The burden of proof regarding undue influence lies with the defendant when the plaintiff is an illiterate villager, but the defendant successfully discharged this burden, validating the sale deed.

JUDGMENT :

Kshitij Shailendra, J.

1. Heard Shri Arun Kumar Singh, learned counsel for the appellant and Shri V.K. Ojha, Advocte holding brief of Shri Mukesh Kumar, learned counsel for the respondents.

2. The instant appeal arises out of a suit for cancellation of two registered sale deeds dated 28.11.1989 and 09.01.1991.

3. The first sale deed was executed by plaintiff in favour of the defendant no. 1 whereas, the second sale deed was executed by the defendant no. 1 in favour of defendant no. 2.

4. The plaint case was that execution of sale deed was a result of fraud in as much as on the date of execution of the sale deed, the defendant No. 1 had taken the plaintiff to the Registry office for the purposes of execution of a gift deed in favour of appellant's daughter Seema and under the garb of execution of the said gift deed, the sale deed was also got executed. Plaintiff alleged him as an illiterate rustic villager and also stated that no sale consideration was paid by the vendee to the vendor. The defence was that both the documents were lawfully executed and no fraud was committed with the plaintiff.

5. The trial court decreed the suit observing that there was contradiction in the statements of witnesses as regards payment of sale consideration. It also observed that considering the family condition of the plaintiff as well as the relationship between the parties to the lis, it could not be believed that plaintiff could execute a sale deed in favour of the defendant and since title did not pass to the defendant no. 1 subsequent sale made by him in favour of defendant no. 2 was also invalid.

6. The first appellate court reversed the decision of the trial court and held execution of the sale deed as lawful.

7. The instant second appeal was admitted on the following two substantial questions of law:-

1. Whether the court of first appeal had approached the matter from the right angle without looking to the fact that the plaintiff was an illiterate villager and defendant no. 1 was in a position to exercise undue influence on him and as such the burden of proof regarding the passing of consideration lay on the defendant?

2. Whether the first appellate court had met the reasons advanced by the Trial Judge in reversing the decree of the Trial Judge?

8. Learned counsel for the appellant submits that as the plaintiff appellant was a rustic villager and an illiterate person, the burden to prove due execution of sale deed would lay upon the defendant-respondent which was not discharged in the present case and therefore, the first question of law should be answered in favour of the appellant. He also submits that since, sale consideration was admittedly not paid before the Sub Registrar, oral testimony was to be looked into and there was contradiction in the statements of D.W. 1 and D.W. 2 as regards payment of sale consideration and therefore, the trial court rightly declared the sale deed as void. He further submits that no point for determination was framed by the first appellate court and findings of the trial court having not been reversed, the judgment is unsustainable.

9. Per contra, it is contended from the respondent side that witnesses to the sale deed and the gift deed were the same and even scribe was produced as D.W. 4. Learned counsel further submits that though sale consideration was not paid before the Sub Registrar, the alleged contradiction in the statements of D.W. 1 and D.W. 2 was only with regard to the exact time of payment of sale consideration and whereas one defence witness stated payment having been made at 6.00 am, the other stated payment having been made at 7.00 am and such a minor contradiction not being fatal to the defence, the first appellate court has rightly dismissed the Suit.

10. Having heard the learned counsel for the parties, I find that if the plea of illiterate and rustic villager is examined, certainly the burden to establish due execution of sale deed would lay upon the defendant. However, in order to suc