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2008(2) JLJ 340
U.C. Maheshwari, J.
Maharani (Smt.) and others v. Krishna Kumar and others
First Appeal No.97 of 1988 (Jabalpur) : against the judgment and decree of District Judge, Sagar, passed in Civil suit No.5-A of 1997;
Decided on 4.4.2008.
Shri M.L. Jaiswal, learned semi or advocate, assisted by Ku. Annpuma Sharma learned appearing counsel for the appellants assailed the impugned judgment of the trial Court saying that it is unrebutted fact on record that the deceased plaintiff being 90 years old, illiterate widow was suffering from deafness with weak eyesight. In such premises, he argued that alleged sale-deeds and Karandanama were got executed from her by the respondents fraudulently and without giving any consideration to her. [Para 12
Held: It has already been revealed that the principal plaintiff being 90 years old illiterate widow was having deafness and weak eyesight. As per sale-deeds EX.D-1 to D-4, the mentioned consideration of any sale-deed was not paid in presence of the Registrar and the date, time and place of such payment are also not mentioned in the sale-deeds. In view of the aforesaid illiteracy and the weak physical condition of the principal plaintiff there was heavy burden on the respondents to prove that the aforesaid sale-deeds were got executed from her after paying due consideration mentioned in such documents, as they being purchases are the beneficiaries of such documents. In such premises they were also bound to prove that for what purpose the principal plaintiff was in need of the money in her later age, alongwith their sources from where they got the sum and the mode and manner with particulars that on which date and in whose presence the same was paid to principal plaintiff. In the absence of such evidence the questionable sale-deeds EX.D-1 to D-4 (P-5 to P-8) could not be held to be a bona fide transaction.
The respondents being beneficiaries of the aforesaid sale-deeds, looking to their relationship with the principal plaintiff, were bound to prove with all probabilities that the same were executed by the principal plaintiff after having satisfied with their averments and receiving the consideration mentioned in such documents. 1992(2) Vidhi Bhasvar 98 (SC) followed. AIR 1986 Orissa 53, AIR 2004 All.131 and AIR 2004 Pun. & Har. 315 relied on. AIR 1996 SC 761 and AIR 1968 All 224 distinguished. [Para 19 & 20
(2) Civil P.C., 1908 -- O.8 R.5 -- Evidence Act, 1872 -- S.58 -- averment of plaint -- not denied by defendants in written statement -- would be presumed to have been admitted. [Para 14
(3) Evidence Act, 1872 -- S.32(7) -- plaintiff died after filing the suit -- her averments in plaint as to assertion of her rights -- are relevant and admissible. AIR 1966 Pat.110 relied on. [Para 17
(4) Succession Act, 1925 -- S.63 -- sons got executed Will from their illiterate widow mother of 90 years -- also deaf and of weak eyesight -- thereby defeating interest of another son -- Will is not genuine.
The present appellants by taking advantage of the illiteracy and other physical weaknesses of the principal plaintiff got executed the aforesaid Will in their favour from her with intention to defeat the interest of the respondent No.1 and his family members in such property. Although, in support of the Will the attesting witness Bablu (PW3) and Durga Prasad (PW2) and its scribe Jageshwar Khare (PW6), the typist are examined but in above mentioned circumstances their testimonies do not appear to be reliable. I have not found any circumstance in the evidence led by the appellants showing that such Will was executed by the principal plaintiff after having satisfied regarding its averments. Therefore, it is held that the appellants have failed to prove the genuineness and the execution of the Will, the same did not give any right to the appellants exclusively in the property of the principal plaintiff. [Para 28
