Reserved On: 23.05.2018
Delivered On: 30.07.2018 Case :- SECOND APPEAL No. - 290 of 2003
Appellant :- Smt. Saraswati Devi
Respondent :- Smt.Ram Sia
Counsel for Appellant :- Kailash Nath Kesharwani, A.K. Saxena, Puneet Bhadauria
Counsel for Respondent :- A.K. Tiwari, Dharmendra Singh, Rajiv Lochan Shukla, Rohan Gupta, U.C.Misra
Hon'ble Siddharth,J.
Heard Shri Punit Bhadauria learned counsel for the defendant-appellant and Shri Ram Kishore Pandey and Shri Dharmendra Singh Advocates on behalf of the respondent.
This is defendant's second appeal against the judgment and decree dated 21.11.2002 passed by Second Additional District Judge, Etawah in Civil Appeal No. 71 of 1998, whereby the judgment and decree dated 20.11.1998 passed by Shri Alok Saxena, Additional Civil Judge (Senior Division), Etawah in Original Suit No. 188 of 1994 was set aside and suit of the plaintiff has decreed.
Plaintiff instituted a suit for a decree of specific performance of contract and for declaration that the shops shown at the foot of the plaint have been constructed by the plaintiff. Alternative relief was sought by the plaintiff to the effect that if the court comes to the conclusion that under the circumstances of the case the plaintiff is not entitled to the decree of specific performance of contract then the amount of Rs. 10,000/- paid by her as advance sale consideration may be directed to be refunded to her by the defendant.
Plaintiff's case is that defendant is the owner of the plots shown at the foot of the plaint and she is an old illiterate and rustic woman; that on the disputed agreement to sale her thumb impression has been affixed and on the land which is subject matter in dispute some shops have been constructed by her; that defendant agreed for sale of the property in dispute for an amount of Rs. 21,000/- and plaintiff paid Rs. 10,000/- towards advance sale consideration; that it was agreed that plaintiff shall pay the remaining amount of Rs. 11,000/- within a year and get sale deed executed; that the agreement to sell was executed on 16.09.1992; that in October, 1992 some mischievous elements tried to take possession over the property in dispute and therefore defendant put the plaintiff in possession over the same; plaintiff constructed three shops over the same and let it out to the tenants; that plaintiff asked defendant to execute the sale deed as per the agreement after taking an amount of Rs. 11,000/- and sent a notice asking her to appear before the Registrar on 13.09.1993 for executing the sale deed; that plaintiff remained present with the money before the Registrar but the defendant did not appear; that she had always been willing to get the sale deed executed but the defendant avoided the same and hence the suit was instituted.
Defendant filed her written statement admitting ownership of the disputed property but denied that she never accepted any amount for plaintiff nor she executed any agreement to sell in her favour; that the disputed agreement to sale was stated to be fabricated and executed by the fraud; that defendant stated that her age is 77 years and her poor eye-sight; that husband of plaintiff, Vijay Pal Singh and son of defendant are friends and Vijay Pal Singh took him to Tehsil on the pretext of getting widow pension papers prepared and he got her thumb impression on blank papers; that when she received notice dated 04.03.1993 from plaintiff she came to know that Vijay Pal Singh has got an agreement to sale executed by fraud; that defendant has given some part of her land to her daughter and son-in-law who have constructed shops thereon and are in possession over the same and prayed that the suit may be dismissed.
On the basis of the pleadings of the parties the learned trial court framed following issues:-
(1) Whether the plaintiff is entitled to get sale deed executed on the basis of agreement to sale dated 16.09.1992?
(2) Whether the plaintiff has made construction over the land mentioned in the agreement?
(3) Whether the disputed agreement have been obtained by fraud and fabrication and is without consideration?
(4) Whether the suit is under valued and court fees paid is insufficient?
(5) Whether the suit is barred by Section 34 of Specific Relief Act?
(6) To what relief, if any, is the plaintiff entitled?
Learned trial court decided issue no. 4 regarding valuation and court fees in favour of plaintiff and against the defendant. Issue no. 3 was decided holding that the agreement to sell is the result of fraud and has been executed taking undue advantage of relationship of trust by plaintiff. Issue no. 2 was decided against the plaintiff in absence of any evidence on the point. Issue no. 5 was decided holding that the suit is not barred by Section 34 of Specific Relief Act. Issue no. 1 and 6 were decided holding that plaintiff is not entitled to get the sale deed registered on the basis of the disputed agreement to sell and she is not entitled to any relief and the trial court dismissed the suit of the plaintiff.
