Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.592 of 2011 ===================================================== Bela Kuer .... .... Appellant/s Kalawati Devi Versus .... .... Respondent/s ===================================================== Appearance : For the Appellant/s : Mr. Sangeeta Sharma For the Respondent/s : Mr. ===================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 5 16-07-2013 1. Heard the learned senior counsel, Mr. S. S. Dwivedi appearing on behalf of the appellant and the learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. This Second Appeal has been filed by the plaintiff respondent appellant against the Judgment and Decree dated 14.09.2011 passed by the learned Addl. District Judge, Fast Track Court No.1, Kaimur at Bhabhua in title appeal No.60 of 2010 / 9 of 2011 whereby the learned lower appellate court allowed the appeal and set aside the Judgment and Decree of the trial Court dated 30.09.2010 passed by the learned Subordinate Judge II, Kaimur at Bhabhua in title suit No.194 of 2001. 3. The plaintiff filed the aforesaid suit for declaration that the deed No.2806 dated 05.04.1989 is forged, fabricated and fraudulently obtained and the same is fit to be set aside and further prayed for partition of her half share in the suit property. The
Facts
plaintiff claimed the aforesaid relief alleging that Ram Swaroop Singh 2 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 2 / 11 and Ram Charan Singh were the full brothers. The parties belong to the branch of Ram Swaroop Singh. Ram Swaroop Singh had 3 sons, namely, Satyanarain Singh, Ram Naraian Singh and Shiv Narain Singh. Ram Naraian Singh died in jointness. According to the plaintiff, she was married with Shiv Naraian Singh in the year 1940 and Shiv Narain Singh died in the year 1946. The property is joint and there has been no partition. Defendant Kalawati is the daughter of Satya Narain Singh. The further case of the plaintiff is that during survey operation, the father of the defendant namely, Satya Narain Singh obtained thumb impression of the plaintiff on various blank papers and he might have fabricated or concocted documents regarding the suit which will not bind the plaintiff. The plaintiff is pardanasin, rustic illiterate old lady. There is no male member in the family. Therefore, the husband of the defendant was looking after the plaintiff. When she expressed her desire to execute Will in favour of defendant and her husband in 1989 she along with them went to the registration office on 05.04.1989, the defendants husband got her thumb impression on some written paper and she put left thumb impression on it under the impression that she is executing deed of Will. She came to know in 2001 that defendant want to sale the property. Therefore, she demanded partition. Then the plaintiff is shocked to learn that a registered deed of partition was executed on 05.04.1989. The contents of the deed was never read over and explained to her. The plaintiff, therefore, filed the suit for declaring as said deed as fraudulent and forged document and claimed half share in the suit property. 3 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 3 / 11 4. The defendant respondent appeared and filed contesting written statement alleging that in fact Shiv Naraian Singh the husband of the plaintiff died prior to 1937 and, therefore, she was only entitled for maintenance. She was being maintained but on her demand that more land be given in the year 1989, she along with the brother went to the registration office and executed the registered deed dated 5.4.1989 which is not a partition deed rather it is a maintenance by which the plaintiff was given 6 acres 24 decimal for her maintenance. 5. The trial Court decreed the plaintiff’s suit recording a finding that the case put forth by the defendant that plaintiffs husband Shiv Naraian died prior to 1937 is not believable because the plaintiff is aged about 75 years on the date of her deposition, therefore, her year of birth will be 1933. According to the trial Court, since her husband died after coming into force of the Hindu Women’s Right to Property Act, 1937, therefore, the plaintiff has got half share. 6. The defendant filed appeal before the lower appellate court. The lower appellate Court considering the oral evidence as well as documentary evidences recorded the finding that in fact Shiv Narain Singh died prior to 1937 and, therefore, she is entitled for maintenance only. The deed dated 5.4.1989 is genuine and valid document. 7. The learned senior counsel, Mr. S. S. Dwivedi firstly submitted that the hearing of the appeal before the lower appellate court was concluded on 14.09.2011 and on the same day 18 pages 4 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 4 / 11 Judgment was typed and signed by the Presiding Officer which itself indicates that there is some faulty or that the Judgment must have been written prior to hearing of the appeal. The learned counsel secondly submitted that the same principle which is applicable to pardanasin lady is also applicable in the case of old, illiterate, rustic lady that the person who derives benefit on the basis of a deed has to discharge the onus that in fact the contents of the document was read over and explained to the plaintiff and after understanding the contents thereof, the plaintiff put her thumb impression on the document but in the present case, no such evidence has been produced by the defendants. Thirdly, the learned counsel submitted that by this document ext. B/1, some lands were given to the plaintiff by way of maintenance but at the same time on the same day, another deed ext. ‘B’ was executed and registered by which the land given to the plaintiff was snatched. Fourthly, the learned counsel submitted that the plaintiff have given specific pleading regarding year of death whereas the defendant did not give any year of death and according to their case the plaintiff’s husband died prior to 1937.
