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1982 DIGILAW 1247 (ALL)

Sankatha v. Duiji

1982-11-04

B.D.AGARWAL

body1982
JUDGMENT B.D. Agarwal, J. - This is a Defendants' appeal. 2. The facts relevant briefly are that one Bharosa had three sons, namely, Bhunuwa, Pachua and Tejwa. Admittedly, all of them predeceased Bharosa. Plaintiff-Respondent No. 1, Smt. Duiji, is the widow of Bhunuwa. Pachua left his widow Smt. Bhogia and Deoli was his son. Deoli is also dead. Plaintiff-Respondent No. 2, Smt. Dehuli is the widow of Deoli. Tejwa died leaving his son Bujhakkar, impleaded as Defendant No. 3. Defendants 1 and 2, namely, Sankatha and Sri. Ram are the sons of Bujhakkar, Defendant No. 3. It is not in dispute that Bharosa was the exclusive bhumidhar of the land involved in controversy which is described in Schedule 'C' at the foot of the plaint. On February 4, 1971, there was a deed of sale executed for consideration of Rs. 8,000/- in respect of the land described in Schedule 'C' purporting to be by Bharosa in favour of Defendants 1 to 3. Bharosa died on February 21,1971. The suit giving rise to the appeal was instituted on June 2, 1972 by the Plaintiffs 1 and 2 seeking relief for cancellation of the above-mentioned deed of sale alleging that Bharosa was not in a position to understand the implications of the transactions on account of his age and other physical infirmities. It was pleaded also that there was no consideration advanced and that Bharosa did not apply his mind to the transaction in question nor was he in physical or mental condition to be able to do so. The suit was resisted by the Defendants who refuted that there was any kind of fraud in the matter or Bharosa was incapable to execute any such deed. It was also pointed that the sale made was for adequate consideration. The right of the Plaintiffs to assail the deed of sale was also disputed. 3. The trial Court decreed the suit being of the opinion that the sale deed was not duly executed by Bharosa. In appeal the judgment and decree of the trial Court were affirmed on May 15, 1975, by the Additional District Judge, Fetehpur, who recorded a finding that the impugned deed of sale was vitiated by fraud and that Bharosa was not in a position to understand the implications thereof. Aggrieved against the cancellation of the deed of sale, the Defendants have preferred this appeal. 4. Sri. Aggrieved against the cancellation of the deed of sale, the Defendants have preferred this appeal. 4. Sri. G.P. Bhargava, learned Counsel for the Defendant-Appellants, urged in the first place that the Plaintiff-Respondents cannot be said to have a right to maintain the suit seeking cancellation of the deed of sale made by Bharosa on February 4, 1971. From the relationship specified above, it is manifest that Bhujakkar, Defendant No. 3, one of the transferees, is the grand-son of Bharosa deceased. In the light of Section 171(a) of U.P. Act I of 1951, Defendant No. 3 is undoubtedly one of the heirs of deceased Bharosa in respect of such of the land as has not been transferred by the deceased in accordance with law during his life time. In relation to Smt. Duiji, Plaintiff No. 1, it will be recalled that she is the widow of Bhunuwa, the predeceased son of Bharosa. The second proviso to Section 171(a) provides that, subject to the provisions of the first proviso, the share of a predeceased male lineal descendant will devolve upon his widow who has not remarried. It is not the case of any of the parties in the present case that the Plaintiff No. 1 remarried. The first proviso says only that the son of a predeceased son how low soever shall inherit the share which would have devolved upon the predeceased son, had he been alive. There is nothing thus in the first proviso to detract from the application of the second proviso in relation to Plaintiff No. 1, she being the widow of the predeceased son, namely, Bhunuwa. She is evidently a co-sharer along with Defendant No. 3 in respect of such property which has not been conveyed by Bharosa according to law in his life time. For the Plaintiff-Respondents it was also submitted that Plaintiff No. 2, Smt. Dehuli, can also be an heir to Bharosa deceased in the light of the first proviso referred to above. With this line of reasoning I am unable to agree. The reason is that the Plaintiff No. 2 is the widow of Deoli who was the son of Pachua. Pachua was the predeceased son of Bharosa. According to the first proviso, the son of a predeceased son how low soever inherits the share which would have devolved upon the predeceased son had he been alive. The reason is that the Plaintiff No. 2 is the widow of Deoli who was the son of Pachua. Pachua was the predeceased son of Bharosa. According to the first proviso, the son of a predeceased son how low soever inherits the share which would have devolved upon the predeceased son had he been alive. In case Deoli, husband of Plaintiff No. 2, was alive, the position may have been different. It might be said in that event that he inherited along with those included in clause a otherwise, but the same cannot be extended to the Plaintiff No. 2, who is the widow of Deoli deceased. The case of Smt. Dehuli, Plaintiff No. 2, is also not covered under the second proviso. The fact nonetheless remains that Plaintiff No. 1 would be one of the heirs to Bharosa according to Section 171(a) and, therefore, she is in a position to contend that the deed of sale executed by Bharosa is voidable. 