Judgment:
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.
First Appeal No.2/2004 Manilal and others VERSUS Dhanji Bhai (Dead through LRs) and others --------------------------------------------------------------------------- Shri R.P.Agrawal, Senior Advocate with Shri Anuj Agrawal, Advocate for the appellants. Shri P.R.Bhave, Senior Advocate with Shri B.P.Yadav, Advocate for the respondents. --------------------------------------------------------------------------- ORDER
(Passed on the 23rd day of September, 2013) The appellants/defendants No.2 to 4 have preferred the present appeal against the judgment and decree dated 4.12.2003 passed by the learned First Additional District Judge, Betul in civil suit No.42-A/2002, whereby a decree of declaration was granted in favour of the respondent No.1 (Dead and represented by his Legal representatives) that the plaintiff/respondent No.1 had half of the share in the property plot No.36/3, area 459.25 square feet and plot No.35, area 7730 square feet in Nazul sheet No.25 in Betulganj Nazul area and decree of possession was also granted for that portion, which was adjacent to Jain Mandir, -:- 2 -:- First Appeal No.2 of 2004 which is under construction. Cost of suit was also directed to be paid to the plaintiff.
2. The plaintiff has filed a civil suit before the trial Court that he was a handicapped and old person, who was residing with his son at Mumbai. On 26.6.2000, he executed the power of attorney in the name of Siddique Patel. Two plots No.35 and 36/3 shown in Nazul sheet No.25, situated at Jawahar Ward, Betul were of Asai Bai, mother of the plaintiff. After death of his mother, she left four sons. Out of them, one son Veerji Bhai had already expired and remaining sons of the deceased were residing in the same house. In compliance to the wishes of Asai Bai, Damji Bhai and Keshav Bhai, brothers of the plaintiff, executed a release deed dated 17.7.1973, which was registered on 30.7.1973 and therefore, the plaintiff and defendants No.2 to 4 became the owners of that property. In that property, the plaintiff had half of the share, whereas the defendants No.2 to 4 being legal representatives of Veerji Bhai received half of the share. The plaintiff was suffering from some disability and therefore, he had shifted to Jabalpur and thereafter to Mumbai. In September, 1998, the plaintiff came to Betul and agreed to execute a partition deed with the defendants No.2 to 4 but, he was advised that a receipt of partition be prepared to save the stamp duty and the defendants No.2 to -:- 3 -:- First Appeal No.2 of 2004 4 received his signatures on various documents and papers. Thereafter, he was informed that sufficient time will be required to get the documents notarized. He was assured that the documents would be sent to him by post. No document was provided to him and therefore, he informed Harak Chand Shah, nephew of the plaintiff to get the documents from the defendants No.2 to 4 and to remit such documents to the plaintiff. When the plaintiff received the documents, he found that he was given 1/5th share in the suit property and his signatures were found due to fraudulent misrepresentation on the various documents. He gave a legal notice through his counsel to the defendants No.2 to 4 but, no reply was given by them and therefore, the plaintiff filed a civil suit for declaration of his share and getting possession of that portion after partition.
3. The appellants/defendants No.2 to 4 have filed their written statements. They denied all the allegations made by the plaintiff. On the contrary, it was pleaded that the partition deed was prepared according to the wishes of Asai Bai and the parties. The plaintiff who himself was a tax payer had his accounts and he has shown the rent received from the property in that income tax return. Some period was mentioned in which the plaintiff remained at Betul. The defendants gave the entire account about the various sums -:- 4 -:- First Appeal No.2 of 2004 sent to the plaintiff from time to time. It was pleaded that a partition took place from the date of release deed itself and therefore, the plaintiff received 1/5th share of the portion in the suit property. The receipt relating to partition was prepared in 5 sets and one set was kept by the plaintiff on 18.9.1988. All the allegations made by the plaintiff were denied. On the contrary, it was mentioned that on the document of the partition, Jaish son of the plaintiff had also placed his signatures. Under such circumstances, it was prayed that the suit filed by the plaintiff may be dismissed with cost.
