). =========================================================== Brij Bihari Prasad Chaurasia & Anr v. Rajeshwari Devi & Ors
Case Details
Patna High Court FA No.30 of 1981 dt.05-03-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.30 of 1981 (Against the judgment and decree dated 22.12.1980 passed by Subordinate Judge, Buxar in Title Suit No.81 of 1977). =========================================================== Brij Bihari Prasad Chaurasia & Anr .... .... Defendant nos.2 & 3-Appellants Versus Rajeshwari Devi & Ors .... .... Plaintiffs-Respondents =========================================================== Appearance : For the Appellant/s : Mr. Binod Kumar Singh, Advocate Mr. Ravi Ranjan Mr. R.Sinha, Advocates. For the Respondent/s : Mr. Ganpati Trivedi, Advocate Mr. R.K.Sinha Mr. Manoj Kumar Mr. Madan Mohan Mr. Prem Kumar Verma, Advocates. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date: 05-03-2013 Mungeshwar Sahoo, J. 1. This First Appeal has been filed by the defendant nos.2 and 3 against the judgment and decree dated 22.12.1980 passed by the learned Subordinate Judge, Buxar in Title Suit No.81 of 1977 whereby the trial court decreed the plaintiff-respondent’s suit. 2. The plaintiff-respondent nos.1 and 2 filed the aforesaid Title Suit No.81 of 1977 for declaration that the sale deed executed by defendant no.4 in favour of defendant nos.2 and 3 is forged, fabricated, without consideration, illegal, inoperative and not binding on the plaintiffs and further for declaration of title and confirmation of possession/recovery of possession over the suit Patna High Court FA No.30 of 1981 dt.05-03-2013 2 property. 3. The plaintiffs claimed the aforesaid relief alleging that one Mahadev Sonar had two wives. From the first wife, he had two sons namely, Bhagwati Sonar and Shyamlal Sonar. Likewise, from the second wife, he had two sons namely, Harihar and Sheokumar. Bhagwati had two sons namely, Jagdish Sonar and Bhagwan Das whereas Shyamlal has only two daughters, plaintiff no.1 and one Sushila. Sushila had a son, Madan and plaintiff no.2 is the wife of Madan. Defendant no.1 is Sheokumar. Mahadev and his two wives had already died. Harihar Sonar died in 1944 and his widow died in the year 1953. Mahadev Sonar had sufficient income from his shop keeping. He purchased the suit property on 23.07.1934 in the name of Harihar and grandson, Jagdish Sonar. The joint family members came in possession of the same. Mahadev Sonar died in the year 1942-43. Thereafter, there was partition between Bhagwati and Sheokumar. In that partition, the suit house was allotted in favour of
Facts
defendant no.1, Sheokumar. Sheokumar sold the suit property on 14.06.1976 in favour of the plaintiffs by two registered sale deeds for Rs.16,000. Since after purchase, the plaintiffs are coming in possession of the property. 4. The further case of the plaintiffs is that the defendant nos.2 and 3 with intention to grab the property got a Patna High Court FA No.30 of 1981 dt.05-03-2013 3 registered sale deed executed by respondent no.4 alleging her to be the widow of Harihar Sonar. In fact, the defendant no.4 is not the widow of Harihar Sonar but is resident of Gajipur and is working as servant in the house of the defendants. The sale deed is showy, no consideration passed in favour of defendant no.4 nor the purchaser came in possession of the same. 5. The defendant no.1 filed supporting written statement. The defendant nos.2 and 3, appellants filed contesting written statement. According to their defence, the widow of Harihar Sonar namely, Ramrajo Kuer is still alive who is defendant no.4. The allegation of the plaintiffs that she died in 1953 is wrong. In fact, the suit property was purchased by Harihar Sonar and Jagdish Sonar out of their own income, therefore, the other family members had no concern with the same. There was partition between Harihar and Jagdish in the year 1940 and in that partition, the suit property was allotted in favour of Harihar and the ancestral house was allotted in favour of Jagdish. Prior to purchase of this suit property by Harihar and Jagdish, there had already been separation and partition between Harihar and his brother, Sheokumar, defendant no.1. Since after partition, Harihar came in possession of the suit property. Because the widow, defendant no.4 was alone, she sold the suit property for Rs.16,000 in favour of the appellants. Prior to the sale deed, there Patna High Court FA No.30 of 1981 dt.05-03-2013 4 was agreement to sale between the appellant and defendant no.4. Since after purchase, the defendant nos.2 and 3, appellants came in possession as owner thereof. The defendant no.1 has executed the sale deed in favour of the plaintiffs with ill motive to grab the property of defendant no.4. The sale deed of the plaintiffs is without consideration and the plaintiffs never came in possession of the suit property on the basis of sale deed. 6. The defendant no.4, Ramrajo filed separate written statement claiming herself to be the widow of Harihar Sonar. 