IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.227 of 1995. Judgment Reserved on: 11.11.2008. Date of decision: 25.11.2008. Bhop Ram ….Appellant Versus Dharam Dass ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the Respondents: Mr.R.L. Sood, Senior Advocate with Mr.Vikas Rajput, Advocate. Dev Darshan Sud,J. This is the defendant’s second appeal against the judgment and decree of the learned trial Court granting him a decree for declaration and injunction that sale deed No.947, dated 28.6.1990 (Ex.DA) was procured by the defendant by practicing fraud on the plaintiff and that this sale transaction was never intended by the plaintiff. The plaintiff filed a suit on the allegations that he is a simpleton, rustic, illiterate, old and sick man of 70 years of age residing in the interior of District Kullu, which is not even connected with a metalled road. Because of his prolonged illness, he has become dull of intellect and is dependent upon others for managing his affairs. His wife was also old. They had no children to look after them and he, his wife and estate were 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 being looked after and managed by his nephew Dharam Dass for the last 7-8 years in whose favour the plaintiff had executed a will. The plaintiff pleaded that the defendant was his cousin and he used to repose confidence in him. The case made out is that in the month of Ashahar he was confined to bed when the defendant asked him that he would take him to Kullu for treatment and the government would bear all expenses. Since he was reposing confidence in the defendant he accompanied him to Kullu. On that day, he was asked to sit under a `Kelo’ tree (Deodar tree) and thereafter the defendant brought some papers and secured his thumb impressions on them on the pretext and assurance that they were necessary in order to get free medical treatment to the plaintiff from the government. He then pleads that he was taken to a room where again his thumb impressions were taken on some papers at the behest of the defendant without anybody explaining anything to him. Bhikham Ram, Pradhan, was present there with some persons. After this, the defendant, again made him sit under a ‘Kelo’ tree and some medicines were given to him by the defendant. He was then taken back home by the defendant. The plaintiff then narrates that after he reached his house, he informed Dharam Dass about the fact that his thumb impressions had been taken on some documents by the defendant, where-after Dharam Dass rushed to Kullu and on inquiry found that the plaintiff had in-fact been duped into executing a sale deed for a purported consideration of Rs.80,000/-. This shocked the plaintiff who immediately executed a registered revocation deed Ex.PW-3/A on 3.7.1990 as he had never sold the suit property nor received a single penny of the alleged Rs.80,000/- of the 3 sale consideration from the defendant. He also stated that he never appeared before the Sub Registrar for registration of the sale deed Ex.DA. The act of the defendant in having thumb marked documents procured from the plaintiff was by misrepresentation and fraud. The possession of the suit property was never delivered to the plaintiff. The suit is contested by the defendant-appellant on a number of grounds including the suit being barred by estoppel, and the acts and conduct of the plaintiff. The defendant admits that the plaintiff is about 70 years of age but has denied that he is sick. He pleads that the plaintiff is hale and hearty and is not a simpleton or rustic person. He further pleads that the plaintiff is the “Gur” (priest) of Devta Hari Narayana and that the entire suit has been instigated by the respondent-defendant Dharam Dass who is in close relation of the plaintiff and in whose favour the plaintiff had executed a will. In replication, these averments have been denied. The trial Court framed five issues. The most crucial issue being, as to whether the sale deed Ex.DA, subject matter of the suit, has been procured by the defendant from the plaintiff by fraud and mis-representation? After recording evidence of the parties, the learned trial Court accepted the version put forth by the plaintiff and held that the defence put up i.e. the execution of Ex.DA and payment of Rs.80,000/-, as sale consideration, was not established and the evidence led by the defendant to prove this fact was contradictory and not worthy of credence. The Court accepted the fact that it was the admitted case of the parties that the plaintiff is 70 years old and is an illiterate villager, he is issueless and his wife was also illiterate and has died during the pendency of the suit. Two witnesses DW-2 Bhikham Ram, 4 Pradhan and DW-1 Bhopu Ram, who were examined by the defendant to prove the passing of the consideration, had stated that on the morning of 28.6.1990 DW-2 Bhikham Ram and DW-1 Bhopu Ram had gone to the house of the plaintiff and currency notes for the sale consideration were counted by DW-2 Bhikham Ram as the plaintiff did not know how to count currency notes. According to DW-1 Bhopu Ram, the plaintiff was sitting in the kitchen on a mat. Fire wood was burning in the `Chullah’ (hearth) and a kerosene lamp had been lit for providing light. DW-2 Bhikham Ram did not corroborate this version and stated that he, the plaintiff and defendant, sat on one and the same mat and there was an electricity lamp lit in the kitchen besides fuel wood burning in the hearth, where he counted the currency notes. This contradiction was considered to be material by the trial Court. The Court noted that no receipt was obtained from the plaintiff for the payment. This was explained by the defendant by stating that the plaintiff had insisted for full payment of the consideration amount as he