Ananta Ram Kalita v. Swajan Priya Kalita — 1995 DIGILAW 162 (GAU)

This appeal has been preferred by the defendant appellant against the judgment and decree dated 6.1.87 passed by the District Judge, Nalbari in Title Appeal No.50 of 1986 upholding the judgment and decree in Title Suit No.46 of 1976 passed by the Munisiff, Nalbari dated 11.10.82. 2. Respondent as plaintiff filed the above mentioned title suit against the appellant and his father and four others as proforma defendants for a decree that the registered sale deed executed by her on 1.4.77 at Sub-Registrar's Office, Guwahati be declared void as being fraudulently obtained and for decree for right, title and interest of the plaintiffs over the suit land as described in Schedule Kha of the plaint and for khas possession. Plaintiffs case, in brief, is that the plaintiff No. 1 used to get help and advice from the defendantNo.2 Birahu Ram Kalita and the defendant No.2 proposed to marry plaintiffs daughter Smti Bina Kalita (plaintiff No.3) to defendant No. 1. Defendant No.2 advised the plaintiff No. 1 to get a loan from the Govt to dug a fishery in the suit land and for that purpose plaintiff was taken to Guwahati to get a deed of agreement executed. After executing a deed at Guwahati the defendant No.2 became indifferent and rejected the proposal of marriage. On obtaining a certified copy of the deed the plaintiff No. 1 came to know that she was actually fraudulently made to execute a sale deed in favour of the defendant No. 1 in respect of 14B 3K 13Ls of land described in the schedule of the plaint. Hence the suit. 3. Appellant/defendant contested the suit by filing written statement making averments that he is the bonafide purchaser of the suit land and delivery of the same has been made after sale deed was registered and that there was no fraud on his part and that accordingly he got mutation. 4. Both the Courts below decided all the issues, by giving concurrent findings both in facts and law, after application of evidence available on materials on record. Though Mr. Bhatra, learned counsel for the appellant has agitated all the issues for re-examination, I do not find it necessary as the decisions arrived at were finding of facts and interpretation of law has also been found consistent and well reasoned. Though Mr. Bhatra, learned counsel for the appellant has agitated all the issues for re-examination, I do not find it necessary as the decisions arrived at were finding of facts and interpretation of law has also been found consistent and well reasoned. In a series of decisions following the decision of the Privy Council in Mst Durg Choudhury vs. Jawhar Singh (1890) 17 Indian Appeal 122, the established position of law is that, after reading sections 100,101 and 103 CPC together, the effect of these sections is that a second appeal is competent only on the ground of an error of law or procedure and not merely on the ground of an error on a question of fact, that High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable, the error may seem to be. However series of judicial pronouncement interpreting the section 103 CPC, postulates the principle to the effect that if in determining the issues the lower appellate Courts found in gross violation of provisions of law by reason of illegality, perversion or defect the High Court as the last appellate Court is required to examine the materials on record to give proper findings. 5. As vitualised in the plaint of the title suit the plaintiff brought out a case of fraud, in detail, which deprived of her property. Both the Courts below deciding this aspect came to the concurrent finding that the plaintiff being influenced by the defendant Nos. 1 and 2 put her thumb impression on a paper which she put under the impression that it was for getting a loan from the Government for opening fishery in the suit land. It was also found by both the Courts below that the two defendants were in a position to dominate the will of the plaintiff, who is a young illiterate village widow with two minor daughters and whose elder daughter was proposed to be married to defendant No. 1. It was also found by both the Courts below that the two defendants were in a position to dominate the will of the plaintiff, who is a young illiterate village widow with two minor daughters and whose elder daughter was proposed to be married to defendant No. 1. It is also finding of fact that being in such a helpless condition, the plaintiff used to take advice from the defendant No.2, father of defendant No.l and that taking the advantage of this situation, both the defendants were in a position to dominate the plaintiff No. 1 and led the plaintiff to Guwahati for the purpose of arranging a loan for the proposed fishery and got her thumb impression put on a paper which was actually a sale deed. This position of fact had been found established by the Courts below and which being a concurrent finding of facts and reached after appreciation of materials on record, in accordance with procedure prescribed, this finding is not liable to be reopened in second appeal. On careful examination of the judgments of both the Courts below, plaint, and written statement and evidence on record for proper examination of the grounds of appeal, I hold that, on the point of fraud a case had been made out and taking the advantage of the relationship with the plaintiff who reposed her confidence on the appellant defendant the sale deed in question was executed and registered by the appellant in the Sub Registrar's office, Guwahati which has no jurisdiction to register a sale deed as both the parties are the permanent residents under the jurisdiction of Sub Register's office, Nalbari District. 6. Two essential elements to establish fraud on a party in a transaction arc - (a) the relation subsisting between the parties are such that one of the parties is in a position to influence the mind of the other party, and (b) the party in such position use to obtain an advantage over the other. As stated above both these conditions have been pleaded by the respondents plaintiffs clearly and elaborately in the plaint in the said title suit and proved by her by establishing a case for setting aside the alleged sale deed. As stated above both these conditions have been pleaded by the respondents plaintiffs clearly and elaborately in the plaint in the said title suit and proved by her by establishing a case for setting aside the alleged sale deed. Both the Courts below concurrently found that the witnesses of both sides in their evidence led to the conclusion that the sale deed was obtained by fraudulent means and no consideration was passed before or at the time of execution of the sale deed at Guwahati as claimed by the appellant defendant. Conduct of the defendant No.2 who abstained from contesting the suit and was not examined as defence witness, the distorted evidence of DW 1 (the appellant) were considered and discarded by the Courts below. The first appellate Court has come to the conclusion that the execution of the deed was acted upon by fraud, by taking advantage of confidence reposed by the plaintiff on defendant Nos. 1 and 2, making her belief that the land in question would be used for fishery and for that purpose to take Govt loan she was required to go to Guwahati. Entirely believing that, she put her signature as directed by the defendants in presence of an Advocate engaged by the appellant who made arrangement for registration etc at the office of the Sub Registrar, Guwahati. The lower appellate Court which is the final Court of fact, after appreciating the entire evidence on record found that both the principal defendants were in a position to win the confidence of the plaintiff and taking that advantage were in a position to dominate and influence her mind and this advantage was used to get her thumb impression on the document, the contents of which were not read over to the plaintiff and no consideration was passed. 