7. On the basis of the pleadings of the parties, the trial court framed 7 issues. Out of the said 7 issues, issue no.3 is with regard to the genuineness or otherwise of the sale deed executed by defendant no.4 in favour of the defendant nos.2 and 3 on 02.08.1976 and also with regard to the question as to whether she is widow of Harihar Sonar or not. Issue no.5 is with regard to the question of the validity of sale deed executed by defendant no.1 in favour of the plaintiffs and issue no.6 relates to possession of the suit property. 8. After trial, the Lower Court came to the conclusion that defendant no.4 is not the widow of Harihar Sonar and the sale deed executed by her in favour of defendant nos.2 and 3, appellants are illegal, forged, inoperative and without consideration as such, is not binding on the plaintiffs. The Lower Court also recorded the Patna High Court FA No.30 of 1981 dt.05-03-2013 5 finding that the sale deed in favour of the plaintiffs by defendant no.1 is valid, legal and for consideration. So far possession is concerned, the trial court found that the defendants are in possession but recorded that the possession is illegal. Accordingly, decreed the plaintiff- respondent’s suit.
Legal Reasoning
document, therefore, prima facie would be valid in law. The onus of Patna High Court FA No.30 of 1981 dt.05-03-2013 18 proof, thus, would be on a person who leads evidence to rebut the presumption. This court in the case of Sita Sharan Prasad v. Manorma Devi, 2012(2) BLJ 165 has held that a registered sale deed is presumed to have been validly executed with all its legal consequences. 24. In view of the above discussion of the evidences and materials, I find that defendant no.4, Ramrajo Devi is the widow of Harihar Sonar. As stated above, the trial court recorded the finding that defendant no.4 is not the widow of Harihar on the basis of Exhibit 4/A and the evidence of D.W.7. I have already held that this Exhibit 4/A is inadmissible and further, is not reliable and that the trial court has not considered the evidences adduced by the defendants- appellants in the light of Section 50 of the Evidence Act. Thus, the finding of the trial court on this point is hereby reversed. 25. So far the other documentary evidences i.e. the mutation or rent receipts etc. are not related on the point of relationship. So far possession is concerned, after filing the suit for confirmation of possession amendment application was filed by the plaintiffs wherein the plaintiffs claimed that they have been dispossessed in December, 1978 and prayer for recovery of possession was added. From perusal of Exhibit 11 i.e. the document filed by the plaintiffs themselves, it becomes clear that they admitted Patna High Court FA No.30 of 1981 dt.05-03-2013 19 in the year 1976 that they are out of possession of the suit property. There is no explanation as to when they came in possession. Without there being any pleading to this effect simply statement was made that they have been dispossessed in December, 1978, the amendment application was filed. This statement in the amendment application is contrary to the statements made by the plaintiffs themselves in Exhibit 11. Therefore, the plaintiffs are blowing hot and cold and approaching the court with unclean hand. Moreover, even if it is held that they were in possession of the property then also they did not acquire any title because the defendant no.1 had no authority to sell the property of Harihar Sonar. On the death of Harihar Sonar, it devolved on the defendant no.4 i.e. his widow as it is admitted fact that Harihar Sonar died in the year 1944. So far the mutation or municipality receipts are concerned, even if it is in the name of defendant no.1 or in the name of the plaintiffs it will not create title in favour of either the defendant no.1 or the plaintiffs. So far passing of consideration is concerned, it is between the defendant no.4 and the present appellants. I have already found that defendant no.4 is the widow of Harihar then in such circumstances, the plaintiffs cannot challenge the passing of consideration as they have no concern with the property because they did not acquire any title on the basis of sale deeds as such, they are not entitled to any relief claimed by them. Patna High Court FA No.30 of 1981 dt.05-03-2013 20 26. In the result, this First Appeal is allowed. The impugned judgment and decrees are set aside with cost of Rs.10,000 to be paid by the plaintiffs-respondents to the appellants within two months failing which the appellants are at liberty to realize the same through the process of the court. The plaintiff’s suit is thus, dismissed. Saurabh/- (Mungeshwar Sahoo, J)
