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2022 DIGILAW 1630 (ALL)

Prahlad v. Sarvajeet

2022-10-11

SIDDHARTHA VARMA

body2022
JUDGMENT : SIDDHARTHA VARMA, J. 1. This second appeal has been filed by the defendant against the judgment and decree of the First Appellate Court dated 17.12.1994 by which the First Appeal of the plaintiff was allowed and the Suit of the plaintiff which was earlier dismissed by the Trial Court on 5.3.1992 was decreed. The plaintiff-Sarvajeet (the respondent here) had filed a suit being Original Suit No. 445 of 1989 for the relief that the sale deed dated 27.9.1988 be cancelled. The Suit was based on the fact that the plaintiff was an elderly person and was dependent on the father of the defendants in whom the plaintiff had confidence and who had, therefore, the capacity to influence the decision taking capacity of the plaintiff. 2. The plaintiff further had taken a case that on the date when the sale deed was executed i.e. on 27.9.1988, the plaintiff who was suffering from cataract had acute fever and had gone to the office of the Registrar at Tehsil Sagari on the pretext that Kishori the father of the defendants would get him treated by a good doctor. It has been alleged in the plaint that instead of getting the plaintiff treated, the father of the defendants fraudulently got executed the sale deed on 27.9.1988 in favour of the defendants. The defendants in their written statements, however, took a case that the plaintiff had executed the sale deed in question with his free mind and will and on the date when he executed the sale deed, he was in sound mental condition. Further, they stated that the sale deed was executed for a proper consideration. At the Registrar Office, the plaintiff had been informed about the contents of the document and the document which he was going to put his signature on. He had understood the contents of the document and after taking full consideration he had executed the sale deed. The Trial Court had put the burden on the plaintiff of proving that the plaintiff was ill on the relevant date and had put the burden of proving that consideration had passed from the defendants to the plaintiff on the defendants. The Trial Court found the oral evidence of PW-1 Ram Nagina as a heresy evidence as his evidence regarding his knowledge of the illness of the plaintiff, Sarvajeet, was through the father of the defendants himself. The Trial Court found the oral evidence of PW-1 Ram Nagina as a heresy evidence as his evidence regarding his knowledge of the illness of the plaintiff, Sarvajeet, was through the father of the defendants himself. Further the Trial Court analysed the testimony of the plaintiff to see to his physical and mental status and went through the evidence which was brought before the Court. The plaintiff had stated in his examination in chief that, to begin with, he had got himself treated by one Dr. Tirathram and when he did not get any benefit out of his treatment he had changed the Doctor and had started taking treatment of one Doctor Yadava. When he did not get any relief from their treatment and when the defendant’s father, in whom the plaintiff had full confidence and faith, suggested that he showed himself to the Doctor at Sagari, the plaintiff had readily agreed. The plaintiff had not brought in the witness box the Doctors who had treated him. However, he produced the prescriptions which were again not proved by the Doctor who had prescribed them. However, since the plaintiff had produced those prescriptions they were considered in evidence and it was found that when on the first occasion the plaintiff was given the medicines on 16.9.1988 then they were prescribed for a period of five days. Thereafter on 20.9.1988, the medicines were slightly changed and they were prescribed for three days more. On 23.9.1988, the temperature and pulse recorded by the Doctor were normal. Therefore, it has been concluded by the Trial Court that three days after 23.9.1988, the plaintiff’s physical condition was absolutely normal. There is no evidence on record, it has been stated by the Trial Court, to prove that the condition of the plaintiff deteriorated thereafter. The Trial Court also took into consideration certain facts about the family of the plaintiff which were brought on record by the defendants and was not denied by the plaintiff. 3. It was brought on record that the plaintiff had six brothers and they were all living in the neighbourhood. However, none of them appeared in the witness box to corroborate the case of the plaintiff that he was seriously ill on the date when the sale deed was executed. 4. 3. It was brought on record that the plaintiff had six brothers and they were all living in the neighbourhood. However, none of them appeared in the witness box to corroborate the case of the plaintiff that he was seriously ill on the date when the sale deed was executed. 