Nira Devi @ Nirash Devi vs Pramod Kumar Bhagat on 21 September, 2022

[Cites 32, Cited by 0]

Jharkhand High Court

Nira Devi @ Nirash Devi vs Pramod Kumar Bhagat on 21 September, 2022

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No.102 of 1992
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1. Nira Devi @ Nirash Devi

2. Bajrang Bhagat

3. Satya Narayan Bhagat

4. Urmila Bhagat @ Urmila Kumari

5. Radha Bala Kumari

6. Shusila Devi

7. Babi Devi .... .... .... Appellants Versus Pramod Kumar Bhagat .... .... .... Respondent CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants : M/s Manjul Prasad, Sr. Advocate Amar Kr. Sinha & Praveen Kr. Verma, Advocates For the Respondents : M/s Rahul Kr. Gupta, Vikash Kishore Prasad & Mr. Ayush Aditya, Advocate C.A.V. ON 04.05.2022 PRONOUNCED ON 21/09/2022

1. Appellants are the defendants. Instant appeal has been preferred against judgment and decree passed in Title Appeal No.61 of 1990 passed by 6th Additional Judicial Commissioner, Ranchi whereby and whereunder judgment and decree passed by the Trial Court in Title Suit No.11 of 1988, has been affirmed.

2. The parties shall be referred by their placement in the suit and shall include their legal representative substituted from time to time.

3. The plaintiff-Most. Domani widow of Late Balram Bhagat filed declaratory suit for declaring the deed of gift dated 11.04.1970 of Schedule A property and sale deed dated 16.07.1974 Schedule B property, executed by plaintiff-respondent in favour of Balbhadra Bhagat and her sister Ashu Devi (D1) to be void ab initio and not binding on the plaintiffs. Defendant no.1 Ashu Devi is the sister of the plaintiff and Balbhadra Bhagat is the son of defendant no.1. Defendant no. 2 is the widow of Balbhadra Bhagat. The plaintiff's suit has been decreed in the suit and affirmed in appeal.

4. Schedule A property is land measuring an area of 7.56 acres at Mouza Jamudag, P.S Sonahatu, District Ranchi, and Schedule B is 0.72 acres land including Dharamshala at Mouza and PS Bundu, District Ranchi.

5. Immediately after death of husband of Domni, her sister, Ashu Devi (D-1) and Balbhadra Bhagat, came to the house of Most. Domni and started 2 living with her. Balbhadra, son of defendant no.1 got a deed of gift dated 11.04.1970 (Exhibit A) in respect of land in village Jamudag which is described in Schedule A of the plaint from the Plaintiff- Domni. It is alleged that this gift of deed was executed by fraud and misrepresentation of general power of attorney to enable him to manage her property. Further this deed of gift was vitiated by fraud and misrepresentation even otherwise it did not take effect on account of non-fulfillment of certain commitment to Domni as Balbhadra Bhagat immediately after execution of gift started neglecting her. The possession is still with the plaintiff. Defendant no.1-Ashu Devi being the plaintiff's own sister was dependent on her, got her document purported to be sale deed executed by Domni on 16.07.1974 in her favour with respect to Schedule B land by representing that same was "Karpardajnama" and acting on the representation made, the plaintiff inter alia in good faith executed the sale deed. No consideration money was paid by defendantno.1. As a matter of fact, she had no means to pay the consideration amount as she was fully dependent on the plaintiff. Both the deeds were fraudulent illegal and void transactions. The cause of action arose when she came to know about the sale deed when one Kisto Koeri challenged the said transaction in Title Suit No.306/1986. She has been all along in possession of land.