Arguments
9. The learned counsel, Mr. Binod Kumar Singh appearing on behalf of the appellants submitted that the Lower Court has not properly appreciated the evidences and wrongly found that Ramrajo Devi, the defendant no.4 is not the widow of Harihar Sonar. The plaintiffs did not disclose the name of wife of Harihar Sonar in the plaint as well as in the evidence but produced the death certificate at the time of adducing evidence which was obtained in the year 1980 i.e. dated 11.01.1980. In this death certificate, nothing has been mentioned as to who reported about the death of Ramrajo Devi. The death and birth register was called for from the municipality but P.W.21 did not produce the register and instead he produced these certificates. If the plaintiffs were knowing that Ramrajo Devi died in 1953 they could have obtained the certificate prior to institution of the suit i.e. in the year 1977. According to the learned counsel, there is no pleading regarding this death certificate and it was produced all of a sudden in the court by P.W.21 on 16.01.1980. On 14.01.1980, Dasti Summon was issued for producing the register and on 16.01.1980, the Patna High Court FA No.30 of 1981 dt.05-03-2013 6 death certificate has been produced by P.W.21. Therefore, this death certificate is forged one and no reliance can be placed. Had the register been produced, the real fact would have been disclosed. The plaintiffs obtained Dasti Summon from the court but they withheld the best evidence. In such view of the matter, adverse inference should have been drawn against the plaintiffs. The defendants-appellants produced the widow, Ramrajo Devi in the court who was examined as D.W.7 but on flimsy and unacceptable grounds, the Lower Court rejected her evidence and recorded the finding that she is not the widow of Harihar Sonar. The Lower Court has approached the case in wrong angle. The defendants have adduced evidences in the light of Section 50/60 of the Evidence Act to prove the fact that in fact, the defendant no.4 is the widow of Harihar Sonar but the court below has not considered the evidences in that light. The learned counsel further submitted that the sale deeds are registered sale deeds, therefore, there is presumption of the genuineness of the sale deed. The onus was on the person who challenges the sale deed to prove that it is either illegal or showy transaction but in the present case, the Lower Court has placed the onus on the defendants to prove passing of consideration. According to the learned counsel, the plaintiffs being the third party to the transaction cannot challenge the passing of consideration particularly when the defendant no.4 did not challenge Patna High Court FA No.30 of 1981 dt.05-03-2013 7 either the execution or passing of consideration. The plaintiffs did not even examine their vendors. According to the learned counsel, the Lower Court has rightly recorded that the defendant nos.2 and 3 are in possession of the property. Originally, the plaintiffs filed the suit for declaration of title and confirmation of possession. However, during the pendency of the suit, amendment was made in the prayer portion on the ground that the defendant nos.2 and 3, appellants have dispossessed the plaintiffs in December, 1978 and prayer for recovery of possession was added. In fact, they were out of possession prior to institution of the suit which would be evident from the document filed by the plaintiffs themselves i.e., Exhibit 11. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decrees are liable to be set aside and the First Appeal be allowed with cost. 10. On the other hand, the learned counsel, Mr. Ganpati Trivedi submitted that defendant no.4 is fake lady who was working as servant in the house of the appellant. She sold the property claiming herself to be the widow of Harihar Sonar. In fact, the widow of Harihar Sonar has already died in the year 1953 and her husband, Harihar Sonar has already died in the year 1944. The plaintiff has produced Exhibit 4, the death certificate of Harihar Sonar and Exhibit 4/A, the death certificate of Ramrajo Devi, widow of Patna High Court FA No.30 of 1981 dt.05-03-2013 8 Harihar Sonar. In these death certificates, the date of information has also been mentioned and these are public documents, therefore, the same cannot be doubted. The trial court has considered all the evidences and there is no illegality in the judgment and decree as such, the same cannot be interfered with in First Appeal. 