JUDGMENT N.N. Sharma, J.
1. This is an appeal by defendants, second set, directed against judgment and decree recorded by Sri M. G. Godbole, learned IVth Additional District Judge, Varanasi who allowed Civil Appeal No. 186 of 1974 on 13-9-1974 and reversed the judgment and decree dt 26-3-1974 drawn by Sri D. P. Varshney, learned Munsif, Havali, Varanasi who dismissed plaintiff's suit No. 122 of 1973 with costs.
2. Dispute relates to house and bamboo clump as detailed at the foot of the plaint, situate in village Mandaw, Pargana Dehat Amanat, district Varanasi.
3. Plaintiff Rudra Narain Singh is respondent 1. Smt. Dhanwanti defendant No. 1 is respondent No. 2. Appellants Ram Briksha Singh and his sons are the vendees of the aforesaid house and bamboo clump by virtue of a sale deed executed in their favour by Smt. Dhanwanti on 29-1-1973.
4. Plaintiffs case was that Smt. Dhanwanti agreed to sell the aforesaid property in his favour for a sum of Rs. 2000/- and an agreement to sell was executed by her. Out of the sale consideration, Rs. 1500/- was paid by plaintiff at the time of execution of the agreement while the balance was payable at the time of registration of the document The sale deed was to be executed within three months after getting the balance of sale consideration vide recital in Ext. 1 dt. 23-12-1972. Plaintiff was ever willing to perform his part of contract but the defendant 1 is evading the same as she colluded with defendant 2 and surreptitiously executed a sale deed in respect of this very property in favour of defendants 2 to 7, on 29-1-1973.
5. Plaintiff further averred that the said defendants were not bona fide transferees for value and had notice of the prior agreement of sale in favour of plaintiff.
6. Both the sets of defendants filed their written statement raising similar pleas. They clearly denied the execution of the agreement dt 23-12-1972 in favour of plaintiff Defendant 1 Smt Dhanwanti also denied that she received Rs. 1500/- as earnest money from plaintiff She pleaded that the sale deed in favour of defendants second set was executed by her for a consideration of Rs. 1000/- Defendants 2 to 7 further pleaded that they were transferees for value without notice and had got the sale deed executed in good faith
7. Learned Munsif found that the defendant 1 Smt. Dhanwanti had not executed the agreement dt 23-12-1972 in favour of plaintiff nor realised Rs. 1500/- as earnest money. Defendants 3 to 7 were purchasers in good faith without notice. In the result, the suit was dismissed with costs as given above
8. The aforesaid findings were reversed in appeal.
9. I have heard learned counsel for parties and carefully perused the record.
10. The first contention put forward on behalf of appellants was that the learned lower appellate Court did not take notice of the fact that defendant 1 Smt Dhanwanti was an old, illiterate lady and the law threw its protection around such lady and a person dealing with such lady was bound to establish that the execution of the document was her intelligent act and she was not the victim of any fraud or misrepresentation or undue influence. Reliance was placed upon Parasnath Rai v. Tileshre Kuar, reported in 1965 All LJ 1080 where the aforesaid principle was enunciated. In that case the deed was executed by a Paradahnashm lady and had not been executed by her voluntarily and after appreciating the nature and import of the transaction and so the sale transaction was struck down. It was held that in such cases, it was not for the lady to prove any fraud, misrepresentation or undue influence for holding that the deed was not binding on her. If the Court finds that the documents had not been voluntarily executed by the lady after appreciating the nature and import of the transaction, such fact alone was sufficient for holding that the deed was not binding on her.
11. The next authority relied upon by learned Advocate for appellants was reported in Afsar Shaikh v Soleman Bibi, AIR 1976 SC 163. It related to the evocation of Hibabil -
Ewaj. Undue influence was alleged by the executant to have been exerted on the donor. It was pointed out that in view of Sub-section (1) of Section 16 of Contract Act, the Court trying a case of undue influence, must start with two things, namely (1) are the relations between the donor and the donee such that donee is in a position to dominate the will of the donor? and (2) has the donee used that position to obtain an unfair advantage over the donor.
