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2004 DIGILAW 478 (JHR)

Jibrail Mian v. Lalu Turi

2004-04-30

VISHNUDEO NARAYAN

body2004
ORDER Vishnudeo Narayan, J. 1. This appeal at the instance of the defendants-appellant is directed against the impugned judgment and decree of affirmation dated 24.3.1988 and 4.4.1988 respectively passed in Title Appeal No. 47 of 1984/46 of 1987 by the District Judge, Gumla upholding the judgment and decree of the learned Munsif, Gumla passed in Title Suit No. 37 of 1983 whereby the suit filed by the plaintiffs was decreed. 2. The plaintiffs-respondent had filed the said suit for declaration that the sale deed No. 1711 dated 18.10.1978 executed by them is void and not binding upon them having been obtained by fraud, misrepresentation and without consideration and for recovery of possession in respect of the suit land detailed in Schedule-A of the plaint situate in Village-Dumarla, Police Station- Gumla, District-Ranchi (now Gumla). 3. The case of the plaintiffs-respondent, in brief, is that Buddu Turi, Mutari Turi and Thuia Turi, all sons of Bishun Turi stand jointly recorded in respect of Khata No. 68 in the Survey Records of Right (Ext. 5) and land under Khata No. 68 was partitioned among them and the suit plots having a total area of 3.11 acres under the said Khata fell to the Takhata allotted to Thuia Turi, who was in exclusive possession over the same. Thuia Turi died leaving behind his widow, original plaintiff-respondent No. 2 Most. Atwari Turin (since dead) and a daughter, the original plaintiff-respondent No. 1 Dilmohini Turin (since dead). In the year 1976 Atwari Turin had executed a registered Will in favour of her daughter Dilmohini Turin aforesaid. The plaintiffs-respondent, who are illiterate women, in the year 1978 wanted to sell only plot No. 1181 having an area of 1.11 acres of land to the defendants-appellant, who agreed to purchase the same for a sum of Rs. In the year 1976 Atwari Turin had executed a registered Will in favour of her daughter Dilmohini Turin aforesaid. The plaintiffs-respondent, who are illiterate women, in the year 1978 wanted to sell only plot No. 1181 having an area of 1.11 acres of land to the defendants-appellant, who agreed to purchase the same for a sum of Rs. 4400/- and they came to Gumla on 18.10.1978 with the defendants-appellant and one Mohaddin Mian, the father of defendant-appellant No. 1 where the sale deed was prepared but the entire consideration amount was not paid to them by the defendants-appellant and also the contents of the sale deed were not read over and explained to them in their own language and they were made to understand that the sale deed is in respect of only plot No. 1181 having an area of 1.11 acres and under the aid belief and also believing the bona fide of the scribe, they had executed the sale deed (Ext. 4) on 18.10.1978 in favour of defendants-appellant. It is alleged that if the plaintiffs- respondent could have known that all the suit plots are being transferred, they would not have executed the said sale deed in favour of defendants-appellant as they had never wanted to sale their entire properties nor they would have transferred their entire properties to reduce themselves to penury and the said sale deed was obtained by the defendants-appellant by playing fraud upon them and by misrepresentation and the value of the suit plots is not less then Rs. 20,000/-. The defendants-appellant did not come in possession of all the plots except plot No. 1181. Subsequently, the defendants-appellant forcibly dispossessed them from all the suit plots by virtue of an illegal order passed under Section 144 of the Code of Criminal Procedure coupled with the mutation order of the Circle Officer. It is also alleged that in spite of repeated demands defendants-appellant though initially agreed to pay Rs. 1260/-, the balance of the consideration amount and to meet the expenses of the rectification of the sale deed dated 18.10.1978 refused to pay the rest amount of the consideration and to rectify the said sale deed fraudulently obtained by them and the sale deed is without consideration and the plaintiffs-respondent having come to know of the fraud, cancelled the sale deed dated 18.10.1978 by executing a registered cancellation deed dated 17.11.1978 (Ext. 1) and also sent a registered notice (Ext. 3) on 11.6.1979 through their advocate to the defendants-appellant for their information and in reply to the said notice the defendants- appellant denied the title over the entire suit land of the plaintiffs-respondent. 4. The case of the defendants-appellant, inter alia, is that the plaintiffs- respondent negotiated to sell the entire suit lands with the father of the defendants-appellant, who agreed to pay Rs. 4400/- only for the entire suit land and accordingly, the sale deed was scribed by Ratanlal and its contents were explained to plaintiff-respondent No. 2 Atwari Turin in presence of his daughter, plaintiff-respondent No. 1 Dilmohini Turin and finding it correct she has executed the sale deed and received a sum of Rs. 3140/- before the Sub- Registrar, Gumla (Ext. B). It is alleged that the rest of consideration was already paid to the plaintiffs-respondent before the execution of the said sale deed and the sale deed was for the entire suit land and not only for the land bearing plot No. 1181 and no fraud was ever practised upon the plaintiffs- respondent. The defendants-appellant came in possession over the entire suit land after the execution of the sale deed and they stand mutated in respect thereof and paying rent to the State for the entire suit land and are getting rent receipts (Ext. A series). 