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2014 DIGILAW 3758 (ALL)

Beepat v. Sri Ram

2014-12-16

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J.: - The second appeal has been admitted on the following substantial questions of law : - (i) Whether the judgment of the learned first appellate court is vitiated because of recording the finding without reversing the finding recorded by the trial court and on account of ignoring the material on record ? (ii) Whether the judgment is vitiated because of non-framing of the proper issues ? 2. The plaintiff-respondent had filed a suit for cancellation of the sale-deed on the ground that he is bhumidhar of Gata No.173 measuring 0.551 hectares and being very old he is dependent upon his nephews. The defendants-appellants are his real brother-in-law and are resident of District Gonda. In the year 1999, the wife of the plaintiff-respondent died and since he was very much mentally disturbed on account of death of his wife, the defendants-appellants on the pretext of providing him medical help, took him to an office and told him that they had prepared a deed of Will, so that after his death, the property may devolve upon his nephew. The plaintiff-respondent on the assurance given by the defendant-appellants put his thumb impression on the said document, but subsequently he came to know that the defendant-appellant has got the sale-deed executed in respect of his bhumidhari land. With the aforesaid allegations, the plaintiff-respondent filed a suit for cancellation of the sale-deed on the ground of fraud. 3. The defendants-appellants contested the suit and filed the written statement denying the allegations and stating that the plaintiff-respondent had executed the sale-deed knowing fully well that the property was being sold to the defendants-appellants, the sale consideration was also paid to the plaintiff-respondent before execution of the sale-deed. He on being fully satisfied put his thumb impression before the Sub-Registrar and was also duly identified by the witnesses. The Sub-Registrar also on being satisfied that the plaintiff-respondent had executed a sale-deed out of his free will, registered the document. Since then, the defendants-appellants have been in continuous and peaceful possession of the property. 4. Learned trial court on the basis of pleadings of the parties framed five issues and on the basis of the evidence on record recorded a finding that the sale-deed was executed by the plaintiff-respondent out of his free will after receiving the sale consideration and the Sub-Registrar also on being fully satisfied, registered the sale-deed. 4. Learned trial court on the basis of pleadings of the parties framed five issues and on the basis of the evidence on record recorded a finding that the sale-deed was executed by the plaintiff-respondent out of his free will after receiving the sale consideration and the Sub-Registrar also on being fully satisfied, registered the sale-deed. On the basis of the aforesaid findings, learned trial court found that the sale-deed was not liable to be cancelled. With the aforesaid findings, the suit was dismissed with costs. 5. Feeling aggrieved by the decision of the suit, the plaintiff-respondent preferred an appeal before the District Judge which was allowed by the Civil Judge SC/ST Act/Additional District Judge, Gonda vide judgment and order dated 23.03.2007. The learned appellate court while reversing the finding recorded by the learned trial court, came to the conclusion that the plaintiff-respondent being an aged and infirm person, was not in a position to understand as to what was being done. The sale consideration was also not paid to him in front of the Sub-Registrar. There is no evidence on record to the effect that the sale consideration amounting to Rs.90,000/- was paid to him prior to the execution of the sale-deed. The appellate Court further found that there is nothing on record to prove that the sale-deed was registered by following the prescribed procedure which include the verification by the Sub-Registrar as to the consent and freewill of the person executing the deed. 6. I have heard Shri G.P. Mishra and Shri Himanshu Pandey, learned counsel for the appellant and Shri Sushil Kumar, learned counsel for the respondent and have also gone through the record. 7. Learned counsel for the defendants-appellants has argued that the learned appellate court has reversed the finding of the trial court without appreciating the evidence and ignoring the material on record. It is not disputed that the plaintiff-respondent had executed a sale-deed in favour of the defendants-appellants and the sale-deed was registered before the Sub-Registrar. He submits that when the document was a registered before the Sub-Registrar, there is a presumption that the registration of the document was done by following the prescribed procedure. If a party says that the prescribed procedure was not followed before registration of the document, the burden lies on him to prove that the procedure was not followed. He submits that when the document was a registered before the Sub-Registrar, there is a presumption that the registration of the document was done by following the prescribed procedure. If a party says that the prescribed procedure was not followed before registration of the document, the burden lies on him to prove that the procedure was not followed. In this case, the burden has wrongly been shifted upon the defendants-appellants to prove that the procedure of registration was not followed, while the law requires that when the plaintiff-respondent ought to have