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2016 DIGILAW 574 (HP)

Savitri v. Mahanti

2016-04-27

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. The plaintiff/appellant (herein after referred to as plaintiff), has preferred the instant Regular Second Appeal under Section 100 of the Code of Civil Procedure against the concurrent findings recorded by the Courts below, whereby her suit for declaration with consequential relief of permanent prohibitory injunction and in the alternative for possession came to be dismissed. 2. The predecessor-in-interest of the plaintiff filed a suit for declaration to the effect that the sale deed dated 27.12.1995 executed by the original plaintiff Smt.Shardho in favour of defendant was illegal, null and void and in the alternative a decree for possession was prayed for. 3. Briefly stated the case of the plaintiff was that the suit land as shown in para 1 of the plaint was owned and possessed by deceased plaintiff, who was her mother. It was claimed that the original plaintiff was deaf and dumb and could not understand her good and bad, as she was born mentally ill. Smt. Savitri, the present appellant claimed herself to be the next friend of the plaintiff and on coming to know on 27.12.1995 that the defendant had got a sale deed registered in his favour by obtaining thumb impression of Shardho, filed the suit for declaring the sale deed as illegal, null and void. 4. The defendants/respondents opposed the suit by filing written statement, wherein preliminary objections regarding lack of maintainability of the suit was taken. On merits, it was asserted that Smt.Sawan Dei was also born to the plaintiff Shardho from the loin of Sobhu, resident of village Kasla. Plaintiff used to reside with her husband Sobhu and daughter Sawan Devi in village Kasla. Natural guardian of Smt. Shardho, her husband and daughter were present at the time of execution of the sale deed and were looking after the interest of Smt. Shardho for all intends and purposes. Since Smt. Shardho was residing with her husband, therefore, the suit land was not beneficial to Smt. Shardho, hence she sold the same in favour of the defendant. It was averred that the suit in fact was filed with mala-fide intention to extract money from the defendant. The defendant has already paid a sum of Rs. 16,000/- and the Sub Registrar had explained the deed to the executants who understood the same and thereafter the deed was registered. Hence it was prayed that the suit be dismissed. It was averred that the suit in fact was filed with mala-fide intention to extract money from the defendant. The defendant has already paid a sum of Rs. 16,000/- and the Sub Registrar had explained the deed to the executants who understood the same and thereafter the deed was registered. Hence it was prayed that the suit be dismissed. 5. Replication denying the contents of the written statement affirming those of the plaint was filed. On 11.10.1996, the learned trial Court framed the following issues:- “1. Whether the sale deed dated 27.12.1995 executed by the plaintiff in favour of the defendant is void, illegal, inoperative, ineffective document, as alleged? OPP 2. Whether the plaintiff is entitled for the relief of injunction? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff have no cause of action and locus standi to file the present suit? OPD 5. Whether this suit is not properly valued for the purpose of Court fee? OPD 6. Relief.” 6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit, constraining the plaintiff to file an appeal before the first Appellate Court, which too vide judgment and decree dated 24.11.2001 came to be dismissed. Undeterred, the plaintiff has filed the instant appeal, which on 5.9.2002 came to be admitted on the following substantial question of law:- “Whether both the Courts below have misread and mis-appreciated the oral and documentary evidence on record to come to the conclusion that the sale deed dated 27.12.1995 executed by Smt. Shardho in favour of defendant Chhittar was not illegal, null and void, for the reason that she lacked mental faculty?” I have heard learned counsel for the parties and have also gone through the records of the case. 7. At the outset it may be noticed that there is a general misconception that a deaf and dumb person is essentially an idiot. This misconception requires to be dispelled and this fact has been duly noticed by the Hon’ble Supreme Court in State of Rajasthan Vs. Darshan Singh (2012) 5 SCC 789 in the following terms:- “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. This misconception requires to be dispelled and this fact has been duly noticed by the Hon’ble Supreme Court in State of Rajasthan Vs. Darshan Singh (2012) 5 SCC 789 in the following terms:- “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed.……..” 