“C.R.” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 SA.NO. 758 OF 1996(F) --------------------------------- AS.14/1994 OF SUB COURT, KASARAGOD OS.352/1990 OF ADDITIONAL MUNSIFF COURT, KASARAGOD .................... APPELLANTS – RESPONDENTS - DEFENDANTS: --------------------------------------------------------------- 1. GOPALAKRISHNA 2. BALAKRISHNA 3. RAJESJWARA NO.1 IS THE SON OF SUBRAYA, NOS.2 AND 3 ARE THEIR CHILDREN OF RAMACHANDRA. ALL ARE RESIDING AT CHAPADI IN PADI VILLAGE, KASARGOD TALUK, P.O. EDNEER. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT – APPELLANT - PLAINTIFF: ------------------------------------------------------- M. SRINIVASAN, SON OF APPANNA, ATTENDER, RESIDING AT CHAPADI IN PADI VILLAGE, KASARGOD TALUK, P.O. EDNERR. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.758 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of March, 2010 J U D G M E N T --------------------- The suit property originally belonged to the late Appanna, father of respondent/plaintiff as per order in O.A. No.5670 of 1975. That property is situate in Muliyar Village within the local limits of the Sub Registrar, Kasargod. Respondent claimed that on the death of his parents the said property devolved on him and he has been possessing it. Appellant No.1 is brother of the late Appanna. In the year 1988 appellant No.1 and others on the strength of a sale deed allegedly executed by the late Appanna trespassed into the suit property. On enquiry respondent learnt that appellant No.1 had got executed Ext.B2, assignment deed No.1014 of 1978 dated 13.10.1978 by the late Appanna in respect of the suit property by undue influence and fraud. Respondent filed O.S. No.352 of 1990 in the court of learned Munsiff seeking cancellation of Ext.B2, assignment deed and recovery of possession of the suit property. Respondent alleged that the late Appanna was suffering from old age infirmities since six years prior to his death (on 27.11.1983) and S.A. No.758 of 1996 -: 2 :- for about ten years he was under the control and undue influence of appellant No.1. The late Appanna died under suspicious circumstances at the house of appellant No.1. The suit property though situate within the local limits of the Sub Registrar (for short, “the SRO”), Kasargod and hence the document could have been registered only in that SRO, it was actually registered at SRO, Badiadka which had no jurisdiction to receive or register the said document. To facilitate registration of the document at SRO, Badiadka an item of property not belonging to the late Appanna and situate within the local limits of that SRO was included in the assignment deed. The said document is brought about by the scribe, attesters, witnesses, the Sub Registrar and Ramachandra, brother of appellant No.1 without the knowledge of the late Appanna, Appanna had no information about the assignment deed as his possession of the suit property was not disturbed. Respondent claimed that he learnt about fraud and undue influence only on 06.09.1988. Appellant No.1/defendant No.1 contended that the late Appanna sold the suit property (situated within the local limits of SRO,Kasargod) and another item of land (situated within the local limits of SRO, Badiadka) to him for consideration as per Ext.B2, assignment deed and since then he was in possession and S.A. No.758 of 1996 -: 3 :- enjoyment of the said properties. He denied the allegation of fraud and undue influence in the execution and registration of the assignment deed. It is not correct to say that the late Appanna was suffering from old age infirmities during the relevant time. It is also not correct to say that item No.1 of Ext.B2, assignment deed did not belong to the late Appanna. Appellant No.1 assigned the suit property to appellant Nos.2 and 3/additional defendant Nos.2 and 3 as per Exts.B3 and B4, assignment deeds dated 17.06.1980 and 06.08.1981, respectively and since then they are in possession of the suit property. Respondent was aware of Ext.B2, assignment deed from the date of that document itself. Hence the suit is barred by limitation. Appellant Nos.2 and 3, impleaded on the contention raised by appellant No.1 raised similar contentions. Learned Munsiff dismissed the suit holding that respondent did not plead particulars or prove the alleged undue influence and fraud in the execution and registration of Ext.B2, assignment deed. Respondent could not prove that item No.1 of Ext.B2, assignment deed (situate within the local limits of SRO, Badiadka) did not belong to the late Appanna so that it could be said that the