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Judgment
M.Y. Eqbal, J.—These two appeals filed by both the appellants and the respondents challenging the same judgment and decree, have been heard together and are disposed of by this common judgment. In FA No. 209/2008 the plaintiffs are the appellants whereas in FA No. 215/2008 the defendants are the appellants. For the sake of convenience, the appellants and the respondents shall be referred as plaintiffs and the defendants.
The plaintiffs are the members of scheduled tribes and have filed Title Suit No. 22/2004 for declaration of right, title and interest over the suit land and also for declaration that the sale deed dated 30.7.2001 executed by the plaintiffs is void, fraudulent and the same may be cancelled. In addition to that they prayed for confirmation of possession and also for a decree of permanent injunction restraining the defendants from interfering with the possession of the suit land.
The plaintiffs'' case, inter alia, is that they are the members of scheduled tribes and are illiterate persons. The defendants were in need of some land and requested the plaintiffs to sell 2 decimals of land for a consideration amount of Rs. 30,000/- @ Rs. 15,000/- per decimal. It is alleged by the plaintiffs that they told that permission u/s 48 of the CNT Act is sought only for 2 decimals of land. It is pleaded that the defendants in collusion with an advocate and the land broker, with whom plaintiffs have no previous acquiescence, got a petition filed representing that petition is for permission by the Deputy Commissioner u/s 48 of the CNT Act in respect of only two decimals of land. The plaintiffs'' further case is that no deposition was recorded by the Rent Deputy Collector exercising power u/s 48 of the CNT Act. The defendants, in collusion with the scribe, got a sale deed typed and the L.T.I. of the plaintiffs were obtained misrepresenting that only 2 decimals of land has been scribed in the deed. The plaintiffs'' case is that the defendants gave false assurance to pay the consideration amount but did not pay a single pie. It is alleged that by practicing fraud upon the plaintiffs in collusion with the scribe, they got 15 kattha of land in place of 2 decimals of land and the full payment of Rs. 3,25,000/- has been described in the sale deed. The plaintiffs, therefore, prayed that the sale deed having been obtained by practicing fraud, is void an ab initio.
The defendant No. 1 filed a written statement denying the allegation made in the plaint. The defendant''s case is that the suit is bared by principle of waiver, estoppels, acquiescence and ouster and also barred by limitation. It is stated that the suit has been arbitrarily valued and the valuation of the suit land cannot be less than Rs. 15.00 lacs and the plaintiffs are required to pay ad valorem court fee thereon.
The defendants'' further case is that the plaintiffs sold 13 kattha of land in favour of defendant No. 1 after taking due permission u/s 46 of the CNT Act being Case No. M 60 R 8 II of 2000-2001. The suit land is situated in the urban area and, therefore, plaintiffs filed application u/s 26(1) of the Urban Land (Ceiling and Regulation) Act,1976 for permission to sell the land and as no order was passed by the competent authority even after expiry of 60 days, the plaintiffs executed the sale deed in favour of defendant No. 1. The defendant''s further case is that after purchase of the said suit land the defendant No. 1 came in exclusive possession of the same and constructed a pucca house at a cost of Rs. 4.00 lacs. The defendants further pleaded that the plaintiffs transferred the land and taken consideration money from them.
The trial court, on the basis of pleadings of the parties, framed the following issues:
(1) Is the sit maintainable in its present form?
(2) Is there any cause of action for the suit?
(3) Is the sit barred by the principles of waiver, estoppels and acquiesces?
(4) Is the sit barred by limitation?
(5) Is the sale deed No. 9118 dated 30.7.2001 is fraudulent and void document and it be cancelled and delivered u/s 31 of the Specific Relief Act?
(6) Whether consideration money of Rs. 3,25,000/- has been paid by the defendant No. 1 to the plaintiff at the time of registration of sale- deed?
(7) Whether plaintiff delivered the possession of suit land to the defendant No. 1 and defendant No. 1 constructed house over the same?
(8) As to whether plaintiff is entitled to recover the sum of Rs. 3,25,000/- from the defendants as prayed for?