4. It was also brought on record that Katuwaru, who was the son of another brother of the plaintiff, namely, Ramhit, was much loved by the plaintiff but he also never came to the witness box. The plaintiff’s love for katuwaru was to the extent that the plaintiff had got his name engraved on the top of the disputed house. The defendants had brought on record the fact that Katuwaru, the nephew of the plaintiff who was to definitely lose on account of the execution of the sale deed dated 27.9.1998 never opposed the sale deed or appeared in the witness box for the plaintiff. 5. So far as the case of the plaintiff with regard to the averment in the plaint that the plaintiff had sufficient money and he did not require the money from the sale, the Trial Court had dealt with all the evidence which was there with regard to the money being there in the account of the plaintiff. The Trial Court had found that the plaintiff had deposited in a fixed deposit Rs. 25,000/- in a Cooperative Bank at Kaptanganj on 1.10.1988. When asked as to from where this amount had come, the plaintiff had stated in his examination in chief that he had withdrawn this amount of Rs. 25,000/- from various other bank accounts. However, when asked to prove as to from which bank account the plaintiff had withdrawn Rs. 25,000/- the plaintiff filed details of three accounts: (i) The pass-book of Cooperative Bank Azamgarh, which account was opened on 21.9.1989. This therefore was opened after the sale had taken place. (ii) The pass-book of Union Bank of India opened in 1974 and that account revealed that the plaintiff in the year 1979 had a last closing balance of Rs. 480.05/-. (iii) The another pass-book of Union Bank of India of the Month of September, 1988 showed the closing balance amount of Rs. 825.70. Thus the Trial Court concluded that Rs. (ii) The pass-book of Union Bank of India opened in 1974 and that account revealed that the plaintiff in the year 1979 had a last closing balance of Rs. 480.05/-. (iii) The another pass-book of Union Bank of India of the Month of September, 1988 showed the closing balance amount of Rs. 825.70. Thus the Trial Court concluded that Rs. 25,000/- which the plaintiff had deposited in the fixed deposit on 1.10.1988 came from nowhere else but from the sale consideration which he had got on 27.9.1988. 6. So far as the source of money which the defendants had got for the payment to the plaintiff, the defendants had explained that when their mother had died their father had got as compensation Rs. 14,000/- and this had swelled to Rs. 20,000/- and from this amount they had paid to the plaintiff the consideration money for the sale deed. The Trial Court thereafter dismissed the Suit. The First Appellate Court as stated earlier reversed the findings of the Trial Court and on 17.12.1994 and allowed the First Appeal of the plaintiff chiefly on the ground that the defendants ought to have proven that there was no fraud or misrepresentation on their part as they were in a dominating position and the plaintiff was having faith over the defendants and, therefore, it was for them to prove the correctness of the transaction. 7. The Second Appeal was admitted on the following substantial question of law on 4.8.2009 which is being reproduced here as under: “Whether the benefits available to a pardanashin lady can be extended to a person who is illiterate and is engaged in business activities.” 8. Learned counsel for the appellant has submitted that when the plaintiff was such a person who was always actively employed in a business, though at the time of the sale deed he was not into active business; was having three bank accounts and was in a position to visit doctors independently could not be compared to a Pardanashin Lady. 9. Learned counsel for the appellant further submitted that even though the plaintiff was living with the defendants after he was not doing his business it did not mean that he depended on the defendant’s father in such a manner that the latter could influence his thinking. 9. Learned counsel for the appellant further submitted that even though the plaintiff was living with the defendants after he was not doing his business it did not mean that he depended on the defendant’s father in such a manner that the latter could influence his thinking. The plaintiff was an independent person and had an identity of his own and though he was having his food etc. with the father of the defendants he always wanted an independent source of income through bank interest and, therefore, he had invested the consideration amount in a fixed deposit. There was no fiduciary relationship between the plaintiff and the father of the defendants. They relied upon AIR 1982 All. 376 (Daya Shankar vs. Smt. Bachi and Others) to bolster their arguments. 10. Further, the counsel for the appellant submitted that when the evidence had been led from the side of the plaintiff and the defendant and there was sufficient evidence on record for the Court to conclude as to whether the plaintiff was ill; whether there was any undue influence from the side of the defendants and whether consideration was properly paid then the question as to on whom there was the burden to prove that the plaintiff was ill or not on the date of the execution of the sale deed lost all importance. 