RSA/28/2017
2022 Latest Caselaw 213 Tri

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             HIGH COURT OF TRIPURA
                A_G_A_R_T_A_L_A
                RSA. No. 28 of 2017

     ***In compliance to Hon‟ble Courts order dated
     01.09.2020 passed in I.A. 02 of 2020 in RSA. 28 of 2017,
     the legal heirs of the sole appellant Sri Amal Ch. Nath has
     been incorporated as follows:
1    Smt. Minati Nath, wife of late Amal Ch. Nath.
2.   Sri Amarjit Nath (minor) son of late Amal Ch. Nath.
     Appellant No.2 being minor represented by his natural
     guardian, the mother, the appellant No.1
     Both residents of West Panisagar, P.O. & P.S. Panisagar,
     District: North Tripura.

                                                 .....Appellants

                    -V E R S U S-

     as per the Hon‟ble Courts order dated 15.02.2020 passed
     in connected I.A. No. 03 of 2022, the name of deceased
     respondent No.1 is deleted.

2. Smt. Tapati Rani Nath, wife of Moti Nath daughter of late Adaitya Charan Nath, resident of Village & P.O. Rowa, P.O. & P.S. Panisagar, District: North Tripura.

3. Sri Brajendra Nath, son of late Barna Charan Nath, Village & P.O. Deochara, P.S. Panisagar, District: North Tripura.

4. Sri Sanjoy Das, son of Sri Samarendra Das resident of West Panisagar P.O. & P.S. Panisagar, District: North Tripura.

5. Sri Samarendra Das, son of late Naba Kumar Das, resident of West Panisagar, P.O. & P.S. Panisagar, District: North Tripura.

6. Sri Bipul Nath, son of not known, deed writer, Dharmanagar Deed Writer Association, P.O. P.S. & Sub- Division: Dharmanagar, District: North Tripura.

7. Sri Animesh Sarkar, son of not known, Deed Writer, Dharmanagar Deed Writer Association, P.O. P.S. & Sub- Division: Dharmanagar, District: North Tripura.

..... Respondents

8. Sri Bimal Chandra Nath, son of late Adaitya Charan Nath, resident of Vill-Uricharra (Subhash Nagar), P.O. & P.S. Kanchanpur, District: North Tripura.

......Pro-forma-respondent.

                        B_E_F_O_R_E
           HON'BLE MR. JUSTICE T. AMARNATH GOUD

For Appellant(s)          :      Mr. K. Saha, Advocate.
For Respondent(s)         :      Mr. S. Deb, Sr. Advocate.
                                 Mr. S. Bhattacharjee, Advocate.
Date of hearing           :      18.02.2022
Date of delivery of
judgment and order        :      22.02.2022
Whether fit for reporting :      YES


                        JUDGMENT & ORDER

Heard Mr. K. Saha, learned counsel appearing on behalf of Mr. S. Lodh, learned counsel for the appellants. Also heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the respondents.

[2] This is an appeal under Section 100 of the CPC against the judgment and decree dated 11.07.2017 passed by the learned District Judge, North Tripura, Dharmanagar in Title Appeal No.14 of 2016, whereby and whereunder, the learned District Judge, North Tripura affirmed the judgment and decree dated 05.03.2016 and 16.03.2016 respectively, passed by the learned Civil Judge, Sr. Division, Dharmanagar, North Tripura in Title Suit No.15 of 2014, by which the learned Civil Judge, Sr. Division decreed the suit filed by the respondent

No.1. At the time of admitting the appeal, the following substantial question of law was formulated by this Court:

"Whether the presumption as drawn by the first appellate Court can be sustained or the assumed foundations have their roots in evidence?"

[3] Before starting with this appeal, it is pertinent to mention here that the present appellants are the legal heirs of the defendant-1 in the original suit filed by the mother of the defendant No.1. But, both the parties are not alive at present. As such, the legal heirs of the defendant No.1 filed this appeal before this Court for the reliefs as prayed for.

