Baijnath Seths v. Kashi Nath Upadhyay — 1998 DIGILAW 258 (PAT)

JUDGMENT Radha Mohan Prasad, J. 1. This appeal arises out of the judgment dated 26th June, 1976 and decree dated 8th July, 1976 passed in Title Suit No. 424/5 of 1971/74 by the 3rd Additional Subordinate Judge, Sasaram, who has decreed the suit with costs against defendants 8 and 9 on contest and without cost ex parte against the rest. The court has declared that the registered sale deed executed by Ram Dahin in favour of Ramnath on 28.6.1969 is without consideration, invalid and inoperative document and also confirmed the possession of the plaintiffs over the suit land. 2. Defendants 8 and 9 are the appellants and the plaintiffs are the 1st set of respondents in the present appeal, besides defendants 1st party are respondents 3 to 6 and defendants 2nd party are respondents 7 and 8. 3. In short, the case of the plaintiffs is that there were 10 to 11 Bighas of fertile land in their family and had much saving in every year because of good produce. Defendant no. 1 and Ramdahin Upadhya, father of plaintiff no. 1, used to live together. Defendant no. 1, being cunning and intelligent, had acquired confidence of Ramdahin Upadhya and got him addicted to Ganja, Bhang etc. Defendant no. 1 had also influenced him through immoral means. According to the plaintiffs, defendant no. 1 was the Karta of the family of defendants no. 1 to 4. They had only one bigha of unfertile land and used to work as labourer also for maintenance of his family. It is alleged that defendant no. 1 got the sale deed executed in his favour by Ramdahin Upadhaya without payment of consideration money of Rs. 10,000/- as indicated by the sale deed and that the recitals in the sale deed regarding the necessity are imaginary, baseless and false. The plaintiffs also mentioned, in detail, as to how the sale deed in question was executed by Ramdahin Upadhaya. It is alleged that defendant no.2, Jamuna Sonar, son of defendant no. 1 was unmarried and as on account of poverty of defendants 1st set, there was no probability of marriage of defendant no.2, defendant no. 1 requested the father of plaintiff no. 1 to execute a sale deed so that he might show that he had got sufficient property which would facilitate the settlement of marriage of defendant no. 2. After marriage defendant no. 1 requested the father of plaintiff no. 1 to execute a sale deed so that he might show that he had got sufficient property which would facilitate the settlement of marriage of defendant no. 2. After marriage defendant no. 1 was to execute a Bajidawa. After marriage of defendant no. 2 when Ramdahin pressed for execution of Bajidawa, defendant no.1 evaded on one pretext or the other and it is alleged that on one day defendant no.1 gave poison to Ramdahin who died on 25.7.1971 for which a criminal case is pending. Thus, according to the plaintiffs, the showy sale deed under the influence of defendant no. 1 was executed by Ramdahin Upadhya without consideration and without delivery of possession and that the sale deed refers to deed of transaction having no effect. 4. The present suit was filed on last refusal by defendant no. 1 on 15.9.1971 to execute Bajidawa initially through Ram Suresh Upadhyay as a next friend because original defendant no. 5 Bansropan, mother of plaintiff no. 1 was abnormal on account of the death of her husband when the suit was instituted. Later, defendant no. 5 was transposed as plaintiff no.2 on 28.2.1973 and also as guardian of plaintiff no. 1. Defendants 2nd set are married daughters of Ramdahin Upadhaya. 5. Two written statements were filed one by defendants no.1 and 2 on 28.4.1972 and another by defendants no. 9 and 10 on 19.1.1976, who were made intervenor defendants on 13.8.1975. Defendants 1 and 2, however, did not contest and, thus, only defendants no. 9 and 10, who were transferees of defendant no.1 by virtue of registered sale deed in respect of most of the lands given in Schedule 'Ka' of the plaint, contested the suit. In both the written statements, the entire aforementioned allegations have been denied. It is asserted that the sale deed in question is a genuine transaction and it was executed on payment of consideration of Rs. 10,000/- and defendants 1st set came in possession also of the lands. According to the defendants, Ramdahin Upadhaya, being Karta of his family, sold his land for legal necessity as recitals of the sale deed show that it was for the benefit of his entire family and that defendant no. 1 had the capacity to purchase the land as he had agriculture and his son (defendant no. According to the defendants, Ramdahin