Tahira Begum and Others vs D.H.M. Iqbal and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the courts below in decreeing the plaintiff''s suit and directing defendants 2 to 7 to put the plaintiff in possession of the schedule property within three months and to pay Rs. 1,440/- towards mesne profit and notice charge of Rs. 30/- as claimed in the plaint, defendants 3 to 7 have filed this second appeal.

The parties would be referred to as per their rank in the trial Court.

The case of the plaintiff is that originally he had filed O.S. No. 663/1976. Thereafter the plaint was returned for submission to the appropriate Court. Hence, it was renumbered as O.S. No. 111/1984 and after the amendment to the Karnataka Civil Courts(Amendment)Act, 1989 it was renumbered as O.S. No. 1943/1989. The schedule property originally belonged to Abdul Aziz @ Sabjan and his brothers Mohadeen Sab and Dastagir Sab. That in terms of the registered sale deed dated 24-2-1947 they effected a partition and the allottees were put in possession of their respective shares. The 1st defendant Abdul Khadar purchased the schedule property from the said Mohadeen Sab and Dastagir Sab under a registered sale deed dated 26-6-1956. Thereafter he was put in possession as the owner. The sons of Abdul Aziz @ Sabjan Sab have recognised and admitted all the above said transactions, by virtue of a release deed dated 25-7-1956 executed by them in favour of the 1st defendant. Under the said release deed they have relinquished their rights for valuable consideration in favour of the 1st defendant. The 1st defendant is the owner in possession of the schedule property. He sold the same to the plaintiff by receiving a sum of Rs. 4,000/- by virtue of a registered sale deed dated 13-9-1974. It is the case of the plaintiff that though the recital is to the effect that possession is delivered to the plaintiff from the date of sale, in fact it was not. The 1st defendant and defendants 2 to 10 who are the family members continued to live in the schedule property. Thereafter, the plaintiff called upon the 1st defendant several times to put him in possession of the suit schedule property and to pay the mesne profits equal to rent at Rs. 60/- per month. A notice was sent to the 1st defendant. The 1st defendant did not comply with the said demand. Hence, the instant suit was filed seeking for possession and mesne profits.

During the pendency of the suit, the 1st defendant died. Hence, the suit was proceeded by the other defendants. Defendants 2 to 7 contested the suit and filed the written statement. Admittedly, the 1st defendant was the owner of the suit schedule property. Defendant No. 2 is his first wife and defendants 3 to 7 are the children born to the 2nd defendant. The defendants 2 to 7 are in possession of the suit schedule property from its inception. Defendant No. 8 is the second wife of the 1st defendant and defendants 9 & 10 are the children of defendant No. 8. They were always living separately. The plaintiff is the husband of 8th defendant''s sister. They do not know how the schedule property was acquired by the 1st defendant. According to them, the 1st defendant was suffering from paralysis since 1969 and was unable to move about unaided. He was under the domineering and undue influence of the 2nd wife, namely, defendant No. 8. Without the knowledge of defendants 2 to 7 the sale deed was executed. The said sale deed was not acted upon. The sale deed purports to be for a consideration of Rs. 4,000/-. The market value as on that day was almost Rs. 25,000/- The sale deed is the result of fraud committed by defendant No. 8 with the assistance of plaintiff by taking advantage of the disability and helplessness of deceased 1st defendant. That the plaintiff has not derived any title under the sale deed, since it is vitiated by fraud and undue influence.

Based on the pleadings, the trial court framed the following issues:-

"1. Whether the plaintiff proves he purchased the plaint schedule property under the registered sale deed dated 13.9.1974 and became the owner?

Whether the defendants-2 to 7 prove the sale deed dated 13.9.1974 was a nominal sale deed and was not acted upon and is the outcome of fraud perpetrated by defendant No. 8?

What is the correct court fee payable on the plaint?

Whether the suit is bad for non-joinder of necessary parties?

Whether defendants 11 to 15 are not liable to pay the mesne profits?

To what relief the plaintiff is entitled for?"

On behalf of the plaintiff, he was examined as P.W. 1 and marked 8 documents. Defendant No. 5 was examined as D.W. 1 along with another witness and 14 documents were marked. Issues, 1,3 and 5 were held in the affirmative. Issues, 2 & 4 were held in the negative. The suit of the plaintiff was decreed. Defendants 2 to 7 were directed to put the plaintiff in possession of the schedule property within three months from that date. They were also liable to pay Rs. 1,440/- towards mesne profit and notice charge of Rs. 30/- as claimed in the plaint. A separate enquiry was to be held under Order 20 Rule 12 of the Code of Civil Procedure to ascertain the future mesne profits from the date of the suit till delivery of the possession. Aggrieved by the same, defendants 2 to 7 preferred a regular appeal. It was dismissed. Hence, the present second appeal.

