, ignorance, illiteracy, mental inefficiency, inexperience and dependance upon others and all of them or any one of them may create disability that may render protection equally necessary."

The lower appellate court in the light of the above principles has held that in the circumstances of the case the burden was on the defendant to prove that Dhannu Singh plaintiff had after full comprehension in a state of complete mental health executed the sale deed in favour of Srikant. The lower appellate Court came to the conclusion that Srikant has to failed prove that Dhannn Singh executed the saledeed in his favour after full comprehension. The lower appellate court on the discussion of evidence has also concluded that defendant Srikant got the saledeed from Dhannu Singh as a result of perpetration of fraud. The judgment of the lower appellate Court is totally in consonances with law and I am fully satisfied in the circumstances of the case, that in the suspicious circumstances under which saledeed has been found to be executed by Dhannu Singh in favour of Srikant are such that defendant Srikant has been unable to relieve himself from the impact of surrounding suspicious circumstances attending the execution of saledeed.

The ratio, laid down in the above cases fully applies on all fours on the facts of the present appeal. It is clear from the allegations made in the plaint that Dhannu Singh was not explained at the time of the execution of the alleged sale deed that he is affixing his thumb mark for execution of the sale deed on the stamp paper of the deed. Defendant Srikant has failed to prove that Dhannu Singh executed the saledeed consciously after understanding the same. The lower appellate court in this connection has entered into a detailed discussion of the evidence. On the total facts and circumstances of the case, I am firmly of the view that lower appellate court has drawn such conclusion in respect of issue No. 3 that the said finding of fact is not liable to be interfered with in exercise of the jurisdiction conferred in second appeal, regarding finding of fact.

It is necessary to mention in connection with this appeal that plaintiff has talked of defendants shown in the disputed property refers to the property embraced by the Will, there is no question in this case so far as the validity of the said Will, therefore, after recording the finding by the lower appellate court that the saledeed was got executed by practising fraud on Dhannu Singh it is not necessary to adjudicate as to what was the share of Dhannu Singh in the property described in Schedule B of the plaint. The sale deed has been got only in respect of the property of List ''A''. The lower appellate court has declared the saledeed to be viod on the ground that the saledeed is the result of fraud. In this sequence it is out of context to hold that Dhannu Singh has 1/4 share in other land, no finding is required in this appeal as regards that point.

In this very sequence it is worthy of mention that the other points on which the appeal has been admitted they have lost relevance in view of decision on issue No. 1. In the present appeal the only question that arise for consideration is whether the finding of lower appellate court that Shrikant got the saledeed from Dhannu Singh executed by practising fraud, is in accordance with law on not ? I am clearly of the view that the lower appellate court has arrived at conclusion on issue No. 1 after detailed discussion and evaluation of evidence and is totally in accordance with law. In the prosent appeal no other substantial question of law arises for determination.

Accordingly the appeal is dismissed.