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2023 DIGILAW 975 (RAJ)

Radhey Lal S/o Kunj Bihari v. Laxmi Devi W/o Krishan Baldev

2023-05-01

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : MAHENDAR KUMAR GOYAL, J. 1. This civil second appeal has been preferred by the appellants/plaintiffs against the judgment and decree dated 19.11.2008 passed by learned Additional District Judge No. 1, Bayana, District Bharatpur (for brevity ‘the learned appellate court’) in CAR No. 34/1999 whereby, while dismissing the appeal, the judgment and decree dated 27.10.1999 passed by learned Civil Judge (Sr. Division), Bayana, Bharatpur (for brevity-’the learned trial court) dismissing the civil suit no. 129/1999 filed for cancellation of sale deed and permanent injunction, has been upheld. 2. The relevant facts in brief are that Shri Radhey Lal, the predecessor in interest of the appellants (hereinafter referred to as ‘the plaintiff’) filed a suit against Smt. Laxmi Devi, the predecessor in interest of the respondents no. 1/1 to 1/4 (hereinafter referred to as ‘the defendant no. 1’) and the respondents no. 2 and 3 (hereinafter referred to as ‘the defendants no. 2 and 3) stating therein that he has executed a registered will dated 28.5.1973 of his entire movable and immovable properties including the subject house as described in para 3 of the plaint, in favour of his five sons. It was averred that the defendant no. 2, his son, brought him from Bayana to Bharatpur on 3.12.1980 to get his eyes examined where he got some documents signed from him which were kept by him. It was stated that on 8.12.1980, he came to know that the defendant no. 2 has, fraudulently taking undue advantage of his old age, got executed a registered sale deed of the subject house in favour of the defendant no. 1, his wife, for a sale consideration of Rs.5,000 which was never received by him. Therefore, the decree for cancellation of sale deed and permanent injunction was prayed for. 3. The defendants no. 1 and 2 in their joint written statement submitted that the will was cancelled on 3.12.1980. It was averred that on the insistence of the plaintiff himself, the defendant no. 1 agreed to purchase the subject property for which she paid the sale consideration of Rs.5,000 from her own fund as she was employed as the Headmistress in the Government job. 4. On the basis of pleadings of the parties, the learned trial court framed four issues including reliefs. 5. 1 agreed to purchase the subject property for which she paid the sale consideration of Rs.5,000 from her own fund as she was employed as the Headmistress in the Government job. 4. On the basis of pleadings of the parties, the learned trial court framed four issues including reliefs. 5. After recording evidence of the respective parties, the learned trial court dismissed the suit vide its judgment dated 27.10.1999 deciding all the issues against the plaintiff. The civil first appeal preferred thereagainst by the plaintiff has been dismissed by the learned appellate court vide its judgment and decree dated 19.11.2008. 6. Assailing the impugned judgment and decree dated 19.11.2008, the learned counsel for the appellant submits that findings of the learned courts on issue no. 1 are perverse inasmuch as both the courts have held that the allegation levelled by the plaintiff’s witnesses during the course of their deposition of taking the plaintiff to Bharatpur under the false pretext of examination of his eye is not averred in the plaint whereas, in its para 7, it is specifically stated that the defendant no. 2 brought the plaintiff from Bayana to Bharatpur on 3.12.1980 for examination of his eyes. He contended that the learned courts did not appreciate that the sale deed was got executed by the defendant no. 2 in favour of his wife, the defendant no. 1, taking undue advantage of old age of the plaintiff. Shri Tripurari Sharma, learned counsel submitted that the learned courts erred in deciding the issue no. 1 against the plaintiff without considering that the sale deed was not executed without payment of sale consideration to him. 7. Shri Sharma further contended that the sale deed is void ab initio being hit by Section 28 of the Registration Act, 1908 (for short-’the Act’) inasmuch as the subject property is situated at Bayana and despite there being an office of Sub-Registrar at Bayana, it was got registered in the office of Sub-Registrar Bharatpur. 8. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 19.11.2008 be quashed and set aside and the suit be decreed. 9. Learned counsel in support of his submissions, relied upon following judgments: (1) Ballo vs. Paras Ram, AIR 1972 HP 33 (2) Debi Prasad and Another vs. Chhotey Lal and Another, AIR 1966 All. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 19.11.2008 be quashed and set aside and the suit be decreed. 