Mostt Rampati Kuer Vs Mostt Simrekha Devi and ors - Citation 129254 - Court Judgment

Judgment:

P.K. Sinha, J.

1. This first appeal arises out of the judgment and decree recorded by the 5th Additional Subordinate Judge at Motihari in Title Suit No. 206/1966/ 21/1971. The suit having been dismissed by the trial Court the plaintiff has come as appellant and the defendants including substituted heirs are respondents who, for the sake of convenience, will be referred to as the plaintiff and the defendants.

2. Mostt. Rampati Kuer filed the suit aforesaid for declaration of her title over the suit property detailed in Schedule I to III of the plaint as well for recovery of possession over the same and for mesne profit. The case of the plaintiff in brief was that her father-in-law Ram Sunder Sah had a son Rajaram Sah and four daughters, the plaintiff being the wife of the aforesaid Rajaram Sah who predeceased his father. Thereafter, Ramsunder Sah also expired leaving behind his widow, the plaintiff and four daughters. In the year 1951 widow of Ram Sunder Sah also died whereafter the plaintiff came into possession over the entire suit properties left by Ramsunder Sah. Further the case of the plaintiff was that original defendant No. 1, Sotim Sah, as also defendant Nos. 2 and 3 confided in the plaintiff that the daughters of Ramsunder Sah had greedy eyes upon the suit properties, and, thereby induced the plaintiff to execute a Mokhtarnama (power of attorney) in their favour so that they could manage the anticipated litigations. Believing them the plaintiff agreed to their proposal at which those defendants brought the plaintiff to Motihari and kept her there for a week during which period they took her to the Court two or three times and on 6.7.1962 they got two documents executed and the third document on 7.7.1962 purporting the same to be Mokhtarnamas. However, documents were written neither on her instructions nor the same were read over to her. The plaintiff admitted in the plaint that at the time of admission of the execution the Bench Clerk of the Sub-Registrar asked her something which, however, she did not follow. Her claim was that inspite of execution of those documents she continued in possession of the properties but on 5.2.1963 the defendants dispossessed her. Thereafter, on enquiry, she came to know that on 6.7.1962 she was made to execute two sale-deeds, one being in relation to Schedule I properties for a consideration of Rs. 400/- and the other in respect of Schedule II properties for a consideration of Rs. 50/- only. It also transpired that on 7.7.1962 a third sale deed was got executed for the properties detailed in Schedule III of the plaint, for a consideration of Rs. 9000/-. The plaintiff claimed that no consideration was ever paid to her. She also claimed that she was still continuing in the house where she was living which was included in the third sale deed.

3. The defendants including heirs of Sotim Sah filed a joint written statement, denying all the allegations as made against them, claiming that Ramsunder Sah had died leaving behind unmarried daughter and widow Mateshwari, who and the plaintiff had raised loans to arrange the marriage of that daughter and in order to pay back the debt including some other debts that they had incurred, they executed a sale deed in favour of one Kishun Giri and Awadh Giri. Thereafter, after death of Mostt. Mateshari, the plaintiff executed another sale deed in favour of one Ramdeni Giri for the same purpose, hence was quite aware of the procedure relating to the execution of the sale deeds. These defendants further claimed that the brother of the plaintiff often visited her and advised her to dispose of the properties in the village and to shift to her father's place whereafter the plaintiff approached these three defendants for sale of the lands. It was claimed that properties detailed in Schedule II of the plaint had already been given to defendant No. 3 in lieu of Rs. 50/- by Ramsunder Sah himself upon which defendant No. 3 had constructed a pucca house though no deed was executed for that, therefore the plaintiff executed the deed as she was aware of the truth. So far Schedule I properties are concerned, the defendants claimed that Late Sotim Sah had established a brick kiln over that, hence the land had devalued and for that reason the plaintiff sold the land to Sotim Sah for a consideration of Rs. 400/- and received the consideration before the execution of the deed. Relating to Schedule III properties, the defendants maintained that asper the prevailing market rate, price of Rs. 9,000/- was fixed for the property which was sold. It was claimed that the three sale deeds were scribed at the instruction of the plaintiff and she executed those with full understanding of their contents, and for consideration, over which the defendants were given possession.

