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2015 DIGILAW 610 (HP)

Satya Devi v. Kartar Chand

2015-05-28

RAJIV SHARMA

body2015
Rajiv Sharma, J. (Oral): 1. This Regular Second Appeal is directed against the judgment and decree, dated 30.04.2005, passed by the learned Additional District Judge, Una, District Una, H.P. in Civil Appeal No. 6/2001. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that predecessor-in-interest of the appellant plaintiff, Dalipa (hereinafter referred to as ‘the plaintiff’ for the sake of convenience), instituted a suit against the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience), stating therein that the land measuring 10 Kanals, 5 marlas, bearing Khewat No. 248, Khatauni No. 383, Khasra Nos. 4667, 4906, 4911, 4922, 4913, 4942, 4947, 4948, 4961, 4962, 5157, as entered in the Jamabandi for the year 1987-1988, situated in Village Rora Baliwal, Sub Tehsil Haroli, District Una (hereinafter referred to as ‘the suit land’ for the sake of convenience) was owned and possessed by Dalipa. The appellant No. 2, Sarasti Devi, is the wife of Dalipa. Dalipa has executed a gift deed of the suit land on 02.01.1991 at Haroli in her favour. The gift deed was scribed by Ashok Kumar, deed writer. It was accepted by Sarasti Devi. The gift deed was presented before the Sub-Registrar for registration. The Sub-Registrar, Haroli told the plaintiff and his wife Sarasti in the presence of the marginal witnesses that they should present the gift deed for registration on some other date as he was busy in some other work. The fact of the matter is that the gift deed could not be registered on 02.01.1991. The defendant No. 1 was also present at the time of execution of the gift deed. He was familiar and close to defendant No. 4, Sh. Ashok Kumar. The defendant No. 4, deed writer was aware of the fact of the execution of the gift deed and its nonattestation on 02.01.1991. On 03.01.1991, the defendant No. 1 came to the plaintiff in his house while other family members were away and told the plaintiff that Sub Registrar, Haroli is known to him and he could help him in getting the gift deed attested and registered by the Sub Registrar, Haroli. The plaintiff accompanied the defendant No. 1 to Haroli with gift deed. The defendants No. 1 to 4 were aware about the execution of the gift deed. The plaintiff accompanied the defendant No. 1 to Haroli with gift deed. The defendants No. 1 to 4 were aware about the execution of the gift deed. They asked the plaintiff to sit nearby and got some writing from the plaintiff and produced the plaintiff before the Sub Registrar, Haroli, where the plaintiff was told by the Sub Registrar, Haroli that the document is registered. On 03.01.1991, the sale deed and a special power of attorney was got executed by the defendant No.4. The defendants No. 1 to 4 mis-represented and defrauded the plaintiff to procure the alleged sale deed regarding the suit land and special power of attorney collusively with concealment of the fact of execution of the gift deed in favour of Sarasti wife of the plaintiff. On 07.01.1991, the plaintiff went to Haroli in the office of Sub-Registrar to get the gift deed, but the Clerk of the Sub Registrar returned the gift deed to the plaintiff on the ground that Sub-Registrar has refused to register it as the plaintiff has already sold the land in question to Kartar Chand, the defendant No. 1 by executing the sale deed. Plaintiff thereafter enquired from the defendant No. 4, deed writer about the alleged sale as well as from the office of Sub Registrar and then came to know about the execution and registration of sale deed in favour of defendant No. 1 and special power of attorney in favour of defendant No. 2. The plaintiff never executed any sale deed and special power of attorney and never received any consideration from the defendant No. 1. 3. The suit was contested by the defendants No. 1 to 4 by filing written statement. On merits, it was admitted that Dalipa was the owner of the suit land, but after the execution of the sale deed, dated 03.01.1991, the defendant No. 1 has become absolute owner in possession of the suit land and the plaintiff was out of possession. It was alleged that the plaintiff executed the sale deed with his free consent and in sound disposing mind and full amount of consideration was received by Dalipa and the same fact was also admitted before the Sub Registrar. 