9. Learned counsel in support of his submissions, relied upon following judgments: (1) Ballo vs. Paras Ram, AIR 1972 HP 33 (2) Debi Prasad and Another vs. Chhotey Lal and Another, AIR 1966 All. 438 (3) Kashmir Singh vs. Harnam Singh and Another, 2008 (4) RLW 3352 (Raj.) (4) Roshan Bai vs. Madan Lal, 2007 (2) WLC (Raj.) 187 10. Per contra, learned counsel for the respondents/defendants no. 1 and 2 would submit that although, it is averred in para no. 7 of the plaint that the defendant no. 2 took the plaintiff to Bharatpur on 3.12.1980 for examination of his eyes; but, it is not averred that it was under the false pretext, as sought to be canvassed by the plaintiff’s witnesses during the course of their deposition. Referring to the findings of the learned courts qua issue no. 1, he submits that this distinction has been taken note of and suffer no perversity. He submits that there is a concurrent finding of fact that the plaintiff executed the sale deed dated 3.12.1980 in favour of the defendant no. 1 receiving the sale consideration of Rs.5000 out of his free will and consciousness which warrants no interference by this Court under its second appellate jurisdiction. 11. Shri Rahul Sharma further submits that there is an endorsement by the Sub-Registrar on the sale deed that the seller, the plaintiff, has admitted before him its execution and receipt of the sale consideration of Rs.5,000. Relying on the provision contained in Section 58 of the Act, he contends that it gives rise to a strong presumption as to genuineness of the sale deed. He submits that the sale deed also contains an endorsement that on the date of its registration i.e. 3.12.1980, Smt. Kanti Devi, wife of Shri Sriram Sharma, son of the plaintiff, has moved an application stating therein that her father-in-law was bent upon to sell the subject property to the prejudice of rights of her family in it with a request to stop the registration for a period of six months to enable her husband to obtain the stay order. He submits that in the aforesaid circumstances, it is apparent that the plaintiff has executed the subject sale deed out of his free will and consciousness. 12. Learned counsel for the respondents, inviting attention of this Court towards the provisions of Section 30 of the Act, would submit that from the material on record it is apparent that the plaintiff himself has requested the Registrar, Bharatpur to get the sale deed registered from the office of Sub-Registrar, Bharatpur and hence, it suffers no illegality or infirmity on account of Section 28 of the Act. 13. He, therefore, prays for dismissal of the second appeal. He, in support of his submissions, relied upon following judgment: (1) Prem Singh and Others vs. Birbal and Others, AIR 2006 SC 3608 14. Heard. Considered. 15. While deciding the issue no. 1, the learned courts have held that the story of taking the plaintiff Radhey Lal to Bharatpur under the pretext of his eye examination, as developed by the plaintiff witnesses during course of their oral testimony, is not averred in the plaint and a careful examination of the plaint, especially its para 7, confirms this finding inasmuch as therein, the only averment is that the plaintiff was brought to Bharatpur from Bayana by the defendant no. 2 on 3.12.1980 for his eye examination and it is bereft of any such allegation that it was under the false pretext. Further, it is nowhere averred in the plaint that he was not subjected to eye examination on that day. In this regard, it would be beneficial to refer the provisions of Order 6 Rule 4 CPC which provide that in all cases in which party pleading relies on any misrepresentation, fraud, breach of trust and 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 plaint. 16. The aforesaid requirement is not an empty formality as has been held by the Hon’ble Supreme Court in the case of Saranpal Kaur Anand vs. Praduman Singh Chandhok and Others, (2022) 8 SCC 401 , as under: “16. Rules of pleadings relating to fraud and exemption from law of limitation are set out in Order VI Rule 4 and Order VII Rule 6 of the Code. Rules of pleadings relating to fraud and exemption from law of limitation are set out in Order VI Rule 4 and Order VII Rule 6 of the Code. Order VI Rule 4 lays down that in all cases where a party pleading relies upon fraud, particulars with respect to the date and item, if necessary, shall be stated in the pleadings. The fraud as alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish fraud. Pleading of fraud should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture. Of course, the court, at the initial stage when deciding an application under Clause (d) to Order VII Rule 11 has to proceed under demurrer, and therefore, should accept the facts as alleged in the plaint, but can in a given case draw irrefutable inferences from the facts stated. Order VII Rule 6 of the Code requires the Plaintiff to show the grounds upon which exemption(s) from the law of limitation is claimed, and the plaint should set out the ground(s) for claiming such exemptions, which means that the plaintiff must state the causes or reasons or attributes or basis on which, according to the plaintiff, a period should be excluded and not be counted. The recitals in the plaint should be specific and comply with the terms of Order VI Rule 4 of the Code. Order VII Rule 6 is liberal and flexible as while mandating that a suit instituted post expiry of the period of limitation must state the grounds upon which exemption is claimed, permits the plaintiff to rely on a 'ground' not inconsistent with the ground set out in the plaint. The proviso does not nullify the requirement that in the first place the plaint must set out the ground seeking exemption from limitation. 