Khedaru (now deceased) through legal heir Reshma v. Prem Sagar

Judgment

1. Heard Sri Amrendra Nath Tripathi, learned counsel for the appellant. No one has appeared on behalf of the respondent, although the name of Sri Shiv Shanker Singh is shown as counsel for the respondent. In view thereof, the Court has proceeded to hear the aforesaid second appeal which is pending since 2011 at the stage of admission.

2. Learned counsel for the appellant has urged that the instant second appeal arises out of a SAPL 230 of 2011 Page No.1 of 13 judgment and decree dated 15.01.2008 passed by Civil Judge (Junior Division), Ramsanehi Ghat, Court No.14, Barabanki1 in a suit seeking the remedy of cancellation of a sale deed, which was registered as Regular Suit No.109 of 1996 : Khedaru (now deceased) through legal heir Reshma vs. Prem Sagar2 and which came to be

decreed. The appellant, being the defendant, carried the matter in a first appeal under Section 96 Code of Civil Procedure, 19083, which was registered as Regular Civil Appeal No. 32 of 20084 and which also met the same fate by means of judgment and decree dated 27.11.2010 passed by Additional District and Sessions Judge/Special Judge, Essential Commodities Act, Barabanki5; and, being aggrieved by the concurrent findings, the instant second appeal has been preferred.

3. Taking his submission forward, learned counsel for the appellant has primarily urged that the suit was filed by the plaintiff-respondent, claiming a 1 hereinafter referred to as “trial court” 2 hereinafter referred to as “suit” 3 hereinafter referred to as “CPC” 4 hereinafter referred to as “appeal” 5 hereinafter referred to as “first appellate court” SAPL 230 of 2011 Page No.2 of 13 decree for cancellation of the sale deed on the ground that no consideration was paid by the appellant to the respondent.

4. It is urged that the basic issue was in context of payment of consideration; however, the same has been misconstrued by the trial court as well as the first appellate court in granting the benefit available to a 'pardanashin lady' to the present respondent. There were neither adequate pleadings nor proof which was placed by the respondent and in absence thereof, no such benefit could have been given to the respondent.

5. It is further urged that, from the pleadings delivered by the respondent, it would indicate that he had taken a specific plea that he was illiterate and he had gone to execute a will while by surreptitiously means a sale deed was got executed and it was not the intend or nature of the document for which the respondent had gone to the office of the Sub Registrar. It is further submitted that once the character of the SAPL 230 of 2011 Page No.3 of 13 document was under challenge, an adequate and proper issue should have been framed by the trial court and in absence thereof, the trial has been vitiated as the appellant was prevented from leading effective evidence in this regard.

6. It is further urged that, in the absence of proper issues, there has been a mistrial, coupled with the fact that the trial court as well as the first appellate court has not given any finding as to under what circumstances the benefit of a 'pardanashin lady' could have been extended to the respondent; and in case the sale consideration for the sale deed was not paid to the respondent, then whether he had gone to execute a will is also not mentioned and no finding has been given in this regard. Thus, for the aforesaid reasons, the appeal deserves to be admitted for consideration on merits.

7. The Court has considered the aforesaid submissions and has also perused the material on record. SAPL 230 of 2011 Page No.4 of 13

8. The record indicates that the original plaintiff, namely, Khedaru (the predecessor-in-interest of the respondent), had instituted a suit seeking cancellation of the sale deed dated 23.09.1995. In the plaint, it was averred that the plaintiff was a rustic village person and was not worldly-wise. He did not have a son, except for two daughters in whose favour he intended to execute a will.

9. It is in the aforesaid context that he had gone to the Sub Registrar office with the intent to execute a will in favour of his daughters, for which he had paid a sum of Rs.700/-. However, the appellant (the defendant in the suit) had played fraud and, instead of the will, got a sale deed executed; and that too, no consideration was paid for the same. As such, the alleged sale deed, which casts a cloud over the title of the plaintiff-respondent, led to the filing of the suit for cancellation.

