Rajvir Singh v. Randhir Singh

defendant respondent.

ADMISSION ORDER IN THE INSTANT APPEAL

7. This second appeal was admitted by order dated 22.05.2009 on two questions of law. Later on, by another order dated 17.07.2019, another question of law was framed and, consequently, the second appeal was heard on the following three questions of law:

"(a) Whether, both the courts below have erred in applying the provisions of Section 54 of the Transfer of Property Act to the present case inasmuch as the sale deed itself clearly recorded that the entire sale consideration has been paid in advance and there was no question of any payment or part payment of sale consideration after registration of sale deed?

(b) Whether, the sale deed dated 24.03.2004 is a result of fraud and undue influence and view of the courts below to the contrary is not sustainable in law?

(c) Whether the trial court was justified in its finding that the suit is barred by limitation despite the fact that the suit was based on the allegation of fraud committed by the defendant and thus the provisions of Section 17 of the Limitation Act would apply?"

CONTENTION OF APPELLANT

8. Shri Shashi Nandan, learned Senior Advocate has vehemently argued that the plaintiff came to know about

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fraudulent execution of sale deed in August, 2007 and instituted the suit in question. According to him, there was sufficient evidence on record to establish the plaint case. He emphasised that though the payment of sale consideration of Rs.2,00,000/- (rupees two lac) was alleged in relation to the disputed sale deed, the defence witness namely, Jogendra Singh (DW-2) and Veeru (DW-3) themselves dislodged the transaction of sale. By referring to statement of DW-1 (defendant-respondent), he submits that transaction of sale was finalized by Jogendra Singh, DW-2 and Veeru, DW-3, whereas DW-2, Jogendra Singh, in his cross-examination, stated that when he alongwith defendant reached the chamber of Qatib, the sale deed had been written to some extent; sale consideration had not been paid in front of him nor was any reference of the same ever made; sale deed was not recited to the plaintiff by the Qatib before him nor did the plaintiff read it; he never discussed about sale deed with the plaintiff; no amount was paid before him and he had not seen the sale deed. As regards DW-3, Veeru, he stated in his cross-examination that he had brought money with him on the information given by Sukhvir, i.e. son of the defendant, no sale consideration was paid before him and Sukhvir had told him that transaction of sale had been finalized for a sum of Rs.2,00,000/- (rupees two lacs). By referring to statement of DW-1 (defendant), it was emphasised that he himself being the purchaser expressed his ignorance as to for how much amount the sale had been finalised; the sale consideration was given by his son Sukhvir in his hand, thereafter he gave the amount to the

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Qatib and Qatib might have given the same to the plaintiff. Regarding the defendant's financial standing, that portion of his cross-examination was read out to the Court where he stated that he and his sons were not engaged in any business; agricultural activity was the only source for his livelihood; there was no bank account in the name of the defendant, his son or his wife; he had never served anywhere; he had frail legs and used to walk with mobility aid.

9. By referring to the averments contained in the plaint and written statement, it was submitted that the plaintiff- appellant had duly proved the factum of non-tendering of sale consideration and maintained consistency in his stand in his examination-in-chief as well as cross-examination, whereas the defendant-respondent remained completely aloof as regards the amount demanded by the plaintiff as sale consideration and also the date on which agreement regarding execution of sale deed had been reached and, further, about the exact amount handed over to the defendant by his son and, thereafter, by the defendant to the deed writer and whether or not the deed writer had actually handed over that money to the plaintiff. Further submission is that after denial of execution (in fit state of mind) and payment of sale consideration by the plaintiff-appellant, and its affirmance by the witnesses of the defendant-respondent, the presumption under Section 60 of the Registration Act, 1908 lost its force. The burden was squarely upon the defendant to prove the due execution (in fit state of mind) as well as payment of sale consideration. This burden the defendant not only failed to