[4] The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. The factual background of the plaintiff‟s case, in a nutshell, is that the plaintiff Smt. Renu Bala Nath (since deceased) and her younger son Amar Ch. Nath (since deceased) were the joint owners and possessors of the A-schedule land measuring total 0.62 acre under khatian No.1031 comprising of R.S. Plot No.3322 of 0.45 acre, 3323/8942 of 0.12 acre and R.S. Plot No.3398/8943 of 0.050 acre. Deceased Amar Ch. Nath who died on 16.07.2013 was the absolute owner and possessor of the schedule-B land measuring 0.25 acre under khatian No. 1335 of Mouza Panisagar. The husband of the plaintiff died 35 years ago leaving behind the plaintiff, three sons, defendant No.1, pro-defendant No.9 and deceased Amar Ch. Nath with one daughter defendant No.3. Defendant No.9 stayed separately. The plaintiff in the suit used to stay with her son Amar Ch. Nath in the schedule-B land. Amar Ch. Nath who was suffering from paranoid schizophrenia since his childhood, died on 16.07.2013. The plaintiff being poor is looked after by her elder son Bimal Ch. Nath. It is also asserted that in the year 2012 the plaintiff requested defendant No.1(

since deceased) to manage money for treatment of her ailing and insane son by mortgaging 05 satak land as his condition became worse. Thereafter, on repeated request, the defendant No.1 gave Rs.10,000/- to the plaintiff on condition to execute document regarding mortgage

[5] It has been also pleaded that in the month of March, 2012 Amar Ch. Nath was treated in Agartala but, he was not recovered. Then after, 4/5 months later, defendant No.1 asked the plaintiff to sign some documents while in good faith and believing her son, defendant No.1 without any doubt put her signature as per advice and suggestion of defendant No.1 though their contents were not read over to her. Subsequently, after 2/3 months the deceased plaintiff observed change in the attitude of the defendant No.1 as he asked to vacate her residential house where she was living with her insane son and on this issue dispute arose.

[6] Thereafter, the plaintiff having ascertained came to know that the defendant No.1 managed to execute three registered sale deeds in favour of defendant No.5 Sri Sanjoy Das, defendant No.6 Sri Samarendra Das and in favour of the defendant No.1 himself in respect of the landed properties of the plaintiff and her insane son Amar Ch. Nath. Subsequently, the plaintiff obtained the certified copies of the sale deeds bearing No.1-1305 dated 24.08.2012 being executed purportedly by her for 0.45 acre land, sale deed No.1-1306 dated 24.08.2012 purportedly executed by her and her son Amar Ch. Nath for land measuring 0.12 acre in favour of the defendant Nos. 6 and 5 respectively. The plaintiff also obtained the certified copy of another sale deed No.1-01304 dated 28.04.2012 in respect of the land measuring 0.25 acre purportedly executed by Amar Ch. Nath in favour of defendant No.1.

[7] Thereafter, getting their certified copies, the plaintiff realized that the defendant No.1 in collusion with deed writers had fraudulently managed and obtained the sale deeds using fraud and mis-representation to grab all the landed property of plaintiff. The plaintiff was a rustic, illiterate having capacity to put signature only while her deceased son was suffering from insanity. The defendant No.1 being her son, she had good faith without any imagination about any practice of fraud and misrepresentation by him. The plaintiff had no question to dispose of all the landed property and became shelterless as actually she agreed to mortgage 05 statk land for treatment of her ailing son while she was made understood that mortgage of 05 satak land was actually executed but, taking the advantage of simplicity and good faith of plaintiff and using fraud and misrepresentation, the defendant No.1 managed to have the registered sale deed in respect of almost all the landed property i.e. 82 satak out of 87 satak of land belonging to plaintiff and her ailing son.

[8] According to the plaintiff, those three registered sale deeds are forged and false documents as defendant obtained the deeds by misrepresentation with belief that she was executing mortgage deed in respect of a small portion of a land. There was no question to execute any sale deed in respect of the homestead land of plaintiff and her son Amar Ch. Nath was not able to understand anything regarding any sale deeds nor he had capacity to put signature or thumb impression as he was not in sound state of mind at the relevant point of time of allegedly executed sale deed in respect of his land.

[9] The next plea of the plaintiff is that on 16.07.2013, Amar Ch. Nath died leaving behind the plaintiff as his legal heir and she became the owner and possessor of the schedule B suit land. It is further alleged that the plaintiff has been dispossessed from the schedule-A land on

15.08.2014 forcefully by the defendant Nos.5 and 6 while, the plaintiff occupied the schedule B suit land and on 01.08.2014 the defendant No.1 tried to dispossess her by giving threat to cause dire consequence unless the schedule B land is vacated. With the above contentions, the plaintiff since deceased sought for declaration of nullity of the three alleged sale deeds on the ground of fraud, collusion and not binding upon the plaintiff with the declaratory relief of her right, title and interest on the A and B schedule suit land and consequential reliefs.