4. The learned Additional District Judge, after considering the pleadings of the parties prepared as many as 9 issues and one additional issue and after recording the evidence, the suit was decreed for declaration, partition and possession of the plaintiff.
5. I have heard the learned counsel for the parties at length.
6. The learned senior Advocate for the appellants has submitted that an understanding took place between the parties for execution of document, Ex.P/11, a release deed given by two brothers of the plaintiff and thereafter, the parties were in possession according to the partition and therefore, a receipt of partition was prepared on 18.9.1988. -:- 5 -:- First Appeal No.2 of 2004 The plaintiff has filed a document, Ex.P/9 and other documents to show that names of the defendants No.2 to 4 were given as owner of the property alongwith the plaintiff. From the evidence of the plaintiff and his son Jaish, the learned senior Advocate read so many portion to show that execution of partition receipt was done in a proper manner and the plaintiff received the original document without any delay but, he kept silent for two years before filing the suit, which indicates that the plaintiff had agreed with the partition. It is also submitted that the plaintiff proved the case of the defence by his own documents and therefore, the property was devolved in 5 persons and each of them had 1/5th share in the property and therefore, the document was prepared accordingly. The document is duly notarized and there is no doubt in the document, which was prepared in five sets. The learned senior Advocate read the evidence of the plaintiff and his son to show the various contradictions and therefore, it is prayed that decree passed by the trial Court may be set aside.
7. On the other hand, the learned senior Advocate for the respondent No.1 [Dead and represented by his Legal representatives respondents No.1 (1) and 1 (2)]. has submitted that if the entire evidence of the defendants as well as the plaintiff and witnesses is perused then, it would -:- 6 -:- First Appeal No.2 of 2004 be apparent that the conclusions drawn by the trial Court were correct. The learned senior Advocate read out some portion from the judgment of the trial Court. He explained about the conduct of the plaintiff that he was an infirm person and therefore, after receiving the document, Ex.P/1 and Ex.P/2, he had sent his son to inquire the matter and thereafter, he himself visited Betul, to give a legal notice to the defendants No.2 to 4 and to file a civil suit. The reliance is placed by the learned senior Advocate for the respondent No.1 on the judgment passed by the Division Bench of this Court in case of “Sirmul Vs. Smt.Annapurna Devi Ravi Kumar Awasthy”., [(2001) (2) M.P.L.J.
339]. to show that the plaintiff was dependent on the appellants and therefore, according to the provisions of section 111 of the Evidence Act, burden of proof was on the defendants No.2 to 4 to prove that no fraudulent act has been done by them. It is prayed that the appeal may be dismissed.
8. After considering the submissions made by the learned counsel for the parties and looking to the evidence adduced by the parties before the trial Court, it is apparent that by the document, Ex.P/11, the appellants did not get the 1/5th share in the property. Whatsoever may have been the wish of Asai Bai and it might be mentioned in the document, but this document, Ex.P/11 a release deed -:- 7 -:- First Appeal No.2 of 2004 cannot take the shape of a will executed by Asai Bai and therefore, the property left by Asai Bai should have been devolved to her legal representatives and therefore, by release deed, Ex.P/11, the brothers of the plaintiff could relinquish their share but, by the said deed they could not decide the share of the plaintiff. Under such circumstances, by document, Ex.P/11, no better right was received to the appellants. Similarly, if names of the appellants and the plaintiff were recorded in the revenue records and an entry of that record is shown as Ex.P/9 then, by perusal of that entry, it would be apparent that no share was declared in the entry that all the persons who were nominated in the entry shall get the equal share. Under such circumstances, by document, Ex.P/9, it would be apparent that name of the plaintiff was also mutated on the property in the dispute alongwith defendants No.2 to 4.