10. The suit came to be contested by the appellant, who, in the written statement, inter alia took the plea that the plaintiff wanted to sell his property SAPL 230 of 2011 Page No.5 of 13 and, in furtherance thereof, the defendant paid a sale consideration of Rs.6,000/-. The contention that the sale consideration was not paid is bad, apart from the fact that the appraisal of the evidence by the trial court as well as the first appellate court was not appropriate.

11. A further ground has been urged before this Court that no adequate issue was framed and this prevented the appellant from leading effective evidence.

12. The record further indicates that the trial court framed primarily three issues. The first issue was to the effect as to whether the disputed sale deed dated 22.09.1995 is bad and liable to be cancelled in light of the averments made in the plaint.

13. The trial court, considering the evidence on record, came to the conclusion that as far as the payment of consideration is concerned, the defendants were unable to prove it. It also concluded that since the respondent was an SAPL 230 of 2011 Page No.6 of 13 illiterate person and giving him the benefit of the 'pardanashin lady,' it found that this was a fit case for cancelling the sale deed. Thus, by means of judgment and decree dated 15.01.2008, the suit was decreed, and later, the first appeal filed by the appellant (defendant) was also dismissed on

27.11.2010.

14. In the aforesaid backdrop, as far as the submissions advanced by the counsel for the appellant are concerned, it would reveal that the plaintiff had, in paragraphs 2 and 3, categorically pleaded that he was a simple village rustic, coupled with the fact that he wanted to execute a will in favour of his daughters. This ground in itself is adequate pleading and it is not disputed by the defendant-appellant that the plaintiff was worldly-wise or was literate, or had complete knowledge of worldly affairs.

15. It will be worthwhile to mention that if the plea of 'pardanashin lady' is to be taken, it is confined to women having certain disabilities in terms of the SAPL 230 of 2011 Page No.7 of 13 wordily matters, as this concept has been developed to ensure their protection. By means of judicial pronouncements, this concept has also been extended to people who are aged, illiterate, village rustic or suffering from any other particular disability.

16. It is in this context, where the basic fact regarding the illiteracy and village rustic background of the plaintiff was not disputed, then it cannot be said that the benefit of 'pardanashin lady' could not be extended to the plaintiff for want of proper pleadings and issues. Thus, this submission advanced by the learned counsel for the appellant pales into insignificance. Moreso for the reason that once the judgment and decree dated 15.01.2008 was pronounced by the trial court, there was ample opportunity for the defendants to have raised this issue before the first appellate court and it is not the case of the appellant that such a plea was raised before the first appellate court and not considered. Hence, in SAPL 230 of 2011 Page No.8 of 13 the absence of any effort made by the appellant and nothing could be pointed out from the record by virtue of which some credence could be given to the aforesaid averment. Thus it is turned down.

17. Now as far as the deficiency relating to framing of issues is concerned, the defendant had ample opportunity at the first instance before the trial court, under Order XIV Rule 5 CPC, to have got an additional issue framed, if the defendant felt that the issues were not expressive enough to include or subsume the entire controversy. Having failed to do so, the second opportunity was available before the first appellate court, which also was not availed of.

18. In the aforesaid circumstances, merely stating that the benefit of 'pardanashin lady' has been extended to the respondent is bad does not suffer from any error, and to that extent, the submission of the learned counsel for the appellant does not impress the Court and is accordingly rejected. SAPL 230 of 2011 Page No.9 of 13

19. Insofar as the second submission raised by the learned counsel for the appellant— that once the plaintiff had challenged the character of the document, without giving a finding thereon, the trial court as well as the first appellate court did not consider the issue and merely based their finding on non-payment of consideration—is also bad.

20. Examining the aforesaid plea from the material available on record, it would indicate that the case of the plaintiff was very simple, in the sense that he had clearly pleaded that he did not intend to execute any sale deed, nor did he receive any consideration therefor; rather, he had gone to the Sub Registrar's Office to execute a will, for which he had paid a sum of Rs.700/-. This plea is countered by the defendant on the premise that the plaintiff had gone with full knowledge to the Sub Registrar’s Office to execute the sale deed and had received a sum of Rs.6,000/- as sale consideration. SAPL 230 of 2011 Page No.10 of 13

21. It is in the aforesaid backdrop that it would be relevant to mention that any plea or counter- plea/defense raised by the respective parties carries with it the burden of proving their respective pleas by them.

