C.A.V JUDGMENT
1. The original defendant nos. 1 and 2 have filed this First Appeal against the judgment and decree dated 17.12.1976 passed by the learned Additional Subordinate Judge II, Biharsharif in Title Suit No. 206 of 1972/27 of 1975. Both the original appellants died and they have been substituted.
2. The plaintiff-respondent no. 1, Smt. Chando Devi filed the aforesaid suit for declaration that the registered sale deed dated 03.04.1967 alleged to have been executed by her and defendant no. 3, Dipan Mahton in favour of the defendant nos. 1 and 2 with respect to schedule A property is fraudulent, sham and showy document and without consideration. After declaration, the plaintiff claimed 1/4th share in the property and further for partition of the same.
3. The plaintiff-respondent no. 1, Smt. Chando Devi claimed the aforesaid relief alleging that Fakira Mahton was the admitted owner of the suit property. He gifted by registered gift deed the suit property in favour of his daughter, Panbaso Kuer and maternal grandson, Dipan Mahton, defendant no. 3 who is one of the sons of Radhe Kuer, the another daughter. The plaintiff is only daughter of Panbaso Kuer. According to the plaintiff, said Fakira Mahton had two daughters only i.e Panbaso Kuer and Radhe Kuer. Plaintiff is daughter of Panbaso Kuer whereas defendant nos. 3 and 4 namely Dipan Mahton and Suresh Mahton are two sons of Radhe Kuer. The defendant nos. 1 and 2 are wives of defendant nos. 3 and 4. Panbaso Kuer died in 1966 leaving behind Fakira Mahton, father of plaintiff who is defendant no. 5 and the plaintiff, Smt. Chando Devi as her heirs. They came in joint possession of the properties with defendant nos. 3 and 4. The defendant nos. 3 and 5 were managing the property. In the year 1972, the defendant no. 3 refused to give share to the plaintiff on the ground that she has sold the land in1967, as such, she has no interest in the property. Thereafter, her husband obtained certified copy of the sale deed and they learnt that a sale deed has been fabricated fraudulently by defendant no. 3. He had taken thumb impression on the plea of taking loan from Government and fraudulently used the thumb impression and created sale deed in question. The sale deed is forged, fabricated and the plaintiff never signed any such sale deed after knowing the implication and nature of the deed and its contents. The signature of attesting witness Gokhul Mahton is also forged. The recital in the sale deed that the plaintiff was in need of money is false. The father of the plaintiff is in the clutches of defendant no. 3 as he is residing with him jointly.
4. The defendant nos. 1 and 2 filed contesting written statement alleging that they have purchased the land for Rs. 10,500. Prior to sale, the plaintiff and defendant no. 3 made declaration that they intend to sell the suit property as the joint family of defendant nos. 3 to 5 was in need of money. The sale deed was executed and registered by plaintiff and defendant no. 3 on 03.04.1967 The defendant no. 5 did not execute the sale deed as he was ill. The defendants denied the allegation that they have played fraud on the plaintiffs. According to the defendants, the plaintiff and defendant no. 3 appeared before the Registrar and acknowledged execution and registration of the deed. Prior to execution and registration of the deed, the defendant no. 1 and 2 had already paid the part of the consideration amount of Rs. 4,500 on 02.04.1967 A part of the suit land was mortgaged to one Ramadhin Singh for Rs. 1,000 and the defendants kept Rs. 1,000 out of the consideration amount for payment of the same to the mortgagee. Since the plaintiff had only 1/4 interest in the suit properties, she was entitled to only Rs. 2,625 out of the consideration amount, therefore, in the said consideration amount, the share of the plaintiff i.e Rs. 250 out of the mortgaged amount was adjusted and the rest amount was paid to her after registration. Therefore, there is no unity of title and possession, as such, the sale deed is genuine, legal, valid and for consideration.
5. On the basis of the aforesaid pleadings of the parties, the court below framed the following issues:
I. Is the suit as framed maintainable?
II. Has the plaintiff got any cause of action for the suit?
III. Is the suit barred by law of limitation?
IV. Is the suit property valued and the court fee paid sufficient?
V. Whether the sale deed dated 3.4.1967 is a genuine and valid document for consideration or it is fraudulent and without consideration?
VI. Whether the plaintiff is entitled to a decree for partition?
VII. To what relief or reliefs, if any is the plaintiff entitled?
6. The learned court below after trial, recorded the finding that the defendants failed to prove passing of consideration. The sale deed, Exhibit A is not genuine document for consideration but is fraudulent and for without consideration. The suit is not barred by law of limitation and accordingly, decreed the plaintiff's suit.
