FIRST APPEAL No. 443 OF 1985 Against the judgment and decree dated 06.02.1985 passed by Sri Rameshwar Prasad, 2nd Subordinate Judge, Arrah in Title Suit No.2 of 1982. HRIDAYA YADAV ………. Defendant-Appellant Versus RESHMI KUER & ANR. ……… Plaintiffs-Respondents ******** For the Appellant : Mr. Anish Chandra Sinha, Advocate For the Respondents : Mr. Yogendra Prasad Sinha No.1, Advocate Mr. Satyadeo Kumar, Advocate Dated : 1st day of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T This First Appeal is directed against the judgment and decree dated 06.02.1985 passed by Sri Rameshwar Prasad, the learned 2nd Subordinate Judge, Arrah in title suit no.2 of 1982 decreeing the plaintiff- respondent no. 1’s suit. The plaintiff-respondent no.1, Reshmi Kuer filed the aforesaid suit for cancelling and setting aside the six sale deeds, Exhibit – B/2 to B/7 on the ground that those sale deeds are fraudulent and without consideration. (2) According to the plaintiffs, her husband, Ram Sakal Mahto died on 20.07.1981 and she came in possession of the property of her Mungeshwar Sahoo, J. 2 husband. On account of her husband’s death, she lost her mental balance and was not in a position to understand her loss or gain and moreover, she was illiterate and “Pardanashin” lady and was not understanding the worldly affairs. When she felt ill, her husband’s friend i.e. the defendant took her to Jagdishpur in the garb of treatment and got her L.T.I. on several plain papers. Subsequently, she came to know that the defendants had got several deeds created with respect to the suit property. Those deeds are not genuine and are without consideration. The sale deeds have been brought into existence in collusion with their own men and therefore, this suit has been filed. (3) The defendant nos.1 and 2 filed separate written statements. It appears that subsequently, there had been compromise between the plaintiff and the defendant no.2, Ramdhyan. The only controversy remained with the plaintiff and the defendant no.1 who is the appellant. According to this defendant no.1, plaintiff was the third wife of Ram Sakal. Ram Sakal was not keeping good health after marriage and for the purpose of treatment, he borrowed money from different persons. He was indebted to the great extent and also the plaintiff spent huge amount in performing his “Shradh”. As a result of which, plaintiff also borrowed money from the defendants. Since the distant relations of Ram Sakal Mahto were pressing hard on the plaintiff to sell the property in their favour for nominal consideration, the plaintiff contacted the defendants and agreed to sell the suit property for Rs.30,000 and the sale deeds have been executed. Rs.18,000 was adjusted and Rs.12,000 was ready with the defendant to be paid at the time of registration in presence of the Registrar but since the 3 amount was heavy, she asked the defendant to pay the same in her village home and subsequently, the defendant no.1 paid the same to her and there was Chirkuit Badlen. The plaintiff was not “Pardanashin” lady. The sale deeds are valid and for consideration. (4) In view of the above pleadings of the parties, the learned Court below framed the following issues: (i) Has the plaintiff got valid cause of action to bring the suit? (ii) Is the suit as framed maintainable? (iii) Is the suit barred by limitation? (iv) Are the sale deeds dated 10.11.1981 fraudulent and not binding on the plaintiff? (v) Is the plaintiff entitled to declare that the sale deeds are not valid for consideration? (vi) Is the plaintiff entitled to get a decree as claimed? (vii) To what relief or reliefs, if any, is the plaintiff entitled? (5) After trial, the learned Court below found that there is no oral as well as documentary evidences regarding the loan advanced of Rs.18,000 and further that the defendant no.1 has not been examined in the case and that the defendants failed to prove the payment of Rs.12,000 in the house of the plaintiff and decreed the suit. (6) Mr. Anish Chandra Sinha, the learned counsel appearing on behalf of the appellant submitted that in the registered sale deeds, it is clearly mentioned that Rs.18,000 was taken as loan earlier and only Rs.12,000 was to be paid in presence of the Registrar which was paid to her. The witnesses have supported this fact but the learned Court below has wrongly not appreciated the evidences properly. The learned counsel further submitted that there are overwhelming evidences to show that prior to death, 4 husband of the plaintiff was ill and for the purpose of treatment, he was greatly indebted and therefore, he took loan from the defendant and the said amount has been adjusted for part consideration and so far other part consideration i.e. Rs.12,000 is concerned, the witnesses have also deposed before the Court that the said amount was paid in his presence but the learned Court below wrongly disbelieved the evidence. The learned counsel further submitted that there are evidences also that the plaintiff is not “Pardanashin” lady. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decree are unsustainable in the eye of law. (7) On the other hand, Mr. Yogendra Prasad Sinha No.1, the learned counsel appearing for the plaintiff-respondent submitted that not a single cheat of paper has been produced by the defendant to show as to what amount was advanced as loan to the plaintiff’s husband and on what date. Not a single witness has been examined in support of the advancement of loan. The learned counsel further submitted that it is not believable that when the husband himself was indebted heavily, the plaintiff would have performed his “Shradh” after taking loan in large extent. For the purpose of proving the loan taken by the plaintiff also, no cheat of paper has been filed by the defendant and moreover, the defendant himself has not been examined. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. (8) In view of the above rival contentions of the parties the points arise for consideration in this appeal is as to “whether the sale deeds are fraudulent and without consideration” or “whether the defendants have 5 been able to prove that the sale deeds are valid, genuine and for consideration” and “whether the impugned judgment and decree are sustainable in the eye of law?” (9) According to the plaintiff, she is illiterate and “Pardanashin” lady and the defendants in the pretext of treatment took her to Jagdishpur and got her L.T.I. on different plain papers. Subsequently, she learnt that sale deeds have been created by the defendants. Therefore, the plaintiff pleaded that not a single farthing was paid to her as consideration amount. On the contrary, according to the defendant, her husband had taken loan for treatment because he was ill and therefore, the loan amount of Rs.18,000 was adjusted and the remaining Rs.12,000 was paid to her after registration in her house. (10) P.W.14 is the plaintiff herself. From perusal of her evidence, it appears that she has fully stated her case as made out in the plaint. P.W.2, neighbour of the plaintiff has stated that plaintiff is illiterate and “Pardanashin” lady. She was mentally weak after death of her husband. P.W.5 is another neighbour who has stated the same thing as that of P.W.2. He has denied the suggestion that “Shradh” was performed at large scale. He has also denied that prior to death, Ram Sakal was ill. This witness also stated the possession of the plaintiff over the suit land. P.W.13 has stated that Ram Sakal was not ill prior to his death. According to this witness, he died after returning from his work. Plaintiff is “phua” of this witness. This witness has also stated that after death of her husband, plaintiff became mentally upset and weak. She was “Pardanashin” and illiterate lady. The other witnesses examined on behalf of the plaintiff are on the point that 6 plaintiff is illiterate and “Pardanashin” lady. The plaintiff who has been examined as P.W.14 has clearly stated that nothing was paid to her and that she did not know the scribe or the witness and she did not ask the witnesses either to put their signatures as witness or they identify her. (11) In this present case, it is admitted that plaintiff is illiterate lady. According to the well settled law, it is the person who claims that the deed is executed duly by a “Pardanashin” lady has to establish that the said deed was executed by “Pardanashin” lady after understanding the contents and implications thereof. This rule is applicable also with respect to a deed executed by an illiterate lady. In the present case, even if it is held that plaintiff is not “Pardanashin” then also, since she is illiterate lady and therefore, the burden was on the defendant to prove that she put her L.T.I. on the sale deeds after understanding the contents thereof and also after understanding, the implications of the sale deeds. Since the plaintiff is denying that she received any consideration, the burden is also on the defendant to prove the fact that in fact, the consideration amount was paid to her. (12) D.W.2 is formal witness. D.W.3 and 5 are on the point that the scribe Sitaram Lal has died. D.W.6 and 7 are the witnesses who have stated that Reshmi Devi, the plaintiff is not the “Pardanashin” lady. As stated above, even if she is not the “Pardanashin” lady, the defendant is required to prove that the contents of the sale deed were read over and explains to her and after understanding the contents and the implication thereof, she put her L.T.I. and also the defendant has to prove that consideration was paid. D.W.9 has stated that he had signed in the six sale deeds for Reshmi at her 7 instance. The sale deeds have been marked Exhibit-B/2 to B/7. This witness in paragraph 8 of the cross-examination stated that he cannot say the period when Ram Sakal was ill and he is unable to say by whom he was treated. He has also admitted in his cross-examination at paragraph 10 that he had not talked about the other loans taken by either Ram Sakal or Reshmi. D.W.8 is a formal witness. D.W.10,11, 14 and 15 are on the point that plaintiff is not a “Pardanashin” lady. D.W.18, 19 and 20 are also formal witness. D.W.17 is Sona Yadav, the elder brother of defendant no.1, appellant, Hridaya Yadav. No doubt, in his examination-in-chief he has supported the case of the defendant but in the cross-examination, he