6. Joint written statement has been filed on behalf of defendant nos.1, 2, 3 &

4. The suit has been contested inter alia on the ground that simple declaratory suit without consequential relief is not maintainable. It is specific case of the defendants that Balbhadra Bhagat always served plaintiff during her life time sincerely and honestly. Deed of gift came into operation after registration. The gift of the suit land was accepted by the donee and the defendants are in possession and paying rent to the state of Bihar. It is not true that the deed of gift was not explained to the plaintiff before filing for registration. It is also pleaded that the sale deed was executed in favour of defendant no.1 after payment of consideration amount. It is false averment made on behalf of the plaintiff that she came to know about the sale deed only when the summon of T.S. Case No.306 of 1986 was received.

7. On the basis of pleadings of the parties, following issues were framed by the trial court:-

I. Has the plaintiff any cause of action for the suit? II. Is the suit maintainable in its present form?

III. Is the suit properly valued?

IV. Is the suit barred by limitation, adverse possession, waiver, estoppel, acquiescence and also barred under section 34 of the Specific Relief Act? V. Are the defendants alleged deeds of gift and sale void, undervalued and inoperative under law? Have they acquired any right, title, interest and possession over the suit lands by virtue of the sale deed? VI. To what relief is the plaintiff entitled to?

8. The learned trial court decreed the suit by holding that the suit was not barred by Art. 58 of the Limitation Act, 1963, which provides a limitation of three years which will apply from the date of knowledge. The plaintiff got the knowledge about the gift deed from M.Case No.950/1987 under Section 144 of the Cr.P.C and of the sale deed when it was challenged in T.S. no. 306/1986 by one Kisto Koeri. Regarding possession Ext. B and Ext B/1 which were government rent receipts in favour of the defendants with respect to the suit land was not relied upon as they were issued during the pendency of suit. Exhibit E which was the correction slip dated 16.12.86 in the name of defendant no.2 with regard to the mutation of the land under plots nos. 1455, 1459, 1460, 1461 and 1462 total area 5.2 acre of khata no.131 and plot no.1630 area 0.90 acres of khata no.384 on the basis of the sale deed no.4797 dated 11. 4.1970 was also not accepted whereas it was with respect not to the sale deed rather a registered deed of gift (Ext A). Ext A which is the deed of gift bears the deletion of plot no.1527, area 0.09 and insertion by interpolation of plot no.1462 area 1.31 acre and that of the area 0.06 instead of 0.50 acre against plot no.1460 which appears to be at variance with the description of the lands gifted. It held that the possession of defendant no.2 was not proved over the five plots including the disputed plot numbers 1461 and 1460. Some discrepancies were found between the deed of gift (Ext A) and the certified copy of it.

9. The learned court of first appeal concurred with the finding of the trial court and dismissed the appeal. It proceeded on the line that since the executant was an illiterate lady, it should be proved that the document was read over and explained to her and she understood the same. The deed of 4 gift (Ext A) was described in English which the executant was not capable of reading herself. As per this document, it was read over and explained by Shankar Jaiswal and Sri N.K. Rai. Out of these two witnesses only one Girja Shankar Jaiswal has been examined as D.W.1 and he was the cousin of the Donee. He has deposed that at the time of the typing of the deed, executant was not present. The deed of gift was executed in the year 1970 rent receipts are of the year 1983-88 which have been issued in the name of the husband of Domni Bhagtain. Ext 8 is the correction slip which shows that in the year 1989 the name of Domni was substituted in place of the previous tenant. The rent receipts are not backed by mutation order. The notice issued under section 144 Cr.P.C (Ext 12) source that Domni was in possession over the suit land.

10.The sale deed dated 16.7.1974 executed by the plaintiff in favour of her sister has also been disbelieved for the following reasons. Firstly, the original sale deed has not been produced and the C.C has been marked as Exhibit-D. No attesting witness to the document has been examined. Secondly, some rooms were rented out by the plaintiff and it was partly in their possession. Part of the suit property was under the possession of Notified Area Committee as a tenant of the defendant Ashu Devi. But in course of cross-examination no document was produced to show that Ashu Devi received rent from notified area committee.

