Gauhati High Court
Mahiruddin Borbhuiya vs Mustt. Rythun Nessa on 9 April, 1997
Equivalent citations: AIR1998GAU22, AIR 1998 GAUHATI 22, (1998) 2 CIVILCOURTC 263
JUDGMENT J.N. Sarma, J.
1. This appeal has been filed by the defendant. The plaintiff filed a case for declaration that the sale deed dated 2-1-84 described in the Schedule 'C' of the plaint is voidable as the defendant failed to pay the balance amount of the consideration money of Rupees 45,000/- for which the deed was made. It was the further prayer that this deed of sale be rescinded, delivered and cancelled, and also for delivery of khas possession of the suit land.
2. The case of the plaintiff was that in the middle of December, 1983, the defendant No. I sent his cousin, act-villager of the plaintiff to the house of the plaintiff with the proposal whether the plaintiff is willing to sell her land described in the Schedule 'A' of the plaint. The defendant No. 1 agreed to purchase the same on the market value. After about a week it was informed by the defendant to the plaintiff that the agreement for sale will be made/executed and the plaintiff was asked to go there with her husband. The purchase of the land was agreed to and it was agreed that the price of the land shall be Rs. 50,000/- and the defendant No. 1 wanted to make an advance of Rs. 5,000/- and on receipt of Rs. 5,0007- an agreement of sale shall be executed and balance amount of Rs. 45,000/- shall be paid within a period of two months from the date of execution of the bainama. It was further agreed that on receipt of the advance amount of Rs. 5,000/- the delivery of the possession of the land shall be given in favour of the defendant. Thereafter, on 2 -5-83 a document was registered in the Office of the Sub-Registrar and the plaintiff was waiting for about 2 months for the balance amount of money and for execution of the sale deed. As the defendant No. 1 did not come to pay the balance amount of money, the plaintiff went to the place of the defendant and asked him to pay the balance amount of money. At that time the plaintiff was told that already a deed of sale has been executed and she has nothing to receive. Thereafter, the plaintiff obtained the certified copy of the deed executed by her and came to know that a fraudulent sale deed was executed for the entire land for Rs. 5,000/-. The plaintiff further stated that the price of the land of 15 kathas cannot be Rs. 5,000/- and it will be more than Rupees 5.0,000/-. The plaintiff further slated in the plaint that the defendant himself sold 3 Kathas of the suit land to the defendant No. 6 on 3-1-84 just after about 7 months of the execution of the deed at Rs. 6,000/- meaning thereby that the price of the land even if agreed to earlier with the defendant will be Rs. 30,000/- and there was no revelant reason whatsoever for the plaintiff to part with 15 Kathas of land at a nominal value of Rs. 5,000/-. The plaintiff stated that it was a case of fraud and accordingly, this suit was filed.
3. The defendant contested the suit. The defence taken up by the defendants Nos. 1 to 5 was that the deed executed and also registered on 2-5-83 was out and out a deed of sate and the claim of the plaintiff that it was agreed that the value of the land will be Rs. 50,000/- and the balance amount will be paid within a period of two months are all false pleas. The defendant further stated that the plaintiff was not in a position to manage the land as it was situated at a far distant place from her residence and as such she decided to part with the land at whatever value may be realised.
4. The defendant No. 2 filed a written statement stating that he is a bona fide purchaser and before purchase the defendant found that, the vendor has purchased the land by registered deed of sale and thereafter they were in possession and as such he purchased the land from them on 3-1-84.