Legal Reasoning
A.I.R. 1972 Patna 325, a Division Bench of this Court has held that the “expression pardanasin has not to be confused with a lady observing parda. A lady observing parda may not be a pardanasin 9 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 9 / 11 lady in the legal sense of the term. The term pardanasin lady is not a term of art. It has special legal significance as one who is unable to understand the transaction by virtue of manner in which she has been brought up. If, therefore, the plaintiff alleged that she was a pardanasin lady and the defendant refuted it by saying that the said lady had fullest capacity to understand the transaction, it would amount to denial by necessary implications that the lady was not a pardanasin lady. In such circumstances, the onus will lie on the plaintiff to prove that the lady was in fact a pardanasin. Here in the present case except in the plaint or in her evidence, nothing has been brought on record to say that in fact she is a pardanasi illiterate lady. 15. On the contrary, from the perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court considered various documents and then recorded the finding that she was attending the various Courts and various revenue authorities in relation with cases, therefore, the finding that she is not pardanasin, in my opinion, is also a finding of fact. 16. As stated above, admittedly, the plaintiff has only challenged the nature of the document dated 5.4.1989. Indirectly, she has admitted that she put her thumb impression thinking that in fact she was executing the registered Will. 17. In the case of Sitaram Prasad Vs. Manorama Devi 2012 (2) BLJ 165, this Court has held that once plaintiff has chosen to file the suit for declaration that the deed be adjudged as sham and inoperative document, 3 years of limitation as provided in Article 58 or Article 59 would became applicable. In the present case, 10 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 10 / 11 admittedly the deed was executed in the year 1989 and the suit has been filed in the year 2001. The plaintiff is a party to the document. The lower appellate Court found that she is not a pardanasin lady. In such circumstances only statement that she was not knowing the contents of the document or that she was not knowing the execution of the document will not save the limitation for filing the suit. In my opinion, therefore, the suit itself is also barred by law of limitation. 18. So far the submission regarding the integrity of the Presiding Officer is concerned, from perusal of the ordersheet, it appears that the appeal was heard by the Presiding Officer on various dates. Now, therefore, this Court sitting in second appellate jurisdiction cannot interfere that in one day the Judgment of 18 pages could not be typed and could not be signed and moreover as stated above, appeal was heard on various dates. Now, therefore, when the findings recorded by the lower appellate Court are found to be correct finding based on materials, this Court cannot interfere that the Judgment was not written after hearing the parties. Moreover this question raised by the learned counsel for the appellant is not at all a substantial question of law which is involved in this case for decision. 19. In the legal maxim of BROOMS – 10TH Edition – p 48 it mentioned “JUDICIS NON RECIPITUR QUAESTIO, SED DE SCIENTIA SIVE SIT ERROR JURIS SIVE FACTI” ‘The honesty and integrity of a Judge cannot be questioned, but his decision may be impugned for error either of law or of fact.’ In the present case the appellant is trying to question of 11 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 11 / 11 integrity and honesty of the Judge in addition to the finding recorded by the lower appellate Court. In my opinion, therefore, none of the question raised by the learned counsel for the appellant are substantial question of law. Therefore, in my opinion, no substantial question of law is involved in this Second Appeal and thus this Second Appeal is dismissed at the admission stage itself. So far the interlocutory application being I.A. No.4946 of 2012 is concerned, this application has been filed by the donee for being added as party in this appeal. So far this application is concerned, since the plaintiff suit has been dismissed by the lower appellate Court and the second Appeal has been dismissed, now, therefore, the plaintiff has no authority to deal with the property. In such circumstances, the application is devolved of any merit and accordingly, it is also rejected. (Mungeshwar Sahoo, J) Sanjeev/-
Arguments
On these grounds, the learned counsel submitted that the impugned Judgment and Decrees are liable to be set aside. 8. On the other hand, the learned senior counsel, Mr. Kamal Nayan Chaubey submitted that so far integrity of the Court is concerned, that cannot be interfered with from the facts stated either in the memo of appeal or from the ordersheet because from the ordersheet, it appears that the appeal was heard for many dates and thereafter on 14th September, 2011 in the first half only of parties 5 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 5 / 11 were heard on law point and in the second half the Judgment had been written and signed, in such circumstances, it cannot be said that in the second half Judgment could not have been written by the Presiding Officer. So far merit is concerned, according to the learned counsel, the lower appellate Court considering the reasonings of the trial Court as well as the documentary evidences and oral evidences recorded the finding that Shiv Narain Singh died prior to 1937. This is a pure finding of fact which cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. The learned counsel further