IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 191 and 216 of 1997. Judgment reserved on: 03.11.2010. Date of decision: 21.2. 2011. RSA No. 191 of 1997. Smt. Sukhi widow of Sh. Meen and others .. Appellants. (LRs of Meen defendant) Versus Smt. Mohinder Kaur widow of Sh. Gopal Singh (LR of plaintiff deceased) .. Respondents. RSA No. 216 of 1997. Ms. Sukhi widow of Sh. Meen and others .. Appellants. (LR of Meen defendant) Versus Smt. Mohinder Kaur widow of Sh. Gopal Singh (LR of deceased plaintiff) .. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1 . For the Appellants : Mr. Bhupinder Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For Respondents Mr. G.D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate, for respondents No. 1 (a) 1 (b), 2 and 3. _____________________________________________________ 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - Surinder Singh, J. The above titled Regular Second appeals by the defendants are arising out of the common judgment of reversal dated 19.6.1997, passed by the learned District Judge in Civil Appeals No 17-NL/13 of 1995 and 8-NL/13 of 1995 decided on 19.6.1997. 2. Brief facts giving rise to the present appeal as are under:- (i) The suit land as detailed in the plaint was owned by Shri Mothu father of respondent Gopal Singh (now dead through her LRs) proforma respondents Ram Krishan and Pritam Chand. Meen the predecessor-in-interest of the appellant in RSA No. 191 of 1997 filed civil suit No. 276/1 of 1991 which has been referred as civil suit No. 2 by the learned trial Court. In his plaint filed on 24.9.1991 he sought declaration that he is owner in possession of the suit land with consequential injunction against Meen aforesaid pleading that he required some money to repair - 3 - the house and this fact came to the knowledge of defendant Meen. He approached Mothu to mortgage the suit land for a sum of `10,000/-. Mothu plaintiff agreed to it. His sons aforesaid were living outside and he was residing in village Thana, he being 85 years of age remained sick and was weak in body and mind at the relevant time when the defendant approached him with a proposal to mortgage the land. Thus, on 13.9.1991 Meen defendant brought the plaintiff to Nalagarh and got the mortgage deed executed for `10,000/-. But on 20.9.1991 he was shocked to know that instead of registering the mortgage deed he is alleged to have executed a sale deed in connivance with the petition writer Satish Kumar and attesting witnesses Amin Chand and Nizam Deen with a view to grab the property and this was a fraudulent misrepresentation. He further averred that the value of the land was not less than one lac rupees and it would not have been sold by him merely for ` 10,000/- thus the sale deed was forged and fabricated one and the result of fraud played - 4 - against him. It was his case that neither the scribe nor the attesting witnesses or the Sub Registrar ever revealed him about the true nature of the document. Thus the said defendant took the advantage of his age and illiteracy and sought the declaration that he was the owner in possession of the suit land and the alleged sale deed is illegal and void and also prayed the consequential relief of permanent prohibitory injunction. (ii). The another suit was filed by one of the sons of Mothu named Gopal Singh (now deceased) against Meen defendant and also against his father Mothu Ram impleading his other brothers as proforma defendants (referred as suit No. 1 by the learned trial Court) seeking declaration and injunction on the ground that Mothu as well as the plaintiff and proforma defendants aforesaid constitute a ‘joint Hindu family’ and co-parcenery, his father Mothu defendant No. 2 was the karta thereof but alleged that he re-enunciated his duties as Karta on 13.4.1989 and the aforesaid co- parceners constituted as Karta with respect to the ‘joint Hindu family’ as their father could no longer - 5 - manage the suit land and other affairs on account of his mental and physical weaknesses. The co- parcenery property was recorded in the name of defendant No. 2 Mothu in the revenue record. The said property was acquired from the funds of the joint Hindu family funds. The proforma defendants had been looking after and maintaining him and there was no legal necessarily to mortgage the land in favour of defendant Meen. It was also pleaded that the plaintiff came to know on 18.9.1991 about the said transaction from the Patwari concerned and obtained the copies of the sale deed which, according to him was the result of fraud played on his father owing to his illiteracy ignorance and old age. Thus sought the aforesaid relief. 