5. In view of the pleadings of the parties, the learned Trial Court has framed the following issues for adjudication in the suit :-- (i) Have the plaintiffs got any cause of action? (ii) Is the suit maintainable as framed? (iii) Is the suit barred by law of limitation, waiver and acquiescence? (iv) Can the plaintiffs challenge the deed of sale dated 18.10.1978 executed by them in favour of the defendants? (v) Are the plaintiffs entitled for recovery of possession over lands in question? (vi) To what relief or reliefs, the plaintiffs are entitled? . 6. The learned Court below while deciding issue Nos. (iv) and (v) has held that there was a formal talk between the plaintiffs-respondent and Matria Mian @Mohiddin Mian, the father of the defendants-appellant, for sale of only 1.11 acres of land of Plot No. 1181 for Rs. 4400/- and the sale deed was executed by defendant-respondent No. 2 for Rs. 4400/- but a sum of Rs. (iv) and (v) has held that there was a formal talk between the plaintiffs-respondent and Matria Mian @Mohiddin Mian, the father of the defendants-appellant, for sale of only 1.11 acres of land of Plot No. 1181 for Rs. 4400/- and the sale deed was executed by defendant-respondent No. 2 for Rs. 4400/- but a sum of Rs. 1260/- was not paid to the plaintiffs-respondent aforesaid as advance prior to the execution and registration of the sale deed by her and only a sum of Rs. 3140/-was paid by the defendants-appellant at the time of execution and registration of the sale deed on 18.10.1978 in question and the plaintiff-respondent No. 2, having come to know the fraud practised upon her in execution of the sale deed regarding her entire land, has cancelled the said sale deed by executing a registered deed of cancellation. It has also been held relying upon the ratio of the case of Baldeo Singh and Ors. v. Dwarika Singh and Ors., AIR 1978 Pat 97 , that in absence of the payment of the full consideration amount, the defendants-appellant have not acquired right and title over the suit land and the sale deed dated 18.10.1978 (Ext. 4) is a void document and not binding upon the plaintiffs and thus, the plaintiffs-respondent are entitled for recovery of possession over the suit land in view of their forcible dispossession therefrom. 7. Aggrieved by the judgment and decree of the Trial Court, the defendants- appellant preferred Title Appeal No. 47 of 1984/46 of 1987. The lower appellate Court below affirmed the finding arrived at by the Trial Court on reappraisal and re-appreciation of the evidence, oral and documentary, on the record and dismissed the appeal as per the impugned judgment and decree. The learned appellate Court below in view of admission of DW 1 and DW 2 read with the principle of non-traverse had held that there are grounds to hold that consideration of Rs. 4400/- only for total area of 3.11 acres of don and tand lands shown to have been sold through Ext. The learned appellate Court below in view of admission of DW 1 and DW 2 read with the principle of non-traverse had held that there are grounds to hold that consideration of Rs. 4400/- only for total area of 3.11 acres of don and tand lands shown to have been sold through Ext. 4 appears to be quite inadequate which shows the strong circumstance to believe that the plaintiffs-respondent had contracted to sale only one plot i.e. Plot No. 1181 having an area of 1.11 acres don land and the plaintiffs-respondent have proved the inadequacy of the price shown in the sale deed for the entire suit land and neither the entire consideration money was paid before the execution of the sale deed nor the vendees were put in possession before the execution of the said sale deed and the recital of the sale deed does not show regarding payment of any amount as advance to the vendors i.e. the plaintiffs-respondent before the execution and registration of the said sale deed and thus, the entire consideration money as shown in the sale deed has not been paid by the defendants-appellant. It has also been held that the plaintiffs-respondent has not agreed to sale the entire suit plots to the defendants-appellant through the sale deed in question and they have not acquired any title over the suit land through Ext. 4. Lastly, it has been held that neither all the plots mentioned in the sale deed were intended to be sold by the plaintiffs-respondent nor the entire consideration money has been paid by now and as such the intention of the vendors were not carried out and for this reason it must be held that no title had passed upon the vendees through the execution of the sale deed (Ext. 4) and, therefore, the plaintiffs-respondent are entitled to a decree for cancellation of the sale deed in question on the ground of fraudulent entries regarding area and number of all the plots and non-payment of full consideration money and the plaintiffs- respondent are also entitled to be put in possession of the suit land. 8. 4) and, therefore, the plaintiffs-respondent are entitled to a decree for cancellation of the sale deed in question on the ground of fraudulent entries regarding area and number of all the plots and non-payment of full consideration money and the plaintiffs- respondent are also entitled to be put in possession of the suit land. 8. This Court while admitting the appeal for hearing has formulated the substantial question of law which runs thus :-- "Whether in view of the admission of the respondents that there was a talk for transferring plot No. 1.181 area 1.11, the suit with regard to that plot also could have been decreed?" 