17. When and to the extent Order VII Rule 6 and Order VI Rule 4 apply, these provisions being specific will prevail over the general Rule found in Order VI Rule 2 of the Code. Nevertheless, the requirement of the Rules is to plead specific facts with dates, but not the factual evidence on the basis of which the plaintiff would ultimately seek to establish and justify his claim for exemption of limitation. Nevertheless, the requirement of the Rules is to plead specific facts with dates, but not the factual evidence on the basis of which the plaintiff would ultimately seek to establish and justify his claim for exemption of limitation. When the minimum threshold required in terms of Order VI Rule 4 and Order VII Rule 6 is satisfied and met, cannot be put in a straitjacket or rigid formula, as it would depend upon the facts and circumstances including antecedent facts, and in particular the relationship between the parties or their predecessors and the period bygone without challenge. 18. While examining these aspects, especially at the initial stage under Clause (d) of Rule 11 to Order VII or Order XIV Rule 2 of the Code, the court cannot proceed on the basis of the assumption as to the evidence that would be led so as to record a finding on the evidence. At the same time, an artifice or clever drafting should not prevent the court from stopping plainly time-barred proceedings, an aspect we would again advert to subsequently. The court can take benefit of Order XII Rule 6 of the Code when there are admissions made by the plaintiff in the plaint and the documents which are admitted by the parties, or there being no dispute which would require oral evidence in the context of the documents. There is no bar against invoking the provisions of Order VII Rule 11 and Order XIV Rule 2 together, or even applying Order XII Rule 6 while proceeding with demurrer. Provisions of the Code are not watertight compartments, unless such statutory construction is expressed or manifestly prohibited. We would not in the absence of constraints, deny the trial court or the appellate court flexibility in application of the procedural law. Underlying objective of prescribing procedure is to advance the cause of justice. Therefore unless compelled by express language or clear intend barring a course, the provisions of the Code as a procedural enactment ought to be construed to leave the court to meet and deal with situations in the ends of justice.” 17. Similarly, in the case of Bijendra Nath Srivastava (Dead) through LRs. Therefore unless compelled by express language or clear intend barring a course, the provisions of the Code as a procedural enactment ought to be construed to leave the court to meet and deal with situations in the ends of justice.” 17. Similarly, in the case of Bijendra Nath Srivastava (Dead) through LRs. vs. Mayank Srivastava and Others, (1994) 6 SCC 117 , their Lordships have held as under: “13..........This is in consonance with the rule that a charge of fraud must be substantially proved as laid and that when one kind of fraud is charged, another kind of fraud cannot, upon the failure of proof, be substituted for it. See: Abdool Hoossein Zenail Abadin vs. Charles Agnew Turner, (1887) 14 IA 111. The same is true for the charge of misconduct. This means under Order 6 Rule 4 C.P.C. particulars have to be furnished of the plea of fraud or misconduct raised in accordance with Order 6 Rule 2 C.P.C. and it is not permissible to introduce by way of particulars a plea of fraud or misconduct other than that raised in the pleadings.” 18. A natural corollary of the aforesaid dictum would be that in absence of any specific pleading of fraud, no amount of evidence can be looked into. 19. In the aforesaid circumstances, the learned courts did not err in disbelieving the testimony of the plaintiff witnesses that he was taken to Bharatpur under the false pretext of eye examination in absence of any such specific pleading in the plaint. 20. Similarly, contention of the learned counsel for the appellant that the sale deed was got executed by the defendant no. 2, son of the plaintiff, in favour of his wife, the defendant no. 1, taking undue advantage of the physical and mental condition of the plaintiff and the fiduciary relationship in between them, does not merit acceptance in absence of any such pleading in the plaint. Although, it is stated in the plaint that the defendant no. 2 taking advantage of plaintiff’s advance age, got the sale deed executed fraudulently but, there is no such specific averment/details as required under Order 6 Rule 4 CPC. The learned trial court has, on the basis of evidence of respective parties, held that the plaintiff was in a fit physical and mental state when the sale deed was executed. 2 taking advantage of plaintiff’s advance age, got the sale deed executed fraudulently but, there is no such specific averment/details as required under Order 6 Rule 4 CPC. The learned trial court has, on the basis of evidence of respective parties, held that the plaintiff was in a fit physical and mental state when the sale deed was executed. In this regard, a specific reference may be given of the statement of Shri Purshottam Lal (PW5), brother-in-law of Sriram, son of the plaintiff, who has stated that he saw the plaintiff in the court premises sitting with the deed writer and when asked, the plaintiff replied that he had come for his eye examination. The learned trial court has recorded a categorical finding that no explanation has been offered as to why the plaintiff visited the court premises and was sitting with the deed writer if he had come to Bharatpur for his eye examination as claimed. 