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2000 DIGILAW 15 (GAU)

Tileswar Saikia v. Md. Abdul Rashid

2000-01-07

J.N.SARMA

body2000
This appeal is by the defendant No. 4. This appeal arises against the judgment dated 30.8.93 passed in TA 4 of 1992 by the learned Assistant District Judge, Golaghat. By the impugned judgment, the learned Judge dismissed the appeal and affirmed the judgment dated 6.7.92 passed by the learned Munsiff No.l at Golaghat in TS 14 of 1986. 2. The brief facts are as follows : One Smti Mismai Begum brought a suit for declaration that the decree passed in TS 12 of 1987 (decree dated 23.6.88) passed by the learned Munsiff No. 1 at Golaghat is not a legal and valid decree and for a further declaration that the registered sale deed dated 19.9.67 obtained by defendant No.4 from Sk Chand Mahammad, the husband of the plaintiff is not valid deed of sale and for cancellation of the same and also for a further declaration that on the basis of that sale, the defendant No.4 has not acquired any right, title and interest to the land and for recovery of the possession of the land on the allegation that on 8.7.88 the defendant No. 4 did not acquire any right. There was also a prayer for permanent injunction. The suit was filed on 23.8.88. It is the case of the plaintiff that they came to know the existence of the sale deed in the judgment of the aforesaid suit ie TS 12 of 1987 and thereafter got the certified copy of the same from the Sub Register on 6.8.88 A written statement was filed by the defendant No.4 and his case was that the deed was executed legally and validly. Earlier suit ie TS 12 of 1987 was filed by one Faiz Mahammed and 2 others and that also a suit for declaration and cancellation of the registered sale deed No.3758 dated 19.9.67. executed by late Sk Md Hussain in favour of the present defendant (he was defendant No.l in that particular suit). Earlier suit ie TS 12 of 1987 was filed by one Faiz Mahammed and 2 others and that also a suit for declaration and cancellation of the registered sale deed No.3758 dated 19.9.67. executed by late Sk Md Hussain in favour of the present defendant (he was defendant No.l in that particular suit). It may be stated that on the basis of that deed of sale in the year 1967, the defendant Tileswar Saikia got his name mutated in respect of the land and not only that he filed a Perfect Partition Case No. 27 of 1981 and notice of it was served on the pattadars and an objection was filed on behalf of the pattadars and the learned SDC, Golaghat vide order dated 9.9.86 referred the objectors to approach the competent civil Court for disposing of the claim against the mutation. It was the case of the plaintiff of the earlier suit that they came to know of this deed of sale at the time of hearing of the partition case and they later on obtained the certified copy of the sale deed and Jamabandi dated 12.11.86 and 24.11.86 respectively. The learned Munsiff in that particular judgment, on consideration of the materials on record, dismissed the suit on contest' with cost. In that suit, issue Nos 4, 5 and 6 were as follows : "4. Whether the defendant purchased the suit land from the rightful owner by way of rightful and legal manner/means ? 5. Whether the defendant has been in possession of the suit land since 1958? 6. Whether the chitha mutation allowed by the SDC is illegal and liable to be declared cancelled?” 3. It was the findings of the learned Munsiff in that a suit with regard to execution of the deed of sale are as follows (i) The plaintiffs have not denied the execution of the Ext Kha by late Sk Md Hussain, but cancellation thereof is sought as the same is alleged to be executed by him without the knowledge of the other co-pattadars; (ii) It is crystal clear that the suit land is the exclusive property of late Sk Md Hussain. (iii) The defendant No. 1 rightly purchased the suit land in a legal manner with the knowledge of the plaintiff and rightly got his name mutated in the chitha and he has been possessing the same since 1958 ie even before purchase. (iii) The defendant No. 1 rightly purchased the suit land in a legal manner with the knowledge of the plaintiff and rightly got his name mutated in the chitha and he has been possessing the same since 1958 ie even before purchase. 