Vidhyawati vs Jia Lal And Ors.
2014 Latest Caselaw 2163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Case :- SECOND APPEAL No. - 85 of 2014
 

 
Appellant :- Vidhyawati
 
Respondent :- Jia Lal And Ors.
 
Counsel for Appellant :- Amol Kumar,Ashutosh Sharma
 
Counsel for Respondent :- Rajendra Pratap Singh
 
And 
 
Case :- SECOND APPEAL No. - 88 of 2014
 

 
Appellant :- Smt. Sabhapati Devi
 
Respondent :- Zia Lal & Others
 
Counsel for Appellant :- Dr. Ravi Kumar Mishra
 
Counsel for Respondent :- R.P. Maurya,R.K. Srivastava
 

 
Hon'ble Sudhir Kumar Saxena,J.

1. Above mentioned appeals filed under Section 100 CPC are directed against the judgment and decree dated 25.11.2013 passed by Sri Bhoopendra Sahai, Additional District Judge, Faizabad dismissing the Civil Appeal No. 121 of 2010 directed against the judgment and decree dated 17.7.2010 whereby Additional Civil Judge (S.D.), Faizabad decreed the Original Suit No. 224 of 1986.

2. Both the appeals are directed against the same judgment and decree, hence they are being disposed of by a common judgment.

3. Facts, in brief, are that Balli filed Regular Suit No. 224 of 1986 for cancellation of sale-deed dated 21.12.1985 on the ground that he never executed any sale-deed as he had no need of executing the sale-deed which is liable to be cancelled. It was alleged in the plaint that plaintiff is owner of plot nos. 316, 329 and 872. In plot no. 316, plaintiff Balli had built five shops, out of which one was given to Smt. Vidyawati, defendant, who was tenant at the rate of Rs. 100/- per month. Rest shops were given to other tenants. Plot No. 329 was divided into four parts and it was given to four persons. Sale-deed of part of this plot has been executed in favour of one of them namely Smt. Baddarunisha wife of Abdul Qayoom. He also owns a plot situated in village Jalalpur which was being used for agricultural purposes. On 20.7.1986, his nephew (son of sister) told that defendant has been claiming right on the basis of sale-deed whereafter plaintiff made enquiry from registry office, Jalalpur and then found that some sale-deed has been executed on his behalf in favour of Vidyawati and ex parte mutation was also got done. Objection was raised before the revenue court. Plaintiff being 65 years old is a rustic villager. Plaintiff used to visit the shop of Vidyawati frequently whose husband is also a very cunning person who used to offer wine to the plaintiff . He also used to drop the plaintiff at his house whenever plaintiff remained under the influence of liquor. It appears that he obtained signature on some document i.e. alleged sale-deed in an intoxicated state. Plaintiff never visited the office of Sub-Registrar and never executed any sale-deed at his house.

4. Smt. Vidyawati in written-statement denied the plaint allegations and stated that sale-deed was executed wilfully in presence of two witnesses. Since during pendency of the suit and injunction order, property was transferred in favour of Smt. Sabhapati Devi wife of Sabhajeet Upadhyay she was also impleaded as defendant no.2. She also denied the plaint allegations.

5. On the pleadings of the parties, following issues were framed by the trial court:

१. क्या तथाकथित विक्रय-पत्र दिनांकित २१.१२.1985 वादपत्र में कथित कारणों से निरस्त किये जाने योग्य है ?

२. क्या वादग्रस्त संपत्ति पर कथित निर्माणात विक्रयपत्र के पश्चातवर्ती अवधि में निर्मित हुए ? यदि हाँ, तो प्रभाव ?

३. क्या वाद अल्प-मूल्यांकित है और अदा किया गया न्याय-शुल्क अपर्याप्त है ?

४. वादी किस उपशम को पाने का अधिकारी है ?

५. क्या वाद के आलम्बन-काल के दौरान प्रतिवादी सं- १ द्वारा प्रतिवादी सं- २ के पक्ष में निष्पादित बैनामा दिनांकित ४.१२.१९९६, संशोधित वादपत्र के कथनानुसार निरस्त किये जाने योग्य है ?

