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  • P.K.Mishra
  • B.K.Behar
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  • Hon'ble Mr. Justice Naba Kumar Das
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Citation Codes
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Advocates
  • P.K.Mishra
  • B.K.Behar
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  • Hon'ble Mr. Justice Naba Kumar Das
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Smart Summary

Summary of the Opinion — Second Appeal (Schedule A properties)

Factual and Procedural Background

Concise narrative based solely on the provided opinion.

Plaintiffs (who are the appellants in this second appeal) instituted a suit for declaration of title in respect of properties described as Schedule A and Schedule B and, in relation to Schedule A, also sought recovery of possession. The present dispute in this Second Appeal relates solely to the Schedule A properties.

The genealogical background (undisputed) is that Ujal and Giridhari were sons of Parikshit. Makunda Sa (now deceased) was the alienee of the entire Schedule A properties from Ujal and Giridhari. Defendants 1 to 4 are Makunda's sons and defendants 5 to 7 are his daughters. Plaintiffs 1 and 4 are daughters of Ujal; plaintiffs 2 and 3 are sons of Giridhari. Original defendants 8 and 9 are daughters, and defendant 10 the widow, of Ujal; defendant 11 is Giridhari himself.

Plaintiffs alleged that the Schedule A lands (holding 32, village Jiratmal under Balangir P.S.) were ancestral properties in the possession of Ujal and Giridhari, that on 30-6-64 defendants 1 to 3 trespassed and disturbed possession, and that Ujal and Giridhari were induced by Makunda to execute a mortgage which, by alleged fraud, misrepresentation and undue influence, was turned into a sale deed in favour of Makunda (sale deed dated 25-7-45 (?), alleged to be without consideration and not for legal necessity, and Makunda did not obtain possession).

Defendants, in their written statement (led by defendant 1), pleaded that Ujal and Giridhari had gone to Patnagarh, had sold their homestead land (Schedule B) in 1943, and had sold Schedule A lands to Makunda for legal necessity after receiving the full consideration. They asserted that Makunda and his family continued in possession and had mutation recorded; they denied undue influence, coercion or misrepresentation. Two minor defendants admitted defendant 1's stance.

At trial the court decreed the suit (in favour of plaintiffs), holding the sale deed (referred to as Ext. B) was without consideration and that defendants 1 to 3 did not acquire title by that deed or by adverse possession. The trial court did not decide legal necessity because it found no consideration. The first appellate court reversed the trial court, holding the transaction was supported by consideration and was made out of legal necessity. The present proceeding is the second appeal against that reversal.

Legal Issues Presented

  1. Whether the sale deed (Ext. B) in favour of Makunda Sa was supported by consideration (i.e., whether consideration had been paid or admitted).
  2. Whether the transfer underlying Ext. B was effected out of legal necessity such as to validate the transfer of ancestral property.
  3. Whether defendants acquired title to the Schedule A properties (either under the sale deed or by adverse possession), and if the trial court's findings on these points ought to be interfered with in second appeal.

Arguments of the Parties

Plaintiffs' (Appellants') Arguments

  • The sale deed (Ext. B) was obtained by Makunda through fraud, misrepresentation and undue influence; it was in substance a mortgage and not a genuine sale.
  • The sale deed was without consideration and not executed for legal necessity.
  • Makunda did not obtain possession; therefore defendants did not acquire title by the deed or by adverse possession.