5. Learned Counsel for the Appellants also contended that, despite being an heir to Bharosa deceased, the Plaintiff No. 1 cannot assail the deed of sale since Bharosa had made the transfer during his life time. According to the argument advanced by the learned Counsel for the Appellant, the right of Plaintiff No. 1, if any, may be said to subsist in respect of such only of the land as was not transferred by Bharosa and since Bharosa had made the transfer in his life time, there remains nothing in relation to the land covered under Schedule C to enable the Plaintiff No. 1 to sue for cancellation. This line of reasoning seems unacceptable to my mind. Bharosa could be in a position during his life time to contend that the sale deed impugned was obtained from him by fraud or that he had been made to execute the same without understanding the implications thereof. This line of reasoning seems unacceptable to my mind. Bharosa could be in a position during his life time to contend that the sale deed impugned was obtained from him by fraud or that he had been made to execute the same without understanding the implications thereof. In case Bharosa could be in a position to do so, it does not appear that a person, who is otherwise entitled under the law to inherit to the estate left by Bharosa, is placed in a worse position or that she is not in a position to contend as well that there has not come about a valid transfer made under the law and, therefore, her interest remains intact as it will have been in the event of no such transfer having been executed by Bharosa at all. It cannot be maintained that there is no right to sue inhering in Plaintiff No. 1 for the obvious reason that she is one of the heirs to Bharosa and as such entitled to co-share with Defendant No. 3 in case the transfer impugned is found to be vitiated. 6. The other contention raised by the learned Counsel for the Appellants is with respect to the endorsement appearing from the Sub-Registrar on the impugned deed of sale dated February 4, 1971. The endorsement criticized is to the effect that Bharosa was of the age of 90 years and that he was blind and deaf. The learned Counsel has urged referring to Sections 58 - 62 of the Registration Act that no such endorsement was warranted or expected to be made by the Sub-Registrar under these provisions and further that the endorsement, in question may have been obtained by suborning the Sub-Registrar. Sub-section (1) of Section 60 of the Registration Act requires that the registering officer shall endorse certificate relating to the registration having been made. According to Sub-section (2), the certificate on being signed, sealed and dated by the Sub-Registrar, is admissible for purposes of proving that the document has been duly registered in the manner provided by this Act. The authorities relied upon by the Appellants' learned Counsel relate to the evidentiary value to be attached to the certificate of the Registrar given u/s 60. The authorities relied upon by the Appellants' learned Counsel relate to the evidentiary value to be attached to the certificate of the Registrar given u/s 60. In Nilkanath Rao v. Guna Bai AIR 1926 Nag 482 it was observed that the registration endorsement that the document was read over to the testator and understood and admitted by him is complete proof of these matters. The certificate regarding registration is admissible for purposes of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in Section 59 have occurred as therein mentioned, vide Govinda v. Chima Bai AIR 1968 Mys. 309 . In Smt. Kulsumun-nisa Vs. Smt. Ahmadi Begum and Others, AIR 1972 All 219 a Division Bench of this Court observed that the endorsement made by Sub-Registrar on a deed of sale to the effect that the Pardah Nashin lady-the executant of the document-was identified by inspection from behind pardah and that she made the document after hearing and understanding the nature of the contents of the deed is admissible in evidence u/s 60. The earlier decision in Misri Lal and Another Vs. Bhagwati Prasad, AIR 1955 All 573 was followed. From the above it would appear that the endorsement as such recorded by the Sub-Registrar in the instant case was not alien to the matter for consideration before him. The sub-Registrar had to be satisfied for purposes of registering the document that the executant did execute the deed and that he admitted to have made the execution thereof. Even if it is held that the endorsement impugned in the instant case does not carry with it the presumption envisaged in Section 60, there is no difference created in the result. The reason is that even on the finding that there is no presumption attached to such an endorsement, the evidentiary value thereof is not eroded. The endorsement is not rendered inadmissible in evidence. I do not find any bar contained in the provisions of the Registration Act preventing the Sub-Registrar from making such an endorsement. The endorsement is, therefore, capable of being taken into account coupled with, of course, such other evidence as is admissible and placed on the record. The endorsement is not rendered inadmissible in evidence. I do not find any bar contained in the provisions of the Registration Act preventing the Sub-Registrar from making such an endorsement. The endorsement is, therefore, capable of being taken into account coupled with, of course, such other evidence as is admissible and placed on the record. The lower appellate Court has in this case taken into consideration the other relevant evidence and attending circumstances to come to the finding that Bharosa was not in a position physically and mentally to make the impugned transaction of sale and that the deed impugned was not duly executed by him after understanding the nature and the contents thereof. In view of this finding recorded by the lower appellate Court which is based on consideration of relevant evidence, the Appellants are not in a position to say that the sale deed was not shown to be vitiated. 7. For the reasons given above, the deed of sale dated February 4, 1971, executed by Bharosa is liable to be cancelled to the extent of one-third share belonging to the Plaintiff No. 1. For the rest the deed of sale cannot be cancelled since it has been found that the Plaintiff No. 2 does not have any share as heir to the land in dispute. 8. The appeal, accordingly, succeeds in part. The judgment and decree of the Courts below are modified so as to provide that the impugned deed of sale dated 4-2-1971 shall stand cancelled to the extent of one third only. Costs of this appeal on parties.