THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.249 of 2004
JUDGMENT:
This Second Appeal is filed against the Judgment and Decree dated 30.01.2004 in A.S.No.180 of 2003 passed by the learned XIII - Additional Chief Judge (F.T.C), City Civil Court, Hyderabad in which the Judgment and decree dated 24.01.2003 in O.S.No.1270 of 2001 passed by the learned VI - Junior Civil Judge, City Civil Court, Hyderabad was set aside.
2. One Qamarunnisa Begum/respondent herein represented by her General Power of Attorney Niyamat filed a suit in O.S.No.1270 of 2001 against her sister's daughter Ghousia Bano/appellant herein for cancellation of the sale deed dated 31.07.1998 and for recovery of possession of the suit schedule property, but the suit was dismissed by the trial Court, against which she preferred an appeal before the first appellate Court and the same was decided in her favour. Aggrieved by the said Judgment, respondent therein preferred the present appeal.
3. The learned Counsel for the appellant/defendant raised the following substantial questions of law:
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a) Whether the initial burden of proving case is on the plaintiff?
b) Whether the General Power of Attorney can be permitted to represent as party as witness?
c) Whether presumption under Section 114(g) of the Indian Evidence Act with regard to drawing of adverse inference when party abstains from entering the witness box?
d) Whether the statement made before independent authority i.e., Registrar amounts to admission under Section 17 of the Indian Evidence Act and binds the plaintiff under Section 21 of the Evidence Act?
e) Whether the admission of a party to an attested document is sufficient proof of execution under Section 70 of the Indian Evidence Act?
f) Whether other evidence is in admissible under Section 91 and 92 of the Evidence Act as against admission made before the independent Government Officer i.e., Registrar?
g) Whether in capacity disability for executing the earlier document will be equally applies to subsequent execution of other documents.
h) Whether onus shifts on the plaintiff if the defendant proves that consideration passed on and execution of registered sale deed?
i) Whether facts which are in the knowledge of person, the burden of proving the same would be upon the person under Section 106 of the Evidence Act?
4. The brief facts of the case are that respondent/plaintiff was blind since the age of 2½ or 3 years and later she also became deaf and she was residing with her sister in Parande village, Maharashtra. She executed Special Power of Attorney to her sister's husband under Ex.A1 and thus he filed suit on her behalf against the appellant/defendant. He stated that 3 respondent/plaintiff is the absolute owner of the house property bearing No.17-8-533/35 admeasuring 100 Sq.yrds, situated at Bagh-E-Jahan Ara, Chawani Nade Ali Baig, Hyderabad. She purchased the said property from one Hajra Bee through registered sale deed vide document No.4276 of 1981 dated 02.12.1981. She purchased the said property from her personal savings and the plaintiff's father and grandmother were residing in the said house along with the respondent/plaintiff, but from the past 9 to 10 years, she was unable to hear properly and became deaf, as such she was residing with her sister in Paranda Village, Maharashtra. Her father was carrying cloth business at Hyderabad and he expired on 07.06.1998 and his 'Chehellum' (40th day ceremony) was performed in the suit schedule property and the respondent/plaintiff also attended for the same.
5. One of the sisters of the respondent/plaintiff by name Hameeda Begum requested the respondent/plaintiff that she was in crisis and has no shelter, as such respondent/plaintiff permitted her to stay in her home i.e., suit schedule property. After the 40th day ceremony, when she intended to go to Paranda village, her sister Hameeda Begum along with her daughter/appellant and her husband requested her to stay in 4 the said house and assured that they will look after her well and also stated that she can get pension from the Government, as the Government granting pension to the blind persons, as such she decided to stay in Hyderabad. The appellant/defendant and her husband took her thumb impressions on various papers and also obtained her thumb impressions in Collector Office and stated that pension amount will be credited to her account within short period. Later there was change in their attitude and they started ill-treating her and also necked her out, as such she came to Paranda village and narrated all the facts to her sister and brother-in-law who was the Power of Attorney holder and on enquiry, he came to know about the execution of the sale deed by the respondent/plaintiff in favour of appellant/defendant on 31.07.1998. He stated that respondent/plaintiff never intended to sell the property and she has not executed any sale deed in favour of the appellant/defendant, but the defendant along with her husband taking undue advantage of her blindness and also the hearing impairment played fraud upon her and took her thumb impressions and also took her to the Sub-Registrar's Office by falsely stating it as Collector's Office and got executed the registered sale deed in their favour. The Power of Attorney holder obtained the certified copy of the sale deed and got 5 issued legal notice dated 28.11.2000, but it was returned by the appellant/defendant, as such he filed the suit for cancellation of the sale deed representing the respondent/plaintiff.
