Shri Kripa Ram And Ors. v. Smt. Maina

Kuldip Chand Sood, J.:-

(1) This second appeal arises out of the judgment and decree of the learned district judge, sirmaur at nahan dated june 10, 1998. Facts necessary for the disposal of this appeal may be noticed: maina devi, plaintiff and respondent in this appeal, hereinafter referred to as "the plaintiff is the owner in possession of the suit property along - with proforma defendants. Contesting defendants, "appellants herein" namely, kripa ram, som dutt, rama nand and rajinder are the real brothers. Plaintiff maina devi laid a suit before learned sub judge 1st class, kandaghat, district solan for declaration that she was the owner in possession of the suit property and the sale deed of the property, allegedly executed by her on may 18, 1992, in favour of the contesting defendants was without consideration and result of fraud and misrepresentation. Therefore, the sale deed as well as consequent mutation attested in favour of the contesting defendants on september 19, 1992, was null and void and not binding on the plaintiff. Plaintiff also sought relief of permanent injunction restraining the contesting defendants from interfering in the suit property in any manner either themselves or through agents, servants, relatives or assignees.

(2) The case of the plaintiff was : she was a issueless widow of about 70 years of age. There was nobody to lookafter her in the family of the plaintiff in old age. Kripa ram, the eldest of the contesting defendants, was namberdar of the village and, therefore, was a powerful and influential person. In march 1992, kripa ram visited the plaintiff, in her house, and told the plaintiff that he and his brothers would lookafter her if she executes a registered will in their favour. Plaintiff agreed to the proposal. On may 18,1992, she was brought by the defendants to the tehsil office at rajgarh with an understanding that she was to execute registered will of her share in the suit property in favour of the defendants. On september 15, 1993, plaintiff went to the patwari halqa, to obtain revenue papers of her land to raise loan from' the bank. To the dismay of the plaintiff, she came to know from the patwari that her entire land measuring 45 - 14 bighas has been mutated in favour of the contesting defendants on september 19, 1992 on the basis of the sale deed and no land was left in her share. Plaintiff filed a complaint before the deputy commissioner, sirmaur but nothing came out. On the advice of her advocate, she obtained copies of the sale deed and mutation no. 346 and thereafter, she came to know that instead of will, the defendants got a sale deed executed from her, which was registered with the sub - registrar at rajgarh it was the further case of the plaintiff that witnesses of the fraudulent sale deed were not present on the day when the plaintiff was brought, to tehsil head quarters at rajgarh to execute the will. According to her, the sale deed bears the date of may 18, 1992 on which date, neither the plaintiff was asked to appear before the sub registrar nor the witnesses were present on that day it is the case of the plaintiff that the contents of the document, the alleged sale deed, were never read over or explained to her at the time of execution of the sale or by the sub - registrar when the document was presented for registration. The plaintiff was merely asked to sign certain papers and she obliged. The alleged sale deed and consequent mutation no. 346, maintained plaintiff, was the result of fraud, misrepresentation by the defendants and collusion between the defendants marginal witnesses and the sub - registrar, rajgarh and, therefore the same is illegal, null and void and not binding on the rights of the plaintiffs over the suit property.

(3) The defendants resisted the suit. Allegations were controverted. Several preliminary objections as to the maintainability of the suit, it being barred by the period of limitation and estoppels etc. , were raised. According to the defendants, plaintiff had concealed material facts and, therefore, was not entitled to the discretionary relief from the court. On merits, the case of the defendants was that plaintiff had large landed property at her parental house in village nandli, tehsil renuka and she wanted to dispose of the suit property to defendants 1 to 4 who were lookingafter her. It is pleaded that the plaintiff herself obtained revenue papers and purchased stamp papers and voluntarily executed the sale deed of the suit property in favour of the contesting defendants no. 1 to 4 on may 18, 1992 for a consideration of rupees 47. 000 but plaintiff in order to save the registration fees, got the sale deed registered for a consideration of rupees 7,000. It is pleaded that the plaintiff is a clever lady and experienced in litigation. The plaintiff, after the execution of the sale deed, swore an affidavit before the executive magistrate and gave an undertaking that she will not claim the land from the government after the sale of the suit land. Plaintiff executed the sale deed after having fully understood the nature of the document, which was registered with the sub - registrar. According to the defendants, one sohan lal and bhuria are interested in the suit property and it is at the instance of these persons that the plaintiff had filed the suit against the defendants. It is the further case of the defendants that the sale deed after its execution was read over and explained to the plaintiff as also by the sub - registrar in the presence of the witnesses who were also witness to the execution and registration of the sale deed and were present at rajgarh on that date. According to the defendants, the suit land was partitioned between the contesting defendants and proforma defendants to the knowledge of the plaintiff and, therefore, the suit of the plaintiff was not maintainable.