9. The learned counsel for the appellants has submitted that from the date of release deed, the partition took place and the parties were in possession accordingly. The property in dispute are two open plots adjacent to each other and therefore, without any construction on that property, it cannot be said that the possession of the parties was separated or the appellants were in possession of 4/5th portion of the property. The appellants have produced some -:- 8 -:- First Appeal No.2 of 2004 receipts to show that they gave 4/5th portion of the revenue to the Municipality of Betul. However, it is no where established that receipts which were obtained by paying the revenue on behalf of the plaintiff were given to the plaintiff and that was in the knowledge of the plaintiff that he had only 1/5th share in the property. Under such circumstances, by such document of revenue, no right is accrued to the appellants in the property as claimed by them.
10. The entire case depends upon the documents, Ex.P/1 and Ex.P/2 alleged to be executed by the plaintiff. The learned senior Advocate has read the statements of the plaintiff Dhanji Bhai (P.W.1) and witness Jaish (P.W.3) to show some minor contradictions that what was the purpose of visit of Dhanji Bhai in the year 1998. However, by such minor contradictions, the testimony of the witnesses cannot be impeached. The plaintiff had examined Dr.Yogesh Gadhekar (P.W.5) to show that the plaintiff was suffering from 60% bony disability and therefore, version of the plaintiff can be accepted that he shifted to Mumbai to reside with his son and therefore, he was dependent upon the appellants for prosecuting his property problem. Under such circumstances, as law laid by the Division Bench of this Court in case of Sirmal (supra), it is apparent that the plaintiff was an infirm person, who was dependent upon the -:- 9 -:- First Appeal No.2 of 2004 appellants and therefore, by provisions of section 111 of the Evidence Act, it was for the defence to prove that no fraudulent representation was done before the plaintiff.
11. Under such circumstances, the entire case depends upon the document, Ex.P/1 and Ex.P/2. It is very strange that document, Ex.P/1 was the main document relating to receipt of partition deed but, in the entire text of that document, it is no where mentioned that what was the share of the plaintiff and what was the share of the defendants. If it was settled between the parties that the plaintiff shall get 1/5th share in the property then, there should have been no problem to the defendants to mention such position in the main document. It is alleged that 5 sets of the document were prepared. It is also contended that the document, Ex.P/2 was not a separate document but, it was a part of document, Ex.P/1. It is apparent that on document, Ex.P/1, signatures of the witness Jaish, son of the plaintiff were taken by the defendants but, his signatures were not taken on the document, Ex.P/2 or on the similar page on the other side. No reason has been assigned as to why the signatures of Jaish were not taken on the second page of the document. If some sets produced by the defendants before the trial Court at Ex.D/2 to Ex.D/5 are perused then, it would be apparent that such sets were prepared from -:- 10 -:- First Appeal No.2 of 2004 document, Ex.D/1 by typing and with the help of carbon paper but the second page which was shown as document, Ex.D/2 was photo copy of the back of documents, Ex.D/2 to Ex.D/5, whereas the signatures of the plaintiff and other persons were appended against the serial number of the persons. Looking to the execution of such documents, where signatures of Jaish were not taken on the second page, a doubt is created that the complete map of the property was not prepared at that time when the signatures of the plaintiff was taken on these documents. It also appears that first page was prepared and signatures of plaintiff and his son were taken on the first page of the document, whereas on the back of the document, signatures of the plaintiff was taken and signatures of the plaintiff was taken on the blank page and thereafter, document Ex.P/2 and the back portion of other documents, Ex.D/2 to Ex.D/5 was prepared by help of photo copy etc. Since second page of the document was not available at that time and there was no possibility that Jaish would append his signature on the blank document, signature of Jaish could not be taken on the second page.
