Calcutta High Court
Ramapati Biswas And Ors. vs Chandra Sekhar Biswas And Ors. on 17 February, 2006
Equivalent citations: 2007(1)CTLJ254(CAL)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This second appeal is directed against the judgment and decree dated 4th July, 1984 passed by the Additional District Judge, 3rd Court, Nadia in Title Appeal No. 136 of 1983 affirming the judgment and decree dated 23rd July, 1983 passed by the learned Munsif, 3rd Court at Krishnagar in Title Suit No. 250 of 1982.
2. Both the courts below concurrently held that the impugned sale deed dated 23rd October, 1971 being Exhibit 'Al' was not executed by Jatindra Nath Biswas and as such the title of Jatindra Nath Biswas in the suit property remained unaffected by the impugned sale. Both the courts below also held concurrently that the impugned deed of sale was procured by the defendant Nos. 1, 2 and 3 by exercise of undue influence and fraud upon Jatindra Nath Biswas. As such, the defendant Nos. 1, 2 and 3 did not acquire any interest in the suit property by virtue of the impugned sale deed.
3. The propriety of such an appellate decree is under challenge in this second appeal. At the time of admission of this appeal substantial question of law was not formulated in this appeal. However, in course of hearing of this appeal, the following substantial questions of law were formulated:
(i) For that the courts below erred in law by not considering that the deed of exchange (Exhibit 'A') by which the deceased father of the parties, viz. Jatindra Nath Biswas acquired title to the suit property, was also executed and registered on the same date and under same set of circumstances and while the plaintiffs accepted the said document as valid cannot challenge the other document (Exhibit 'Al') as fraudulent and collusive.
(ii) For that the courts below have failed to consider that the plaint is lacking in material particulars as to the pleadings of fraud and undue influence.
(iii) For that the courts below have failed to consider that the deceased father of the parties left behind him six sons, five daughters and his widow as his only legal heirs and as such the plaintiffs are not entitled to 2/7th share.
(iv) For that the courts below have failed to appreciate that the onus to prove undue influence and fraud is upon the plaintiffs.
(v) For that the courts below erred in law by not holding that the suit is barred by limitation as the deed of sale (Exhibit 'Al') was not challenged within the prescribed period.
4. For appreciation of the merit of this second appeal the following facts leading to the filing of the suit are required to be taken note of:
Admittedly, the plaintiffs and the defendant Nos. 1 to 4 are brothers. The defendant No. 5 is the mother of the plaintiffs and the defendant Nos. 1 to 4, Jatindra Nath Biswas who was the father of the plaintiffs and defendant Nos. 1 to 4, was the admitted owner of the suit property. Jatindra Nath Biswas was aged about 90 years at the relevant time of execution and/or registration of the impugned sale deed. Two deeds were executed by Jatindra Nath Biswas on 23rd October, 1971. Both the said deeds which were presented for registration before the concerned Registry Office on 25th October, 1971, were registered on 2nd November, 1971. The deed which was registered earlier was a deed of exchange being Exhibit 'A' executed between Jatindra Nath Biswas on the one part and Rampada Mondal on the other part by which Jatindra Nath Biswas got a part of the suit property from Rampada Mondal in exchange of his other property with the said Rampada Mondal. The subsequent deed being Exhibit 'Al' is the impugned sale deed executed by Jatindra Nath Biswas through which the defendant Nos. 1, 2 and 3 are claiming right, title and interest in the suit property from the said Jatindra Nath Biswas. Though Jatindra Nath Biswas was a graduate but he put the left hand impression on both the aforesaid deeds. These are the admitted facts between the parties.
5. The plaintiffs/respondent Nos. 1 and 2 claimed that the said deed of sale being Exhibit 'Al' was procured by the defendant Nos. 1, 2 and 3 in exercise of undue influence and fraud upon the said Jatindra Nath Biswas. The plaintiffs claimed that their relationship with their father Jatindra Nath Biswas was cordial all throughout.
6. The plaintiffs further claimed that they contributed money not only for establishing their brothers but also for construction of the suit property. The plaintiffs were staying at the place of their respective services away from the suit property. It was further claimed by the plaintiffs that taking advantage of the plaintiffs' absence from the suit property, the defendant Nos. 1, 2 and 3 procured the impugned sale deed by exercising undue influence and fraud upon their father Jatindra Nath Biswas who was admittedly living with the defendant Nos. 1,2 and 3 at the relevant time. Taking advantage of the old age and ill-health of Jatindra Nath Biswas, the defendant Nos. 1,2 and 3 who were in a position to dominate the Will of their father, created the impugned sale deed to deprive the legitimate claim of the plaintiffs.
