Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1211 (ORI)

Laxman Naga v. Baidehi Kudei

2017-10-27

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This appeal by the plaintiffs against the judgment and decree passed by the learned Additional District Judge, Angul in T.A.No.36 of 1997 reversing the judgment and decree passed by the learned Civil Judge (Sr.Division), Angul in T.S.No.181 of 1993. 2. The case of the plaintiffs is that their father and Jaladhar Naga are brothers. The suit lands belong to Jaladhar. Jaladhar died leaving behind his widow Sambari, defendant no.2. Sambari was suffering from cancer. They spent money for her treatment. Taking advantage of helplessness of Sambari, defendant no.1 took her to her house and obtained a sale deed by practicing fraud. No consideration was paid. When the land was attached in a proceeding under Section 146 Cr.P.C, they filed the suit for declaration of title and possession over the suit land. 3. The case of defendant no.1 is that after death of Jaladhar, she was maintaining Samabri. Sambari sold the land on 13.7.1993 to her for an amount of Rs.20,000/-for legal necessity. Thereafter she delivered possession. The plaintiffs have no semblance of right over the suit land. 4. Defendant no.2 died during pendency of the suit, where after defendant nos.2(a) and 2(b) were substituted. They filed the written statement supporting the case of the plaintiffs. It was pleaded that Sambari executed a Will in their favour. 5. On the inter se pleadings of the parties, the learned trial court framed four issues. Both parties led evidence, oral and documentary to substantiate their case. Learned trial court held that defendant no.1 had obtained the sale deed from defendant no.2. The sale deed was invalid. The plaintiffs have right, title and interest over the suit land. Held so, it decreed the suit. Felt Aggrieved, defendant no.1 filed T.A.No.36 of 1997 before the learned Additional District Judge, Angul, which was allowed. 6. The Second Appeal was admitted on 29.8.2008 on the substantial questions of law enumerated in appeal memo. The same are:- “1. For that the judgment and decree passed by the lower appellate court are contrary to law and liable to be set aside. 2. For that the findings of the lower appellate court are not based on proper appreciation of the oral and documentary evidence on record, the facts and circumstances of the case are vitiated in law. 3. For that the judgment and decree passed by the lower appellate court are contrary to law and liable to be set aside. 2. For that the findings of the lower appellate court are not based on proper appreciation of the oral and documentary evidence on record, the facts and circumstances of the case are vitiated in law. 3. For that as the defendant no.1 took Sambari to her house hardly two months before her death and then to Athmallik town on the plea of better treatment, snatched away the sale deed in connivance with her husband, a Government servant, the lower appellate Court ought to have declared the sale deed to be illegal and invalid, as the defendant no.1 had failed to establish that the sale deed was not executed by exercise of fraud, coercion, undue influence and Sambari, an old, illiterate and ailing rustic woman had knowledge and aware of the nature and character of the transaction. 4. For that as Sambari had a Savings Bank Account in the local post Office from which she withdraw a sum of Rs.280/-on 22.3.93, balance of Rs.23.85p and the alleged consideration of Rs.20,000/-was not deposited by her and the money was not available with her during her life time, the lower appellate court ought to have held that there was no passing of transaction and the sale deed was illegal and void. 5. For that the plaintiffs being the next reversioners and as Sambari was being looked after by them, and as Sambari duly, legally and validly executed the will in their favour, the lower appellate court ought to have held that the plaintiffs had the right to institute the suit and the suit was maintainable. 6. For that as the sale deed in favour of the defendant no.1 was obtained in a surreptitious and suspicious manner and nobody knew of the alleged sale deed, the lower appellate court ought to have held that the sale deed (Ext.A) is illegal and liable to be set aside. 7. For that in the facts and circumstances of the case as passing of consolidation is an important factor to establish that the sale deed was not fraudulently and illegally obtained by the defendant no.1, the Court below erred in law in ignoring to consider the question of legal necessity and passing of consideration. 8. 7. For that in the facts and circumstances of the case as passing of consolidation is an important factor to establish that the sale deed was not fraudulently and illegally obtained by the defendant no.1, the Court below erred in law in ignoring to consider the question of legal necessity and passing of consideration. 8. For that Sambari having duly, legally and validly executed the registered Will in favour of the plaintiffs, the lower appellate Court to have held that Sambari being unaware that she was executing the sale deed and the nature and character of the transaction, the lower appellate Court erred in law in passing the impugned judgment and decree. 9. For that the impugned judgment and decree passed by the lower appellate Court are otherwise illegal and liable to be set aside.” 7. Heard Mr.S.P.Das along with Mr.P.K.Singh, learned Advocate for the appellants and Mr.Swayambhu Mishra, learned Advocate on behalf of Mr.Gautam Mukarjee, Advocate for respondent no.1. 8. Learned counsel for the appellants submitted that defendant no.2 was suffering from cancer. She was not in a fit state of mind. The husband of defendant no.1 was a distant relative of defendant no.2. He was serving as a peon in Kishorenagar Block. He brought defendant no.2 to Athamallik for better treatment. Taking advantage of helplessness of defendant no.2, he obtained the sale deed in favour of his wife, defendant no.1. No consideration was paid. Defendant no.1 played fraud on defendant no.2 and obtained the sale deed. The learned trial court, on analysis of the evidence on record, set aside the sale deed and decreed the suit. But the said decree was reversed in appeal on untenable ground. 9. Conversely, the learned Advocate for respondent no.1 submitted that defendant no.2 was suffering from cancer. For her treatment, she sold the suit schedule land to defendant no.1 for a valid consideration. Possession was delivered to defendant no.1. Thereafter defendant no.2 mutated the land in favour of defendant no.1. He further contended that the plaint lacks detailed particulars of fraud. He relied on a decision of the apex Court in the case of Bishundeo Narain and another Vs. Seogeni Rai and Jagernath, AIR 1951 SC 280 . 10. Order 6 Rule 4 of C.P.C. provides thus: “4. Thereafter defendant no.2 mutated the land in favour of defendant no.1. He further contended that the plaint lacks detailed particulars of fraud. He relied on a decision of the apex Court in the case of Bishundeo Narain and another Vs. Seogeni Rai and Jagernath, AIR 1951 SC 280 . 10. Order 6 Rule 4 of C.P.C. provides thus: “4. Particulars to be given where necessary.-In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading.” 11. The apex Court in the case of Bishundeo Narain (supra) held as follows: “We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” (emphasis laid) 12. Pleading must set forth the full particulars of fraud. On a cursory perusal of the plaint, it is evident that the plaint lacks detailed particulars of fraud. The learned appellate court, on an analysis of the evidence on record and pleadings, came to hold that the suit land belongs to Jaladhar, husband of defendant no.2. After his death, defendant no.2 became the absolute owner of the property. Defendant no.2 was suffering from cancer. She was in need of money. The sale was for legal necessity. It further held that execution of Will was not duly proved. After his death, defendant no.2 became the absolute owner of the property. Defendant no.2 was suffering from cancer. She was in need of money. The sale was for legal necessity. It further held that execution of Will was not duly proved. None of the witnesses deposed that defendant no.2 understood the contents of the Will and signed in it and that the attesting witnesses signed in presence of the testator. There is no evidence that witnesses and testator singed each other in presence of the testator. It disbelieved the execution of Will by defendant no.2 and held that there is no material that defendant no.2 executed a Will. There is no perversity in the findings of the appellate court. The substantial questions of law are answered accordingly. 13. In the result, the appeal fails and is dismissed. Consequently, the suit is dismissed. No costs.