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discharge, in fact, in attempting to do so, he and his own witnesses ended up admitting non-payment of sale consideration, thereby giving a fatal blow to the defence set up by the defendant. The courts below erred in discarding the aforementioned overwhelming evidence on record sufficiently proving that the sale deed in question was executed without payment of any sale consideration and is void. They misread the statement of the defence witnesses. They also erred in discarding the statement of the DW-2 on the ground of inconsistency in between his examination-in-chief and cross- examination, without appreciating that the very purpose of cross- examination is to cull out the true facts of the case. The courts below could not have treated the unequivocal testimony of DW-2 as unreliable and discarded it, despite the fact that the defendant himself had pleaded in his written statement that DW-2 is a reliable and uninfluenced witness. Further, the statement of DW-2 corroborated not just the plaint case but the admissions made by the defendant in his cross examination. It is a widely accepted doctrine that witnesses may lie, but the circumstances do not. In the case at hand, the fact that the plaintiff-appellant had already executed a will in favour of his 3 nephews (all sons of the defendant herein) to the exclusion of the defendant, at the time when the sale deed in question was executed, is an important circumstance indicating the actual intention of the appellant. The plaintiff-appellant acquired knowledge about execution of the sale deed for the first time on 01.08.2007 when he obtained copy of Khatauni, which was also

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brought on record and, therefore, suit filed within three years from the date of knowledge was well within limitation. In support of his submission, the plaintiff-appellant has placed reliance upon the following authorities:

(1) Chacko and another vs. Mahadevan, 2008 ACJ 13

(2) Karan Singh (dead) Through LRs vs. Deputy Director of Consolidation, Aligarh and others, 2003 (94) RD 382

(3) Devendra Singh and others vs. Deputy Director of Consolidation, Aligarh and another, 2003 (94) RD 70

(4) Kewal Krishna vs. Rajesh Kumar and others etc., 2022

SCCR 154

(5) Ved Singh vs. Vinood Kumar, 1996 ALJ 1888

CONTENTION OF RESPONDENT

10. Per contra, Shri Ashish Kumar Singh, learned for the respondents submits that the very foundation of the suit was alleged inebriation of the plaintiff and if record establishes that the said statement was wholly false and was made just for the purposes of creating grounds for cancellation of sale deed, the entire plaint case would fall to earth. He submits that the plaintiff did not specifically plead in the plaint as to for what purpose he required Khatauni on 01.08.2007, i.e. more than three years after execution of disputed sale deed; the plaintiff on the same day allegedly obtained Khatauni and same day went to the Registry office, applied for certified copy of the sale deed and got it on the same day, i.e. 01.08.2007 and also failed to

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establish as to for what purpose he had gone to Sikandrabad on 24.03.2004. Shri Singh emphasised upon paragraph 6 of the plaint where the plaintiff-appellant stated that he had fallen into drunken state after he was given Coca-Cola, his brain stopped working when the sale deed was got executed on 24.03.2004, the plaintiff gained consciousness on the next day when he had forgotten everything about 24.03.2004. He further submits that Ghanshyam on whose shop the incident of drinking Coca-Cola was alleged, was never produced by the plaintiff and, therefore, once he withheld the best evidence, adverse inference would be drawn against him. Further argument is that once the two courts have recorded the finding that the plaintiff signed the sale deed in the Registry office and there was no infirmity in the health of the plaintiff by the time he had signed the sale deed, but he expressed his ignorance taking a plea of drunkenness and void state of mind and got back to his senses on the next day, but did not inquire anything either from Ghanshyam or even from his real brother, the entire story was cooked up by him after more than three years just to create a cause of action for filing suit. Further submission is that the plaintiff was in habit of executing documents and initially he executed a Will dated 05.08.1997 in favour of sons of his another brother Jai Singh and six years thereafter he executed another Will dated 16.12.2003 in favour of sons of the defendant and he also sold some of his property to one Poonam Sharma by executing a registered sale deed and, thereafter, challenged the same before the civil court, which shows that he was a person of dishonest intention.

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11. As regards sale consideration, submission is that sale deed itself contains recital of payment of sale consideration of Rs. 2,00,000/- (rupees two lac) in advance and Sub-Registrar endorsed that the sale deed was read out to the plaintiff-Rajvir Singh, who had understood its execution and also accepted the receipt of entire sale consideration, the Sub-Registrar's endorsement on the sale deed would carry a strong presumption as per Sections 58, 59 and 60 of the Registration Act, 1908 and there is nothing on record that the said strong presumption was rebutted by any cogent evidence. He also submits that as per Section 91 of the Indian Evidence Act, 1972, the oral testimony of DW-2 Jogendra Singh and DW-3 Veeru would not be of much significance, inasmuch as, it pertains to a document, i.e., sale deed that would be read as it is and oral evidence would remain excluded. He also submits that suit was barred by limitation as it was filed after more than three years from the date of execution of sale deed about which the plaintiff had knowledge since beginning, but in order to bring the suit within the period of limitation, a false story of acquiring knowledge on 01.08.2007 was cooked up in the plaint, but the same could not be established and, therefore, the plaintiff has no case. Shri Singh further submits that as per Section 14 of the Indian Evidence Act, 1872 state of mind of a person has significant value and once in the present case, unconscious state of mind was not proved by the plaintiff, it would be a case where the sale deed would be presumed to have been executed under conscious state of mind with free will and without any other

