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1985 DIGILAW 374 (ALL)

Aziz Fatima v. Mazahid Husain

1985-04-01

N.N.MITHAL

body1985
JUDGMENT N.N. Mithal, J. - In this Second Appeal the only question raised by the plaintiff-appellant is that the courts below have not properly placed the burden of proof, as admittedly the plaintiff, who executed the sale deed, was illiterate pardanasnin lady. 2. Apart from the fact that the court has rightly placed the burden on the respondent for proving that the sale deed has been duly executed after it has been read over and explained to the plaintiff, there is a significant fact in the present case that the plaintiff's own husband, who is literate, was present at the time of execution of the sale deed and is one of the signatories to it as a witness. In the presence of the husband it was not likely that any fraud could have been placed upon his wife who, according to the plaint, intended to execute only a Waqf Deed. The court below have taken due consideration of the entire evidence on record to give finding that no fraud had been played, as alleged by the plaintiff. 3. It was also urged that consideration paid was inadequate and the lower appellate court wrongly decided the question on the ground that it was not one of the grounds taken in the plaint. Learned counsel for the appellant is right in submitting that this plea had been taken by the plaintiff in her plaint in paragraph 9. However, mere inadequacy of consideration cannot be a ground for cancellation of the sale deed, particularly in case where the plaintiff herself was intending to transfer the property to create a Waqf and was not expecting any consideration therefor. The findings recorded by the courts below are findings of fact and require no interference in Second Appeal. In the result the appeal is dismissed with cost.