4. Replication was filed by the plaintiff. The issues were framed by the learned Trial Court on 23.12.1998. It was alleged that the plaintiff executed the sale deed with his free consent and in sound disposing mind and full amount of consideration was received by Dalipa and the same fact was also admitted before the Sub Registrar. 4. Replication was filed by the plaintiff. The issues were framed by the learned Trial Court on 23.12.1998. The suit was dismissed by the learned Sub Judge (II), Una, District Una, H.P. on 19.12.2000. 5. Plaintiff Dalipa died on 01.08.1991 and his daughter Smt. Satya Devi was brought on record. Proforma defendant No. 5 Smt. Sarasti Devi was also added as plaintiff. Sarasti has already filed the written statement admitting the case of the plaintiff (Dalipa). 6. Plaintiffs filed an appeal before the learned Additional District Judge, Una, District Una, H.P. He dismissed the same on 30.04.2005. Hence, this Regular Second Appeal. 7. This Regular Second Appeal was admitted on the following substantial question of law on 18.05.2015 “Whether in view of the execution of Ex.P-1, execution of D-1 at later point of time will not convey any title in law to defendants but courts below having over looked the said aspect of the matter vitiated the impugned judgment and decrees?” 8. Mr. Ajay Sharma, learned counsel for the plaintiffs has vehemently argued that Ex.-D1, sale deed, dated 03.01.1991, is sham transaction. He then contended that Dilapa, predecessor-in-interest of the plaintiffs had already executed a gift deed, dated 02.01.1991, in favour of plaintiff No. 2, Sarasti Devi, thus, there was no occasion for him to sell the suit land by way of Ex.-D1. He lastly contended that the execution of sale deed was the result of fraud played upon his clients. 9. Mr. N.K. Thakur, learned Senior Advocate, for respondents No. 1 and 2 supported the judgments and decrees passed by both the Courts below. 10. I have heard the learned counsel for the parties and gone through the pleadings and the records, carefully. 11. PW-1, Kashmiri Lal, has deposed that he knew Dalipa. Sarasti Devi is his widow. He has only one daughter, Satya. He further deposed that Dalipa has taken him and Balwan, Lambardar to Haroli for the registration of gift in favour of his wife. His wife was also with him. It was in the month of January, 1991 that the gift deed Ex. P1 was scribed by deed writer, Ashok Kumar. He has only one daughter, Satya. He further deposed that Dalipa has taken him and Balwan, Lambardar to Haroli for the registration of gift in favour of his wife. His wife was also with him. It was in the month of January, 1991 that the gift deed Ex. P1 was scribed by deed writer, Ashok Kumar. The contents of the same were read over and explained to Dalipa. Dalipa has put his thumb impression on the gift deed and thereafter, he and Balwan Singh put their signatures on the same. Sarasti also accepted the same and put her thumb impression on the document. He alongwith Sarasti and Balwan Singh went to the office of Sub Registrar for registration of the same. However, the Sub Registrar told them that it was not the day meant for registration and he was going out of station. He told that them to come on monday. Dalipa presented the gift before the Sub Registrar, but the Sub Registrar told them that due to subsequent development, the gift deed could not be registered. He also deposed that the land was in possession of Sarasti and it never came in possession of Kartar Chand. In his cross-examination, he has categorically deposed that the relationship of Satya Devi with her parents was cordial. He did not know why the Will was not executed, volunteered that he wanted to execute a gift deed to avoid that his son-in-law may not sell the same. 12. PW-2, Balwan Singh, has corroborated the statement of PW- 1. He has signed the gift deed as a marginal witness. The same was presented before the Sub Registrar. The Tehsildar was moving out and told them that they should come on any other date. Thereafter, on monday, he alongwith Dalipa, Sarsati and Kashmiri Lal, went to the office Sub Regisatrar. The Sub Registrar told them that the registry was already effected and, thus, the gift deed could not be executed. Dalipa told him that he had not got any registry executed. In his cross-examination, he deposed that Ashok Kumar was the deed writer of the gift deed. 13. PW-3, Sarasti Devi has deposed that she alongwith marginal witnesses Kashmiri and Balwan, Lamberdar, went to Haroli for the purpose of execution of gift deed. The gift deed was got scribed from the deed writer. The Officer told them that they should come on monday. 