given evidence before the Court that he was not paid sale consideration and the Sub-Registrar did not verify from him as to whether he was executing the sale-deed of his property or not. The learned appellate court merely on the basis of the assumption proceeded to record a finding that the sale-deed was executed without payment of sale consideration and without following the prescribed procedure. There cannot be a presumption that if a person is aged, he is not able to understand as to what is going on. The learned appellate court has wrongly observed that the position of an aged person is like a Pardanashin lady, who is entitled to protection. There is absolutely no evidence on record that the plaintiff-respondent was medically unfit or was under mental distress to such an extent that he was not able to understand as to what was being done in the office of the Sub-Registrar. It was specific case of the defendants-appellants that sale consideration was paid to the plaintiff-respondent at his house and only after receiving the sale consideration, he went to the office of Sub-Registrar for execution of the sale-deed. The defendants-appellants have examined the scribe of the sale-deed as well as marginal witnesses, who clearly stated before the trial court that the plaintiff-respondent signed and executed the sale-deed only after the contents of the sale-deed were read over to him. When the plaintiff-respondent put his thumb impression, the witnesses also signed the sale-deed and thereafter it was placed before the Sub-Registrar. The witnesses have further stated that the Sub-Registrar also asked the plaintiff-respondent about the sale-deed and on being satisfied that the plaintiff-respondent had received the sale consideration and was executing the sale-deed out of his freewill and consent and without any pressure, only then he registered the document. The witnesses have further stated that the Sub-Registrar also asked the plaintiff-respondent about the sale-deed and on being satisfied that the plaintiff-respondent had received the sale consideration and was executing the sale-deed out of his freewill and consent and without any pressure, only then he registered the document. The defendants-appellants have also examined the scribe of the sale-deed, who has also stated that the sale-deed was prepared on the instructions of the plaintiff-respondent. Thus, the defendants-appellants had fully proved that the sale consideration was paid to the plaintiff-respondent and the document was duly executed and registered by following the prescribed procedure. On the contrary, there is no evidence on record to show that the plaintiff-respondent did not receive sale consideration or the Sub-Registrar did not follow the prescribed procedure before registering the sale-deed. 8. It has also been submitted on behalf of the defendants-appellants that the learned appellate court has also observed that the parties were under fiduciary relationship and as such the defendants-appellants were in a position to dominate over the will of the plaintiff-respondent. It is an admitted fact that the defendants-appellants are the real brother-in-law of the plaintiff-respondent and such type of the relationship cannot be considered as fiduciary relationship because the defendants-appellants are the brothers of the deceased wife of the plaintiff-respondent and it cannot be presumed that on account of the death of his wife, the plaintiff-respondent was under pressure of his brother-in-law. 9. Learned counsel appearing on behalf of the plaintiff-respondent has submitted that during the pendency of the second appeal, the defendants-appellants have sold the property to third person and as such the transaction is hit by Section 52 of the Transfer of Property Act and in these circumstances, the defendants-appellants have no right to be heard in appeal. I do not find any force in the submission of the learned counsel for the plaintiff-respondent because the defendants-appellants have done so at their own risk and there was no interim order of the Court to restrain them from transferring the property. The only interim order passed in second appeal was to the effect that the operation of the judgment of the appellate court was stayed. Thus, the judgment and decree of cancellation of the sale-deed passed by the learned appellate court was in abeyance when the defendants-appellants sold the property. 10. The only interim order passed in second appeal was to the effect that the operation of the judgment of the appellate court was stayed. Thus, the judgment and decree of cancellation of the sale-deed passed by the learned appellate court was in abeyance when the defendants-appellants sold the property. 10. In view of discussions made hereinabove, I am of the view that the appellate court has recorded a finding on issue no.1 without reversing the finding recorded by the learned trial court and also ignoring the material on record. The learned appellate Court has also wrongly shifted the burden of proof upon the defendants-appellants while it was for the plaintiff-respondent to have proved that the sale-deed was obtained by playing fraud. The judgment and decree passed by the appellate court is, therefore, vitiated and is liable to be set aside. 11. In the result, the second appeal is allowed and the judgment and decree dated 23.03.2007 passed in regular Civil Appeal No.53/2005 is set aside and the judgment and decree passed by the trial court in Regular Suit No.788/99 dismissing the suit of the plaintiff-respondent is confirmed. In the circumstances of the case, the parties shall bear their own costs.