Smt. Ghousia Banu vs Gamarunnissa Begum Died
2023 Latest Caselaw 2769 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

               SECOND APPEAL No.249 of 2004

JUDGMENT:

This Second Appeal is filed against the Judgment and

Decree dated 30.01.2004 in A.S.No.180 of 2003 passed by the

learned XIII - Additional Chief Judge (F.T.C), City Civil Court,

Hyderabad in which the Judgment and decree dated 24.01.2003

in O.S.No.1270 of 2001 passed by the learned VI - Junior Civil

Judge, City Civil Court, Hyderabad was set aside.

2. One Qamarunnisa Begum/respondent herein represented

by her General Power of Attorney Niyamat filed a suit in

O.S.No.1270 of 2001 against her sister's daughter Ghousia

Bano/appellant herein for cancellation of the sale deed dated

31.07.1998 and for recovery of possession of the suit schedule

property, but the suit was dismissed by the trial Court, against

which she preferred an appeal before the first appellate Court

and the same was decided in her favour. Aggrieved by the said

Judgment, respondent therein preferred the present appeal.

3. The learned Counsel for the appellant/defendant raised

the following substantial questions of law:

a) Whether the initial burden of proving case is on the plaintiff?

b) Whether the General Power of Attorney can be permitted to represent as party as witness?

c) Whether presumption under Section 114(g) of the Indian Evidence Act with regard to drawing of adverse inference when party abstains from entering the witness box?

d) Whether the statement made before independent authority i.e., Registrar amounts to admission under Section 17 of the Indian Evidence Act and binds the plaintiff under Section 21 of the Evidence Act?

e) Whether the admission of a party to an attested document is sufficient proof of execution under Section 70 of the Indian Evidence Act?

f) Whether other evidence is in admissible under Section 91 and 92 of the Evidence Act as against admission made before the independent Government Officer i.e., Registrar?

g) Whether in capacity disability for executing the earlier document will be equally applies to subsequent execution of other documents.

h) Whether onus shifts on the plaintiff if the defendant proves that consideration passed on and execution of registered sale deed?

i) Whether facts which are in the knowledge of person, the burden of proving the same would be upon the person under Section 106 of the Evidence Act?

4. The brief facts of the case are that respondent/plaintiff

was blind since the age of 2½ or 3 years and later she also

became deaf and she was residing with her sister in Parande

village, Maharashtra. She executed Special Power of Attorney to

her sister's husband under Ex.A1 and thus he filed suit on her

behalf against the appellant/defendant. He stated that

respondent/plaintiff is the absolute owner of the house property

bearing No.17-8-533/35 admeasuring 100 Sq.yrds, situated at

Bagh-E-Jahan Ara, Chawani Nade Ali Baig, Hyderabad. She

purchased the said property from one Hajra Bee through

registered sale deed vide document No.4276 of 1981 dated

02.12.1981. She purchased the said property from her personal

savings and the plaintiff's father and grandmother were residing

in the said house along with the respondent/plaintiff, but from

the past 9 to 10 years, she was unable to hear properly and

became deaf, as such she was residing with her sister in

Paranda Village, Maharashtra. Her father was carrying cloth

business at Hyderabad and he expired on 07.06.1998 and his

'Chehellum' (40th day ceremony) was performed in the suit

schedule property and the respondent/plaintiff also attended for

the same.

5. One of the sisters of the respondent/plaintiff by name

Hameeda Begum requested the respondent/plaintiff that she

was in crisis and has no shelter, as such respondent/plaintiff

permitted her to stay in her home i.e., suit schedule property.