Upadhaya, being Karta of his family, sold his land for legal necessity as recitals of the sale deed show that it was for the benefit of his entire family and that defendant no. 1 had the capacity to purchase the land as he had agriculture and his son (defendant no. 2) has his shop at Mauza Rahiri, P.S. Kargahar. Defendant no. 1 also works as goldsmith in village Siwan. According to them, the sale deed became operative and defendant 1st cultivated the land and after execution of the sale deed in favour of the intervenor defendants they cultivate the same. Besides this, the other pleas taken are with respect to misjoinder of cause of action and, according to them, the suit is hit by section 34 of the Specific Relief Act as there is no prayer for recovery of possession. It is also alleged that Ramdahin Upadhaya had no saving and he used to dispose of his property in the past and that defendant no.1 got the sale deed executed after due enquiry regarding legal necessity and after payment of consideration. 6. The court on the basis of the aforesaid pleadings of the parties framed six issues, out of which on the submissions made by the parties in the present appeal, issues no. 2, 4 and 5 are relevant and are quoted hereunder : "2. Is the suit hit by section 34 of the Specific Relief Act ? 4. Whether the sale deed dated 28.6.69 executed by Ramdahin Upadhya in favour of Ramnath Seth (or Sonar) is valid and genuine document or it is void, illegal and ineffective document ? 5. Whether the story regarding execution of the sale deed with the object for settlement of marriage of defendant no. 2 Jamuna Sonar is acceptable ?" 7. The trial court has found that the plaintiffs have valid cause of action for the suit and that the suit is not hit by section 34 of the Specific Relief Act. With respect to Issues no. 4 and 5, the court found that the oral and documentary evidence adduced by the plaintiffs regarding possession is superior and preferable to that of the defendants. In this regard he discussed the evidences in paragraph 15 onwards of the impugned judgment, in detail. 8. It was contended by Mr. With respect to Issues no. 4 and 5, the court found that the oral and documentary evidence adduced by the plaintiffs regarding possession is superior and preferable to that of the defendants. In this regard he discussed the evidences in paragraph 15 onwards of the impugned judgment, in detail. 8. It was contended by Mr. Pandey, learned counsel appearing for the appellants that the finding of the trial court regarding possession of the defendants over the suit land is erroneous inasmuch as the very reliefs prayed for with respect to the question of possession show that the plaintiffs are not in possession. 9. I do not find any substance in the said submission of the learned counsel for the appellants. There is nothing in the relief portion to doubt the possession of the plaintiffs over the suit land. The plaintiffs have sought for confirmation of possession and, alternatively, for recovery of possession in case they failed to prove their possession from this, in my opinion, it cannot be presumed that the plaintiffs were not in possession. 10. The trial court has found that the defendants witnesses belonged to different villages mostly has no property in village Jalalpur. As such, they are not competent to speak about the possession. In this regard it is contended by Mr. Pandey that since defendants do not belong to Jalalpur, it is difficult to expect from any of the villagers of Jalapur to come and depose in their favour. It is, thus, contended that the trial court has committed error in not accepting the evidences of the defendants witnesses. 11. I am unable to accept the said submission of Mr. Pandey. In my opinion, the trial court has rightly not relied upon the evidence of such witnesses who are not of the same village, particularly on the face of the evidences adduced on behalf of the plaintiffs which have been discussed by the trial court in detail. After going through the discussions made in the judgment, I do no find any infirmity in the trial court's finding that the transferee has got no possession on the basis of the sale deeds, exts. C and C/1. 12. It was then contended by Mr. After going through the discussions made in the judgment, I do no find any infirmity in the trial court's finding that the transferee has got no possession on the basis of the sale deeds, exts. C and C/1. 