4. It may be stated herein that these plaintiffs are the close relation of the present plaintiff and thereafter this suit again has been filed by the wife on the same plea. The judgment of that suit has been exhibited as Ext 7 in this suit. The decree of that suit also has been exhibited in this suit. Jamabandi was corrected on 10.9.69 stating therein that according to the mutation and chitha on 2.8.69 passed by the learned SDC, 5 bighas of land is mutated in the name of Tilesw Saikia along with Sk Md Hussain in the year 1958 itself. There was an agreement for sale of this land ie oil 5.10.58 whereby Sk Md Hussain took a sum of Rs. 2,000 and agreed to sell the land in favour of defendant No. 1 and he agreed to execute the deed of sale and it is- the further evidence from that document (Ext Ka) in TS 12 of 1987 which was produced in this suit also as Ext Ka 2 and Ka 3 and he was put in possession of the land in the year 1950 and he continued to possess the same from that date. The sale deed was admittedly accepted as evidence without any objection. The learned Munsiff decreed the present suit without considering this documentary evidence as well as oral evidence and on appeal also the same was affirmed. 5. The substantial questions of law urged by Mr. DC Mahanta, learned counsel for appellant are as follows : (i) That the present suit is barred under section 31 of the Specific Relief Act; (ii) That the suit is barred by limitation. 6. Mr. Rahman, learned counsel for respondents in this connection, places reliance on AIR 1972 Assam & Nagaland 15 (Bhutkani Nath & others vs. Mt Kamaleswari Nath) wherein this Court has laid down the law as follows : “(i) It is true that a sale deed is not required by law to be attested. 6. Mr. Rahman, learned counsel for respondents in this connection, places reliance on AIR 1972 Assam & Nagaland 15 (Bhutkani Nath & others vs. Mt Kamaleswari Nath) wherein this Court has laid down the law as follows : “(i) It is true that a sale deed is not required by law to be attested. Even then, proof of execution of a sale deed, when it is denied will have to be furnished as in the case of any other document under section 67 of the Evidence Act. (ii) Execution of a document is not mere signing of it. It is a solemn act of the executants who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its "contents." 7. There is no quarrel with these two propositions of law and this decision of the Division Bench is squarely binding on me. But what are the facts in this particular case - the facts in this particular case are that there was earlier an agreement for sale in the year 1958. That document was also challenged in another suit and there the execution of the document was admitted and that suit was dismissed refusing the prayer for cancellation of it and thereafter the wife has again filed the suit on the same pleading and this document has been admitted in evidence without any objection. As such the findings of both the Courts below that there was no execution of document is erroneous and perverse finding. The document the sale deed, must be deemed to be executed and registered properly.That being the position the question is that whether this document is liable to be cancelled in the year 1988 after a lapse of about 21 years at the hand of the wife of the vendor. Section 31 of the Specific Relief Act in with regard to cancellation of a deed of sale. That section is quoted below : “31. When cancellation may be ordered - (1) Any person against whom a written instrument in void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." 8. This section 31 of the Specific Relief Act came up for consideration in the following decisions: AIR I960 Madras 1 (Muppudathi Pillai vs. Krishnaswami Pillai & others). That was a case earlier to the amendment of the Specific Relief Act and in the earlier Specific Relief Act it was section 39 and that section 39 is now section 31. With regard to the scope of cancellation, the Full Bench of the Madras High Court has pointed out as follows : "It is clear from the provisions of section 41 that the jurisdiction to award compensation would arise when the Court adjudges the cancellation of an instrument. Section 39 which provides for the relief as to cancellation of an instrument applies not merely to the case of an instrument which is voidable but also one that is void. Section 35 provides for the case of rescission of voidable contracts. It is evident that section 39 covers not only a case contemplated under section 35, but also a wider field that is a case of a valid document, which under the law need not be set aside. The principle is that such document though not necessary to be set aside, may, if left outstanding be a source of potential mischief. The jurisdiction under section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake undue influence etc and it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions." 9. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions." 9. This case also was further relied in AIR 1972 Allahabad 376 (Debi Prasad & others vs. Smti Maika & others) wherein the same law has been laid down and it has been pointed out that under section 31 it may be cancelled only when three conditions are fulfilled. The three conditions are : (i) that the plaintiff was such a person against whom the instrument was void or voidable; (2) that the plaintiff could entertain a reasonable apprehension that if such instrument is left outstanding it may cause him serious injury; and (3) that the Court must adjudge the instrument void or voidable. 10. In the instant case, condition Nos 1 and 3 are not fulfilled inasmuch as once it is held that the document was duly executed, it is neither to be void nor it can be voidable agreement. So, the question of cancellation of the deed by exercising the power under section 31 of the Specific Relief Act does not arise. So, the first question of law formulated is answered in favour of the appellant. 11. The next question urged by Mr. DC Mahanta, learned counsel that Article 59 of the Limitation Act which shall apply in such suit. Article 59 provides as follows: "39. The limitation would accordingly begin to run from the time when the facts entitled the plaintiff to have the instrument cancelled or set aside became known to a person is said to have notice' of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated : Provided that - (1) the instrument has been registered and-its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1900), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction in which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof." 13. In this particular case, the purchaser Tileswar Saikia was in possession of the land from 1958 and his name was mutated on the land and the wife shall be deemed to have notice of the title of Tileswar Saikia as he was actually in possession thereof. The question of limitation also came up for consideration in AIR 1934 PC 130 (Someshwar Dutt vs. Tribhawan Dutt & another) wherein the Privy Council was considering Article 91 of the old Limitation Act which is at present Article 59. That was a case where a deed was executed. The question of limitation also came up for consideration in AIR 1934 PC 130 (Someshwar Dutt vs. Tribhawan Dutt & another) wherein the Privy Council was considering Article 91 of the old Limitation Act which is at present Article 59. That was a case where a deed was executed. There it has been Held as follows : "The error into which the Chief Court fell, in their Lordships' opinion, is that they thought the three years permitted by the Limitation Act began to run out from the discovery of the plaintiff of the true nature of the deed which he had signed, but from the date when he escaped from the influence by which, according to the plaintiff he was dominated. Whether the facts as proved bring the claim within the limitation period even on this view is a question on which their Lordships express no opinion. It suffices to say that for the doctrine of the Chief Court their Lordships are unable to find any sufficient justification. Their Lordships will therefore humbly advise His Majesty that the appeal of the defendant should be allowed, and that the decree of the Subordinate Judge of 9th September, 1909, be restored. It follows that the cross appeal falls to be dismissed. The plaintiffs must pay the costs here and in the Chief Court." 14. In AIR 1960 SC 956 (Nirigawwa vs. Byrappa Shiddappu Hireknrabar & others) wherein two questions were decided. They were - (i) what is a void or voidable deed. The Supreme Court in that case pointed out as follows : "A contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. With reference to the former, the transaction is void, while in the case of the latter, it is merely voidable." 15. Regarding starting point of limitation, the Supreme Court held that it is not the date of execution, but the time when fraud becomes known to the party wronged. With reference to the former, the transaction is void, while in the case of the latter, it is merely voidable." 15. Regarding starting point of limitation, the Supreme Court held that it is not the date of execution, but the time when fraud becomes known to the party wronged. It is the date when plaintiff discovered true nature of deed and not date when he escaped from influence by which he was dominated. 16. In this particular case as indicated above, this prayer to cancel the deed of this lady appears to have been made by way of proxy when the earlier suit failed. Accordingly, this second appeal is allowed holding that the deed in question was executed validly inasmuch as there was no fraud and at the suit is barred by limitation. The suit of the plaintiff shall stand dismissed by quashing the judgments of both the Courts below.