[10] In response to the summons issued upon the defendants, all the defendants appeared and contested the suit by filing written statement wherein they categorically denied all the assertions of the plaintiff particularly, that the plaintiff has got any right, title and interest over the A and B schedule land consequent to execution of the 3 registered sale deeds.

[11] In response to the statements made by the plaintiff in the plaint, the defendants in support of their case have categorically stated that the plaintiff and her deceased son executed the registered sale deed in favour of the defendant No.6 with full state of mind in respect of 0.45 acre land of khatian No.1031 and registered sale deed No.1-1306 dated 24.08.2012 for land of 0.12 acre in favour of the defendant No.5 by receiving due consideration amount from them and observing all legal formalities in presence of the executants while the defendant Nos. 5 and 6 have been possessing their respective purchased land as bona fide purchaser. According to the defendants, two registered sale deeds of the defendant Nos. 5 and 6 are genuine deeds while the executants relinquished their right, title and interest and possession in their favour and so the plaintiff is not entitled to get the declaration of her title and recovery of possession for such sold out land.

[12] It has been pleaded that the schedule B land was originally a government khash land being allotted in the name of Amar Ch. Nath since the deceased and after getting allotment he applied for mutation with his full state of mind and his name has been recorded in the record of right. Subsequently, Amar Ch. Nath during his life time, with his allotted land of 0.25 acre observing all legal formalities has taken possession of that suit land without any hindrance as bond fide purchaser. This registered sale deed No.1-01-304 dated 24.08.2012 is relinquished his title and possession to the defendant No.1. According to the defendants, the deed writers i.e. the defendant Nos.7 and 8 made no wrong at the time of writing of the sale deeds. It is also noted that earlier the defendant No.1 instituted suit No. T.S.60 of 2013 in the Court of learned Civil Judge (Jr.) Division, North Tripura for perpetual injunction against pro-defendant No.9, Bimal Ch. Nath and principal defendant No.3 Smt. Tapati Rani Nath in respect of schedule B land which was ultimately disposed of on compromise. The defendants also pleaded that by misleading the Court the plaintiff wanted to grab the property of defendant Nos.1, 5 and 6 and as such, the plaintiff is not entitled to any relief as prayed for.

[13] After hearing both the parties, the learned trial Court, had observed as under:

"In the result, it hereby held that the plaintiff has succeeded to establish the cause of action for the suit and consequently the suit is allowed and decreed with declaration that plaintiff has right, title and interest over the A schedule land measuring total 0.57 acre (0.45 acre +0.12 acre) under khatian No.1031 vide Exbt.1.

It is also declared that the plaintiff has right, title and interest and possession over the B schedule land measuring 0.25 acre under khatian No.1335 vide Exbt.2.

It is also hereby declared that the three sale deeds of schedule C viz

(a) registered sale deed No.1-01304 dated 24.08.2012 (b) registered sale deed vide No.1-01305 dated 24.08.2012 and (c) the registered sale deed vide No.1-1306 dated 24.08.2012 are fraudulent, collusive, void and not binding upon plaintiff. Consequently these three registered sale deeds are hereby cancelled as per Section-31 of the Specific Relief Act.

Plaintiff is also entitled to get recovery of vacant possession of the entire A schedule land by removing all constructions therefrom. Defendants No.1, 5 and 6 or their men or agent are directed to hand over the vacant possession of the A schedule suit land in favour of plaintiff within 30 days from the date of decree removing all constructions therefrom.

Defendant No.1 or his men or agent or any other person claiming under him are hereby perpetually restrained from entering into B schedule suit land and from disturbing the peaceful possession of plaintiff on this land in any manner.

Inform sub-registrar, sub Registry Office, Dharmanagar, North Tripura about cancellation of the three suit deeds of schedule „C‟ viz (a) registered sale deed No.1-01304 dated 24.08.2012 (b) registered sale deed vide No.1-01305 dated 24.08.2012 and (c) the registered sale deed vide No.1-1306 dated 24.08.2012 by sending a copy of decree for doing the needful as per Section-31(2) of the Specific Relief Act.