12. It was then contended by Mr. Pandey that the finding of the trial court that low consideration money has been shown in the sale deed for the suit land is based on no evidence inasmuch as the evidence relied upon was not sufficient to record such finding. The price of the land is determined as per the need and urgency and can vary on that account. 13. There is no substance in the submission of Mr. Pandey. The trial court has found that the evidence of PWs. 1, 3, 10 and 18 is that at the time of alleged sale, the price of the land was between Rs.4,000/- to Rs. 7,000/- per bigha and that several witnesses have said that the suit land is canal irrigated and two crops are produced every year. This finding has not been assailed by the learned counsel for the appellants. Thus, I find that Rs.10,000/- with respect to 4 acres 31 decimals of the suit land is highly inadequate and thus not a bona fide transaction. The trial court has also considered the prices indicated in various sale deeds produced on behalf of the plaintiffs, the correctness of which the learned counsel for the appellants has failed to assail. 14. It was then submitted by the learned counsel for the appellants that there is nothing in the sale deed that Ramnath would execute Bajidawa after marriage of his son in order to hold that the transaction was sham and void. It was contended that the entire story has been concocted only after the death of the father and the court has decided it merely on oral testimony which in the absence of the said condition in the deed was not acceptable. 15. I am unable to accept the said submissions of the learned counsel for the appellants. The main question is as to whether sale of family property for inadequate consideration binds the family. It is an admitted position that the land in question is coparcenary property of the family of the plaintiffs. 15. I am unable to accept the said submissions of the learned counsel for the appellants. The main question is as to whether sale of family property for inadequate consideration binds the family. It is an admitted position that the land in question is coparcenary property of the family of the plaintiffs. I have already held that the alleged consideration money was highly inadequate which is sufficient to show that the sale deed was not a bonafide transaction. Moreover, I find that the plaintiffs seriously disputed about the means of the defendants to purchase the land in question. It is true that the defendants had adduced evidence that they had shop of gold and silver ornaments, besides other shop of grocery and that Ramnath had landed property but in the absence of satisfactory evidence, the trial court has rightly held that the sale deed was executed without consideration and was a showy transaction. On the question of legal necessity, the onus lies on the vendees and unless he is able to prove it, the sale deed executed by Karta of coparcenary is voidable. Learned counsel for the appellants has failed to assail the finding of the trial court that there was any legal necessity. The trial court has considered the evidences, in detail, and gave a finding on that basis which learned counsel for the appellants has completely failed to assail. 16. In fact, it was rightly submitted by the learned counsel for the respondents that adverse inference has to be drawn on account of non-examination of Ramnath Seth as well as non-production of any document by him regarding his alleged means and jewellery shop. Defendant witnesses have admitted that Ramnath Seth has been making Pairvi in the case and has been sending witnesses, but he himself kept away from the witness box. In paragraph 6 D.W. 7 has stated that Ramnath has sent him for giving the evidence and in paragraph 4 D.W. 11 also stated that Ramnath told him that he has to give evidence in court. Thus, non-examination of Ramnath and non-production of any document by him lead to presumption that it would have supported the plea of the plaintiffs. Reference in this regard can be made to the decisions of the Supreme court in the case of Mohd. Thus, non-examination of Ramnath and non-production of any document by him lead to presumption that it would have supported the plea of the plaintiffs. Reference in this regard can be made to the decisions of the Supreme court in the case of Mohd. Shafi v. State of J & K ( AIR 1970 SC 688 ) and of this Court in the case of Ramji Jankiji v. Mauni Saba (1978 Patna 48) and in the case of Devji Shivji v. Karsandas Ramji (1954 Patna 280). On the question of execution of Bajidawa, Ramnath was alone competent witness to say about it but he has kept himself out of witness box. 17. Under the said circumstances, I do not find any infirmity in the impugned judgment and the appeal is dismissed, but without costs.