21. There are other important aspects of the matter which lend credentials to the genuineness of the sale deed. There is an endorsement on the sale deed (Ex.A1) by the Sub-Registrar that the seller, the plaintiff, has admitted before him execution of the sale deed as also receipt of the sale consideration of Rs.5,000. Section 58 of the Act reads as under: “58. Particulars to be endorsed on documents admitted to registration: (1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely: (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent. (b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act. (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. (2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.” 22. Recently, the Hon’ble Supreme Court in the case of Manik Majumdar and Others vs. Dipak Kumar Saha (Dead) through LRs. and Others, AIR 2023 SC 506 , referring to the provisions of Section 58, held as under: “30..........Thus, the registering officer shall endorse the signature of every person admitting the execution of document. Such document is prima facie evidence against the executant. The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.” 23. Their Lordships have in the case of Prem Singh (supra), held as under: “28. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No. 1 has not been able to rebut the said presumption.” 24. Although, the presumption of genuineness of the registered document under Section 58 of the Act of 1908 is rebuttable; but, in the present case, no such evidence was led by the plaintiff to rebut the aforesaid presumption. Rather, from another endorsement on the sale deed which takes note of an application filed by Smt. Kanti Devi wife of Sriram, son of plaintiff, stating therein that her father-in-law was bent upon to sell the subject property and was present in the office of Sub-Registrar, Bharatpur to get the sale deed registered to the prejudice of her family rights and interest in it with a request to stop the registry for a period of six months in order to enable her husband to get a stay, the genuineness gets emboldened. The aforesaid factum leaves no room of doubt that the plaintiff had executed the sale deed dated 3.12.1980 out of his free will and consciousness. 25. Contention of the learned counsel for the appellant that the sale deed is rendered void-ab-initio being hit by the provisions of Section 28 of the Act, cannot be countenanced in view of material on record and the provisions of Section 30 of the Act. Section 30 provides that any Registrar may in his discretion receive and register any document which might be registered in Sub-Registrar subordinate to him. Although, the property is situated at Bayana and there is an office of Sub-Registrar at Bayana; but, as is apparent from the letter dated 8.12.1980 (Ex.7) written by the plaintiff himself addressed to the Sub-Registrar, it is reflected that on his own request, the Registrar Bharatpur had directed the SubRegistrar, Bharatpur to register the sale deed. Therefore, it does not lie in his mouth to contend that the sale deed is hit by Section 28 of the Act. It further strengthens the case of the defendants that the plaintiff had executed the subject sale deed out of his free will and consciousness. 26. The judgments relied upon by the learned counsel for the appellant are of no assistance to him. In case of Ballo (supra), it was held by the Hon’ble Himachal Pradesh High court that the burden of proving the absence of undue influence will rest upon the defendant-plaintiff if it is established by the evidence in the case that the defendant was in a position to dominate his will and that the transaction was unconscionable and in the case of Debi Prasad and Another (supra), it was held by the Hon’ble Allahabad High Court that where, it is established that the party is in a dominating position on account of relationship with the other party, the burden shifts upon him to establish that power conferred while the relationship was not abused; however, in the present case, there is a concurrent finding of fact that the plaintiff was physically and mentally fit to execute the sale deed and there is no finding that he was under the undue influence of the defendants no. 1 and 2; rather, it has been found even by this Court from the material on record that he had executed the sale deed out of free will and consciousness. 27. 1 and 2; rather, it has been found even by this Court from the material on record that he had executed the sale deed out of free will and consciousness. 27. This Court is in respectful agreement with the law laid down in the judgments of the Hon’ble Supreme court in the case of Kashmir Singh (supra) and Roshan Bai (supra) detailing the scope of interference in second appeal; but, this Court did not find any illegality, infirmity or perversity in the concurrent findings of facts recorded by the learned courts. 28. The upshot of the aforesaid discussion is that the civil second appeal is devoid of any substantial question of law and is dismissed accordingly.