Calcutta High Court (Appellete Side)
Sachal Ghosh & Ors vs Khokan Ghosh on 10 August, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Jyotirmay Bhattacharya AND The Hon'ble Justice Debi Prosad Dey S.A.T. 9 of 2015 (CAN 324 of 2015) Sachal Ghosh & Ors.
-Versus-
Khokan Ghosh.
For the Appellants : Mr. Kartick Bhattacharya.
Heard on : 10th August, 2015. Judgement on : 10th August, 2015. Jyotirmay Bhattacharya, J. :-
Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of appeal.
This second appeal is directed against the judgement and decree dated 28th April, 2014 passed by the Learned Additional District Judge, 1st Court, Berhampore, Murshidabad in Title Appeal No. 97 of 2009 reversing the judgement and decree dated 6th August, 2009 passed by the Learned Civil Judge (Junior Division), 1st Court, Berhampore, Murshidabad in Title Suit No.14 of 1988, at the instance of the defendants/appellants.
Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.2
The plaintiff filed a suit for declaration of her title in respect of the suit property and for permanent injunction for restraining the defendants from interfering with her peaceful possession in the suit property.
The legality and/or validity of the sale of the suit property allegedly made by the plaintiff in favour of the defendants/appellants, was challenged by the plaintiff on the ground of fraud and misrepresentation. She stated that she was an old and illiterate lady. The defendants/appellants were the sons of her sister. She did not have any child. As such, the defendants were brought up by the plaintiff as her sons.
It is further stated that the husband of the plaintiff was the owner of two plots of land i.e. 617 and 618 within Khatian No. 345, Mouza-Bhabta, P.s.-Beldanga, District-Murshidabad.
Admittedly, the husband of the plaintiff transferred .05 decimals of land out of 10 decimals of land from Dag No. 618 to the defendants/appellants. Subsequently, the husband of the plaintiff transferred the rest .05 decimals of land in plot No. 618 along with land lying in plot No. 617 in favour of the plaintiff by executing a deed of gift dated 20th January, 1986. When the plaintiff decided to go to Gaya for offering pindo to the departed sole of her husband, she needed some money. Accordingly, she decided to sell her property lying at Dag No. 617 so that she can visit Gaya with the sale proceeds. The plaintiff asked the defendants to prepare a deed for transfer of her title in respect of .05 decimals of land from Dag No.617.
It is further stated by the plaintiff that taking advantage of her old age and illiteracy and her trust upon the said defendants/appellants, the said defendants/appellants prepared the impugned sale deed for transfer of her title in .05 decimal of land from Dag No.618, and got the same executed by the plaintiff by giving her an impression as if she was transferring .05 decimals of land from Dag No. 617. Instead of preparing the deed for transfer of her interest in respect of .05 decimals of land lying at Dag No. 617, the defendants prepared the said deed for transfer of .05 decimals land from Dag No.618 and got the said deed executed by the plaintiff by misrepresenting the plaintiff as to description of the property she sold to the defendnts by the said deed.
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The plaintiff further claimed that despite such transfer was made, possession was never delivered to the defendants/appellants as she remained in possession in the suit property till her death. The plaintiff sold the very same suit property i.e. .05 decimals of land from Dag No.618, subsequently to one Khokan Ghosh for a consideration of Rs. 80,000/-. After the death of the original plaintiff, the said Khokan Ghosh was substituted in the place of the original plaintiff.
The defendants/appellants contested the said suit by filing a written statement denying the allegations made by the plaintiff in the plaint. They contended that they purchased the suit property from the original plaintiff who consciously executed the deed of sale for transferring the suit property in favour of the plaintiff. The parties led evidence in support of their respective claims.
The Learned Trial Judge, after considering the pleadings of the respective parties as well as their evidence, ultimately dismissed the suit by holding that the plaintiff has failed to prove the contention raised by her in her pleading. Thus, the plea of sale being vitiated by fraud due to misrepresentation as to the description of the property sold by the plaintiff to the defendants, was disbelieved by the learned Trial Judge.
The Learned Trial Judge also held that the deposition of the P.W.- 1 is self-contradictory. As such, the suit was dismissed.
