JUDGMENT S.N. Srivastava, J.
1. Defendants-appellant preferred this second appeal against the judgment and decree dated 7.11.1988 passed in Civil Appeal No. 119 of 1987 decreeing suit by reversing the judgment and decree dated 23rd February, 1987 in Original Suit No. 101 of 1985 for cancellation of sale deeds.
2. Plaintiff-respondent filed a suit for cancellation of sale deeds dated 27th November, 1984 and 14th December, 1984 registered on 28th November, 1984 and 15th December, 1984 in favour of defendant Nos. 1 to 4 on the allegations, inter alia, that plaintiff is bhumidhar of the land in dispute, his main source of earning is agriculture, he is an illiterate, old, infirm, ailing and rustic village person having no knowledge about Court proceedings, he has no son and has only one daughter Jaimurti who is serving him, two sons of his daughter Jaimurti are also residing with him, plaintiff wanted to execute Will in favour of his daughter Jaimurti so that after his death no dispute remains ; due to old age, weakness and ailment his eye sight also became very weak ; taking advantage of these weaknesses defendants took his thumb impression on the plain papers and assured him to take steps for execution of Will in favour of his daughter, subsequently it was discovered that a fraud was played on him by defendant and instead of execution of Will in favour of his daughter, defendant Nos. 1 to 4 got executed sale deeds in their favour, no sale consideration was paid, to him, the sale deeds are outcome of the fraud played by defendants on plaintiff, no application for permission to execute sale deeds was moved by plaintiff to consolidation authorities, any endorsement of payment of sale consideration, if made, on the sale deeds by Registrar is incorrect, as defendants refused to get sale deeds cancelled, hence suit for cancellation of the sale deeds.
3. From perusal of the record it transpires that on 29th November, 1985 suit against defendant Nos. 1 to 5 proceeded ex parte. Thereafter, on an application of Ram Asarey-defendant No. 2 ; he was permitted to file written statement, but any other defendants did not file written statement. In his written statement Ram Asarey denied averments made in the plaint and in additional pleadings further pleaded that plaintiff is a very clever and intelligent person, he is not ailing, he has disclosed his age more than his real age, plaintiff is conversant with the Court proceedings, he used to go Registrar's office and also to the Consolidation authorities, on his application to S.O.C. permission was granted on 14.11.1984, in pursuance thereof plaintiff executed sale deeds with his sweet will, no fraud was played on him, plaintiff read the contents of sale deeds and he also received Rs. 6,000 Rs. 7,000 before the Registrar, remaining amount was already paid to him, allegation of any mistrust or fraud on the ground that plaintiff wanted to execute Will is incorrect, plaintiff executed sale deed, he himself put his signature on the sale deeds and he never wanted to execute Will, defendants got possession immediately after execution of sale deed.
4. Trial court by the judgment and decree dated 23.2.1987 dismissed suit against which civil appeal preferred by plaintiff was allowed. Trial court decree was reversed and suit for cancellation of sale deeds dated 28.11.1984 and 15.12.1984 was decreed, and Sub-Registrar was also informed accordingly. Defendants-appellant preferred present second appeal before this Court.
5. Following substantial questions of law mentioned in the memo of second appeal were framed at the time of admission :
"(1) Whether the burden of proof has been correctly placed on the defendant-appellants to prove the validity or genuineness of the sale deed executed by the plaintiff-respondent?
(2) Whether the benefit and advantages available to pardanashin lady can be extended to plaintiff-respondent? And (3) Whether under the circumstances of the case the suit for cancellation of the sale-deed could be decreed?"
6. Learned counsel for appellant moved another application dated 16.11.2004 mentioning therein four other substantial questions of law, which are as follows :
"(IV) Is the finding of the lower appellate court that the plaintiff was entitled to the benefits available to a pardanashin lady vitiated in law as it failed to consider the evidence relied upon by the trial court on the basis of which the latter held that the plaintiff was neither old nor infirm nor deaf nor blind and that he was fully conversant with the proceedings in Court and registration office etc. from much before the execution of the instant sale deeds?
(V) Is the judgment of the lower appellate court vitiated on account of its misreading the evidence on the record and ignoring relevant evidence on record?
(VI) Was the court below legally justified in making out a new case for the plaintiff never pleaded by him?
(VII) Is the finding of the lower appellate court vitiated on account of its reliance oh irrelevant and extraneous considerations?"
7. Heard learned counsel for the parties.
8. Learned counsel for defendant-appellants urged that a number of documentary evidence including kutumb Register relied upon by the trial court were ignored from consideration by the lower appellate court while reversing the decree passed by trial court and as such judgment and decree of the lower appellate court is liable to be set aside. Learned counsel for defendant-appellants did not dispute proposition of law, i.e., benefits available to a pardanashin lady is also available to old, infirm, illiterate, ailing and a rustic villager of weak intellect, but he urged that plaintiff-respondent is not entitled to get this benefit on the basis of the evidence available on record and lower appellate court erred in law while shifting burden of proof on defendants. Learned counsel for defendant-appellants also taken me through the statements of most of the witnesses of the parties during the course of the arguments and also urged that there is no pleading in the plaint about not having paying capacity of defendant-appellants, hence it was not incumbent upon the defendant-appellants to prove the source of payment and lower appellate court erred in law in reversing the decree the considering on this ground, though only pleading in the plaint is that no sale consideration was paid.