8. In view of the aforesaid exposition of law and even generally otherwise, a deaf and dumb person would not essentially be an idiot, rather as observed by the Hon’ble Supreme Court, it has been revealed that the persons affected with such calamities are generally more intelligent, and to be susceptible to far higher culture than one was once supposed. 9. The plaintiff has miserably failed to place on record any material, which may suggest even remotely that Smt.Shardho was an idiot, though there is ample amount of evidence on record to suggest that she was deaf and dumb. Though the plaintiff as PW-1 and another witness Sh.Dhani Ram, PW-2 did try to lead oral evidence to the effect that Shardho was not only deaf and dumb, but idiot, but no concrete proof in this regard has been placed by them. 10. Whereas, the defendants have examined as many as five witnesses, whose statements clearly establish on record that the deceased Shardho was far more intelligent then what is sought to be made out by the plaintiffs. 11. DW-1 Chhittru had stated that Shardho Devi was his mother in law and she was married with Sh. Bhallu. He further stated that after the death of Sh.Bhallu her property devolved upon his wife Mohandi and Savitri. He further stated that Shardho Devi had thereafter remarried with Sobhu and they had a daughter Sawan Dei. He further stated that Shardho used to reside in village Kalsa and told him to purchase the land. He went to village Kalsa and the land was agreed to be sold for a consideration of Rs.16,000/-. He further stated that the husband and son in law of Shardho were present on the spot. He further stated that Shardho used to reside in village Kalsa and told him to purchase the land. He went to village Kalsa and the land was agreed to be sold for a consideration of Rs.16,000/-. He further stated that the husband and son in law of Shardho were present on the spot. He acknowledged that Shardho was deaf and dumb, but the Petition Writer has read over the contents of sale deed with signs in the presence of marginal witnesses. He further stated that Shardho had admitted the contents of sale deed as correct and marked her thumb impression in the presence of the marginal witnesses before the Sub Registrar, who attested the deed and also appended the certificate therein as contemplated under the Indian Registration Act. 12. DW-2, Baga Ram Chowdhari, the then Sub Registrar had stated that he has seen the original sale deed Ex. D-1 and further stated that the contents of this deed has been read over to the vendor and vendee, who after admitting the contents thereof had put their thumb impressions on the same. He further stated that he had also given the certificate on the sale deed as required under the Registration Act in the case of a deaf and dumb executant. 13. DW-3, Ram Prakash, petition writer, Nalagarh stated that he had seen the sale deed Ex. D-1, which had been written by him at the instance of Shardho. He further stated that the contents of the sale deed were explained to Shardho by him by way of signs. 14. DW-4, Ishar Singh has stated that document Ex. D-1 was prepared in his presence and he has signed the same as marginal witness. He further stated that Shardho was explained the contents of document by way of signs in the presence of her son in law and daughter. He further stated that she had marked her thumb impression after admitting the contents of the sale deed to be correct and thereafter the document was presented before the Sub Registrar and Rs. 10,000/- was paid to the vendor in presence of Sub Registrar, whereas a sum of Rs. 6,000/- were already paid earlier. 15. DW-5, Smt. Sawan Devi is the daughter of Shardho Devi and stated that Shardho Devi along with her husband had been residing at village Kasla. 10,000/- was paid to the vendor in presence of Sub Registrar, whereas a sum of Rs. 6,000/- were already paid earlier. 15. DW-5, Smt. Sawan Devi is the daughter of Shardho Devi and stated that Shardho Devi along with her husband had been residing at village Kasla. She further deposed that Shardho could properly understand and communicate by language of signs and further stated that she had visited her husband at the time of execution of sale deed and the contents thereof had been explained to the petition writer and the Sub Registrar by the vendor Shardho by way of sign language. This is the entire evidence led by the parties. 16. As already observed earlier, the appellant has failed to place on record any evidence, which may even remotely suggest that Shardho lacked mental faculty or the same were impaired or that she did not understand the contents of the documents she was executing. Once it is so, then the transaction affected by, cannot be impeached and be termed as illegal, much less null and void. The substantial question of law is accordingly answered. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.