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2017 DIGILAW 133 (GUJ)

Namdarbhai Dhulabhai Malek v. Fatimbibi

2017-01-19

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. Both the Second Appeal are heard together as it involves the issues between the same parties. 2. Both the Second Appeals are filed challenging the judgment and order rendered in Regular Civil Appeal No. 10 of 2014 and Regular Civil Appeal No. 9 of 2014 respectively by the learned Additional District Judge, Kheda at Nadiad dated 3.9.2015 confirming the judgment and order rendered in Regular Civil Appeal No. 203 of 2010 [Old No. 137 of 2002] and Regular Civil Appeal No. 12 of 2010 [Old No. 136 of 2002] on the substantial questions of law posed as follows: "(a) The appellant is entitled to enjoy his right as a legal owner of the suit property, which is purchased by way of Registered Sale Deed. (b) The appellant is the legal owner of the suit property, which is purchased by executing the Registered Sale Deed as per Sections 44 and 54 of the Transfer of property Act. (c) The suit property was sold by the plaintiff on 19.01.2002 by way of Registered sale deed and will was executed on 13.08.2002, therefore, no right, title of the plaintiff is over the suit property and not with the subject matter of the will. (d) The plaintiff's heirs have not obtained probate certificate from the competent court and proceeding of the probate is pending before the Ld. Trial court, therefore, the plaintiffs have no right to defend the suit against the appellate - orig. defendant. (e) Whether the learned both the courts below committed a substantial error of law in interpreting the provisions of the Evidence Act, particularly Section 33 as well as Section 80 of the Evidence Act? (f) Whether the learned both the courts below committed a substantial error of law in interpreting the provisions of the Contract Act, particularly Section 13, 14, 15, 16 and 17 of the Contract Act. (g) Whether the learned both the courts below committed a substantial error of law in interpreting the provisions of the Transfer of Property Act, particularly Section 31 and 54 of the Transfer of Property Act. (h) Whether the plaintiff is entitled to a decree on the weakness of defendant's evidence. (i) Whether the plaintiff has any locus or right to institute a suit merely on the basis of will, in absence any probate order of such will. (h) Whether the plaintiff is entitled to a decree on the weakness of defendant's evidence. (i) Whether the plaintiff has any locus or right to institute a suit merely on the basis of will, in absence any probate order of such will. (j) Whether the learned both the courts below committed a substantial error of law in shifting the burden of proving the good faith of the transaction on the defendant, despite the fact that there is registered sale deed duly executed in favour of the defendant. (k) Whether the plaintiff has proved that the defendant has committed fraud and by way of fraud, the defendant has executed registered sale deed in his favour. (l) Whether the lower courts have misinterpreted the document at Exh. 90 as well as Exh. 92 particularly the document at Exh. 90 which is registered sale deed duly executed by decd. Fatemabibi. (m) Whether the lower courts have committed an error in coming to the conclusion that the registered sale deed at Exh. 90 is executed by way of fraud and there is no consideration paid to the decd. Fatmabibi. (n) Whether the lower courts have committed an error in not properly considering the oral as well as documentary evidence on record. (o) Whether the lower courts have committed a substantial error of law in not properly considering the aspect of locus of the plaintiff." 3. Heard learned Counsel Shri Kamlesh B. Mehta for the Appellants/Original Defendants. 4. Learned Counsel Shri Mehta has referred to the papers and submitted that the first appellate court has committed an error while framing the issues in the manner that the burden is cast upon the defendants. Learned Counsel Shri Mehta also submitted that the things which are required to be proved by the Plaintiffs are sought to be proved by the defendants and thereby the error has been committed. He also referred to the papers, particularly the observations made by both the courts below. He pointedly referred to the aspect of possession and submitted that the defendants are said to have been in possession and the courts below have failed to appreciate the material and evidence on record. He also pointedly referred to the questions of law posed in the Second Appeals and referred to the document at Exh. 92 and submitted that it has been misconstrued. He also pointedly referred to the questions of law posed in the Second Appeals and referred to the document at Exh. 92 and submitted that it has been misconstrued. Learned Counsel Shri Mehta submitted that the error of law which has been committed by both the courts below is whether the deceased Fatimabibi could have executed the will even after the disposal of the suit property by a registered sale deed. Learned Counsel Shri Mehta emphasized that in light of the provisions of the Transfer of Property Act, particularly Section 31 and 54 of the Transfer of Property Act, once the sale deed is executed, the property will stand transferred to the transferee and therefore the will could not have been executed by the deceased. Learned Counsel Shri Mehta therefore strenuously submitted that these aspects have not been properly appreciated in light of the Evidence Act. 5. Learned Counsel Shri Mehta submitted that the lower appellate court has also committed an error while appreciating the evidence and the submissions which have been raised. He therefore submitted that the present Second Appeals may be Admitted for the substantial questions of law posed by the Appellants in the Second Appeals. 6. Learned Counsel Shri Mehta has referred to and relied upon the judgment of the Hon'ble High Court of Telangana in case of G Shravan Kumar v. D Srinivas (Died) reported in 2015 (1) ALT 497 . Similarly, he has also referred to and relied upon the judgment in case of Kutcherlakota Vijaylakshmi v. Radimeti Rajaratnamba reported in 1990 (2) ALT 100 and also the judgment of the High Court of Allahabad in case of Rajendra Prakash v. Babita Gupta Alias Pratiba Gupta reported in 2000 Law Suit (All) 323. 