11.The appeal has been admitted to be heard on the following substantial questions of law:-

A. Whether the plaintiff who bases her case on fraud is required to give particulars of fraud and when there is no mention of particulars of fraud the court below committed a grave error of law in allowing the plaintiff to lead evidence on the question of fraud? B. Whether the finding of the courts below that there was no evidence to show that the contents of the gift deed was read over and explained to the donor, based on contrary to the evidence on record? C. Whether the suit for declaration which was filed after three years of the execution was barred by limitation?

12. It is argued on behalf of the appellant that the requirement of specific pleading of fraud in the plaint has not been met. The only pleading is that the plaintiffs being illiterate lady reposed faith upon her sister (D1) and 5 her son and put her signature of the deeds thinking it to be power of attorney. In the entire plaint the plaintiff has not stated the circumstances of committing fraud and undue influence in execution of those instruments which was a mandatory requirement under Order VI R 4 of the CPC. While relying on AIR 1978 Calcutta 177 it is contended that general allegation of fraud howsoever strong the word are insufficient to amount to fraud. Reliance has been placed on Bishundeo Narain v.

Seogeni Rai, 1951 SCR 548 : AIR 1951 SC 280

28. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4 of the Civil Procedure Code.

13. It is further argued on behalf of the appellant that the learned trial Court as well as the learned lower appellate Court have declared the registered deed of gift and that of sale as illegal merely on the ground that plaintiff was illiterate lady and therefore by applying the principles of a pardanashin lady the burden of proof was shifted upon the defendant to establish that the registered deed was duly executed and that content of the deed was read over and explained to the executant. The Courts below have drawn adverse inference for non-examination of one of the attesting witness N.K Roy. It is submitted that the Courts have given a perverse finding ignoring the evidence of one of the attesting witness Girija Shankar Jaiswal D.W.1 who has specifically stated that contents of gift deed has been explained in Hindi to the executant. By examination of one of the witness the requirement of Section 68 of the Evidence Act was not complied with. The employee of district registration office namely Abhiram Nayak (DW10) was called who has proved the deed of sale has exhibit D comparing and producing original Volume 51 page nos.10-15 which contained the registered deed of sale dated 16.7.1974 being 6 No.11913. He was again recalled and gave specific evidence in para-6 regarding registered deed of gift of 1970. It is the specific case of the plaintiff that she herself called more than five persons and got the trust deed drafted which is evident from the statement of Binay Kumar (P.W8) in para-2 of the examination in chief. Exhibit 3 series is the rent receipts issued to Gobardhan Das by the plaintiff herself. These evidences run contrary to the presumption of the plaintiff who was a pardanashin lady. Lastly, it is argued that the suit has been filed after 18 years of the execution of gift deed and after 14 years of the sale deed and therefore it is barred by limitation under Article 59 of the Limitation Act. The plaintiff had full knowledge about the execution of these deeds which will be apparent from the fact that Brindawan Bhagat who happens to be brother-in-law (Devar) of the plaintiff was first party in M.Case no.359 of 1981. Reliance has been placed on 2008(15) SCC 673.

14. It is argued on behalf of the plaintiff/respondent that enough particulars of fraud have been pleaded in the plaint. Requisite pleadings have been made in para 7, 7A, 11, 14, 15, 16, 17, 19, 20, 22, 23, 24, 27, 27A. The plaintiff was an old illiterate rustic village woman and the contents of document was never read over and explained to her in Hindi. Had it been so explained, she would not have got herself stripped off her properties and left with no means of livelihood. Reliance has been placed on (1999) 4 SCC 262,(2006) 5 SCC 638,(1999) 7 SCC 288.

15. The fact that she had been deprived of the property came to her knowledge when a proceeding under section 144 Cr.PC was initiated. The same fraud was played while getting the sale deed executed. No consideration amount was paid and the purchaser had no means to pay the same. DW1 being related to the donee of the gift was an interested witness. The plaintiff remained in possession over the suit property even after the execution of those deeds. The government rent receipts have been issued in the name of her husband. It has been admitted by Balbhadra Bhagat in his deposition (Ext 7 & 7/A) that the plaintiff had leased out a few of the shops to the tenant and was collecting rent and issuing rent receipts. Collection of rent after execution of the deeds was an evidence against the delivery of possession following the execution of the conveyance deeds. From the deposition of Ashu Devi (D1-DW7) it 7 will be apparent that her husband had no means to make the payment of the consideration amount.