Aggrieved by the judgment and decree of the trial court plaintiff preferred a Civil Appeal No. 71 of 1998 before the Lower Appellate Court which was allowed and after setting aside the decree of the trial court the suit of the plaintiff was decreed.
The judgment of lower appellate court is of reversal passed after framing the following points of determination in appeal:-
(1) Whether respondent/defendant executed agreement to sale dated 16. 09.1992 in favour of plaintiff after accepting Rs. 10,000/- from the plaintiff, if yes, then its effect?
(2) Whether the disputed agreement to sale has been executed by fraud, fabrication and without any sale consideration, as stated by the defendant, if yes, then its effect?
(3) Whether respondent/defendant has delivered possession over the disputed plot to the appellant/plaintiff, on the basis of which she has constructed shops over the same, if yes, then its effect?
(4) Whether appellant/plaintiff had always been ready and willing to execute the sale deed in her favour?
Lower appellate court has held that defendant executed agreement to sell in favour of the plaintiff accepting Rs. 10,000/-; that agreement to sell executed by the defendant does not suffers from any fraud or fabrication and plaintiff was delivered the possession of the suit property by the defendant; that regarding readiness and willingness on the part of plaintiff it has been held that since the defendant was noticed for appearing before the Registrar on 13.09.1993 for execution of sale deed and she did not turn up therefore the question of readiness and willingness was also decided in her favour and lower appellate court allowed the appeal of the plaintiff and set aside the judgment and decree of the trial court.
This second appeal has been preferred against the judgment and decree passed by lower court and it was admitted on 18.03.2010 on the following substantial question of law:-
(1) Whether the first appellate court could decree the suit of the plaintiff appellant for specific performance of an agreement to sale when such agreement itself had not been filed before the courts below nor any reason was given for not filing the primary evidence and therefore the court below could not rely on a copy of such agreement of sale and hence has illegally decreed the suit?
Learned counsel for the defendant-appellant has submitted that lower appellate court did not rebut the finding on fraud and set up a new case; that plaintiff has to prove her own case and she cannot take advantage of defendant's lacuna; that lower appellate court did not consider the categorical statement of Plaintiff herself, wherein she stated about factum of fraud played upon the defendant; that in case of readiness, it may be meant the financial position of the plaintiff and in case of willingness the conduct of plaintiff has to be property scrutinized along with the attendant circumstances, but the lower appellate court did not consider the circumstances, which were herself admitted by plaintiff; that the principle of Pardahnashin lady is also applicable to and illiterate widow and old lady, but the lower appellate court did not considered the same; that appellate court is the final Court of fact, if appellate court, takes a different view on the question of fact, that should be done after adverting to the reasons given by the trial Judge in arriving at the finding in question and it must record the findings in clear terms explaining how the reasoning of the trial court are erroneous, but the lower appellate court did not do so; that secondary evidence, may be admissible but it cannot be the basis of suit; that documents filed at appellate stage, are not proved or admitted by the party against whom they are produced in evidence and in absence of cross examination are inadmissible in evidence; that when a person is in fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon him that there was fair play in the transaction; that in absence of filing Original Copy of agreement to sell, and filing of tampered copy of agreement to sell, that adverse inference should have been drawn against the plaintiff; that lower appellate court should not generally interfere in the finding of facts, recorded by trial court, because trial court also observes the demeanour and expression of the witnesses.
In support of the above contention the counsel for the defendant- appellant has referred to the following authorities:-
(1) Kalawati (D) Thru. Legal Representative & Others Versus Rakesh Kumar & Others (2018) 3 SCC 658-:
“The law on the subject of specific performance of contracts is quite clear and it is not necessary to cite the dozens of judgments delivered by this Court on the issue. However, it is necessary to refer to two decisions which are quite apposite to the facts of the case before us.
In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in paragraph 2 of the Report:
“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.
The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”
(2) Krishna Mohan Kul Versus Pratima Maity 2003 (10) J.T. 150:-
In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de horse the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.
It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :
"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."
The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short 'Contract Act').
At this juncture, a classic proposition of law by this Court in Mst. Kharbuja Kuer v. Jang Bahadur Rai and Ors., AIR (1963) SC 1203 needs to noted :
'It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not".
The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharduja Kuer v. Jang Bahadur Rai and Ors., AIR (1963) SC 1203 are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons.
(3) Laliteshwar Prasad Singh & Others Versus S.P. Srivastava (D) Legal Representatives 2017 (2) SCC 415:-
“ An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court’s application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391, it was held as under:-
“In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) “15. … The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. … while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”
Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) “3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.) In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”
The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous.”