6. Trial court came to the conclusion that neither any consideration was paid nor any sale-deed was executed by plaintiff. Suspicious circumstances shrouded the transaction. Consequently, trial court decreed the suit and cancelled the sale-deed. Appeal preferred against the said judgment and decree was also dismissed vide judgment and decree dated 25.11.2013. Both the judgments and decree have been challenged in this Court by means of present second appeals. Second Appeal No. 85 of 2014 has been filed by Vidyawati (defendant no.1) and Second Appeal No. 88 of 2014 has been filed by Smt. Sabhapati Devi, subsequent purchaser (defendant no.2).

7. I have heard Sri Amol Kumar and Sri R.P.Misra for appellants and Sri R.P.Singh for respondents.

8. Sri Amol Kumar, learned counsel for appellant has placed following substantial questions of law for determination of appeal:-

"(a) Whether the burden of proof can be shifted upon the Appellant/Defendant merely because Late Balli was uneducated and illiterate man, who executed the alleged sale-deed dated 21.12.1985 in favour of the Appellant/Defendant.

(b) Whether the alleged sale-deed dated 21.12.1985 can be cancelled by the Court below on the ground that the witnesses to the sale-deed are not the local residents of the village.

(C) Whether the Learned Courts below can draw an adverse inference against the Appellant/Defendant merely on the ground that the consideration of Rs. 40,000/- was paid to Late Balli (Prosecution Witness 1st) by the Appellant/Defendant, three-four days prior to the execution of the sale deed, whereas, in her cross-examination the Appellant/Defendant had stated that the consideration amount was given 10 days before the alleged deed was written.

(d) Whether, both the Learned Courts below had ignored the settled preposition of law regarding the assumption of the genuineness of the document."

It may be mentioned here that sale-deed has not been cancelled merely on the grounds raised above but taking holistic view in the matter courts below observed that circumstances were speaking loudly that transaction was sham, not bona fide and was without consideration. For arriving at this finding, the circumstances mentioned in the above substantial questions of law have been considered. Civil suit is always decided on preponderance of probabilities.

9. Plaintiffs' case is that he had three properties, one whereof had five shops. Defendant Vidyawati was tenant in one shop thereof at the rate of Rs. 100/- per month.

10. In the written-statement, Vidyawati stated that she had constructed the shop, sale-deed is said to be executed in year 1985, as such Vidyawati had no occasion to construct the shop before the alleged sale. However, documentary evidence on record shows that litigation with regard to the shop of one of the tenants was going on in civil court long before the execution of sale-deed. This is a circumstance that goes against the defendant.

11. Defendant has also denied in her written-statement that after division of plot no. 329, one part was sold to Smt. Baddarunisha. The relevant part of written-statement is being reproduced below:-

"जहाँ तक भूमि न० ३१६ व ३२९ पर दुकाने व मकानो सवाल है सभी दुकानो व मकानो को उत्तरदाता प्रतिवादी ने बनवाया है और यदि यह मान भी लिया जाए कि उत्तरदाता प्रतिवादी ने प्रश्नगत दुकानो व मकानो को नहीं बनवाया है उस दशा में भूमि न० ३१६ व ३२९ के बैनामे के समय यदि निर्माण उस पर उपस्थित थे और उनका वर्णन बैनामे में नहीं किया गया उस दशा में ट्रांसफर ऑफ़ प्रॉपर्टी एक्ट क़ी धारा ८ के अंतर्गत यह माना जायेगा कि भूमि न० ३१६ व ३२९ के बैनामे के साथ उस पर स्थित सभी निर्माण स्थानांतरित हो गए ...."

12. The above sweeping averment reflects inherent falsity and weakness of the defence which is also a suspicious circumstance.

