Malharrao Mane vs Smt. Manisha
2024 Latest Caselaw 6315 MP

Madhya Pradesh High Court

Malharrao Mane vs Smt. Manisha on 1 March, 2024

                                                          1
                          IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                  BEFORE
                                  HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                              ON THE 1 st OF MARCH, 2024
                                           SECOND APPEAL No. 3379 of 2019

                         BETWEEN:-
                         MALHARRAO MANE S/O HARIBHAU MANE, AGED
                         ABOUT 67 YEARS, OCCUPATION: RETIRED R/O: HOUSE
                         NO. 388/5, SARVHARA NAGAR (MADHYA PRADESH)

                                                                                      .....APPELLANT
                         (SHRI VENI RAM PUROHIT - ADVOCATE)

                         AND
                         1.    SMT. MANISHA W/O SHRI KAILASH CHANDRA
                               WAGHMARE OCCUPATION: HOUSEWORK R/O:
                               BHOMESHWAR PROVISIONAL KIRANA STORES,
                               NEAR KALKA MANDIR, C.R.P. GATE, BARWAHA,
                               DIST. KHARGONE (MADHYA PRADESH)

                         2.    SMT. VINNATI @ VINTI W/O SHRI DEEPAK @
                               LAXMANDAS JADHAV OCCUPATION: HOUSE
                               WIFE R/O:32-A, VAISHALI NAGAR , ANNPURNA
                               ROAD , INDORE (MADHYA PRADESH)

                         3.    SMT. MEGHA W/O SHRI MANOJ SINDHE
                               OCCUPATION:   HOUSE    WIFE    R/O:    122/2,
                               PARDESHIPURA SHRI JI SWEAT KE PASS, INDORE
                               (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                         (NONE FOR THE RESPONDENTS)

                               This appeal coming on for admission this day, th e court passed the
                         following:
                                                         JUDGMENT

1 . The appellant/plaintiff filed the original suit No.38-A/2013 for annulment of the registered sale-deed dated 22.11.2018 by which the suit house

No.122/2 Pardeshipura, Indore on the ground that the sale-deed was executed playing fraud on plaintiff.

2 . On that respondents that are daughters of the second wife of the plaintiff has taken the defence that the sale-deed was executed after taking the consideration amount and the suit was filed in the year 2012, the suit be dismissed.

3. The trial Court after framing the issues recorded the evidence of the parties and dismissed the suit on the ground that plaintiff failed to prove the fact of fraud. Being aggrieved with the judgment of the trial Court the first appeal was filed before the District Judge, Indore that was registered as first appeal

No.39/2015. The first appellate Court by impugned judgment dated 03.09.2019 dismissed the appeal and affirmed the judgment and decree passed by the trial Court hence, this second appeal.

4. Learned counsel for the appellant has submitted that respondents are the daughters of second wife Kalabai, his first wife Ushabai and the respondent/defendants were born to Kalabai from her first husband.

5. Learned counsel has further submitted that the plaintiff has executed a Will in the favour of respondent/defendants then there was no need to execute the sale- deed and on the pretext that some mistakes have occurred in the Will. To correct those mistakes they brought the plaintiff to Registrar's Office and in guise of correction of the Will they received the signatures of the plaintiff on the sale-deed. He has not executed any sale-deed in favour of Kalabai or the respondents. No consideration amount was passed to him, but in para 3 of the sale-deed it is stated that Rs.7,18,500/- were given to plaintiff, but respondents have not proved that consideration was given to plaintiffs.

6. In cross-examination it was asked to plaintiff that the consideration

amount was also given through the cheque but the defendants have not produced the cheque or their bank account statement to demonstrate that the consideration amount was given to plaintiff.

7. The appellant was in fiduciary relations so, he has signed the documents. The witness of the sale-deed are husbands of the respondents so, he has not examined the witnesses thus, it was clearly proved before the trial Court as well as the appellate Court that the defendant/respondents have taken undue advantage of fiduciary relations and no consideration was passed to the plaintiff. So, the sale-deed is null void and that can be safely declared. But trial Court as well as appellate Court has committed an error and dismissed the suit and the appeal.

8. Learned counsel for the appellant has relied on the judgment of Dayawantibai w/o Tulsiram Lodhi v. Smt. Sarula Bai and others 2006(4) M.P.L.J 346, Ravi Shankar v. Rajendra Kumar & Anr. 2007(III) MPJR- CG 83 and the judgment of Lakshmi & Others v. Muthusamy 2012 1 CTC 53 to strengthen his arguments that consideration amount was not passed and to pass the title through sale-deed it is necessary as property is immovable property to pass the consideration, delivery of possession are mandatory, to complete the transaction of sale. It is the duty of the respondent to prove that they have paid the whole consideration amount and if consideration is not paid

before the Sub-Registrar the sale-deed be deemed to be forged. Learned counsel for the appellant has further argued that the plaintiff was in possession till 2012.

