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2002 DIGILAW 1182 (JHR)

Braj Bhushan Singh v. Basanti Devi

2002-11-25

GURUSHARAN SHARMA

body2002
ORDER Gurushan Sharma, J. 1. Basanti Devi respondent No. 1 died issueless on 28.2.2002. Her husband Kanhi Ram Bhadani is traceless since more than last seven years. Appellant, therefore, named her husbands Mother Loknath Ram Bhadani in I.A. No. 728 of 2002 (at nag P) to be substituted in her place. Nephews and grand sons of late Raghunandan Ram, father of deceased respondent No. 1 filed I.A. No. 1215 of 2002 (at flag M) under Order I, Rule 10 of the Code of Civil Procedure for being added as party- respondents in her place. One Ayod-hya Ram, one of the nephews of father of deceased respondent No. 1 filed petition (at flag Q) claiming himself to be the adopted son of Raghunandan Ram for being added in place of deceased respondent No. 1. Hence, there are three sets of claimants to be substituted. Admittedly, the suit property belonged to the mother of Basanti Devi, who had executed a Will dated 13.10.1980 in favour of her daughter. However, after her death respondent No. 1 being the sole heir inherited her estate. The suit property was, therefore, stridhan property of Basanti inherited from her fathers side. Hence, under Section 15(2)(a) of the Hindu Succession Act, 1956 heirs of her father in absence of her son or daughter inherited the said property left by her. Accordingly, name of deceased respondent No. 1 is expunged and her heirs and legal representatives, who have filed I.A. No. 1215 of 2002 and Ayodhya Prasad, who had filed petition at flag Q are substituted in her place, without going into and deciding the claim of Ayodhya Prasad to be adopted son of Raghunandan Ram at this stage. 2. Heard the parties and perused lower Court records and with their consent the appeal is disposed of under Order XLI, Rule 11 of the Code of Civil Procedure. 3. Plaintiff, Basanti Devi filed suit against defendants for cancellation of sale deed dated 18.2.1985 purported to have been executed by her in favour of Brajbhusan Singh, defendant No. 1 on the ground that it was forged, illegal and without consideration, for confirmation of possession and in alternative for recovery of possession over the suit land. According to her, defendant No. 1 proposed for starting a partnership business with him at Giridih and to obtain loan from a Nationalised Bank therefore, to which she agreed. According to her, defendant No. 1 proposed for starting a partnership business with him at Giridih and to obtain loan from a Nationalised Bank therefore, to which she agreed. On 18.2.1985 defendant No. 1 took her to his house on the plea that Manager of the Bank had come there and took her signature on three sheets of stamp papers on the false plea that it was required for loan applications. Subsequently, she came to know that actually it was a sale deed and the person alleged to be the Bank Manager was the Sub-registrar and that a sale deed was obtained from her in respect of the suit property, indicating consideration money of Rs. 12,000/- having been received by her. 4. Plaintiff asserted that she never executed any sale deed dated 18.2.1985 in favour of defendant No. 1 nor she was paid any consideration money by him. A fraud was practiced by defendant No. 1 with respect to the alleged sale deed in question, contents of the deed were never read over and explained to her, a fictitious amount of Rs. 12,000/- as consideration money was mentioned in the deed, but, in fact, not a single farthing was paid to the plaintiff by defendant No. 1. Plaintiff executed a registered cancellation deed dated 24.6.1985. 5. Defendant No. 1 contested the suit, inter alia, on the ground that plaintiff transferred the suit property out of her will and desire and received the consideration money of Rs. 12,000/- in presence of the sub-registrar, who made endorsement on the deed. 6. Trial Court dismissed the suit holding that plaintiff was not a pardanashin lady and she executed the sale deed (Exhibit G) after fully being aware of the contents of the document and after receiving the consideration amount. 7. Plaintiff, thereafter preferred appeal, which was allowed and the trial Courts decree was reversed. Court of appeal below on the basis of evidence recorded findings of fact that Basanti Devi was a pardanashin lady and therefore it was the burden of defendant No. 1 to prove that the sale deed (Exhibit G) was a valid and genuine document, duly executed by plaintiff after being fully aware of the nature of transaction and after receiving the consideration money. 8. Trial Court was not correct in throwing burden upon plaintiff to prove fraud, if any committed by defendant No. 1 on her. 8. Trial Court was not correct in throwing burden upon plaintiff to prove fraud, if any committed by defendant No. 1 on her. Trial Courts finding was, therefore, set aside and it was held after carefully scrutinizing the evidence that defendant No. 1 failed to discharge the burden. The original sale deed dated 18.12.1985 was with defendant No. 1, but he did not produce the same at the appropriate stage of the suit and it was brought on record after the plaintiff was already examined in the suit as PW 3. The Court of appeal below, therefore, rightly drew adverse inference against the defendant No. 1. Further the said deed was said to have been executed on 5.12.1984, but it was presented for admission of execution before sub-registrar on 18.2.1985. Hence, the plaintiff put her signatures on the deed on 5.12.1984 at the time of execution and secondly on 18.12.1985 when the deed was presented before the sub-registrar for admission of execution and registration, but the plaintiffs claim that her signatures were taken on the same day, was not denied by the defendant No. 1, which created doubt. 9. In the aforesaid circumstances, I find no reason to interfere with the impugned judgment and decree passed by the Court of appeal below. No substantial question of law arises to be considered in this Second Appeal. It is dismissed.