(9) As to whether plaintiff is entitled for a decree of permanent injunction against the defendants as prayed for?
(10) As to what relief or reliefs the plaintiffs are entitled to?
Issue Nos. 5, 6, 7 and 8 were taken up together by the trial Court. The trial court, after discussing the evidence of the witnesses examined on behalf of the plaintiffs and the defendants, came to the conclusion that the sale deed in question is not fraudulent or void document and by execution and registration of sale deed, title to the suit land passed in favour of the defendant-purchaser. So far payment of consideration amount is concerned; the court below recorded a finding that no consideration money has been paid by the defendants to the plaintiffs for transfer of the suit land.
First of all I would take up the issue as to whether sale deed was for consideration and the consideration amount was paid by the defendants to the plaintiffs either before or after execution of sale deed.
As noticed above, the court below has recorded a finding that consideration amount was not paid to the plaintiffs by the defendants. The relevant portion of the findings recorded by the court below is reproduced herein below:
So far payment of consideration is concerned according to the recitals of the sale deed the consideration amount is Rs. 3,25,000/- and the onus is heavy upon the defendants to prove the payment of consideration amount. It is important to note that there is no acknowledgement of the price paid by the plaintiff in the sale deed. Further no any receipts of payment of consideration amount has been filed by the defendants. DW 1, Guddi Khalko, in para 10 has stated that at the time of agreement for sale Rs. 3000/= or 6000/= will be paid. In para 22 she has stated that consideration amount has been paid in installment after the said agreement for sale but could not say the total number of the installment. She has further staled that due to relationship the accounts of money paid in installment have not been kept nor she has stated how much amount has been paid before the sub-registrar. From the sale deed it is clear that no payment was ever been made before the registrar at the time of execution of sale deed. DW2, Jay Narayan Singli, the scribe of the deed has stated in para-5 that as per sale deed the consideration amount of Rs. 3,25,0001= has been paid and further he has stated that earlier the consideration money was fixed for Rs. 30,0001= but the said amount has not been paid before him nor he has prepared receipts for the same. DW3, Binod Oraon has stated in para-6 that both parties have told him that total amount of Rs. 30,0001= has been paid though no amount has been paid in his presence. There is recital in the sale deed about the earlier agreed consideration amount of Rs. 30,0001=. It is important to note that in the recital of sale deed there is no mention of agreement for sale ( Ext-A) but the previous agreed amount has been written in the order of R.S.D.C., Ranchi. In view of the aforesaid oral evidence it is clear that there is no convincing or corroborative evidence have come on the record to give finding that any amount of the consideration amount as alleged in the sale deed has been paid. Thus, in absence of corroborative oral evidences as well as the documentary evidences such as acknowledgement receipts etc., I found and hold that no consideration money has been paid by the defendants and as such the Plaintiff has lien over the property for the sum due i.e. Rs. 3,25,0001=.
The defendants-appellants in their appeal assailed the aforesaid findings recorded by the court below. Learned Counsel appearing for the defendants-appellants submitted that the finding is without any basis and against the evidence on record. According to the learned Counsel, there is recital in the sale deed showing payment of consideration money. I am unable to accept the submission made by the learned Counsel.
Plaintiff No. 1 Sukra Munda, in his examination-in-chief, categorically deposed that he agreed to sell 2 decimals of land @ Rs. 15,000/- per decimal but defendants fraudulently got the sale deed executed in respect of 13 kattha of land showing the consideration amount of Rs. 3,25,000/- and the said amount was never paid to him. In his cross examination he has categorically stated that at the time of registration of sale deed he was taken before the Sub Registrar but the Sub Registrar did not ask anything about the land and payment of consideration. He further categorically stated that he is an illiterate person and he can only write his name. The plaintiff No. 2 has also been examined as PW 2, who has stated that the defendants have given false information that the permission of 2 decimals of land is taken. He further stated that the contents of the sale deed was never read over and explained to him. He further stated that the suit land is in his possession.