11. In view of the above contentions of the parties, the only point arises for consideration is as to “whether the defendant no.4, Ramrajo Devi is the wife of Harihar Sonar or not” and “whether the impugned judgment and decrees are sustainable in the eye of law?” 12. According to the plaintiffs, the defendant no.4 claiming herself to be the widow of Harihar Sonar sold the property to the appellants whereas she is not the widow of Harihar Sonar. According to the appellants, she is the widow of Harihar Sonar. Therefore, if it is held that she is widow then she has the title to transfer the property which she inherited from her husband on his death in the year 1944. In such circumstances, the plaintiffs will have nothing to say because it is admitted that there was partition between Harihar and Sheokumar. If it is held that she is not the widow then whether consideration passed or not passed or possession was delivered or not delivered, it is immaterial because if she is not the widow then she has no right to transfer the property of Harihar as Patna High Court FA No.30 of 1981 dt.05-03-2013 9 such, no title will be conferred on the transferee. 13. In this case, the plaintiffs have denied the fact that Ramrajo Devi is the widow of Harihar. Their denial is sufficient. In such circumstances, the plaintiff is required to prove the fact that defendant no.4, Ramrajo Devi is the widow of Harihar Sonar. In support of their respective cases, the parties have adduced oral as well as documentary evidences. So far the pleading is concerned, they did not even pleaded in the plaint the name of wife of Harihar Sonar. The only pleading is that wife of Harihar Sonar died in the year 1953. 14. P.W.1, 3, 4, 7, 8, 10 to 12, 15 to 16, 18 to 20 all are formal witnesses. P.W.2 has only stated that defendant no.1 has sold the property to the plaintiffs and prior to sale, defendant no.1 was in possession of the suit property. After purchase, the purchaser came in possession of the same. Harihar Sonar has died. 25 years ago also, his wife died and Sheokumar, defendant no.1 performed the shradh. This witness has also not disclosed what was the name of wife of Harihar. He has also not stated about who is Ramrajo Devi. At paragraph 8, he has only stated that Ramrajia never came in possession of the property. P.W.5 has stated that Ramrajo Devi was the wife of Harihar who has already died and shradh was performed by Sheokumar. Although, this witness claimed that his house is at distance of 10-12 houses and aged about 62 years but in the cross- Patna High Court FA No.30 of 1981 dt.05-03-2013 10 examination, he has stated that he had not seen the wife of Harihar and he had not gone for cremation. In my opinion, therefore, his statement that Ramrajo, the widow of Harihar has died is not reliable particularly when one Ramrajo has been made party as defendant no.4. P.W.6 has also stated about possession of the suit property and that wife of Harihar died 25 years ago. This witness is also 60 years old and he also at paragraph 13 of his cross-examination admitted that he had not seen the wife of Harihar. He also claimed to be the neighbour of defendant no.1 and his house is nearer to the suit house. P.W.9 has only stated about the possession of the plaintiffs. 15. P.W.13 in his examination-in-chief clearly stated that whether the wife of Harihar died or is alive, he cannot say. His house is close to the suit house. P.W.14 claimed himself to be Purohit of Sheokumar. He has only stated that the wife of Harihar Sonar died 25 years ago and he had gone with the dead body. Cremation was done by Sheokumar and this witness has performed the shradh. This witness has not named the wife of Harihar Sonar. P.W.17 has also stated that 25 years ago, the wife of Harihar died. P.W.21 has proved Exhibit 4 and 4/A, the death certificates of Harihar Sonar and Ramrajo Devi. At paragraph 11 and 12 of his cross-examination, he has stated that Exhibit 4 and 4/A has been issued on the basis of the death register. Register was called for but he did not bring the same Patna High Court FA No.30 of 1981 dt.05-03-2013 11 because it was in custody of Devi Dayal. Admittedly, in view of the evidence of this witness, the certificates have been produced which are not the primary evidence. The said Exhibit 4 and 4/A are not even certified copies rather they are the certificates issued on the basis of the death register. This witness is also not the author of the said Exhibits. In view of Section 64 of the Evidence Act, the documents must be proved by primary evidence. The secondary evidence can be produced and proved if the condition mentioned in Section 65 of the Evidence Act exists. Here, in view of the evidence of this P.W.21 summons were issued for production of the death register but instead of producing the same, he has proved the certificate. It is not the case of plaintiffs that the death register is destroyed or is not available. The only explanation given by this witness is that on that day, when he deposed, register was not available. In such circumstances, the secondary evidence i.e. Exhibit 4 and 4/A were not at all admissible. 