7. It was further alleged by the plaintiffs that, in fact, Jatindra Nath Biswas decided to give the suit property by gift to the plaintiffs as the plaintiffs rendered financial support not only for construction of the suit property but also for establishing the other sons of Jatindra Nath Biswas.
8. It was further claimed by the plaintiffs that Jatindra Nath Biswas had no intention to sell his only residential building at the fag end of his life and no consideration, in fact, was paid by the said defendants to Jatindra Nath Biswas for the said sale. The valuation of the suit property, according to the plaintiffs, was about Rs. 20,000 to Rs. 25,000 and as such the sale of the suit property for a sum of Rs- 3,500 only cannot be regarded as a fair transaction. Even the reason for the sale, as disclosed in the said deed of sale, i.e. for collection of money for pilgrimage is absolutely unbelievable, as at the relevant time admittedly Jatindra Nath Biswas had no physical capacity to move out of the house.
9. Under such circumstances, the plaintiffs filed the aforesaid suit for declaration and injunction upon a further declaration that title of Jatindra Nath Biswas did not pass to the defendant Nos. 1, 2 and 3 by the said void deed. The plaintiffs further prayed for declaration of 2/7th share in the suit property and for injunction for protecting their joint possession therein.
10. The defendant Nos. 1,2 and 3 contested the said suit by filing written statement denying the material allegations, as contained in the said plaint. They contended that though Jatindra Nath was aged about 90 years at the relevant time but he was physically fit and mentally alert. They further contended that Jatindra Nath was a graduate and he was a school teacher. According to them, Jatindra Nath was intelligent enough to understand the nature and purports of the dealings. They further claimed that Jatindra Nath executed the said deed wilfully and voluntarily. The exercise of undue influence and fraud by the said defendants upon Jatindra Nath Biswas in the process of execution and registration of the said deed of sale was denied by the said defendants. The said defendants further asserted that when the plaintiffs are not challenging the validity of the execution of the deed of exchange by Jatindra Nath on the ground of his incapacity due to his old age and infirm health, the said plaintiffs are estopped from challenging the validity of the impugned deed of sale which was executed and registered by Jatindra Nath Biswas simultaneously with the said deed of exchange, on the ground of incapacity due to his old age and infirm health.
11. Under such circumstances, the said defendants prayed for dismissal of the said suit.
12. The defendant No. 5, viz. the widow of Jatindra Nath Biswas, though filed written statement supporting the defendant Nos. 1,2 and 3, but ultimately did not come forward to contest the said suit.
13. The learned Trial Judge after considering the pleadings of the respective parties as well as the evidences adduced by them in connection with the said suit, came to a conclusion that the impugned sale deed is a forged document, as the LTI of Jatindra Nath Biswas appearing in the sale deed does not tally with his LTI appearing either in the deed of exchange or in the deed of partition. Such conclusion, however, was arrived at by the learned Trial Judge on the basis of his own comparison of the LTI of Jatindra Nath Biswas appearing in the said deed with his LTI appearing in the other two deeds.
14. The learned Trial Judge disbelieved the wilful and voluntary execution of the said sale deed by Jatindra Nath on the ground that no prudent man can believe that an old man aged more than 80 years suffering from various illnesses can decide to sell his only and last shelter just on the verge of his life for the fancy pleasure of taking pilgrimage. It was also held by the learned Trial Judge that there was no enmity and/or ill-feeling and/or loss of affection between the Jatindra Nath and the plaintiffs and as such no special occasion could be traced for executing the said sale deed by Jatindra Nath in favour of the defendant Nos. 1, 2 and 3 in deprivation of his other sons.
15. The suit was, thus, decreed by the learned Trial Judge with the aforesaid findings.
16. Being aggrieved by, and dissatisfied with, the said judgment and decree, the defendant Nos. 1, 2 and 3 preferred an appeal being Title Appeal No. 136 of 1983 before the learned District Judge, Nadia. The said appeal was subsequently transferred to the learned Additional District Judge at Nadia.
17. The said appeal was dismissed on contest by the learned first appellate court. The learned first appellate court also held that the said deed of sale was not executed and registered by Jatindra Nath Biswas. Considering the condition of health of Jatindra Nath Biswas and dominancy of the defendants/appellants over Jatindra Nath Biswas, the learned first appellate court drew presumption of exercise of undue influence and fraud by the defendants/appellants upon Jatindra Nath Biswas in the process of execution and registration of the said sale deed. The learned first appellate court held that the said sale deed being a collusive and fraudulent one, is not binding upon the plaintiffs.