Defendants' (Respondents') Arguments

  • Ujal and Giridhari sold Schedule A lands to Makunda for legal necessity and received the consideration in full.
  • Makunda and his family continued in possession of the Schedule A lands and got their names mutated in revenue records.
  • Pleadings denied undue influence, coercion or misrepresentation; oral testimony supports legal necessity and passing of consideration.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Nainsukhdas Sheonarayan v. Gowardhandas Bindrabandas, AIR 1948 Nag 110 Endorsement by the Sub‑Registrar of payment of consideration in his presence is prima facie evidence that the amount was actually paid by the vendee. The court relied on this authority to treat the Sub‑Registrar's endorsement on Ext. B as prima facie proof of payment of consideration.
Nawab Mirza Ali Kadar Bahadur v. Indar Parshad, (1896) 23 Ind App 92 (PC) Privy Council authority relied upon for the evidentiary value of registrar's endorsement regarding payment. Cited as foundational support (via the Nagpur decision) for the proposition that registrar endorsements establish prima facie evidence of payment.
Dinesh Chandra v. Satchidananda Mukherji, AIR 1972 Ori 235 Endorsement as to payment of money made in the presence of the Sub‑Registrar gives rise to initial presumption as to payment of consideration. Cited as a follow-up decision by this Court corroborating the evidentiary weight of the endorsement on registration.
Fuljari Lal… v. Ram Sarup…, AIR 1953 Madh Bha 177 Certificate/endorsement of registration has evidentiary value and the endorsed facts are admissible and prevail unless negated by other circumstances. Used to support the proposition that endorsement of prior receipt of money is of considerable evidentiary value and should prevail unless countered.
Gulam Ali Saha v. Sultan Khan, ILR (1966) Cut 571 (AIR 1967 Ori 55) Admission in a document by a deceased executant is admissible under Section 32(3) Evidence Act. Cited to justify treating Ujal's admission in Ext. B of receipt of consideration as admissible evidence despite his death.
Lakshmidhar Sahu v. Kanhei Sahu, 1973 (2) Cut WR 1759 Admissibility and evidentiary effect of admissions contained in documents by deceased persons (Section 32(3) Evidence Act). Relied upon alongside Gulam Ali Saha to validate the evidentiary weight of Ujal's admission in the sale deed.
Jogannath v. Shri Nath, AIR 1934 PC 55 Inference from absence of the best witness — an executant who could speak to necessity — may support the existence of legal necessity in transfers. Applied to infer that Giridhari's failure to testify supported the inference of legal necessity for the transfer.

Court's Reasoning and Analysis

The court proceeded to analyse the case in stages, applying statutory provisions and precedents strictly as appeared in the record.

  1. On registrars' endorsement and proof of consideration:

    The court examined the endorsement on the back of Ext. B by the Sub‑Registrar which recorded that the executants admitted receipt of consideration. It analysed Sections 58 and 60(2) of the Indian Registration Act, noting that Section 58(c) requires endorsement of any payment of money or admission of receipt of consideration made in the presence of the registering officer, and Section 60(2) renders such endorsement admissible for proving the document was duly registered and the facts mentioned have occurred.

    The court relied on Nainsukhdas (AIR 1948 Nag 110) and related authorities to treat such endorsement as prima facie evidence that the amount was actually paid. It held the endorsement on Ext. B "clearly shows" that the executants admitted receipt of consideration.

  2. On admissions by a deceased executant:

    The court noted Ujal was deceased and observed that Ujal's admission in Ext. B of receipt of consideration is admissible under Section 32(3) of the Evidence Act, relying on Gulam Ali Saha and Lakshmidhar Sahu. The admission was treated as a "good piece of evidence" supporting passing of consideration.

  3. On corroborative contemporaneous evidence:

    The scribe of Ext. B testified that the document contents were written according to vendors' instructions. The court regarded this as corroborative of passing of consideration when read with the document's contents.

  4. On oral witness discrepancies:

    Although there were discrepancies in witnesses' oral accounts as to whether payment occurred before the Sub‑Registrar or prior to registration, the court held such discrepancies could not override the clear endorsement and corroborative materials on record. The lower appellate court's observation that witnesses were rustic and from an ex‑State area justified not taking small discrepancies harshly.

  5. On legal necessity:

    The lower appellate court accepted the oral testimony of defendant witnesses (D.W.1 and D.W.4) and found the transfer was made out of legal necessity. The appellate court noted additional circumstances supportive of necessity: Ujal and Giridhari had shifted to Patnagarh and had loans to clear. The opinion emphasised that Giridhari (an executant) did not testify, and by application of Jogannath v. Shri Nath, his absence allowed a reasonable inference in favour of legal necessity. The present court treated the finding of legal necessity as a factual finding supported by evidence and therefore binding in the second appeal.

  6. On sufficiency of evidence and appellate interference:

    The court reviewed the lower appellate court's assessment and concluded that the decision below was based on an appraisal of evidence that did not suffer intrinsic infirmity. The court found there was evidence to support the appellate court's conclusions and no reasonable ground to interfere in the second appeal.

Holding and Implications

Final Disposition: The Second Appeal is dismissed. (Text: "Appeal dismissed.")

Direct consequences for the parties:

  • The reversal by the first appellate court — which held that Ext. B was supported by consideration and that the transfer was for legal necessity — stands. In other words, defendants' titles as recognised by the lower appellate court are upheld by this Court.
  • There is no order as to the costs of this Court (the opinion records "In the circumstances of the case, there will be no order as to costs of this Court").