7. The learned counsel for the appellants, Mr. Ishwari Singh submitted that the sale deed, Exhibit A is dated 03.04.1967 and the suit has been filed in the year 1972 much beyond three years from the date of execution and registration of the sale deed. Therefore, the suit itself is hopelessly barred by law of limitation. The learned counsel further submitted that since Exhibit A is a registered document, the presumption of genuineness is in favour of the defendants as such, the onus was on the plaintiff to have adduced satisfactory evidence in support of her case that the sale deed is not genuine or that it is a fraudulent sale deed but the court below placed the onus on the defendants to prove the genuineness of the sale deed. According to the learned counsel, the plaintiff was required to file the suit within three years but in this case the suit has been filed after five years but then the court below has wrongly held that the suit is not barred by law of limitation. The learned counsel relying on the decision of the Hon'ble Supreme Court, AIR 1968 Supreme Court 956 (Ningawwa v. Byrappa Shiddappa Hireknrabar) submitted that the fraudulent misrepresentation as to the contents of document is a voidable document, therefore, for avoiding the document, three years time was there according to Article 59 of the Limitation Act. In support of his contention, the learned counsel relied upon other decisions of the Hon'ble Supreme Court 2006 (3) PLJR 179 Supreme Court (Prem Singh v. Birbal) and AIR 2010 Supreme Court 211 (Abdul Rahim v. Sk. Abdul Zabar) and also the decision of this Court in the case of Sita Sharan Prasad /S v. Manorma Devi /S, 2012 (2) P.L.J.R 190.
8. The learned counsel further submitted that except this question of limitation, the appellants are not pressing the other questions because of the fact that the trial court recorded all the findings on the basis of the oral evidences only. If it is held that the suit is barred bylaw of limitation then automatically findings recorded by the court below will have no effect and the plaintiff's suit is liable to be dismissed. According to the learned counsel, because the First Appeal can be decided only on the question of law i.e in the admitted facts and circumstances of the case, the suit filed by the plaintiff is barred by law of limitation.
9. On the other hand, the learned senior counsel, Mr. Rajendra Prasad submitted that on the basis of oral evidences, the court below recorded clear finding that the sale deed is fraudulent document and consideration never passed. Therefore, the suit is not barred by law of limitation and the plaintiff's ultimate relief claimed is for partition of the property. The defendant no. 3 misrepresented before the plaintiff that for obtaining loan, some document is to be created and obtained thumb impression of the plaintiff which was converted to a sale deed, therefore, the plaintiff signed the alleged Exhibit A without knowing the contents of the sale deed, as such, when she came to know about this misrepresentation and fraud committed by the defendant no. 3, she filed the suit. According to the plaintiff, she detected the commission of fraud by defendant no. 3 in the year 1972 after obtaining the sale deed and she immediately filed the suit in the year 1972. Therefore, in view of Section 17 of the Limitation Act read with Article 59 of the Limitation Act, the suit is not barred and the court below has rightly held that the suit is not barred by law of limitation.
10. The learned senior counsel further submitted that in the sale deed, false recital has been mentioned that joint family of defendant nos. 3 to 5 was in need of money, therefore, they sold the property whereas in fact, the defendant nos. 1 and 2 are members of the joint family who have purchased the property. According to the learned counsel, the female members may not be the coparceners but certainly they are members of the joint family. Further, after death of Panbaso, her half share devolved on her husband, who is defendant no. 5 and her daughter, the plaintiff, Chando Devi and remaining half share belonged to defendant no. 3. The defendant no. 5 never joined in the sale deed but the whole property has been sold by Exhibit A i.e share of defendant no. 5 also which clearly indicates that it is nothing but outcome of fraud. Moreover, the plaintiff never received any consideration amount. In such circumstances, the document is a void document. According to the learned counsel, since the plaintiff is rustic, illiterate lady, onus is on the defendants to have proved that in fact, the plaintiff put her thumb impression after understanding the contents and implication of the document, Exhibit A. The court below has, therefore, rightly held that it is for the defendants to prove that in fact consideration was paid and that the plaintiff put her thumb impression after knowing the contents and understanding the nature of the document. The decisions relied upon by the learned counsel for the appellants are not applicable in the present case.
11. Since the appellants are not challenging the other findings of the court below regarding passing of consideration and commission of fraud, it is not necessary here to discuss elaborately other questions. However, since this is First Appeal, therefore, it is necessary to deal with the other points which are interlinked with the point of limitation.
12. In view of the above facts and circumstances of the case, the points arise for consideration in this First Appeal is as to “whether the plaintiff's suit is barred by law of limitation” and “whether the findings of the court below on this question is sustainable in the eye of law?”
13. According to the plaintiff, she is rustic and illiterate lady. It is settled principles of law that the principle for proving the due execution of deed by a pardanashin lady is always on the person who claimed to derive benefit under the deed as has been held by Hon'ble Supreme Court in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai, A.I.R 1963 Supreme Court 1203 and this principle is equally applicable in case of the rustic illiterate lady. Admittedly, in the present case, the plaintiff is rustic and illiterate lady. The defendants never denied this fact. Therefore, the onus was on the defendants to prove that the document of sale obtained from the plaintiff was duly executed by her with all consciousness about its implication.