After the 40th day ceremony, when she intended to go to

Paranda village, her sister Hameeda Begum along with her

daughter/appellant and her husband requested her to stay in

the said house and assured that they will look after her well and

also stated that she can get pension from the Government, as

the Government granting pension to the blind persons, as such

she decided to stay in Hyderabad. The appellant/defendant and

her husband took her thumb impressions on various papers

and also obtained her thumb impressions in Collector Office

and stated that pension amount will be credited to her account

within short period. Later there was change in their attitude and

they started ill-treating her and also necked her out, as such

she came to Paranda village and narrated all the facts to her

sister and brother-in-law who was the Power of Attorney holder

and on enquiry, he came to know about the execution of the

sale deed by the respondent/plaintiff in favour of

appellant/defendant on 31.07.1998. He stated that

respondent/plaintiff never intended to sell the property and she

has not executed any sale deed in favour of the

appellant/defendant, but the defendant along with her husband

taking undue advantage of her blindness and also the hearing

impairment played fraud upon her and took her thumb

impressions and also took her to the Sub-Registrar's Office by

falsely stating it as Collector's Office and got executed the

registered sale deed in their favour. The Power of Attorney

holder obtained the certified copy of the sale deed and got

issued legal notice dated 28.11.2000, but it was returned by the

appellant/defendant, as such he filed the suit for cancellation of

the sale deed representing the respondent/plaintiff.

6. In the written statement filed by D.W.1, she denied all the

material allegations and stated that respondent/plaintiff was in

need of money and thus she sold the property for total sale

consideration of Rs.1,00,000/- to the appellant/defendant

through a registered sale deed dated 31.07.1998. The

respondent/plaintiff received the amount with her free will and

consent and registered the sale deed in the Office of the

Sub-Registrar and also delivered the possession on the same

day, as such the question of threatening her does not arise.

From the date of possession, appellant/defendant was residing

in the said house and the suit was filed by the

respondent/plaintiff only at the instance of the G.P.A holder

Nimath with a malafide intention to harass her. She further

stated that respondent/plaintiff received the total sale

consideration at time of registration of the sale deed and thus

requested the Court to dismiss the suit.

7. The G.P.A holder of the plaintiff was examined as P.W.1

and marked Exs.A1 to A10 on behalf of the plaintiff. The

defendant was examined herself as D.W.1 and marked Ex.B1 on

her behalf, she also got examined attestor as D.W.2. The trial

Court considering the oral and documentary evidence on record,

dismissed the suit.

8. The appellant/defendant mainly relied upon the

Judgment of the Hon'ble Apex Court, in the case of Vidhyadhar

Vs. Manik Rao and another, 1 in which it was held that if a

party to a suit abstaining from entering witness box adverse

inference against her would arise, in that case suit set up by her

is not correct. She also contended that respondent/plaintiff has

not entered into witness box and she is the best person to speak

about the fraud played by the appellant/defendant and she has

personal knowledge about the execution of the registered sale

deed. It was also stated that D.W.2 stated regarding the

payment of amount and execution of the sale deed and he

supported the version of D.W.1. The appellant/defendant stated

that she obtained Rs.80,000/- from her husband, who was a

businessman and the balance of Rs.20,000/- by selling away

her jewelry and thus she has financial capacity to pay the

amount and with the said observation, the suit was dismissed.

Aggrieved by the said Judgment, respondent/plaintiff preferred

1999(3) SCC 102

an appeal before the first appellate Court. The first appellate

Court held that respondent/plaintiff was blind and deaf, as

such merely because she has not deposed as P.W.1, adverse

inference cannot be taken against her. It was also observed that

D.W.1 has not proved her financial capacity to pay the amount

of Rs.1,00,000/- and further stated that D.W.2 in his chief

affidavit stated that amount was paid in the house, whereas

D.W.1 stated that it was paid in the sub-registrar's office.

Admittedly, it was not paid before the Sub-registrar. As the

respondent/plaintiff was blind and deaf, the contents of the sale

deed were never read over to her and there was no endorsement

to that effect. The main contention of the respondent/plaintiff is

that appellant/defendant along with her husband and mother

obtained her thumb impressions on various papers on the

pretext of getting pension from the Government and they also

took her to the Collector's Office. As she is blind, she cannot

know whether it is Collector's Office or Sub-Registrar's Office or

M.R.O Office. The Sub-Registrar has not put any question to the

respondent/plaintiff at the time of registration and it was not

ensured whether she executed the sale deed voluntarily without

any coercion and undue influence. Moreover, D.W.1 in her

evidence stated that at the time of execution of the registered

sale deed her aunties were also present, but none of them

present before the Court and none of them appeared along with

the respondent/plaintiff before the Sub-Registrar Office. D.W.2

stated that he along with respondent/plaintiff and

appellant/defendant went to the office of the Sub-Registrar.

