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1984 DIGILAW 636 (ALL)

Jagia v. Hira Singh

1984-08-23

UMESH CHANDRA

body1984
JUDGMENT Umesh Chandra, J. - This is a plaintiff's second appeal directed against the judgment and decree, dated 31-5-1973, passed by Sri S. Zaheer Hasan, District Judge, Basti, allowing the appeal and setting aside the judgment and decree passed by Sri Rajendra Prasad Rai, Additional Munsif, Basti by which the plaintiff's suit for cancellation of the sale deed was decreed. 2. The plaintiff-appellant Smt. Jagia filed a suit against Hira Singh and Pratap Narain sons of Ram Sunder Singh for cancellation of the sale deed relating to two plots described at the foot of the plaint. She alleged that she is an illiterate and pardahnashin lady and that the defendants took her to Khalilabad on 23-1-1970 on the representation that she had to sign some documents so that the kabiz entry in the revenue record may be corrected. However, later on she came to know that in fact a sale deed was got executed by her. She denied the receipt of sale consideration and prayed that the sale deed be cancelled. The defendants denied these allegations asserting that the plaintiff had executed the document in their favour after fully understanding the contents of the document and, therefore, the suit was not maintainable. 3. The parties led evidence and on consideration of the evidence, the Additional Munsif, Basti decreed the suit and cancelled the sale deed, dated 23-1-1970. The Trial Court found that from the very start the plaintiff was kept in seclusion and was not allowed to know the contents of the document. It was also found that after the sale deed there is no other property with the plaintiff to support her. The testimony of the defendants, witnesses was disbelieved as the marginal witnesses belonged to another village, The Trial Court also noted that there was no endorsement by the Sub-Registrar that the document was read over and explained to the plaintiff and came to the conclusion that the sale deed was obtained fraudulently and the same had not been executed by the plaintiff out of her free will. The defendants went up in appeal. The lower Appellate Court came to the conclusion that the plaintiff had executed the sale deed after fully knowing the contents thereof, that there was no other reason for her to go to Khalilabad and that there was no fraud. With these findings the plaintiff's suit was dismissed leading to the present appeal. 4. The defendants went up in appeal. The lower Appellate Court came to the conclusion that the plaintiff had executed the sale deed after fully knowing the contents thereof, that there was no other reason for her to go to Khalilabad and that there was no fraud. With these findings the plaintiff's suit was dismissed leading to the present appeal. 4. There is no doubt that the plaintiff is a Pardahnashin lady. In Mst. Kharbuja Kuer v. Jangbahadur Rai and others, AIR 1963 SC p. 1203, it has been laid down that in the case of a document executed by a pardahnashin lady the burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It was further held that the burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial. The point for consideration is as to whether there are circumstances in the case which prove that the document was executed by the plaintiff fully knowing that it was a sale in favour of the defendants. 5. Learned counsel for the appellant has referred to Section 34 of the Registration Act and Rules 304 and 306 of the U.P. Registration Rules, which provide for the procedure on acceptance of document for registration, identity of persons appearing and identity of pardahnashin ladies. The argument is that there is no endorsement by the Sub-Registrar that the document was read over and explained to the plaintiff at the time of registration. The endorsement by the Sub-Registrar is to the effect that the execution of the document was admitted by the plaintiff who was identified by two other persons although there is no endorsement that the document was read over to the plaintiff. It hardly affects the execution of the document because there is oral evidence that the document was read over to the plaintiff before the Sub-Registrar who thereafter affixed her thumb impression. Mustafa Husain, D.W. 3 is the scribe of the sale deed. He has stated that the document was read over and explained to the plaintiff. It hardly affects the execution of the document because there is oral evidence that the document was read over to the plaintiff before the Sub-Registrar who thereafter affixed her thumb impression. Mustafa Husain, D.W. 3 is the scribe of the sale deed. He has stated that the document was read over and explained to the plaintiff. Bekaru, D. W. 3 who identified the plaintiff before the Registrar also states that the document was read over to her. Since the execution of the document was also admitted by the plaintiff before the Sub-Registrar, therefore, Rules 304 and 306 have been substantially complied with. 6. The following circumstances in the case may be mentioned. Firstly, there is no evidence that the defendants by exercising influence on the plaintiff persuaded her to go to Khalilabad on 23-1-1970. Secondly, the plaintiff admits that she came to know about Kabiz entry after she had affixed her thumb impression on the document. There was, therefore, no question of the plaintiff's accompanying the defendants for correction in the revenue papers. Thirdly, a sum of Rs. 1,000/- was paid before the Sub-Registrar as part of the sale consideration. This amount would not have been paid to the plaintiff, and she would not have accepted it if the matter discussed related only to correction of revenue papers. Fourthly, it is admitted by the plaintiff that Khunkhun, who was looking after her cultivation, was with her at Khalilabad. It may also be mentioned that during the pendency of the second appeal Smt. Jagia died and Khunkhun as guardian of Daya Ram moved a substitution application on the allegation that Daya Ram had been adopted by Smt. Jagia as her son by means of a registered deed of adoption dated 24-4-1973. Khunkhun was, therefore, very close to Smt. Jagia and he would have certainly objected if any misrepresentation would have been made by the defendants in respect of execution of the document. 7. The Trial Court did not consider the evidence on record in depth and omitted these relevant circumstances leading to error in the judgment. The findings of the lower Appellate Court are based on appraisal of the evidence on record and need no interference. 8. In the result, the appeal fails and is dismissed with costs.