13. PW-3, Sarasti Devi has deposed that she alongwith marginal witnesses Kashmiri and Balwan, Lamberdar, went to Haroli for the purpose of execution of gift deed. The gift deed was got scribed from the deed writer. The Officer told them that they should come on monday. They went on monday alongwith Kashmiri Lal. However, they came to know that Kartara had already got something executed. No consideration was accepted from Kartara. She was in possession of the suit land. In her cross-examination, she has deposed that Dalipa was in his senses. He has never sold any land in his life. 14. PW-4, Ashok Kumar has admitted that he has scribed the Will in favour of Sarasti Devi in the presence of Sh. Balwan Singh and Kashmiri Lal. The contents of the same were read over and explained to Dalipa. He accepted the same and thereafter put his thumb impression on the same. Sarasti Devi also accepted the same by putting her thumb impression. He has prepared two copies of the Will. One of the copy remained in the office of Sub Registrar. 15. PW-5, Hari Das deposed that the Naib Tehsildar, Haroli has powers of Sub Registrar. PW-6 Kapil Dev has deposed that Dalipa has no land other than the land mentioned in Jamabandis for the years 1987-88 and 1997-98. 16. Ashok Kumar has again appeared as DW-1. He deposed that the sale deed, Ex.D1 was scribed by him on 03.01.1991 at the instance of Dalipa. He has signed the same after admitting the contents of the same to be true and correct. He has identified Ex. D1. 17. DW-2, Rachhpal Singh deposed that he has put his signatures on Ex. D1 as a marginal witness. DW-3 Uttam Chand has signed Ex. D1 as a marginal witness. DW-4, Kartar Chand deposed that he has purchased an area of land measuring 10 Kanals 5 Marlas for a consideration of `11000/- from Dalipa. The sale deed Ex.D1 was signed by the marginal witnesses. Dalipa has also put his thumb impression on the same. The sale deed was produced before the Sub Registrar. The contents of the same were read over and explained by the Sub Registrar to Dalipa and he after admitting the same to be true, has put his thumb impression on the same. According to him, Dalipa has also executed a power of attorney in favour of Uttam Chand Ex. The sale deed was produced before the Sub Registrar. The contents of the same were read over and explained by the Sub Registrar to Dalipa and he after admitting the same to be true, has put his thumb impression on the same. According to him, Dalipa has also executed a power of attorney in favour of Uttam Chand Ex. DW2/A. In his cross-examination, he has admitted that Dalipa was an agriculturist and he has no other source of income. 18. What emerges from the analysis of the statements is that Dalipa has executed a gift deed, dated 02.01.1991. It was scribed by PW- 4 Ashok Kumar. PW-1 Kashmiri Lal and PW-2 Balwan Singh have signed the same as a marginal witnesses. The gift deed was also accepted by the wife of Dalipa. It was presented before the Sub Registrar. The Sub Registrar told them that he was going out of station and they should come on monday. They went on monday to the office of Sub Registrar, Haroli. He told them that the same could not be registered, since a sale deed has already been registered in the name of Kartar Chand. 19. Mr. Ajay Sharma, learned counsel for the appellants has vehemently argued that Ex. D1, sale deed, dated 03.01.1991, is an out come of fraud. According to him, his client has never sold the land vide Ex. D1. According to him, fraud has been played upon Dalipa, who was an illiterate person by making him to understand that the document which was presented before the Sub Registrar, was a gift deed only. 20. The sale deed Ex. D-1 was also scribed by PW-4 Ashok Kumar. DW-2, Rachhpal Singh and DW-3, Uttam Chand are the marginal witnesses. The power of attorney was also executed in favour of Uttan Chand vide Ex. DW2/A. The sale deed Ex. D1 was presented before the office of Sub Registrar and accordingly