It is also observed in this case that the plaintiff being an aged woman of 78 years old has suffered the pain of cheating and fraud by her own blooded son defendant No.1(Amal Ch. Nath) in disposing of her lawful properties. So it is made clear that in case plaintiff wishes to transfer or alienate her landed property of Schedule A and Schedule B , she can take the resort and service of the legal services institution (SDLSC, Dharmanagar, North Tripura) at free of cost for such purpose so as to avoid any

fraudulent practice on her by any cheat or in maintaining her landed property."

[14] Being aggrieved by the impugned judgment and decree dated 05.03.2016 and 16.03.2016 respectively, passed by the learned Civil Judge, Sr. Division, Dharmanagar, North Tripura in Title Suit No.15 of 2014, the defendant in the suit has preferred and appeal before the learned District Judge, North Tripura, Dharmanagar in Title Appeal No.14 of 2016, whereby and whereunder, the learned District Judge, North Tripura affirmed the judgment and decree dated 05.03.2016 and 16.03.2016 respectively, observing thus:

"In the result, the appeal is dismissed being devoid of merit. The judgment and decree dated 05.03.2016 and 16.03.2016 respectively, passed by the learned Civil Judge, Sr. Division, Dharmanagar, North Tripura in Title Suit No.15 of 2014 wherein the Ld. Trial Court decreed the suit on contest is hereby upheld.

Both the appeals bearing No. Title Appeal No.14 of 2016 and Title Appeal No.20 of 2016 are hereby dismissed on contest without cost, keep a copy of this judgment in the connected appeal. Also prepare the decree accordingly. Send back the L.C. Record along with a copy of this judgment."

[15] Being seriously aggrieved by and dissatisfied with the concurrent findings of both the Courts below, the present second appeal has been preferred.

[16] Having heard the learned counsel for the parties and after considering the observations made by both the Courts below, this Court thinks it necessary to discuss the issues framed by the courts below for proper adjudication.

[17] Here, it is to be considered whether the three registered sale deeds are illegal and fraudulent instruments and liable to be cancelled. With reference to this issue, this Court meticulously gone through the evidence on record in the light of the oral arguments of both parties. The plaintiff in the OS has stated that the three sale deeds are the result of fraud and misrepresentation practiced by the defendant No.1 in the OS on whom plaintiff being the mother had fully believed and relied upon him but, her son taking the advantage of her innocence and unconditional belief and faith on him, he practiced fraud by misrepresenting that one mortgaged deed was to be executed by her. According to the plaintiff she never thought to dispose of her all landed property by sale to defendant Nos.5 and 6 and besides her younger son Amar Ch. Nath (since deceased) was suffering from paranoid schizophrenia who had no capacity to sign or put thumb impression on the sale deed. It has also been stated that the plaintiff told the defendant No.1 to arrange for money for the treatment of her ailing son by mortgaging a portion of her land but, the defendant No.1 in collusion with others managed to create forged sale deeds where, as per his asking and believing him fully without thinking of any fraud the plaintiff put the signature.

[18] On the other hand, the defendant in support of their contentions has stated that the plaintiff cannot be accepted as she and her deceased son knowing fully and with their full state of mind and in presence of witnesses put their signature and thumb impression on the respective sale deeds. There was no iota of any fraud or misrepresentation or any undue influence practiced upon plaintiff and her son. The defendants have further stated that the medical documents regarding her deceased son‟s un-soudedness, were not examined.

[19] It is admitted position that the plaintiff Smt. Renubala Nath (since deceased) and her son Amar Ch. Nath (since deceased) were the joint owners of total land measuring 0.620 acres under khatian No.11335, sabek Dag No.2181/6371 corresponding to R.S. Plot No.4222/9043 vide Exbt.2. There is also no dispute that Amar Ch. Nath was the absolute owner of schedule B land measuring 0.25 acre appertaining to khatian No.1335 sabek Dag No.2181/6371 corresponding to R.S. Plot No.4222/9043 vide Exbt.2. It is also undisputed that Amar Ch. Nath died on 16.07.2013 leaving behind his mother plaintiff, defendant No.1 Amar Ch. Nath pro-defendant No.9 Bimal Ch. Nath as brothers while defendant No.3 Smt. Tapati Rani Nath as his sister.