16. The learned counsel for the respondents submitted that the register was subsequently produced by the defendants- appellants by examining D.W.21 but the appellants did not get the register marked. From perusal of the evidence of D.W.21, it appears that he had brought the death register on summon of the court but the plaintiffs did not even get marked the original document i.e. entry regarding death of Ramrajo Devi. According to the defendants, Patna High Court FA No.30 of 1981 dt.05-03-2013 12 Ramrajo Devi is still alive. She has been examined as D.W.7. Therefore, the burden was on the plaintiff to prove that in fact, she died in the year 1953. When the register was produced, the plaintiffs did not get the entry marked. Had the plaintiffs got the entry marked on the basis of which entry in Exhibit 4/A was issued, then certainly Exhibit 4/A would have been admitted in evidence. The learned counsel for the respondents submitted that since the document has already been admitted in evidence and it has been marked as Exhibit, the same is required to be considered. So far this submission is concerned, I do not find any force because this document has been brought on record against the provision of law and is not admissible evidence. The certificate cannot be admitted without the examination of the author thereof as witness or without production of the original entry in the public document on the basis of which the certificate was issued. There is nothing on record that the author has been examined or that the plaintiffs got the entry marked as Exhibit on the basis of which Exhibit 4/A was issued. The further fact is that Exhibit 4/A has been issued on 11.01.1980 and it was filed in the court on 14.01.1980 and proved by P.W.21 on 16.01.1980. Therefore, only because the document has been marked as an Exhibit blindly the court cannot rely on the same. Here, the direct issue between the parties was as to whether wife of Harihar namely Ramrajo Devi died in 1953 or is Patna High Court FA No.30 of 1981 dt.05-03-2013 13 alive. The plaintiffs did not even get the certificate prior to institution of the suit. In course of evidence, only he got the certificate issued from the municipality. The relevant entry in the public document has not been marked even on production of the register by D.W.21. Impliedly it means that there was no such entry in the register. Date of death has not been mentioned in the plaint. In view of these facts, no reliance can be placed on Exhibit 4/A or Exhibit 4. 17. The other aspect of the matter is that in the plaint, the plaintiffs did not plead that the name of the widow of Harihar Sonar was also Ramrajo Devi who died in the year 1953. The only case pleaded is that the wife of Harihar died in the year 1953. Now, the certificate has been brought wherein it is mentioned that Ramrajo Devi, wife of Harihar died on 30.06.1953. Who gave this information to the municipality, it is not clear because in the certificate, the date of information has been mentioned as 29.06.1953. The plaintiff has not explained this fact as to who informed. Further, it is not the case of the plaintiffs that Ramrajo Devi died on 30.06.1953. On the other hand, the defendant no.4 herself claiming to be the widow of Harihar Sonar examining as D.W.7. Now, can it be said that merely because inadmissible secondary evidence i.e. certificate has been produced which is unreliable because of no basis(as the original entry has not been proved) or non-examination of the author thereof, that defendant Patna High Court FA No.30 of 1981 dt.05-03-2013 14 no.4 has already died. In my opinion, it is not acceptable at all. 18. P.W.22 is the husband of plaintiff no.1 and father- in-law of plaintiff no.2. He has admitted that Harihar died in 1944. At paragraph 7, he has clearly stated that after death of Harihar, the wife of Harihar was being maintained by Sheokumar. This statement of this witness shows that after death of Harihar, his wife was living with Sheokumar. Admittedly, Harihar died in 1944 and till her death in the year 1953, she remained with Sheokumar and was being maintained by him. In such circumstances, what prevented the plaintiffs from giving the name of wife of Harihar in the plaint? Because the plaintiffs are the purchasers from Sheokumar and also are relation and it is also not their case that they were unaware of the name of wife of Harihar, it is expected that they were knowing the name. 19. In view of the above discussion of the evidences, the facts emerge are that the plaintiffs only pleaded that