16. Having considered the rival submissions advanced on behalf of both the sides and the substantial questions of law formulated in this case, it will be necessary to set out at the outset the power of this Court in second appeal to interfere, in cases of concurrent findings of the Courts below. The discussion is germane, as the point has been raised and argued that this Court cannot interfere in cases of concurrent findings of fact of the Courts below even if they are erroneous. There can be no two views on the proposition of law stated on behalf of the respondents that scope of interference by this Court is a limited one and it does not extend to questions of facts in which there are concurrent findings. It need to be however appreciated that the expression ' substantial question of law ' is of wide import and where the Courts below have returned a finding based on an approach which is contrary to established law or the finding of fact is perverse, then the second appellate Courts can exercise jurisdiction for the ends of justice. In Azgar Barid v. Mazambi, (2022) 5 SCC 334 Hon'ble Supreme Court followed the ratio of its earlier Judgment rendered in Municipal Committee, Hoshiarpur v. Punjab SEB [Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216 and held "27. There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647], Karnataka Wakf Board v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Wakf Board v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : (2010) 4 SCC (Civ) 738] .) 8

28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated".

17. Plaintiff brought the suit for declaration that the registered deeds of gift and sale executed by her in favour of her sister's son and sister (D1) being vitiated by fraud, was void and not binding on the plaintiff.

18. The settled position of law is that there is a presumption in favour of a registered instrument that it was duly executed. The presumption is rebuttable for which there needs to definite pleading and evidence to establish that execution of the document was obtained by fraud. In terms of section 54 of the Transfer of Property Act and also in terms of Section 47 of the Indian Registration Act, title to the property passe to the vendee from the date of execution of the document upon registration. Abdul Rahim v. Sk. Abdul Zabar, (2009) 6 SCC 160 "Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid".

It has been held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713 that there is a presumption if favour of due execution of a registered sale deed and the party the onus of proof was upon the other side to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Law on burden of proof in cases of registered instrument has been discussed at length by the Hon'ble Apex Court in Raja Ram v. Jai 9 Prakash Singh, (2019) 8 SCC 701 11. "The deceased on account of his advanced age may have been old and infirm with deteriorating eyesight, and unable to move freely. There is no credible evidence that he was bedridden. Hardness of hearing by old age cannot be equated with deafness. The plaintiff, despite being the son of the deceased, except for bald statement in the plaint, has not led any evidence in support of his averments. It is an undisputed fact that the deceased appeared before the Sub-Registrar for registration. It demolishes the entire case of the plaintiff that the deceased was bedridden. He had put his thumb impression in presence of the Sub-Registrar after the sale deed had been read over and explained to him. The deceased had acknowledged receipt of the entire consideration in presence of the Sub-Registrar only after which the deed was executed and registered. The wife of the deceased had accompanied him to the office of the Sub-Registrar. The sale deed being a registered instrument, there shall be a presumption in favour of the defendants. The onus for rebuttal lay on the plaintiff which he failed to discharge. His evidence in support of the events before the Sub-Registrar therefore has to be accepted. The plaintiff could have led evidence in rebuttal of the Sub-Registrar but he did not do so.

............... The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi v. Gurbaksh Singh [Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558], only after the plaintiff would have established a prima facie case".

Jamila Begum v. Shami Mohd., (2019) 2 SCC 727 "16. Sale deed dated 21-12-1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law."

In case of a registered deed of gift there is no requirement of even examination of the attesting witness unless the execution has been denied. Here the execution has not been denied but contended that it was executed under an impression that it was a power of attorney. It has been held in Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020) 16 SCC 255 :

23. A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a will which is required to be attested in terms of Section 63 of the Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with the provisions of the Registration Act, 1908, unless the execution is specifically denied.