registered. Dalipa has only one daughter, Satya Devi. He was not owner of any land other than the land as per the details given in Jamabandis for the years 1987-88 and 1997-98. Even, DW-1 Ashok Kumar has admitted in his cross-examination that Dalipa has no other source of income. The relationship between Satya Devi and her parents were cordial. Dalipa has only one daughter, Satya Devi. He was not owner of any land other than the land as per the details given in Jamabandis for the years 1987-88 and 1997-98. Even, DW-1 Ashok Kumar has admitted in his cross-examination that Dalipa has no other source of income. The relationship between Satya Devi and her parents were cordial. The plaintiff has, in fact, gone to Haroli on 02.01.1991 for the registration of gift deed, but he was apprised by the Sub Registrar that the same could not be done and they should come by monday, but by that time the sale deed vide Ex. D1 was already registered. There was no occasion for the plaintiff to sell the only piece of land available with him to defendant No. 1. The only source of livelihood for him and his wife was the land which was alleged to have been sold to defendant No. 1 for consideration of `11000/-. 21. Mr. N.K. Thakur, learned Senior Advocate, has vehemently argued that the plaintiff Dalipa never wanted the land to go in the hands of his son-in-law. Satya Devi is the only daughter of plaintiff and after the death of the plaintiff and her mother, the land was bound to come to her, as legal heir. Once the plaintiff has gone to Haroli for the registration of gift deed, which was scribed by PW-4 Ashok Kumar in the presence of PW-1 Kashmiri Lal and PW-2 Balwan Singh, then where was the occasion for him to sell the land on 03.01.1991 to defendant No. 1. There is considerable force in the contention of Mr. Ajay Sharma, learned counsel for the appellants that in fact his client has been mislead by making him to believe that the documents which were presented before the Sub Registrar were qua the gift deed and not with respect to the sale deed. The relations between Satya Devi and her parents were cordial as per the statement of PW-1 Kashmiri Lal. It has also come on record the Sarasti Devi remained in possession of the suit land. Moreover, the gift deed is prior in time and the sale deed is latter in time. The execution of the Special Power of Attorney, dated 03.01.1991 and sale deed, dated 03.01.1991, Ex. D1, have been procured by defendant No. 1 by playing fraud and mis-representation upon the plaintiff by defendants. 22. Moreover, the gift deed is prior in time and the sale deed is latter in time. The execution of the Special Power of Attorney, dated 03.01.1991 and sale deed, dated 03.01.1991, Ex. D1, have been procured by defendant No. 1 by playing fraud and mis-representation upon the plaintiff by defendants. 22. In Chennupati Venkatasubbamma Vs. Nelluri Narayanaswami, AIR 1954 Madras 215, it has been held that what the law requires is acceptance of the gift after its execution though the deed may not be registered. The learned Single Judge has held as under: “9. This finding is enough to dispose of this second appeal. But even on the other question of fraud and misrepresentation the finding of the learned Judge cannot be said to be justified in law. He seems to think that the evidence of D.Ws. 4, 8 and 9 which they speak to the complaint of Ramachandraiah immediately the documents was received from the post office and was read over to him was inadmissible in evidence as a statement of a deceased person which could not be brought under S.32, Evidence Act. What is sought to be established by the oral evidence is that immediately after the document was received Ramachandriah complained to these people that he was deceived or defrauded by Subbaiah. It affords evidence of his conduct immediately after receipt of the document. The statements are not attempted to be proved as statements made by Ramachandriah but only to establish the conduct of Ramachandriah. I do not see any legal object for the admission of these statements in evidence and there is no reason to eschew the evidence of D. Ws. 4, 8 and 9 on that account. The learned Judge was also of the opinion that there was no definite pleading regarding the fraud that was complained of by the defendants. The fraud was categorically and clearly stated