14. The defendants pleaded in the written statement that a few months prior to the execution and registration of Exhibit A, the plaintiff and co-sharer declared their intention to sell the property and there was negotiation with some other persons. On this question, D.W.2, D.W.3, D.W.5, D.W.6 and D.W.8 have been examined. According to D.W.2, Hemraj Mahton was negotiating on behalf of six intending purchasers whereas D.W.1, Hemraj Mahton has not stated so in his evidence that he was negotiating with plaintiff, Dipan Mahton and defendant no. 5. None of the witnesses stated that the wives of defendant nos. 3 and 4 i.e defendant nos. 1 and 2 ever negotiated for purchasing the property. Moreover, it is surprising to note that if in fact, the wives of defendant nos. 3 and 4 were negotiating to purchase the property then why the matter was publicly announced. It may be reiterated here that they could have discussed the matter in the family itself. There is no explanation as to how and why the negotiation with Hemraj and others failed and then there was re-negotiation with defendant nos. 1 and 2 who are also family members. D.W.6 is defendant no. 1, namely Sharda Devi who also stated that her husband and plaintiff were negotiating with villagers but they purchased the land. As stated above, the other witness, D.W.3 has clearly admitted that there was no negotiation by defendant nos. 1 and 2 with the vendors.
15. From perusal of the judgment of the court below, it appears that on this question, the court below has considered the evidences of the witnesses examined on behalf of the defendants in great details and then recorded the finding that there was no negotiation. At the time of hearing of this First Appeal, the appellants did not point out to this Court any such vital statement made by any of the witnesses which was not considered by the trial court and had that portion been considered, the result would have been otherwise. As stated above, the only point raised is regarding limitation.
16. So far passing of consideration is concerned, D.W.5, D.W.6 (defendant no. 1) and D.W.8 (defendant no. 3) have stated that one day prior to execution of the sale deed, the plaintiff received the consideration amount of her share amounting to Rs. 2,375. It may be mentioned here that this is not the case of the defendant in the written statement. In the written statement, it is pleaded that part payment was made to Keshar Mahton but he did not come for execution and registration, therefore, the balance consideration amount was paid to the plaintiff according to her share after registration of the deed at the time of exchange of equivalents. Except the oral evidence, there is nothing on record to show that balance consideration was paid to the plaintiff. The defendant nos. 1 and 2 in their evidences have stated that Sukan Mahton paid the amount of Rs. 2,375 to the plaintiff. This Sukan Mahton is father of defendant nos. 3 and 4 and father-in-law of defendant nos. 1 and 2. According to D.W.8, the defendant nos. 1 and 2 paid Rs. 4,500 to Sukan Mahton i.e father of defendant no. 3 and Sukan Mahton paid Rs. 2,375. The balance amount of Rs. 5,000 was paid at the time of exchange of equivalents which took place after fifteen days. He also admitted that at the time of exchange of equivalents, the plaintiff was not present. According to him, Sharda Devi, defendant no. 1 gave him Rs. 2,500 and Rs. 2,500 to defendant no. 5 at the time of exchange of equivalents. It may be mentioned here that defendant no. 5 is neither the vendor nor the purchaser who is father of the plaintiff. He is co-sharer to the extent of 1/4 in the suit property. Considering all these aspects of the matter, the court below held that no consideration was paid to the plaintiff.
17. On the question of scribing of the sale deed, D.W.5 has stated that the sale deed was scribed in the house of the scribe. The scribe, D.W.7 has stated that sale deed was scribed in the Registry office. This D.W.7 appears to have scribed the other mortgaged deed dated 13.01.1967, Exhibit F which has been filed by the defendant to show that in fact, the property was mortgaged, therefore, to redeem the same, the defendants were in need of money. So far this Exhibit F is concerned, the same has been executed by Radhe Kuer i.e mother of defendant no. 3. Admittedly, Fakira Mahton was the owner of the property who gifted the property to mother of the plaintiff and Dipan Mahton i.e defendant no. 3. Therefore, Radhe Kuer had no interest, right or title in the property then how this mortgaged deed was executed by her in January, 1967 particularly when the owners were there and they were negotiating to sell the property, therefore, it indicates that this document, Exhibit F has been created for the purpose of evidence in this suit. Further, it appears that the entire suit property has been sold by Exhibit A although, defendant no. 5 has got 1/4 share who has not joined as vendor. Considering all these facts and evidences, the court below recorded the finding that the document is not genuine document.