(4) Saudul Azeez Versus District Judge, Gorakhpur 2000 (91) R.D. 10:-
“The document in generic sense means the original document- Section 61 of the Evidence Act prescribes that the contents of a document may be proved either by primary evidence or by secondary evidence. According to Section 62 thereof primary evidence means the document itself produced for the inspection of the Court. Explanation 2 to Section 60 provides that copies of a common original are not primary evidence.
Thus, the alleged photocopy cannot be a primary evidence. As such, it cannot be classified as document. Now let us see whether it can come within the definition of secondary evidence.
Rule 53 of the General Rules (Civil)1957 provides as follows :
"The Court shall Inspect and consider all documents as soon as practicable after they have been produced and deal with them as follows :
(a) Documents which are proved or admitted by the party against whom they are produced in evidence shall be admitted in evidence and marked as exhibits in the manner prescribed in Rule 57 and the fact shall be noted in the record.
(b) Documents which are not proved (or admitted by the party against whom they are produced in evidence) shall be kept on the record pending proof and shall be rejected at the close of the evidence, if not proved or admitted.
(c) Documents that are found to be irrelevant or otherwise inadmissible in evidence shall be rejected forthwith.”
(5) Mallo Versus Bakhtawari 1985 AIR (All) 160:-
“The rule regarding transaction by Pardanashin lady apply equally to illiterate widow though she may not be in strict sense a pardahnashin lady. In the case of (Parasnath Rai v. Tileshra Khuar) 1965 All LJ 1080 it was held that "Rules regarding transactions by Pardahnashin lady are equally applicable to an illeterate and ignorant woman though she may not be a pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardahnashin lady but by reason of those disabilities which a life of seclusion lived by a Pardahnashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well as old age, infirmity, ignorance, illeteracy ailing mental deficiency, inexperience and dependance upon others may by themselves create disabilities that may render the protection equally necessary. If it, therefore, proved that a woman, who is not a Pardahnashin lady, suffers from disabilities to which a Pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a Pardahnashin lady."
In this case it is undisputed fact that the plaintiff is an illeterate and a widow for last 30 years, Evidence on record does show that plaintiff is ignorant, inexperience and has to depend on others. The appellate Court has recorded a finding that plaintiff is illeterate widow for 30 years. In view of the finding the burden of proof was rightly cast on the defendants.”
(6) Joseph John Peter Sandy Versus Veronica Thomas Rajkumar & Another 2013 AIR (SC) 801:-
“In Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors. AIR 2003 SC 4351, it was held that when fraud, mis- representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.” In view of the law referred to hereinabove, it is crystal clear that even though the document may be admissible, still its contents have to be proved and in the instant case, as the appellant did not examine either the attesting witnesses of the document, nor proved its contents, no fault can be found with the judgment impugned before us. Section 26 of the Act, provides for rectification of a document if the parties feel that they have committed any mistake. Also, it was only, the father of the parties who could have sought rectification of the deed. Mere rectification by parties herein does not take the case within the ambit of Section 26 of the Act. Taking note of the statutory provisions of Section 16 of the Contract Act and the parameters laid down by this Court for application of doctrine on undue influence, the High Court has reached a correct conclusion.
(7) Tika Ram & Another 2013 AIR (SC) 801:-
In my view, in such a case burden of proof and heavy onus lie upon plaintiff who seeks to enforce agreement for sale by seeking a decree of specific performance when such a document has been denied by alleged executor who is an illiterate widow lady of a rural area.
61. Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") talks of burden of proof, and says:
"Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line Vs. I S Corpn, (1941) 2 All England Report 165, Lord Maugham said;
"It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons."
A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the person and never shifts but the "onus" shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiff's title.
The above distinction between "burden of proof" and "onus" of proof has been explained in A.Raghavamma Vs. A. Chenchamma, AIR 1964 SC 136, followed in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 752.
Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof.
For applying above provision in the case in hand, there can be no manner of doubt in holding that burden of proof lies upon the plaintiff. In the case in hand, to prove that sale deed in question suffers an infirmity, justifying its cancellation, as pleaded in the plaint and to prove those facts, burden lies upon plaintiff. But then it has to be understood that there is a distinction between "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. In the first sense, the burden is always constant but burden in the sense of adducing evidence shifts from time to time, having regard to evidence adduced or the presumption of fact or law raised in favour of one or the other. On this aspect, more light emanates when we go through Sections 103 and 104 of Act, 1872, which read as under:
"S. 103. Burden of proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
S. 104. Burden of proving fact to be proved to make evidence admissible.- The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence."