6. In the written statement filed by D.W.1, she denied all the material allegations and stated that respondent/plaintiff was in need of money and thus she sold the property for total sale consideration of Rs.1,00,000/- to the appellant/defendant through a registered sale deed dated 31.07.1998. The respondent/plaintiff received the amount with her free will and consent and registered the sale deed in the Office of the Sub-Registrar and also delivered the possession on the same day, as such the question of threatening her does not arise. From the date of possession, appellant/defendant was residing in the said house and the suit was filed by the respondent/plaintiff only at the instance of the G.P.A holder Nimath with a malafide intention to harass her. She further stated that respondent/plaintiff received the total sale consideration at time of registration of the sale deed and thus requested the Court to dismiss the suit.
7. The G.P.A holder of the plaintiff was examined as P.W.1 and marked Exs.A1 to A10 on behalf of the plaintiff. The 6 defendant was examined herself as D.W.1 and marked Ex.B1 on her behalf, she also got examined attestor as D.W.2. The trial Court considering the oral and documentary evidence on record, dismissed the suit.
8. The appellant/defendant mainly relied upon the Judgment of the Hon'ble Apex Court, in the case of Vidhyadhar Vs. Manik Rao and another, 1 in which it was held that if a party to a suit abstaining from entering witness box adverse inference against her would arise, in that case suit set up by her is not correct. She also contended that respondent/plaintiff has not entered into witness box and she is the best person to speak about the fraud played by the appellant/defendant and she has personal knowledge about the execution of the registered sale deed. It was also stated that D.W.2 stated regarding the payment of amount and execution of the sale deed and he supported the version of D.W.1. The appellant/defendant stated that she obtained Rs.80,000/- from her husband, who was a businessman and the balance of Rs.20,000/- by selling away her jewelry and thus she has financial capacity to pay the amount and with the said observation, the suit was dismissed. Aggrieved by the said Judgment, respondent/plaintiff preferred 1 1999(3) SCC 102 7 an appeal before the first appellate Court. The first appellate Court held that respondent/plaintiff was blind and deaf, as such merely because she has not deposed as P.W.1, adverse inference cannot be taken against her. It was also observed that D.W.1 has not proved her financial capacity to pay the amount of Rs.1,00,000/- and further stated that D.W.2 in his chief affidavit stated that amount was paid in the house, whereas D.W.1 stated that it was paid in the sub-registrar's office. Admittedly, it was not paid before the Sub-registrar. As the respondent/plaintiff was blind and deaf, the contents of the sale deed were never read over to her and there was no endorsement to that effect. The main contention of the respondent/plaintiff is that appellant/defendant along with her husband and mother obtained her thumb impressions on various papers on the pretext of getting pension from the Government and they also took her to the Collector's Office. As she is blind, she cannot know whether it is Collector's Office or Sub-Registrar's Office or M.R.O Office. The Sub-Registrar has not put any question to the respondent/plaintiff at the time of registration and it was not ensured whether she executed the sale deed voluntarily without any coercion and undue influence. Moreover, D.W.1 in her evidence stated that at the time of execution of the registered sale deed her aunties were also present, but none of them 8 present before the Court and none of them appeared along with the respondent/plaintiff before the Sub-Registrar Office. D.W.2 stated that he along with respondent/plaintiff and appellant/defendant went to the office of the Sub-Registrar. Though D.W.1 stated that D.W.2 is the friend of her husband, he clearly stated that he was residing in the same locality and he was not the friend of the husband of D.W.1. When the husband of D.W.1 requested him to attest in the Sub-Registrar's Office, he went along with them on that day.