3. Defendant Meen resisted and contested both the suits almost on identical grounds and raised the preliminary objections of maintainability in the first suit, cause of action and to stay the suit as per provision of Section 10 of the Code of Civil Procedure because of the pendency of ‘second suit’ and denied that the - 6 - suit land was neither a co-parcenary property nor a Joint Hind Family Property. Therefore, there was no question of performing the duties by Mothu as the Karta. It was averred that Mothu connived with his sons to file the suit whereas his sons were not maintaining him and he required money and he knowing fully well executed the sale deed in his favour and sold the suit land for legal necessity and bonafide requirement. His brother defendant No. 2 and 3 in this suit being real brothers admitted his claim in this suit. 4. The suit shall be referred by the same number as ‘first suit’ and ‘second suit’ as referred by the learned trial Court. 5. In replication plaintiff denied the preliminary objections and re-affirmed even paras on merits. 6. In both the suits, learned trial Court framed separate issues. In the first suit following issues were framed:- - 7 - (i) Whether the suit land is joint Hindu Family Co- parcenery property as alleged. If so, its effect? OPP. (ii) If issue no. 1 is proved in affirmative whether the sale made by defendant No. 2 in favour of defendant No. 1 was for legal necessity as alleged? OPD1. (iii) Whether the sale deed executed by defendant No. 2 in favour of defendant No. 1 is wrong and illegal as alleged? OPP. (iv) Whether the above said Sale deed is a result of fraud, misrepresentation etc. as alleged ? OPP. (v) Whether the plaintiff has a cause of action? OPP. (vi) Whether the plaintiff has locus standi to sue? OPP. (vii) Whether the suit is not maintainable in its present form? OPD-1 (viii) Whether the present suit is collusive between the plaintiff and defendant No. 2 as alleged. If so its effect? OPD-1. (ix) Whether the suit has not been properly valued for purposes of court fee and jurisdiction?OPD-1. (x) Whether defendant No. 1 is a bonafide purchaser for consideration as alleged. If so, its effect? OPD-1. (xi) Relief. 7. In the “second suit” the issues were as follow:- - 8 - (i) Whether the sale deed dated 13.9.1991 executed by plaintiff in favour of the defendant is a result of fraud etc. As alleged? OPP. (ii) Whether the plaintiff is stopped from filing the present suit by his act and conduct? OPD. (iii) Whether the defendant is owner in possession of the suit land after purchase as alleged? OPD. (iv) Whether the plaintiff has a cause of action? OPP (v) Whether the suit is not maintainable in its present form? OPD. (vi) Relief. 8. Both the suits were consolidated. The parties led their evidence in first suit. Mothu Ram died during the pendency of this suit before the learned trial Court on 10.9.1994 his sons, including Gopal Singh plaintiff I first suit and other brothers were brought on record. The learned trial Court after hearing the parties, gave the findings on Issues No. 1 and 2 in the ‘first suit’ in affirmative and qua Issue No. 3 in “Second Suit” partly affirmative and on all other issues in both suits in - 9 - negative. Consequently both the suites were dismissed precisely holding that the evidence on record clearly shows that the suit land was a Joint Hindu Family and coparcenery property and the plaintiffs failed to prove that the sale deed Ext. DW2/A was the result of mis-representation and fraud and further that out of these three sons, one was living in Agra and another in Solan District and the third one was living separately from Mothu. Mothu was living alone in his village where the suit land was situated. He was in need of money for the repair of his house thus because of the legal necessity, he sold the suit land for a consideration of ` 10,000 by executing a sale deed. 9. LRs of Mothu, in his suit challenged the judgment and decree passed by the learned trial Court and Gopal Singh also challenged it by filing separate appeal before the learned District Judge. The only point under challenge was that whether Mothu Ram being - 10 - old and illiterate person, was duped by obtaining sale deed by defendants whereas he intended only to mortgage his land. The learned first appellate Court re-examined the matter and held that the contention raised by the plaintiff Mothu was correct and the defendant had taken undue advantage of illiteracy and old age and helpless position, defendant Meen defrauded him and as such the transaction stood vitiated by fraud. Consequently, both the appeals were allowed and the judgment and decree passed by the learned trial Court in both the suits aforesaid was aside. Consequently both the suits filed by the plaintiff (s) were decreed holding that sale deed dated 13.9.1981 by Shri Mothu deceased plaintiff in favour of defendant Meen was the result of fraud as he only intended to execute mortgage deed for ` 10,000/- and not sale deed, thus on equity defendant aforesaid shall refund the amount of ` 10,000/- and issued permanent prohibitory injunction. - 11 - Hence the defendant Meen filed the above Regular Second Appeals, during the proceedings in appeal he died as such his legal representatives were brought on record. 