9. In reply to the same. Sri Rahul Sripat, learned counsel for plaintiff-respondents contended that all the relevant evidence and documents including kutumb Register, was in fact taken into consideration by the lower appellate court. Lower appellate court considered each and every aspect and rightly reversed judgment and decree passed by trial court and further urged that the findings of the lower appellate court that plaintiff was old, infirm, illiterate, ailing, and of weak health and weak intellect are questions of fact which were rightly arrived at on appraisal of evidence available on record. He also urged that no sale consideration was paid to the plaintiff. The sale deeds were outcome of fraud committed by defendants-appellant who are members of plaintiff's own family and grandsons of his real brother. Learned counsel of respondents referred statements of D.W. 1 and D.W. 5 to show that the findings and decree passed by lower appellate court was based on appraisal of evidence. He referred to the endorsement of the Sub-Registrar and urged that there is no admission of any prior payment of consideration.
10. Considered the arguments of learned counsel for the parties and perused the record.
11. Plaintiff has proved from material on record that he was an illiterate, old, infirm and ailing person who was also produced before the lower appellate court. Lower appellate court also found that plaintiff was an old and infirm person when he was produced before it. Lower appellate court also considered pleading of the defendants that plaintiff disclosed his age more than his real age and has not disclosed any other age in the written statement. Finding of lower appellate court that plaintiff is an illiterate, old, infirm and ailing person is based on appraisal of evidence on record and is a finding of fact.
12. I have also gone through the evidence on record alongwith findings of lower appellate court and I am satisfied that finding of lower appellate court on this question does not suffer from any perversity and infirmity. Plaintiff discharged initial burden of proof that he was illiterate, old, infirm and ailing person and did not intend to execute sale deeds and further that no sale consideration was paid to him.
13. Learned counsel for plaintiff-respondent relied upon a Division Bench judgment in Daya Shankar v. Smt. Bachi and Ors., AIR 1982 All 376, in support of his case where this question was considered. This judgment was also considered by a single Judge of this Court in the judgment in Smt. Nirmala Devi and Anr. v. Sri Nand Kishore and Anr., 2004 (2) ARC 11. wherein this Court has laid down that the doctrine of shifting burden of proof applicable to the Pardanashin lady is also available in case of males who by reason of their apparent mental or physical incapacity or infirmity of being placed in the circumstances that they are greatly amenable to the overpowering influence of another person. In these circumstances burden must cast on the person enjoying dominating position to show that he secured sale deed in good faith by practising procedure prescribed.
14. Relevant paragraph of the judgment in above case of Smt. Nirmala Devi and Anr. v. Sri Nand Kishore and Anr. (supra) is being reproduced below :
"The normal rule is that burden lies on a person who challenges the validity of transaction on the ground of fraud and undue influence etc. It is generally on the plaintiff to prove by cogent evidence that the disputed transaction is the result of fraud and undue influence etc. But the law leans in favour of such persons who is incapable of protecting or looking after their interest. When it appears to a Court that there was fiduciary relationship between the parties to contract and one party was in dominating position, the burden to prove the challenge of document lies on the shoulder of the dominating party and not upon the party who challenges the, validity of transaction on the ground of fraud etc. One of the exceptions as pointed out above, is in respect of pardanasheen lady. It has been further extended to illiterate and ignorant women though she may not be Pardanasheen. This doctrine has further been extended in the case of males who by reason of their apparent mental or physical incapacity or infirmity of being placed in the circumstances where they are greatly amenable to the overpowering influence of another person, are induced to enter into conveyances and transactions relating to their property. This Court in a Division Bench case of Daya Shankar v. Smt. Bachi and Ors., AIR 1982 All 376, has held that burden must be cast squarely on the person enjoying dominating position to show that he secured deed in good faith.................." 15. Lower appellate court on consideration of evidence of plaintiff rightly believed the case of the plaintiff's that he intended to execute Will in favour of his daughter in order to avoid any future litigation and defendants being members of his family and Ram Naresh being real nephew and the other defendants being grandsons of real brother of plaintiff were in confidence of plaintiff. It was found by lower appellate court that defendants taking advantage of plaintiff's confidence by committing fraud got sale deeds executed in place of Will. This is finding of fact recorded by the lower appellate court after considering the entire evidence on record that for execution of Will in favour of his daughter, plaintiff trusted defendants who were only male members in his family, but defendants fraudulently got executed sale deeds in their favour. All other factors borne out from the record to arrive at its conclusion were also rightly considered by the lower appellate court. It is also clear from filing of a suit within a month from the date plaintiff came to know about the action of the defendants.
