Allahabad High Court
Ram Gopalsince Dead And Another vs Sri Narendra Kumar Prajapati And Others on 7 May, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:82027
Court No. - 7
Case :- SECOND APPEAL No. - 941 of 2011
Appellant :- Ram Gopal (since dead) And Another
Respondent :- Sri Narendra Kumar Prajapati And Others
Counsel for Appellant :- S.C.Tripathi,Arvind Kumar Singh,Dharmendra Kumar Tripathi
Counsel for Respondent :- Archana Singh,H M B Sinha
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellants and Sri H.M.B. Sinha, learned counsel for the respondents.
2. The plaintiff/appellants have preferred the present Second Appeal challenging the judgement and decree dated 27.09.2007 passed by Additional Civil Judge (Junior Division), Court No.1, Kanpur Nagar dismissing the Original Suit No.228 of 2004 and judgement and decree dated 04.10.2011 passed by the first appellate court i.e. Additional District Judge,Court No.11, Kanpur Nagar dismissing the Civil Appeal No. 86 of 2007.
3. The brief facts of the case are that one Ram Gopal (since deceased) instituted an Original Suit No.228 of 2004 for cancellation of sale deed dated 06.10.2003, registered on 15.10.2003 in the office of Sub Registrar-IV, Kanpur Nagar, and a decree for permanent injunction restraining the defendants/ respondents from interfering in the peaceful possession over the suit property.
4. The plaint case is that Ram Gopal (hereinafter referred to as 'plaintiff') was the owner and in possession of agricultural land detailed at the foot of the plaint. The plaintiff had three sons namely, Jay Narayan, Laxmi Narayan and Shiv Narayan and had three daughters namely Smt. Ram Janki, Smt. Ram Pyari and Smt. Raj Kumari. Smt. Madhuri Devi was the wife of the plaintiff.
5. The plaintiff was engaged in the job of labour in Swadeshi Mill, Kanpur and at the time of institution of the suit, he was about 86 years old. The further case in the plaint was that plaintiff was hard of hearing and the eye sight of the plaintiff was also weak. The plaintiff was mentally sick and was also a heart patient. The plaintiff was being taken care of by his eldest son, namely, Jai Narayan and youngest son Shiv Narayan.
6. The plaintiff was taking treatment in Kulwanti Hospital and Research Centre for his mental illness. It was further pleaded that defendant/respondent, namely, Narendra was the son of Laxmi Narayan and was the grandson of plaintiff, and the plaintiff had trust and faith upon the defendant/respondent, namely, Narendra. The defendant/respondent, namely, Narendra asked the plaintiff that the plaintiff needed medical check-up and also required to fill the form to get old age pension. The plaintiff believing the defendant/ respondent, namely, Narendra went with him and without taking the plaintiff in confidence and without explaining and telling the correct facts and without paying any sale consideration, defendants/respondents got the sale deed registered on 15.10.2003 in the office of Sub-Registrar. The plaintiff denied in the plaint that he had any knowledge about the execution of sale deed.
7. The plaintiff further stated that plaintiff after coming to know about the sale deed, obtained a certified copy of the same, and thereafter, he came to know about the conspiracy hatched by the defendants/respondents on 30.01.2004. It is further stated that the sale deed was executed by playing fraud and misrepresentation.
8. Further case of the plaintiff was that the plaintiff was not in need of money which could have been a compelling circumstance to the plaintiff to sell the suit property. The further case of the plaintiff was that even the wife of the plaintiff did not consent to sell the suit property. It is further stated that the sale consideration of Rs.2,10,000/- was not paid to the plaintiff. On the aforesaid facts, the suit was instituted by the plaintiff for cancellation of sale deed.
9. The defendants/respondents contested the suit by filing written statement contending inter alia that the sale deed was executed by the plaintiff voluntarily, and there was no fraud played upon the plaintiff by the defendants/respondents in getting the sale deed executed. The defendants/respondents further stated that the sale consideration was paid to the plaintiff and defendants/respondents have detailed the payment made to the plaintiff in para no.20 of the written statement.