12. In the light of these principles, my attention was invited to the statement of Smt. Dhanwanti (D. W. 2) who gave her age 70 years and who emphatically denied the said agreement of sale; she denied to have reached the Court on 23-12-1972 or to have executed the Satta in favour of plaintiff She denied to have received a sum of Rs. 1500/- in Court She also denied the thumb impression on Satta Ext. 1 to have been affixed by her - She denied that she ever accompanied Uma Shanker to Court for execution of such agreement. In view of the denial after thumb impression on Ext. I it was incumbent on plaintiff to examine handwriting expert to prove that Smt. Dhanwanti affixed her thumb impression on Ext. I. In the absence of the best evidence of Expert, an adverse inference should have been drawn against plaintiff.
13. On behalf of respondents, it was pointed out that Smt. Dhanwanti is not appellant in this appeal and, therefore, the aforesaid principle is inapplicable to her The mere fact that hand-writing expert had not been examined by plaintiff to establish the identity of the thumb impression of Smt. Dhanwanti on Ext. I could not justify Court to draw any adverse inference against the plaintiff. In this connection, reliance was placed upon Sri Chand K. Khetwani v. State of Maharashtra, AIR 1967 SC 450. This ruling was cited by learned lower appellate Court also in its judgment to refute such contention.
14. Ext. I was proved by the scribe Sri Suraj Narain Lal (P W 3) and marginal witnesses Hira Lal (P W 1) and Rudra Narain Singh (P W 2) who testified about the transaction and advance of Rs. 1500/- at the time of execution of that agreement These witnesses further testified that the aforesaid document was read over and explained to Smt. Dhanwanti before she executed the same. It is further obvious from a perusal of Ext 1 that Uma Shanker son in law of Smt. Dhanwanti was the marginal witness who transacted the deal on her behalf. He was deliberately withheld by Smt. Dhanwanti. Smt. Dhanwanti conceded in her cross-examination that she filed written statement in this suit. She was on visiting terms with Ram Briksha defendant 2, her close neighbour who procured her thumb impression on her wntten statement also She did not know about the pleas raised in it.
15. Learned Munsif pointed out that Smt. Dhanwanti was simply a puppet in the hands of Ram Briksha All these circumstances were taken into account by learned lower appellate Court who assessed the evidence on record and pointed out that learned trial Court had simply picked up pieces of statements of witnesses and did not read them as a whole.
16. Learned lower appellate Court totally disbelieved the statement of Smt Dhanwanti and believed the testimony of P. Ws. This appreciation of evidence by lower appellate Court, who was a final fact finding body, was correct
17. Learned Advocate for appellants pointed out that the burden to prove the genuineness of the transaction was on plaintiff Learned lower appellate Court overlooked this fact and misdirected himself and so this finding of fact recorded by learned lower appellate Court could be set aside by this Court. In this connection, reliance was placed upon Madan Lal v Mst. Gopi, reported in AIR 1980 SC 1754 which posited -
"Though whether a person was m a fit state of mind to execute the adoption is a question of fact where both Courts below ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and in coming to its own independent conclusions."
18. The principles on which an interference in the second appeal is justified were laid in V. Ramachandra Ayyar v. Ramalingam Chettiar, reported in AIR 1963 SC 302 in following terms -
"In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law or that the decision has failed to determine some material issue of law or usage having the force of law. or if there is a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court.
The error of defect m the procedure to which Clause (c) of Section 100(1) refers is as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded m consequence is grossly erroneous that cannot be said to introduce a substantial error or defect in the procedure On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect m procedure; if m dealing with questions of fact the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect m procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate Court allows a new point of fact to be raised for the first time before it or permits a party to adopt a new plea of fact or makes out a new case for a party that may, in some cases, be said to amount to defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, however, erroneous the said conclusion may appear to be to the High Court."