submitted that the plaintiff filed the suit alleging that she was married in the year 1940 and her husband died in 1946, therefore, the onus was on the plaintiff to prove this fact. The lower appellate Court on consideration of the evidences recorded the finding that she failed to prove this fact. Therefore, whether the defendants pleaded the year of death or not pleaded is immaterial. It is for the plaintiff to prove her case. The learned counsel further submitted that so far the ext. ‘B/1’ i.e., the registered deed dated 5.4.1989 is concerned, it was executed in presence of the brother of the plaintiff who is a witness to the document wherein the plaintiff admitted that her husband died prior to 1937. Therefore, she was knowing the execution of the deed in the year 1989. The suit has been filed in the year 2001, therefore, the suit itself is hopelessly barred by law of limitation. The learned counsel further submitted that so far the case of the plaintiff that she is pardanasi lady or that she is illiterate lady is concerned, after considering the evidences of the parties documentary as well as the oral, the lower appellate Court held that she is not a pardanasi lady, therefore, this finding is also a 6 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 6 / 11 finding of fact which cannot be interfered with in second appellate jurisdiction. 9. Admittedly, the plaintiff is widow of Shiv Narain. According to the plaintiff, she was married with Shiv Narain in the year 1940 and Shiv Naraian Singh died in the year 1946. On the contrary according to the defendants, Shiv Narain died prior to 1937. From perusal of the Judgment of the lower appellate Court, it appears that at paragraph 16 after considering the evidences, the lower appellate court recorded a clear finding that Shiv Narain Singh died prior to 1937. The trial Court recorded the finding that he died after 37 years. In such view of the matter, it is clear that one view has been taken by the trial Court and the other views has been taken by the appellate Court. The question will be whether in second appellate jurisdiction, this Court can interfere with the finding of the lower appellate Court on the question of fact. It may be mentioned here that this finding recorded by the Courts below is based on appreciation of oral evidence. Over and above, the oral evidences, the lower appellate Court has relied upon the registered deed dated 5.4.1989 ext. B/1. This ext. B/1 according to the plaintiff is a partition deed whereas according to the defendant it is a deed of maintenance whereby the 6 acres 24 decimal land was given to her for maintenance. It is not the case of the plaintiff that wrongly, it has been mentioned in the deed that her husband died after 1937. This is the admission made by the plaintiff in a registered document. 10. In the case of Santosh Hazare Vs. Purushottam Tiwary 2001 (3) SCC 179, the Hon’ble Supreme has held that an additional 7 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 7 / 11 duty has been cast on the first appellate Court by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues as before to be a final Court on fact. Pure finding of fact remain immune from challenge before the High Court in Second Appeal. Now, the first appellate Court is also a final Court of law in the sense that its decision on a question of late even if wrong may not be vulnerable before the High Court in Second Appeal because the jurisdiction of the High Court has now ceased to be available to correct the error of law or the wrong findings of the First Appellate Court even on question of law unless such question of law be a substantial one. 11. In the case of Bidyadhar Vs. Manikrao 1999 (3) SCC 573 and Abdul Rahim Vs. Karnataka Electricity Board 2007 (14) SCC 138 the Hon’ble Supreme has held that the High Court in second appeal should not disturb the findings of facts unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Merely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. Now, therefore, when one view has been taken by the trial Court and the lower appellate Court reversed that view of the trial Court giving cogent reasons, in my opinion, in second appellate jurisdiction the finding of fact to the effect that her husband Shiv Narain died prior to 1937 being a finding of fact cannot interfered with. 8 Patna High Court SA No.592 of 2011 (5) dt.16-07-2013 8 / 11 12. So far the question regarding ext. B/1 i.e., registered deed dated 5.4.1989 is concerned, the case of the plaintiff is that it is a partition deed which was obtained fraudulently and is a forged document. It may be mentioned here that the trial Court has considered the fact that the brother of the plaintiff was present with the plaintiff at the time of registration of the document. 13. In the case of Prem Singh vs. Birbal Singh 2006 (5) SCC 353, the Hon’ble Supreme Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of prove thus would be on a person who leads evidence to rebut the presumption. Here, the only case of the plaintiff is that she is pardanasin, illiterate and rustic villager and she was not knowing execution of the partition deed on 5.4.1989. However, it is clear that according to the plaintiff herself, she admitted that she put her thumb impression on the document under the impression that she was executing a Will. Therefore, she is not disputing her thumb impression on the document. So far pardanasi lady is concerned, after considering the various documentary evidences, the lower appellate court at paragraph 22 recorded the finding that plaintiff was appearing before various authorities and Courts in connection with the cases and, therefore, she is not a pardanasi lady. 14. In the case of Smt. Andhi Kuer Vs. Rajeshwar Singh