Being aggrieved and dissatisfied with the said judgement and decree of the Learned Trial Judge, the plaintiff preferred an appeal before the Learned First Appellate Court. The Learned First Appeallate Court was pleased to allow the said appeal by setting aside the judgement and decree of the Learned Trial Judge.
The Learned First Appellate Court held that the original plaintiff being an old and illiterate lady was entitled to get special protection under the law. It was held that When such an old and illiterate lady challenged the legality of the impugned deed on the ground of fraud, onus of proof that the said sale deed was executed by the said lady consciously and the sale is not vitiated by fraud and/or misrepresentation, were upon the defendants. The Learned First Appellate Court also held that the defendants have failed to discharge their onus of proof by bringing the deed writer to the box.
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It was the case of the defendants that the contents of the impugned deed was read over and explained by the deed writer to the original plaintiff. As such, it was the duty of the defendants to examine the said deed writer to establish their claim that the contents of the said deed was read over and explained by the deed writer to the executrix before the deed was executed by her. The defendants failed to discharge their duty in this regad.
The Learned First Appellate Court also found that the sale price which was allegedly paid by the defendants to the original plaintiff, was shockingly low as the very same property was sold by the original plaintiff to the substituted plaintiff at a price of Rs. 80,000/-.
The Learned First Appellate Court also held that since the possession of the suit property was never delivered by the plaintiff to the defendants/appellants, the sale deed was not acted upon.
Thus on the basis of these aforesaid findings of facts, the Learned First Appellate Court was pleased to allow the said appeal by declaring that the sale was vitiated by fraud and the title of original plaintiff in respect of the suit property remains unaffected by the impugned sale.
The Learned First Appellate Court thus, declared the title of the plaintiff in respect of the suit property and passed a decree for permanent injunction.
The legality and/or propriety of the said judgement and decree of the Learned First Appellate Court is under challenge before us in this appeal.
We have considered the judgements and decrees of both the Courts below. The judgement which was passed by the Learned Trial Judge is a very cryptic one. It is almost a non-speaking order.
Be that as it may, the Learned First Appellate Court discussed the issues involved in the suit at length and ultimately came to the conclusion that the impugned sale was vitiated by fraud and the defendants/appellants have failed to discharge their onus of proof that the impugned sale deed was executed by the original plaintiff after understanding the contents and purports thereof.
Undisputedly, the original plaintiff was an old and illiterate lady. There is nothing on record to show that she was accustomed and/or habituated with property transactions. The 5 transferees were close relatives of the transferor. The transferor trusted the transferees for preparation of the deed. Admittedly, the deed was prepared by the transferees. The transferor had no participation in the process of preparation of the said deed. The deed writer who read over and explained the contents of the said deed has not come forward to prove that he read over and explained the true contents of the said deed to the original plaintiff before the said deed was executed by her. There was no evidence from the side of the defendants/appellants that before execution and registration of the impugned deed, the original plaintiff had an occasion of taking advice from any independent dependable person.
Normally the party who pleads fraud and/or misrepresentation, has to prove such plea of fraud and misrepresentation but there are some exceptions to the said norm or rule. For instance when an old and illiterate lady, unaccustomed with property transaction wants to avoid any transaction on the ground of fraud, the onus of proof of fraud shifts to the person who allegedly exercised fraud upon her, once she proves that she was an old and illiterate lady and there was fiduciary relationship between the parties and she trusted the persons who committed fraud upon her and the deed was caused to have been executed by her without allowing her to take advice from an independent person. The present case falls within this exception.
If all the circumstances are taken together, then we find no reason to differ from the findings arrived at by the Learned First Appellate Court, which is the final fact finding court.
Accordingly, we do not find involvement of any substantial question of law in this appeal. We decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The appeal is, thus, dismissed.
Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.
The application for stay being CAN 324 of 2015 is thus, deemed to be disposed of. In view of dismissal of the appeal, the certified copies of the courts below need not be sent down to the court below for correction.
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Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately.
(Jyotirmay Bhattacharya, J.) I agree.
(Debi Prosad Dey, J.) dp