13. In para 22 of the written-statement, defendant states that she got constructed the shops and remaining shops have been let out by her. She further goes on to say that even if it is assumed that construction was made by plaintiffs, then too entire property stood transferred. Relevant part of the written-statement is being reproduced below:-

" ............... दुकानो का निर्माण कराया और उसमें एक में स्वयं उत्तरदाता प्रतिवादिनी रह रही है और बकिया किरायेदारों को दिया है I यदि प्रश्नगत निर्माण बैनामा के समय होता तो वादी उस निर्माण को बैनामे में अवश्य दर्शाता I निर्माण का बैनामे में न दर्शाना इस बात का सबूत है कि निर्माण बैनामे के बाद उत्तरदाता प्रतिवादी ने बनवाया है यदि यह मान भी लिया जाए कि निर्माण वादी का है उस दशा में भी प्रश्नगत बैनामे के आधार पर प्रतिवादी उत्तरदाता भूमि व निर्माण दोनों का स्वामी हो गया है I उत्तरदाता प्रतिवादी ने किरायेदारों को प्रश्नगत दुकानों में रखा है, परन्तु वादी ने उन्हें भड़का दिया है और अपने में मिला लिया है, एवं मिलाकर किराया उत्तरदाता प्रतिवादी को देने से मना कर दिया है, जिसकी नोटिस उत्तरदाता प्रतिवादी द्वारा सम्बंधित किरायेदारों को दी जा चुकी है I "

Similar defence has been taken with respect to plot no. 329. Lastly, she stated that tenants have colluded with the plaintiffs and they are supporting him.

14. In the statement given by Balli he stated that defendant was tenant at the rate of Rs. 100/- per month and in the remaining shops, Ramesh Pandey and Ram Milan etc. were tenants and paying rent. He also stated that in plot no. 329, a part has been sold to Baddarunisha. He denied any acquaintance with Brijbhan and Aniruddh, marginal witnesses, who do not belong to plaintiffs' village. He further stated that shops have been continuing for last 20 years. Five shops were constructed 20 years back and two other were constructed later on. Suit in respect of one shop was filed in year 1981 before Munsif, Akbarpur. Part of the property was also given to Baddarunisha 15 years ago. Property which is allegedly sold under the sale-deed would cost more than Rs. 20 lacs. In the cross-examination, he stated that he used to take liquor with Namkeen at the shop of Vidyawati frequently. He always paid for the same. The date on which sale-deed is said to have been executed liquor was bought from the shop of Pawan Kumar by the husband of Vidyawati. It is stated that shop was let out to Vidyawati 13-14 years ago, he also filed a suit for the arrears of rent before Judge of Small Causes Court. There is no suggestion in the cross-examination that shops were not constructed by him and let out to the tenants. There is no suggestion with regard to the sale-deed executed in favour of Baddarunisha. There is also no suggestion that plaintiff knew the marginal witnesses.

15. Vidyawati in her statement said that sale-deed was executed on 21.12.1985 and on same day registration was done. For this purpose, a sum of Rs. 40,000/- was paid before the execution of the sale-deed. Ghirau Lal was scribe and Brijbhan and Aniruddh were marginal witnesses. Execution was done while sitting on a cot (Charpoy). She further stated that Balli took the Registrar from Akbarpur. In the cross-examination, she stated that plaintiff had two houses- one is close to house of Zaheer while another house is a thatch covered structure wherein Registrar is said to have accepted the document. Height of Walls below thatch was 3-1/2 hands (Haath) (approx. 5 ft.) having one door. Regarding tenanted shops, it was stated that shops were constructed in year 1985. She admitted that Balli was unwell in December, 1985. Consideration was said to have been paid before execution of the deed in presence of Sabhapati and Bindeshwari Mishra, both belonging to different village. She had given money to Bindeshwari who, in turn gave to Balli.

On page 5 of the cross-examination, she stated that she had called the marginal witnesses. Deed was written on spot and not in Akbarpur. She did not call any witness from Jalalpur, as nobody from village was known to her.