document could not have been registered at that SRO. Affirming Ext.B2, assignment deed learned Munsiff held that the suit filed in the year 1990 is barred by S.A. No.758 of 1996 -: 4 :- limitation as evidence revealed that respondent had knowledge about execution and registration of that assignment deed at least by 10.11.1980. In appeal at the instance of the respondent learned Sub Judge held that though the allegation of fraud and undue influence (in the matter of execution of Ext.B2, assignment deed) is not proved, fraud was played on the law of registration by getting the document registered at SRO, Badiadka which had no jurisdiction to receive or register the document and hence the assignment deed is invalid. So far as limitation is concerned learned Sub Judge took the view that though the suit is not brought within three years of the day respondent got knowledge about the assignment deed as the suit is brought within 12 years of the impugned assignment deed, it is within time. Respondent was given a decree as prayed for. Hence this Second Appeal at the instance of appellants (defendant Nos.1 to 3). 2. The following substantial questions of law are framed for a decision. (i) Has not the first appellate court gone wrong in holding that registration of Ext.B2, assignment deed at SRO, Badiadka amounted to fraud on the law of registration? S.A. No.758 of 1996 -: 5 :- Has not the first appellate court gone wrong in its interpretation of Section 28 of the Indian Registration Act (for short, “the Act”)? (ii) Whether a party to the fraudulent execution of a document could seek to set aside that document on the ground of such fraud? (iii) When a document is only voidable and recovery of possession of immovable property is sought for after setting aside the document, is it not Article 59 of the Limitation Act that governed the suit? Shri K.G. Gouri Sankar Rai, learned counsel for the appellants contend that the first appellate court has gone wrong in its findings. According to the learned counsel, respondent was not able to prove that item No.1 in the impugned assignment deed (Ext.B2) did not belong to the late Appanna and that registration of the document at SRO, Badiadka is a fraud on the law of registration. Further contention is that there is no proper plea or evidence of alleged undue influence and fraud in getting the documents executed or registered at SRO, Badiadka. At any rate as the late Appanna himself was a party to the alleged fraud in getting the S.A. No.758 of 1996 -: 6 :- document registered at SRO, Badiadka, himself or his legal representatives could not assail the document on that ground and recover possession of the property. It is contended that as the document at any rate is only voidable respondent could not recover possession of the property without setting aside the document, Article 59 of the Limitation Act applied and as evidence reveals at least by 10.11.1980 respondent had knowledge about execution and registration of Ext.B2, assignment deed. Hence the suit brought after three years of that day is barred by limitation. Learned counsel has placed reliance on the decision in Venkataswami v. Venkatasubbayya (AIR 1932 Madras 311) and Muhammd Abdul Razack v. Syed Meera Ummal (AIR 1967 Madras 212). Shri T.Sethumadhavan learned counsel for respondent contended that there is sufficient particulars of fraud and undue influence pleaded by the respondent. It is contended that the document was registered at SRO, Badiadka in a deceitful manner though the suit property is situated within the local limits of SRO, Kasargod. According to the learned counsel trial court went wrong in holding that burden lay on the respondent to prove that item No.1 in the impugned assignment deed (situate within the local limits of SRO, Badiadka) did not belong to the late S.A. No.758 of 1996 -: 7 :- Appanna. Learned counsel has placed reliance on the decisions in Mathura Prashad v. Chandra Narayan Chowdhury (AIR 1921 PC 8), Collector of Gorakpur v. Ram Sundar Mal and Others (AIR 1934 PC 157) and Mohammad Khaja v. Monappa (AIR 1953 Hyd. 280). 3. Exhibit B2 is the assignment deed No.1014 of 1978 dated 13.10.1978 which is called in question in this proceeding. It is not disputed that the said assignment deed is executed by the late Appanna in respect of the suit property and another item of property (item No.1 in that document). It is also not disputed that the suit property is situate within the local limits of SRO, Kasargod while item No.1 in the said assignment deed is situate within the local limits of SRO, Badiadka. Admittedly Ext.B2 has been registered at SRO, Badiadka. Case is that to facilitate registration of Ext.B2, assignment deed at SRO, Badiadka item No.1 (in that document) situated within the local limits of that SRO though did not belong to the late Appanna was fraudulently included in the document and it was got registered at SRO, Badiadka by playing fraud in the law of registration. 