4. The learned trial Court framed six issues for consideration, the main issues being issue Nos. 3 and 4 which are as follows :

(3) Are the sale deeds in question void and without consideration?

(4) Has the plaintiff any subsisting title to the suit land Is she entitle to recover possession over the same ?

The learned trial Court discussed the evidences adduced by the respective parties and came to the conclusion that the three documents were executed by the plaintiff being aware of the full details, who had understood the implications of those documents. The learned trial Court also came to the conclusion that even if the whole price was not paid prior to the execution of the document, in view of the averments in the registered sale deeds, that would not make those documents to be void. Learned lower Court also considered the valuation of the land.

5. The points for consideration in this appeal would be as follows :--

(i) Whether the sale deeds, Exhibits A, A/1 and A/2 were voidable having been obtained by practising fraud upon the plaintiff, as result of which no consideration whatsoever had passed to the plaintiff?

(ii) if so, to what relief or reliefs is the plaintiff entitled.

6. A lot of documents had been proved and marked exhibits about inadequacy of the consideration. In so far as the first two documents are concerned, learned counsel for the plaintiff, Shri Y.V. Giri, has argued that compared to the consideration amount in the sale deed (Exhibit A/1) which was Rs. 9000/-, it must be held that consideration amounts for Exhibit A and Exhibit A/2 were inadequate thereby suggesting fraud upon the plaintiff. Exhibit A is for a consideration of Rs. 400/- relating to a land measuring 4 katha and 8 dhur which was in favour of Sotim Sah. Exhibit A/2 purports to be a sale deed for 11 dhurs of land to Pana Lal Sah, defendant No. 12 for a consideration of Rs. 50/-. Exhibit A/1 relates to 6 bigha and 7 dhur of land for a consideration of Rs. 9000/- executed in favour of Sotim Sah, Daroga Sah and Ram Ayodhya Sah. All the three documents state that the consideration amount was received, but implication of this and of other averments will be considered at appropriate stage. Exhibit A shows that on that land Sotim Sah about three years back had prepared bricks Whereby ditches had come over the land. Exhibit A/2 also states that the purchaser was in possession over the land and had constructed a pucca house thereupon and was residing in that. Therefore, as per the averments in the sale deeds, the lands in Ext. A and Ext. A/2 were in possession of the purchasers from before and were also much smaller in area as compared to the area in Ext. A/1. In view of that if the documents are found to be valid and genuine, these averments in themselves would show the diminished value of those lands particularly when on one land ditches had come into existence and on the other, the purchaser had already constructed house and was residing therein. But what must be remembered here is that the point of adequacy or otherwise of the consideration, in view of the specific case made out by the plaintiff, is of little value. The clear case of the plaintiff is that she was made to execute documents under influence of fraud that was practised upon her by original defendant Nos. 1 to 3 which she had executed thinking those to be Mokhtarnamas. Therefore, this is the case which the plaintiff has to prove by her evidence, and whether or not consideration amount was received could not be a separate issue in itself, but only incidental to the main issue of alleged practising of fraud by the defendants. Therefore, first it has to be seen whether the plaintiff has discharged this onus and has proved allegation of fraud as claimed by her.

7. Plaintiff is PW 12. She has admitted that she had gone to Motihari with the defendants ostensibly for executing Mokhtarnama where she stayed for six to seven days. As claimed in the written statement, this witness has admitted that she had executed document for some land to Kishun Giri, Ramdeni Giri and Awadh Giri. But she claimed that she had not sold the land but had executed Mokhtarnamas in their favour. This to a great extent supports the case of the defendants that she had earlier sold those lands to those persons. This witness has not given any reason for executing so many Mokhtarnamas including in favour of earlier purchasers.

