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2021 DIGILAW 1062 (ALL)

Anuradha v. Jai Jai Ram

2021-09-15

SIDDHARTH

body2021
JUDGMENT : 1. Heard Sri Anant Vijay, learned counsel for the appellant and Sri Yogesh Kumar Saxena, learned counsel for the respondent. 2. This second appeal has been preferred against the judgment and decree dated 26.04.2016 passed by District Judge, Kannauj allowing the Civil Appeal No. 29 of 2014 and decreeing the Suit No. 22 of 2012 (Jai Jai Ram vs. Smt. Anuradha), which was dismissed by the trial court by its judgment and decree dated 19.07.2014. 3. The plaintiff-respondent instituted an Original Suit No. 22 of 2012 praying for a decree of cancellation of sale deed dated 15.12.2011 executed by him in favour of the defendant-appellant regarding his bhumidhari land whereon he was recorded as owner in possession in revenue records. It was averred in the plaint that the aforesaid land was the only source of livelihood of the plaintiff who has six daughters. Five of them have been married and the defendant, who is also his daughter, called the plaintiff for treatment to her house. When he was semiconscious and not in full senses she took him to the tehsil and got the sale deed in dispute executed in her favour. When the people of the village saw him with the defendant they gave full information to the plaintiff and his family members. He was detained by the defendant in her house and his other daughters and wife with the help of police brought him back and thereafter the suit was instituted. 4. The defendant filed her written statement denying the plaint allegations and stated that the plaintiff needed money for business and therefore he executed the sale deed for sale consideration of Rs. 5 lakhs when he was in his full senses. She denied that he was ever ill and called for treatment by the defendant and thereafter fraudulent sale deed was got executed by her. 5. The plaintiff filed his replication in the suit stating that the defendant has taken undue advantage of his illness. She called him to her house where she got the disputed sale deed executed by fraud. The plaintiff never needed any money. He had no reason to execute the sale deed of the entire land recorded in his name when it was the only source of his livelihood. 6. The plaintiff examined himself as P.W-1 and produced, Naval Kishore as P.W-2 before the trial court. 7. The plaintiff never needed any money. He had no reason to execute the sale deed of the entire land recorded in his name when it was the only source of his livelihood. 6. The plaintiff examined himself as P.W-1 and produced, Naval Kishore as P.W-2 before the trial court. 7. Defendant examined herself as D.W-1 and produced Durgesh as D.W-2 and Pramod Kumar as D.W-3 before the trial court. 8. In evidence the copy of the sale deed dated 15.12.2011 copy of the khatauni, observation report, hospital receipt, medicine receipt, notices regarding recovery of loan and copy of khasra, was filed by the plaintiff. 9. The defendant produced the certified copy of the sale deed dated 31.05.1993 and applications sent to the police officials. On the basis of the pleadings of the parties the trial court framed five issues and the relevant ones were issue no. 1, whether the disputed sale deed dated 15.12.2011 is required to be cancelled on the basis of averment made in the plaint and issue no. 5 regarding relief. 10. The trial court decided the issue no. 1 holding that from the documentary as well as oral evidence on record. It appears that the plaintiff was not suffering from any ailment and he executed the disputed sale deed on his own free will after taking the sale consideration. Therefore, it found that the sale deed is not result of any fraud. Issue no. 5 was accordingly decided holding that the plaintiff was not entitled to any relief and the suit was dismissed. 11. The appellate court has again gone into the evidence on record and has given a finding that there was relationship of good faith between the plaintiff and his daughter, the defendant. The defendant took undue advantage of fiduciary relationship with the plaintiff and got the sale deed in dispute executed. No sale consideration was paid to the plaintiff. The first appellate court has held that the burden of proof of good faith in the alleged transaction was upon the defendant since she was in a position of active confidence of the plaintiff. 12. The present appeal was admitted by this court for consideration on the following substantial questions of law :- “Whether first appellate court had passed erroneous and perverse judgment on facts as well as by wrongly shifting burden of prove from plaintiff to defendant? If so, its effect?” 13. 12. The present appeal was admitted by this court for consideration on the following substantial questions of law :- “Whether first appellate court had passed erroneous and perverse judgment on facts as well as by wrongly shifting burden of prove from plaintiff to defendant? If so, its effect?” 