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PETITIONER: SMT. HANS RAJ

       Vs.

RESPONDENT: YOSODANAND

DATE OF JUDGMENT24/11/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1996 AIR  761            1996 SCC  (7) 122  JT 1995 (8)   515        1995 SCALE  (6)689

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted.      This appeal  is moved by the original plaintiff who had filed Regular  Civil Suit  No.223 of  1976 in  the court  of learned Munsif  Gonda for  cancellation of  Sale Deed  dated 7.4.1975 said  to have been executed by her in favour of the respondent-defendant. The  suit came  to be dismissed by the Trial Court.  Appellant lost her appeal before the appellate court and further appeal being second appeal before the High Court. That is how she has invoked this Court’s jurisdiction under Article  136 of  the Constitution of India. Notice was ordered to  be issued to the respondent on 20th January 1995 by a  Division Bench  of this Court consisting of S. Mohan , J. and  one of  us S.B.  Majmudar, J.  It  was  also  stated therein that  notice to go on additional grounds as well. We will advert  to the additional grounds permitted to be urged by the  appellant pursuant  to the notice aforesaid a little later. Respondent  has appeared through his learned counsel. We have heard learned counsel for both the parties. We tried to explore  the  possibility  of  a  settlement  but  as  no settlement could  be arrived  at despite adjournment of this petition on number of occasions, ultimately the petition was finally heard  on merits and the appeal pursuant to the same is being disposed of by this judgment.      A few  relevant facts  are necessary to be noted at the outset  to   appreciate  the  grievance  of  the  appellant- plaintiff. According  to her  she is  an illiterate  harijan woman and a childless widow. On the death of her husband who was  a   Railway  servant   she  was   given  employment  on compassionate ground  in Railway by Railway authorities. She had inherited  the  house  which  belonged  to  her  husband situated in  Gonda town  in Gonda district of Uttar Pradesh. Respondent, who  was known  to her came to Gonda town and as he was  in need of accommodation, the appellant accommodated

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him in  her house.  That happened about three years prior to filing of the suit from which the present proceedings arise, that is, somewhere in the year 1973 as the suit was filed in 1976. Thereafter  according to  the appellant  plaintiff her brother came  to Gonda  in 1975  and on  his persuasion  she agreed to  execute a will in favour of her brother’s sons as she was  a childless  widow. It  is her further case that at that time  respondent was  also present  and he undertook to get the  necessary will  executed by the appellant in favour of  her   brother’s  sons.  But  instead  of  doing  so  he, dishonestly and  fraudulently told the appellant that before the will  is executed  permission of the District Magistrate will have  to be obtained and accordingly made her sign some blank documents  and later  on took  her to  the  office  of Registrar for  getting the  will executed.  However, it  was found  that   instead  of  getting  the  will  executed  the respondent got  a  Sale  Deed  executed  in  his  favour  by practising fraud and misrepresentation on the appellant.      The respondent  resisted suit and contended that as the appellant  was  a  Railway  servant  residing  at  Pachperwa Railway Station  and as she was a childless widow she was no longer in  need of the suit house and, therefore, she agreed to sell  the same  to him on having accepted a consideration of Rs.2,500/-.      The learned Trial Judge after permitting the parties to lead  evidence,   both  oral  and  documentary,  and  on  an appreciation of  the same  came to  the conclusion  that the appellant had  failed to  establish her  case of  fraud  and misrepresentation on the part of the respondent and that the Sale Deed  was duly  executed by  the appellant in favour of the respondent. The suit was, therefore, dismissed. As noted earlier she  failed also  in appeal as well as in the second appeal.      Learned counsel  appearing for the appellant vehemently submitted that  the alleged  Sale Deed was a result of fraud and misrepresentation  on the  part of  the respondent. That she was  an  illiterate  harijan  lady  and  the  respondent misused the trust reposed by her on him and fraudulently got the document executed as the Sale Deed while she was all the while under  impression that  a will  was being  executed by her. He  submitted that  it is  true she  does not  deny her signature on  the document  but according  to him  she never executed a  Sale Deed  in favour  of the  respondent. It was next contended  that she  did not  receive any consideration from the  respondent and  the  appellate  court  has  simply conjectured about  the same  and which  conjecture has  been erroneously accepted  by the  High Court.  He also contended that the  respondent had  not examined  attesting witness to the document  and that the High Court was in error in taking the view  that proviso  to Section 68 of the Indian Evidence Act was  applicable to  the facts  of the  present case.  He lastly submitted  placing reliance on the additional grounds permitted to be raised by this Court while issuing notice on the Special Leave Petition as aforesaid, that the ground for cancellation of  the Sale  Deed was  in spirit  based on the defence of  non est  factum as  the appellant’s signature on the Sale  Deed was  never made  for the purpose of Sale Deed and consequently  the  transaction  was  void.  The  learned counsel for  the respondent  refuted these  contentions  and submitted that  all the courts below have concurrently found as a  matter  of  fact  the  that  appellant  had  willingly executed the  Sale Deed  and had  taken a  consideration  of Rs.2,500/- prior  to the  execution of  Sale Deed  and  that there was  no question of the transaction suffering from non est factum.