18. Thus, the said appeal was dismissed on affirmation of the findings of the learned Trial Judge.
19. Such a decree is under challenge in this appeal at the instance of the defendant Nos. 1, 2 and 3/appellants.
20. Mr. Ghosh, learned senior advocate, appearing in support of the appeal, challenged the propriety of the said decree on the following grounds:
(1) Details of fraud and/or undue influence have not been given in the plaint. Order 6 Rule 4 of the Code of Civil Procedure prescribes for disclosure of details of such fraud and undue influence in the pleadings. In the absence of such disclosure, both the learned courts below ought to have refused to consider the plaintiffs' plea of fraud and/or undue influence in the suit.
(2) The party who pleaded fraud and/or undue influence must prove the same by evidence. The burden of proof of fraud and undue influence cannot be shifted upon the defendants. Both the learned courts below illegally shifted the burden of proof of fraud and undue influence upon the defendants.
(3) Admittedly two deeds were executed by Jatindra Nath Biswas on the same date. The earlier deed was a deed of exchange executed by and between Jatindra Nath Biswas and Rampada Mondal. Jatindra Nath Biswas got a part of the suit property from Rampada by way of such exchange. The plaintiffs never challenged the validity of the earlier deed, i.e. the deed of exchange and/or the due execution thereof by Jatindra Nath Biswas for want of his physical incapacity and/or mental infirmity due to his old age and ill-health. In fact, the plaintiffs are claiming interest even in the exchanged property by inheritance, but still then they are challenging the validity of the other document being the deed of sale which was executed by the said Jatindra Nath Biswas in favour of the defendant Nos. 1,2 and 3 on the very same day when the deed of exchange was executed. The ground of challenge is that the defendant Nos. 1, 2 and 3, by taking advantage of the physical incapability and/or loss of mental alertness of Jatindra Nath Biswas due to his old age, procured the said deed of sale by exercise of fraud and undue influence upon him. The plaintiffs, thus, cannot be allowed to approbate and reprobate their stand with regard to the physical fitness and mental alertness of Jatindra Nath Biswas in the process of simultaneous execution of both the deeds.
(4) When the plaintiffs themselves admitted in their evidence that one of the plaintiffs, viz. PW1 wrote two letters to the defendant No. 3 regarding the execution and registration of the deed of sale by Jatindra Nath Biswas in 1971/1972, both the courts below ought to have held that the suit which was filed in 1977 for avoiding the said sale of 1971, is barred by limitation.
(5) Even assuming that the said deed is a fraudulent one, still then the learned courts below ought not to have declared 2/7th share in the suit property in favour of the plaintiffs, as Jatindra Nath Biswas left behind him twelve heirs, viz. his widow, six sons and five daughters. The widow subsequently died. As such, each of the plaintiffs, at best could have inherited 1/11th share in the suit property.
21. Let me now consider the submissions of Mr. Ghosh one after another.
Re.: Point No. 122. Mr. Ghosh relied upon the following decisions of the Hon'ble Supreme Court in support of his submission that the court cannot enquire into the plea of fraud and/or undue influence in the absence of disclosure of the particulars of such fraud and undue influence, with reference to the date of its occurrence, in the pleading itself:
(i) Ladli Prasad Jaiswal v. Kamal Distillery Co. Ltd., Karnal and Ors. .
(ii) Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib .
23. It is, no doubt, true that when the party pleading relies on undue influence and fraud, particulars thereof should be stated in the pleadings, so that the adversary is not taken by surprise.
24. The details of the pleadings pleaded by the plaintiffs in the instant case, have been narrated above. On perusal of the said pleadings, this court is unable to hold that material particulars with regard to fraud and undue influence, are lacking in the plaint. The parties have adduced evidence at length with regard to their claim and counter-claim concerning the allegation of fraud and undue influence. The manner in which plaintiffs' witness was cross-examined by the defendants and the evidence which was led by the defendants concerning the plaintiffs' plea of fraud and undue influence, will indicate that the defendants were never taken by surprise for non-disclosure of further materials regarding such alleged fraud and undue influence exercised by the plaintiffs.
25. Under such circumstances, this court cannot hold that the plaintiffs' suit should have been dismissed for non-disclosure of sufficient materials regarding such alleged fraud and undue influence.