Looking to both these provisions, it can be said, that, when a person alleges mala fide on the part of an authority, burden to establish mala fide lie upon him. He has to adduce evidence to discharge aforesaid burden but then burden in the process of adducing evidence may shift when, prima facie, mala fide is shown, inasmuch as, then onus will shift and the other party has to establish that existence of facts constituting mala fide, in fact, did not exist and the action was not taken mala fide.
In the context of fraud and undue influence, how burden of proof and onus will work, will have to be considered in the context as to what undue influence is, what are its necessary ingredient and what is required by law to be proved.
Undue influence was read along with fraud and coercion and in Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath, AIR 1951 SC 280, it was held:
"....in cases of fraud, ''undue influence' and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."
The above decision has very recently been referred to and followed in Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar & Anr, JT 2013 (4) SC 9.
In the present case, it is also worthy to notice that in 1965, there was no requirement under law to have an agreement for sale registered. Therefore, it was admittedly an unregistered document. In such case it has been held that onus to prove such a document lie on party who asserts that document was executed.
In Thiruvengada Pillai Vs. Navaneethammal & Anr., [JT 2008 (2) SC 585 : AIR 2008 SC 1541], this Court held that when the execution of an unregistered document put forth by the Plaintiff was denied by the Defendants, the ruling that it was for the Defendants to establish that the document was forged or concocted is not a sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the Defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. It was the Plaintiff who had come to Court alleging that the first Defendant had executed an agreement of sale in his favour. The Defendant having denied it, the burden was on the Plaintiff to prove that the Defendant had executed the agreement and not on the Defendant to prove the negative.
In K. Laxmanan Vs. Thekkayil Padmini and Ors., [JT 2008 (13) SC 380], this Court held that when there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.
In Krishna Mohan Kul @ Nani Charan Kul & Anr. Vs. Pratima Maity & Ors., [JT 2003 (10) SC 150 : AIR 2003 SC 4351], it was held that when fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.
All the above authorities have recently been reiterated and followed in Joseph John Peter Sandy (supra).
All these legal principles have completely been ignored by L.A.C. while returning a judgment of reversal. It is a clear but serious error of law rendering the decision of L.A.C. legally unsustainable.
There is one more aspect in the matter which has been noticed by T.C. but no proper justification to nullify this reason, this Court find in the judgment of L.A.C.. Disputed agreement for sale was witnessed by two persons but none of them were examined by plaintiff to support execution of said document though admittedly both were alive and available. The pretext for their non examination tendered by plaintiff is that the two witnesses have been won by defendant no.1 but to support this explanation, I find nothing on record. This is a clear unfounded explanation and was a genuine and valid reason not to discard defence of defendant no.1 but to draw an inference against plaintiff. Responsibility to produce best evidence lie upon the person who would fail due to lack of evidence, if the fact alleged by him/her is not found proved. I am clearly of the opinion that principles applicable to Pardanashi lady, if not in its entirety, then almost to that extent, have to be applied to a case where defendant is an illiterate widow/lady from a rural area. There is not much difference in the two types of ladies. The basic social conditions of village people of this country and ground realities cannot be ignored.
(8) Gopal Krishnaju Ketkar Versus Mohamed Haji Latif 1968 AIR (SC) 1413:-
“But Shah, J., speaking for the Court, stated: " The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of s. 114 of the Evidence Act, and also an impressive body of authority."
(9) Sarju Pershad Versus Jwaleshwari Pratap 1951 AIR SC 120:- “The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is--and it is nothing more than a rule of practice --that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par- ticular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to dis- place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(1). The gist of the numer- ous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas(2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3). The observations are as follows:
"But if the evidence as a whole can reasonably be re- garded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunal he may go wrong on a question on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Cts. of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”
Per contra learned counsel for the plaintiff-respondent has argued that the non production of the origin agreement to sell by the plaintiff in evidence would not be fatal to the case of plaintiff in view of Section 63 and 65 of the Indian Evidence Act which clearly provide that where original document has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable times, secondary evidence of the document is admissible in evidence. He has further argued that as per Section 76 of the Indian Evidence Act certified copy of public documents, which is in custody of a public officer is admissible in evidence and as per Section 79 there is presumption of genuineness of certified copy issued after due certification by a public officer who is duly authorized for the purpose. He has further elaborated that Section 103 and 106 of the Evidence Act are also relevant for deciding the appeal which relate to the burden of proof which has been discharged by the defendant-appellant.
