Sobha Devi vs Santosh Poddar And Others
2025 Latest Caselaw 2408 Jhar

Jharkhand High Court

Sobha Devi vs Santosh Poddar And Others on 5 February, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              Second Appeal No. 61 of 2017

                Sobha Devi                                    ...       ...     Appellant
                                    Versus
            Santosh Poddar and others            ...       ...       Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Shashank Shekhar, Advocate For the Respondents : Mr. Rahul Kumar Gupta, Advocate : Mr. Ashutosh Prasad Joshi, Advocate : Mr. Rakesh Kumar Singh, Advocate : Ms. Swati Singh, Advocate : Mr. Surya Prakash, Advocate

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13/05.02.2025 Learned counsel for the parties are present.

2. With respect to substantial question no. (i), the learned counsel for the respondents has submitted that the defendant no. 2 had denied execution of the sale-deed by which the property was transferred in favour of the plaintiff. The specific case was that the original defendant no.2 never signed in Bangla and he used to sign in Hindi. He submits that for substantial question no. (i), two points are required to be considered: -

(a) Denial of Rajamoni Mondal with respect to execution of sale-deed no. 388 of 2001, and

(b) that he was not examined to prove the sale-deed.

3. The learned counsel submits that admittedly Rajamoni Mondal (original defendant no. 2) expired during the pendency of the case after filing the written statement and his wife and son were examined as witness, therefore, there was sufficient explanation for non- examination of Rajamoni Mondal. The learned counsel has also submitted that Rajamoni Mondal was impleaded as a defendant in the case and he denied the execution of the deed. Mere denial was not conclusive and the matter was to be determined as to whether he had executed the sale-deed or not.

4. Learned counsel for the respondents has further submitted that since the only defence was that original defendant no.2 never used to sign in Bangla, numerous documents were exhibited in the Court which were signed by the original defendant no. 2 in different court proceedings in which he had put his signature in Bangla.

5. The learned counsel has also referred to Exhibit-F which was relied upon by the learned counsel for the appellant during the course of hearing and has submitted that the title suit is of the year 1991 and Exhibit-F is dated 28.04.2005. The learned counsel has further submitted that the son of the defendant no. 2 was a witness in the sale- deed executed in favour of the plaintiff, but during his examination as DW- 13 he has not denied his signature as a witness in the sale-deed. He also submits that DW- 13 in his own deposition has stated that he was known as Mahesh @ Maheshwar Mandal. The learned counsel also submits that DW 13 had not stated that his father had not signed the sale-deed, rather his specific case was that his father, original defendant no. 2, never used to sign in Bangla and his only defence was that his father did not know how to write in Bangla.

6. Learned counsel for the respondents has also submitted that P.W. 4, who is an advocate, has been examined in the case and he has been the advocate of original defendant no. 2 in various cases and he had exhibited numerous documents including exhibit-4, 4/A, 5 and 6 which were signed by the original defendant no. 2 in Bangla. The learned counsel has submitted that the very plea that the original defendant no.2 never used to sign in Bangla stood demolished on the basis of the documents which were exhibited on behalf of the plaintiff and those documents were marked without any objection.

7. The learned counsel for the respondents has also submitted that there was no occasion for the plaintiff to send any document for verification of signature in view of the fact that the specific case of the defendants was that original defendant no. 2 never used to sign in Bangla and admitted signatures were placed on record which were duly signed by original defendant no. 2 and there were sufficient materials on record to show that original defendant no. 2 used to sign in Bangla also.

8. The learned counsel for the respondents has further submitted that the execution of sale-deed by the original defendant no. 2 in favour of the plaintiff was duly proved on the basis of the materials on record which were witnessed by none other than his son i.e. D.W. 13 and in such circumstances, in view of section 48 of Transfer of Property Act any subsequent sale-deed executed by original defendant no. 2 cannot confer title on the defendant no.1.

9. With respect to substantial question no. (ii), the learned counsel for the respondents has submitted that the sale-deed executed by original defendant no. 2 in favour of defendant no. 1 was subsequent in point of time and since the property was already transferred in favour of the plaintiff by a prior sale-deed, the subsequent sale-deed was certainly void, illegal and inoperative. The original defendant no. 2 could not have transferred any title of the property which he did not possess. Learned counsel for the respondents has again referred to section 48 of the Transfer of Property Act, 1882 to submit that if the same property is transferred by the same vendor to two different persons, the subsequent sale-deed has to give way to the prior sale-deed and therefore, the execution of subsequent sale-deed by original defendant no. 2 in favour of the defendant no. 1, is irrelevant.

10. With respect to the substantial question No. (iii), the learned counsel for the respondents has submitted that the question of law is with regard to non-consideration of the agreement of sale dated 30.10.2000. He has submitted that both the learned Courts have considered the agreement of sale dated 30.10.2000 and have rejected the case of the defendants. Learned counsel has also referred to the written statement filed by defendant Nos. 1 and 2 and has submitted that although in paragraphs 12 and 13, there is a reference of agreement of sale dated 30.10.2000 and that the original defendant No. 2 had put the defendant No. 1 in possession of the property, but there is no mention about any payment received in terms of the agreement of sale dated 30.10.2000, rather, the case of defendant no. 1 was that in the final sale deed there was a bonafide mistake and no

reference was made to the agreement of sale dated 30.10.2000. Learned counsel has also submitted that defendant no. 2 had also mentioned about the agreement of sale dated 30.10.2000 and had specifically mentioned in the written statement that he received an advance amount of Rs.15,000/- and has further stated that he received balance consideration amount and put the defendant No. 1 in possession of the property. Learned counsel submits that there is no reference of payment of Rs.15,000/- in the written statement filed by the defendant No. 1. Further, in the final sale deed also neither there is any reference of agreement of sale dated 30.10.2000 nor there is any reference to payment of Rs.15,000/- rather, the final sale deed reveals that entire consideration amount was paid on the date of execution of the sale deed.