19. Without multiplying the authorities on the point that in the case of a registered non-testamentary instrument there is a presumption in favour of its due execution and the burden of proof is on the party who assails its execution or its very nature, it needs to be also noted that there is a presumption of fact under section 114(g) of the Evidence Act that official acts have been duly performed. The term presumption is a principle of law directing that if a party proves certain facts, called the basic, foundational, or underlying facts the fact-finder must also accept an additional fact as proven unless sufficient evidence is introduced tending to rebut the presumed fact.

20. In the present case two registered instrument of conveyance of property, one by way of gift in 1970 and another by sale in 1974 has been challenged by their executant on the ground that the execution of these 11 documents was procured by misrepresentation and fraud.

21. In view of the settled law as discussed above, the burden of rebutting the presumption of due execution was on the plaintiff, but both the learned Courts below approached the issue from a wrong angle that the burden of proof was on the defendant. They proceeded on the analogy that executant of the deed being an illiterate woman, her position was that of a pardanashin woman and therefore the burden of due execution of these instruments was on the defendants. The facts of the case do not in any way align with this line of reasoning, equating the executant to a pardanashin woman. She was undoubtedly an illiterate lady, but it was not that she was completely cut off from public life. As is evident from the facts of the case admittedly executant went to the registry office not once, but twice, to execute what is claimed on her part to be a power-of-

attorney. Part of the suit property was a dharmshala and for its management a deed of trust (Ext-5) was created by the plaintiff Most Domni in which the son Balbhadra Bhagat (donee), and son-in-law of her sister Ashu Devi (D1) were appointed as trustees. She herself called five persons and got the trust deed drafted which is evident from the statement of Binay Kumat (PW8) in para 2 of the examination-in-chief. It has also been contended that she was receiving rent of the part of the suit property. Tenancy agreement dated 22.11.78 was entered by the plaintiff (Ext-1). She got initiated proceeding under Section 144 of the Cr.P.C against Nirash Devi on 23.12.87, the order-sheet of which has been adduced into evidence and marked as Ext. 6. She filed the suit in which the plaint is written in English. Exhibit 3 series is the rent receipts issued in favour of Gobardhan Das which was issued by the plaintiff herself. From these evidences the picture that is sought to be projected through pleading of the plaintiff being a poor illiterate lady who was totally divorced from the realities of life so as to have not appreciated the nature of the document being executed by her does not accord with her active life in which she transferred and leased property, contested litigations. Against these background facts, it becomes difficult to countenance the reasoning of the courts below, that the executant of the deeds was so illiterate and sedulous that her status could be equated with a pardanashin woman and therefore the burden of proof of the registered document could be sifted 12 on the defendants.

22. Both the Courts below were in error on the shifting the burden on defendants of proving the registered instruments. The burden to rebut the presumption of due execution of the registered instrument was on the plaintiff.

23. This brings us to the substantial question of law as to whether the plaintiff had succeeded to plead and prove that the registered instrument of gift and sale were vitiated by fraud. Order 6 R 4 provides that in all cases of fraud particulars with dates and items must be stated in the pleading. Coming to the pleading part, it has been averred that execution of both the documents was procured by making a false representation that it was a general power of attorney and Karpardajnama (a type of power of management) of her properties. It is also averred that gift was conditional in nature that the donee would look after the donor (Plaintiff) and he never looked after her and therefore it did not come into force. Therefore, the tone and tenor of the plaint is not of fraud, but of non-fulfilment of the condition of the gift.