The defendant No. 2 has been examined as DW 1. She has deposed that before the purchase of the suit land permission was taken in favour of her mother. Permission u/s 46 of the CNT Act was obtained and after purchase she along with her brother has been in possession of the land. In paragraphs 22 and 23 of the cross examination she has deposed that after agreement to sell consideration money was paid in installment. She does not remember how much money was paid. She has not kept any account as to how much consideration amount was paid in installment. She has further deposed that she does not remember as to how much amount was paid at the time of registration. This defendant has further stated that the suit land was never measured either before or after the registration of the sale deed.
DW.2 in his evidence, has stated that sale deed was typed in his presence and the contents of the sale deed read over to both the parties, who put their LTI. In his deposition he stated that in the sale deed there is mention of Rs. 3,25,000/- and the consideration amount is mentioned as Rs. 30,000/- and that consideration amount of Rs. 30,000/- was not paid in his presence. In para 6 this witness has stated that Rs. 30,000/- is the consideration amount for transfer of the land. Rs. 3,25,000/- mentioned in the sale deed is only for the purpose of stamp payable for the sale deed on the basis of market valuation of the land.
DW 3 is one Binod Oraon, who has put his signature below the LTI of the plaintiffs in the sale deed. He has stated that consideration money was not paid in his presence. He has further admitted that plaintiffs are illiterate persons. He further deposed that both the parties are agreed that Rs. 30,000/- as the consideration amount for transfer of the land.
PW 4 in his deposition has also stated that consideration amount was not paid in his presence. Admittedly no documentary evidence has been filed by the defendants in order to show that consideration amount as mentioned in the sale deed was paid to the plaintiffs. Not a single chit of paper or receipt of payment of any amount has been filed and exhibited to show that consideration amount was paid.
After analyzing the evidence adduced by the parties, I fully agree with the findings recorded by the court below that consideration amount was not paid.
The next important question that falls for consideration is whether the title to the land passed in favour of the defendants after registration of the sale deed and whether the defendants obtained a sale deed from the plaintiffs by practicing fraud and the said sale deed is void and liable to be cancelled.
On appreciation of the evidence of the witnesses examined by the plaintiffs and the defendants, the court below has come to the conclusion that the sale deed was not obtained by practicing fraud and the same is not void. In support of their case the defendants filed a copy of he order dated 8.7.2000 passed by Rent Control Deputy Collector according sanction for transfer of the land. It transpires from the order that application was filed seeking permission of transfer of the suit land measuring 13 kattha of land on a total consideration amount of Rs. 30,000/- on the ground that plaintiff was in need of money for personal need. The Deputy Collector in his order mentioned the nature of the land and granted permission for transfer of the land @ Rs. 14,400/- per kattha. According to this order the price for 13 kattha of land was fixed at Rs. 1,87,200/- .
u/s 46 of the Chotanagpur Tenancy Act there is complete restriction of the transfer of raiyati land belonging to a member of scheduled tribe. For better appreciation Section 46 of the Act reads as under:
Restrictions on transfer of their right by Raiyat. -
(1) No transfer by a Raiyat of his right in his holding or any portion thereof -
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent : Provided that a Raiyat may enter into a ''bhugut bundha'' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgages be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years : Provided further that -
(a) an occupancy-Raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-Raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate.
(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-Raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person.
(2) A transfer by a Raiyat of his right in his holding or any portion thereof under Sub-section (1) shall be binding on the landlords.
(3) No transfer in contravention of Sub-section (1) shall be registered or shall be in any way recognized as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
(3-A) Notwithstanding anything contained in any other law for the time being in force. the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes].
(4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of Sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner.
(4-A) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made ri contravention of Clause (a) of the second proviso to Sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of Clause (a) of the second proviso to Sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof :
Provided further that before passing any order under Clause (b) or Clause (c) of this Sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this Sub-section, the Deputy Commissioner finds that there was no contravention of Clause (a) of the second proviso to Sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this Sub-section, the Deputy Commissioner finds that such transfer was made in contravention of Clause (a) of the second proviso to Sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof :
Provided that If the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner get such building or structure removed : Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1 969 (President''s Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of Clause (a) of the second proviso to Sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. Explanation.- In this Section "substantial structure or building" means the structure or building of the value exceeding five thousand rupees on the date of holding inquiry, but it does not include such structure or building of any value the materials of which cannot be removed without incurring substantial depreciation in its value.