¼1½ lafonk vf/kfu;e] 1872 && /kkjk 19d rFkk 16 && laifÙk varj.k vf/kfu;e] 1882 && /kkjk 54 && foØsrk 90 o"kZ dh fo/kok efgyk && fuj{kd vkSj cf/kj] n`f"V nqcZy && mlds iq= ds iq= vkSj iRuh ds i{k esa foØ; && mi&jftLVªkj ds le{k dksbZ izfrQy lanÙk ugha && Øsrkx.k ij foØ;ksa dks ln~Hkkfodrk lkfcr djus dk vR;f/kd Hkkj gS && Hkkj mUeksfpr ugha fd;k x;k && foØ;&foys[k ln~Hkkfod ugha gS vkSj vfHk[kafMr fd, tkus ;ksX; gSA
vihykFkhZx.k dh vksj ls milatkr fo}ku dkmUlsy Jh ,e-,y- tk;loky] fo}ku T;s"B vf/koDrk us] ftudh lgk;rk dq- vUuiw.kkZ ‘kekZ dj jgh Fkha] fopkj.k U;k;ky; ds vkf{kIr fu.kZ; ij ;g dgrs gq, vk{ksi fd;k fd ;g vfHky[k ij v[kafMr rF; gS fd e`r oknh 90 o"khZ; o`)k Fkh] fuj{kj fo/kok Fkh rFkk cgjsiu vkSj nqcZy n`f"V ls xzLr FkhA bu vk/kkjksa ij mUgksaus cgl dh fd mlls vfHkdfFkr foØ;&foys[k vkSj dkjankukek izR;FkhZx.k us diViwoZd vkSj mls dksbZ izfrQy fn, fcuk fu"ikfnr djk, FksA ¼iSjk 12
vfHkfu/kkZfjr % ;g igys&gh izdV gks x;k gS fd eq[; oknh 90 o"khZ; fuj{kj fo/kok gksus ds dkj.k cf/kj vkSj nqcZy n`f"V okyh FkhA foØ;&foys[k izn‘kZ Mh&1 ls Mh&4 ds vuqlkj fdlh Hkh foØ;&foys[k esa mfYyf[kr izfrQy jftLVªkj ds le{k lanÙk ugha fd;k x;k Fkk rFkk ,sls lank; dk fnukad] le; vkSj LFkku Hkh foØ;&foys[kksa eass mfYyf[kr ugha gSA eq[; oknh dh iwoksZDr fuj{kjrk vkSj nqcZy ‘kkjhfjd n‘kk dh n`f"V ls izR;FkhZx.k ij ;g lkfcr djus dk Hkkj vR;f/kd Fkk fd iwoksZDr foØ;&foys[k mu nLrkostksa esa mfYyf[kr ns; izfrQy lanÙk djus ds i‘pkr~ mlls fu"ikfnr djk, x, Fks] D;ksafd Øsrk gksus ds dkj.k og mu nLrkostksa ds fgrkf/kdkjh FksA ,slh fLFkfr esa og ;g Hkh lkfcr djus dks vkc) Fks fd vk;q ds bl vafre iM+ko ij eq[; oknh dks fdl iz;kstu ds fy, /ku dh vko‘;drk Fkh] rFkk ;g Hkh fd fdu lzksrksa ls mUgsa og jkf‘k izkIr gqbZ rFkk ;g fd og eq[; oknh dks fdl <ax vkSj jhfr ls] bu fof‘kf‘V;ksa lfgr fd fdl fnukad dks vkSj fdldh mifLFkfr eas] lanÙk dh xbZA ,sls lk{; ds vHkko esa lafnX/k foØ;&foys[k izn‘kZ Mh&1 ls Mh&4 ¼ih&5 ls Mh&8½ ln~Hkkfod laO;ogkj vfHkfu/kkZfjr ugha fd, tk ldrsA
izR;FkhZx.k iwoksZDr foØ;&foys[k ds fgrkf/kdkjh gksus ds dkj.k] eq[; oknh ls mudh ukrsnkjh ns[krs gq,] leLr vf/klaHkkO;rkvksa lfgr ;g lkfcr djus dks vkc) Fks fd og eq[; oknh }kjk muesa fd, x, izdFkuksa ds ckjs esa lek/kku fd, tkus vkSj mu nLrkostksa esa mfYyf[kr izfrQy izkIr fd, tkus ds i‘pkr~ fu"ikfnr fd, x, FksA 1992¼2½ fof/k HkkLoj 98 ¼mPpre U;k-½ vuqlfjrA , vkb vkj 1986 mM+hlk 53] , vkb vkj 2004 byk- 131 rFkk , vkb vkj 2004 iatkc rFkk gfj;k.kk 315 voyafcrA , vkb vkj 1996 ,l lh 761 rFkk , vkb vkj 1968 byk- 224 izHksfnrA ¼iSjk 19 ,o 20
¼2½ flfoy izfØ;k lafgrk && vk-8 fu-5 && lk{; vf/kfu;e] 1972 && /kkjk 58 && okni= dk izdFku && izfroknhx.k }kjk fyf[kr dFku esa izR;k[;ku ugha fd;k x;k && Lohdkj fd, tkus dh mi/kkj.kk dh tk,xhA ¼iSjk 14
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 32¼7½ && okn Qkby djus ds i‘pkr~ oknh dh e`R;q && okni= es amlds vf/kdkjksa ds izR;k[;ku ds laca/k esa mlds izdFku && lqlaxr vkSj xzkg~; gSaA , vkb vkj 1966 iVuk 110 voyafcrA ¼iSjk 17
¼4½ mÙkjkf/kdkj vf/kfu;e 1925 && /kkjk 63 && iq=ksa us viuh 90 o"khZ; fuj{kj fo/kok ekrk ls foy fu"ikfnr djokbZ && cf/kj vkSj n`f"V Hkh nqcZy && foy }kjk ,d vU; iq= ds fgr dh gkfu && foy vlyh ugha gSA
izLrqr vihykFkhZx.k us eq[; oknh dh fuj{kjrk vkSj vU; ‘kkjhfjd nqcZyrkvksa dk Qk;nk mBkrs gq, bl laifÙk esa izR;FkhZ Ø-1 vkSj mlds dqVqac ds lnL;ksa ds fgr dh gkfu djus ds vk‘k; ls eq[; oknh ls vius i{k esa iwoksZDr foy fu"ikfnr djk yhA ;|fi foy ds leFku esa vuqizek.kd lk{kh ccyw ¼ok lk 3½ vkSj nqxkZizlkn ¼ok lk 2½ rFkk mlds fyfi tkxs‘oj [kjs ¼ok lk 6½] VkbfiLV dh ijh{kk dh xbZ gS ijarq Åij mfYyf[kr ifjfLFkfr;ksa esa mudk ifjlk{; voyacuh; izrhr ugha gksrkA eSaus vihykFkhZx.k }kjk is‘k fd, x, lk{; esa ,slh dksbZ ifjfLFkfr ugha ikbZ ftlls nf‘kZr gks fd ;g foy eq[; oknh }kjk mlds izdFkuksa ds laca/k esa viuk lek/kku djus ds i‘pkr~ fu"ikfnr dh xbZ FkhA vr%] vfHkfu/kkZfjr fd;k tkrk gS fd vihykFkhZx.k foy dh vlfy;r vkSj mldk fu"iknu lkfcr djus esa foQy jgs gSa] mlls vihykFkhZx.k dks eq[; oknh dh laifÙk esa dksbZ vuU; vf/kdkj ugha fn;k x;kA ¼iSjk 28