9. Thus, no consideration was paid to plaintiff and the possession was not handed over to the respondents hence, it was proved before the trial Court

that the sale-deed is forged and they have failed to produce the documents pertaining to passing of the consideration amount hence, the adverse inference be drawn on that point, learned counsel for the appellant has relied on the judgment of Sanjay Kumar v. C.E.O Janpad Panchayat 2010(3) MPLJ 457 in which it has been held by this Court, if the party despite having in possession the best evidence not produced, adverse inference be drawn against the concerned party holding the evidence. On that basis has argued that appeal be admitted for final hearing.

10. I have gone through the judgment of the trial Court and evidence recorded before the trial Court, the plaintiffs have not denied the signatures in sale-deed and he has not examined the witnesses of the sale-deed Kailash and Laxman. He has also not examined on his behalf the scriber of the sale-deed Shri Ramswroop Sahu Advocate.

11. In his cross-examination plaintiff has admitted that he was working on the post of peon in State Bank of India, Holkar College Branch, Indore. He has admitted that he has not filed any documents regarding the ailment of his eyes. Kalabai was residing with him since 1982 to 2012. He has also admitted that will executed by him was in his possession. He has cancelled the will and published a notice in the newspaper.

12. The plaintiff has also admitted that in the registered sale-deed Ex.P- 13 photo of him and Kalabai, photo of rest of the respondents are affixed. The plaintiff has also admitted that Ex.P-13 is sale-deed of House No.122/2, Pardeshipura, Indore. He has also admitted that he has not signed the sale-deed. He also admitted that when he went to Registrar's Office no band was applied to his eyes. After execution of sale-deed he was continuously going to his office. He has also admitted that when he published the notice Ex.P-25, it was

in his knowledge that the sale-deed was executed. He has also admitted that since June 2012 he was not receiving the rent of the disputed house.

13. From the above statement it is clear that firstly, the plaintiff/appellant has executed a will in favour of his wife and daughters on 08.05.2005 as per Ex.P-9. Secondly, he executed a sale-deed on 22.11.2008 in favour of the deceased Kalabai and respondents. He has failed to prove that fraud was committed with him.

14. From the cross-examination it is clear that he was a govt. servant and working in a bank. He has not proved that he was suffering from any ailment by that he was unable to read the contents of the sale-deed Ex.P-13. He has clearly admitted that as per Ex.P-25 he has published the notice in the newspaper and by that he has cancelled the will. When he was having the knowledge of the sale-deed and on if wanted to challenge that he must have published notice that he has not executed any sale-deed in favour of Ushabai and her daughters.

15. The plaintiff/appellant has also not examined the witnesses of the sale-deed and also not examined the scriber of the sale-deed and after execution the sale-deed in 2008 he was mute till filing of the suit. On that basis the conclusions of the trial Court as well as of the appellate Court cannot be said to be against the fact and law.

16. On the point that the defendant/respondent has not proved any consideration was passed. In this case the plaintiff have filed the suit on the basis of fraud and not on the basis that the sale-deed is void as no consideration was paid as required under Section 25 of the Indian Contract Act, 1872. So, if the respondents have not produced the copy of the cheque or statement of bank account no inference can be drawn against the respondents

and on that basis judgment of Sanjay Kumar (supra) is not applicable in the case.

17. I have gone through the judgment passed by the Chattisgarh High Court in Ravi Shankar (supra). In para 16 and 17 of the judgment and in that case it was found that the parties were in fiduciary relations and there was no necessity of the seller for execute the sale-deed in the favour of buyer. No consideration was paid by buyer to the seller before the registrar and it was also not proved that the conditions of the sale-deed were explained to the seller as she was an illiterate lady and her thumb impression were obtained. On that basis the Court has interfered that looking to the facts, strong probability in the favour of seller that sale-deed was executed with fraud. But in the case before this Court, the seller is a literate person and serving in the bank as Class-IV employee. Previously he has executed the Will and Will was not registered then why to correct any mistake, the executor of the Will would go to Registrar's Office.

18. Furthermore, no photo was affixed in the Will but was affixed in the sale-deed. The respondents or the legal heirs of the sale-deed and the seller himself has not filed his statement of the bank account. The plaintiff/appellant has failed to prove that consideration was not given to him and as per the sale- deed consideration was given to plaintiff/appellant. So, the judgment of Dayawantibai (supra) does not helps the appellant. On the same basis the judgment of Lakshmi & Others (supra) is not applicable in this case.

19. Thus, looking to the judgments of the trial Court as well as of the appellate Court no substance is found hence, this second appeal is summarily dismissed in limine.

20. With the copy of this judgment the record of the trial Court as well as

of the appellate Court be returned back.

21. No order as to costs.

(DEVNARAYAN MISHRA) JUDGE akanksha