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infirmity. Learned counsel for the respondent has placed reliance upon the following authorities:

(1) Ishwar Dass Jain (Dead) Through Lrs vs. Sohan Lal (Dead) by LRs, 2000(1) SCC 434

(2) Iqbal Ahmad vs. Smt. Naimul, 2004 SCC OnLine All 117

(3) Jeet Kaur vs. Mishri Lal, 2023 SCC OnLine All 2704

(4) Dhiraj Singh vs. Sripal Singh and another, 2009 SCC OnLine All 1208

CONTENTION OF APPELLANT IN REJOINDER

12. In rejoinder, Shri Shashi Nandan submits that provisions of Section 91 of the Indian Evidence Act, 1872 or those attaching presumption to a registered instrument as per Registration Act, 1908 would be applicable only when the executant of the instrument is under conscious state of mind. Contention is that once the plaintiff was not under normal condition on the date of execution of sale deed, no presumption would be attached to its validity and once the witnesses to the sale deed themselves could not establish the transaction of sale and even defendant (DW-1) did not specifically prove payment of sale consideration to the plaintiff, the sale deed was bound to be cancelled.

ANALYSIS OF RIVAL CONTENTIONS, FINDINGS AND

CONCLUSION

13. Having heard the learned counsel for the parties, this

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Court finds that sale deed was executed on 24.03.2004 and the suit was filed in August, 2007, i.e. after a period of three years and four months. The plaintiff-appellant alleged acquisition of knowledge about sale deed on 01.08.2007. Then he came up with a plea that more than three years ago on 24.03.2004, he had gone to Sikandrabad at about 10.00 a.m. for some personal work where he found defendant along with Jogendra Singh and Veeru, where the defendant offered him with Coca-Cola and after drinking the same, his brain stopped working and sale deed was got executed. He further stated that he gained consciousness on the next day in the village but forgot everything about 24.03.2004. The courts below have analysed the plaintiff's case as regards his state of mind in the light of plaint version and oral testimony of the witnesses. They have recorded clear findings that once the plaintiff signed the sale deed, which signatures appeared to be normal when compared to his signatures on the plaint and order sheet, his contention that he went out of brain immediately after drinking cold drink was highly suspicious. Then it has come on record that the plaintiff alleged as if upto signing of the sale deed he was in all his senses, but immediately after putting his signatures in the Sub-Registrar office on the sale deed, he went out of brain. Non-production of Ghanshyam on whose shop the cold drink was alleged to have been offered, though it was not stated in the plaint, but came in evidence, was also held to be fatal to the plaintiff's case. The courts also discussed that the plaintiff was aware that he entered into Registry office and has not denied his

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signatures on the sale deed, but tried to explain the circumstances under which the deed was got executed.

14. It would be worthwhile to refer few significant portions of the cross examination of the PW-1. The same are extracted as under:-

"------------1&8&2007 dks eq>s [krkSuh dh t:jr iM+h D;ksafd eq>s xkjaVh nsuh FkhA xkjaVh ?ku';ke iafMr th fuxzkeiqj dh nsuh FkhA ;g xkjaVh PNB fldanjkckn ls iafMr dks yksu ysuk Fkk] rc nsuh FkhA fQj eSaus xkjaVh ugha nhA ----------

--------vkt ?ku';ke nkl esjh xokgh ds fy, ugha vk,-------

eSa vdsys vk;k Fkk] ?ku';ke nkl dh nqdku] tks jftLVªh n¶rj ds ikl gS ij igq¡pkA ?ku';ke nkl dh [kkn dh nqdku gSA ;g ogh ?ku';ke nkl gSa ftudh eSa xkjaVh nsuk pkgrk FkkA eSa ?ku';kenkl dh 6&7 o"kZ ls tkurk gw¡A ----------