Re.: Point No. 226. The settled law is that the plaintiffs must prove their own case and they cannot depend upon the defendants' weakness. Thus, when fraud and undue influence was alleged by the plaintiffs, the plaintiffs must prove the same by evidence. But there are some exceptions to this normal rule with regard to the proof of undue influence and fraud. Here in this instant case, the plaintiffs wanted to avoid the impugned transaction on the allegation of exercise of undue influence by the defendant Nos. 1, 2 and 3 upon Jatindra Nath Biswas in the process of execution and registration of sale deed by Jatindra Nath Biswas in favour of the said defendants. Since the plea of undue influence has been set up for avoiding the said sale, let me consider the essential ingredients of undue influence.
27. Section 16 of the Contract Act defines undue influence. The said provision also prescribes the mode of proof of such undue influence. The first sub-section of Section 16 of the Contract Act lays down the principle in general term. Under Sub-section (2) thereof, a presumption to the effect that a person shall be deemed to be in a position to dominate the Will of another arises, if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reasons for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his Will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence. [See Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd., Karnal and Ors. (supra)].
28. Considering the pleadings as well as the evidence of the respective parties, both the learned courts below held that because of the old age and ill-health of Jatindra Nath Biswas, the defendants/appellants were in a position to dominate the Will of Jatindra Nath Biswas who was admittedly staying with the said appellants and his other sons were admittedly staying away in connection with their respective services.
29. Under such circumstances, the learned courts below were not unjustified in drawing presumption of undue influence in favour of the plaintiffs, as the defendants could not prove that the sale deed was executed by Jatindra Nath Biswas out of his free will. Admittedly, Jatindra Nath Biswas was 90 years old at the time of execution of said deed. He could not sign the said deed as his hands were trembling. He could not even go to the Registry Office for registration of the said deed on account of his ill-health. Registration was done on commission at his residence.
30. Jatindra Nath Biswas had no other residential house. The only residential house which he had to reside was sold by the impugned deed. The reason for the sale, as disclosed in the said deed, was that Jatindra Nath Biswas needed money for pilgrimage. The entire suit property consisting of the residential building was sold at a fairly low consideration for Rs. 3,500 only. Jatindra Nath Biswas had other properties too which he could have sold for collecting the said money. The sale of the only residential house instead of selling his other properties creates sufficient suspicion in the mind of this court which could not be dispelled by the appellants.
31. Jatindra Nath Biswas died a few months thereafter. The loss of love and affection of Jatindra Nath Biswas towards his other sons, could not be proved by the defendants/appellants.
32. Mother did not come forward to give evidence.
33. On consideration of totality of such circumstances, this court finds that drawing of presumption by the learned courts below against the defendants/appellants for procuring the said sale deed by undue influence, is not unjustified. After all, the findings so arrived at by both the learned courts below are based on materials on record. As such, this court sitting in this jurisdiction feels it absolutely unjust to interfere with such conclusive findings of fact of the learned courts below.
Re.: Point No. 334. Admittedly, Jatindra Nath Biswas executed two deeds on the same day. The first of such deed was the deed of exchange by which Jatindra Nath Biswas acquired title in respect of a part of the suit property. The impugned deed of sale was executed by Jatindra Nath on the very same day when the said deed of exchange was executed. Both the deeds were presented for registration on 25th October, 1971 and were registered one after another on 2nd November, 1971.
35. If Jatindra Nath Biswas had really no intention to enjoy his property, then why he had taken so much trouble for exchanging his other property with Rampada Mondal for getting a part of the suit property from Rampada ?
36. No prudent man who decides to sell his property will take so much trouble for exchanging his other property for getting a part of the suit property for consolidating the same with the residential house. Such exchange shows that he had intention to enjoy the residential house much more conveniently. The simultaneous execution of the deed of exchange and the sale deed proves that the subsequent deed was not executed wilfully and voluntarily. The plaintiffs, no doubt, claimed interest in respect of the property of Jatindra Nath Biswas which he acquired by such deed of exchange. But claiming interest in the said property does not prevent the plaintiffs from challenging the execution of the subsequent deed, i.e. the sale deed on the plea of undue influence in the facts of the instant case.