10. On the basis of the pleadings between the parties, the trial court framed as many as five issues.
11. On the issue no.1, whether on the basis of pleadings, the sale deed is liable to be cancelled, the trial court held that the plaintiff knowing fully well and in conscious state of mind executed the sale deed. It further held that a perusal of the sale deed discloses that plaintiff has accepted the sale consideration before two witnesses of the sale deed and before the Sub-Registrar, Kanpur Nagar, and the Sub-Registrar-IV Kanpur Nagar noted the said fact in the sale deed. Consequently, the trial court held that the plaintiff has failed to prove that he had not received any sale consideration. Accordingly, it decided the issue no.1 against the plaintiff.
12. The trial court on the issue no.2 whether the suit is barred by Section 41 of Specific Relief Act held that the suit is not barred by Section 41 of the Specific Relief Act. Consequently, the trial court dismissed the suit.
13. The plaintiff, thereafter, preferred Civil Appeal No.86 of 2007. The first appellate court after framing point of determination in para-12 of the judgement recorded a finding that the plaintiff failed to prove that his mental condition on the date of execution of sale deed was such that he could not appreciate or understand the consequence of the execution of sale deed. The first appellate court further recorded a finding that sale deed was executed on 15.10.2003 and plaintiff's statement was recorded on 26.11.2005 and from the testimony of the plaintiff, it is not borne out that he is not mentally fit or agile. The first appellate court further held that evidences which had been filed at the appellate stage i.e. paper no.35Ga/1 to 9 and the photocopy of the prescriptions filed before the trial court are not admissible in evidence. It further held that none of the prescriptions filed on record were with respect to the treatment of mental illness of the plaintiff.
14. The first appellate court further considered the fact that in the sale deed, it is mentioned that the sale consideration of Rs.2,10,000/- has been paid to the plaintiff. The appellate court further noted that in the sale deed it is noted by the Sub-Registrar that plaintiff admitted the payment of sale consideration between 1:00 P.M. to 2:00 P.M. on 15.10.2003. Consequently, the first appellate court found that the appeal of the plaintiff lacks merit and consequently, it dismissed the appeal.
15. The appeal was admitted by this Court on the following substantial question of law:-
"Whether the provisions of Section 16 (3) of the Indian Contract Act would be applicable in the facts of the present case wherein the plaintiff appellant is the grandfather of the defendant respondent no. 1 and the issue regarding fudiciary relationship for the purpose of getting the sale deed dated 15.10.2003 executed from the plaintiff has not been considered by both the courts below while dismissing the suit of the plaintiff appellant. (Debi Prasad and another Vs Chhotey Lal and another) AIR 1966 Allahabad 438."
16. It is contended by the learned counsel for the appellant that it is admitted on record that the plaintiff is the grandfather of the defendants/respondents and there was fudiciary relationship between the plaintiff and defendants, and it was a case of the plaintiff that plaintiff was not mentally agile and fit to execute the sale deed, and defendants/respondents by playing fraud had got the sale deed executed in their favour, therefore, in such view of the fact, it was incumbent upon the trial court to frame an issue under Order 14 Rule 1 of C.P.C. with regard to the fact that whether provisions of Section 16 (3) of the Indian Contract Act (hereinafter referred to as the 'Act') would be applicable in the facts of the present case, and since the said issue was essential to the right decision of the case, therefore, judgement of the trial court suffers from manifest error of law.
17. He further contends that the appellate court has also failed to exercise correctly the power under Order 41 Rule 25 of C.P.C. inasmuch as in the present case, once it is established on record that the issue "whether the provision of Section 16 (3) of the Act would be applicable in the facts of the present case" is germane and necessary for right decision to the case, the first appellate court ought to have framed an issue by exercising power under Order 41 Rule 25 of C.P.C. and should have remanded the matter to the trial court. Thus, it is contended that the appellate court has also committed error of law in not remanding the matter to the trial court by exercising power under Order 41 Rule 25 of C.P.C.
18. Thus, it is contended that the judgements of the Subordinate Court are illegal and not sustainable in law, therefore, they are liable to be set aside and appeal deserves to be allowed.