5. The learned trial Court framed as many as 8 issues and on consideration of the materials on record dismissed the suit. There was an appeal being Title Appeal No. 112/85 and the lower Appellate Court by judgment dated 7-5-88 allowed the appeal and decreed the suit. The lower Appellate Court in allowing the appeal came to the finding that both the plaintiff and the husband were, illiterate and as the document Ext. 'A' is sought to be utilised against such person, the execution of such document must be strictly established to execute fraud. But the lower Appellate Court came to the finding that this was not established. The lower appellate Court further found that the value of the land which was put on sale was a nominal one, below the market value of the land and the lower appellate Court pointed out that there is no justification whatsoever as to why the plaintiff should part with such a huge area of land at such a nominal price. The defence taken that the plaintiff was not in a position to manage the land was not accepted by the lower appellate Court. The lower appellate Court found that before the land was sold the land was cultivated by the plaintiff or her agents. Accordingly, the lower appellate Court came to the finding of fact that the Ext. 'A' was intended to be an agreement for sale with an advance of Rs. 5,000/- but at a later stage it was fraudulently converted into a deed of sale and the plaintiff without knowing the contents mentioned in it executed that deed. The lower appellate Court further came to the categorical finding that the defendant No. 1 was guilty of fraud and fraudulently got the deed of sale at a nominal value and thus rightly cheated the plaintiff and having arrived at these findings, the lower appellate Court declared, that the deed dated 2-1 -84 Ext. 'A' is voidable being tainted with fraud and he further decreed that it is liable to be delivered and cancelled if the defendants fail to pay the balance amount of Rs. 45,000/- to the plaintiff as agreed upon earlier within a period of three months from the date of decree. It is this judgment which is the subject-matter of this Second Appeal.
6. I have heard Sri M. Singh, learned Advocate for the appellant and Sri C.R. Dey, learned Advocate for the respondents. Sri Singh contends that the burden to prove is on the plaintiff and he further submits that the plaint does not contain the pleas or the specification of fraud and he further submits that the evidence adduced by the plaintiff does not establish the story of fraud. He submits that the plea of fraud is to be established beyond all reasonable doubt as required in criminal case and mere preponderance of the evidence is not sufficient to establish the fraud. The latter part of the argument advanced by Sri Singh that fraud in a civil suit is to be established beyond all reasonable doubt has to be established in a criminal case and not on the basis of the preponderance of the evidence is not the correct proposition of law. The fraud in civil suit is to be established like other facts on the basis of the preponderance of evidence, there is no necessity of the requirement that it is to be proved beyond all reasonable doubt as in a criminal case. In support of the contention of Sri Singh, he places the following decisions :
6(1). AIR 1994 SC 853, S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. where he relics in paragraph 8 wherein the fraud is described as follows :
"A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another. It is a cheating intended to get an advantage."
6(2). Let us apply the test laid down by the Supreme Court to the facts of the present case. The finding of the lower appellate Court is that the plaintiff is not the literate lady and by paying an amount of Rs. 5,000/- the defendant wanted to grab the property of more than 50,000/-, if this is not a fraud I do not understand what constitute the fraud.
6(3). Next case relied by Sri Singh is AIR 1976 SC 712, Union of India v. Chaturbhai M. Patel and Co. There the Supreme Court pointed out that the fraud as alleged must be established or proved and, however, suspicious may be the circumstances, and however grave the doubts, suspicions alone can never take the place of proof. The Supreme Court pointed out that in our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction. The Supreme Court further pointed out that in order to arrive at a finding of fraud one should not draw inference, there should be evidence to establish fraud. This case does not help the appellant inasmuch as in this particular case the lower appellate Court on the basis of the materials on record came to the finding of fraud.
6(4). Next case relied on by Sri Singh is AIR 1988 AH 57, Ali Hasan (deceased by L.R.) v. Matiullah (deceased by L.Rs.). He relied this case for the purpose of establishing that when a document is registered and endorsements are made by the Sub-Registrar, a presumption will arise both under the Registration as well as under the Evidence Act so that the things have been done as required by law. There is no doubt that presumption will arise but this is a rebuttable presumption and in this particular case the lower appellate Court has considered that aspect of the matter and has found that the presumption which arises on the registration of a document stood rebutted.
7. On the other hand Sri C.R. Dey, learned Advocate for the respondent places reliance on a decision of this Court reported in 1986 (I) GLR 147, Mst. Jubeda Khatun v. Sulaiman Khan, wherein it has been pointed out that if a person want to get certain benefits from document executed by Pardanashin or illiterate lady, the Court must take a strict view of such a document and the Court must be satisfied that the document was executed by the person having the physical as well as mental intention. It is a Division Bench decision and it is binding on me. If that measuring road is applied to decide the validity of the present document, then also it will be found that the execution of this document as required was not proved and established.
8. This being the position, there is no merit in this second appeal and the same is dismissed. I leave the parties to bear their own costs.