(5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyat''s right in his holding or any portion thereof made bona fide before the first day of January 1903 in the Chota Nagpur Division except the district of Manbhum, or before the first day of January 1909 in the district of Manbhum''.
(6) In this Section and in Section 47, -
(a) "Scheduled Castes" means such castes, races or tribes as are specified in Part I) of the Scheduled to the Constitution (Scheduled Castes) Order, 1950;
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and
(c) "Backward classes" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.
Similar restriction has been provided u/s 48 of the Act but it relates to Bhuinhari land which is not applicable in the present case.
In the order, referred to hereinabove, passed by the Rent Control Deputy collector, it does not appear as to under which provision of CNT Act he has accorded permission for transfer of the land. The next document is Ext. 4/e, which is a letter communicating the sanction granted by the Rent Control Deputy Collector, Ranchi for transfer of the land. Here also it is not mentioned as to under which provision permission was granted.
Admittedly the suit land falls within the urban area and, therefore, before transfer of the urban land permission has to be obtained from the Deputy Commissioner under the provisions of Section 26 of the Urban Land (Ceiling and regulation ) Act,1976, which has also not been taken.
On analyzing the entire evidence, the following facts emerge:
i) Agreement to sale dated 13.4.1989 was executed by four persons, namely, Sanicharwa Munda, Govind Munda, Bhundur Munda and Sudama Munda agreeing to sale 13 kathas of land at a price of Rs. 13,000/-.
ii) Sale deed dated 13.4.1989 was executed by only two persons, namely Sukra Munda and Bhundur Munda. Recital in the deed is that the vendors after receiving Rs. 3,25,000/- put their L.T.I. in the sale deed. However, it is clarified in the body of the sale deed that Rs. 3,25,000/- is shown for the purpose of stamp duty and the actual price is Rs. 30,000/-
fofnr gks fd fodzsrk rFkk dzsrk ds chp fcdzh Hkwfe dk ewY; 30]000@& :i;k esa r; gqvk Fkk ijUrq ljdkjh ewY; fu/kkZj.k ds vuqlkj fodz; Hkwfe dk ewY; 3]25]000@& �rhu yk[k iPphl gtkj :i;s� fu/kkZfjr gS A vr% mlh ewY; dk eqnzkad bl nLrkost ij fn;k tk jgk gSA
iii) No endorsement by the Sub Registrar in the sale deed about payment of any amount at the time of registration of sale deed.
iv) Order dated 8.7.2000 of Rent Control Dy. Collector purported to be u/s 48 of the C.N.T. Act. In the order it is mentioned that suit land sought to be sold at a price of Rs. 30,000/-. Rent Control Dy. Collector granted permission to sale @ Rs. 14,400/- per Katha (i.e. Rs. 1,87,200/- for 13 kathas).
v) Defendant No. 1 in cross examination has admitted that there is no receipt of payment of consideration amount. She does not even remember as to how much amount was paid.
,djkjukek ds ckn fd''rksa ea iSlk fn;k x;k gS A fd''rksa dh la[;k ;kn ugh gS A fd''rksa dk fglkc ugh j[kk x;k D;ksfd fj''rsnkjh Fkh A jftLV�h ds oDr jftLV�kj ds le{k fdruk :i;k fn;k x;k ;kn ugh gSA
jftLV�h ds iwoZ tehu dk ukih ugh gqbZ Fkh A jftLV�h ds ckn Hkh ukih ugh gqbZ A ml tehu dh yEckbZ pkSM+kbZ ugh dg ldrhA
The defendants in their evidence have admitted that they have not kept any account as to how much consideration amount was paid to the plaintiffs. The plaintiffs have not even remembered as to whether any amount was paid at the time of execution and registration of sale deed. There is no endorsement in the sale deed by the Sub Registrar regarding payment of consideration amount. No relevant evidence was adduced by the defendants to show that thumb impressions (LTI ) of the plaintiffs were obtained in the sale deed after they were fully made aware about the contents.
