Orissa High Court

Sushilarani Mishra vs Nityananda Panda (Dead) ... on 9 August, 2023

             ORISSA HIGH COURT: CUTTACK

                  RSA No. 346 OF 2014 &
                   RSA No. 347 of 2014

[In the matter of appeals under Section 100 of the Code of Civil
Procedure, 1908.
                           ---------------

RSA No. 346 OF 2014
Sushilarani Mishra                    ......          Appellant

                              -Versus-

Nityananda Panda (dead) substituted
by L.Rs and others                       .....     Respondents

RSA No. 347 of 2014
Sushilarani Mishra                    ......          Appellant

                              -Versus-

Brajaraj Mishra (dead) substituted by L.Rs.
and others                             .....       Respondents


Advocate(s) appeared in this case :-
_________________________________________________________
   For Appellant    : M/s. Pradipta Kumar Mohanty,
                      D.N. Mohapatra, J. Mohanty, P.K.
                      Nayak, S.N. Dash & A. Dash,
                      Advocates [In both the RSAs]

   For Respondents: M/s. Sumit Kumar Mohanty &
                    Smt. P. Jena, Advocates
                    [for R-1(a) & R-1(b) in RSA No. 346 of 2014]

                      M/s. Bibekananda Bhuyan, S.S.Mohapatra,
                      S. Sahoo & S.S. Bhuyan, Advocates.
                      [for R-2(e) to R-2(h) in RSA No. 346 of 2014
                      & R-7 to R-10 in RSA No. 347 of 2014]

                      M/s. Satyabrata Mohanty, S.S.Mohapatra,
                      A. Biswal & R.N. Swain, Advocates.
                      [for R-2(b) to R-2(d) in RSA No. 346 of 2014
                      & R-2(a) to R-2(c) in RSA No. 347 of 2014]

                                                     Page 1 of 14
                                Mr. P.K. Pasayat, Adv. for R-11 in RSA No.
                               347 of 2014.

             __________________________________________________________
               CORAM
                     JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

9th August, 2023

SASHIKANTA MISHRA, J. Both these appeals are directed

against the common judgment passed by learned District

Judge, Puri on 06.05.2014 followed by decree in RFA No.

99 of 2009 and RFA No. 100 of 2009 confirming the

judgment and decree passed by learned Addl. Civil Judge

(Sr. Division), Puri on 31.07.2009 and 14.08.2009

respectively in T.S. No.4/53 of 2007/2001 and judgment

and decree dated 31.07.2009 and 14.08.2009 respectively

in C.S. No. 15/434 of 2007/2003.

2. Both the second appeals have been preferred by

Smt. Sushilarani Mishra, who was the plaintiff in T.S. No.

4/53 of 2007/2001 and defendant No.11 in C.S. No.

15/434 of 2007/2003. For convenience and to avoid

confusion, the parties are referred to as per their respective

names.

3. These appeals have been admitted on the

following substantial questions of law.

"II) Whether the R.S.D., vide Ext.1, is to be presumed to be genuine document or not in view of the registration made before the Sub-Registrar as per the entry made therein by payment of consideration money to the vendor as per section 58(1)(c) and section 60(2) of the Registration Act? IV) Whether, the attesting witness- Shri Purna Chandra Pradhan to the sale deed being dead and the circumstances of non-examination of the identifier and the attesting witness being duly explained, the non-examination of the same renders the R.S.D., the registered instrument, totally void or not?

V) Whether the R.S.D., Ext.1 being a registered instrument, the circumstances of non-

examination of the scribe, identifier and the attesting witnesses being explained, for mere non-examination of the same, the said sale deed will render to be a sham transaction or not?

4. The facts of the case, in a nutshell are as follows;

The appellant, Sushilarani Mishra, as plaintiff

filed T.S. No. 4/53 of 2007/2001 for declaration of her

right, title, interest over the suit Schedule-B property while

Brajaraj Mishra, since deceased and substituted by his

L.Rs., filed C.S. No. 15/434 of 2007/2003 for partition of

both Schedule-A & B properties.

The case of Sushilarani Mishra is that schedule-

B property originally belonged to one Jambeswar Panda,

who sold the same to Harihar Mishra. Harihar died in the

year 1991 leaving behind his son Gangadhar and daughter

Sabitri as his successors. Gangadhar died a bachelor in the

year 1994 and therefore, the entire property became the

absolute property of Sabitri. In order to meet her legal

necessity, Sabitri sold the suit property to Sushilarani

through registered sale deed bearing No.4735 dated

15.12.2000 and delivered possession thereof. Since then

Sushilarani is residing in that house with her family

members, paying rent to the State and Municipality.

However, out of inadvertence ROR was published in the

name of original owner Jameswar Panda, taking advantage

of which the defendants claimed their right over the

property. Hence, she filed the suit.