8. Her claim was that the defendants had gone to her and had told her that her Nanads were going to stake claim over the lands, therefore advisable it was for her to execute mokhtarnama in their favour so that they could defend her in the anticipated litigation. The plaintiff in cross-examination has said that her Nanad had demanded share in the land. She also admitted that her Nanads used to visit her though since last six months they had not come. She was examined in May 1974 whereas the suit is of the year 1966. From this evidence it appears that years after institution of the suit the Nanads had continued visiting her and from her further evidence it appears that she actually had no difference with them as she also said that whenever her Nanads visited her, she welcomed them and there were no differences, nor any quarrel had ever taken place, between them. This being the position it does not appear reasonable that just on some people telling her about anticipated demands by Nanads and consequent litigations, she would readily agree to execute Mokhtarnama in their favour who were in no way related to her.

9. Admittedly the plaintiff had earlier executed some other documents also. About execution of these documents she said that she had brought one Gudar Sah with her and all the documents were got scribed by the said Gudar Sah and before affixing her LTI she had asked Gudar Sah as to whether or not the documents were correctly written. This Gudar Sah is PW 8 a witness on her behalf. This witness said that about nine years back the three defendants who were his 'Pattidars' had talked with the plaintiff and Ram Ayodhya Sah told the plaintiff that if she executed Mokhtarnama in his favour, he would be fighting on her behalf without troubling her. The same was said by other two defendants. This witness has also admitted that plaintiff was also her 'pattidar' and the plaintiff's mother-in-law had executed a sale deed in favour of Bishwanath on which he has put his signature, which was marked Exhibit A/1. This witness, as claimed by the plaintiff, was all along with her and got scribed the three documents, but this witness has not said anything about practising of fraud by the defendants while the documents were being scribed, nor he has denied that documents were scribed at his instructions. Therefore, this to a considerable extent weakens the case of the plaintiff that the documents were got scribed by the defendants.

10. In so far as differences with Nanads are concerned, this witness though said that the Nanads had called panchayati for the land and demanded shares but admitted that the Nanads never interfered in the possession of the plaintiff. He also admitted that even after panchayati the Nanads whenever came they stayed at the place of the plaintiff and were fed by her and on occasions Nanads were called by the plaintiff also. However, on this point it may also be noticed that the plaint no where has stated that the plaintiff really had any difference, or any quarrel had erupted, between the two on account of the properties.

11. Now coming to the alleged fraudulent execution of documents, other evidences of the plaintiff on the record may be seen. PW 1 admitted that he had no concern with the cultivation of the plaintiff and admitted that the plaintiff was residing in a hut erected upon the land of Gyani Sah. This nullifies the claim of the plaintiff that she still was in possession of the house that was sold through Ext. A/1. On the main point his evidence is not very relevant. PW 2 has admitted that 11 dhurs of land was in possession of Ram Ayodhya Sah since four years, prior to which there was a thatched structure thereupon for keeping husk. Again he said that Ram Ayodhya Sah had possession over the land since last eight to nine years. According to this witness on or two years after execution of 'Mokhtarnama', the purchasers had removed the plaintiff from the homestead land. This evidence would show that she lost possession over the land over which house was situated before institution of the suit which also nullifies her claim about continued possession over the house. The evidence of this witness rather supports the defendants. PW 3, admitted possession of Ram Ayodhya Sah over 12 dhurs of land since last eight years. He also admitted that there was a brick house of Ram Ayodhya Sah over the land and then corrected himself to say that it was a thatched house. PW 4 is a formal witness who has proved a sale deed executed by Uday Bharti who the defendants have claimed in the written statement was instrumental behind the institution of the case.

12. PW 5 took the same stand to say that Ram Ayodhya Sah had possession over 2 and 1/4 bighas of land since last eight years, earlier belonging to the plaintiff. This witness admitted that he also had purchased land from the plaintiff through registered sale deed on which he had possession. PW 6 has proved some choukidari receipts, Ext. 2 Series. PW 7 is a formal witness and has proved sale deed as executed by one Aditya Narain but no party referred to this document in arguments. PW 9 has also proved sale document. Other sale-documents have been proved to argue about the valuation of the land in the village which aspect of the case I have already dealt with.