[20] The case of the plaintiff is that the registered sale deed vide No.01350 dated 24.08.2012 vide Exbt.B in respect of land measuring 0.45 acre and the resitered sale deed No.1-01306 dated 24.08.2012 vide Exbt.C in respect of 0.12 acre land of khatian No.1031 purportedly executed by the plaintiff and her Amar Ch. Nath, were fraudulently made and obtained by misrepresentation.

[21] PW-1 deposed in her affidavit in chief that in the year 2012 the plaintiff requested defendant No.1 to manage money for treatment of her ailing and insane son by mortgaging 05 satak land as his condition became worse. PW-1 also deposed that then after repeated request the defendant No.1gave Rs.10,000/- to her on condition to execute document regarding mortgage within few days while in the month of March 2012 Amar Ch. Nath was treated in Agartala but he was not recovered and after 4/5 months later, the defendant No.1 asked the plaintiff to sign some documents while in good faith and believing her son without any doubt she put her signature as per advice and suggestion of the defendant No.1.

[22] According to PW-1, after 2/3 the defendant asked to vacate her residential house where she was living with her insane son and on this issue dispute arose and then the plaintiff came to know that the defendant No.1 managed to execute three registered sale deeds in favour of defendants No.5 and 6 and in favour of the defendant No.1. PW-1 also narrated that the defendant No.1 being her son she had good faith without any imagination about any practice of fraud and misrepresentation by him. PW-1 further stated that the plaintiff actually agreed to mortgage 05 satak land for the treatment of her ailing son but, subsequently she could understand that mortgage of 05 satak land was actually executed by the defendant No.1.

[23] PW-2 Bimal Ch. Nath also narrated the above relevant facts in his evidence particularly that there was fraud and misrepresentation practiced in obtaining the three alleged sale deeds. PW-3 Smt. Binodini Mahishya Das also deposed that the plaintiff was staying in her residential house with her son Amar Ch. Nath who was suffering from paranoid schizophrenia since his childhood till his death i.e. on 16.07.2013. In her cross-examination, PW-1 denied the suggestion of defendants that the three registered sale deed are genuine and true documents. PW-1 admitted that she put her signature on the sale deed but Amar Ch. Nath did not put his signature or thumb impression on the sale deeds. PW-1 also narrated in cross that abnormal behaviour of Amar Ch. N ath used to happen by interval and he used to stay without wearing his usual garments and he used to stay almost naked. PW-1 admitted that Amar Ch. Nath was sound state of mind when land was allotted in his name. PW-2 narrated in his cross that he cannot exactly mention whether the three sale deeds of this fuit are genuine or not but, he deposed that he has been residing at Kanchanpur for last 20/25 years. PW-3 deposed in her cross that some land was allotted in favour of Amar Ch. Nath by the Government and he got

some land from their ancestral property and that no land is allotted to an insane person by the government.

[24] Thus, the plea and evidence of the plaintiff is that she told the defendant No.1 to mortgage 05 satak land out of her property to obtain money for treatment of her son who was suffering from certain decease namely paranoid schizophrenia since his childhood but, instead of that she was made to believe that mortgage deed was being made and so defendant No.1 asked her to put signature on the document and accordingly she signed on the deed fully believing and in good faith that mortgage deed was made.

[25] Admittedly, Exbt.A contains the thumb impressions of Amar Ch. Nath while Exbt. B and Exbt.C both contained the signature of plaintiff Renubala Naht (plaintiff in the OS) and thumb impression of Amar Ch. Nath being the joint executants. Signatures on the registered sale deed being marked as Exbt.B/1 and Exbt.C/1 respectively. Signature on the Exbt. A was also identified as attesting witness being marked as Exbt.A/1. The plea and evidence of DW-1 is that both the executants kinowing fully and having full state of mind signed on the sale deeds and put the thumb impression and they received the consideration money without any sort of fraud.

[26] It is settled principle of law that sale of immovable property is a contract and to make a valid contract one of the requirement is that the person executing the contract must have free consent in executing the instrument. Section-14 of the Indian Contract Act defines the word "free consent" and it speaks that consent is said to be free when it is not caused by coercion or fraud or undue influence or fraud or misrepresentation or mistake. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud,

misrepresentation or mistake. Section-12 of the Contract Act provides the principle regarding the point of sound mind for the purpose of contract. This provision speaks a person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.