did not want to deposit the money in the bank. He was not willing to receive the payment at Kullu and that he was ready and willing to execute the sale deed if the full consideration was paid in advance. The factum of the plaintiff being brought to Kullu and being made to sit under the `Kelo’ tree was not denied. The factum of obtaining the plaintiff’s thumb impressions on stamp papers was also admitted by the defendant but the purpose for which such thumb impressions were obtained was stated to be for the purpose of executing the sale deed which was not admitted by the plaintiff. The Court holds that immediately on 3.7.1990 i.e. 4 to 5 days of the execution of the sale deed Ex.DA, the plaintiff executed a registered 5 revocation deed Ex.PW-3/A which was proved by PW-4 Chuharu Ram, PW-5 Vinod Kumar and PW-6 P.S. Chauhan. This conduct of the plaintiff was consistent with his pleadings that he has been duped into executing Ex.DA. The other contention of the appellant-defendant that the plaintiff had sworn an affidavit Ex.DC before the Executive Magistrate was not proved in accordance with law as there was no seal of the Magistrate to prove due attestation of this affidavit. In the circumstances, the Court granted a decree for declaration as prayed for. In the appeal preferred by the defendant, the learned District Judge considered the entire evidence in its entirety and rejected the appeal holding that since the plaintiff was residing with his nephew Dharam Dass who was looking after him, there was no necessity for the plaintiff to have sold the land to the defendant. There was no evidence that the financial position of the plaintiff was bad. He was possessed of large tracts of land as was established by the revenue records Ex.P-1 to Ex.P-5 and there was no occasion for the plaintiff to have sold this land. On the evidence of the defendant-appellant who appeared as DW-1 that the plaintiff wanted to dispose of the land because Dharam Dass had stopped maintaining the plaintiff, the learned Court holds that suggestions put to the plaintiff in cross examination is that it was Dharam Dass who had been maintaining the plaintiff throughout. Consequently, the Court accepts the findings that the plaintiff had been brought to the Tehsil Office in Kullu where he was made to sit under a `Kelo’ tree where he was made to affix his thumb impression on some papers. Thereafter he was taken to the room of Registration Mohirrir 6 where again his thumb impressions were taken. The Court holds that the evidence of the defendant to the effect that the plaintiff had got the sale deed Ex.DA scribed under his direction, that it was read over and explained to him and he thereafter voluntarily executed the sale deed was unworthy of credence. The Court holds that the statement of the Deed Writer PW-3 Charan Dass was not worthy of reliance. The Court also holds that the plaintiff was aged, illiterate and a rustic man who was residing in a remote area which is not even connected with a motorable road. In these circumstances, the case of the plaintiff that the defendant had taken advantage of these circumstances was corroborated. The Court accepts the contention regarding non-passing of the consideration by re-appreciating the entire evidence. The appellate Court also considers the fact that the defendant had not established on record as to how he got a large sum of money of Rs.80,000/-. The defendant had submitted that he had sold his orchard for Rs.40,000/- to his brother Dola Ram and he had Rs.30,000/- with him from another sale of land which he had made to Mehar Chand. Both Mehar Chand and Dola Ram were not examined as witnesses and the Court negates the version of the defendant that he was in-fact in possession of such a large amount of money. The Court accepts the contradiction in the statements of DW-1 and DW-2 and in the totality holds that the amount of Rs.80,000/- has not been paid. This appeal was admitted by this Court on six substantial questions of law, namely: “1. Whether it is the incumbent for the plaintiff to specifically allege full and material particulars of 7 fraud and misrepresentation? Can the suit be decreed merely on vague allegations? 2. What is the evidentiary value of certifying and endorsement made by the Sub Registrar on the Sale Deed, does the certificate has presumption of truth, in what circumstance the said presumption be held to be rebutted? 3. When the Sale Deed duly executed, attested and registered is proved on record, does the onus lay on the Plaintiff to give cogent evidence for non passing of consideration. Can the court merely inferentially held that the consideration mentioned in Sale deed is negotiated in the absence of any allegation of connivance between the Vendee and the Sub- Registrar? 4. Whether mere relationship is sufficient to hold that a person stands fiduciary relationship in respect of the executant in making a ground to set aside the sale deed. What is the provision of Contract Act and on what circumstance the Sale Deed be held to be vitiated on account of exercising of undue influence on account of fiduciary relationship? 5. Whether the Sale Deed duly registered and executed be set aside on the ground that the Executant had executed a Will in favour of some third party? 6. What is the effect of revocation deed and subsequent Sale Deed which was only executed and not registered at the behest of Shri Dharam Dass? 8 Question No.1: On the first question learned counsel for the appellant submits that it was for the plaintiff to specifically allege and plead full material particulars of fraud and mis-representation. Learned counsel submits that the suit cannot be decreed merely on vague allegations. This submission cannot be accepted. Provisions of Order 6 Rule 4 of the Code of Civil Procedure mandate that the particulars necessary for establishing fraud must be clearly stated in the pleadings. General allegations of fraud are not sufficient compliance of this requirement (See: Sukhdei (Smt.)