12. In this connection, it was to be proved by the appellants that the documents were properly executed and duly notarized. If the statement of notory Shri V.K.Mishra (D.W.5) is perused then, he has shown the signatures -:- 11 -:- First Appeal No.2 of 2004 appended by the various litigants on Ex.D/2 to Ex.D/5. Shri Mishra (D.W.5) was examined before the Court to show that the documents were executed before him and he notarized the document before the parties and one set of document was given to the plaintiff. If the plaintiff appeared before the notary then, his signatures must be appended in the register of the notary against the due entry of notary relating to these documents but, no single question was asked to Shri V.K.Mishra in his examination in chief to mark the signatures of the plaintiff in his register and therefore, it is presumed that there was no signature appended by the plaintiff in the register of the notary. Under such circumstances, the statement given by the plaintiff appears to be acceptable that he was not taken to any notary and he was given an assurance that one set of the document will be sent to the plaintiff after its due notarization. The statement given by the plaintiff Dhanji Bhai is duly corroborated by his son Jaish that no complete set of notarized document was handed over to Jaish in his visit. Their statement can be accepted that the plaintiff received one set of document through Dhanji Bhai afterwards. If documents were duly executed and notarized simultaneously then, there was no problem to the defendants to give one set of the documents to the plaintiff then and there, as they claimed in their -:- 12 -:- First Appeal No.2 of 2004 statements. Since there was no signature appended by the witness Jaish on the second page of the document on any of the set and no set of the document was given to the plaintiff after its execution then, it indicates that some fraudulent representation was done before the plaintiff and a document was prepared against the will of the plaintiff though he could not get the knowledge of that misrepresentation. Also, it is pertinent to note that on the first page of the document, for example, document Ex.P/1, nothing has been mentioned about the share of the plaintiff or the defendants. That document was wisely prepared that entire portion was left to be shown on a map. Under such circumstances, the learned Additional District Judge has rightly held that the document was prepared with misrepresentation and in the fraudulent manner which has no effect in the eye of law.
13. The appellants tried to raise so many issues which were not related to the property. The appellants did not take defence that they purchased the share of the plaintiff by payment of profit etc. in other property but, neither it was the case of the defence that they purchased the share of the plaintiff, nor they proved it. However, so many complications were created by the appellants to hide their misrepresentation and fraudulent activity. -:- 13 -:- First Appeal No.2 of 2004 14. The learned senior Advocate has submitted that the plaintiff has admitted that he received the copy of the document within four months from its execution then, why he had not filed a civil suit within a short span of time. The conduct of the plaintiff cannot be condemned and by such conduct of the plaintiff, it cannot be presumed that the plaintiff appended his signature on the documents voluntarily and thereafter, he took a somersault. The plaintiff who was a handicapped person could not do more, except to initiate a legal proceeding before issuance of the legal proceeding. It was for his son to visit Betul and to create a document and thereafter, to decide as to whether an Advocate may be engaged at Mumbai or at Betul and thereafter, to prosecute a civil suit. Looking to the infirmity of the plaintiff, he had filed a civil suit within the limitation and it cannot be said that he appended his signatures on the various documents like Ex.P/1, Ex.P/2 or Ex.D/2 to Ex.D/5 voluntarily.
15. On the basis of the aforesaid discussion, it is apparent that the decision given by the learned Additional District Judge on the various issues is correct and therefore, the document, Ex.P/1 alongwith Ex.P/2 and its analogous sets have no legal effect on the rights of the property and therefore, the learned Additional District Judge has rightly -:- 14 -:- First Appeal No.2 of 2004 declared the share of the plaintiff/respondent No.1. The trial Court has also decided the portion which was to be received by the plaintiff and directed for possession. Looking to the dispute between the parties, it was in the interest of the parties that a partition be directed between them and since the plaintiff had half of the share in the property therefore, he was entitled to get the possession of his share. The learned Additional District Judge has not committed any error in passing the decree of declaration, partition and possession in favour of the plaintiff. The appellants could not prove any reason by which the appeal filed by them can be accepted.
16. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby dismissed with cost by affirming the decree and judgment passed by the trial Court. The appellants shall be liable to pay the cost of the respondents No.1 (1) and 1 (2) incurred by them in defending the present appeal.
17. A copy of the judgment and appellate decree be sent to the trial Court alongwith its record for information and compliance. (N.K.GUPTA) JUDGE239/2013 Pushpendra