19. Per contra, learned counsel for the defendants/ respondents would contend that the question of law on which the appeal has been admitted is not a substantial question of law in the instant case for the reason that necessary pleadings for invoking and taking benefit of Section 16 (3) of the Act are lacking in the plaint. It is contended that only bald averment has been made in the plaint that the plaintiff was not mentally fit, and this is not sufficient pleading to invoke Section 16 (3) of the Act. He submits that reading of the plaint discloses that the case of the plaintiff did not meet the requirement of Section 16 (3) of the Act. He further contends that in case plaintiff wanted to take the advantage of Section 16(3) of the Act, he should have pressed the issue about applicability of Section 16 (3) of the Act before the trial court, and since this issue was not pressed before the trial court, therefore, the issue being a question of fact and law cannot be raised in the second appeal.
20. He submits that question whether the first appellate court ought to have exercised power under Order 41 Rule 25 of C.P.C. in the present case does not arise in view of the fact that no point was pressed by the plaintiff before the first appellate court that the trial court had committed manifest illegality in not framing the issue regarding applicability of Section 16 (3) of the Act in the facts of the present case.
21. It is also submitted that the case of the plaintiff that he was not mentally fit to execute the sale deed is demolished by the fact that the plaintiff had executed a sale deed dated 15.07.2006, which had been filed as paper no.89 Ga/1 to 13 before the first appellate court, and execution of the sale deed dated 15.07.2006 had not been denied by the plaintiff, and in such view of the fact, it is contended that the plaintiff has not approached the Court with clean hands inasmuch as if the plaintiff was not mentally fit, then it was not possible for him to execute the sale deed dated 15.07.2006 after about three years from the date of execution of sale deed in favour of the defendants/respondents.
22. Sri Sinha, learned counsel for the respondents has placed reliance upon the judgment of the Apex Court in the case of Raja Ram Vs. Jai Prakash Singh and Others, 2019 Law Suit (SC) 1591.
23. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
24. The fact as emanates from the record that the suit was instituted by the plaintiff on the ground that he was not mentally fit and agile, and the plaintiff had trust upon the defendants/respondents, and taking advantage of that trust, the defendants/respondents took the plaintiff to the Registrar's Office on the pretext that plaintiff had to undergo for medical check up and also had to fill the form to get the old age pension and he got the sale deed dated 15.10.2003 executed. The plaintiff came to know about the said fact only on 30.01.2004, and thereafter, he filed the suit.
25. The trial court as well as appellate court found that the sale consideration was received by the plaintiff and it was noted by the Sub Registrar on the sale deed that the sale consideration had been received by the plaintiff at the time of registration of the sale deed. Both the courts below found that the plaintiff did not lead any evidence to establish that his mental health was not sound due to which he was incapable to understand any transaction, and by playing fraud, the defendants/respondents got the sale deed executed. The finding returned by both the courts below in this regard are finding of fact based upon proper appreciation of facts and evidence on record. Learned counsel for the appellant could not demonstrate from the record that the finding on the above aspect is perverse or against the record.
26. At this stage, it would be apt to reproduce paras-9, 10 & 11 of the judgement of the Apex Court in the case of Raja Ram (supra), which are as under:-.
"9. The deceased undisputedly was over 80 years and above in age. The plaintiff pleaded that by reason of age and sickness, the deceased was unable to move and walk, with deteriorated eye sight due to cataract. The mental capacity of the deceased was impaired. The Advanced Law Lexicon by P. Ramanatha Aiyar, third edition reprint, 2009 defines impairment in relation to a human being as total or partial loss of a body function, total or partial loss of a part of the body, malfunction of a part of the body and malfunction or disfigurement of a part of the body. Except for a bald statement in the plaint that the deceased was mentally impaired there is no evidence whatsoever of his mental status. There can be no presumption with regard to the same only because of old age to equate it with complete loss of mental faculties by senility or dementia. Ageing is a process which affects individuals differently at distinguishable ages. The sale deed executed by the deceased in favour of one Babu Ram and Munshi Lal two years earlier in 1968 has not been assailed by the appellant on the ground that the deceased was devoid of the power of reasoning, because of mental impairment. There is no evidence of any such rapid deterioration in the condition of the deceased in these two years.