(4) Several issues were settled by the learned trial court. After the trial of the suit, learned trial judge found that the sale deed allegedly executed by the plaintiff in favour of the contesting defendants was valid and not null or void as claimed by the plaintiff and proceeded to dismiss the suit of the plaintiff. Dis - satisfied, defendants approached the learned district judge in first appeal. The appeal was allowed by the learned district judge vide his impugned judgment and the suit of the plaintiff was decreed. It was declared that the sale deed stated to have been executed by the plaintiff in favour of the contesting defendants on 18 - 5 - 1992. In respect of the suit property, was null and void being the result of fraud and, therefore, not binding on the right, title and interest of the plaintiff on the suit property. The plaintiff was declared to be the owner in possession to the extent of her share in the suit property as per jamabandi for the year 1990 - 91. The contesting defendants were restrained from interfering with the rights of ownership and possession of the piaintiff. It is against this judgment of reversal that the defendants are in second appeal.

(5) The appeal was admitted on october 29, 1998 on the following substantial questions of law:

1. When the sale deed duly registered, having the certificate of sub - registrar has presumption of truth, could such sale in such circumstances be held to be illegal merely on conviction in the mind of the lower appellate court which are based on conjectures and surmises? 2. Whether inadequacy of consideration is a sufficient ground to hold the fraud as has been practiced on the executant of the sale deed? 3. Whether the illiterate lady who has duly executed the deed of sale after having received the sale consideration and having admitting the due execution before the sub - registrar can be compared with a pardanashin lady so as to hold the sale deed to be a waster paper? 4. Whether the judgment and decree passed by the learned appellate court are based on misreading the material documentary and oral considerations?

(6) 1 have heard mr. Bhupender gupta, learned senior counsel instructed by mr. Praneet gupta, advocate, for the appellant and mr. Kuldip singh learned senior advocate instructed by mr. Jatinder thakur, advocate, learned counsel for the defendants. I have also been taken through the record by the learned counsel. Having heard the learned counsel for the parties, the substantial questions of law, which call for determination are: (a) what is the effect of the registration of the sale deed alleged to have been executed in favour of the contesting defendants? (b) whether the impugned judgment and decree of the first appellate court is based on misreading and misappre - ciation of the material evidence on record? (a) what is the effect of the registration of the sale deed alleged to have been executed in favour of the contesting defendants?

(7) So far the execution of the sale deed exhibit dw 2/a is concerned, it is not in dispute. The case of the plaintiff was that the contesting defendants taking advantage of her old age and illiteracy got the sale deed executed under the garb of the will, which she had agreed to execute in favour of the contesting defendants. It is admitted position and is so observed by the learned first appellate court that the plaintiff after having executed the sale deed did go to the office of the sub - registrar (tehsildar rajgarh) on may 18, 1992 and thumb marked the document in his presence, though it is the case of the plaintiff that she had accompanied the defendants to execute the will and not the sale deed. It is her case that she thumb marked the document perceiving those documents to be "a will" in favour of the defendants. Learned first appellate court took the view that the plaintiff was of old age. She was illiterate and rustic woman and, therefore, the chances of her being defrauded by unscrupulous persons were relatively more and, therefore, the onus of proving the due execution of the sale deed was heavy on the beneficiaries, i. E. , the contesting defendants. Relying upon ramdeo v. Dulari devi, learned first appellate court took a view that the contesting defendants should not only prove the document but in addition must prove that the contents were read over and explained to the plaintiff and to prove that it was necessary for the contesting defendants to have produced the scribe of the sale deed. The scribe not produced. Learned first appellate court also took note of the fact that there was no evidence on record regarding the payment of sale consideration to the plaintiff except the self serving statement of defendant kripa ram who stated that the entire consideration amount of rupees 47,000 was paid to the plaintiff at her residence on 16 - 5 - 1992. He also referred to the evidence of defendant kripa ram where he stated that registration fees were paid by him and if such charges were to be paid by the defendants, then there was no reason for the plaintiff to have got the sale deed recorded for a lesser consideration, i. E. For rupees 7,000 than the actual consideration of rupees 47,000/ -. According to the learned first appellate court, these two circumstances show that the execution of the sale deed exhibit dw 1/a was result of fraud practiced on the plaintiff.