Learned counsel for the plaintiff-respondent has referred to Section 34 of the Registration Act, 1908 in support of his argument that every registration of a document is made after inquiry by the Registering Officer and no document is registered by the Registering Officer unless the person executing the document appears before him. Every document bears signature of every person admitting the execution of document and money or delivery of goods made in the presence of the Registering Officer in reference to execution of document and any admission of receipt of consideration as per Section 58 of the Evidence Act.
After reference to the above legal provisions learned counsel for the plaintiff-respondent has referred to the provisions in reference to the case stating that in reference to Sections 63, 65, 76 and 77 of Indian Evidence Act, 1972, plaintiff discharged her burden of proof and filed certified copy of the agreement to sell dated 16.09.1992, Paper No. 6C with missing report of the original agreement to sell, Paper No. 41/42- Ga before the trial court. She also filed a copy of sale deed executed by Saraswati Devi, defendant, executed in favour of Shri Daya Pal which was executed in the presence of her son Arun Prakash on 28.02.1992. Plaintiff also filed copy of notice dated 16.09.1993, photocopy of postal receipt with acknowledgment due, copy of application dated 13.09.1993 submitted before the Sub-Registrar, certificate of attendance before Registrar on 13.09.1993 as Paper No. 107-Ga before the trial court and therefore her suit was rightly decreed by the lower appellate court.
He has referred and relied upon Para 14 the judgment of Ishwar Das Jain (Dead) Thr. Lrs. vs. Sohan Lal (Dead) By Lrs., (2000) 1 SCC 434 in support of his contention, which is as follows:-
“We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a certified copy and called upon the defendant to file the original. The defendant refused to do so. The plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of section 65 of the Evidence Act. This was certainly permissible. The mortgage is a document required to be attested by two attestors under section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in sections 68 to 71 of the Evidence Act. Under section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered - then except in the case of a will - it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from section 68 of the Evidence Act. It reads as follows:
"Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the Rent Control legislation. In fact, in his evidence as DW2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The Courts below were right in accepting that the deed was proved. Point 2 is decided in favour of plaintiffs-appellants.”
In support of his argument that the endorsement made by the Registrar as per Section 34 and 58 of Indian Registration Act, 1908 is correct, he has referred to the judgment of the Apex Court in the case of Marwari Kumhar And Ors. vs. Bhagwanpuri Guru Ganeshpuri and Another, 2000 (6) SCC 735 and has placed reliance and para 9 to 10 thereof which is as follows:-
“Section 65 of the Evidence Act reads as follows :
"65. Cases in which secondary evidences relating to documents may be given.
- Secondary evidence may be given of the existence, condition or contents of a documents in the following cases. -
(a) When the original is shown or appears to be in the possession or power
- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India), to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be provided is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (I), certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
After hearing the counsel for the parties the substantial question of law framed in this appeal is being decided. It is evident from record that the copy of the agreement to sell dated 06.09.1992, Paper No. 6C, was lost and after due publication of notice to this effect was made by the plaintiff in newspaper, certified copy of the agreement to sell aforesaid was filed in evidence by the plaintiff. As per Section 74 of Evidence Act public document has been defined and a registered agreement to sell is a public document and its certified copy is issued under Section 76 of the Act and under Section 79 of the Act aforesaid there is presumption of genuineness of certified copy of the document. The Counsel for the plaintiff-respondent has rightly relied upon the judgment in the case of Ishwar Das vs. Sohan Lal (Supra) and Marwari Kumhar And Ors vs Bhagwanpuri Guru Ganeshpuri (Supra) and therefore the genuineness of the certified copy of the agreement of sell in dispute cannot be doubted.
As per section 65(c) of the Evidence Act secondary evidence relating to the document can be given in case where the original has been destroyed and lost, or when the party offering evidence of its contents, cannot, for any other reason not arising from his own default or neglect, produce in reasonable time, secondary evidence of the original of the contents of the document is admissible as per section 68(g) of the Evidence Act.
Sub-clause (c) is independent of sub-clause (f)-Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi A and Others v. The Bihar Suhai Sunni Majlis Avaqaf and Others, reported in AIR (1969) Supreme Court 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court.
The only substantial question of law framed in this appeal is being answered in favour of the plaintiff-respondent to the effect that the secondary evidence regarding agreement to sell was rightly relied upon by the lower appellate court and the suit was decreed. The learned counsel for the appellant has relied upon number of case laws which are not related to the substantial question of law framed in this appeal, however they have been considered in this judgment but are of no help for deciding the substantial question of law framed in this appeal.
In view of the above consideration this second appeal is dismissed. The parties shall be at their own costs.
Order Date:- 30.07.2018
Rohit