7. Learned Counsel Shri J.A. Adeshra for the Respondents however resisted and submitted that the concurrent findings of facts may not be disturbed in the present Second Appeals. He referred to the scope of exercise discretion in Second Appeal under Section 100 of the Code and submitted that the concurrent findings of facts may not be disturbed. He also submitted that it is not in dispute that the will has been executed by the deceased and the Opponents have been bequeathed by will and the competent court has issued probate in favour of the Respondent. He also submitted that it is not in dispute that the will has been executed by the deceased and the Opponents have been bequeathed by will and the competent court has issued probate in favour of the Respondent. He emphasized that on the basis of will the probate has been obtained which was also contested by the Appellants herein and, after again remanding the matter, the probate has been granted. Learned Counsel Shri Adeshra submitted that the will has not been challenged and probate has been granted. Such contentions which are sought to be raised based on the so-called registered sale deed are required to be examined, particularly on the aspect of fraud. He emphasized that both the courts have considered this aspect of execution of a document/registered sale deed by fraud on a deceased lady who was a poor and illiterate lady and in the guise of executing some document for the purpose of loan, signatures are said to have been obtained which have been considered. Learned Counsel Shri Adeshra therefore submitted that both the courts below have dealt with this aspect of genuineness of the registered sale deed which is said to have been executed in favour of the Appellants and have given the findings after considering the aspect of consideration as well as the evidence of the parties who are said to have remained present and also the witnesses examined by the Appellant/Original Defendant from the office of the Registrar. Learned Counsel Shri Adeshra therefore submitted that the present Appeal may not be admitted. 8. In view of these rival submissions, it is required to be considered whether the present Second Appeals deserve consideration. 9. The first aspect which is required to be considered is the scope of exercise of discretion under Section 100 of the Code after the amendment in the Code in 1976. 10. It is well accepted that normally the court would not interfere with the concurrent findings of facts. It is also well settled that unless any substantial question of law is said to have been involved, the court would not disturb the concurrent findings of facts. Therefore, the moot question is whether there are any substantial questions of law. 10. It is well accepted that normally the court would not interfere with the concurrent findings of facts. It is also well settled that unless any substantial question of law is said to have been involved, the court would not disturb the concurrent findings of facts. Therefore, the moot question is whether there are any substantial questions of law. Moreover, whether such questions of law which are sought to be posed referring to the statutory provisions can at all be said to have been involved, including the aspect of interpretation of the provisions of Transfer of Property Act or the sale deed. 11. As could be seen from the background of the facts that there are two sets of theories. The Respondent is claiming on the basis of the will by which the land in question is bequeathed in his favour for which he has obtained probate from the competent court. Again, it is required to be considered that the same probate has been issued after it has been contested by the Appellants herein. It has not been subject to any further appeal. 12. On the other hand, the claim made by the Appellants herein on the basis of registered sale deed has not been found to be genuine and rather raises a strong doubt about the very execution as well as consideration and also the intention of the deceased as it is discussed by both the courts below. There are different versions for consideration. The evidence of the witnesses including the evidence of Pirumiya has been discussed with reference to Exh. 92. The sale deed is produced at Exh. 90. One version which is stated about the fact that the registered sale deed is executed at Exh. 90 and before that the deceased is said to have given Rs. 40,000/- to Pirumiya who was cultivating her land and thereafter Rs. 50,000/- is said to have been paid. As again the total consideration is stated to be Rs. 1,62,000/-. The deposition of the witnesses including Pirumiya as well as other witnesses which have been discussed by both the courts below, do not support the submissions made by learned Advocate for the Appellant and it raises a serious doubt about the genuineness of the execution of the sale deed by the deceased Fatimabibi. 1,62,000/-. The deposition of the witnesses including Pirumiya as well as other witnesses which have been discussed by both the courts below, do not support the submissions made by learned Advocate for the Appellant and it raises a serious doubt about the genuineness of the execution of the sale deed by the deceased Fatimabibi. There is a specific case that, as she was a poor, illiterate and old lady, the undue advantage has been taken by obtaining signatures in the guise of documents for the loan for the land. Moreover, the witness at Exh. 126 who has been examined from the office of Sub-Registrar, has stated that he was not at the relevant time in the office and he cannot say anything. Therefore, on the aspect of registration also, it leaves some doubt. This has been considered by both the courts below at length, and therefore, as rightly observed that it was a fiduciary relationship between the Appellant and the deceased, who was an old lady of 80 years. Even the cross-examination of the Appellant herein/Original Defendant No. 1 at Exh. 103 has been considered and it has been admitted that he does not have any proof with regard to the payment of Rs. 40,000/- which is also quoted in the judgment of the lower appellate court. All these aspects have been discussed at length. Therefore having regard to the scope of Second Appeals and the broad guidelines laid down by the Hon'ble Apex Court time and again by the judicial pronouncements, it does not call for any interference with the concurrent findings of facts arrived at by both the courts below. The Hon'ble Apex Court in a judgment in case of Gurdev Kaur & Ors. v. Kaki & Ors. reported in 2007 (1) SCC 546 has clearly observed; "Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts." 13. Therefore having regard to the aforesaid discussions, both the Second Appeals along with Civil Applications deserve to be dismissed and accordingly stands dismissed. Notice is discharged.