(8) Now maina devi plaintiff, appearing as pw 1, stated that she had wanted to execute the will in favour of the contesting defendants and had never executed a sale deed. She, however, admitted that she had 40 to 50 bighas of land at devanal which she wanted to give to her brothers. She admitted that she had very cordial relations with the defendants. It is her evidence that she visited the tehsil headquarters for the purpose of executing the will; she was accompanied by gita ram and som dutt. It is her evidence that the defendants got the will scribed and she was not aware who scribed it. She admitted having thumb marked the sale deed exhibit dw 2/a at several places. She denies the suggestion that she thumb marked the document exhibit dw 2/a after having understood the contents of the document. She admitted that gita ram had seen the will being scribed. She also admitted that she thumb marked this document again before the tehsildar (sub registrar). According to her, she stayed before the sub registrar for about five minutes and she was not read over the contents of the document. On the other hand, som dutt, one of the marginal witnesses to the sale deed appearing as dw 2 categorically stated that mairia devi plaintiff got the sale deed executed in favour of the contesting defendants on 18th may, 1992. The said sale deed was scribed at the instance of maina devi in tehsil premises. At the time when sale deed was scribed, he, maina devi, joginder, gita ram namberdar and kripa ram defendant were present. It is his evidence that after sale deed had been scribed, it was read over and explained to the plaintiff who thumb marked the same after admitting the contents to be correct. The other witness joginder singh also signed the sale deed in his presence as marginal witness. Thereafter, they went to the sub - registrar (naib tehsildar) for registration. Maina devi admitted the contents of the sale deed to be correct before the sub registrar, which were read over and explained to her. When the sub registrar asked about the consideration, maina devi admitted to have received the consideration amount at home. It is his evidence that when tehsildar asked maina devi that by the sale of her land, she would not be left with any land, she informed him that she had other lands in the village 01' her parents. There is nothing material in the cross - examination of this witness which may show that the contents of the documents were not read over and explained to the plaintiff. The sub registrar who registered the sale deed has been examined as dw 3. It is the evidence of bidhi chand, sub registrar that the sale deed exhibit dw 2/a was produced before him by maina devi plaintiff for the purpose of registration on may 18. 1992. It is his evidence that the contents of the sale deed were read over and explained to maina devi who admitted the contents to be correct. It is his specific evidence that maina devi had told him that she had received the entire sale consideration at her residence. It is his further evidence that two of the marginal witnesses som dutt and joginder singh were also present at the time. It is his further evidence that he had specifically asked maina devi that she would become landless after selling her land, she replied she would not claim any land from the government and also produced the affidavit exhibit dw3/a. He had attested that affidavit which was also attested by namberdar having identified maina devi. Maina devi, according to the witness, had also admitted the contents of the affidavit to be correct. There is nothing in the cross - examination of this witness which may show that the contents of the sale deed which was produced before the sub - registrar by maina devi plaintiff were not read over or explained to her.

(9) Mr. Bhupender gupta, learned senior counsel submitted that the inferences raised by the district judge are not supportable either by evidence on record or pleadings of the parties. The perusal of the sale deed ext. Dw2/a shows that gita ram namberdar, rajgarh, identified plaintiff and there is an endorsement to that effect. The sub - registrar who registered the sale deed duly endorsed this identification. There is certificate of the sub - registrar that the plaintiff - vendor thumb marked the sale deed in his presence at the time of registration of the sale deed. There is also a certificate to the effect in terms of exhibit dw3/a on the sale deed, that the contents of the sale deed were read over and explained to maina devi plaintiff who admitted the contents to be correct and it is thereafter that the sale deed was registered. The sub - registrar appearing as dw - 2 fully supports this version and proves the certificate of endorsement. In the circumstances, the learned first appellate court was not right in observing that there was no evidence on record to show that the contents of the sale deed were read over and explained to the plaintiff - vendor.