1. This appeal is directed by the appellants-plaintiffs under section 96 of the CPC being aggrieved by the judgment and decree dated 3rd February 1998 passed by the District Judge, Sagar in CO Suit No.5-A/97, dismissing their suit for declaration and perpetual injunction.
2. Hereinafter for brevity the principal plaintiff late Smt. Maharani is being said to be the "principle-plaintiff' while the other parties are being said to be the appellants and the respondents respectively.
3. The facts giving rise to this appeal in short are that the principal plaintiff filed a suit for declaration and injunction against the respondents for declaration and perpetual injunction contending that she being illiterate widow of 90 years is suffering from deafness with weak eyesight. She has three sons namely Harish Chandra, Gotiram (the appellants) and Krishna Kumar (the respondent No.1), and one daughter the respondent No.7. All the sons are residing separately. As per further averments of the plaint she is holding the agricultural land as Bhumiswami described in para 3A, B and C(1) and C(2) in the plaint at village Mangela Jamanapurparasia and village Sagoni respectively. On account of her old age she was managing the aforesaid land of Jamanapurparasia through her son Gotiram while the land of Mangela through other son Harish Chandra. On dated 14.11.1991 she was at the residence of Gotiram while Gotiram had gone to village Rahali. In the mid night of the aforesaid date her son Krishna Kumar -- the respondent No.1 accompanied with his brother-in-law Gopal Prasad and sons Devendra Kumar, Surendra, the respondent No.3 and 4 came there and told her that they have brought the bank official for taking her thumb impression on some papers to withdraw the deposited sum of his father, the husband of the principal-plaintiff, as he is in need of the money to marry his daughter and they took her to the residence of the respondent No.1 where some persons were already present. In their presence without explaining anything her thumb impression were taken on some papers; She put the same under the aforesaid assurances for withdrawing the money of her husband from the bank. Thereafter, the respondent No.1 again dropped her at the residence of the appellant No.2.
4. Subsequently on dated 3.12.1991 Harish Chand -- the appellant No.1 went to Tahsil office Deori for some work where he came to know that the respondent No.1 has got executed some sale-deeds from the principal-plaintiff regarding her land, then on returning home he asked the principal plaintiff in this regard. She was shocked and denied the execution of such documents describing the above mentioned event in which she put her thumb on some papers. She directed him to inquire and collect all information in this regard, on which the appellant No.1 went to Sub-Registrar Office and on verification it was revealed that the respondents No.1 to 5 with the assistance of some other persons got executed the following registered deeds from her or on her behalf:
"(a) Sale-deed dated 14.11.1991, in respect of the land of village Mangela bearing survey No.18l to 183, 184 and 193 area 0.12, 0.15, 0.23 and 0.02 hectares respectively by showing the payment of consideration of Rs.65,000/- got executed in favour of Smt. Radharani, the respondent No.2, the wife of respondent No.1.
(b) The second sale-deed dated 14.11.1991, in respect of the land of village Jamunapurparasia bearing survey No.294 and 370 area 0.83 and 0.25 hectares respectively by showing the payment of consideration Rs.33,000/-, got executed in favour of Devendra Kumar, the respondent No.3, the son ofrespondent No. 1.
(c) The third sale-deed dated 14.11.1991 in respect of the land of village Sagoni bearing survey No.228, 280 and.319 area 2.19, 1.24 and 2.99 hectares by showing the payment of consideration Rs.1,30,0001 got executed in favour of Surendra Kumar, respondent No.4, the son of the respondent No.1.
(d) The fourth sale-deed dated 22.11.1991 in respe
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