Research › Browse › Judgment

Allahabad High Court · body

1983 DIGILAW 879 (ALL)

Kumari Piary v. Chandrika Singh

1983-11-18

KAUSHAL KISHORE

body1983
JUDGMENT Kaushal Kishore, Member. - This is a defendant's second appeal against the judgment and decree dated November 27, 1975 by the learned Additional Commissioner, Faizabad Division, Faizabad, reversing the judgment and decree dated July 9, 1973 by the learned trial court in a suit under Section 229-B/209 of the U.P.Z.A. and L.R. Act. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The facts of the case in brief are that the plaintiffs had obtained the land in dispute from the defendant Smt. Kumari Pyari by Sale-deed dated May 1, 1970 and claimed Bhumidhari on this basis but the defendant number 1 denied any such sale-deed and further pleaded to be minor rendering the sale-deed as void. The learned trial court gave a finding that the sale deed was proved but being executed by a minor held it void. The learned Addl. Commissioner held that it was not established that the defendant number 1 was a minor and so decreed the suit. 4. The main question in this appeal is about the defendant number 1/appellant being a minor or major or May 1, 1970, on which the finding of fact by the lower appellate court is that she was a major. The learned counsel for the appellant has argued that there was no positive proof that the vendor was major, that no witnesses having special means of knowledge were examined, that report of the doctor could not be stretched to make the age 18 years in place of 17 years and that finding by the learned Additional Commissioner was perverse and on surmises. He cited ruling reported in 1951 A.L.J. 1 in support of his contention that the learned trial court had advantage of seeing the witness and the finding could not be reversed without sufficient basis. He further argued that the first appellate court wrongly placed the burden of getting the thumb-impression of Smt Kumari Piary examined by the expert and cited a ruling reported in AIR 1963 S.C. 1203 in support, and that there was no finding if the sale was voluntary and for real consideration. 5. He further argued that the first appellate court wrongly placed the burden of getting the thumb-impression of Smt Kumari Piary examined by the expert and cited a ruling reported in AIR 1963 S.C. 1203 in support, and that there was no finding if the sale was voluntary and for real consideration. 5. The learned counsel for the respondent has argued that the learned trial court has given a finding about execution of the sale-deed in a regular manner, that in this case, there was no question of want of consideration or execution being not voluntary but it was complete denial of the execution of the sale-deed, that there was implied admission by Kumari Pyari of her being major, by her act of depositing herself 10 times of rent getting Sanad Bhumidhari and so she was now estopped from saying that she was minor, and that a finding of fact had come on this question which cannot be interfered with in the second appeal. 6. I agree with the learned counsel for the respondent that in view of the sale-deed found to have been regularly executed and so proved by the courts below this question is not no longer open. The learned Additional Commissioner rightly placed the burden of challenging the thumb-impression on the defendant after the registered sale-deed had been duly proved by the witnesses. The decree by the learned trial court reversed on the first appellate court finding the kumari Pyari as major when she executed the sale deed. This was also based on the doctor's evidence as to age being not definite and having margin of 6 months to one year on either side. The learned trial court had already rejected the entry of birth register for on its basis the age of Kumari Pyari on May 1, 1970 would be 13 years which could very well be detected and objected to by the sub-registrar. In fact, the court had omitted to consider one more evidence the Janam Kundali showing the date of birth of Kumari Pyari as January 6, 1951 which meant that she was over 19 years when executing the sale-deed and the defendant had not been able to show that this was not correct. In fact, the court had omitted to consider one more evidence the Janam Kundali showing the date of birth of Kumari Pyari as January 6, 1951 which meant that she was over 19 years when executing the sale-deed and the defendant had not been able to show that this was not correct. When everywhere she behaved as major, while applying for Sanad on May 1, 1970 and while executing the sale-deed which was registered as a sale-deed by a major woman, it was for the appellant to show that she was minor of May 1, 1970 if she suddenly disowned the sale-deed executed by her. Both the parties adduced evidence and in the absence of any conclusive evidence at all that Kumari Pyari was less that 18 years of age on May 1, 1970 the suit was rightly decreed by the lower appellant court. The ruling reported in 1951 A.L.J. is not applicable in this case as the learned trial court did not rely on any observation about the defendant for its finding that she was minor. 7. The other ruling reported in AIR 1963 S.C. 1203 relates to Purdah Nashin ladies and lays down that the burden in on the person wanting to sustain the transaction by a Purdahnashin lady. However, in the instant case, there was a Purdahnashin lady and this special protection is not applicable. Besides, the plaintiffs had proved the sale deed by marginal witnesses and in case Smt. Kumari Prayri contested having placed he thumb-impression on this registered document, the burden would be on her now to show that the thumb-impression was forged. I, therefore, find no error of lay in affirming the finding by the learned trail court about validity of sale-deed. 8. The learned Additional Commissioner is paras 14, 15, 16 of his judgment has given cogent reasons why Smt. Kumari Pyari on May 1, 1970 was found to be major on the basis of available evidence. She got the Sanad Bhumidhari as a major and also executed the sale-deed before the sub-registrar as major. The sale-deed is proved to be valid. Kumari Pyari sought it to be held void on the ground that she was below 18 years of age on May 1, 1970. No benefit of doubt is possible in the civil matters. For there failure the sale-deed must be held valid. The sale-deed is proved to be valid. Kumari Pyari sought it to be held void on the ground that she was below 18 years of age on May 1, 1970. No benefit of doubt is possible in the civil matters. For there failure the sale-deed must be held valid. I find no illegality in the findings of fact by the learned first appellate court. 9. This appeal is found to be without force and is hereby dismissed with costs.