10. The deceased on account of his advanced age may have been old and infirm with a deteriorating eye sight, and unable to move freely. There is no credible evidence that he was bed ridden. Hardness of hearing by old age cannot be equated with deafness. The plaintiff, despite being the son of the deceased, except for bald statement in the plaint, has not led any evidence in support of his averments. It is an undisputed fact that the deceased appeared before the sub-registrar for registration. It demolishes the entire case of the plaintiff that the deceased was bed ridden. He had put his thumb impression in presence of the sub-registrar after the sale deed had been read over and explained to him. The deceased had acknowledged receipt of the entire consideration in presence of the sub-registrar only after which the deed was executed and registered. The wife of the deceased had accompanied him to the office of the sub-registrar. The sale deed being a registered instrument, there shall be a presumption in favour of the defendants. The onus for rebuttal lay on the plaintiff which he failed to discharge. Notwithstanding the finding of enmity between PW2 and PW3 with original defendant no.2, the First Appellate Court erred in relying upon these two witnesses by holding that they were independent witnesses and convincing. DW1, though related was a witness to the sale deed. His evidence in support of the events before the sub-registrar therefore has to be accepted. The plaintiff could have led evidence in rebuttal of the sub-registrar but he did not do so.
11. That leads us to the question of undue influence. The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the sub-registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day."
27. Now, if the plaint is read in the light of the principles enunciated by the Apex Court in the case of Raja Ram (supra) as to facts and circumstances which are supposed to be pleaded when a transaction is assailed on the ground of undue influence, the Court is of the view that the pleadings in the plaint are bereft of any detail or circumstances with regard to the nature, manner or kind of undue influence exercised by the defendants over the plaintiff. Only bald allegation has been made by the plaintiff with regard to his mental illness which is not sufficient pleading to attract Section 16 (3) of the Act.
28. One additional aspect needs to be noticed in the present case is that the plaintiff had executed the sale deed dated 15.07.2006 which was filed as paper no.89Ga/1 to 13 before the first appellate court and execution of sale deed dated 15.07.2006 was not denied by the plaintiff. In such view of the fact, it is unimaginable that the plaintiff was not mentally fit to execute the sale deed dated 15.10.2003.
29. Now, so far as the question regarding the fact that the first appellate court has failed to exercise the power under Order 41 Rule 25 of C.P.C. is concerned, this Court has perused the memo of appeal filed by the plaintiff challenging the judgement and decree passed by the trial court before the first appellate court, there is no ground assailing the judgement of the trial court on the ground that the trial court has failed to frame an issue regarding applicability of Section 16 (3) of the Act which was essential for proper and right decision of the case. In the absence of any such ground, there was no occasion for the first appellate court to consider such an issue and invoke the power under Order 41 Rule 25 of C.P.C.
30. Even otherwise, the aforesaid contention is not relevant in the facts of the present case, inasmuch as this Court has already held that the pleadings in the plaint are bereft of necessary facts to establish applicability of Section 16 (3) of the Act in the present case.
31. This Court may note that the law is settled that the plaintiff should approach the Court with clean hands. In the present case, the plaintiff had filed the suit on the ground that he was not mentally and physically fit, and by playing fraud, the sale deed dated 15.10.2003 was got executed, whereas the plaintiff had executed the sale deed dated 15.07.2006, copy of which was filed before the first appellate court, the execution of which was not denied by the plaintiff, in such view of the fact, the story of mental illness of the plaintiff is false and not worthy reliance. The aforesaid fact establishes that the plaintiff has not approached the Court with clean hands and he is not entitled to any relief on this count also.
32. Thus, for the reasons given above, no substantial question of law is involved in the present second appeal. Consequently, the appeal lacks merit, it is hereby dismissed with no order as to costs.
Order Date :- 7.5.2024
NS