(10) Section 60 of the registration act specifically provides that certificate endorsed on the document, registered by the registrar, shall not only be admissible in evidence for the purpose of proving that document had duly been registered in the manner provided under the act but also that the facts mentioned in the document referred to in section 59 have taken place as mentioned therein. It is now well settled that presumption of due execution of a document arises from the endorsement of the sub registrar under section 60 of the act. As far back as in 1928 privy council in sennirnalai goundan and another v. Sellappa goundan and others, interpreting the provisions of section 60 (2) read with section 115 of the evidence act held that where a person admits execution before the registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of transaction. In that case, the plaintiff alleged that his father and brother, with an intention of defrauding the plaintiff of his legitimate share in the family properties, entered into a fraudulent collusive partition. The trial court found that plaintiffs case was proved and he decreed the suit. In appeal, it was held that the plaintiff failed to make out the alleged fraud and allowed the appeal. The decree of the trial court was set aside. The subordinate judge had found that the partition was unequal because the land allotted to the plaintiff was less than allotted to other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff karuppa were conveyed to his second wife nachakkal by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the consideration for the sale though she admitted execution of the sale deed before the registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the registrar.

(11) A division bench of this court kantuarani madna vati and another v. Raghunath singh and others, interpreting the provisions of section 62 of the registration act held that there is a presumption of correctness of the document if its execution is admitted before the registrar. The division bench in para 20 observed:

"under section 60 (2) of the registration act the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this act and that the facts mentioned in section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsements made on the document by the registering officer. These endorsements show the presentation of the document personally by smt. Madna vati for registration. She was identified by kr. Jowala singh and her signatures were also obtained by the registering officer on both the endorsements, i. E. The endorsement of presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this it was necessary for the defendant no. 2 to have produced the sub - registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive."

(emphasis supplied)

(12) In the present case as noticed earlier, there is endorsement of the sub registrar to the effect that the contents were read over and explained to the vendor - plaintiff maina devi and, therefore, the presumption is that the contents of the sale deed were read over and explained to her. The sub registrar (dw 3) himself is categorical in his evidence that the contents of the sale deed were read over to maina devi. He duly proved the endorsements. Therefore, in the circumstances, learned first appellate court was not right while reversing the findings of the trial court on the grounds that the contents of the sale deed were not read over or explained to the plaintiff.

(13) A single judge of this court in rewat ram sharma v. Munshi ram, relying upon kanwarani madna vati, sennimalai goundan (supra) and dinesh chandra guha v. Satchindannanda mukhereji, held that admission of signatures on the endorsement made by the registrar by an executant of the document in the absence of anything else to the contrary, would lead to the inference that the plaintiff was present before the sub registrar when the document was presented for registration and the onus to rebut the presumption under section 60 (2) of the registration act was heavily on the plaintiff which the plaintiff did not discharge. In that case, the case of the plaintiff was that he had borrowed some money from the defendant and had agreed to mortgage his property in favour of the defendant. The plaintiff was taken to the tehsil headquarters for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant by making him to believe that it was a mortgage deed and later on, the defendant proclaimed that the property has been gifted to the defendant and plaintiff realised that instead of mortgage deed, gift deed was executed from him fraudulently by the defendant. He repudiated the gift deed and filed a suit that the gift deed was a result of misrepresentation, fraud and undue influence on the part of the defendant. It is in this context that the court held that section 60 (2) of the evidence act raises presumption as to the correctness of the endorsements made on the document by the registering officer.