Broader implications:

This opinion does not announce or purport to lay down any new legal precedent; rather, it applies established principles concerning the evidentiary value of registrar endorsements, admissibility of admissions by deceased persons (Section 32(3) Evidence Act), and the standard for interference in appellate review of findings of fact. The court expressly treated the factual findings below (including existence of legal necessity) as supported by evidence and therefore binding in this second appeal.

This summary has been prepared strictly from the content of the provided opinion and does not add, infer or invent facts or legal points beyond what the opinion itself contains.

Show full summary ...

    Mst. Susila Sa And Others v. Durju And Others

    1. Plaintiffs are appellants against a reversing decision. Plaintiffs filed the suit for declaration of title of the plaintiffs along with defendants 8 to 11 in respect of Schedules A and B properties described in the plaint. Further, they claimed for recovery of possession of Schedule A properties.

    2. The dispute in this Second Appeal relates only to Schedule A properties.

    3. Defendants 1 to 4 are sons and defendants 5 to 7 are daughters of Makunda Sa since deceased. Makund was the alienee of the entire A schedule properties from Ujal and Giridhari who are sons of Parikshit. The properties are admittedly ancestral properties. Plaintiffs 1 and 4 are the daughters of Ujal and plaintiffs 2 and 3 are the sons of Giridhari Sa. Original defendant 8 and defendant 9 are the daughters and defendant 10 is the widow of Ujal. Defendant 11 is Giridhari himself. There is no dispute about the genealogy.

    4. Plaintiffs' case is that Schedule A lands appertaining to holding 32 of village Jiratmal under Balangir P.S were the ancestral properties of Ujal and Giridhari and they were in possession of the same. On 30-6-64, defendants 1 to 3 trespassed into those lands and created disturbance. A proceeding under Section 145 of the Cr PC was started by the plaintiffs which ultimately was decided in favour of defendants 1 to 3. During the course of that proceeding, the lands were sold by Ujal and Giridhari to late Makunda Sa on 25-7-45 (?) by a registered sale deed for a consideration of Rs. 500/-. It is alleged that both of them were illiterate and they were induced by Makunda to execute a deed of mortgage, but by fraud, misrepresentation and undue influence, Makunda got a sale deed executed in his favour. The sale deed is alleged to be without consideration and not for legal necessity. Makunda also did not get possession.

    5. Defendant 1 in his written statement contended that Ujal and Giridhari had gone away to Patnagarh to reside there and they had sold away their homestead land in Schedule B in 1943. They also sold Schedule A lands to Makunda Sa for legal necessity and received the consideration in full. After such purchase, Makunda and his family members continued in possession of Schedule A lands. Makunda also got his name mutated in a duly instituted proceeding. After death of Makunda, defendants 1 to 4 have also divided those lands among themselves and have made improvements on the same. The plea of undue influence, coercion or misrepresentation has been denied. The minor defendants 2 and 3 filed written statement admitting the stand taken by defendant 1.

    6. The trial Court decreed the suit holding that the sale deed Ext. B was without consideration and defendants 1 to 3 did not acquire any title by the said sale deed, or by way of adverse possession. He did not give any finding as to legal necessity on the ground that as the document was found to be without consideration, the question of legal necessity did not arise.

    7. The first appellate court reversed the decision of the trial Court holding that the transaction was supported by consideration and there was legal necessity for such transfer. As against that decision, the present Second Appeal has been filed.

    8. Admittedly, the properties were ancestral properties of Ujal and Giridhari. There was a document Ext. B in favour of Makunda Sa. The trial Court disbelieved the question of passing of consideration on the ground that the oral evidence of witnesses does not fit in with the endorsement on the back of Ext. B made by the Sub-Registrar that the vendors admitted receipt of consideration. The lower appellate court reversed that finding of the trial Court holding that the endorsement of Sub-Registrar on the back of the document shows that the vendors admitted before him that they had already received the consideration.