On the other hand, the case of Brajaraj Mishra is

that Schedule-A property is the self acquired property of

one Harekrushna Mishra, who died in the year 1964

leaving behind his widow, Sabitri Mishra, two sons, namely

Brajaraj, Lingaraj and three daughters, namely Santilata,

Manorama and Urmila. Upon death of Harekrushna,

Schedule -A property devolved upon his widow, sons and

daughters. Harekrushna has constructed his residential

house. In so far as Schedule-B property, it is claimed that

the same belongs to Harihar Mishra (father of Sabitri) over

which he had constructed a house. After his death, the

Schedule-B property devolved upon Sabitri, and

Sushilarani Mishra and the defendants are jointly entitled

to succeed to the same. One of the sons of Harekrushna,

namely, Lingaraj, who is the husband of Sushilarani

managed to obtain a sale deed from their mother, Sabitri in

favour of his wife Sushilarani by practicing fraud. Said sale

deed was never acted upon and was a sham transaction

without any consideration and delivery of possession.

Thus, both Schedule -A and B properties are the joint

family properties of the parties, which are liable to be

partitioned. As Lingaraj and Sushilarani did not agree for

mutual partition, Brajaraj filed the suit for partition.

5. Basing on the rival pleadings, the trial Court

framed six issues in T.S. No. 4/53 of 2007/2001 and five

issues in C.S. No. 15/434 of 2007/2003. Several witnesses

were examined by both the parties and documentary

evidence was also adduced by them. After considering the

evidence on record, the trial Court held that the sale deed

executed in favour of Sushilarani is void and accordingly

dismissed the suit filed by her. The trial Court held that

the Schedule-A and B properties are the joint family

properties of the parties and therefore, the suit filed by

Brajaraj was decreed directing the parties to amicably

partition the properties among them allotting appropriate

shares to each.

6. Both the judgments were carried in appeal by

Sushilarani Mishra. Learned District Judge considered the

grounds raised in appeal and examined the evidence on

record vis-à-vis the findings of the trial Court. It was found

that the sale deed was executed when the vendor, Sabitri

was old and ailing and was under the care and custody of

Sushilarani and her husband, who were in a position to

dominate and take advantage of her. Secondly, the place of

registration of the sale deed was not clearly proved. Thirdly,

the attesting witnesses were arranged by the scribe of the

deed who were not known to the vendor. Fourthly, there

was no evidence of any consideration amount being paid to

the vendor by the vendee. Fifthly, the evidence on record

revealed that Sushilarani Mishra was not in possession of

the suit house. It was thus held that the vendor had not

validly executed the sale deed in favour of Sushilarani

Mishra nor delivered possession thereof. The First

Appellate Court thus confirmed the judgment of the trial

Court and dismissed the appeals.

7. Heard Mr. P.K. Mohanty, learned Senior Counsel

with Mr. D.N. Mohapatra, learned counsel for the

appellant; Mr. Sumit Kumar Mohanty, learned counsel

appearing for Respondent Nos. 1(a) and 1(b) in RSA No.

346 of 2014; Mr. S. Mohanty, learned counsel appearing

for Respondent Nos. 2(b) to 2(d) in RSA No. 346 of 2014

and Respondent Nos. 2(a) to 2(c) in RSA No. 347 of 2014;

and Mr. Bibekananda Bhuyan, learned counsel appearing

for Respondents Nos. 2(e) to 2(h) in RSA No. 346 of 2014 &

Respondent Nos.7 to R-10 in RSA No. 347 of 2014.

8. Assailing the impugned judgments, Mr. Mohanty

would argue that both the courts below committed

manifest error in holding the registered sale deed executed

by Sabitri in favour of Sushilarani as not genuine ignoring

the fact of it its registration before the Sub-Registrar by

payment of consideration money to the vendor. This,

according to Mr. Mohanty runs contrary to the provisions

contained in Section-58(1)(c) and Section 60(2) of the

Registration Act. Mr. Mohanty further argues that one of

the attesting witnesses to the sale deed being dead and

reasonable explanation being offered for non-examination

of the other witness, the courts below could not have taken

it as a ground to treat the document as void. Similarly,

non-examination of the scribe identifier and the attesting

witnesses being adequately explained, the same would not

render the sale transaction void.

9. Mr. B. Bhuyan, learned counsel leading the

arguments on behalf of all the respondents submits that

firstly, this Court would ordinarily be slow to disturb a

concurrent finding of fact rendered by the trial Court and

confirmed by the Appellate Court. Mr. Bhuyan further

argues that mere registration of a document cannot give

any sanctity if evidence shows that it is a sham

transaction. Further, there is ample evidence on record to

show that the document was executed under suspicious

circumstances, for which the burden of proving the same

was on the beneficiary thereof. The vendee, however,

miserably failed to discharge such burden by adducing

cogent evidence. Therefore, Mr. Bhuyan argues that the

findings of the Courts below do not warrant any

interference.