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    According to  us the appellant has made out no case for our interference  in this  appeal. It  may be  noted at  the outset that  all the  courts below  have concurrently  found that the  appellant had  on her own and without any fraud or misrepresentation on the part of the respondent had executed the  Sale  Deed  in  question.  Said  finding  is  based  on appreciation of evidence and is a pure finding of fact which is not  required to  be interfered  with in this appeal. The first appellate  court in  particular has  relied  upon  the evidence of  respondent D.W.1 and his witness Ambika Prasad, D.W.2 and another neighbour Om Prakash, D.W.3. The court has also found  that the  appellant had  herself applied  to the District Magistrate  for permission  to sell  the house  and thereafter the  Sale Deed  was executed. The appellate court has also noted that the version put forward by the appellant that she  was made  to understand that she was executing the will in  favour of her nephews, could not be accepted as her brother had  made no  effort to take any interest in getting the will  executed in  favour of  his sons and that when the respondent was  entrusted with  that task in 1975 as alleged by the  plaintiff, it  was strange  that her brother did not make any efforts in seeing to it that the respondent got the will  executed   accordingly  by   the   appellant,   though appellant’s brother  was a  school teacher  and was  not  an ignorant or  illiterate person.  These are  pure findings of fact which  remain well  supported by evidence on record. It must, therefore, be held that there was no misrepresentation or fraud  perpetrated by defendant-respondent in getting the Sale Deed executed by the appellant.      So far  as the  question of consideration is concerned, the first  appellate court as a final court of fact has held that as  the appellant  had herself permitted the respondent to stay  in her  house since  about three years prior to the suit and  as he  was well  known  to  her  there  was  every possibility of  the respondent having paid Rs.2,500/- to the appellant even  prior to the execution of the Sale Deed. The High Court  also was  not inclined to take any contrary view on this  question as  the learned  Single Judge  of the High Court noted  in the  impugned judgment  that even  though in para 12  of the  plaint it  is vaguely alleged that the Sale Deed was  without consideration,  no issue was framed by the court and no effort was made by the plaintiff to get such an issue framed and agitated.      So far  as the  contention that  the plaintiff  was  an illiterate harijan woman and was a childless widow and hence was like  a ’pardanashin’  lady goes,  it has  rightly  been rejected by the High Court by observing that she was already serving in  Railway and  there was nothing on record to show that she  was suffering  from any ignorance or illiteracy or mental deficiency  and  she  could  not  be  compared  to  a ’pardanashin’ lady.      So far  as the  applicability to the proviso to Section 68 is concerned, it must be noted that there was no occasion for the  respondent to  examine any attesting witness to the document in  question as  it was  a Sale  Deed  which  never required  any   attestation  and  even  if  some  "marginal" witnesses had  attested the  document the  document did  not attract Section 68 of the Evidence Act which in term applies to the  proof of execution of document required by law to be attested. It reads as under :      "68.  Proof  of  execution  of  document      required by  law to  be attested. - If a      document  is   required  by  law  to  be      attested,  it   shall  not  be  used  as      evidence until  shall  not  be  used  as

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    evidence until  one attesting witness at      least has been called for the purpose of      proving its  execution, if  there be  an      attesting witness  alive, and subject to      the process  of the Court and capable of      giving evidence:      Provided that  it shall not be necessary      to call an attesting witness in proof of      the execution of any document, not being      a will,  which has  been  registered  in      accordance with  the provisions  of  the      Indian Registration  Act,  1908  (16  of      1908),  unless   its  execution  by  the      person by  whom it purports to have been      executed is specifically denied." "Therefore, Section  68 would  not cover such a transaction. Hence there  would remain  no occasion to invoke the proviso to Section  68 with  a  view  to  finding  out  whether  the execution of  such a document was specifically denied by the adverse party  or not. Consequently all the main contentions canvassed before  the High  Court which  are repelled by the High Court cannot be said to be wrongly repelled.      Now remains the question of additional ground which was permitted by  this Court  while issuing  the notice in these proceedings. It  is of  course  true  that  such  additional ground was  permitted to be raised in support of the Special Leave Petition  from which  this appeal arises. However, the said contention  raises a  mixed question  of law  and fact, namely, whether  both the  parties were  ad idem  or not and whether the  appellant had put her signature on the document thinking that  it is  a will  and not a Sale Deed. This is a question which  is linked  up  with  the  intention  of  the executant for  which there  should be pleading and evidence. On this  aspect neither any pleading nor any evidence is put forward by  the appellant  in courts below. On the contrary, no such argument has been canvassed before the High Court or before the  first appellate  court which was the final court of facts.  So far  as the  judgment of  the first  appellate court is  concerned, it  has noted  that the  only point for determination in  the appeal was as to whether the Sale Deed has been got executed by the defendant in his favour through fraud and  misrepresentation as  alleged by  the  plaintiff- appellant. Save and except this point no other point appears to  have  been  urged  before  the  first  appellate  court. Consequently on  the facts as found on the record and in the light of  the evidence  as led  by the parties the aforesaid contention  covered  by  the  additional  ground  cannot  be effectively supported or made out by learned counsel for the appellant. Even  otherwise when  it  has  been  concurrently found by  all courts  below on  evidence on  record that the document was  executed as  a Sale Deed by the appellant, the aforesaid additional  ground pales  into insignificance. For all these  reasons there is no substance in this appeal. It, therefore,  fails   and  is  dismissed.  In  the  facts  and circumstances of  the case,  however, there will be no order as to costs.