THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.528 OF 2003 JUDGMENT:- Defendants in O.S.No.5 of 1998 on the file of the Court of Senior Civil Judge, Kovur, are the appellants herein. 2. The suit was filed for declaration that the sale deed dated 16.12.1996 is void and not binding upon the plaintiffs. 3. The allegations in the go to show that the schedule property was purchased by the 1st plaintiff along with her husband under a registered sale deed dated 17.10.1973 and also an agreement of sale dated 15.08.1981. The 1st plaintiff had no issues and she brought the 3rd defendant and another girl by name Uma, who is the elder sister of the 3rd defendant. The 1st plaintiff and her husband worked as cooks at Madras and from their own earnings they have purchased the schedule property. After purchase of the plaint schedule property, the 1st plaintiff and her husband have constructed a building and as the 1st defendant is her own brother, she purchased some other property in his name. The 1st plaintiff has been in possession and management of the schedule property. The 1st plaintiff and her husband returned from Madras and settled at Padugupadu with a thatched house in the schedule property and the 3rd defendant was looking after them. They performed the marriage of the 3rd defendant with the 2nd defendant, who is daughter of the 1st defendant on 18.11.1995. A child was also born to them. Defendants 1 and 2 with an ulterior motive requested the 1st plaintiff to settle the plaint schedule property in the name of the 2nd and 3rd defendants keeping life interest with her. The 1st plaintiff agreed to execute a settlement deed. But, the defendants have colluded and brought into existence a sale deed dated 16.12.1996 in the name of the 2nd and 3rd defendants as if the property was sold for a consideration of Rs.2,40,000/-. The 1st and 2nd defendants misrepresented the plaintiff, the 3rd defendant and also Uma and Bhaskar Rao, who is husband of Uma, got attested the said document. The 1st plaintiff recently came to know about the said fraud when the 1st defendant assaulted the 1st plaintiff and tried to neck her out. The original sale deed is in custody of the 1st plaintiff. The document was obtained by fraud. In fact, the 3rd defendant also subsequently realized the said fraud. Consequently, the suit was filed for the relief of declaration of the sale deed as void and not binding on the 1st plaintiff. 4. The 2nd defendant filed a written statement admitting the ownership of the schedule property and also bringing up of the 3rd defendant by the 1st plaintiff. After purchase of the schedule property, the 2nd defendant was receiving the rents of the schedule property. The 1st plaintiff has performed the marriage of the 3rd defendant with the 2nd defendant and they were living with plaintiff. The alleged misrepresentation and fraud are incorrect. If the 1st defendant is to deceive the 1st plaintiff there is no need to get sale deed in favour of defendants 2 and 3. The 1st plaintiff is aware of the contents of the document. Therefore, suit is liable to be dismissed. Defendants 1 and 3 filed a memo adopting the written statement of defendant No.2. 5. On the basis of the above pleadings, necessary issues have been framed for trial. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1 to A.13. On behalf of the defendants, DWs.1 and 2 were examined and no documents were marked. 6. After considering the evidence on record, the Court below has decreed the suit of the plaintiffs and aggrieved by the said judgment, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the sale deed dated 16.12.1996 is void? 2) Whether the declaration granted by the Court below is legal and sustainable? 8. POINTS: The learned counsel for the appellants relying upon the following decisions: 1) Bishundeo Narain and another Vs. Seogeni Rai and others[1] 2) Bijendra Nath Srivastava (Dead) through LRs., Vs. Mayank Srivastava and others[2] He contends that whenever a plea of fraud or misconduct or misrepresentation is pleaded, they should be specifically mentioned and proved, but vague allegations cannot be taken into consideration. According to him, in this case, the plaint is silent as to the particulars of the fraud or the misrepresentation and consequently the suit is liable to be dismissed. 9. There is no dispute about the relationship between the parties and it is also not in dispute that the 3rd defendant was brought up by the 1st plaintiff and was married to the 2nd defendant and they lived together for some time with the 1st plaintiff. According to the case of the 1st plaintiff, after the birth of a male child, defendants 1 and 2 asked the 1st plaintiff to settle the property in the name of defendants 2 and 3 by keeping life interest, for which she has agreed, whereas when the document was taken it was taken as a sale deed and no life interest which she intended to retain was given effect and consequently her rights in the property were alleged to have been sold away instead of settling the property, which definitely creates the obligation she expected from the defendants. Therefore, this is the particular part of the fraud, which has been clearly stated by her and it cannot be said that the plea is vague. In fact, she has spoken to this also. As matter stands, she does not deny her intention to convey the property to defendants 2 and 3 by virtue of a settlement deed. But, however, the grievance is she was not made to retain any interest in the property. 