by Ramachandriah himself in Ex. B, and that is the case which the defendants attempted to prove in the trial Court and which was accepted by it. These defects would undoubtedly warrant a reconsideration of the evidence by the lower appellate Court. It is no doubt true that the learned Judge recorded an alternative finding even on the assumption that the evidence of D.Ws. 4,8 and 9 was admissible. These defects would undoubtedly warrant a reconsideration of the evidence by the lower appellate Court. It is no doubt true that the learned Judge recorded an alternative finding even on the assumption that the evidence of D.Ws. 4,8 and 9 was admissible. But, it is rather difficult to separate how much of his finding was coloured by the fact that his evidence was in admissible and that the pleading was inadequate or insufficient. However, it is unnecessary to adopt that course, as in my opinion the finding on the first point is sufficient to dispose of this second appeal. PW-3 Sarsati Devi has already accepted the gift deed and put her thumb impression on the gift deed Ex. P1. It was attested by two witnesses, namely, Kashmiri Lal (PW-1) and Balwan Singh (PW-2).” 23. Their Lordships of the Hon’ble Supreme Court in Vidhyadhar Vs. Mankikrao, AIR 1999 Supreme Court 1441, has held that in order to constitute a “sale”, the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in present or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record. “37. The real test is the intention of the parties. In order to constitute a “sale”, the parties must intendd to transfer the ownership of the property and they must also intend that the price would be paid either in praesennti or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence of record. 38. Applying these principles to the instant case, it will be seen that defendant No. 2 executed a sale deed in favour of the plaintiff, presented it for registration, admitted its execution before the Sub-Registrar before whom remaining part of the sale consideration was paid and, thereafter, the document was registered. The additional circumstances are that when the plaintiff instituted a suit on the basis of his title based on the aforesaid sale deed, defendant No. 2, who was the vendor, admitted in his written statement, the whole case set out by the plaintiff and further ad mitted in the witness box that he had executed a sale deed in favour of the plaintiff and had also received full amount of consideration. These facts clearly establish that a complete and formidable sale deed was executed by defendant No. 2 in favour of the plaintiff and the title in the property passed to plaintiff. The findings recorded by the High Court on this question cannot, therefore, be up held. 39. The judgment of the High Court on this point is also erroneous for the reason that it totally ignored the provisions contained in Section 55(4) of the Transfer of Property Act which are set out below:- “55. In the absence of the contract to the contrary the buyer and seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such as are applicable to the property sole: (1) to (3)…………… (4) The seller is entitled- (a) ………………………….. (b) Where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of nonpayment, for the amount of the purchase-money, or nay part thereof remaining unpaid, and for interest on such amount or part from th the date on which possession has been delivered. (5) to (6)…………..” In the instant case, since the plaintiff Dalipa has already executed the gift in favour of his wife, the intention cannot be inferred for the sale of the same property vide Ex. D1, moreover, when he would have been rendered landless. 24. Accordingly, the Courts below have not correctly appreciated the oral as well as documentary evidence. It is reiterated that there was no occasion for the plaintiff to sell the land once the gift deed Ex. P1, dated 02.01.1991, was scribed. 25. Accordingly, the Regular Second Appeal is allowed and the judgments and decrees passed by both the Courts below are set aside. Consequently, the Civil Suit No. 80/1991 is decreed and the sale deed Ex. D1, dated 03.01.1991, is declared null and void and the defendant No. 1 is restrained from interfering in the possession of the plaintiff Sarasti Devi. The miscellaneous application(s), if any, also stand(s), disposed of. No costs.