10. In order to clear the deck at the outset, it is

noted that there is no dispute between the parties as

regards the nature and status of the Schedule -A property,

which is the joint family property of the parties and hence,

liable for partition. The dispute is therefore, confined only

to Schedule-B property. It is undisputed that said property

originally belonged to one Jambeswar Panda, who sold it to

Harihar Mishra, who died leaving behind Gangadhar and

Sabitri. Sabitri happens to be the widow of one

Harekrushna Mishra, who had two sons and three

daughters, namely Lingaraj, Brajaraj, Santilata, Urmila

and Manorama. Sushilarani is the wife of Lingaraj, the

eldest son of Harekrushna and Sabitri. There is ample

evidence on record by way of admission of P.W.-4 that

Sabitri was suffering from Parkinson's disease from 1997

to 2003, i.e. till her death. She was aged about 75 years at

the time of execution of the sale deed dated 15.12.2000 in

favour of her elder daughter-in-law, Sushilarani

purportedly to meet her legal expenses. Both the Courts

below have disbelieved such fact and have considered the

sale transaction to have been conducted under suspicious

circumstances. It is otherwise borne from the evidence on

record that at the time of execution of the RSD, Sabitri was

under the care of Lingaraj and Sushilarani. The First

Appellate Court therefore held, and according to this Court

rightly so, that both were in a position to take advantage of

her. The courts below have also elaborately discussed the

evidence to find other material discrepancies, such as place

of registration, status of the attesting witnesses, lack of

evidence regarding payment of consideration and most

importantly, the fact that the vendee Sushilarani was not

in possession of the suit house. The appellant has not been

able to demonstrate before this Court as to how such

findings are incorrect or perverse. After independently

examining the record, this Court is persuaded to concur

with the factual findings rendered by both the courts below

and therefore, finds no substantial question of law involved

so as to interfere.

11. As regards the effect of Section-58, particularly

sub-Section (1), Clause-(c) thereof it has been argued that

the endorsement of the Sub-Registrar in the document

(RSD) regarding payment of the consideration amount is

valid proof of the document. For immediate reference, the

relevant provision is quoted hereinbelow.

58. Particulars to be endorsed on documents admitted to registration.--(l) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed

from time to time the following particulars, namely:--

(a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal."

12. As already stated, Mr. Bhuyan has opposed such

contention by arguing that such endorsement without any

evidence being adduced to show that the consideration

amount was actually paid before the Sub-Registrar cannot

confer any sanctity to the document, which has otherwise

been proved to reflect a sham transaction. This Court, after

examining the provisions as referred above and the

evidence on record is inclined to accept the contentions of

Mr. Bhuyan that mere endorsement by the Sub-Registrar

cannot override the evidence on record that the sale was a

sham transaction.

13. Mr. Mohanty has also referred to Section 60 of

the Registration Act, which is quoted hereinbelow.

"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 endorsement, referred to in section 59 have occurred as therein mentioned."

It is argued that once the document is registered

with the required certificate being endorsed by the

Registering Officer, the same acquires legal sanctity. Mr.

Bhuyan has reiterated his earlier objection that mere

endorsement of registration cannot validate an otherwise

invalid transaction. This Court is also of the same view

particularly, having regard to the evidence to show that the

document was executed under suspicious circumstances.

14. It is further seen that both the Courts below

have referred to the celebrated judgment of the Apex Court

in the case of MST Kharbuja Kuer v. Jangbahadur Rai,

reported in AIR 1963 SC 1203, wherein it was held that

when the document has been executed by an old, sick or

pardahnashin lady, the burden to establish that she

executed the same after proper understanding the

consequences of such execution rests on the person who

relies on it. Similar is the view taken by the Apex Court in

the case of Sethani v. Bhana reported in 1993 Supp (4)

SCC 639, wherein it was held as follows;

"4. We have heard learned counsel for the parties. The facts are so glaring, still the onus to prove the issue has been over-emphasised. It is true that the initial onus to prove undue influence was on the plaintiff-appellant, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhana- respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhana-respondent, as well as the manner and nature of the transaction. The High Court, in our view, erroneously took the view that

the plaintiff-appellant was unable to discharge the onus that the transaction was as a result of undue influence. There was no cogent reason to come to that view and more so to upset the well-reasoned finding recorded by the trial court. Therefore, opting for the view of the trial court, we reverse the finding that the sale deed was executed by the mother of the appellant under undue influence of the respondent who took advantage of the helplessness of the old widow of his brother. The advantage thus obtained by him must thus be returned."

15. These principles have been well settled and

given the factual scenario of the case as discussed above,

this Court can only be in respectful agreement with the

dictum of the Apex Court in the cited cases.

16. For the foregoing reasons therefore, this Court

finds no infirmity much less illegality in the impugned

judgments so as to be persuaded to interfere therewith.