Though D.W.1 stated that D.W.2 is the friend of her husband,

he clearly stated that he was residing in the same locality and

he was not the friend of the husband of D.W.1. When the

husband of D.W.1 requested him to attest in the Sub-Registrar's

Office, he went along with them on that day.

9. Admittedly, the suit schedule property is in the name of

respondent/plaintiff and D.W.1 filed Ex.B1 link document to

show that the suit property was purchased by the

respondent/plaintiff way back in the year 1981 and the sale

deed was executed by Hajra Bee on 02.12.1981 vide document

No.4276 of 1981. It was stated in the plaint that

respondent/plaintiff was residing with her sister in Paranda

Village, Maharashtra. Her father and grandmother were residing

in the suit property. After expiry of her father, when she went to

the 40 days ceremony of her father, appellant/defendant,

appellant's husband and mother insisted her to stay in the

same house along with them and on the pretext of getting

pension, obtained her thumb impressions on various papers

and also after two weeks they obtained her thumb impressions

in the office of the Sub-Registrar and thus got registered sale

deed without her knowledge and consent. Later, they necked

her out and when she informed the said facts to the Special

Power of Attorney holder and to her sister at Maharashtra, he

enquired about the facts and came to know about the

registration of the sale deed and obtained the certified copy of

the sale deed and got issued legal notice to the

appellant/defendant, but it was returned, as such he filed suit

for cancellation of the sale deed.

10. The contention of the appellant/defendant is that initial

burden is on the respondent/plaintiff to prove the execution of

Ex.A2 and thus onus shifts on the appellant/defendant, but in

this case, the respondent/plaintiff was blind and deaf and her

thumb impressions were obtained by misrepresentation, as

such she got filed suit through G.P.A holder and thus the first

appellate Court rightly held that merely because she has not

entered into the witness box, adverse inference cannot be taken

against her. It was also held that D.W.1 failed to prove her

financial capacity. The respondent/plaintiff stated that she has

no necessity to sell the property, but the appellant/defendant

contended that she was residing in Maharashtra since long

time, as such she intended to dispose of the property at

Hyderabad and offered to sell the same. Admittedly, at the time

of execution of the sale deed except D.W.1 and her husband no

one else present on behalf of the respondent/plaintiff and it

creates doubt and suspicion regarding the execution of the

registered sale deed by the respondent/plaintiff voluntarily with

free will and consent. Immediately after the death of her father,

it was got executed. Even when she was taken to the office of

the Sub-Registrar for registration of the document, no questions

were put by the Sub-Registrar to the respondent/plaintiff even

knowing pretty well that she was blind and deaf. The contents of

the sale deed were not read over to her and no such

endorsement was made and even the registered sale deed was

not filed by D.W.1 before the trial Court for the reasons best

known to her. The G.P.A holder obtained the certified copy and

filed the same under Ex.A2. Regarding the payment of sale

consideration, there are discrepancies in the evidence of D.Ws.1

and 2. D.W2 stated that amount was paid in the said house i.e.,

suit schedule property, whereas, D.W.1 stated that amount was

paid in the office of the Sub-Registrar in the presence of two

witnesses and the said fact was not stated by her in the written

statement at the earliest point of time and no receipt was

executed by respondent/plaintiff in favour of D.W.1 on receiving

the sale consideration. The first appellate Court rightly

discussed all the points in detail and set aside the Judgment of

the trial Court. This Court finds no reason to interfere with the

Judgment of the first appellate Court. The points raised in the

second appeal were already dealt with in detail in the Judgment

of the first appellate Court and thus this Court finds that it is

just and reasonable to dismiss the present appeal.

11. In the result, the second appeal is dismissed, confirming

the Judgment and decree dated 30.01.2004 passed by the first

appellate Court in A.S.No.180 of 2003, in which the Judgment

and decree dated 24.01.2003 passed by the trial Court in

O.S.No.1270 of 2001, was set aside. There shall be no order as

to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 27.09.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

SECOND APPEAL No.249 of 2004

DATE: 27.09.2023

TRI