------ 1-8-2007 ls igys eSa j.k/khj vius cM+s HkkbZ ds lkFk gh jgrk FkkA j.k/khj Hkh esjh [kkus&ihus dh O;oLFkk djus FksA j.k/khj ls dksbZ jaft'k fdlh fdLe dh esjh ugha gSA------------

-------- eq>s 24&3&04 dks D;k gqvk eq>s ekywe ugha gSA blfy, eSaus izfroknhx.k ls dqN ugha iwNkA eSaus ?ku';ke nkl th ls Hkh dqN ugha iwNk ftudh nqdku ij okD;k gqvk FkkA 1&8&07 dks gh eq>s bu lc ckrksa dk irk] [krkSuh dh udy ysus ij pykA 1&8&07 ls iwoZ cSukek dh ckr eq>s irk pyh] coca-cola fiykuk ;kn gSA------------

---------ihus ds ikap pkj feuV ckn gh u'kk gks x;k FkkA eSa csgks'k ugha gqvk Fkk] dsoy u'kk gks x;k FkkA eSa pyus fQjus dh fLFkfr esa ugha jgk] eq>s idM+ dj ys x;sA

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eq>s ;g irk gS fd eq>s ;g yksx jftLVªh n¶rj ys x;sA jftLVªh n¶rj esa fdlh cSukek fy[kus okys ds ikl ys x;s gksaxsA eq>s ugha ekywe fd cSukek fy[kus okys ds ikl fdruh nsj jgsA mlds ckn eq>s dksbZ gks'k ugha jgk] eq>s vxys fnu xk¡o esa gks'k vk;kA ;s yksx eq>s xk¡o esa ftl fnu dksdk dksyk fiyk;k Fkk mlh fnu ys x;sA-----------"

15. PW-1 in his cross-examination stated that he required Khatauni on 01.08.2007 for the purposes of giving guarantee of Ghanshyam Pandit as he intended to take a loan from Punjab National Bank, Sikandrabad, however, guarantee was not given. He is the same Ghanshyam on whose shop the allegation of offering Coca Cola was made. Admittedly, Ghanshyam was not produced as a witness though he appears to be very familiar to the plaintiff and, therefore, there was some understanding of giving guarantee by the plaintiff in relation to transaction of loan in between Ghanshyam and Punjab National Bank. It has also come on record that plaintiff had executed a Will dated 16.12.2003 in favour of his nephew. The said Will was also brought on record and witnesses to the said Will are Raju, son of same Ghanshyam and Jogendra Singh (DW-2). Therefore, affinity of plaintiff with Ghanshyam and also Jogendra Singh is a fact established on record. It is not the case of the plaintiff that Will dated 16.12.2003 was also a fraudulent transaction. Therefore, the plaintiff appears to be in habit of executing registered documents in favour of his own family members and the same are witnessed by same persons and also those who always joined the scene and transaction qua execution of registered documents. As regards sale deed executed by the plaintiff in favour of one Poonam Sharma, it was dated

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11.07.2002 and, immediately thereafter, he filed Original Suit No. 260 of 2002 against State of U.P., S.D.M., Police Inspector, vendee Poonam Sharma and also the respondent Randhir Singh claiming a decree for cancellation of the sale deed with the allegation that it had been executed under coercion. Later on, he entered into a compromise with the vendee and recognised the disputed sale deed as a valid one. Accordingly, the suit was disposed of in terms of compromise by order dated 19.03.2005 by the civil court. DW-1 stated in his cross-examination about institution of suit against Poonam Sharma and compromise entered with her. All these circumstances reflect that plaintiff was not a person unknown with execution of registered documents.

16. In the aforesaid light, if plaint of the suit giving rise to the instant appeal is again perused, in paragraph 7 (र) he stated about exercise of undue influence by the defendant as regards execution of sale deed. The entire plaint as well as oral testimony of DW-1 reflect that he was not consistent in his stand as undue influence is separate from getting the sale deed executed under state of intoxication. There are different modes of proof of these parameters recognised by the Indian Contract Act, 1872 and, hence, the plaintiff's stand not being clear and, even otherwise, not proved by cogent oral and documentary evidence, this Court is not in a position to upset the findings of fact recorded by both the courts below dislodging the plaintiff's case and attaching validity to the sale deed.