4. Fraud no doubt, vitiates any transaction. Sir Frederick S.A. No.758 of 1996 -: 8 :- Pollock in “The Law of Fraud, Misrepresentation and Mistake in British India” states at page 17, “Fraud may be described, for most usual purposes, as the procuring of advantage to oneself, or furthering some purpose of one's own, by causing a person with whom one deals to act upon a false belief”. Sir Frederick Pollock would say that the above is not a definition and that there may be 'fraud' without any seeking of personal advantage. According to Fawcett, J (Raneegunge Coal Association v. Tata Iron and Steel Co. Ltd. - AIR 1929 Bombay 119) a necessary element in ordinary fraud is deception or deceit and getting somebody to believe something that is not really correct. In Tomlin's Law Dictionary, 'fraud' is defined as deceit in grants and conveyances of lands, and bargaining and sales of goods, etc., to the damage of another person which may be either by suppression of the truth, or suggestion of a falsehood. “Fraud” means and includes any of the following acts committed by a party to a contract, or within his connivance, or by his agent, with intent to deceit another party thereto or his agent, or to induce him to S.A. No.758 of 1996 -: 9 :- enter into the contract: i) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; ii) the active concealment of a fact by one having knowledge or belief of the fact; iii) a promise made without any intention of performing it; iv) any such act or omission as the law specifically declares to be fraudulent. (See P.Ramanatha Iyer, The Law Lexicon, Second Edition, Page 757) 5. 'Undue influence' is the unfair persuation of a party who is under the domination of the person expressing the persuation or who, by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare. A person who has been induced to enter into a transaction by the undue influence of another (the wrongdoer) is entitled to set the transaction aside as against the wrongdoer. Such undue influence is S.A. No.758 of 1996 -: 10 :- either actual or presumed. In Bank of Credit and Commerce International SA v. Aboody (1992) 4 All E.R. 955 = (1990) 1 QB 923) the Court of appeal has adopted the following classification (regarding cases of undue influence). “Class 1: actual undue influence. In these cases it is necessary for the claimant to prove affirmatively that the wrongdoer exerted undue influence on the complainant to enter into the particular transaction which is impugned”. Class 2: presumed undue influence. In these cases the complainant only has to show, in the first instance, that was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the impugned transaction. In class 2 cases therefore there is no need to produce evidence that actual undue influence was exerted in relation to the particular transaction impugned: once a confidential relationship has been proved, the burden then shifts to the wrongdoer to prove that the complainant S.A. No.758 of 1996 -: 11 :- entered into the impugned transaction freely, for example by showing that the complainant had independent advice. Such a confidential relationship can be established in two ways, viz: Class 2A. Certain relationships (for example solicitor and client, medical advisor and patient) as a matter of law raise the presumption that undue influence has been exercised. Class 2B. Even if there is no relationship falling within class 2A, if the complainant proves the de factor existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer, the existence of such relationship raises the presumption of undue influence. In a class 2B case therefore, in the absence of evidence disproving undue influence, the complainant will succeed in setting aside the impugned transaction merely by proof that the complainant reposed trust and confidence in the wrongdoer without having to prove that the wrongdoer exerted actual undue influence or otherwise abused such trust and confidence in relation to the particular transaction S.A. No.758 of 1996 -: 12 :- impugned.” 