22. In the instant case, both parties led ample evidence; hence, the basic issue of burden of proof loses its significance. The record indicates that, as far as the pleadings as well as the evidence led by the plaintiff are concerned, certain facts emerge from the record—specifically, that the plaintiff was illiterate and that he did go to the Sub Registrar's Office, but for the purpose of executing a will.

23. In the aforesaid backdrop, the defendant, who was canvassing his plea, also had ample opportunity to explain and prove his basic case, i.e., regarding the execution of the sale deed and the payment of consideration. It is in this context that the trial court as well as the first appellate court have appraised the evidence and recorded a SAPL 230 of 2011 Page No.11 of 13 concurrent finding of fact that, insofar as the payment of sale consideration is concerned, the said fact could not be proved by the defendant.

24. Once the payment of consideration could not be proved and looking into the evidence on record regarding the illiteracy of the plaintiff as well as the fact that he had gone only for the purpose of executing a will, it did not require the trial court or the first appellate court to specifically record a finding that he had gone for the purpose of executing a will and not a sale deed, for the simple reason that these facts were staring in the face of all concerned—that is to say, the contesting parties as well as the Court.

25. It would have been a different situation if the payment of consideration had been proved by the defendant, and then, it would have to be explained by plaintiff as to why and under what circumstances he had received the consideration in light of the attending circumstances, however, that is not the case here. SAPL 230 of 2011 Page No.12 of 13

26. In the aforesaid facts and circumstances, this Court is of the clear opinion that the trial court as well as the first appellate court has appropriately dealt with the matter. For the said reasons, this Court is of the view that the submissions of the learned counsel for the appellant do not give rise to any substantial question of law. Accordingly, the appeal is dismissed at the admission stage. Judgment and decree dated 27.11.2010 passed in RCA No.32 of 2008 by first appellate court affirming the judgment and decree dated

15.01.2008 passed in RS No.109 of 1996 by trial court are affirmed. (Jaspreet Singh, J.) Order Date :- 25.07.2025 Shubhankar SAPL 230 of 2011 Page No.13 of 13 SHUBHANKAR THAKUR High Court of Judicature at Allahabad, Lucknow Bench

decreed. The appellant, being the defendant, carried the matter in a first appeal under Section 96 Code of Civil Procedure, 19083, which was registered as Regular Civil Appeal No. 32 of 20084 and which also met the same fate by means of judgment and decree dated 27.11.2010 passed by Additional District and Sessions Judge/Special Judge, Essential Commodities Act, Barabanki5; and, being aggrieved by the concurrent findings, the instant second appeal has been preferred.

3. Taking his submission forward, learned counsel for the appellant has primarily urged that the suit was filed by the plaintiff-respondent, claiming a 1 hereinafter referred to as “trial court” 2 hereinafter referred to as “suit” 3 hereinafter referred to as “CPC” 4 hereinafter referred to as “appeal” 5 hereinafter referred to as “first appellate court” SAPL 230 of 2011 Page No.2 of 13 decree for cancellation of the sale deed on the ground that no consideration was paid by the appellant to the respondent.

4. It is urged that the basic issue was in context of payment of consideration; however, the same has been misconstrued by the trial court as well as the first appellate court in granting the benefit available to a 'pardanashin lady' to the present respondent. There were neither adequate pleadings nor proof which was placed by the respondent and in absence thereof, no such benefit could have been given to the respondent.

5. It is further urged that, from the pleadings delivered by the respondent, it would indicate that he had taken a specific plea that he was illiterate and he had gone to execute a will while by surreptitiously means a sale deed was got executed and it was not the intend or nature of the document for which the respondent had gone to the office of the Sub Registrar. It is further submitted that once the character of the SAPL 230 of 2011 Page No.3 of 13 document was under challenge, an adequate and proper issue should have been framed by the trial court and in absence thereof, the trial has been vitiated as the appellant was prevented from leading effective evidence in this regard.

