Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.750 of 2010 ====================================================== 1. Sanjay Kumar, S/o Sri Mahesh Chandra Singh 2. Savita Devi @ Savita Singh, wife of Sanjay Kumar Both residents of village Kohraul, P.S. Karpi, District-Jehanabad at present Mohalla-Pathaktoli, main road on the southern side of Punjab National Bank near the pipe shop, P.S. Jehanabad Town, District-Jehanabad. Defendants- Appellant/s Versus 1. Lav Kumar 2. Kush Kumar Both minor sons of Late Chotu Narain Singh, under the guardianship of the maternal grandfather and well wisher since the death of their natural father, resident of village-Dhangawan, P.S. + P.O. and district-Jehanabad, now both are major 3. Asha Devi, widow of Late Chotu Narain Singh, resident of village Dhangawan, P.S. + P.O. and District-Jehanabad Plaintiffs-Respondent/s Defendant No. 3-Respondent ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 08. 24-09-2013 Heard Mr. Ashok Kumar Sinha, learned Senior Counsel appearing on behalf of the appellants. This appeal is directed against the judgment and decree dated 22.09.2010 / 23.10.2010 passed by the Additional District Judge, F.T.C.-II, Jehanabad in Title Appeal No. 20 of 2008 / 1 of 2010, whereby the appellate court while dismissing the appeal has
Legal Reasoning
been pleased to confirm the judgment and decree dated 14.8.2008 / 26.8.2008 passed by learned Munsif, Jehanabad in Title Suit No. 47 of 1999, whereby the suit has been decreed in favour of the plaintiffs. Patna High Court SA No.750 of 2010 (8) dt.24-09-2013 2 Brief fact of the matter leading to the present appeal is that the suit was filed by the minor sons of the defendant no. 3 seeking to declare a sale deed executed by the defendant no. 3 in favour of the defendant nos. 1 and 2 on 14.5.1999 as a sham transaction and a void document. A further prayer seeking to injunct the defendant nos. 1 and 2 from interfering with the peaceful possession of the plaintiffs was also prayed. On the basis of the rival pleadings, learned trial court framed five issues of which issue no. 4 is germane to the matter in contest and is reproduced hereinbelow: “(iv) Is the sale deed dated 14.5.1999 purported to be executed by defendant no. 3 in favour of defendant nos. 1 and 2 is sham, showy, fraudulent, without consideration and was prepared under coercion and not binding upon the plaintiffs.” The suit founded on the said issue, the discussion is found in paragraph-11 of the trial court judgment. The trial court has taken note of the evidence given by the defendant no. 3 who has deposed as DW 3 and has mentioned that she was taken to Jehanabad on the pretext of illness of her daughter and where the defendants under threat and coercion got the sale deed executed by her, without any consideration amount. No evidence was led by the contesting defendants i.e. defendant nos. 1 and 2 to demonstrate whether any consideration had passed to the Patna High Court SA No.750 of 2010 (8) dt.24-09-2013 3 defendant no. 3 rather they took recluse on the statement that the consideration had been paid by the father of the defendant no. 1. Record manifests that the father of the defendant no. 1 was never examined. The trial court in the light of the evidence led by the parties has decreed the suit. Being aggrieved the defendant nos. 1 and 2 filed Title Appeal No. 20 of 2005 / 1 of 2010 and which has been dismissed by the judgment and decree dated 22.09.2010 / 23.10.2010 and hence this appeal.
Legal Reasoning
Mr. Sinha has stood in support of the contest led by the defendants who are in appeal before this Court and has submitted that the judgment of the court(s) below are unsustainable for the following reasons: (a) No issue was framed by the trial court as to the maintainability of the suit more particularly since the plaintiffs who are minor sons of the defendant no. 3 had filed the suit under the guardianship of their maternal grand father even when the mother was alive. (b) In absence of any evidence as regarding non payment of consideration amount or regarding fraud having been practiced by the defendants, the conclusion drawn is unsustainable. (c) The suit property falling within the share of the defendant no. 3, there was no infirmity in the transaction. Patna High Court SA No.750 of 2010 (8) dt.24-09-2013 4 I have heard Mr. Sinha, learned Senior Counsel appearing for the appellants and I have perused the judgment and decree passed by the court(s) below. There is a concurrent finding of the court below on the issue of fact and law. Law is well settled that a concurrent finding by the court below is not to be interfered with in Second Appeal unless it can be demonstrated that the judgment and decree suffers from perversity i.e. it was passed on no evidence or the conclusions drawn are in excess of the evidence or the Courts have exceeded its jurisdiction. Insofar as the issue of the maintainability of the suit is concerned the arguments have been noted by the court(s) below and with reference to the provisions of Order 32 of the Code of Civil Procedure, the Courts have concluded that there was no legal infirmity in the plaintiffs invoking the remedy under the civil jurisdiction through their maternal grand father. Thus the issue no. 1 as voiced by Mr. Sinha having been noticed and discussed by the trial court, no infirmity can be found therein. The second and third issue raised by Mr. Sinha are interlinked and hence they would be discussed together. The issue no. 3 is directly dependent on issue no. 2 and would rise and fall by the outcome on the issue no. 2. The entire foundation of the contest of the appellants is on the validity of the sale deed dated Patna High Court SA No.750 of 2010 (8) dt.24-09-2013 5 14.5.1999. The courts have decided against the defendants on two grounds to hold the sale deed invalid namely, the statement of the vendor herself as defendant witness no. 3 that the defendant nos. 1 and 2 got the sale deed fraudulently executed through her under threat and coercion and on grounds of absence of evidence regarding payment of consideration. The defendant no. 3 has stated on affidavit that she was taken to Jehanabad on the pretext of illness of her daughter Savita Devi and where the sale deed had been got executed. It was further stated by her that no consideration money was paid. In view of the statements of the defendant no. 3 in her deposition, the onus shifted on the defendant nos. 1 and 2 to prove the validity of the deed. Whereas the defendant no. 1 Sanjay Kumar in his deposition as DW 1 has stated that he was not aware of the payment of consideration amount, the defendant no. 2 has voiced similar statement. The Courts have noted that there are no other evidence to demonstrate that any amount was paid to defendant no. 3 by way of consideration money and which single fact itself renders the deed invalid. Although it was sought to be contended that the consideration amount was paid to the defendant no. 3 by the father of defendant no. 1 but the father of the defendant no. 1 was not examined in the suit. Thus the allegation of the defendant no. 3 Patna High Court SA No.750 of 2010 (8) dt.24-09-2013 6 that she was defrauded in executing the sale deed in question and in absence of evidence as regarding payment of the consideration amount, the judgment and decree of the court(s) below rendering the sale deed to be a sham transaction cannot be held to be a perversity. For the reasons aforementioned, this appeal failing to raise any substantial question of law is dismissed accordingly. S.Sb/- (Jyoti Saran, J)