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17. As far as the statement of appellant that payment of sale consideration could not be proved, this Court is not in a position to accept the same. First reason is that payment of sale consideration is mentioned in the sale deed itself that it was paid in advance. It is not the case of the defendant that the amount either in part or full was paid before the Sub-Registrar. The endorsement of Sub-Registrar is also to the same effect that Rs.2,00,000/- (rupees two lac) was paid earlier. The said endorsement as regards due understanding of the plaintiff about execution of sale deed and acceptance of Rs. 2,00,000/- (rupees two lac) in advance, in itself, is sufficient to prove payment of sale consideration unless rebutted by cogent evidence. As regards payment of sale consideration, DW-1, in his cross- examination, stated as under:-

"--------fodz; /ku esjs csVs lq[kohj us esjs gkFk esa fn;k FkkA fQj eSaus vius gkFk ls #i;s dkfrc dks ns fn;s FksA dkfrc us oknh dks ns fn;s gksaxsA yM+ds lq[kohj us eq>s nks yk[k #i;s idM+k;s Fks] fdUrq eSaus fxus ugha FksA---------

------------pw¡fd oknh us igys iSlk ek¡xk Fkk] blfy, ns fn;k x;k FkkA dkfrc dks eSaus cSukek fy[kus ds lEcU/k esa lc ckrsa tqckuh gh crk nh Fkh] dksbZ bUr[kkc ugha fn;k FkkA dkfrc us cSukek fy[kus ds ckn vU; dksbZ dk;Zokgh ugha dh FkhA og cSukek fy[krs gh lc&jftLVªh dk;kZy; es cSukes dks ys x;k FkkA cSukek ogk¡ tkdj ckcw dks ns fn;k FkkA jftLVªkj us iSlk feyus dh ckcr iwNk FkkA------------------"

18. As regards plaintiff's version regarding coca-cola, DW-1, in his cross-examination, stated as under:-

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"--------------eSa oknh dks dksdk dksyk ugha fiyk;k Fkk cfYd oknh us Lo;a ge lcdks cSukes ds ckn dksdk dksyk fiyk;k Fkk vkSj cQhZ f[kykbZ FkhA pw¡fd eSaus cSukek djkus ds ckn Hkh dksdk dksyk fiykus ls euk dj fn;k Fkk rc oknh us lcdks dksdk dksyk fiyk;k FkkA ;g dguk xyr gS fd eSaus oknh dks dksdk dksyk esa u'khyk inkFkZ feykdj cSukek fy[kk fy;k gksA ;g dguk xyr gS fd cSukek u'ks dh gkyr esa djk;k gks ;g dguk Hkh xyr gS fd oknh dks dksbZ izfrQy vnk u fd;k x;k gksA------------"

19. Even if oral testimony of DWs is thoroughly analysed, it is found that DW-2 Jogendra Singh was never a witness to the payment of sale consideration and, therefore, if he stated ignorance about the same, it cannot go against the defendant. Similar is the position of DW-3, Veeru. Contrarily, from the statement of DW-3, it is found that on information received by him from Sukhvir, son of defendant, that sale deed was to be executed and he should bring Rs.10,000/- (rupees ten thousand), Veeru came to Registry office with Rs.10,000/- (rupees ten thousand), which was given by him to Sukhvir. Some relevant portion of cross examination of DW-3-Veeru is extracted as under:-

"------------fookfnr cSukes okys fnu eSa [kqn gh lqcg ds le; vk x;k FkkA eq>s cqyk;k Hkh Fkk vkSj eSa iSls Hkh yk;k FkkA-------------

---------------eSaus lq[kohj ls iwNk Fkk fd eq>s fdlfy, tkuk gS rks mlus crk;k Fkk fd gekjk jktohj flag ls tehu dk lkSnk gks x;k gSA mlh ds crkus ij eq>s cSukes ds lkSns dh tkudkjh gqbZ FkhA lq[kohj us eq>s crk;k fd esjh cSukes ij xokgh gksuh gSA--------------------

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----------------lq[kohj us eq>s crk;k Fkk fd cSukes dk lkSnk nks yk[k #i;s esa gks x;k gSA eq>ls Hkh nl gtkj #i;s ykus ds fy, lq[kohj us dgk FkkA---------------

---------------esjs lkeus oknh dks izfrQy dh dksbZ vnk;xh ugha gqbZ FkhA eq>s ;g tkudkjh gS fd dkfrc dks cSukek fy[kus gsrq fgnk;r oknh us nh FkhA--------------"