16. Brijbhan marginal witness is said to be High School pass but he put thumb-impression as his hand was injured. He further stated in his statement that since Balli was issue-less, for religious purpose, he sold the entire property to Vidyawati. According to him, Balli had asked him to witness the transaction.

17. According to defendant, she knew the marginal witnesses and she had called both the witnesses while according to Brijbhan, plaintiff Balli had called him.

18. Aniruddh another marginal witness was not examined. Nobody was examined from the Registration Office.

19. Sabhapati Dubey and Bindeshwari Misra in whose presence money is said to have been given have not been examined. There is nothing on record to establish that consideration was paid. Brijbhan is said to have put thumb-impression although he is literate.

20. Defence of Vidyawati has already been discussed above.

21. Both the courts have recorded concurrent findings of fact as such detailed discussion of evidence was not necessary but feeling persuaded by submission of Sri Amol Kumar, evidence too has been analysed and discussed. By one sale-deed entire property is said to be sold by plaintiff Balli in favour of Vidyawati for Rs. 40,000/- which contained 3 plots, one being agricultural having area more than 3 bighas and another having four parts and third one having 5 shops. Sale-deed includes the property which was already sold to Badrunisha long back.

22. In the statement of Vidyawati, Balli was said to be quite well who brought the Registrar to his thatched room where deed was written, while in cross-examination he was not well. If Balli was fit enough, there was no occasion for him to take Registrar to his house to execute the sale-deed at about 8.00 P.M. Value of the property is said to be more than 20 lacs which is allegedly sold for Rs. 40,000/-. Moreover evidence regarding payment is also unavailable on record. Admittedly, plaintiff was old, illiterate and issue-less. In these circumstances, transaction has rightly been disbelieved. Defendant could not show the bank account. No such case was pleaded in the written-statement. Nothing has been paid in front of Registrar and eye witnesses of payment have not been examined. Written-statement and statement of Vidyawati are not believable and have been rightly discarded.

23. From the above, it is apparent that details of the property mentioned in the sale-deed and the actual property are at variance. No witness has been examined to prove the payment of consideration although money is said to have been given in presence of two witnesses. Neither registering officer nor any other person from his office has been examined. Of the two witnesses, one marginal witness was examined who although literate puts thumb-impression and his testimony is found to be full of inconsistencies. Highly valued property is said to be transferred for meagre amount. In these circumstances, courts below have taken a view that transaction is vitiated on account of fraud and undue influence.

24. Taking into consideration all these aspects, this Court is of the view that there is no error in the findings recorded by the courts below and no substantial question of law is involved for determination in second appeal.

25. Sri Amol Kumar has laid much emphasis on Section 60 of the Registration Act-

"60. Certificate of registration- (1) After such of the provisions of Sections 34, 35, 58, and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered" together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have been occurred as therein mentioned."

26. Submission of Sri Amol Kumar is that courts below have given finding without drawing presumption in favour of due registration. Vendor had filed suit for cancellation of sale-deed on the ground that deed was got executed under undue influence. Evidence on record shows that transaction was a sham transaction. Courts below have committed no error in cancelling the sale-deed. Moreover presumption is only in respect of registration which is not denied.

27. Sri Amol Kumar has referred to Section 31 of the Act which permitted the registration at the residence of person. He submits that merely because sale-deed was accepted at the house of vendor, no adverse inference can be drawn. Section 31 of the Registration Act is being reproduced below:-

"31. Registration or acceptance for deposit at private residence.- In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorized to accept the same for registration or deposit:

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will."

Deposit or registration of document should be done at the office of Registrar. However, officer may go to the residence of a person for registration or deposit of the document in special case where special cause is being shown. On this point various counsels present in the Court urged that it has become a fashion to call the Registrar at the residence for the purpose of execution of deed. It was also urged at bar that it is a malpractice which is adopted generally by criminals who manipulate the execution of documents at the residence.