7. Another submission made by counsel for the appellant that the allegation of fraud was not proved by the plaintiff and the contentions made in the plaint have not been established by the evidence on record. As discussed above, as concurrent findings of the Courts below established the fact of execution of the registered sale deed by means of fraud taking the advantage of cordial relationship between the parties, and procuring the confidence of the plaintiff, in the circumstances, the burden to deny that fraud falls on the person who gets the benefit by the transaction. As discussed above, as concurrent findings of the Courts below established the fact of execution of the registered sale deed by means of fraud taking the advantage of cordial relationship between the parties, and procuring the confidence of the plaintiff, in the circumstances, the burden to deny that fraud falls on the person who gets the benefit by the transaction. In this case the appellant denied transaction as fraud by dominating the will of the plaintiff. In that view of the matter being the beneficiary of the transaction burden to deny fraud falls on the defendants. As both the Courts below concurrently found that defendant No. 1 (appellant) failed to dissolve his burden to prove his stand by his own evidence and the evidence of the defence witnesses, this Court is not inclined to interfere with it in absence of any illegality proved by the appellant in this second appeal. Two conditions as mentioned above for establishing dominance found present in the allegations and both the conditions have been proved by the evidence on record and the conditions being found established the consequence is that the burden is shifted to the appellant defendant No.l particularly, who has been benefitted by the alleged execution of the sale deed. In discussing and interpreting the condition regarding burden of proof the Apex Court, in the case of Afsar Shaikh vs. Soleman Bibi ( AIR 1976 SC 163 ) held that: “Sub-section (3) contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves - (a) that the party who had obtained the Benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and (b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established and consequently, the burden never shifted on the defendant.” 8. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established and consequently, the burden never shifted on the defendant.” 8. In a Division Bench decision of this Court in Mustt Jubeda Khatun vs. Sulaiman Khan, (1986) 1 GLR 147 in deciding the status and position of pardanashin lady extended the meaning and legal position of a lady in such a situation with the below quoted terms : “Rustics, who are ignorant, illiterate or semi literate are more likely to be imposed upon by the exertion of undue influence over them. They have pardas, illiteracy and ignorance. Indeed, they may not be physical parda but surely they are mental 'pardas'. Due to ignorance, illiteracy and simplicity they should also be treated in the same class. Do they stand on a better footing than rich pardanashin women ? Until their pardas are removed and they are made equal to the rest of the people the principles which are being applied in the Court of Chancery, that is, the protection to all weak, ignorant and infirm persons should also be extended to our rural population who are weak, ignorant and infirm. They are also likely to be imposed upon, influenced by the exertion of undue influence over them. Uneducated or semi literate women, are more susceptible to exertion of undue influence. Many of them have lost everything. Many more are losing every day. In my opinion the ignorant rustics who have no knowledge about the implication of legal documents should have the same protection which are being afforded to the rich pardanashin women. It is high time that all should do something positive and affirmative in this constituency as well. It is for consideration whether the provisions of section 111 of the Indian Evidence Act; the provisions of section 114, illustration (c); section 16 of the Contract Act, 1872 and section 118 of the Negotiable Instruments Act, 1881 need be suitably amended and the principles applicable to pardanashin ladies should be expressly made applicable to the weak, ignorant and infirm, and to, those who for any other reason are specially likely to be imposed upon by the exertion of undue influence over them.” 9. This reference has been relied on to discard the submission of counsel for the appellant who insisted that the plaintiff cannot be described as an weak women to be influenced by the appellant. Facts proved that the plaintiff is a young illiterate village widow, who survived the life with two minor daughters, reposing confidence by taking advice from the defendant No.2 who was the designer and operator of the entire scheme of fraud. 10. As discussed above, the appellant defendant No. 1 failed to discharge its burden to deny the fraudulent execution and registration of the sale deed by wh ich he is enjoying the benefit and counter the allegation of the opposite party plaintiff. 11. Further question to be decided is whether the sale deed can be cancelled in absence of specific prayer in the plaint for its cancellation on the ground alleged. The established position of law is that when the validity of a deed is challenged on the ground of fraud on the part of the purchaser as held by this Court the burden to deny the fraud falls on the defendant who failed to prove, the fact remained that the deed is void and that appellant was not a bonafide purchaser for value and as such he does not acquire good title to the land. Under such circumstances, it is not necessary for the plaintiff to pray for setting aside/cancell the deed which on both facts and law proved to be void, or for a declaration that the said deed is not binding on the plaintiffs, to enable her to get a declaration of her title to the land in dispute and to recover possession. In view of this I find no illegality in dismissing the appeal. Accordingly I subscribe to the decision of the Court below and affirm the same. 12 In the result the appeal is dismissed. The appellant is directed to pay Rs. 1,000/- as costs.