[27] Thus, in view of the above provisions, it can be said that when the consent of a person in executing an instrument has been caused by coercion, undue influence, fraud or misrepresentation, such consent cannot be treated as free consent so as to validate the contract. Besides, the executants of any contract must possess sound mind and he is capable of understanding the nature of the document including the capacity of judgment as to consequence of such contract upon his interest. So, one of the essential ingredients of a valid contract is that the executants must be of sound mind while the fact of his unsound mind or incapability of his understanding at the relevant time of making of contract can affect the legality of such contract.

[28] Now, in the present case, this Court finds that the defendant No.1 is one of the sons of plaintiff and she being a rustic village with no adequate literacy, in the prudence of human conduct of an ordinary person, she will have full faith and belief on her blooded son and such mother will definitely rely on her son being the most nearest person to her both for her maintenance as well as in getting the succession to her property after her death. So, it is natural that a mother would have full faith on her son that he will not put her mother in trouble or in any disadvantageous position and even she never thought of any practice of any fraud upon her. In that view it is highly probable that in the persent case plaintiff put her signature on the alleged two sale deeds vide Exbt. B and Exbt. C in good faith and

believing the saying of her son defendant No.1, which she was going to execute mortgage deed, but, not sale deed of her joint property.

[29] Section-16 of the Contract Act also defines the term „undue influence‟ in the following words:

"(1) A contract is said to be induced by „undue influence‟ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

(a) Where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other, or

(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(c) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears on the face of it or on evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other."

[30] In Tandonbi Devi and Others v. Kalamu Singha and Another, reported in (2010) 5 GLR 367, the Hon‟ble Gauhati High Court held in para-19 of the judgment relating to a similar case where the validity of a sale deed was challenged on the ground of fraud that "When fraud, misrepresentation or undue influence is alleged by a party in a suit normally, the burden is on him to prove such fraud, misrepresentation or undue influence. However, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and the apparent is the real.

[31] According to Section-111 of the Evidence Act, where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Thus, in the present case the burden now shifted upon the defendants to prove that there was no undue influence or any misrepresentation or collusion in executing the sale deeds.

[32] In this context, this Court finds that according to the plaintiff her son Amar Ch. Nath was suffering from some ailment and she also exhibited one medical certificate dated 20.03.2012 issued by the concerned doctor which was marked as Exbt.7. The defendants raised objection in its admissibility as the author of this medical evidence was not examined. There may be force on such objection because unless the medical officer or doctor who examined and made treatment of Amar Ch. Nath is examined and confronted the rigour of cross-examination, such medical certificate cannot be fully relied upon.

[33] However, it is also revealed in the cross-examination of DW- 2 Animesh Sarkar that Amar Ch. Nath was suffering from illness and he was unable to move and he also heard that subsequently Amar Ch. Nath died. The fact of death of Amar Ch. Nath at very young age is an admitted position. It naturally follows that when a person is seen to be naked with abnormal behaviour it indicates towards the fact that he lacks capacity of proper understanding and judgment in his conduct. Therefore, in my opinion, it can be held that Amar Ch. Nath was not in fit state of body and mind due to his illness and consequent to such ailment he also died very soon on 16.07.2013.

[34] Besides the evidence of PW-1 that some misrepresentation was made and fraud practiced upon her by the defendant No.1 as he by

telling about execution of mortgage of her 05 satak land obtained her signature on the deeds, can be believed because it is quiet unconscionable to dispose of all the property of deceased Amar Ch. Nath along with the share of the plaintiff on the sole pretext that money was required for the treatment of Amar Ch. Nath. DW-1 also admitted in his cross-examination that earlier prior to 2012 his brother was also treated at Dharmanagar hospital at the cost of his own expenses but DW-1 did not produce the medical documents including cash memo of medicines to show as to how much money was borne by him in course of treatment in order to assess consideration money of Rs.1,40,000/- being paid by the defendant No.1 in favour of Amar Ch. Nath. Exbt. B indicates the payment of consideration money of Rs.1,40,000/- by Samarendra Das, defendant No.5 in favour of the plaintiff and her son while Exbt. C shows about the consideration money of RS.90,000/- being paid by the defendant No.6 in favour of the plaintiff.