11. Learned counsel for the appellants relied upon AIR 1960 SC 100 (Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi and Others) and specifically relied upon paragraph no. 10 of the judgment. The relevant portion of which is being reproduced here as under: “The expression “burden of proof” really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question of the nature of the deity and the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.” 12. The relevant portion of the paragraph 11 of AIR 1964 SC 880 (Kalwa Devadattam and Others (in both the appeals) vs. 1. Union of India and Others (In C.A. No. 641 of 1961) 2. Kamaji Saremal, Firm and Others (In C.A. No. 642 of 1961) which was relied upon by the appellant is also being reproduced here as under: “The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties.” 13. Learned counsel for the appellants further argued that whether the transaction could be said to be vitiated on the ground of undue influence when the plaintiff himself had brought on record all evidence which definitely went against him then the question of law as had been framed by the Court should be answered in favour of the appellants. 14. Learned counsel for the plaintiff-respondent Sri M.S. Chauhan, however, argued that the grounds as had been raised in the appeal did not raise any substantial question of law and, therefore, the Second Appeal should be dismissed. He further submitted that the Trial Court had erroneously shifted the burden of proving that there was illness of the plaintiff on the plaintiff. He also submitted that burden of proving that undue influence was exercised on the plaintiff was wrongly put on the defendants. He further submitted that the Trial Court had erroneously shifted the burden of proving that there was illness of the plaintiff on the plaintiff. He also submitted that burden of proving that undue influence was exercised on the plaintiff was wrongly put on the defendants. Learned counsel for the plaintiff-respondent further submitted that the first appellate court had rightly concluded that when the defendants did not prove that there was no misrepresentation or fraud then the case of the plaintiff had to be believed and the suit ought to be decreed. 15. Having heard the learned counsel for the defendants/appellants Sri Rahul Sripat learned Senior Counsel assisted by Sri Saurabh Patel and Sri Ishir Sripat and Sri M.S. Chauhan, the learned counsel for the respondent, the Court is of the view that the Second Appeal deserves to be allowed. The Trial Court when had looked into the evidence on record which had been brought by the plaintiff with regard to the fact that the plaintiff was ill and undue influence was exercised by the defendant then it evaluated all the evidence in its correct perspective and had found that the plaintiff was not in any manner ill on the date of the execution of the sale deed. The Court further finds that when the plaintiff was not unwell; he could think properly and had earlier carried on his own business then even if the plaintiff was living with the defendants it could not be said that any undue influence could have been exercised on the plaintiff. What is more, the Trial Court had rightly put the burden of proving whether the plaintiff was ill or not on the plaintiff and the plaintiff definitely could not prove that the plaintiff was in any manner ill on the date of the execution of the sale deed. The Doctors who had given the prescriptions were never produced. The prescriptions themselves told a story which was different from the case which the plaintiff was taking and also the Trial Court rightly concluded from the facts which the defendants had brought on record and had not been denied by the plaintiff that none of the other brothers of the plaintiff had come in the witness box to allege that the defendants’ father had exercised undue influence. Even the nephew who was much loved by the plaintiff and whose name found place on the top of the house never came in the witness box. What is more the Court finds that, in fact, the plaintiff has not been able to prove as to from where the amount which he had deposited in the fixed deposit was earned by him. This also shows that the plaintiffs had taken the consideration and had also converted the consideration money into a fixed deposit. It appears that the plaintiff had filed a suit as an afterthought. 16. Under such circumstances, it is abundantly proved that the First Appellate Court wrongly shifted the burden on the defendants to prove that the plaintiff was not under any undue influence of the defendant’s father. All the evidence which was there before the Trial Court was correctly analysed in a balanced manner by it. The First Appellate Court wrongly shifted the burden on the defendants. The Second Appeal, therefore, is allowed. The judgment and decree of the First Appellate Court dated 17.12.1994 passed by the VIth Additional District Judge, Azamgarh, is set aside. The Suit stands dismissed.