    9. From the endorsement made by the Sub-Registrar on the back of Ext. B, it appears that the executants admitted before him that they had already received the consideration. Section 58 of the Indian Registration Act provides what endorsement should be made by the registering officer while registering a document. Section 58(c) of the Act provides that he shall endorse any payment of money or delivery of goods made in his presence 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. Under Section 60(2) of the aforesaid Act, the said endorsement is admissible for the purpose of proving that the document has been duly registered and that the facts mentioned as required under Section 59 have also occurred therein. In Nainsukhdas Sheonarayan v. Gowardhandas Bindrabandas, AIR 1948 Nag 110, it has been held that the endorsement made by the Sub-Registrar of payment of consideration in his presence is prima facie evidence that the amount was actually paid by the vendee. Reliance in this respect has been placed on a Privy Council decision reported in Nawab Mirza Ali Kadar Bahadur v. Indar Parshad, (1896) 23 Ind App 92 (PC). This Nagpur decision has also been followed by this Court in Dinesh Chandra v. Satchidananda Mukherji, AIR 1972 Ori 235 and it has been held that endorsement as to payment of money made in presence of the Sub-Registrar gives rise to initial presumption as to payment of consideration of the document. In Fuljari Lal… v. Ram Sarup…., AIR 1953 Madh Bha 177, a Division Bench has held that in a case under the Gwalior Registration Act, 1971, the provisions of which are in pari materia with the Indian Registration Act, the certificate of registration has indeed an evidentiary value attached to it and it is admissible for the purpose of proving that the document has been duly registered and that the facts mentioned in the endorsement made thereunder have occurred as they are mentioned. In this case, there was some payment before the Sub-Registrar and the balance money had already been received before execution of the sale deed and it was held that the endorsement of prior receipt of money is of considerable evidential value and must prevail unless its effect is negatived by other circumstances appearing in the case.

    10. The endorsement made by the Sub-Registrar clearly shows that the executants had admitted before him that they had received the consideration before actually the registration of the document was made.

    11. Of the two executants, Ujal is already dead. This fact is not disputed. From the contents of Ext. B, it appears that Ujal admitted receipt of consideration. This admission by Ujal is admissible under Section 32(3) of the Evidence Act. This principle has been clearly laid down by this Court in Gulam Ali Saha v. Sultan Khan, ILR (1966) Cut 571 : (AIR 1967 Ori 55) and Lakshmidhar Sahu v. Kanhei Sahu, 1973 (2) Cut WR 1759. The admission made by Ujal in the document about receipt of the consideration money is also a good piece of evidence in support of passing of consideration.

    12. The scribe of Ext. B has also said that according to the instructions given by the vendors the contents of the document were written out. This evidence, read with the contents of the document, clearly supports the question of passing of consideration.

    13. Simply because there is discrepancy in evidence of witnesses as to whether the amount was paid before the Sub-Registrar, or prior to registration, it cannot be said, in view of the aforesaid materials available on record, that Court will come to the conclusion that there was no passing of consideration, basing on oral testimony of witnesses. Moreover, it has been held, and rightly held, by the lower appellate court that the witnesses are rustic belonging to an ex-State area and, as such, discrepancy about this fact should not be taken serious notice of. Even assuming that their statements are to be taken serious notice of, the materials available on record, as already found, clearly establish that their testimony cannot override the clear and unambiguous materials available on record.

    14. The lower appellate court, after discussing the evidence, has come to the conclusion that the transaction was supported by legal necessity. Admittedly, Ujal and Giridhari were the fathers of the plaintiffs. The lower appellate Court has believed the oral testimony adduced by the defendants as to legal necessity. It is contended on behalf of the appellants that the evidence of D.W 1 and D.W 4 does not clearly establish legal necessity. This being a finding of fact, is binding on parties in Second Appeal. Giridhari, who is defendant 11 in this suit, is one of the executants of the document. His sons are plaintiffs 2 and 3. Giridhari would have been the best person to speak about legal necessity, but he has not come to the witness-box. This circumstance is sufficient for having a reasonable inference in support of existence of legal necessity. This finding is supported by a decision in Jogannath v. Shri Nath, AIR 1934 PC 55. The lower appellate Court has also accepted the testimony of D.W 1 and has come to the conclusion that he was satisfied about existence of necessity for the transfer. There are other circumstances on record also to support that Ujal and Giridhari were in need of transferring properties. They had already shifted to Patnagarh and they had some loans to clear up. The oral testimony to this effect has been discussed by the lower appellate Court and he has come to the conclusion that there are materials on record which satisfactorily establish that there was legal necessity.

    15. It is contended on behalf of the appellants that the findings of the lower appellate Court are based on no evidence. I was taken through the evidence of witnesses. I am satisfied that it is not a case where the findings are not supported by any evidence.

    16. On the other hand, the decision of the court below is based on assessment and appraisal of evidence on record which does not suffer from any intrinsic infirmity. In view of this, I am of opinion that there is no reasonable ground to interfere with the findings of the court below.

    17. In the result, the appeal fails and is dismissed. In the circumstances of the case, there will be no order as to costs of this Court.

    18. Appeal dismissed.

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    Comments

    Mst. Susila Sa And Others v. Durju And Others
    (Mar 10, 1977)