18. As stated above, all these findings of the court below are based on the oral evidences. The Hon'ble Supreme Court in the case of Madhusudan Das v. Smt. Narayani Bai, A.I.R 1983 Supreme Court 114: 1983 (1) SCR 851 has held that “in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the Evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate Court is entitled to interfere with the finding of fact.” This decision of the Hon'ble Supreme Court has been reiterated again in the case of Santosh Hazari v. Purushotam Tiwari, (2001) 3 SCC 179.
19. In view of the above facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court, in the present case the finding of fact arrived at by the court below is based on the oral evidence and there is nothing on record to show that the finding recorded by the court below is either based on inadmissible evidence or that the same suffers from material irregularity or arrived at because of misreading of the evidence or on conjectures and surmises, I find no reason to interfere with the findings of the trial court on these points.
20. So far the question of limitation is concerned, according to the learned counsel, the sale deed is dated 03.04.1967 and the suit has been filed in the year 1972. Therefore, the suit itself is barred by law of limitation. At paragraph 9 of the plaint, the plaintiff specifically pleaded that the defendants playing fraud on the plaintiff obtained her thumb impression on blank paper which was converted to a sale deed. After discussing the evidences, the court below recorded the finding that the document is a fraudulent sale deed. I have also recorded the same finding in the preceding paragraphs. The further pleading of the plaintiff is that for the first time, she came to know in the year 1972 after obtaining the copy of the registered sale deed. Therefore, in view of this pleading of the plaintiff, she detected the fraud committed by the defendants in the year 1972. Regarding fraud, we have already discussed above, therefore, it is not necessary to repeat the same thing.
21. Section 17 of the Limitation Act provides that where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent, or
(b) ……
(c) ……
(d) ……, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake ………
In view of this provision, according to the plaintiff, she discovered this plot in the year 1972 and the suit has been filed in the year 1972.
22. Article 58 of the Limitation Act provides that suit has to be filed within three years from the date when the right to sue first accrues to obtain any other declaration. Admittedly, in the present case, the right to sue will accrue to the plaintiff only when she discovered the fraud and admittedly, from the date of discovery of fraud, the suit has been filed within three years.
23. So far Article 59 of the Limitation Act is concerned, suit is required to be filed within three years when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. Therefore, the limitation will start running not from the date of execution and registration of the sale deed but from the date when the fraud was discovered by the plaintiff and/or when she came to know about this fact of act of the defendants.
24. The decision relied upon by the learned counsel for the appellants i.e AIR 1968 Supreme Court 956 (Ningawwa v. Byrappa Shiddappa Hireknrabar) (supra) is the settled law. The Hon'ble Supreme Court was considering the old Article of the Limitation Act, 1908 and held that starting point of limitation is not the date of execution of the gift deed but time when fraud becomes known to the party wronged and starting point will be when plaintiff discovered true nature of the deed. Therefore, this decision is not helpful to the appellants in the present facts and circumstances of this case.
25. So far the case of Prem Singh v. Birbal (supra), 2006 (3) PLJR 179 Supreme Court is concerned, it has been held that there is 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. This is the view of this Court also in the case of Sita Sharan Prasad /S v. Manorma Devi /S, 2012 (2) P.L.J.R 190. In both the cases, the documents were not executed by rustic illiterate lady. Moreover, there is only presumption of valid execution which is always rebuttable. The plaintiff specifically adduced evidence in support of the fact that by playing fraud on her, the document was created by the defendants. Therefore, the presumption which was available in favour of the defendants is rebutted by the plaintiff by adducing evidence and on the basis of the circumstances and the evidences, it has been found that by playing fraud, the document was created. Moreover, when both the parties adduced evidences and the court below on the basis of the evidences recorded the finding, now the onus lost its significance.
26. It appears that in the above cases, it has also been held that the suit for cancellation of an instrument would be governed by Article 59 of the Limitation Act. As discussed above, Article 59 do not provide that limitation will start from the date of the execution of the sale deed.
27. The next decision relied upon by the appellants i.e A.I.R 2010 Supreme Court 211 (Abdul Rahim v. Sk. Abdul Zabar), is also not applicable in the present case. It appears that in that case, the suit was filed in the year 1980 for declaration that the deed of gift dated 21.02.1973 was illegal, void and inoperative. In that case, there was no question of fraud and/or that the plaintiff was not knowing the true nature of the document or that he had no knowledge about the said document. Simply suit was filed after seven years. In such circumstances, it was held that suit is barred by law of limitation, as Article 59 of the Limitation Act is applicable. Therefore, the fact of that case is entirely different than the fact of the present case. I, therefore, find that this decision is also not applicable in the present case in favour of the plaintiff.
28. In view of my above discussion, I find that the suit filed by the plaintiff is not barred by law of limitation. The finding of the court below on this question is, therefore, confirmed.
29. In the result, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
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