The burden of proof always rests upon the person who seeks to sustain a transaction entered into with an illiterate person to establish that the said document was executed after fully understanding the nature of the transaction. It should be established that it would not only his physical act but also his mental act. The burden can be discharged not only by proving that the document was explained and he understood it, but also by other evidence. It must always be proved that the executant executed it with full knowledge of its effect and consequences.
From the evidence, prima facie it has been established that the defendants procured a sale deed from the members of Scheduled Tribe by showing the price of 13 kathas of land at Rs. 30,000/- and stamp duty was paid on the Govt. value i.e. Rs. 3,25,000/-.
In the case of Pandey Orson Vs. Ram Chander Sahu and others, , the Supreme Court observed:
The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by (sic) the scope. In fact, that exactly is what has been said by a three Judge bench of this Court in almost a similar situation in Manchegowda and Others Vs. State of Karnataka and Others, and what was said by a three Judge bench followed by a later decision of this Court in Lingappa Pochanna Appelwar Vs. State of Maharashtra and Another, . To the same effect is the observation of this Court in Gamini Krishnayya and Others Vs. Curza Seshachalam and Others, . The House of Lords in D(a minor) v. Bershire County Council (1987 1 All ER 20 said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly allow the appeal and reverse the decision of the High Court.
In a recent decision of the Supreme Court in the case Kalialperumal v. Rajagopal and Anr. (2009) 4 S.C.C. 193, the Supreme Court considered a similar question as to when title will pass on execution and registration of sale deed without payment or with partial payment of consideration. After discussing the relevant provisions, their Lordships observed:
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 an invariable rule, as the true test of passing of property is the intention of parties. Though 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 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. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act.
Applying the above mentioned principles to the facts of this case, we find that the parties intended that ownership of the property would be transferred to the appellant only after receipt of the entire consideration by the vendors, as a condition precedent. The operative portion of the sale deed clearly states that the vendors have agreed to receive Rs. 40,000/- in the presence of the Sub- Registrar on the date of the registration of the sale deed and that in consideration of payment to be so made, the property was being conveyed to the purchaser. This makes it clear that the title was intended to pass only on the payment of balance consideration of Rs. 40,000/- in the presence of the Sub-Registrar. This is also supported by the evidence of DW-1 to DW-4. The Sub-Registrar has also clearly recorded that no amount was tendered or paid by the purchaser to the vendors in his presence. Therefore title in fact did not pass either on execution or registration of the sale deed.
Therefore, on the facts and in the circumstances of the case, we are of the considered view that the parties really intended that title of ownership to the suit properties would pass to the purchaser, only after payment of full consideration by the purchaser to the vendor as a condition precedent. Parties did not intend that there should be transfer of ownership merely on execution and registration of the deed."
It is further evident from the facts and evidence that it is a case of fraudulent transaction. The sale deed in question was procured by the defendants on mis-representation of fact in a fraudulent method.
In Corpus Juris Secundum Vol.37 at page 171 the term "Fraud" has been stated as under :
Fraud is a generic term which embraces all the multifarious means which human ingenuity can devise and are resorted to by one individual to gain an advantage over another by false suggestions or by suppression of the truth. Fraud can be an affirmative cause of action or an affirmative defense. The basis of fraud is depriving someone of his lawful right, interest, or property by fraudulent means. In the legal sense, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.
In the book ''Kerr on Fraud and Mistake", Seventh Edition by D.L. McDonall & J.G. Monroe, the author observed:
Of course where one person is induced by the fraud of another to execute any document, the defrauded party may in all cases set it aside as against the fraudulent party. In Thoroughgood''s case 1584 2 Co. Re. 9, it was held that if an illiterate man have a deed falsely read over to him, and he then seals and delivers the deed, the deed was nevertheless not his deed.
