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PETITIONER: SMT. SUKHDEI (DEAD) BY L.RS.

       Vs.

RESPONDENT: BAIRO (DEAD) & ORS.

DATE OF JUDGMENT:       09/04/1999

BENCH: D.P.Wadhwa, N.Santosh Hegde

JUDGMENT:

       SANTOSH HEGDE, J.

     This  appeal  is  preferred against the  Judgment  and decree  made  by the High Court of Judicature  at  Allahabad dated 7th October, 1980 in Second Appeal No.896 of 1972.

     The  original  plaintiff  (since   deceased  and   now represented  by the legal representatives) had filed a  suit for  ejectment  and  recovery of arrears of  rent  regarding House  No.124,  Madhwapur, Allahabad, against  the  original respondents.   The  case of the plaintiff was that one  Smt. Parago  was the owner of the house in question and she  sold the  same  on  8th  of April, 1958 for  a  consideration  of Rs.1500/- which sale deed is registered and exhibited in the suit  as Ex.10.  It is further contended in the plaint  that she  also  executed a rent note Ex.3 in favour of  plaintiff and  she  occupied the said house from the date of the  sale deed  as a tenant on a monthly rent of Rs.45/-.  On the same day,  a document of re-conveyance of the very same house was executed  by the plaintiff in favour of Smt.Parago which was to take place within a period of 5 years.  The said document was produced as Ex.7.

     The  suit in question came to be filed after the death of  Smt.   Parago which occurred on 5.2.1964.  The  original first  defendant in the suit was one Sukhdei who claimed  to be  in  possession of the house, being a close  relative  of Smt.   Parago.   Defendant  No.2 contested the suit  on  the ground  that he was brought up by Smt.  Parago like a  child and  who had gifted the said house to him and since then  he is  in  occupation as an owner thereof.  Defendant No.3  did not  contest the suit.  Defendant No.4 contested the suit on the  ground  that  he  was   the  tenant  of  Smt.   Parago. Defendant  Nos.1  and 2 further contended that Smt.   Parago was  an  illiterate woman and was not earthly wise  and  she having  been in need of Rs.1500/- to renovate her house  had borrowed  the said sum of money from the plaintiff and as  a security  for  the  repayment  of the  said  loan,  she  had executed  a  mortgage deed in favour of the plaintiff  which was  in  fact  a mortgage deed, but the  plaintiff  being  a lawyer and in a dominant position, had taken undue advantage of the ignorance of Smt.  Parago and obtained her signatures

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on a document which he now claims to be the sale- deed.  The said  defendants  contended that the document  in  question, apart  from  being  obtained  by fraud, is in  fact  only  a mortgage deed.

     This  suit  had  a chequered career.  It  was  earlier decreed  by  the  Trial Court and on appeal,  the  same  was remanded.   It was decreed for the second time by the  trial court  and  was  again  remanded  by  the  Appellate  Court. However,  in the second judgment of the appellate court i.e. in C.A.No.143/67, the said court permitted the defendants to amend  their written statement by giving more particulars of fraud  so  as  to bring the pleadings of the  defendants  in conformity  with the requirement of Order VI, Rule 4 of  the Civil Procedure Code.  This order allowing the amendment has since  become  final.   In  view of the  fact  that  in  the impugned  judgment  of  the High Court, which  is  primarily based  on  the  insufficiency of pleadings of fraud  in  the written  statement of the defendants, it is necessary for us to  extract  the  relevant portion of  the  amended  written statement which is as follows :-

     "That  for  purposes of repairs and reconstruction  of the  house  the  said  Mst.Parago had to raise  a  loan  for Rs.1500/-.   The plaintiff a shrewd lawyer and money  lender agreed  to advance the loan desired against hypothecation of her  house  in  suit which is no less valued  at  less  than Rs.10,000/-.   It was clearly given out by the plaintiff  to the  said  Mst.   Parago a woman simple and honest  with  no clever wits and proper understanding that no sooner than the advanced  loan will be repaid with nominal gain of  interest her  house shall stand released.  Believing the words of the plaintiff as also her lawyer as stated above Mst.Parago took the loan of Rs.1500/- against the security of her house on a clear  understanding that she was mortgaging the house for a sum  of Rs.1500/- and the same shall be released as soon  as the amount was paid up.