19. Thus it has to be seen as to whether there is such procedural error etc as pointed above to justify my interference in the second appeal.
20. I have dealt with the reasons given by learned lower appellate Court which prevailed on it for setting aside the judgment and decree of the learned trial Court. All those reasons seem to be perfectly sound. The documentary, oral as well as the circumstantial evidence on record supports the view of the learned lower appellate Court who did not misdirect itself in the appreciation of evidence in any manner.
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21. So it is not a fit case for interference in second appeal.
22. The question whether Ext. I was executed by Smt Dhanwanti or not was a question of fact which has been decided by the lower appellate Court in favour of the plaintiff. Similarly, the question of genuineness of Ext I was again a question of fact and it is not open to me to reverse that finding of fact in second appeal. In Satya Dev v. Behariji Maharaj Birajman Mandir, reported in AIR 1980 All 220, it was held that a question whether a document is genuine or not was purely a question of fact and interference in second appeal is not permissible. The learned Judge relied upon Durga Choudharain v. Javahir Singh, (1890) 17 Ind. App. 122 which is the leading case on the point. Rama Chandra v. Ramalingam, AIR 1963 SC 302 (supra) and Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163 were also cited."
23. I respectfully, follow the said observations and find that it is not open for me to hold that Ext. I was not a genuine document.
24. The last contention on behalf of appellant was that there was no evidence on record worth the name to show that defendant No. 2 had notice of Ext I while getting the sale deed executed in his favour by Smt. Dhanwanti subsequently. Learned lower appellate Court wrongly observed that the vendee could have learnt of the agreement while basking in the sunshine. In this connection, learned lower appellate Court pointed out that there was no cogent evidence to prove the payment of Rs. 1000/- as consideration by respondent 2 to Smt. Dhanwanti. Nothing was paid at the time of registration of agreement Ext. I. The evidence of payment of money was discrepant and contradictory. The fictitiousness of the document was evidenced from the admission made by Smt. Dhanwanti in her cross-examination that she was still living in the vended house. After the execution of the sale deed, she got another document executed by the sons of Ram Briksha to show that they would not turn her out of the house. That document was withheld and the suggestion on behalf of plaintiff was that there was a recital in the document to show that the defendants had full knowledge of the agreement to sell in favour of plaintiff prior to the execution of the said document by Smt Dhanwanti in favour of defendants. Learned lower appellate Court gave various reasons to show that Smt Dhanwanti had not come with clean hands but was colluding with Ram Briksha. Ram Briksha was not a bona fide transferee for value without notice of the agreement of sale in favour of plaintiff.
25. A mere look at Section 19 Sub-clause (b) of Specific Relief Act, 1963 (Act No. 47 of 1963) shows that the plaintiff's claim had to be resisted by Ram Briksha only if he proved that he was a transferee for value who had actually paid the money in good faith and had no notice of the original contract
26. The burden to prove all these points lay on subsequent transferee as was held in Shanker Lal Narayandas Mundade v. New Mofussil Co., Ltd., reported in AIR 1946 PC 97.
27. Similar view was taken in Dinesh Chandra Guha v. Satchidananda Mukherji, reported in AIR 1972 Orissa 235.
28. All these cases were under the old Specific Relief Act 1877 and Section 27(b) of that Act corresponded to present Section 19(b) of the new Act and so the principles laid down in the said authorities about the burden of proof are applicable even under the new Act
29. Learned lower appellate Court carefully scrutinised the evidence on record and found that Ram Briksha defendant 2 was not a transferee for value; sale deed Ext A-1 was not executed by Smt. Dhanwanti for consideration: Smt. Dhanwanti and Ram Briksha were colluding with each other and being next door neighbours, it was very likely that Ram Briksha must have got notice of Ext. I which was executed by Smt. Dhanwanti prior to the execution of Ext. I. All these are findings of fact and the approach of the learned lower appellate Court in appreciation of evidence on these points was perfectly sound.
30. In the result, I find no merit in this appeal which is dismissed with costs.