13. Learned counsel for the defendant-appellant has submitted that the plaintiff executed the sale deed in his full senses after taking Rs. 5 lakhs as sale consideration from the defendant. The trial court rightly found that he was not suffering from any illness. The first appellate court recorded the finding that there was fiduciary relationship between the parties and since the defendant was in the possession of active confidence, burden of proof was on her to prove the good faith in the transaction. He has submitted that there was no such pleadings in the plaint or in the written statement. The first appellate court has decided the suit beyond the pleadings of plaint on the basis of extraneous reasons and therefore the findings of the first appellate court are perverse. The question of misuse of fiduciary relationship and active confidence between the parties would have arisen only when it had been pleaded in the plaint. He has relied upon on paragraph 15 of the judgment of the Apex Court in the case of Bhagwati Prashad Vs. Shri Chandramaul, AIR 1966 SC 735 . “It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. The importance of the pleadings cannot, of course, be ignored, because it is the pleading that lead to the framing of issues and a trial in every civil case has inevitably to be confirmed to the issues framed in the suit. The whole object of framing the issues would be defeated if parties allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial and the formal requirement of pleadings can be relaxed. In the present case, having regard to all the facts, we are unable to hold that the High Court erred in confirming the decree for ejectment passes by the trial Court on the ground that the defendant was in possession of the suit premises as a licensee. In this case, the High Court was obviously impressed by the thought that once the defendant was shown to be in possession of the suit premises as a licensee, it would be built to require the plaintiff to file another suit against the defendant for ejectment on that basis. We are not prepared to hold that in adopting this approach in the circumstances of this case, the High Court can be said to have gone wrong in law.” 14. Further reliance has been made in the judgment of the Apex Court in the case of Bachhaj Nahar vs. Nilima Mandal & Others of the Apex Court passed in Civil Appeal No. 5798-5799 of 2008. In paragraph 17 of the same it was held by the Apex Court that where the claim of the plaintiff was not passed on easementary rights nor there was any such pleadings, the easementary rights cannot be assumed and granted by the High Court in second appeal. 15. Reliance has also been placed on the judgment of the Apex Court in the case of Biraji @ Brijraji & Others vs. Surya Pratap & Others passed in Civil Appeal No. 4883-4884 of 2017 wherein paragraph 7 of the Apex Court has held that in the absence of pleadings any amount of evidence will not help the parties. 16. 15. Reliance has also been placed on the judgment of the Apex Court in the case of Biraji @ Brijraji & Others vs. Surya Pratap & Others passed in Civil Appeal No. 4883-4884 of 2017 wherein paragraph 7 of the Apex Court has held that in the absence of pleadings any amount of evidence will not help the parties. 16. Further reliance on the judgment of Vidhydhar vs. Manikrao and Other, AIR 1999 SC 1441 has been placed and it has been submitted that as per definition of sale under Section 54 of the Transfer of Property Act, the use of phrase, “price paid or promised or part paid and part promised” which proves that actual payment of whole sale consideration is not necessary to constitute sale. Once the registered document is executed, sale is complete and title will pass to the transferre as per transaction. He has submitted that the first appellate court wrongly interfered with the judgment of the trial court and illegally shifted the burden of proof upon the defendant-appellant when the burden of proof was on the plaintiff to prove his case that the sale deed was the result of fraud practiced upon him by the defendant. 17. Learned counsel for the plaintiff-respondent has submitted that it was admitted fact that plaintiff was aged about 76 years and was living with his daughter, the defendant-appellant, since last 3 months and hence their fiduciary relationship was established. No sale consideration was paid to the plaintiff before the Registrar and the entire land in the name of plaintiff was taken by the defendant by getting the sale deed executed from the plaintiff in her favour. From the pleadings on record fiduciary relationship between the parties was clearly discernible. The trial court did not considered Section 111 of the Evidence Act while deciding issue no. 1 in the suit. He has relied upon the judgment of Calcutta High Court in the case of Krishan Mohan Kul vs. Pratima Maity, 2003 LawSuit (SC) 863. It has been held in the judgment that when the relation between the doner and donee at or shortly before execution of gift deed has been such as to raise a presumption that the donee has influenced over the doner, the Court set aside the gift deed unless the donee proved that it was result of free exercise of doner's will. 18. 