This Second appeal was initially allowed by me on 2.11.2011 without hearing anyone on behalf of respondent as no one had appeared on their behalf. Thereafter, rehearing application was filed which was allowed on 28.2.2012 and argument on merit were also heard on the said date and judgment was reserved. Few paragraphs of my judgment dated 2.11.2011 are quoted below:
"This appeal was admitted on 18.4.1994 without framing substantial question of law. The appeal is proposed to be heard on the following substantial questions of law:
1. Whether, civil court has got jurisdiction to hear and decide the suit filed by the plaintiff-respondent?
2. Whether the registered sale deed could be held to have not been executed by the executant shown therein on the ground mentioned by the lower appellate court?
This is defendant's second appeal arising out of Original suit no.208 of 1982 filed by the plaintiff-respondent for cancellation of registered sale deed dated 10.2.1982. Munsif, Jaunpur through judgment and decree dated 10.5.1991 dismissed the suit. Against the said judgment and decree plaintiff-respondent filed civil appeal no. 74 of 1991 which was allowed by Civil Judge, Jaunpur through judgment and decree dated 28.2.1994 hence this second appeal.
The sale deed in question was executed by Shri Ram and his wife Sursatti. The suit was instituted by both the executants. After the death of both the plaintiffs, Smt. Champa Devi, respondent in this appeal was substituted as plaintiff who is daughter of Shri Ram and Sursatti. She also claimed that her parents had executed a Will deed on 26.4.1980 in her favour. Ram Lakhan, husband of defendant-appellant, was real brother of Shri Ram. The Trial court found that the sale deed had in-fact been executed by Shri Ram and Sursatti. However, Lower appellate court reversed the said findings. The sale deed was executed after grant of permission by Settlement Officer of Consolidation as at that time the consolidation was going on in the area in which agricultural land in dispute was situate. Shri Ram was also suffering from leprosy. The case of the plaintiffs was that Shri Ram was told that for grant of financial aid of Rs.100/- for his treatment he would be required to sign certain documents.
The case of the defendant-appellant was that due to his long illness Shri Ram was in constant need of money and had borrowed money from her (or her husband) at different intervals hence sale deed was executed by him and his wife in lieu of the debt. Suit was filed within two months of execution of the sale deed. Original plaintiffs denied within a month of filing of the suit without examining themselves. Sale deed of 1.12 acre agricultural land was executed for Rs.20,000/-.
Plaintiffs did not question the signatures of Shri Ram and Sursatti on the sale deed. Their case was that the sale deed was obtained through fraud and mis-representation. In the sale deed it was shown that Rs.19,900/- had already been paid and only Rs.100/- were paid before the Sub-Registrar. Lower appellate court mentioned that Ram Lakhan, husband of the defendant-appellant stated that the amount of Rs.19,900/- was paid 20 years before (statement was given on 23.4.1991). Ram Lakhan refused to recognise Champa Devi. On this basis Lower appellate court held that he was a liar. Lower appellate court also held that in case in or around 1972 loan had been take, there was no need to execute Will deed in favour of their daughter by Shri Ram and Sursatti on 26.4.1980. Lower appellate court also held that on the date of execution of Sale deed both Shri Ram and Sursatti were ill.
The Lower appellate court has held that the sale deed was executed without any consideration and on the basis of fraud on the following grounds:
1. The executant Shri Ram and Sursatti died immediately after filing of the suit hence they could not give evidence.
2. Husband of defendant-appellant stated that the amount had been paid by him more than ten years before the execution of the sale deed.
3. Ram Lakhan refused to recognise Champa Devi.
4. Shri Ram and Sursatti were suffering from different ailments including leprosy."
As far as first substantial question of law is concerned it is decided against the appellant as in view of Full Bench authority of this Court reported in Ram Padarath Vs. Additional District Judge 1989 A.W.C. 290 (F.B.) suit was perfectly maintainable before civil court.