10. Therefore, in view of the above plea, the question now to be determined is as to whether the defendants are possessed of cash to pay to the 1st plaintiff and obtain the sale deed. Basically, defendant No.3 was brought up by the 1st plaintiff and performed the marriage between defendants 2 and 3. It is difficult to believe that she would have sold away the property for consideration to defendants 2 and 3. It can only be a conveyance by way of gift that could have been thought by her and having brought up defendant No.3 to receive consideration and sell the property does not appear to be probable. In this case, the beneficiary under the sale deed i.e., defendant No.3, who was brought up by the 1st plaintiff did not go into the box. Coming to the evidence, the 1st defendant as DW.2 deposed the passing of consideration, which was not pleaded in the written statement. According to him, he gave Rs.1,00,000/- and 20 sovereigns of gold to the 1st plaintiff for interest and it has swollen to Rs.2,25,000/- and at the time of registration, he gave Rs.15,000/- and consequently purchased the property in the name of defendants 2 and 3. He also claims that he owned Acs.5.00 Gt., of land, for which, there is no proof. The adjustment of the consideration under the sale deed is not directly from defendants 2 and 3 and it is said to be a previous lending by the 1st defendant for which also there is no proof. The same version was given by DW.1, who is the 2nd defendant. 11. Therefore, it is quite clear that on the date of execution of the alleged sale deed no consideration was paid to the 1st plaintiff. So also, the Court below found from the evidence of defendant No.1 that he could not have possessed of Acs.5.00 Gt., of land and it is also difficult to believe that he could have got a cash of Rs.1,00,000/- given for interest apart from gold to the 1st plaintiff. A suggestion was given to the 1st plaintiff as defendant No.3 is a mentally retarted and defendant No.2 was married to defendant No.3 and at the time of marriage, defendant No.1 presented a dowry of Rs.1,00,000/- to the 1st plaintiff. Added to that, PW.2, who was no other than the sister of the 1st defendant, was examined and her evidence goes to show that it was the 1st plaintiff that was sending the money to the 1st defendant and with that money only the 1st defendant purchased some landed property. In fact, her evidence clearly goes to show that the document was sought to be executed as a settlement deed and the consideration was not paid before her and further defendant No.1 has no capacity to purchase the property and advance so much of money. Further-more, PW.3, who is said to be an attestor on Ex.A.1 along with her husband deposed that she was asked to come to Kovur as PW.1 wanted to convey some property and she signed on Ex.A.1 and in her presence no amount was paid. According to her, she was also not informed about the nature of the document. PW.3 is no other than the sister of defendant No.3. Therefore, the persons associated with the document have spoken that the document was not supported by consideration and the close relative PW.2 has also deposed that the 1st defendant had no capacity to advance so much of money. 12. In fact, it was the 1st plaintiff herself that has purchased the properties with her earnings and the money was also pooled by the 2nd plaintiff. Taking into consideration all these facts, the Court below has found that the document is not supported by consideration and the capacity of defendant No.1 to advance money for purchase of the property in favour of defendants 2 and 3 is also not established. Therefore, it is quite clear a document which the 1st plaintiff never intended to execute was brought into existence. There was no reason to part with the property and in fact, the circumstance that the sale deed in favour of defendant Nos.2 and 3 is in custody of the plaintiff clearly goes to show that it was not a true document and it was not acted upon. Further-more, though the 2nd defendant claimed that the rents were being collected no evidence was adduced to that effect and no mutation was also effected. The lower Court has taken into consideration the broad circumstances and the improbable evidence and found that the alleged sale deed cannot be said to be supported by consideration as the defendants have no capacity and rightly decreed the suit. I do not find any ground to interfere with the judgment of the Court below. 13. Accordingly, the appeal suit is dismissed. No costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:31.01.2013 INL [1] AIR 1951 SC 280 [2] AIR 1994 SC 2562