16. Learned counsel for appellant taken me through statements of almost all the witnesses but could not show any perversity in the findings recorded by the lower appellate court. Findings of the lower appellate court are supported by evidence on record.
17. Lower appellate court also recorded finding that no sale consideration was paid to the plaintiff. This finding is also based on the material available on record. I am satisfied that there is no evidence to show that Rs. 70,000 was paid to plaintiff prior to execution of the sale deeds. There is also no such admission in the statements alleged to have been recorded by the Sub-Registrar about acceptance of Rs. 70,000 as is clear from the endorsement of the Sub-Registrar recorded at the back of the first page of the disputed sale deeds at the time of registration of sale deeds. Statements of D.W. 1 and D.W. 5 also make it clear that, in-fact, defendant No. 2 had no paying capacity to pay the sale consideration. The source of payment of money was also not proved.
18. Learned counsel for defendant-appellants urged that plaintiff pleaded only for non-payment of sale consideration and not about paying capacity of defendants. As there was no specific pleading of plaintiff in this regard, it was not incumbent on the defendant No. 2 to produce Ram Naresh or any other respondent to prove his paying capacity.
19. Considering the facts and circumstances of the present case, I am of the view that where the burden of proof of genuineness of the document was on the defendants, he was required to prove that the sale deeds were actually executed by plaintiff. The payment of sale consideration to transferor requires to prove all the facts such as source of payment, actual payment and mode of payment. These facts are implicit in payment of sale consideration. It was sufficient for plaintiff of suit to plead and prove that no sale consideration was actually paid. Burden to prove was on defendants to prove their paying capacity, actual payment of sale consideration and mode of payment alongwith other relevant facts. Lower appellate court rightly considered all relevant evidence on record on all facts including paying capacity and rightly found that no payment of sale consideration was made.
20. From statement made by D.W. 1 also, it is clear that he had no money to pay sale consideration. He in his statement stated that he had written letter to his father who came from Calcutta on the date of registration of sale deeds and on payment by his father-Ram Naresh sale consideration was paid to plaintiff. D.W. 5 in his statement presented a different story, who made a statement that the money was received through money-order consisting of one hundred rupees notes which belies the statement of D.W. 1. Lower appellate court has considered entire evidence on record and also noticed the fact that D.W. 5 was also an interested witness as he was also in some service at Calcutta. There is no other evidence to show that defendant No. 2 either had capacity to pay sale consideration or sale consideration was actually paid.
21. Plaintiffs case was rightly believed by the lower appellate court. Defendants' witnesses were rightly disbelieved for making false statements by the Lower appellate court. There is no witness of the village or of any person associated with the plaintiff. The witnesses are either Moharir (Clerk) of the advocate or the advocate or scribe of the sale deeds who were unknown to plaintiff prior to execution of alleged sale deeds. D.W.-Ram Shakal Rai, advocate was never engaged as counsel in any litigation by the plaintiff. Lower appellate court rightly considered entire evidence of parties and rightly held that execution of disputed sale deeds was not proved.
22. I also considered finding recorded by the lower appellate court on the question of possession. The lower appellate court on appraisal of evidence on record rightly found that the plaintiff is in possession. I am also in agreement with the lower appellate court on question of possession. Finding of lower appellate court that sale deeds were obtained by fraud, plaintiff never intended to execute any sale deed nor there was any necessity to execute disputed sale deeds are findings of fact which were rightly arrived at on appraisal of evidence on record. No perversity in any finding of lower appellate court was brought to my notice.
23. I do not agree with the argument of learned counsel for appellant that kutumb Register and some other documents were ignored from consideration by the lower appellate court as from perusal of the record it is clear that all the relevant documents including kutumb Register were considered by the lower appellate court. Thus, the argument of learned counsel for defendants-appellant has no force on this point.
24. Lower appellate court has also rightly considered the relevant fact that father of Ram Asarey did not support him. He neither filed any written statement nor appeared in witness box to prove defendant's case. Defendant No. 2 Ram Asarey in his written statement pleaded that his father paid entire sale consideration who was present in the village, but he would not appear as witness in the case. Brothers of defendant No. 2 also neither filed written statement nor supported his case nor appeared as witness to support case of Ram Asarey.
25. The judgment and decree passed by lower appellate court does not suffer from any perversity. Substantial question of law Nos. 1, 2 and 3 as framed at the admission stage are decided against appellant and in favour of plaintiff in view of the discussions made above.
26. This case is a case where an illiterate, old, infirm and ailing villager was dragged into a litigation by fabricating documents at the instance of defendant-Ram Asarey who is none other but his family member and as such I am of the view that Ram Asarey defendant No. 2 must be awarded special cost, which will be in addition to cost of litigation which is quantified as Rs. 10,000.
27. With the result, second appeal is dismissed with costs of Rs. 10,000.