6. Order VI Rule 4 of the Code of Civil Procedure (for short, “the Code”) requires a party relying on fraud, undue influence, etc., to give particulars of such fraud, undue influence, etc. But the plaint does not give particulars of the alleged fraud and undue influence in the matter of execution of the impugned assignment deed. When examined as P.W.1, respondent also did not conceal his lack of information about particulars of the fraud and undue influence. It is trite law that to set aide a transaction as vitiated by fraud a high degree of evidence is required. Lord Atkin has said in A.L.N. Narayanan Chettyar and Another v. Official Assignee, High Court of Rangoon and Another (28) AIR 1941 PC 93) that fraud like any other charge of criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubt and that a finding as to fraud cannot be based on suspicion and conjecture. Halsbury's Laws England, 4th Edn. (Vol.31) at Page 518 states that when there is no relationship shown to exist from which undue influence could be presumed, the onus is on the person seeking to set aside the transaction to prove affirmatively that that the wrongdoer exerted undue influence on the S.A. No.758 of 1996 -: 13 :- complainant to enter into the impugned transaction. Respondent has not discharged that onus. There is no evidence to show that appellant No.1 caused the late Appanna to act upon any false belief either for procuring any advantage for himself or furthering some purpose of his own, or, without seeking any personal advantage for himself. There is also no evidence to show that the late Appanna was under undue influence falling under any of the classes enumerated in Bank of Credit and Commerce International's case (supra). Learned Munsiff found that there is neither proper plea nor reliable or sufficient evidence of the alleged fraud or undue influence in the matter of execution of the assignment deed. On the other hand there is sufficient evidence to show that the late Appanna and even the respondent accepted and acknowledged Ext.B2, assignment deed as seen from Ext.B1, assignment deed dated 10.11.1980 executed by the late Appanna in favour of one C.H. Ahammad and attested by the respondent that eastern boundary of item No.1 in that document is described as property in the possession of appellant Nos.1 and 2 (i.e., the suit property) assigned to appellant No.1 as per Ext.B2, assignment deed and a portion of which appellant No.1 has assigned to appellant No.2 as per Ext.B3 and that in Ext.B3, assignment deed dated 17.6.1980 S.A. No.758 of 1996 -: 14 :- executed by appellant No.1 in favour of appellant No.2 in respect of half of the suit property, the late Appanna is an attesting witness along with his own brother, Ramachandra. As P.W.1, respondent No.1 has admitted that he got Ext.B1 read over before attesting it and that the contents of Ext.B1 are correct. The first appellate court also, though without much discussion of the matter has concurred with the view of the learned Munsiff about lack of pleadings and evidence regarding the alleged fraud and undue influence in the execution of Ext.B2, assignment deed. 7. Then, was there any fraud played on the law of registration by getting Ext.B2, assignment deed registered at SRO, Badiadka as claimed by the respondent and found in favour by the first appellate court? It is not disputed before me that the suit property (item No.2 in Ext.B2, assignment deed) is situate within the local limits of SRO, Kasargod while item No.1 of that document is situate within the local limits of SRO, Badiadka where the document was registered. According to the respondent, item No.1 property in Ext.B2 belonged to one Sarojini Amma as revealed from Ext.A5, copy of Patta and it was fraudulently included in the document to facilitate its registration at SRO, Badiadka. That according to the respondent was on account of fraud played by appellant No.1, the S.A. No.758 of 1996 -: 15 :- witnesses and attesters in the document, the Sub Registrar concerned and Ramachandra, (brother of appellant No.1 and the late Appanna). Now two questions arise for a decision: whether registration of Ext.B2 at SRO, Badiadka amounted to fraud on law of registration, secondly; assuming that the document is got registered fraudulently at SRO, Badiadka is it open to the respondent to challenge the document on that ground and recover possession of the suit property? 