9. Assailing the impugned judgment it has been submitted by the learned counsel for defendants-appellant that it is an admitted fact as per the averments made in the plaint and the evidence brought on the record on behalf of the plaintiffs-respondent that admittedly there was a negotiation for transfer of plot No. 1181 having an area of 1.11 acres of land for Rs. 4400/- and the sale deed dated 18.10.1978 (Ext. 4) was executed by defendant-respondent No. 2 Atwari Turin (since dead) in favour of defendants-appellant for a consideration of Rs. 4400/- and the major portion of the consideration amount stands paid in presence of the Sub-Registrar, Gumla at the time of registration of the said sale deed to the executant aforesaid which is evidenced by Ext. B, the endorsement on Ext. 4 aforesaid and in view of this admission, the learned appellate Court below ought not to have decreed the suit with regard to the said plot. It has also been submitted that the term of the sale deed (Ext. B, the endorsement on Ext. 4 aforesaid and in view of this admission, the learned appellate Court below ought not to have decreed the suit with regard to the said plot. It has also been submitted that the term of the sale deed (Ext. 4) is very clear from which it appears that the title has vested in respect of the said plot to the defendants-appellant on the execution of the sale deed and it was the intention of the parties in respect thereof which can be gathered and inferred from the sale deed itself and it is obvious from the terms of the sale deed aforesaid that the parties to the sale deed had agreed that title in the said plot No. 1181 in question shall pass on mere execution and registration of the sale deed and there is no recital therein that title in respect thereof shall pass to the vendee i.e. the defendants-appellant only after payment of the full consideration money and, therefore, both the Courts below have erred in decreeing the suit in full whereas the Courts below ought to have not decreed the suit at least in respect of plot No. 1181. Thus, the impugned judgment suffers with illegality to that extent and it requires modification. In support of his contention reliance has been placed upon the ratio of the cases of Devji Shivji v. Karsandas Ramji and Anr., AIR 1954 Pat 280 ; Motilal Singh and Ors. v. Mt. Fulia, and Ors., AIR 1958 Pat 61 and Gurubari Lenka and Anr. v. Dulani Thakurani and Ors., AIR 1971 Ori 147 . 10. In contra, it has been submitted that though there was a negotiation between the parties in respect of the sale of only plot No. 1181 for Rs. 4400/- but the sale deed (Ext. 4) incorporates several other plots due to fraud practised by the defendants-appellant upon plaintiff-respondent No. 2 Most. Atwari Turin, the vendor, who is a rustic illiterate woman and thus the entire sale deed is ab imtio illegal and it cannot be said to be valid even in respect of plot No. 1181 and invalid and illegal in respect of the other five plots and thus, the whole sale deed has been rightly held to be illegal and void by both the Courts below. It has also been submitted that the sale deed is tainted with fraud and a contract must be performed as a whole and there will, therefore, be no rescission of part of contract unless that part is severable from rest of the contract and when the vendor i.e. plaintiffs-respondent No. 2 has decided to repudiate it, she must repudiate it altogether and she is entitled to rescind the said contract and a person entitled to rescind a contract cannot rescind a party only. It has also been submitted that the question whether title passes on mere execution and registration of deed or only on payment of consideration depends upon the intention of the parties to be gathered from the deed itself and where the sale deed may recite that consideration has been paid, there is nothing to prevent the parties from adducing evidence to show that the recital is untrue and that in fact, the consideration was not paid. In support of his contention reliance has been placed upon the ratio of the case of Baldeo Singh and Ors. v. Dwarika Singh and Ors., AIR 1978 Pat 97 and Ramdesh Prasad and Anr. v. Kasi Sao @ Kasi Prasad and Anr.. 2002 (3) JLJR 92 . Thus, there is no illegality in the impugned judgment requiring any interference therein. 11. There is averment in para 7 of the plaint that in the year 1978, the plaintiffs-respondent wanted to sell plot No. 1181 having an area of 1.11 acres only and the defendants-appellant agreed to purchase the some and were ready to pay a sum of Rs. 4400/- as consideration amount. In para 9 of the plaint, there is an averment that the plaintiffs-appellant came to Gumla on 18.10.1978, with defendants-appellant along with their father Mahiddin Mian where the sale deed was prepared but the full consideration amount of Rs. 4400/-was not paid by the defendants-appellant to them and also the contents of the sale deed was not read over and explained to them in their own language and they were made to understand that the sale deed is purported to transfer only one plot No. 1181 having an area of 1.11 acres and under the said belief, the plaintiff-respondent No. 1 executed the sale deed find had the plaintiffs-respondent knowledge that all her plots are being transferred, then they would not have executed the sale deed in favour of defendants-appellant. There