wife of Harihar died in 1953. Name is not mentioned in the plaint and in the evidence, except one witness. If there was in fact, any entry in the death register then prior to filing of this suit in the year 1977, the plaintiff could have obtained the certificate and filed with plaint. The certificate has been produced on 14.01.1980 i.e. during the course of evidence. The author of the certificate has not been examined. Patna High Court FA No.30 of 1981 dt.05-03-2013 15 Certificate is not a certified copy of the original. Entry in the original register although produced by D.W.21 was not got marked or proved that in fact there was entry in the register by the plaintiffs. The certificate is secondary evidence and prior to admitting into evidence, the procedure for admitting the same in evidence was not followed according to Evidence Act. Therefore, in my opinion, no reliance can be placed on Exhibit 4/A. 20. From the evidences adduced by the plaintiffs now it becomes clear that the only pleading is that the wife of Harihar died in 1953. Further pleading is that defendant no.4 is maid servant of the appellant. So far these pleadings are concerned, only bald statements have been made either in the plaint or in the evidence. Now let us consider the evidence of the defendants-appellants. 21. D.W.2 is of same village. He stated that in the disputed house, Harihar was living with his wife. He identified in the court room the defendant no.4 and stated that she is the wife of Harihar. According to this witness, he is a neighbour of Harihar. Such is the evidence of D.W.4. D.W.5 also stated the same thing and identified defendant no.4 in the court room as the widow of Harihar. D.W.8 to 11 all have identified her in the court room to be the widow of Harihar Sonar. D.W.12 to 16 all have stated that the widow of Harihar is still alive. The other witnesses examined on behalf of the Patna High Court FA No.30 of 1981 dt.05-03-2013 16 defendants have also stated that the widow of Harihar is still alive and she was residing in the disputed house after the death of Harihar. From the discussion of the evidences of these witnesses, it appears that the evidences are according to Section 50 of the Indian Evidence Act. The witnesses have got special means of knowledge about the relationship of Harihar with defendant no.4. They are co-villagers and neighbourers. Most of them identified the defendant no.4 who was present in the court room. Only suggestion has been given to the witnesses that the lady who was present in the court is not the widow of Harihar. It may be mentioned here that the evidence produced by the plaintiff is only to prove the fact that the widow of Harihar has died. There is no evidence that this defendant no.4 is not the widow of Harihar rather she is the wife of anybody else. According to the plaintiffs, she is maid servant. The defendants-appellants have produced evidence according to Section 50 of the Evidence Act. The widow herself has been examined as D.W.7 who claimed herself to be the widow of Harihar. The learned counsel for the respondents placed in extenso her evidence and submitted that she is unable to state anything about the names of the Mohalla where her ancestral house is situated, the names of the family members of Harihar Sonar. Therefore, it cannot be relied upon that she is the widow of Harihar Sonar. So far this submission is concerned also, I find no force Patna High Court FA No.30 of 1981 dt.05-03-2013 17 because under the law, there cannot be any presumption that because D.W.7 is unable to give the names of the neighbourers or the name of Mohalla, she cannot be considered the wife of Harihar. In other words, there is no law that unless the wife knows the names of the family members or the Mohalla of the ancestral house, no relationship of husband and wife can be proved. From perusal of the judgment of the Lower Court, it appears that much emphasis has been given by the trial court that the defendant no.4(D.W.7) is unable to give the names of these persons or the Mohalla. Without considering the fact that the onus is on the plaintiffs to prove because here the registered sale deeds have been produced by the defendants-appellants wherein she has been described as widow of Harihar. 22. In the case of Vimal Chand Ghevarchand Jain and others vs. Ramakant Eknath Jadoo, (2009)5 SCC 713, the Apex Court held that a registered deed of sale carries a presumption that the transaction was a genuine one. If execution of sale deed is proved, onus is on the defendant to prove that the deed was not executed and it was a sham transaction. 23. In the case of Prem Singh vs. Birbal, (2006)5 SCC 353, the Apex Court has further held that there is a presumption that a registered document is validly executed. A registered