20. Though DW-1 stated in his cross-examination that deal was done by Jogendra Singh and Veeru, but contrary statements were made by DW-2 and DW-3 as regards the transaction, however the statements of DW-1, DW-2 and DW-3, when read together and as a whole, the same would not lead to an inevitable conclusion that either the transaction of sale was not agreed upon or that it was not done at all. Once a registered sale deed is there and even payment of sale consideration of Rs.2,00,000/- (rupees two lacs) was alleged by DW-3 in the manner that Sukhvir had handed over the said amount to the defendant which amount was given by the defendant to Qatib and Qatib might have given the same to the plaintiff, there is nothing unnatural in the said chain of events. It is not necessary that whenever a sale deed is executed, sale consideration is directly paid by the vendee to the vendor. It is a matter of common experience that when many persons join together to execute a sale deed, like, vendor, vendee, witnesses, other family members, middlemen, friends and deed writer etc., money can go through various hands from vendee to vendor and this is exactly what the DWs had stated. Therefore, nothing conclusive is found in the oral testimony of DWs that the amount was not paid. Payment is, therefore, established and

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stands corroborated by the endorsement of Sub-Registrar, recitals contained in the sale deed and oral testimony of witnesses.

21. In the instant case, significance of the provisions of Section 91 and 68 of the Indian Evidence Act, 1872 and Sections 58, 59 and 60 of the Registration Act, 1908 cannot be ignored. For a ready reference, these provisions are quoted herein below:

Indian Evidence Act, 1872

"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

68. Proof of execution of document required by law to be attested.

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting

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witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Registration Act, 1908

58. Particulars to be endorsed on documents admitted to registration.—(1) On every document admitted to registration and true copy thereof, other than a copy of a decree or order, or a copy, sent to a Registering Officer under section 89, there shall be endorsed, from time to time, the following particulars, namely:—

(a) the signature and addition of every person admitting the execution of the document, and if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(c) any payment of money or delivery of goods made in the presence of the Registering Officer in reference to the

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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.

(2) If any person admitting the execution of a document refuses to endorse the same, the Registering Officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

59. Endorsements to be dated and signed by Registering Officer.—The Registering Officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.

60. Certificate of registration.—(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the Registering Officer shall endorse thereon and on the true copies thereof, a certificate containing the word

"registered", together with the number and page of the appropriate book in which the document or its true copy is to be scanned or kept.

(2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59, have occurred as therein mentioned.

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22. Section 58 of Registration Act, 1908 speaks about the procedure on admitting a document for registration which has a presumptive value. Section 58 of the Act, 1908 is to be read with Section 68 of the Indian Evidence Act, 1872 alongwith its proviso and Sections 91 and 92 of the Indian Evidence Act, 1872. A perusal of the Section 68 and its proviso goes to show that in order to prove the execution and registration of the sale deed which is not a will no further evidence is required and that relaxation by the statute has been given in view of Sections 91 and 92 of the Indian Evidence Act, 1872 which is an evidence of disposition as well. The said provisions prohibit that no evidence shall be given in proof of the terms of the such contract grant or disposition of the property.

23. Plea of intoxication as alleged by the plaintiff was thoroughly examined and the Trial Court recorded a finding that in case the said incident took place on 24.03.2004, the plaintiff could have asked about the incident from the defendant but the plaint is silent. The Trial Court further considered the statement of DW-1 and his relation with Ghanshyam on whose shop the said alleged incident took place. It further examined the oral testimony of DW-1 and reached to a conclusion that the plaintiff was conscious as he could not prove the plea of fraud and the reasons which could be proven or at least supported the same, were not mentioned in the plaint or in the statement of DW-1. The Trial Court held that the plaintiff's case that he came back to his senses on the next day was of relevance as he did not bother for three years and four months to find out the reason

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either himself or through Ghanshyam who was material witness of plea of fraud but the plaintiff chose not to produce him. Perusal of statement of DW-1 would further show that according to his testimony he remained conscious for sometime till registry took place thereafter he lost his conscious.

CONCEPT OF PREPONDERANCE OF PROBABILITIES

24. In the entire facts and circumstances of the instant case, the Court deems it appropriate to mention that a civil trial applies the standard of proof governed by preponderance of probabilities. This principle has been elaborated by the Supreme Court in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and others, 2003 (8) SCC 752. The Apex Court said that a fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. The probative effects of evidence in civil and criminal cases are not, however, always the same and a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. In a civil case a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision, but in a criminal case, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.