13. PW 10 has spoken about the valuation of the land in the village. On the relevant point the evidence of this witness is not important.

14. PW 11 said that he knew scribe Basudeo Lal and had seen him scribing for the Sah people.

15. By the evidences aforesaid as adduced by the plaintiff has not proved that any fraud was practised in getting the documents executed.

16. PW 12 the plaintiff in her evidence has stated that after she affixed her LTI upon the documents, the documents were brought before the Registrar and she had gone alone in the court of Registrar, though she claimed that Registrar did not asked anything. She also admitted that twice she had gone before the Registrar. Though she claimed that she did not get any receipt for the document (known as chirkut), but admitted that subsequently she gave her LTI over three printed papers which were taken by the three defendants and on the next day they ploughed the land.

17. From the evidences aforesaid it is apparent that earlier also the plaintiff had executed documents including sale deed as claimed by PW 5. Therefore, it cannot be said that she was unaware of the procedure of the execution of the deeds. She admits that twice before the Registrar she had gone but he did not ask anything, though in the plaint she has claimed that the Bench Clerk of the registrar had asked her something which she did not understand.

18. Such bland pleas after execution of documents cannot be accepted just on the strength of the claim that fraud had been practised, Section 34 of the Registration Act, 1908 makes it a must that the executant or his representative or agent, duly authorised appears before the Registering Officer whereupon the Registering Officer will make inquiries and satisfy himself as provided under Sub-section (3) of Section 34 of the Act. Elaborate procedures have been provided under the Registration Act to safeguard against any fraud in the execution of a document. There is a presumption under Section 114 of the Indian Evidence Act that official acts have been performed in accordance with the procedure. Therefore, when a document has been duly registered there will be a presumption that it has been registered in accordance with the law and onus lies heavily on the person who claims that it was not so. Obviously the plaintiff has failed to discharge this onus.

19. I have already stated that the point of payment of consideration which was the main point of arguments by the learned counsel for the plaintiff, in the circumstances of the suit would only be incidental to the main claim as made by the plaintiff, i.e., an incidence to show that since no consideration passed, that tended to prove the main claim of the plaintiff.

20. It is obvious from the evidence of the defendants that the consideration amount was paid a few days after the execution of the documents. Whether or not title could pass without payment of consideration at the time of, or before the execution of documents can be discerned from the averments made in such a document. While claiming that no title could be deemed to have passed to the defendant, Shri Giri has relied upon certain decisions. In the case of Baldeo Singh v. Dwarika Pd. Singh, AIR 1978 Pat 97, a Division Bench of this Court held that the question whether title passes on mere execution and registration of a deed or on payment of consideration depended upon the intention of the parties, to be gathered from the deed. It was held that if from the recital of the deed it transpired that the parties had agreed that title would pass to the vendee only after payment of the full consideration money, then if consideration money was not paid at the time of the execution and registration of the deed, the title would not pass to the vendee. It was observed by their Lordships that though the sale deed might recite that the consideration money had been paid, there was nothing to prevent the parties from adducing evidence to show that the recital was untrue and that, in fact, the consideration was not paid. However, the present is not a case in which the plaintiff has claimed that the title was to pass on payment of money which was not paid by the time the registration took place, hence the title did not pass.

21. In the aforesaid case their Lordships had also held that where the vendee agreed under the terms of the sale deed to pay the consideration money at the time of the execution and registration of the deed, but failed to make such payment at that time, the vendee could tender or pay the money within a reasonable time but before the vendor repudiated the contract of sale, whereafter the vendee would acquire a valid title to the property. This court, as was pointed out, in the case of Srimati Raja Rani Devi v. Commissioner of Income Tax, 1992 (2) PLJR 833, had also held that title did not pass on the mere execution and registration of sale deed rather passing of title was to be governed under the intention of the parties which had to be gathered from the sale deed itself.

