The burden of proof in establishing the intention of the parties in a property transfer rests on the party asserting the lack of intention, and failure to discharge this burden can lead to dismissal of the claim.

JUDGMENT

Alok Aradhe, J.

1. This appeal is by the defendants, which was admitted by a Bench of this Court on the following substantial questions of law:--

(1) Whether the finding of the First Appellate Court reversing the finding of the Trial Court that registered sale-deeds, dated 20-2-1986 (Exhs. P-1 and P-2) were obtained by fraud by the plaintiff, is highly perverse and unreasonable?

(2) Whether the two registered sale-deeds mentioned above were obtained by the plaintiffs from Smt. Ramdevi Bai by exercising undue influence and fraud and these were sham and bogus documents?

The facts, giving rise to filing of the appeal, briefly stated, are that the plaintiffs who are related to each other as husband and wife, filed the suit inter alia on the ground that the defendants are the members of their family. However, the partition had taken place amongst them about forty to forty-five years ago. It was further pleaded that the defendant No. 1, vide registered sale-deeds, dated 20-2-1986 (Exhs. P-1 and P-2) sold the suit lands for consideration of Rs. 10,000/- and Rs. 30,000/- respectively to the plaintiffs and handed over the possession of the suit lands. On the basis of the aforesaid sale-deeds, the names of the plaintiffs were recorded in the revenue record by Tehsildar vide order dated 19-7-1988. However, on 13-6-1993, the defendants threatened the plaintiffs with dispossession. Accordingly, the plaintiffs filed a suit seeking injunction. However, after dismissal of the application for grant of temporary injunction, the defendants forcibly took over the possession of the suit lands. Thereafter, by way of amendment, the plaintiffs incorporated the relief of declaration of title, possession and mesne profit.

2. The defendants filed the written statement in which execution of the sale-deeds dated 20-2-1986 was denied and it was pointed out that the defendant No. 1 had leased out the land in the year 1984-85 to the plaintiff No. 2. However, the plaintiff No. 2 fraudulently got the thumb impression of the defendant No. 1 on the sale-deeds on the pretext that the documents pertain to lease. It was further pleaded that the sale-deeds (Exhs. P-1 and P-2) are forged documents and the order of mutation in favour of the plaintiffs has been set aside by the Sub-Divisional Officer and the defendant No. 1 is in possession of the suit lands as owner thereof.

3. The Trial Court vide judgment and decree dated 20-1-2000 inter alia held that though the defendant No. 1 has admitted her thumb impression on the documents (Exhs. P-1 and P-2) yet she had stated in her evidence that she put her thumb impression on the documents under impression that the said documents pertain to lease. It was further held that the burden was on the plaintiffs to prove the execution of the sale-deeds, i.e., Exhs. P-1 and P-2, however, the plaintiffs failed to discharge the same. The Trial Court also held that the witnesses to the sale-deeds, namely, Genda Lal and Nand Kishore were not examined as they are sons of the plaintiffs and since the documents (Exhs. P-1 and P-2) are ab initio void, therefore, it is not necessary for the defendant No. 1 to seek cancellation of the same. It was also found that the defendants were in possession of the suit lands since 1987 and, therefore, no injunction can be granted in favour of the plaintiffs; Accordingly, the suit filed by the plaintiffs was dismissed.

4. The Lower Appellate Court vide judgment and decree dated 7-12-2000 inter alia, held that the sale-deeds (Exhs. P-1 and P-2) are registered documents. The defendant No. 1 admitted her thumb impression on the aforesaid documents and the burden to prove the plea of fraud is on the person who pleads the same. It was further held that though the defendant No. 1 had initially filed the suit seeking cancellation of the documents (Exhs. P-1 and P-2) however, the aforesaid suit was dismissed by the Trial Court on the ground that the reliefs claimed in the suit are beyond pecuniary jurisdiction