(14) In the face of the evidence on record of the marginal witness som dutt to the effect that the scribe of the sale deed had read over and explained the contents to the plaintiff and that of the sub - registrar bidhi chand (dw 3) that he read the contents of the sale deed to the plaintiff coupled with the presumption arising out of the endorsement under section 60 (2) of the registration act, it cannot be said that the plaintiff was ignorant of the nature of the document she signed or she was not aware of the contents of the sale deed exhibit dw2/a. Her self - serving statement to the effect that she was not aware of the contents of the sale deed exhibit dw2/a in the absence of any other evidence does not rebut either the presumption under section 60 (2) of the registration act or the evidence of the defendant kripa ram supported by marginal witness and the sub - registrar. The question is accordingly answered. (b) whether the impugned judgment and decree of the first appellate court is based on misreading and mis - appreciation of the material evidence on record? learned district judge has held the sale deed to be the result of fraud practiced on the plaintiff on the premise: (a) that the plaintiff was not aware of the nature of the dispossession she made in the document exhibit dw2/a; (b) sale consideration was not paid in the presence of the sub registrar; and (c) inadequacy of the sale consideration.

(15) So far the question of the plaintiff being unaware of the nature of the transaction subject matter of sale deed exhibit dw2/a is concerned, i have already observed that the evidence on record, except the statement of the plaintiff, does not support these findings of the learned district judge. Rather, the weight of the evidence on record shows that the plaintiff was aware of the nature of the transactions. It is significant that apart from reading the contents of the sale deed, the sub registrar took pains to make the plaintiff aware that she would not be left with any land in that village to which she replied that she had other land in her parental village. This apart, she had filed an affidavit, copy of which is exhibit dw3/b, before the sub - registrar to the effect that she had sold her land subject matter of the sale deed and she would not claim any land from the government, which action again shows that she was aware of the nature of the transaction with the defendants.

(16) So far the question of sale consideration is concerned, it is the case of the defendants that the plaintiff was paid rupees 47,000 at her residence immediately prior to the execution of the sale deed though sale consideration in the sale deed was shown as rupees 7,000. It may be noticed that even maina devi in her evidence does not state that she did not receive the sale consideration. However, she denied in her cross - examination that she received rupees 47,000 as sale consideration, though the sale consideration in the sale deed was shown as rupees 7,000 to save the expenditure of registration. She denies that she obtained the revenue papers for the purpose of execution of the sale deed. However, she is repudiated by patwari kundan singh (dw 6) who clearly stated that it was the plaintiff who obtained revenue papers from him on may 15, 1992 and he obtained thumb mark of maina devi on reverse of the counter foil of the receipt copy of which is ext. Dw6/c (original is on record). Kripa ram appearing as dw1 states that he purchased the suit property for rupees 47,000 from the plaintiff though plainly tiff insisted that the sale consideration must be shown as rupees 7,000 in the sale deed. In cross - examination, he was asked if he had obtained any receipt for rupees 47,000 from the plaintiff, defendant kripa ram stated that he did not obtain any receipt from the plaintiff as he had confidence in the plaintiff. Bidhi chand sub - registrar (dw3) stated that maina devi had admitted before him that she had received the sale consideration at her residence. He supports the defendants fully on this aspect of the case. The findings of the learned district judge that the sale consideration is not proved, are dehors the evidence on record and arc based on conjectures.

(17) In conclusion, the findings of the learned district judge about the nature of transaction between the plaintiff and the contesting defendants and regarding consideration are against the weight of the evidence on record the payment of consideration amount to the plaintiff stand proved from the record on probability factor.

(18) In the end, learned senior ccunsei for the respondent contended that it is not open to this court to reappreciate the evidence to set aside the findings of the first appellate court regarding the execution of the sale deed exhibit dw2/4. It is true that even if the findings on fact are erroneous, they cannot be set aside in second appeal unless it is proved that the findings are against the evidence on record or result of assumption and conjectures and resultantly perverse. The apex court in mohd. Yunus v. Gurbux singh, held:

"where there is gross misappre - ciation of evidence which goes to the root of the matter, certainly the second appellate court can exercise its jurisdiction."

In kulwant kaur and others v. Gardian singh mann (dead) by lrs. And others, the apex court reiterated this position and observed : while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the high court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact brought to light by the high court explicitly and the judgment should also be categorical as to the issue of perversity vis - a - vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication.

(19) In the present case the findings of reversal recorded by the first appellate court are not only dehors the evidence on record but are based on assumptions and conjectures which indeed materially prejudiced the case of the defendant and are perverse. No other point is urged. In result, the appeal is allowed. The impugned judgment and decree of learned district judge is set aside and that of the trial court is restored. There will be no order as to costs. Appeal allowed.