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2002 DIGILAW 1109 (ALL)

Krishna Kumar v. Champa Devi

2002-08-27

RAKESH TIWARI

body2002
JUDGMENT Rakesh Tiwari 1. Heard Sri. K. S. Kushwaha, learned counsel for the appellant and Sr. A. N. Dubey, learned counsel for the respondents. 2. This appeal is directed against the judgment and decree dated 4.5.1977 passed by the Additional Civil Judge, Azamgarh in Civil Appeal No. 24 of 1976 arising out of Original Suit No. 295 of 1974 between Smt. Dulari, plaintiff and Krishna Kumar, defendant. The relief sought in this appeal is that the judgment and decree passed by both the courts below be set aside by dismissing the plaintiff's suit with costs. At the time of admission, the substantial question of law framed in this appeal was : "Whether the judgment of the court below is vitiated by a wrong approach to the facts in issue?" 3. The facts in brief are that Original Suit No. 295 of 1974 was filed by Smt. Dulari for cancellation of the sale deed executed by her on 5.2.1973 in favour of the respondents, who are her son-in-law and husband of one of her daughters Smt. Champa Devi. The case of the plaintiff before the trial court was that she had four married daughters, i.e., Smt. Champa Devi, Smt. Subhawati Devi, Durgawati Devi and Smt. Prabha Devi. She was a widow and had inherited certain plots after the death of her husband, which was her only source of livelihood. She filed a suit on the ground that she was an old and pardanaseen lady and also hard of hearing. The trial court framed the following three issues on the pleadings of the parties : (1) Whether the sale deed in suit dated 5.2.1973 is liable to be set aside for the reasons given in para 12 of the plaint? (2) Whether the suit is barred by estoppel? (3) To what relief, if any, is the plaintiff entitled for? Relying upon Khatija Bi Sahiba v. Mohammad Madar Sahib, AIR 1955 NOC 3932, the trial court held that it is not enough for a lady, who claims to be a pardanaseen woman, to establish that there was some sort of seclusion. The expression is applied to the cases where a lady is always removed in complete seclusion. Relying upon Khatija Bi Sahiba v. Mohammad Madar Sahib, AIR 1955 NOC 3932, the trial court held that it is not enough for a lady, who claims to be a pardanaseen woman, to establish that there was some sort of seclusion. The expression is applied to the cases where a lady is always removed in complete seclusion. In view of the aforesaid expression, trial court denied to accept that the plaintiff was a pardanaseen lady ; while deciding issue No. 2, the trial court held that nothing was pointed out for application of a doctrine of estoppel in this case. 4. In view of the findings that the plaintiff's suit was liable to be decreed with costs ; issue No. 3 was decided accordingly. Aggrieved by the order and judgment of the trial court, Krishna Kumar, son-in-law of Smt. Dulari and defendant in the suit, filed Civil Appeal No. 24 of 1976 in the Court of Additional Civil Judge, Azamgarh. The appellate Court dismissed the appeal holding that the respondent was a rustic, illiterate woman of old age and villager and she understood that she was asked only about the land, which she was offering herself a surety and, therefore, rule applicable to a pardanaseen lady will apply in her case also. The case of Paras Nath Rai v. Tileshra Kur, (1965) ALJ 1080, in which it has been held that the rules regarding transactions by a pardanaseen lady are equally applicable to an illiterate and ignorant woman, though she may not be pardanaseen. It was further held in this case that it was not necessary to ascertain whether fraud, misrepresentation or undue influence was established when it was found that a deed executed by a pardanaseen lady was not executed by her voluntarily. It was held that the deed is not binding on her and it conveyed no title. 5. Aggrieved by the aforesaid judgments and orders of the courts below, the defendant-appellant has filed this second appeal. 6. During the pendency of this Second Appeal, the sole respondent Smt. Dulari expired and in her place Smt. Champa Devi, Sri Rishikesh, Sri Akhilesh and Smt. Prabhawati Devi were substituted. It is argued by the learned counsel for the appellants all the four daughters have relinquished their shares in the land and Smt. Dulari had sold a piece of land to the defendant-appellant for a sale consideration of Rs. 6,000. It is argued by the learned counsel for the appellants all the four daughters have relinquished their shares in the land and Smt. Dulari had sold a piece of land to the defendant-appellant for a sale consideration of Rs. 6,000. The counsel for the appellant has taken me to the evidence of Smt. Dulari, in which it has been stated : ...[VERNACULAR TEXT OMMITED]... 7. He argued that the courts below have committed illegality in holding that the plaintiff-respondent was not paid sale consideration ; whereas in fact she has admitted in her statement that she was given money, which she had taken and came back. 8. The aforesaid admission of the plaintiff-respondent cannot be read in isolation and the whole of the evidence is to be read. A perusal of the evidence given by Dulari would show that she had sold the agricultural land of Gurehka after the sale deed had been registered. Nobody had read the sale deed to her and she had been given money, which she took and came back. This statement is to be read in context of what was the stand of Smt. Dulari in the court below. It appears from the records of the Courts below that the stand of Smt. Dulari was that the defendant-appellant, who was her son-in-law and husband of her daughter Champa Devi came to the plaintiff-respondent and asked her to become surety as the defendant wanted to take some loan from the Government, since the plaintiff was her close relative, she accepted to become surety of the defendant. Krishna Kumar, the defendant-appellant took Smt. Dulari to the Tehsildar and asked her to stay in one place and obtained thumb impression of the plaintiff-respondent in some papers and told her that formalities of taking loan were complete. Thereafter some amount was paid to her and she came back. 9. From this scenario, it is quite clear that she thought that the amount was in respect of loan given to her son-in-law, for which she stood surety and had signed the papers. She has categorically denied that the sale deed was ever read to her and loan paid to her was in respect of the sale consideration. 10. Both the courts below have held that the plaintiff-respondent in this case, was not paid sale consideration. She has categorically denied that the sale deed was ever read to her and loan paid to her was in respect of the sale consideration. 10. Both the courts below have held that the plaintiff-respondent in this case, was not paid sale consideration. The orders and judgments of the courts below are not vitiated by any wrong approach to the facts in the issue. The substantial question of law framed in this appeal is decided accordingly. 11. The appeal is, therefore, dismissed. The interim order if any, stands vacated.