[35] Admittedly, the three deeds were registered on the same dated i.e. on 24.08.2012 which forms part of same transaction of collusion amongst the defendants. Except plaintiff the other witnesses of the sale deeds vide Exbt. A, B. and C is Bipul Nath and the other witness of Exbt. B and C is Amal Ch. Nath. DW-1 in his cross explained that photograph of his brother Amar Ch. Nath was taken by a cameraman and the cameraman was brought by the staffs of the Sub-Registrar Office while at the time of taking of photographs his brother had pant and shirt in this wearing.

[36] DW-2 also deposed that he knows Sanjoy Das but he had no communication with him from last 1 & ½ years. DW-2 also deposed that he along with Sub-Registrar along with his two staffs and his sister Advocate Sankari Sarkar went to the house of Amar Ch. Nath about two

years back and no other witness accompanied them. There is thumb impression of Amar Ch. Nath on the sale deeds but it not clearly legible as to who obtained such thumb impression of Amar Ch. Nath and as such, his thumb impression is not identified by any independent witness apart from DW-1. DW-1 has deposed that the thumb impression of his brother on the two sale deeds were taken by the staff of Sub-Registry Office in his house creates doubt in the transaction because in case such official obtained the thumb impression his name could have been surely disclosed legibly so as to ascertain his identity.

[37] Though, it is mentioned in the back of sale deeds vide sale deed No.1-01304 Exbt. A that Amar Ch. Nath presented the sale deed to the Sub-Registrar, Dharmanagar while the plaintiff presented the rest two sale deeds vide Exbt. B and C on 24.08.2012 at Sub-Registry Office, Dharmangaar, then there was no justification to issue commission to verify the identity of executants. Such issuance of commission also suggests that executants did not actually appear before the Sub-Registrar on the relevant date of execution and it is quiet improbable how the deeds could have been registered on 24.08.2012 when they were directed to be verified by visiting the house of the executants situated at Panisagar.

[38] Apart this, though sale deeds vide Exbt. B and C are purportedly shown to have been made in favour of Samarendra Das and Sanjoy Das but, in fact they did not appear in the evidence to depose in favour of their case. The statement of DW-1 that he had no communication with defendant No.5 Sanjoy Das for last one yar and the statement of DW- 2 that he had also no communication with Sanjoy Das for last 1 and half year clearly suggests that defendant No.1 is actually representing them in the trial though defendant Nos.5 and 6 were supposed to appear and adduce evidence about their respective sale deeds and as such they being

the purchasers, they could have much interest in the suit for their deeds were challenged.

[39] Thus, in the light of what has been discussed above, analysis made and reasonings cited, this Court is of the considered opinion that defendants could not discharge their burden of proof that there was no collusion amongst the defendants in obtaining the three registered sale deeds or that there was no misrepresentation or fraud practiced upon the plaintiff and her son Amar Ch. Nath. Upon scanning of all the relevant factors and circumstances in the evidence, this Court finds that preponderance of probability in believing the fact of existence of misrepresentation, undue influence and collusion in the execution of the three alleged sale deeds lies in favour of the case of plaintiff who duly discharged her onus of proof that Exbt. A, B and C are the result of misrepresentation, undue influence and collusion at the instance of defendant No.1.

[40] A suit for cancellation of instruments is based on the provision of Section-31 of the Specific Relief Act, which reads as under:

"31. When cancellation may be ordered: (1) any person against whom a written instrument is void or void able, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose officer the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his book the fact of its cancellation".

[41] Therefore, keeping in view of the above provision in my view, since the plaintiff asserted to avoid the effect of three registered sale deeds as their existence may affect her right and title on the suit land, these

three instruments are liable to be declared void in view of Section-31 of the Specific Relief Act. Hence, the three registered sale deeds vide No.1- 03105 dated 24.08.2012, 1-01306 dated 24.08.2012 and 1-01304 dated 24.08.2012 are hereby declared void, illegal and fraudulent instruments and accordingly they are cancelled.

[42] Having regard to the above discussion that three registered sale deeds vide Exbt. A, B and C in respect of the A and B schedule land are void and illegal instruments and they are not binding on the plaintiff, in my opinion, the right, title and interest of the plaintiff on the schedule A land will be sustained as she was its joint owner. Since, the plaintiff is the class owner of the schedule B land after the death of her son (Amar Ch. Nath) there should not be any legal bar in declaring that the plaintiff has right, title and interest over the schedule B land. Since, the three sale deeds have been declared void, so consequently the defendants Nos.1, 5 and 6 have no cause or legal backing to oust the plaintiff from her occupied B schedule land and they have no right to occupy or possess the schedule A land.