10. RSA No. 191 of 1997 of defendant Meen was admitted on 26.8.1997 on the following substantial questions of law:- (i) Whether an illiterate male of old age can be compared with a pardanashin lady so as to give right to the legal heirs of such person to assail the sale Deed on the ground of fraud etc. ? (ii) Whether the successor in interest of the Executant of the Sale Deed can be permitted to assail the Sale Deed on such ground which were in personal knowledge of the Executant, who did not assail the Sale Deed on any ground whatsoever during his life-time? (iii) Whether the endorsement of the Sub- Registrar raises sufficient presumption of due execution and registration/ attestation of the Sale Deed when the validity of such document is disputed on the ground of fraud and inadequacy of Sale consideration? - 12 - (iv) Whether the document of Sale can merely be held to be invalid on account of the fact that sale considerations seems to be inadequate or the said document was intended to be mortgaged by the Executant has the illiteracy of the Executant of such document substantial effect of vitiating such document? (v) Whether the plea of fraud can be taken into consideration when the pleadings are absolutely lacking as well as the evidence is inadequate? (vi) When the execution of Sale deed is not disputed, was the learned lower Appellate Court justified in raising adverse inference against the defendant- appellant for non-examination of the Sub- Registrar, was their any necessity of examining such person to prove the attestation and execution of the Sale Deed? 11. As stated above, RSA No. 216 of 1997 was also filed by Meen against the plaintiff Gopal Singh and the proforma defendants and was admitted on 26.9.1997,without formulating the substantial questions of law but in my opinion - 13 - the substantial questions of law are same as in RSA No. 191 of 1997. 12. Shri Janesh Gupta, learned counsel for the defendants vehemently argued that though said Shri Mothu was about 80 years of age at the time of execution of the sale deed and illiterate but he was in his perfect senses. He was an intelligent person and could very well understand his right and wrong. He could not be equated with the “pardanashin lady”. He was in need of money for the repair of his house, his sons were living far away from at different places him, and on account of the aforesaid legal necessity, he had to sell the land in question and after having satisfied by the said necessity, by defendant Meen, sale deed was executed and consideration amount was paid. He also argued that the consideration amount was adequate. There was no requirement of law to examine sub- Registrar to prove sale-deed as his certificate is per se admissible. He further ventilated that the - 14 - findings of reversal by the learned first Appellate Court are based upon the mis-interpretation and mis-appreciation of evidence. He also argued that the necessary ingredients about the fraud and misrepresentation are lacking in the first suit filed by Gopal Singh the son of Shri Mothu. Thus the judgment and decree passed by the learned first appellate court were wrong and illegal and the judgment and decree passed by the learned trial court dismissing both the suits of the plaintiffs are required to be restored. 13. Contra Shri G. D. Verma, Sr. Advocate duly assisted by Shri B. C. Verma, Advocate supported the impugned judgment and decree passed by the learned first appellate Court and forcefully argued that there was inadequacy of consideration amount and further that Mothu was an illiterate person who was required to be equated with a Pardanashin lady. He was duped by the defendants under the pretext of mortgage-deed and the sale deed was got - 15 - executed in collusion with the revenue officer and the witnesses. The endorsement on the sale deed carried no presumption in law, particularly in view of the peculiar facts and circumstances of this case. In nut-shell the learned counsel supported the judgment and decree passed by the learned first appellate Court. 14. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 15. There are concurrent findings of facts by the courts below that the suit property is ‘joint Hindu Family’ and ‘co-parcenery property’ and this aspect of the matter has not been challenged in the present appeals. Further, it also stands established on record that Mothu, at the time of execution of the sale deed Ext. DW2/A, was about 80 years of age which fact has also been admitted by PW4 Shri Ram Pyara who was holding power of attorney for and on behalf of - 16 - said Shri Mothu. It stands proved on record that Mothu aforesaid was living alone from his sons Ram Krishan and Pritam Chand who were residing in Agra for the last about 20 years whereas third son Gopal Singh was also living in Solan Town for more than two decades. It is also not disputed that Mothu was illiterate person living alone in his village. . 16. The first suit being civil suit No. 276/1/1991 was filed by Mothu himself on 24.9.1991 and the second suit being civil suit No. 310 of 1991 was filed on 29.1.1991 by Gopal Singh against his father Mothu and defendant Meen impleading his brothers Ram Krishan and Pritam Chand as proforma defendants as aforesaid. He specifically averred that his sons were living out side and he was residing alone in the village. Since he had to maintain his house, he required money to repair his house. 