11. Learned counsel for the respondents has also submitted that there was another agreement of sale which was exhibited from the side of the defendants that was agreement dated 20.12.2000. The same was apparently entered into in view of the fact that the agreement of sale dated 30.10.2000 referred to payment of Rs.15,000/- already made and there was a stipulation that further Rs.15,000/- was to be paid on 20.12.2000. He submits that the agreement of sale dated 20.12.2000 mentions about total payment of Rs.15,000/- only out of the total consideration amount of Rs.60,000/- and the agreement of sale dated 20.12.2000 does not find mention in the written statements filed by defendant No. 1 or defendant No. 2 and only reference has been made to the agreement of sale dated 30.10.2000.

12. With respect to substantial question No. (iv), learned counsel for the respondents has also submitted that there is no compulsion on behalf of the Court or the either party to send the handwriting for examination by expert and it would depend upon the facts and circumstance of each case. In the instant case there was no such requirement. There was enough material on record to prove the case of the plaintiff. He has also submitted that signature in Bangla cannot be compared with signature in Hindi and therefore, no purpose would

have been served had the signatures been sent for examination by the handwriting experts.

13. With respect to the arguments of the appellant on the point of non-examination of the plaintiff, learned counsel for the respondents has submitted that even the defendant No. 1 was not examined. He has also submitted that there was explanation for not producing the plaintiff for examination by the Court. He has submitted that there is presumption with respect of execution of a registered sale deed and what was under dispute was as to whether the sale deed was executed by the original defendant No. 2. Learned counsel has submitted that the witnesses to the sale deed executed in favour of the plaintiff were duly examined before the learned Court and there were two witnesses; one was the son of original defendant No. 2 and other was son of the plaintiff. He has submitted that son of plaintiff was duly examined and supported the case of the plaintiff.

14. With respect to the arguments of the appellant that the deed in favour of the plaintiff was itself void, the learned counsel for the respondents has referred to the judgment passed by the Hon'ble Supreme Court in case of "Prem Singh Vs. Birbal" reported in (2006) 5 SCC 353, which has also been relied upon by the learned counsel for the appellant, to submit that it has been held that there is presumption that the registered document is validly executed. A registered document therefore prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the submission. Learned counsel submits that the deed of plaintiff being a registered document, onus was heavy on the defendants to prove that it was executed through fraud, etc. and for this the defendants ought to have challenged the sale deed of the plaintiff by filing a separate suit but no such step was taken and in a case were the fraud is alleged and fraud is required to be proved, the same has to be challenged and it cannot be said to be void ab initio unless the fraud is established in any court of law.

15. Learned counsel has also relied upon the judgment passed by the Hon'ble Supreme Court in the case of "Md. Noorul Hoda Vs.

Bibi Raifunnisa and Others" reported in (1996) 7 SCC 767 to submit that it has been held in the said case that when the plaintiff seeks to establish his title which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Learned counsel submits that in the present case the defendants were alleging that the sale deed executed in favour of the plaintiff was obtained by fraud and the sale deed of the plaintiff was certainly standing in the way of the title of defendant No. 1 and therefore, it was obligatory on the part of the defendants to challenge the sale deed of the plaintiff by instituting an appropriate suit, which was never done by the defendants.

16. The learned counsel for the respondents has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of "Dhurandhar Prasad Singh Vs. Jai Prakash University" reported in (2001) 6 SCC 534 and has submitted that it has been held that in cases where the legal effect of the document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. The learned counsel has submitted that in the present case, the property was transferred in favour of the plaintiff through a registered document which had a presumptive value.

17. With respect to the burden of proof, learned counsel for the respondents has referred to Section 101 of the Indian Evidence Act and has submitted that it was the defendants who were alleging fraud in connection with the execution of the first sale deed in favour of the plaintiff and therefore, the burden was on the defendants to prove the same.

Rejoinder arguments of the appellant

18. In response, the learned counsel for the appellants has submitted that Exhibit 12 was the signature of Mahesh @ Maheshwar Mandal (DW-13) and his signature was marked with objection. He has also submitted that the signature of defendant No. 2 on the sale deed in favour of the plaintiff was marked with objection as Exhibit 9/A.

The signature of Vishnu Prasad Mandal was marked Exhibit 10(a) and signature of Munna Kumar Poddar was marked Exhibit 11.

19. The learned counsel for the appellant has referred to the judgment passed by the Hon'ble Supreme Court reported in AIR 2023 SC 379 (Smriti Debbarma through Lrs. Vs. Prabha Ranjan Debbarma and others) and has referred to paragraph 31 of the said judgment to submit that the burden of proof is on the plaintiff to establish his case and that the burden shifts in terms of Section 101 and 102 of the Indian Evidence Act. He has also submitted that the witness of defence cannot give justification to the decree of a suit. Learned counsel submits that the plaintiff did not depose and therefore, the plaintiff did not discharge the burden of proof.

20. Arguments concluded.

21. Post this case for judgment on 02nd April, 2025.

(Anubha Rawat Choudhary, J.) Pankaj/Kunal