9. Admittedly, the suit schedule property is in the name of respondent/plaintiff and D.W.1 filed Ex.B1 link document to show that the suit property was purchased by the respondent/plaintiff way back in the year 1981 and the sale deed was executed by Hajra Bee on 02.12.1981 vide document No.4276 of 1981. It was stated in the plaint that respondent/plaintiff was residing with her sister in Paranda Village, Maharashtra. Her father and grandmother were residing in the suit property. After expiry of her father, when she went to the 40 days ceremony of her father, appellant/defendant, appellant's husband and mother insisted her to stay in the same house along with them and on the pretext of getting pension, obtained her thumb impressions on various papers 9 and also after two weeks they obtained her thumb impressions in the office of the Sub-Registrar and thus got registered sale deed without her knowledge and consent. Later, they necked her out and when she informed the said facts to the Special Power of Attorney holder and to her sister at Maharashtra, he enquired about the facts and came to know about the registration of the sale deed and obtained the certified copy of the sale deed and got issued legal notice to the appellant/defendant, but it was returned, as such he filed suit for cancellation of the sale deed.
10. The contention of the appellant/defendant is that initial burden is on the respondent/plaintiff to prove the execution of Ex.A2 and thus onus shifts on the appellant/defendant, but in this case, the respondent/plaintiff was blind and deaf and her thumb impressions were obtained by misrepresentation, as such she got filed suit through G.P.A holder and thus the first appellate Court rightly held that merely because she has not entered into the witness box, adverse inference cannot be taken against her. It was also held that D.W.1 failed to prove her financial capacity. The respondent/plaintiff stated that she has no necessity to sell the property, but the appellant/defendant contended that she was residing in Maharashtra since long 10 time, as such she intended to dispose of the property at Hyderabad and offered to sell the same. Admittedly, at the time of execution of the sale deed except D.W.1 and her husband no one else present on behalf of the respondent/plaintiff and it creates doubt and suspicion regarding the execution of the registered sale deed by the respondent/plaintiff voluntarily with free will and consent. Immediately after the death of her father, it was got executed. Even when she was taken to the office of the Sub-Registrar for registration of the document, no questions were put by the Sub-Registrar to the respondent/plaintiff even knowing pretty well that she was blind and deaf. The contents of the sale deed were not read over to her and no such endorsement was made and even the registered sale deed was not filed by D.W.1 before the trial Court for the reasons best known to her. The G.P.A holder obtained the certified copy and filed the same under Ex.A2. Regarding the payment of sale consideration, there are discrepancies in the evidence of D.Ws.1 and 2. D.W2 stated that amount was paid in the said house i.e., suit schedule property, whereas, D.W.1 stated that amount was paid in the office of the Sub-Registrar in the presence of two witnesses and the said fact was not stated by her in the written statement at the earliest point of time and no receipt was executed by respondent/plaintiff in favour of D.W.1 on receiving 11 the sale consideration. The first appellate Court rightly discussed all the points in detail and set aside the Judgment of the trial Court. This Court finds no reason to interfere with the Judgment of the first appellate Court. The points raised in the second appeal were already dealt with in detail in the Judgment of the first appellate Court and thus this Court finds that it is just and reasonable to dismiss the present appeal.
11. In the result, the second appeal is dismissed, confirming the Judgment and decree dated 30.01.2004 passed by the first appellate Court in A.S.No.180 of 2003, in which the Judgment and decree dated 24.01.2003 passed by the trial Court in O.S.No.1270 of 2001, was set aside. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 27.09.2023 tri 12 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA SECOND APPEAL No.249 of 2004 DATE: 27.09.2023 TRI