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Quoting Denning LJ (Bater Vs. B, 1950, 2 All ER 458,459) it was said that "It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, LJ said "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others."

(Hornal V. Neuberger P. Ltd., 1956 3 All ER 970, 977)."

25. Further in M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) vs. Mahant Suresh Das & Another, 2020 (1) SCC 1, it was held as under:

"720. The court in a civil trial applies a standard of proof governed by a preponderance of

probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly : If therefore, the evidence is such that the court can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not. [Phipson on Evidence.] In Miller v. Minister of Pensions [Miller v. Minister of Pensions, (1947) 2 All ER 372], Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms : (All ER p.

373 H)

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"(1) … It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice. x x x x x

724. Analysing this, Y V Chandrachud J (as the learned Chief Justice then was) in N. G. Dastane vs. S. Dastane (1975) 2 SCC 326 held :

"The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact- situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of

probabilities the court has often a difficult choice to make but it is this choice which

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ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: 'the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue [Per Dixon, J] in Wright v. Wright, (1948) 77 CLR 191, 210]; or as said by Lord Denning, 'the degree of probability depends on the subject-matter'. In proportion as the offence is grave, so ought the proof to be clear [Blyth v. Blyth, (1966) AC 643]. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."

(Emphasis supplied)

26. Now applying the abovesaid principle in the instant case, relationship between the plaintiff and the defendant as real brothers is not in dispute in the instant case. It is also not the case of either of the parties that these two brothers were residing separately when the sale deed in question was executed. Rather there is a contrary evidence. Therefore, it cannot be believed that if the property is transferred by one brother in favour of other, the vendee would not know this fact for more than three years particularly when the land is agricultural and necessity to cultivate the land and doing other associated activities is a

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normal phenomenon. Therefore, on assessing the facts of this case, it is found that in the conflicting probabilities concerning the fact-situation, less weight is attached to the story set up in plaint based upon alleged brain-loss situation flowing from an unproved scene and it demolishes all the pleas to get the sale nullified.

27. Now coming to the authorities cited from the side of appellant, the Supreme Court in Chacko (supra) was dealing with a case where unsoundness of mind of vendor Chacko had been proved through medical evidence and he was also treated in Mental Hospital, Tirchur for about four days for Alcoholic Psychosis and such finding of fact had been recorded by the District Court, which was set aside by the High Court in Second Appeal. Under these circumstances, the Supreme Court set aside the High Court's judgment and upheld the finding of first Appellate Court that vendor was not of sound mind at the time of execution of sale deed. The case in hand involves a different factual position where the plaintiff came up with a case that just before execution of the sale deed, he had been offered Coca Cola and immediately thereafter he lost his senses and gained consciousness the next day i.e. on 25.03.2004. For a period of more than three years thereafter, there is nothing on record to establish as to what remedial measures the plaintiff took as regards his almost one day unconsciousness as he did not at all try to ascertain reason behind such state of his body and mind. Absolutely no medical evidence worth the name was brought on record nor even an FIR was lodged by him.

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Therefore, with due respect to the judgement of the Hon'ble Supreme Court, the appellant does not get any advantage from the same.

28. In Karan Singh (supra), this Court held that once the vendor had appeared as a witness and denied execution of the sale deed and also receipt of sale consideration and no evidence was produced by the other side regarding execution of sale deed and payment of sale consideration, presumption under Section 60 of the Registration Act lost its force. It was also held that without payment of sale consideration, no sale deed could be executed. There is no dispute about the proposition laid down in the said authority, however, in the facts of the instant case, judgment would have no application, inasmuch as bare denial by the plaintiff about non-receipt of sale consideration without there being any corroborative evidence or any other DW, the plea has been rightly turned down by both the courts below. The judgement in Devendra Singh (supra) is in fact the same judgement of Karan Singh (supra) passed in the same writ petition No. 14024 of 1985, reported twice in the same volume of revenue decision and by different names for whatever reason it may be.