6. It is further urged that, in the absence of proper issues, there has been a mistrial, coupled with the fact that the trial court as well as the first appellate court has not given any finding as to under what circumstances the benefit of a 'pardanashin lady' could have been extended to the respondent; and in case the sale consideration for the sale deed was not paid to the respondent, then whether he had gone to execute a will is also not mentioned and no finding has been given in this regard. Thus, for the aforesaid reasons, the appeal deserves to be admitted for consideration on merits.

7. The Court has considered the aforesaid submissions and has also perused the material on record. SAPL 230 of 2011 Page No.4 of 13

8. The record indicates that the original plaintiff, namely, Khedaru (the predecessor-in-interest of the respondent), had instituted a suit seeking cancellation of the sale deed dated 23.09.1995. In the plaint, it was averred that the plaintiff was a rustic village person and was not worldly-wise. He did not have a son, except for two daughters in whose favour he intended to execute a will.

9. It is in the aforesaid context that he had gone to the Sub Registrar office with the intent to execute a will in favour of his daughters, for which he had paid a sum of Rs.700/-. However, the appellant (the defendant in the suit) had played fraud and, instead of the will, got a sale deed executed; and that too, no consideration was paid for the same. As such, the alleged sale deed, which casts a cloud over the title of the plaintiff-respondent, led to the filing of the suit for cancellation.

10. The suit came to be contested by the appellant, who, in the written statement, inter alia took the plea that the plaintiff wanted to sell his property SAPL 230 of 2011 Page No.5 of 13 and, in furtherance thereof, the defendant paid a sale consideration of Rs.6,000/-. The contention that the sale consideration was not paid is bad, apart from the fact that the appraisal of the evidence by the trial court as well as the first appellate court was not appropriate.

11. A further ground has been urged before this Court that no adequate issue was framed and this prevented the appellant from leading effective evidence.

12. The record further indicates that the trial court framed primarily three issues. The first issue was to the effect as to whether the disputed sale deed dated 22.09.1995 is bad and liable to be cancelled in light of the averments made in the plaint.

13. The trial court, considering the evidence on record, came to the conclusion that as far as the payment of consideration is concerned, the defendants were unable to prove it. It also concluded that since the respondent was an SAPL 230 of 2011 Page No.6 of 13 illiterate person and giving him the benefit of the 'pardanashin lady,' it found that this was a fit case for cancelling the sale deed. Thus, by means of judgment and decree dated 15.01.2008, the suit was decreed, and later, the first appeal filed by the appellant (defendant) was also dismissed on

27.11.2010.

14. In the aforesaid backdrop, as far as the submissions advanced by the counsel for the appellant are concerned, it would reveal that the plaintiff had, in paragraphs 2 and 3, categorically pleaded that he was a simple village rustic, coupled with the fact that he wanted to execute a will in favour of his daughters. This ground in itself is adequate pleading and it is not disputed by the defendant-appellant that the plaintiff was worldly-wise or was literate, or had complete knowledge of worldly affairs.

15. It will be worthwhile to mention that if the plea of 'pardanashin lady' is to be taken, it is confined to women having certain disabilities in terms of the SAPL 230 of 2011 Page No.7 of 13 wordily matters, as this concept has been developed to ensure their protection. By means of judicial pronouncements, this concept has also been extended to people who are aged, illiterate, village rustic or suffering from any other particular disability.

16. It is in this context, where the basic fact regarding the illiteracy and village rustic background of the plaintiff was not disputed, then it cannot be said that the benefit of 'pardanashin lady' could not be extended to the plaintiff for want of proper pleadings and issues. Thus, this submission advanced by the learned counsel for the appellant pales into insignificance. Moreso for the reason that once the judgment and decree dated 15.01.2008 was pronounced by the trial court, there was ample opportunity for the defendants to have raised this issue before the first appellate court and it is not the case of the appellant that such a plea was raised before the first appellate court and not considered. Hence, in SAPL 230 of 2011 Page No.8 of 13 the absence of any effort made by the appellant and nothing could be pointed out from the record by virtue of which some credence could be given to the aforesaid averment. Thus it is turned down.