37. Approbation and reprobation of the same transaction is not permissible. But if the transactions are multiple and are independent of each other, then approbation of one transaction and reprobation of the other is not impermissible. The decision which was cited by Mr. Ghosh in the case of Suhashini Dasi v. Ahi Bhusan , has no application in the facts of the instant case. The principle of approbation and reprobation was applied therein in a completely different set of facts. It was decided therein that a person who has taken benefit under a Will and has administered the Will as the person authorised under the direction and order of a court as an administrator of that Will, cannot be allowed to turn round and say that the person who made Will had no capacity to make the disposition by that Will, as such stand is opposed to the principle of approbation and reprobation.
38. Here, in the instant case, the transactions are independent in nature. Though the physical fitness and mental alertness of the executant is a common factor, but still then the possibility of creation of the sale deed by undue influence, cannot be ruled out in the instant case, as the execution of the sale deed for transferring his only residential house by the ninety years old father in favour of three of his sons with whom the father was staying during his last days, cannot be conceived of by any man of ordinary prudence. The presumption which was drawn by the learned courts below in this regard is rebuttable, but the defendants failed to rebut such presumption successfully.
39. Thus, this court does not find any substance in the said submission of Mr. Ghosh.
Re.: Point No. 440. To support the contention that the suit is barred by limitation. Mr. Ghosh pointed out from the evidence of PW 1 that he admitted in his evidence that plaintiffs sent letters to the defendant No. 3 in 1971/1972 concerning the impugned sale. Mr. Ghosh contended that when the plaintiffs had the knowledge about the impugned sale deed in 1971/1972, they should have filed this suit for avoiding the said transaction within the prescribed period of limitation, i.e. within three years from the date of their knowledge. Thus, according to Mr. Ghosh, this suit which was filed in 1977 is clearly barred by the laws of limitation. Accordingly, Mr. Ghosh submitted that the suit should be dismissed on the said ground.
41. Considered the pleadings and evidence of the parties in this regard. The PW 1, no doubt, stated in the cross-examination that he gave two letters to the defendant No. 3 about the execution of the deed dated 23rd October, 1971. The contents thereof, cannot be ascertained unless those letters are produced before the court. The defendant No. 3 to whom such letters were given is the custodian of the said letters. The said defendant did not produce those letters in court for consideration. No question was put to the PW 1 as to the date when such letters were written. The PW 1 has also not said anything as to the date and time when such letters were written to the defendant No. 3.
42. Under such circumstances, this court cannot hold that those letters were given by the plaintiffs in 1971/1972. This court, thus, cannot find any substance in such submission of Mr. Ghosh.
Re.: Point No. 543. Though Mr. Ghosh contended that Jatindra Nath Biswas left behind his widow, six sons and five daughters and the widow also subsequently died leaving six sons and five daughters but in fact, no such evidence can be traced out from the materials on record. As a matter of fact, the appeal court also recorded that Jatindra Nath Biswas left behind him his widow, six sons and a daughter. If that be so, after the death of the widow each of the sons of Jatindra Nath Biswas inherited 1/7th share in the suit property. This court, thus, finds no illegality in declaring 2/7th share in favour of the plaintiffs. However to avoid any confusion in this regard, this court modifies that part of the decree of both the courts below by declaring that on the death of Jatindra Nath Biswas and his widow, all the heirs of Jatindra Nath Biswas inherited equal share in the suit property.
44. In the facts and circumstances, as aforesaid, this court finds no illegality in the findings of the both the learned courts below. In fact, no substantial question of law is involved in this appeal for which the judgment and decree of the learned court below, is required to be interfered with in this appeal.
45. Before concluding, I must mention that this court cannot approve the findings of the learned courts below regarding the invalidity of the impugned deed on the ground of forgery. In fact, no such case of forgery has been made out in the plaint. Even the evidence in this regard is also absent.
46. Furthermore, plea of forgery and undue influence cannot dwell together as they are mutually contrary to each other. Forgery is a concept which suggests that somebody else has created some document by forging the signature of the alleged executant. It necessarily follows that the party to the document has not signed the document. But, in case of undue influence, the party to the document executes the same under the influence of somebody who has dominance over the executant of the deed.
47. Since both these concepts are mutually destructive to each other, they cannot dwell together. As such, findings of both the learned courts below regarding forgery cannot be accepted by this court, particularly because of the fact that the plaintiffs all throughout wanted to avoid the impugned deed only on the ground of creation of such deed under undue influence and not on the ground of forgery.
48. The appeal, thus, stands allowed in-part. The judgment and decree of the learned court below is modified only to the extent as indicated in Point No. 5. It is hereby declared that all the heirs of Jatindra Nath Biswas inherited equal share in the suit property.
49. There will be, however, no order as to costs.
50. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.