22. On the other hand learned counsel for the defendants has placed reliance on a decision of this court in the case of Ramdhari Rai v. Gorakh Rai, 1931 Vol. 12 Patna Law Times 570. Learned counsel submitted that, as held in this case by a single Judge, title passed to the vendee on the execution of sale although the purchase money remained wholly or partly unpaid except where there was an agreement that the sale should take effect only if the consideration was first paid.

23. If consideration amount is not paid at the time of execution of document and its registration, the contract between the parties stipulating that the title would pass only after payment of the consideration, then the title would not validly pass to the vendee. But in -absence of such stipulation in the contract, the intention of the parties has to be gathered from the terms of the agreement itself.

24. The three sale deeds stipulate that the entire consideration amount was paid and possession also was handed over to the vendee. As already seen as per Ext. A and Ext. A/2 the possession of the vendee was upon demised land from before. But evidence would show that the money was paid a few days after the execution of the document. If the money was not paid at the time of the execution or registration of the document and still the vendor stipulated in the deed that the consideration was paid, this would only indicate that the vendor had also agreed to receive the consideration amount within a reasonable period. If the amount was paid within a reasonable period, but before the sale was repudiated by the vendor on that account, the title would pass to the vendee. Now evidence about payment of the consideration may be looked into.

25. PWs 1 and 2 have not said anything relating to payment of consideration whereas PW 3 has showed his ignorance about plaintiff executing three sale deeds. Other witnesses also have not said anything specific about payment of the consideration or absence of it expect the plaintiff herself. The plaintiff though in the beginning has claimed that no money was given to her but she also said that she was demanding her lands because the defendants had not paid her money. Here she does not say that she filed the suit on the ground that she had not at all knowingly executed any sale deed.

26. DW 1 lives near the house of the plaintiff and he said that she had asked him to search out purchasers for her land which he told to the three purchasers who were defendants and claimed that money was paid to the plaintiff at the door of Ram Ayodhya Sah, a bit less than Rs. 9,500/- after which the plaintiff handed them over the three receipts for the documents after giving her thumb impression. DW 2 also came to say that Daroga Sah and Ram Ayodhya Sah had paid Rs. 9,450/- to the plaintiff as consideration for the sale deeds whereafter the plaintiff handed them the receipts of the documents by affixing thumb impression. He also admitted that his son was married in the family of Daroga Sah. He also claimed that all the three had paid their share in the consideration amount which was given to Ram Ayodhya Sah who handed over the same to Rampati Kuer at his 'osara'. DW 3 also has made similar claim about payment of the aforesaid amount to the plaintiff by the three purchasers and also about her handing over the receipts to them. He also said that money was given at the 'osara' of Ram Ayodhya Sah. DW 4 also said that all three had collected money and handed over to Ram Ayodhya Sah. He also claimed that Sotim Sah had purchased land from the plaintiff. DW 5 has proved exhibit A and A/1 as the describe of those deeds claiming that the same after having been scribed were read over to the vendor and were prepared on the instructions of the vendor. He admitted that no money was paid in his presence. DW 4 has proved Exhibit A/2 as its scribe claiming that he had written the document at the instruction of Rampati Kuer.

27. DW 8 is Daroga Sah, defendant No. 2, who has supported the purchase of lands through registered sale deeds on consideration of Rs. 9000/-. He also claimed that the plaintiff had admitted execution before the Registrar and had handed them over the receipts of the documents after getting the money. He admitted that he had no money on the date the documents were executed and registered. He said that he arranged money from the sugar mill five or six days after the registration of the documents and the entire money was paid at the 'darwaja' of Ram Ayodhya Sah. He has said that at that time Rampati Kuer was given Rs. 9000/-. This has been argued by the learned counsel for the appellant that this witness does not say about payment of Rs. 9,450/-. However, this witness was interested in the land that was sold on consideration of Rs. 9000/-, therefore if he does not say amount of payments by others for other two documents, that would not affect the case of the defendants.