8. The first appellate court took the view that no portion of the suit property fell within the local limits of SRO, Badiadka and hence the Sub Registrar of that Sub District had no jurisdiction to receive or register the document concerning the suit property. According to the first appellate court though there is no evidence of collusion (in obtaining registration at SRO, Badiadka) as registration is obtained from the Sub Registrar who had no jurisdiction to do so, it amounted to legal fraud (fraud on law of registration) which vitiated the assignment deed and hence it is void. 9. I am afraid the first appellate court has not correctly understood Sec.28 of the Act. As per that provision except as otherwise provided in part V of that Act every (non-testamentary) S.A. No.758 of 1996 -: 16 :- document mentioned in Sec.17 sub-sec. (1) clauses (a) to (c) and sub-sec.(2) in so far as such document affects immovable property and Sec.18(a), (b), (c) and (cc) shall be presented for registration in the office of the Sub Registrar within whose Sub District the whole or some portion of the property to which such document relates is situate. The provision is clear and specific that if the document relates to properties situated in different sub districts the document could be registered by the Sub Registrar of any of those Sub Districts, no matter whether the extent of the property situated in that Sub District is more or less. Existence of “some portion of the property” in the Sub District is sufficient to confer jurisdiction on the Sub Registrar of that Sub District provided, there was an intention to transfer such land. As long as the law permits registration of a document at a place where some portion of the land covered by the deed of transfer is situate, parties can take advantage of that and get the document registered at a place where a small portion of the land intended to be transferred is situate. This view gets support from Julumdhari Rai and Others v. Debi Rai and Others (AIR 1965 Patna 279). The scheme of the Act is also that. When a Sub Registrar registers a non-testamentary document relating to immovable property not wholly situate in his own Sub S.A. No.758 of 1996 -: 17 :- District, he has to make a memorandum thereof and of the endorsement and certificate (if any) thereon and send the same to every other Sub Registrar in whose sub district also any part of such property is situate. Then the latter is to file the memorandum in his Book No.1 (See Section 64 of the Act). The procedure to be followed where the document relates to land in several Districts is provided in Section 65 of the Act. But what happens if a non- testamentary document is presented for registration before a Sub Registrar within whose Sub District no portion of the property intended to be transferred is situate and hence he had no authority to register the same under Sec.28 of the Act. A reading of Sec.71 of the Act indicates that in such a situation, the Sub Registrar concerned could refuse to register the document. As per Sec.71 bar of registration by another registering authority arises only when a Sub Registrar refuses to register a document on grounds other than that property to which the document relates is not situate within his Sub District and an endorsement is made on the document that registration is 'refused'. The Act thus does not bar the document which is not registered by a Sub Registrar as the property to which the document relates or some portion of it is not situate within his Sub District being presented for registration before the Sub S.A. No.758 of 1996 -: 18 :- Registrar who has otherwise jurisdiction under Sec.28 of the Act. But where a fictitious item of property is included in the document or an item of property which actually existed but which the parties did not intent to convey is intentionally included in the document with the sole object of getting the document registered at a particular place, that amounts to fraud on law of registration. The fact that the property situate within the Sub District is only a small portion when compared to the rest of the property situate outside that Sub District or that the primary intention of the parties was that registration should be in the Sub District where small portion of the property is situate would not by itself constitute fraud. To establish fraud on the law of registration there must be evidence of collusion between the parties (See Bhagabat Basudev and Others v. Api Bewa and Others – AIR 1974 Orissa 180). If the intention of the assignor was not covey title in a particular property but it was included in the document only to give the Sub Registrar concerned a colour of jurisdiction to register the document, that would amount to fraud on law of registration. The test is the intention of the parties (see Mathura Prashad and Others v. Chandra Narayan Chowdhury and Others, Collector of Gorakpur v. Ram Sunder Mal and