     That  it  was under the above circumstances  that  the transaction  was entered into.  No sale was intended to take place  nor any transfer of possession took place.  That  the alleged  document  of  sale deed dated 8th April,  1958  was executed  and signed by Parago as a documents of mortgage as given  out  and as she was made to understand.  She did  not sign  the documents of mortgage as given out and as she  was made to understand.  She did not sign the document as a sale deed nor was she made to understand that she was executing a sale  deed  .   That  in   this  fraudulent  and   deceitful device..------------------ to dupe the said Parago a simple, illiterate  woman and simple habits, several other signature may have been obtained on documents such as rent notes which are  false  and fraudulent.  Mst.Parago did not  consciously and  voluntarily  with  full understanding  and  independent advice  executed  any  sale deed agreement of tenancy  or  a pronote.   That,  as stated above, the alleged deed of  sale dated  8th April, 1958 and the agreement of tenancy are  all tainted  with  fraud  and is illegal and  inopertive.   That there  has been no valid and conscious agreement of  tenancy between the plaintiff and Mst.Parago."

     "16-A.  That Smt.  Parago agreed to execute a mortgage deed  in  favour  of the plaintiff for a sum  of  Rs.1500/-. Consequently  she  executed  the  deed  dated  8.4.58  as  a mortgage  deed and the plaintiff represented to her that  it

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was  a  mortgage  deed.  Parago was an illiterate  old  lady having  full confidence in the plaintiff.  Taking  advantage of  it,  the  plaintiff played fraud on her.  The  T.I.   of Parago were taken on all the papers without reading them out or explaining the contents of the same to her.  She had been paying interest and principal all along and the parties were treating  the  transaction  in suit as a loan and  thus  the plaintiff  by his own conduct all along represented that the transaction  was a loan and the deed was mortgage deed.   He had been varying interest according to payments and increase or  decrease  of the amount of loan.  The plaintiff  without reading  the  contents  had given a paper  of  assurance  to Parago  and  had admitted on the back of it on 24.3.61  that the  deed in suit was a loan deed in presence of respectable persons."

     As  stated  above after the amendment, the matter  was remanded  back  to the Trial Court and on the second  remand the  Trial Court dismissed the suit of the plaintiff as  per the  judgment  of  the Second Additional  Munsif,  Allahabad dated  12.5.1969.   The Trial Court came to  the  conclusion that  the  document dated 8.4.1958 produced in the  suit  as Ext.10  was  obtained by fraud and even otherwise  the  said document  was  not  a deed of sale but was only  a  deed  of mortgage.   The Trial Court also held that Smt.  Parago  had repaid  the  entire amount with interest.  Plaintiff had  no right, title or interest in the suit property.

     Aggrieved by the said judgment of the Trial Court, the plaintiff  preferred C.A.No.118/69 before the Learned  Civil Judge,  Allahabad, the said appeal came to be dismissed by a judgment  of the First Appellate Court dated 6.12.1971.   In the  said  judgment, Learned Appellate Judge while  agreeing with   the  findings  of   the  Trial  Court   independently considered the case of fraud putforward by the defendant and also  the nature of the document Ext.P10 and concurred  with the finding of the Trial Court.

     In the second appeal filed by the plaintiff before the High  Court  of Judicature at Allahabad, the High Court  was pleased  to  allow  the  appeal  on  the  ground  that   the defendants  had failed to plead and prove the fraud  alleged by them, and the High Court also came to the conclusion that in  view  of Sections 91 and 92 of the Evidence Act, it  was not  open to the courts below to rely upon the oral evidence adduced  by  the defendants to establish the fact  that  Ex. P-10  was  in fact a mortgage deed and not a sale deed.   In the  said view of the matter, the suit of the plaintiff came to  be decreed by the High Court.  Consequently, this appeal by special leave is preferred against the said judgment.

     We  have heard the learned counsel for the parties and perused  the  record.   We  are unable  to  agree  with  the findings  and conclusions arrived at by the High Court.   We are  of the opinion that the High Court was wrong in  coming to  the conclusion that the pleading as to fraud was  either not  in  conformity with Order VI Rule 4 of C.P.C.   or  was insufficient so as to reject the plea of the defendants.  We have   deliberately  extracted  the   amended  plea  of  the defendants  regarding  fraud.  It is clearly stated  in  the amended  written statement that Kirayanama dated 8th  April, 1958  was  not voluntarily executed by Smt.Parago  and  that fraud has been practised upon her regarding the execution of