The author referred a decision in Vorley v. Cooke (1 Gif 234), staurt, said that if a man having no mind or intention to execute a particular instrument does what he does with the mind and intention to execute a deed of a different kind and for a different purpose from that which by fraud and deceit was substituted, the deed is not voidable but void, and no estate passes at least as between the parties to the instrument.
In Morley v. Loughman (1893) 1 Ch 736, it was held that if a transaction is originally founded on fraud, the original vice will continue to taint it, however long the negotiation may continue, or into whatever ramification it may extend. The person who has committed the fraud precluded from deriving any benefit under it.
Having regard to the facts of the case and the evidence and law discussed herein above, I have no hesitation in holding that the sale deed in question is void ab initio having been obtained by practicing fraud and misrepresentation. The transfer made by the sale deed is also in contravention of the provisions of Section 46 and other provisions of the Chotanagpur Tenancy Act. The finding of the Court below that the document is not void and title to the land passed on the defendants is absolutely erroneous and perverse in law. It is It is abundantly clear that the plaintiff never intended to transfer 13 kathas of land at a price of Rs. 30,000/- only when according to the defendants the price of land can not be less than Rs. 15,00,000/-. The finding of the Court below is, therefore, liable to be set aside.
The plaintiffs filed the suit for declaration that the sale deed in question is forged, fraudulent and void and also for injunction. Further relief has been sought for the cancellation of sale deed. It is a fit case where the defendant should ask to deliver the document for cancellation.
In the case of Bulakram and Another Vs. Ganga Bishun Chaudhuri, a Division Bench comprising of Harries C.J. and Fazl Ali, J, held as under:
The declaration prayed for in this suit is, as I have said, in effect a declaration that the mortgage bond is forged and fraudulent and void. It is therefore a declaration falling within the ambit of Section 39, Specific Relief Act. It has been argued however that the suit cannot be regarded as a suit seeking a declaration u/s 39 of the Act because consequential relief for an injunction was sought and no consequential relief by way of a cancellation of the document is prayed for. A plaintiff may bring a suit for a declaration that a document is void without seeking its cancellation, and if he does so, it is open to the Court, though there is no prayer for it to order the document to be delivered up and cancelled. The wording of the Section suggests that the Court may order cancellation, though there is no specific prayer for it. Their Lordships further observed:
In the present case there is in substance a prayer that this document be declared void. The consequential relief asked for, namely an injunction, is not a very appropriate and satisfactory relief, and in my view it is unnecessary to grant the plaintiff an injunction. Even if the plaintiff had only applied for a mere declaration, it would still have been open to the Court to order this document to be delivered up and cancelled. The suit can be treated as a suit for a declaration simpliciter u/s 39 and the Court can in its discretion order the document to be delivered up and cancelled. The findings of the lower Appellate Court are clear, that this document is a forgery and is therefore void. It is still in the hands of the defendants and the plaintiff must have a fear that it may be used against him. In those circumstances, it appears to me that this is a case where the plaintiff should not only have his declaration but the defendants should also be ordered to deliver up the document for cancellation. The document was required by law to be registered, and accordingly notice must be sent to the Registrar of the cancellation of the document.
It is not a case where either the parties intended to transfer the ownership by executing and registering a sale deed or they intended the transfer of the property to take place only after receipt of the entire consideration amount. It is a case where a sale deed was procured by the defendants by committing fraud and misrepresentation.
The defendants have tried to grab the land measuring 13 kathas situated in the heart of the Ranchi town and owned by member of Scheduled Tribe on a consideration of Rs. 30,000/- when the market value of the land cannot be less than Rs. 30 lacs or more.
Considering the entire facts of the case and the evidence brought on record as also in the light of the law discussed hereinabove, I am of a definite view that it is a clear case of fraudulent transaction and the sale deed is void.
For the reasons aforesaid, F.A. No. 209 of 2008 is allowed and the sale deed is declared void and is hereby cancelled. Consequently, F.A. No. 215 of 2008 filed by the defendants is dismissed. However, there shall be no order as to cost.