28. PW 9 is Ram Ayodhya Sah who also has given evidence about purchase of lands including that one which he had purchased with Sotim Sah and Daroga Sah for a consideration of Rs. 9000/-. He admitted that after 6 to 7 days the consideration of Rs. 9000/- was paid. However, he also said that the plaintiff had received considerations of Rs. 50 and Rs. 400, respectively, earlier. He claimed that after payment the plaintiff gave the receipts to them as also possession. This witness was questioned about purchase of 11 dhurs of land (In the name of Pana Lal Sah) and said them it was sold verbally by Ramsunder Sah before his death, for which subsequently registered deed as aforesaid was also obtained from the plaintiff. This witness also claimed that no particular date was fixed for payment of money and that though he had ready money the plaintiff was told that the money would be paid as soon Sotim Sah and Daroga Sah raised the amount, which entire amount was paid at his 'darwaja'.

29. Madan, son of Sotim Sah is PW 10 who also similarly stated about purchase of the land including 4 katha 8 dhurs of land on which brick kiln was established from before, he claimed that three years after the brick kiln was established, they had talked about execution of the sale deed. This witness has said that Daroga Sah had settled purchase of land through Ext. A/2 for Rs. 9,000/-and at that time he had told Rampati Kuer to separately execute sale deed for the land upon which brick kiln was running for which she demanded Rs. 400/- which was given to her by his father.

30. This is the evidence on the record.

31. Some contradictions in the evidence about payment of the money had been pointed out by the learned counsel for the appellant. But preponderance of evidence is in favour of the payment of the consideration amount to the plaintiff only a few days after the sale deeds were executed. In any case, it was the plaintiff who had to prove that fraud was practised upon her in the manner as claimed, which she has failed to accomplish. Therefore, some minor contradictions in the evidence of defendants cannot come to her rescue.

32. It also does not appear to reason that the plaintiff could agree to execute power of attorney in favour of three persons and that, too, by three separate deeds thereby enabling them to pursue their own course separately in conflict with the interest of the plaintiff. The story as to why she would agree to execute Mokhatarnama in favour of the aforesaid defendants is also not convincing.

33. From what has been discussed above I find no scope of interfering with the judgment and decree of the learned lower Court. The plaintiff, obviously, is not entitled to any relief. This answers the two issues framed in this appeal.

34. Before parting with this judgment it may be mentioned that while arguments were concluding a petition was filed on behalf of defendant No. 10 stating therein that after death of respondent No. 1, Sajwal Sah, his heirs were brought on record including one Ram Chandra Sah, further stating that the aforesaid Ram Chandra Sah had died on 21.8.2002 but no substitution petition was filed. It was stated that it should be noted that the appeal had abated, as also for direction to the appellant to file requisite application for substitution. A reply thereafter was filed stating therein that after the death of original respondent No. 1, Ram Chandra Sah was substituted in his place alongwith other heirs and out of those substituted heirs Class I (mother) and Class II heirs (brother) of Ram Chandra Sah are already on record representing his interest, hence no abatement had taken place. !n view of such submissions in the petition of reply, which have not been controverted by the other side, this appeal obviously has not abated. In the circumstances the name of respondent Ram Chandra Sah shall be deleted from the memo of appeal.

35. In view of the discussions in the preceding paragraphs, I find no merit in the appeal which is, accordingly, dismissed. Appeal dismissed.

Subject	;Property
Court	Patna High Court
Decided On	Dec-12-2003
Case Number	Appeal from Original decree No. 114 of 1973
Judge	P.K. Sinha, J.
Acts	Registration Act, 1908 - Sections 34 and 34(3); Evidence Act - Sections 114
Appellant	Mostt. Rampati Kuer
Respondent	Mostt. Simrekha Devi and ors.
Appellant Advocate	Y.V. Giri and Raju Giri, Advs.
Respondent Advocate	Sidheshwari Pd. Singh and Jagarnath Jha, Advs.
Disposition	Appeal dismissed

Mostt. Rampati Kuer Vs. Mostt. Simrekha Devi and ors. - Court Judgment