[43] Therefore, this Court is of the considered view that the evidence of the plaintiff can be believed and there is cause of action in this suit as it is proved that they alleged three sale deeds in respect of schedule A and schedule B land respectively are not valid and binding upon the plaintiff. Besides plaintiff being the real owner of the A and B schedule land she is entitled to get the protection of her occupied land as well as recovery of the land of which she was dispossessed illegally.

[44] Before parting, for the sake of legality and validity one aspect should be discussed regarding the relief as prayed for by the present appellant i.e. widow of the deceased defendant No.1 and his minor son. This present case starts between the mother and her son who are at present

not alive. At the very beginning mother file suit against one of her sons, who is not alive at the present. But, it is to be accepted that the husband of the appellant i.e. the defendant No.1 in the title suit once on request of his mother has given some money for her brother‟s treatment. His brother was not mentally sound he as was suffering from paranoid schizophrenia from his childhood and in return, he has taken over the property of the mentally retired brother in the form of sale deed. Thereafter, his mother, the mentally unsounded son visited to the Registrar Office and executed the sale deed where, their photo and thumb impression were present.

[45] Now, in the process of litigation, mother passed away and that mentally unsounded brother also passed away and the most critical fact is that the elder brother who helped his mother with financial assistance for the treatment of his younger brother, he also passed away. Now, his widow wife and minor child are before the Court.

[46] On that pretext, this Court is of the considered view that there should be some relief given to the widow wife and the child, the appellants herein by which justice would be met, as the defendant No.1 at one point of time funded the old mother for the treatment of his ailing brother. One legal aspect which needs to be considered holding that Amar Ch. Nath was suffering from paranoid schizophrenia since his childhood, to prove the same they produced one medical document but, the issuing doctor was not examined and hence the same cannot be taken into consideration. Without proving the ailment of Amar Ch. Nath, conclusion of the Courts below that he was suffering from paranoid schizophrenia since childhood is totally erroneous and I find force on to this point raised by the counsel for the defendants in the OS.

[47] Having appreciated the evidence on record and over all analysis, this Court is of the considered opinion that giving some benefit to

the appellants herein as her husband once funded his mother for the treatment of his younger brother would meet the ends of justice. Therefore, the registered sale deed vide No.1-01304 dated 24.08.2012 in respect of the land measuring 0.25 acre which has been registered in favour of the defendant No.1, the husband of the appellants in the present appeal be given to the appellants for their future prospect as the appellant No.2 being minor.

[48] The paranoid Schizophrenia is characterized especially by delusions of prosecution, grandiosity, or jealousy and by hallucinations. An average study on paranoid schizophrenia reflects that man diagnosed in their late techs to early 20s. It‟s rare before 12 years or after 40 years. The argument of the plaintiff runs around on the strength of medical certificate issued by a doctor Exbt. 1 that deceased Mr. Amar Ch. Nath was suffering with paranoid schizophrenia.

[49] The doctor has not been examined as witness. There is no information on record to say from what age he was suffering and his health conditions and mental ability stage wise is setout. There is no periodical medical checkup and treatment record and medical files to show the status of the deceased. As per the evidence of village Pradhan PW-3 in his cross examination stated that no land will be laid by the government to an insane person. His statement weakens the contention of the plaintiff. The plaintiff failed to establish Section-14 of the Contract Act in her favour.

[50] Mr. S. Deb, learned senior counsel appearing on behalf of the defendant No.9 herein who has not filed his written statement or counter. Defendant No.9 is a pro-forma respondent duly registered in the Sub- Registry Office. Doctor certificate cannot have an overriding effect on registered sale deeds. Admittedly defendant supported the mother and

brother for medical treatment by providing financial assistance. There is nothing to say others brother shared the responsibility.

[51] It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment in TA No. 14 of 2016 dated 11.07.2017, passed by the learned District Judge, North Tripura, Dharmanagar, stands modified to the extent as indicated above.

[52] In the result, the appeal stands allowed declaring the right, title and possession in favour of the appellants over the schedule B land measuring 0.25 acre. The respondents are directed to vacate and handover the possession of suit schedule property to the appellants within a period of two month from today.

[53] Draw the decree accordingly and send down the LCRs thereafter.

JUDGE

A.Ghosh