is not able to say from whom Ram Sakal had borrowed money for his treatment and what was the amount due with this witness. He has said that Ram Sakal had taken Rs.3,000 by way of “Hathpaincha” from him. In paragraph 19, he has stated that he had already paid Rs.18,000 to Reshmi prior to execution of the sale deeds and also he had paid Rs.2,000 prior to execution of the sale deeds. He has also stated that he had paid Rs.3,000 to the plaintiff at the time of funeral of Ram Sakal. He has also stated that prior to execution of sale deeds, he had paid Rs.10,000 to the plaintiff at the time of “Shradh” ceremony of Ram Sakal. He also stated that he negotiated the sell of the suit land prior to 1 ½ months of the execution of the sale deed. No doubt, this defendant has stated that he paid more than Rs.15,000 to Reshmi but except this oral statement, no other supporting evidence is available on record. (13) So far payment of Rs.12,000, the balance consideration amount is concerned, D.W.17 has stated that this amount was tendered to her at the time of registration but she did not accept on the ground that she 8 is lady and the amount is huge amount and therefore, it should be paid at her village home and subsequently, it was paid at her village home but except bald oral statement, no documents have been produced in support of the said facts. (14) From perusal of the written statement of defendant no.1, Hridaya Yadav, it appears that the case pleaded is that the defendant no.1 was ready with money to pay the balance consideration amount vide paragraph 15 of the written statement. It is also pleaded at paragraph 16 and 17 that subsequently, this appellant paid the said amount. In support of these pleadings, the defendant-appellant was never examined. D.W.17 who is elder brother of the defendant deposed that he was ready with the amount to pay the same to the plaintiff. From the above discussion, it appears that in the pleading, the specific case of the appellant was that he advanced loan to the plaintiff and Rs.12,000 was paid by him whereas in the evidence of D.W.17, the elder brother of the appellant said that he had advanced loan to the plaintiff and he paid Rs.12,000. So far the pleading in the written statement by the appellant is concerned, he had not been examined to support his case. So far the statement of D.W.17 is concerned, he is neither party to the sale deed nor party to the suit and moreover, he has made a new case. (15) As discussed above, except the statement of this D.W.17 there is no other witness either oral or documentary in support of the fact that Rs.18,000 was advanced as loan to either Ram Sakal or the plaintiff. (16) From perusal of Exhibit B/2 to B/7, it appears that in all the six sale deeds the consideration amount was fixed at Rs.5,000 but in two sale 9 deeds, it has been stated that loan Rs.3,000 have been received which is being adjusted and Rs.2,000 is paid. In one sale deed, it is mentioned that Rs.2500 was received as loan which is adjusted and the remaining balance of Rs.2500 is paid. In one sale deed, it is stated that Rs.4,000 was received as loan which is adjusted and Rs.1,000 is the balance which is being paid and in the other sale deed, it is mentioned that Rs.1500 is the loan which is adjusted and the balance is Rs.3500 is being paid. There is no explanation as to how this calculation i.e. adjustment of loan has been made in the sale deeds. Admittedly, there was no prior agreement between the parties about the sell of the land. The pleading of the defendant in the written statement is that the plaintiff agreed to sell for Rs.30,000 and Rs.18,000 was adjusted and the balance Rs.12,000 was paid subsequently. There is no explanation as to how these discrepancies about adjustment of loan have been made in the sale deeds. All the sale deeds are of same date i.e. dated 10.11.1981. There is no reason as to why in one sale deed Rs.4,000 loan is adjusted and in another sale deed Rs.2500 is adjusted, in two sale deeds Rs.3,000 each is adjusted and likewise, as stated above. I have gone through the oral evidences as discussed above and there is no reliable evidence in support of the fact about advancement of loan except the statement made in the sale deed. There is also no reliable evidence about the payment of balance of Rs.12,000 to the plaintiff. There is no evidence to the effect that she put her L.T.I. after understanding the contents and implication of the sale deeds. I, therefore, find that the defendants have failed to prove that the contents of the six sale deeds were read over and explained to her and she put her L.T.I. after understanding the contents and implications of the sale deeds. The defendant-appellant has also failed to prove the payment of loan of Rs.18,000 10 as well as the balance consideration of Rs.12,000 to the plaintiff and therefore, the sale deeds Exhibit-B/2 to B/7 are illegal, for without consideration and invalid documents. The findings of the learned Court below on this point are therefore, confirmed. (17) In the result, I find no merit in this First Appeal and this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 1st March, 2011 Saurabh/A.F.R.