The learned counsel for the appellants-defendants contends that the Judgment & decree of the Courts below are erroneous. That there is substantial material to show that there is fraud and undue influence while executing the sale deed. That defendant No. 1 was not in a sound state of mind to execute the sale deed. That there is no evidence to show that the consideration has passed to defendant No. 1. Inturn it has been passed to the plaintiff. Hence, he pleads that the appeal be allowed by dismissing the suit.

On the other hand, the learned counsel for the respondents defends the impugned order. He contends that both the courts below have rightly passed the impugned order. No interference is called for muchless no substantial question of law arises for consideration in this appeal.

Heard learned counsels and examined the records.

The plea of the plaintiff is that based on the sale deed vide Ex. P-1, they are entitled for possession of the suit schedule property. That the sale deed was executed in favour of the plaintiff by defendant No. 1. It is a validly executed sale deed. The consideration has been appropriate. The instant suit was filed seeking for possession. The plea of the defendant on the other hand is that the sale deed was executed under fraud and undue influence. That there is no material to show that the plaintiff has tendered consideration to the defendant. In fact, the material on record would show that consideration was passed on to the plaintiff himself. That there is no sufficient medical evidence to show that the defendant No. 1 was not in a sound state of mind to execute the sale deed. The trial court on considering the evidence as well as the material on record accepted the plea of the plaintiff. It was of the view that the sale deed has been validly executed in favour of the plaintiff on 13-9-1974. That the plaintiff has issued a cheque for Rs. 4,000/- towards the sale consideration on the same day and therefore it cannot be said that it is a invalidly executed sale deed.

So far as undue influence and fraud is concerned, the defendants seek to rely on Exs. D-10 to 13 namely, 4 prescriptions issued by the K.R. Hospital. The trial court examined these documents. It was of the view that the documents indicate that the 1st defendant had taken treatment as an out patient during 1974-76. There is no material to show that defendant No. 1 was suffering any serious mental condition during the time the sale deed was executed. Therefore, the plea that he was suffering from any mental ailment and could not have executed the sale deed was not supported by the evidence on record. I have considered Exs. D-10 to 13. They are the prescriptions of the K.R. Hospital. On examining the same, nothing is forthcoming as to who is the Doctor who treated him and what is the nature of the treatment. The author of the document has not been examined. It is the Doctor alone who could specify as to what is the nature of the ailment suffered by the defendant that can support the case of the defendants. Merely producing the medical prescriptions cannot justify the stand of the defendants that the 1st defendant was suffering from any serious mental illness.

Furthermore, what is of greater significance is the fact that defendant No. 1 voluntarily appeared before the Court on 5-1-1977 and submitted to the court that the decree be granted in favour of the plaintiff. The submission made by the 1st defendant before the court was recorded by the trial court. It was by taking into consideration the submissions of the 1st defendant as well as the other material on record, the instant decree was passed. The trial court reasoned by holding that since the 1st defendant himself has not stated as to the non-receipt of sale consideration or the validity of the sale deed or the passing of the consideration for the sale deed, the case of the defendants cannot be accepted. When the 1st defendant has not challenged the validity of the sale deed, defendants 2 to 7 cannot contend that the sale deed is vitiated by fraud and undue influence. The 1st defendant having consented to the decree nothing more remains to be considered in the instant case. The trial court rightly decreed the suit in favour of the plaintiff. The same was affirmed by the first appellate Court.

On hearing learned counsels and examining the records, I do not find any error that calls for any interference. Primarily, the fact that the 1st defendant namely, the vendor in the sale deed having appeared before the court and consented for a decree is a good ground for the court to decree the suit. The challenge made by the other defendants with regard to the validity and the non-receipt of passing of consideration cannot be raised by the defendants. It is the 1st defendant alone who could have raised that plea. Not only did he accept the same, but has gone to the extent of appearing before the Court and consented for a decree. Therefore, nothing else remains to be considered.

Even otherwise, the defendants have failed to prove their case through their evidence. Both the Courts below disbelieved the case of the defendants on the medical prescriptions. The Courts below disbelieved the case of the defendants on consideration. Therefore, the defendants having failed to prove their case, both the Courts below rightly decreed the suit.

Under these circumstances, the orders passed by both the courts below do not call for any interference, muchless, no substantial question of law arises for consideration in this appeal.

Consequently, the appeal being devoid of merit, is dismissed. Since originally the suit was filed in the year 1976, the appellant is granted three months time from the date of receipt of a copy of this order, to vacate and hand over the vacant possession of the property.