17. Now as far as the deficiency relating to framing of issues is concerned, the defendant had ample opportunity at the first instance before the trial court, under Order XIV Rule 5 CPC, to have got an additional issue framed, if the defendant felt that the issues were not expressive enough to include or subsume the entire controversy. Having failed to do so, the second opportunity was available before the first appellate court, which also was not availed of.

18. In the aforesaid circumstances, merely stating that the benefit of 'pardanashin lady' has been extended to the respondent is bad does not suffer from any error, and to that extent, the submission of the learned counsel for the appellant does not impress the Court and is accordingly rejected. SAPL 230 of 2011 Page No.9 of 13

19. Insofar as the second submission raised by the learned counsel for the appellant— that once the plaintiff had challenged the character of the document, without giving a finding thereon, the trial court as well as the first appellate court did not consider the issue and merely based their finding on non-payment of consideration—is also bad.

20. Examining the aforesaid plea from the material available on record, it would indicate that the case of the plaintiff was very simple, in the sense that he had clearly pleaded that he did not intend to execute any sale deed, nor did he receive any consideration therefor; rather, he had gone to the Sub Registrar's Office to execute a will, for which he had paid a sum of Rs.700/-. This plea is countered by the defendant on the premise that the plaintiff had gone with full knowledge to the Sub Registrar’s Office to execute the sale deed and had received a sum of Rs.6,000/- as sale consideration. SAPL 230 of 2011 Page No.10 of 13

21. It is in the aforesaid backdrop that it would be relevant to mention that any plea or counter- plea/defense raised by the respective parties carries with it the burden of proving their respective pleas by them.

22. In the instant case, both parties led ample evidence; hence, the basic issue of burden of proof loses its significance. The record indicates that, as far as the pleadings as well as the evidence led by the plaintiff are concerned, certain facts emerge from the record—specifically, that the plaintiff was illiterate and that he did go to the Sub Registrar's Office, but for the purpose of executing a will.

23. In the aforesaid backdrop, the defendant, who was canvassing his plea, also had ample opportunity to explain and prove his basic case, i.e., regarding the execution of the sale deed and the payment of consideration. It is in this context that the trial court as well as the first appellate court have appraised the evidence and recorded a SAPL 230 of 2011 Page No.11 of 13 concurrent finding of fact that, insofar as the payment of sale consideration is concerned, the said fact could not be proved by the defendant.

24. Once the payment of consideration could not be proved and looking into the evidence on record regarding the illiteracy of the plaintiff as well as the fact that he had gone only for the purpose of executing a will, it did not require the trial court or the first appellate court to specifically record a finding that he had gone for the purpose of executing a will and not a sale deed, for the simple reason that these facts were staring in the face of all concerned—that is to say, the contesting parties as well as the Court.

25. It would have been a different situation if the payment of consideration had been proved by the defendant, and then, it would have to be explained by plaintiff as to why and under what circumstances he had received the consideration in light of the attending circumstances, however, that is not the case here. SAPL 230 of 2011 Page No.12 of 13

26. In the aforesaid facts and circumstances, this Court is of the clear opinion that the trial court as well as the first appellate court has appropriately dealt with the matter. For the said reasons, this Court is of the view that the submissions of the learned counsel for the appellant do not give rise to any substantial question of law. Accordingly, the appeal is dismissed at the admission stage. Judgment and decree dated 27.11.2010 passed in RCA No.32 of 2008 by first appellate court affirming the judgment and decree dated

15.01.2008 passed in RS No.109 of 1996 by trial court are affirmed. (Jaspreet Singh, J.) Order Date :- 25.07.2025 Shubhankar SAPL 230 of 2011 Page No.13 of 13 SHUBHANKAR THAKUR High Court of Judicature at Allahabad, Lucknow Bench