28. Proviso of Section 31 of the Act contemplates special cause when officer will go to the residence of vendor. Section 38 of the Act specifies the persons who are exempted from presence in the Registration office. They are the persons who are ill, infirm or unable to appear in the Registration Office without risk and serious inconvenience, besides such persons as are exempted by law. Mere old age sans illness or infirmity is no ground.

29. Section 31 of the Registration Act says that in ordinary cases, registration shall be made at the office of the officer authorized for registering the document. Proviso of Section 31 of the Act says that officer authorized for registering the document will have to be shown special cause for attending the residence of any person for registering such document or will.

30. From the above, it is apparent that all this work should be done at the Registration Office and not at the residence. This is general rule. Proviso only covers cases where person cannot go to the Registrar Office because of his physical infirmity, because of being in jail (civil or criminal) or exemption given in law. No other exception can be added or read in Section 31. Merely because some body is rich, influential or financially sound, registering officer will not treat it a special case as contemplated under the proviso of Section 31. Everybody is equal before law irrespective of position or status. One has to go to Transport Office for obtaining driving license, one has to go Passport office for getting passport etc. Therefore, social status, influence or richness cannot furnish the special cause.

31. In this regard, reference may be made to Rules 292, 293, 314 and 316 which are quoted below:-

" नियम २९२- रजिस्ट्रीकरण के लिए लेखपत्र सामान्यतः रजिस्ट्रीकर्ता अधिकारी के कार्यालय में प्रस्तुत किये जाने चाहिए, किन्तु धारा ३१ के अनुसार विशेष कारण बताये जाने पर रजिस्ट्रीकर्ता अधिकारी किसी ऐसे व्यक्ति के, जो लेखपत्र प्रस्तुत करना चाहता हो, आवास पर जाकर लेखपत्र को रजिस्ट्रीकरण के लिए ग्रहण कर सकता है I इस सुबिधा का यह अर्थ नहीं लगाया जाना चाहिए कि इस सुबिधा का लाभ लेखपत्रों को रजिस्ट्रीकर्ता अधिकारी के आवास पर ग्रहण करके उठाया जाए ;

नियम २९३- धारा ३३ और ३८ के अधीन कमीशन जारी करने या धारा ३१, ३३, और ३८ के अधीन किसी व्यक्ति द्वारा अपने आवास पर रजिस्ट्रीकर्ता की उपस्थिति चाहने हेतु लिखित आवेदन पर कोई कोर्ट फीस देय नहीं है I अलबत्ता रजिस्ट्रेशन फीस की सारिणी के अनुच्छेद १५(३) के अनुसार १.५० रूपया फीस देय होगी, आवास पर रजिस्ट्रीकर्ता अधिकारी की उपस्थिति चाहने के लिए आवेदन लेखपत्र प्रस्तुत करना चाहने वाले व्यक्ति का प्रतिनिधि, मुख़्तार, सेवक या सम्बन्धी प्रस्तुत कर सकता है, किन्तु ऐसे मामलों में लेखपत्र का प्रस्तुतीकरण स्वयं उसी व्यक्ति द्वारा किया जाना चाहिए जो उसके लिए सक्षम है I

नियम ३१४- सब लेखपत्र उस व्यक्ति द्वारा रजिस्ट्रीकर्ता अधिकारी के समक्ष प्रस्तुत किये जाने चाहिए जो उसे प्रस्तुत करने के लिए अधिकृत हो, कमिश्नर के समक्ष नहीं I

सामान्यतः लेखपत्र रजिस्ट्रीकर्ता अधिकारी के कार्यालय में प्रस्तुत किये जाने चाहिए, किन्तु धारा ३१ में वर्णित परिस्थितियों में उन्हें उस व्यक्ति के आवास पर प्रस्तुत किया जा सकता है, जो उसे प्रस्तुत करना चाहे I