29. The Hon'ble Supreme Court in Kewal Krishan (supra), after interpreting the provisions of Section 54 of Transfer of Property Act, 1882 held that a sale of an immovable property has to be for a price that may be payable in future and such payment is an essential part of sale and if a sale deed is

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executed without payment of price, it is no sale in the eyes of law. There is no quarrel with the proposition laid down by the Apex Court, however, it would not dislodge the sale deed disputed in the instant case for the reason that payment of sale consideration of Rs.2,00,000/- in advance was mentioned in the sale deed itself as well as in the endorsement made by the Sub- Registrar. In order to dislodge the presumption attached to the said recital and endorsement, the plaintiff-appellant must have come with strong evidence that no sale consideration was paid to him. Though, it is true that equal burden lay upon the defendant to prove sale consideration, DW-1 discharged the burden by his examination-in-chief as well as cross-examination as discussed above. He did not state that sale consideration was paid in front of DW-2, Jogendra Singh and, therefore, if DW-2, in his cross-examination stated that the payment was not made before him, the same cannot be read against the defence version. Therefore, mere statement of DW-1 in his examination-in-chief that amount was paid in front of witness would not mean that DW-2 was such witness and no such influence can be drawn from the complete reading of oral testimony of all the Dws.

30. Ved Singh (supra) lays down a proposition in terms of Section 17 of the Limitation Act and holds that period of limitation to institute a suit for cancellation of sale deed would start running from the date when fraud in relation to such execution stood revealed. It was also a case where some physical infirmity was alleged by the vendor, however, the facts were slightly different, inasmuch as in that case vendor's

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contention was that on account of such physical infirmity, he was not residing at the place where the land in dispute was situated in District Muzaffar Nagar, but was residing in District Saharanpur. In that background, contention of "no knowledge"

about execution of the sale deed was raised. In the instant case, the facts are entirely different and in order to succeed in his plea of execution of the sale deed in unconscious state of mind, plaintiff-appellant had to complete chain by joining every link together over a period of more than three years right from 24.03.2004 when the sale deed was executed till 03.08.2007 when the suit was instituted. Therefore, the said judgment is also of no assistance to the appellant.

31. The authorities cited from the respondent side are on the point that registered document carries with it strong presumption about its execution and contents, however the presumption is rebuttable. In order to rebut such presumption, the parties seeking to dislodge the validity of the transaction covered by registered document has to lead a strong evidence. The authorities further lay down that initial burden to establish undue execution of the document is upon a person, who challenges the same and it is only after the said initial burden is discharged, onus would shift upon the other side, which would be seen during the course of evaluation of evidence. Examining the ratio laid down therein and those referred to in the cited judgments, this Court is of the considered opinion that plaintiff- appellant failed to dislodge the presumption attached to the registered sale deed dated 24.03.2004 and the evidence to that

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effect was completely lacking. Taking aid of few lines from the oral testimony of DW-2 and DW-3 ignoring the plaint averments as well as oral and documentary evidence on record as a whole, would not be helpful to the plaintiff-appellant and it is thus, held that the courts below have rightly arrived at a conclusion that the plaintiff had failed to prove either undue execution of the sale deed or that it was executed when the plaintiff was not in his senses.

32. In view of above discussion, the Court finds that it was a concluded sale as per Section 54 of Transfer of Property Act, 1882 with no infirmity and payment of sale consideration is found to have reached to the vendor. Since it was not a case of part-paid or part-promised, first question is answered in favour of defendant-respondent attaching validity to the transaction of sale. Little finding recorded by the first Appellate Court in that direction, though not according to law, would not affect the ultimate decision of the Appellate Court. As regard second question, it is held that sale deed was a duly executed instrument and not only the plaint case, but also oral testimony of PW-1 makes his entire version as highly suspicious and unbelievable and, therefore, second question is answered in favour of respondent holding that the sale deed dated 24.03.2004 was not a result of fraud and undue influence and the view taken by the courts below is in accordance with law. As regards third question, once it is found that the plaintiff failed to establish acquisition of knowledge for the first time in August, 2007 i.e., three years and four months after execution of

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sale deed and the parties to the sale being real brothers, in absence of any concrete proof as regards subsequent acquisition of knowledge, the period of limitation would not begin from 01.08.2007 and, therefore, Section 17 of the Limitation Act would have no application in the present case. The suit, therefore, was barred by limitation. Third question is answered accordingly.

33. For all the aforesaid reasons, the second appeal has no force and is, accordingly, dismissed.

Order Date :- 22.10.2024

Sazia

(Kshitij Shailendra, J)

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