18. The second judgment relied upon by the counsel for the plaintiff-respondent is of Abdul Raseed vs. Anwar Ahmad, 2000 LawSuit (All) 662. He has placed reliance on paragraph nos. 16 and 17 of the judgment where an 85 years old person was living with the contesting respondent at the time of sale deed. It was argued before this court that since the respondents were in active confidence of the old man they dominated his will and got the sale deed executed from him. In view of the section 111 of Evidence Act the burden was on the respondents to prove the good faith of transaction. 19. He has further relied upon the judgment of Anil Rishi vs. Gurbaksh Singh, 2006 LawSuit (SC) 374, wherein the Apex Court has held in paragraph 12 that when fraud, misrepresentation or undue influence is alleged by the party in a suit, the burden of proof is on him but when he is in fiduciary relationship with the other the burden of proof of the absence of fraud misrepresentation or undue influence is on the other side. 20. The last judgment relied upon by him is the case of Ram Lakhan vs. Ghurahoo, 2006 LawSuit (All) 357, wherein paragraph 17 it has been held that the burden of proof to prove the good faith of the transaction reverses in the case of old and illiterate person challenging the transaction and the person who claims the transaction to be in good faith and is in fiduciary relationship is required to prove the same. 21. After hearing the counsels for the parties, this court finds that it was neither the claims of the plaintiff nor the defendant that there was relationship of active confidence between them. The plaintiff simply alleged the commission of fraud by the defendant. He never claimed that he was old and illiterate and was living with the defendant and depended upon her. The plaint averment was that he was ill and the defendant called him for treatment and while he was in sub-conscious state on account of illness he was taken to the Sub-Registrar's Office and the disputed sale deed was got executed. There is no pleadings in the plaint regarding the relationship of active confidence nor any evidence was led to prove that the will of the defendant was dominant over the plaintiff. There is no pleadings in the plaint regarding the relationship of active confidence nor any evidence was led to prove that the will of the defendant was dominant over the plaintiff. The authorities relied upon by the counsel for the appellant clearly hold that in the absence of pleadings regarding the relationship of active confidence between the parties the burden of proof cannot be shifted. 22. The authorities relied upon by the counsel for the plaintiff-respondent do not lay down that without pleadings regarding active confidence in the plaint the burden of proof can be shifted as per Section 111 of the Evidence Act. In the case of Ram Lakhan (Supra) the plaintiff was 70 years of age and was depend on the defendant. The defendant's case itself was that there exists fiduciary relationship between the two hence this court held that the burden of proof was on the defendant to prove that the sale deed was valid and fairly executed and there was no element of fraud or representation involved therein. 23. In the case of Anil Rishi (Supra) in paragraph 14 of the Apex Court has held that before the finding of good faith in transaction between the parties and the relationship of active confidence of one party over the other is established the presumption of undue influence against a person in possession of active confidence cannot be drawn. The factum of active confidence should be established. The word “active confidence” indicates that relationship between the parties must be such that “one is bound to protect the interest of other”. In the present case the pleadings of relationship of active confidence between the parties is conspicuously missing. 24. In the case of Abdul Rashid (Supra), this court did not held that without pleadings the court can reverse the burden of proof as per Section 111 of the Evidence Act. 25. Lastly, the judgment in the case of Krishan Mohan Kul (Supra) is also of no help to the defendant-appellant. In paragraph 12 of the aforesaid judgment it has been mentioned that the court was dealing with a case where an old, ailing and illiterate person had executed the disputed will by putting his thumb impression. Being old and illiterate both he was also suffering from illness hence the burden of proof was reversed in this case like in the case of Parda Nasheen lady. Being old and illiterate both he was also suffering from illness hence the burden of proof was reversed in this case like in the case of Parda Nasheen lady. In the present case the trial court found that the plaintiff failed to prove from what ailment he was suffering. 26. The substantial question of law is accordingly answered to the effect that the first appellate court has passed erroneous judgment on facts and on law by wrongly shifting the burden of proof from the plaintiff to the defendant in the absence of relevant pleadings. 27. In view of the above consideration, this Court finds that the judgment of the first appellate court dated 26.04.2016 passed in Civil Appeal No. 29 of 2014 is not sustainable and deserves to be set aside. This second appeal is allowed. 28. The case is remanded to the first appellate court for decision afresh in accordance with pleadings and law. The earlier order passed preferably within a period of six months from the date of copy of this order is produced before the either of the party.