(Dead) by LRs. Vs. Bairo (Dead) and Others, (1999)4 SCC 262, U.P. Secretariat U.D.A. Association through its Joint Secretary, G.C. Srivastava and Others vs. State of U.P. and Others, (1999)1 SCC 278, Gayatri Devi and Others vs. Shashi Pal Singh, (2005)5 SCC 527). The pleadings show that the plaintiff has pleaded in clear and unequivocal terms that he is an illiterate and rustic person, the defendant had specially told him that he would be taken for medical treatment where his thumb impressions were required on some documents and that he complied accordingly; he had never intended to sell the suit land. These particulars are contained in paras 3, 4 and 5 of the plaint, which reads:- “3. That the plaintiff and his estate is being looked after by his nephew Dharam Dass for the last 7/8 years and the plaintiff has also executed a WILL in favour of Dharam Dass long back. 4. That the defendant is a cousin of the plaintiff who also keeps on visiting the plaintiff off and on and the plaintiff used to repose confidence in defendant. 9 5. That in the month of `Asadh’ the plaintiff was confined to bed when the defendant came there and asked the plaintiff that he would take the plaintiff to Kullu for treatment and the Government would bear all expenses. 6. That since the plaintiff used to repose confidence in defendant, therefore be agreed to come with him for treatment to Kullu. Next day the defendant brought the plaintiff to Kullu to court premises and there he asked the plaintiff to sit under a “Kelo” tree. After some time he brought some papers with him and secured the thumb impressions of plaintiff on those papers on the pretext that those were necessary to get free medical aid from the Govt. The plaintiff was then taken to a room where again his thumb marks were taken on some papers. No body asked any thing from him. Bhikham Ram Pradhan was also present there with some persons. 7. That after that the plaintiff was brought out and asked to sit under that `Kelo’ tree. The defendant then vanished and came after quite some time with some medicines and told that the Govt. has given free medicines for him. 8. That thereafter the plaintiff was brought back by the defendant to his village and made to live in defendant’s house for 5/6 days and then he was allowed to come back to his home. 10 9. That after coming back to his home the plaintiff told about his thumb marks taken by the defendant at Kullu to Dharam Dass. Dharam Dass then made enquiries and came to know that a sale deed has been got executed from the plaintiff alienating his entire land to the defendant for a consideration of Rs.80,000/-. 10. That the plaintiff was shocked to hear about all this fraud practiced upon him by defendant in connivance with Pradhan Bhikham Ram, one Ram Singh, the Scribe and others concerned. 11. That the plaintiff has never sold his any property to defendant. The plaintiff has never received even a single penny as sale consideration from the defendant. The plaintiff never appeared before the Sub Registrar in connection with sale of his any property including the suit property and he never admitted such sale or receipt of Rs.80,000/- before any authority. The plaintiff never thumb marked any sale deed or other documents connected with sale affairs knowing it to be for the purpose of sale. All the thumb impressions of plaintiff were taken on these documents by the defendant, misrepresenting those to be documents necessary for getting free medical treatment from the Govt.” This is a sequential narration of facts in a natural way explaining as to how and in what manner the plaintiff had been duped. 11 The plaintiff has clearly pleaded the circumstances and the manner in which the deed Ex.DA and affidavit Ex.DC were executed. Whether these facts, if proved, amounted to fraud or not was a question of evidence and inference from the proved facts. Moreover, the defendant has not at all pleaded that these facts, as alleged, do not constitute fraud, misrepresentation etc., or that the material particulars are lacking and he has been taken by surprise. No issue was settled on this allegation and the parties went to trial on the facts some of which were admitted by the defendant-appellant namely that the plaintiff is old, illiterate, rustic and that he was taken to Kullu where he affixed his thumb impression on some documents although the purpose was different i.e.with the intention to sell his property. In these circumstances, I hold that there were sufficient particulars pleaded to establish the case of the plaintiff. This question is accordingly decided against the defendant. Questions No.2 and 3: Both these questions are taken up together for discussion. Submission made by learned counsel appearing for the appellant is that Ex.DA is a registered sale deed registered under the provisions of the Registration Act, 1908. He submits that the presumption under Section 60 of the Act supra is squarely attracted to the facts of the present case and that there is no evidence on the record to suggest that the plaintiff did not enter into sale transaction as pleaded. He also takes assistance from Ex.DC which is an affidavit alleged to have been executed by the plaintiff for the purpose of registration of the sale deed. 12 Reliance is placed on decision of this Court in Shri Kripa Ram and Others vs. Smt.Maina, 2002(2) Shim.L.C. 213. In that case, this Court relying upon the decision of the Privy Council in Sennimalai Goundan and another vs. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) of the Registration Act read with Section 115 of the Evidence Act held that where a person admits execution of an instrument before the Registrar after the document has been explained to him, he cannot subsequently plead that he was ignorant to the nature of the transaction. The decision relied upon also follows the judgment of this Court in Kanwarani Madna Vati and another vs. Raghunath Singh and others, AIR 1976 HP 41. Prima facie, this argument seems attractive but on consideration of the facts on record, this submission cannot be accepted. The evidence on record and proved facts are consistent only with one conclusion and that is that the plaintiff has been duped. The cumulative effect of the established facts, namely, illiteracy of the plaintiff, non-payment of the consideration money and material contradictions in the statements of the witnesses of the defendant are all sufficient to rebut the presumption so invoked by the defendant. No sale consideration was either paid by the defendant or received by him before the Registrar. In the decision relied upon by the learned counsel appearing for the appellant, the Court had held that the endorsement was clear not only regarding the presentation of the deed before the Registrar but the fact that payment of the consideration had been admitted and that the document had infact been read over and explained to the executant. Moreover, the presumption under Section 60 ibid is not 13 irrebutable. Old age, illiteracy and backwardness, were facts which placed a special cloak of protection around the plaintiff. There is nothing on the record to suggest or show that the plaintiff had infact understood the nature of the transaction or that he was ad-idem with what he was transferring. The conduct of the plaintiff revoking the transaction vide ExPW-3/A within a period of five days and in the absence of evidence that during this time he had been prevailed upon by any other person for extraneous consideration to revoke the transaction, the findings of both the Courts below that in-fact no consideration had passed, were all factors which would render the presumption attached to Ex.DA as having been negatived. All these facts were consistent with only one conclusion that is, that the mind of the plaintiff was not ad-idem with the purported transaction. Although protection given to a `Pardanashi’ lady, is not extended to an illiterate male who is well conversant in dealing with property matter, yet even in these circumstances the fact that the contents of deed have been read over and explained to the executant must be proved by the person who wants to take advantage of such writing/deed. This principle of law has been laid down by the High Court of Calcutta in Kartick Prasad Gorai and others vs. Neami Prasad Gorai and others, AIR 1998 Calcutta 278. The Court held:- “21. In our opinion, although the protection given to a `Pardanashi’ woman as regards execution of a deed is not available to an illiterate man who has sufficient experience of dealing with property, we are of the view that in case of a deed executed by such a person, the fact that the contents of the deed were read over and explained to the executant must 14 be proved by the person who wants to take advantage of such deeds. In this case in view of contradictory statement made by the alleged witnesses of the deeds as regards execution and explanation of the contents, the finding of the learned trial Judge cannot be said to be wrong.” In this appeal, although it cannot be said that the plaintiff was a person well versed in dealing with the property matters, even then, relying upon the principle in Kartick Prasad Gorai’s case, there is no evidence on the record to show that the real nature of the transaction was explained to the plaintiff. If the submission of the learned counsel for the appellant is accepted, the same presumption under the provisions of law would apply to Ex.PW-3/A which is a registered deed revoking Ex.DA on which I do not find that there has been any cross-examination to discredit the substance of what has been written and which tallies in all material particulars with the allegations and pleadings in the suit and the evidence led by the plaintiff. The cumulative effect of the circumstances, discussed by the learned trial Court as affirmed by the learned appellate Court, clearly point out to only one thing and that is that no sale transaction has in-fact taken place. Both these questions are decided against the appellant. Question No.4: It was not merely the fiduciary relationship which was the fact to be considered and even if considered and negatived, would advance the case of the appellant any further. The reasons being that it is in the totality of the evidence considered by the learned Courts below, that the judgment has been rendered holding that the sale Ex.DA is the outcome of fraud and mis-representation, I hold that there was no intention on the part 15 of the plaintiff to have executed the sale deed and no consideration had passed between the parties which question has been rightly determened. Both these questions are decided against the appellant. Question No.5: The sale deed has not been set aside solely on the ground that the plaintiff had executed a will in favour of “some third party”. In-fact the beneficiary of the testament was related to the plaintiff and was looking after him and his wife. This was considered to negative the contention of the appellant herein that the funds were required by the plaintiff for his personal use. Question No.6: This question does not arise for determination as Ex.PW-3/A, deed of revocation, is registered instrument. In the totality of the facts and circumstances of the case, I do not find any merit in this appeal which is dismissed. There shall be no order as to costs. November 25, 2008. (Dev