नियम ३१६ * * * * *

जिला रजिस्ट्रार की अनुमति के बिना कोई उप-रजिस्ट्रार अपने अधिकार क्षेत्र के बाहर स्थित किसी के आवास पर विजिट के प्रयोजन से नहीं जाएगा और यह अनुमति तब तक नहीं दी जायेगी जब तक जिला निबंधक संतुष्ट न हो जाए कि किसी अधिकृत व्यक्ति के उसके स्वयं के कार्यालय में अथवा उप-रजिस्ट्रार के कार्यालय में उपस्थित होने में असाधारण असुबिधा होगी I"

32. In Kerala Registration Rules, there was requirement to record the statement of person for justifying the emergency/special cause. There is no such requirement prevalent in the State of U.P. As per report supplied by I.G., Registration, U.P. number of documents have been accepted at the residence for unspecified reasons. Transaction under coercion or fraud have to be taken judicial note of. Therefore, there has to be some safeguard. Provision is silent in this regard. A division bench of Kerala High Court in the case of Cherichi v. Ittianam & others, reported in AIR 2001 Kerala, 184 while interpreting Section 31 has held in paras 14 and 15 as under:-

"14. S. 31 of the Registration Act, 1908 says that in ordinary cases the registration shall be made only at the office of the officer authorised for registration of the document. There is a proviso to S. 31 which says that the officer authorised to register the document may, on special cause being shown, attend the residence of any person desiring to present a document for registration and accept for registration such document or Will.

15. It is for the registering officer to take a decision whether there are sufficient reasons for going to the residence of any person during to present a document for registration. Once the registering officer is satisfied that there is special cause for attending the residence of a person, he is justified in going to the residence for receiving the document for registration. Whether there are sufficient reasons for going to the residence of a person is a matter which has to be left to the subjective satisfaction of the registering officer and a document registered on receiving the same by going to the residence of a person cannot be impeached by saying that there was no sufficient ground for the registering officer to go to the residence of the person for receiving the document for registration.

33. Registration or acceptance of document by commission is an exception to general rule. Registering officer should discourage such practice. Vast sweeping discretion has been given to registering officer. Provision has to be interpreted in a manner which does not make discretion arbitrary. Proviso requires special cause to be shown i.e. there has to be some actual special cause.

34. In the name of special circumstance, registration is done on commission. Special cause has not been defined in the rules. In order to check the misuse of this provision, special cause should have been mentioned in the deed exhibiting reason as to why the registration was done at the residence. If executor is seriously ill as mentioned in Section 38, the deed should contain such stipulation. Presently, Deeds carry no such endorsement. In order to ensure fairness in these dealings ambiguity in the rules which leads to unnecessary litigation and breeds to malpractice, approach for correction is need of hour.

35. Applicant should be directed to submit evidence/documents in support of the special cause pleaded in the application. If illness or infirmity is pleaded then certificate of registered doctor should accompany the application. If he is satisfied that special cause has been shown, then apart from passing order on the application, endorsement of special cause and the material furnished in support of special cause should also be mentioned by the registering officer in the deed. This will help Court in examining the allegation of undue influence, if deed is challenged on this ground.

36. In view of the above discussion, it is directed that if application is given to a person for accepting documents for registration on commission under Section 31, such application shall be entered in a register and if cause shown is the serious illness then executor should be directed to furnish documents in support of special cause. Registering officer will make an endorsement on the deed about the special cause i.e. serious illness, infirmity, confinement in jail or exemption contemplated under Section 38 of the Act etc. while accepting documents at a place other than his office.

37. Principal Secretary/I.G. (Registration), U.P. will issue necessary instructions in this regard accordingly. Deed itself should contain the special cause for accepting the document at the residence and henceforth no document shall be accepted or registered at a place other than the office unless above requirement is fulfilled. Compliance will be reported to Registrar of this Court in 3 months.

38. So far Sabhapati's appeal is concerned, during pendency of the suit and injunction, property was transferred to her. Subsequent purchaser of the property will also be bound by the ultimate decision of the Court as such she has no case.

39. Both the second appeals are devoid of merit and are liable to be dismissed.

40. Both the second appeals are hereby dismissed at the admission stage.

Order Date :- 29.5.2014

VB/-