17. Although the onus is on the vendee with respect to the voluntary execution of the - 17 - sale deed in question because of the fact that Mothu aforesaid was an illiterate person, but in my opinion this onus stands discharged by the defendant who examined himself as DW1. According to him, the suit land which was two bighas and ten biswas was purchased by him for a sum of ` 10,000/-. The sale deed was scribed by the Deed Writer at the instance of Mothu. It was read over and explained to him. After admitting its correctness, he appended his thumb impression in the presence of the witnesses Najim Deen and Amin Chand. It was presented for its registration before the Sub Registrar. At that time, the witnesses aforesaid were also present and he paid ` 10,000 in the presence of Sub Registrar. He further testified that at the relevant time, Mothu was in the perfect disposing state of mind. He also stated that he was not related to the vendor. He further stated that House (kotha) in which Mothu was living, - 18 - was in dilapidated condition and he intended to repair it. 18. DW2 Satish is a document Writer who affords corroboration to the version of vendee aforesaid and DW 3 Najim Deen further fortified the stand of the vendee as stated above. DW 4 Ram Pyara was holding the power of attorney of Mothu which he proved Ext. DA on record. He also stated that Mothu required the amount for the repair of his house and he expressed his ignorance whether he intended to sell it of or to get it mortgaged but testified that he was living alone in his village and off and on his sons used to visit him. The alleged fraud and mis- representation in execution of the sale deed as alleged by the plaintiffs stands not proved on record rather defendant in his evidence as already stated above has discharged the burden which was initially placed upon him. Further the sale consideration whether it is adequate or inadequate cannot be dislodged - 19 - by the one year average Ext. PW3/A. Hence sale consideration is certainly settled by the parties keeping in view the location of the land, its nature and various other considerations. 19. The actual amount shown in the sale deed is admitted to have been paid by the defendants to the plaintiff, as stated by the plaintiff which was deposited in the Bank. Otherwise even if the whole price is not paid and the document is executed and registered, sale becomes complete and the presumption of sale would take effect and the title would pass under that transaction. 20. The real test is the intention of the parties to constitute sale. The parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either before or after the sale. The conduct of the parties and the evidence on record need not be examined to ascertain the intention of the parties as held by the apex court in Bishnudeo - 20 - Narain Rai (dead) by LRs and others versus Anmol Devi and others AIR 1998 SC 3006 and Vidhyadhar versus Manikrao and another (1999) 3 SCC 573 that in order to constitute a sale, the intention has to be gathered from the sale deed as also the binding circumstances. 21. In the instant case, sale deed Ext. PW2/A bears the certificate of registration. The co-ordinate Bench of this Court in Kripa Ram and others versus Smt. Maina 2002 (2) SLC 213 also held that the presumption of due execution of the document arises from the endorsement of the Registrar under Section 60 of the Act. Even in Kanwarani Madna Vati and another versus Raghunath Singh and others AIR 1976 HP 41 this Court held that in view of the provisions of the Registration Act, Registration of a document leads to the presumption of correctness of the endorsement made on the document by the Registration Officer. - 21 - 22. Plaintiffs, in the instant case have miserably failed to show that the defendant was in a position to exercise undue influence or any sort of control over Mothu even they were not related to each other nor was in a position to dominate the will of said Shri Mothu to procure the sale deed by undue influence. Moth was present before the scribe and the Sub Registrar. No evidence was led to rebut the evidence of the defendants by the plaintiffs as the onus in the civil cases is always fluctuating. There is nothing on record to show that Mothu did not know his good or bad, merely that he was illiterate he cannot be equated with the pardanashin lady. Though his sons could assail the transaction only on the ground that there was no legal necessity yet it was required to show by them by leading cogent evidence more specifically when the vendee has discharged his onus. 23. Therefore, in view of the above stated position, in my considered opinion, the judgment - 22 - and decree passed by the learned first appellate court decreeing the suit of the plaintiff is unsustainable as such both the appeals filed by the defendants are allowed. Consequently judgment and decree passed by the learned first appellate Court is set side and that of the learned trial Court dismissing both the suits, are restored. 24. No other point urged or pressed. 25. The substantial questions of law are answered accordingly. No costs. February 21, 2011. ( Surinder Singh ), (cm) Judge