is further an averment in para 1 of the plaint that the sale deed was obtained by the defendants-appellant by playing fraud upon them plaintiff-respondent No. 2 Most Atwari Turin has deposed in para 1 of her testimony that there had been a talk for sale of only one plot for Rs. 4400/- with Matna Mian @ Mohiddin Mian about seven or eight years ago and she subsequently came to knew that Matna Mian had got her other plots incorporated in the said sale deed. Similar is the evidence of PW 2 Dil-mohiril Turin, the plaintiff-respondent No. 1 and PW 3 Mangru Oraon in respect thereof. It, therefore, appears from the pleadings of the parties and the evidence of PW 1 and PW 2 that there was negotiation for the sale of only plot No. 1181 between the parties and in pursuance thereto the sale deed (Ext. 4) has been executed on 18.10.1978 by plaintiff-respondent No. 2 in favour of the defendants-appellant. The said sale deed is Ext. 4 and it appears from the sale deed that plot Nos. 528, 1058, 1087, 1088, 1089 besides plot No. 1181 having an area of 3.11 acres stand transferred. Both the Courts below have concurrently held that the said sale deed has been executed in respect of all the plots aforesaid by practicing fraud upon the plaintiff-respondent No. 2 by the defendants-appellant and the said sale deed is void. It is the settled principle of law that all agreements are contracts if they are made by the free consent of the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the Indian Contract Act, 1872. A consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation and mistake and consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake. Fraud means and includes any other acts committed by a party to a contract with intent to deceive another party to the contract. Section 17 of the Indian Contract Act, 1872 defines "fraud" and it includes such act which intends to deceive another party and also any other act fitted to deceive. Fraud means and includes any other acts committed by a party to a contract with intent to deceive another party to the contract. Section 17 of the Indian Contract Act, 1872 defines "fraud" and it includes such act which intends to deceive another party and also any other act fitted to deceive. In other to constitute fraud, such acts should have been done by the party to the contract or by any other person with his connivance and with intent to deceive the other party to enter into the contract. The party so aggrieved can avoid the said contract on the ground of fraud. In the case of Ohid Bux and Ors. v. Dorshu and Anr., AIR 1926 Cal 959, it has been observed which runs thus :-- "It is a well recognized principle of the law of contract that if you seek on the ground of fraud to cancel or set aside the contract you must set aside the contract as a whole and not a part thereof, that is to say, the person impeaches the contract must make up his mind to take it as it stands or repudiate it to toto. It is open to the plaintiffs to take a middle course to accept a contract in part and to reject the other part........" Here in this case at hand, there is a concluded finding that the sale deed is tainted with fraud and a contract must be performed as a whole and there will, therefore, be no rescission of part of contract unless that part is severable from rest of the contract and when the vendor i.e. the plaintiff-respondent No. 2 has decided to repudiate it, she must repudiate it altogether and she is entitled to rescind the said contract and a person entitled to rescind a contract cannot rescind a part only. In this view of the well recognized principle of law referred to above, both the Courts below have rightly decreed the suit of the plaintiff-respondent in cancelling the entire sale deed (Ext. 4). The admission referred to above in respect of the negotiation of sale of only one plot bearing plot No. 1181 between the parties for Rs. 4400/- pales into insignificance and the suit has been rightly decreed cancelling the said sale deed with regard to plot No. 1181 also. 4). The admission referred to above in respect of the negotiation of sale of only one plot bearing plot No. 1181 between the parties for Rs. 4400/- pales into insignificance and the suit has been rightly decreed cancelling the said sale deed with regard to plot No. 1181 also. Therefore, there is no illegality in the impugned judgment requiring an interference therein. The other contentions raised by the learned counsel for the respective parties have no bearing regarding the substantial question of law formulated in this case and as such the ratio of the cases referred to above by the respective parties have also no bearing in respect thereof. 12. There is no merit in this appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is dismissed. There shall be no order as. to cost in the facts and circumstances of this case. 13. It is relevant to mention while parting that plaintiff- respondent No. 2 Most. Atwari Turin (since dead) has received Rs. 3140/- from the defendants at the time of the execution of the sale deed (Ext. 4) and equity and natural justice demand that the said sum of Rs. 3140/- must be paid back to the defendants-appellant 1, therefore, direct the plaintiffs-respondent, who are on record as heirs of the original plaintiff-respondent No. 2, to refund the said amount to the defendants-appellant within three months from the date of this order, failing which the defendants-appellant shall recover the said amount from them in accordance with law.