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the  Kirayanama.  It is contended that the plaintiff being a shrewd  lawyer  and money lender agreed to advance the  loan desired  by Smt.  Parago against hypothecation of the  house which  is  of a value of not less than Rs.10,000/- and  Smt. Parago  being a simple and honest woman with no clever  wits and proper understanding believed the words of the plaintiff that  the  document  in  question was being  executed  as  a security  for a loan of Rs.1500/- and got the same executed. It  is  specifically  alleged that Smt.Parago  executed  the document  of  8th  April,  1958 as a  document  of  mortgage because  she was told so and she understood it to be so  and she  did  not sign the document as a sale deed and that  the plaintiff fraudulently and by a deceitful device to dupe the said  Parago  got a sale-deed executed.  It is  also  stated that  Parago  did not consciously and voluntarily with  full understanding  and independent advice executed any sale deed and  that  the  document of 8th April,1958 is  tainted  with fraud  and  is  illegal and inoperative.  There  can  be  no quarrel  in  regard  to the requirement of law as  found  in Order VI Rule 4 which merely requires that if fraud is being pleaded,  the  particulars  necessary for  establishing  the fraud  should  be stated in the pleadings.  In our  opinion, the   pleading,  as  extracted   above,  comes  within   the requirement  of Order VI Rule 4 and there is no shortfall in the said pleading as held by the High Court.

     The  lower appellate court as well as the Trial  Court have  given  a number of reasons for dismissing the suit  of the plaintiff, which are as follows :- (a) The plaintiff had not disclosed material facts pertaining to variation of rent claimed  by  him  in the plaint.  (b) There was  no  regular monthly  payment of rent and plaintiff has established  only one  such  alleged payment of rent.  (c) While alleged  rent was  Rs.45/-  there is evidence to show that  the  plaintiff collected  at a given point of time a sum of Rs.200/-.   (d) There was no payment of alleged rent on regular basis and no suit  for  recovery of arrears of alleged rent or  no  other action  was taken against Smt.Parago.  (e) Though Smt.Parago inducted  sub-tenants  no action was taken against  her  for ejectment.   (f)  No  suit  was filed during  life  time  of Smt.Parago.  (g) No steps were taken to get plaintiff’s name mutated  eversince the alleged sale deed.  (h) The  original of  the alleged sale deed dated 8.4.58 was in the possession of  the defendants.  (i) The property in question was of the value  of  at least Rs.10,000/- while the consideration  for sale  was  only Rs.1500/-, totally disproportionate  to  the market  value.  (j) Smt.Parago and her successors  continued to  pay  the  municipal  taxes  and  Bhumi  Bhawan  Kar  and plaintiff  at  no  point  of time  paid  these  taxes.   (k) Smt.Parago  was  an illiterate, innocent and helpless  woman whereas plaintiff was a lawyer and a money lender.

     The  above  findings of facts arrived at by the  lower appellate  court  while concurring with the judgment of  the trial  court,  in our opinion, cannot be faulted  since  the same  is  borne out from the records of the case.   Once  we come  to the conclusion that the finding of fraud arrived at by the Trial Court and the first Appellate Court is based on material  on record and there is no infirmity in arriving at the  said  finding, the logical conclusion is that the  High Court  was  in  error  in   upsetting  this  finding   while entertaining an appeal under Section 100 of CPC.  Though the High  Court  has  endeavoured  to  bring  the  case  of  the

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plaintiff  on  a  question of law, as  already  referred  to hereinabove,  we are unable to agree with the High Court for the  reasons already given.  We having accepted the case  of the  defendants  on  the question of fraud, in  our  opinion nothing  further survives for consideration in this  appeal. However,  we  may  observe  that   we  have  also  carefully considered  the  findings of the Trial Court and  the  lower Appellate  Court  in  regard to the nature of Ex.10  and  we agree with the said finding of the Trial Court and the lower Appellate  Court that the document in question is a mortgage deed  and  not  a sale deed and that the entire  amount  due under the said document has been recovered by the plaintiff. Consequently,  plaintiff cannot have any claim based on  the said document.

     Before  parting with this appeal, we must observe that in  case  the  appellants  are dispossessed  from  the  suit property  either by virtue of any interim order obtained  by the  plaintiff or by virtue of the decree passed by the High Court,  then  the appellants/defendants will be entitled  to the restitution of the property.

     In  the  said  view  of the  matter,  this  appeal  is allowed, judgment and decree of the High Court is set aside, restoring  the  judgment and decree of the Trial Court  with costs throughout.