Learned counsel for the appellant has cited two authorities one of the Privy Council and other of the Supreme Court. The Privy Council authority reported in Narayanan Vs. Official Assignee, Rangoon AIR 1941 Privy Council 93 has held as follows:
"Fraud like any other charge of a criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture."
The other authority is reported in Prem Singh Vs. Birbal decided on 2.5.2006, AIR 2006 SC 3608 holding that there is a presumption that a registered document is validly executed and the onus to rebut the said presumption is upon the party who asserts otherwise.
The first and fourth reasons given by the lower appellate court as mentioned above are no reasons in eye of law. Defendant was not responsible for the death of Shri Ram and his wife Sursatti. Similarly suffering from ailments including leprosy is no ground to hold that executant did not willingly sign the deed unless the finding is recorded that the illness was of such a nature due to which executant could not understand the consequence of his action. Illness can not invalidate a document. For not recognising Champa Devi Ram Lakhan could be admonished however on that ground suit could not be decreed.
The most important point which has been argued with great force by learned counsel for both the parties is the mention in the sale deed that almost the entire amount had been paid earlier and the statement of Ram Lakhan husband of the defendant appellant that the amount of Rs.19900/- (out of total sale consideration of Rs.20000/-) had been paid 10 or 20 years before. If the amount of Rs.19900/- had not been paid, there was no occasion for the executant of the sale deed to admit its receipt in the sale deed. Under Section 25 of Contract Act a time barred debt is a good consideration for a contract. If Ram Lakhan and his wife were constantly spending money on the treatment of the executant and in the end the executant decided to repay the debt by transferring the property then neither there is any thing objectionable in it nor this act can be said to be very unusual.
In any case plaintiffs could not adduce any evidence to prove that this consideration was not paid. The mere fact that it was paid long before (10 or 20 years) can not be a ground to invalidate and cancel the sale deed.
The view taken by the lower appellate court is erroneous in law as it is based upon inadmissible facts, circumstances and considerations. In such scenario findings can be reversed in Second Appeal vide:
1. State of Punjab Vs. Mohinder Singh A.I.R. 2005 S.C. 1868
2. Abdul Raheem Vs. Karnataka Electricity Board and others A.I.R .2008 S.C. 956
3. U.R. Virupakshaiah Vs. Sarvamma and another A.I.R. 2009 S.C. 1481
4. Dinesh Kumar Vs. Yusuf Ali A.I.R. 2010 S.C. 2679.
Accordingly 2nd substantial question of law is decided in favour of the appellant. Second appeal is therefore allowed. Judgment and decree passed by the lower appellate court is set aside and judgment and decree passed by the trial court dismissing the suit is restored.
Last three paragraphs of my judgment is quoted below:
"In my opinion it was a fit case where the question of directing the defendant-appellant to pay some more amount to the plaintiff-respondent should have been considered. Under the peculiar facts and circumstances of the case equity demands such direction.
Under Order VII Rule 7 C.P.C. read with Section 151 C.P.C. equity may be blended with law and while decreeing or dismissing a suit in accordance with law, equities may be adjusted by directing the winning party to pay some reasonable amount to the losing party or in any other reasonable manner. This may be done in the circumstances like the following:
1. When the provision of law to be applied is rather harsh.
2. Interest of justice demands such course.
3. Winning party has otherwise got some undue advantage.
However, as no one has appeared on behalf of plaintiff-respondent hence this question is not being considered."
Under some circumstances even on the principle of no fault liability reasonable amount may be directed to be paid by the winning party to the loosing party.
Accordingly, while allowing the appeal and dismissing the suit it is directed that defendant appellant shall pay Rs.30000/- to plaintiff respondent by 30.11.2012 failing which 1.5 % per month interest shall be payable w.e.f. December 2012 till actual payment. This amount may be recovered in execution of the decree.
Order Date :- 16.7.2012 vkg