List revised. No one appears for the respondent. Heard Shri G.D.Mishra, learned counsel for the appellant.
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 ws 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.
In my opinion the grounds taken by the Lower appellate court for holding the sale deed to be a result of fraud and without consideration are legally no grounds. On such grounds sale deed can not be held to be void or voidable. Merely because Will Deed had been executed, it was absolutely no ground for holding that they had no intention of executing the sale deed. The entire burden was shifted upon the vendee-defendant. It could not be shown that Shri Ram and Sursatti believed that just for receiving financial aid of Rs.100/- they would be required to sign some documents. Under Section 25 of Contract Act a time barred debt may be a good consideration for a contract (sale deed).
However, the suit was perfectly maintainable before the Civil court vide Full Bench authority of this court reported in Ram Padarath vs. A.D.J. 1989 A.W.C. 290.
Accordingly, first substantial question of law is decided against the appellant and second substantial question of law in his favour.
Second appeal is therefore allowed. Judgment and decree passed by the lower appellate court is set aside. Judgment and decree passed by the trial court is restored.
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.
Order Date :- 2.11.2011 RS