24. The relevant recital of the gift is (Ext-A) "In pursuance of the said intention and in consideration of natural love and affection which has for the said donor has for the said done, the said done, the said donor out of her own free will, without fraud coercion or undue influence from any body whomsoever.........for ever and absolutely subject to his liability of looking after the comforts and maintenance of the Donor as long as she lives and perform funeral rites according to Hindu Shastras and customs prevalent in the family of the Donor". It nowhere states as pleaded that it will take effect on a future date on fulfillment of a contingency. The condition is to the extent of maintenance of the Donor by the Donee, but not beyond that. The very insertion of these conditions in the gift and assertions made in the plaint regarding it, reflects that the donor was aware of its nature. Beyond the averment that the plaintiff was falsely represented about the nature of document that it was a general power of attorney, there is no more particular about the mode or manner in which the fraud was practiced.

25. With regard to the sale deed executed on 16.7.1974 (Ext-D), similar plea has been taken that it was vitiated by fraud and coercion. After 13 amendment of the plaint it has been added that it was held out by the purchaser that it was merely a kapradajnama. It is further contended that the consideration amount was neither paid nor she was capable of paying it as the purchaser was living on the charity of the plaintiff. From the plain reading of the plaint it appears that the pleas of fraud, coercion and non-payment of consideration amount has been pressed into service simultaneously, which are inconsistent and contradictory to the core. If the instrument was intended to be a karpardajnama or power or attorney, then there was no question of payment of consideration amount which can be only in case of sale. If it was a case of non-payment of consideration amount, it will not make out a case for cancelation for fraud under Section 31 or declaration of it to void under Section 34, but only for the consideration amount in a money suit.

26. From the above it is manifest that inadequate and inconsistent particulars have been made in the pleading with regard to fraud which does not meet the legal requirements of pleadings as required under O 6 R 4. It has been held in Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280

Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573 "8.1. Similar view has been expressed in Ladli Parshad Jaiswal [Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd., (1964) 1 SCR 270 : AIR 1963 SC 1279] and after considering the decision of the Privy Council in Bharat Dharma Syndicate Ltd. v. Harish Chandra [Bharat Dharma Syndicate Ltd. v. Harish Chandra, 1937 SCC OnLine PC 24 : (1936-37) 64 IA 143], it is held that a litigant who prefers allegation of fraud or 14 other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in K.C. Sharma & Co. [Union of India v. K.C. Sharma & Co., (2020) 15 SCC 209] it is held that "fraud" has to be pleaded with necessary particulars. In Ram Singh [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364], it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation."

27. From the pleadings coming to the evidence part, on the point of fraud, plaintiff has examined altogether 13 witnesses. PW-1, P.W2, PW9, P.W.11 are the witnesses who have deposed that the plaintiff Domni was in cultivating possession of the agricultural land. PW 3, PW.4, PW 5, PW.6, P.W8 and P.W.10 witnesses who have deposed that the said Dharamsala was in possession of the plaintiff. None of these witnesses has stated anything about fraud being committed in execution of gift or sale deed. P.W.12 is the plaintiff herself who has stated about this in para 7 that she was asked to execute karpardajnama which was not read over to her. She was never inclined to sell or gift the property, for if she had done so, how could she have supported herself. So this is the only evidence that has come in support of the contention that the execution of the sale deed was obtained by fraud. No witness other than plaintiff has whispered about fraud being committed in execution of these instruments.

28. On the other hand, DW 1 has deposed that the deed of gift was typed in his presence and it was read over to the plaintiff in Hindi by the learned Counsel and she had put her thumb impression on the deed in his presence. DW 4, DW 5, DW 6, have deposed that the suit land was being cultivated by them on behalf of the defendants. DW 5 has further deposed that it was earlier being cultivated by Balbhadra and after his death it is in possession of the Nirash Devi (D1). He has disputed the statement of the plaintiff that it was being cultivated by her. D.W 9 Murlidhar Pandey is 15 an independent witness and is an advocate and Chairman of Notified Area Committee. He has deposed that earlier for the office of the Notified Area Committee the house was earlier taken on rent of Rs.150 from Ashu Devi (D1) and later it was increased to Rs.400. In the disputed house three rooms on the first floor and two rooms on the ground floor was given on rent by Ashu Devi. Employee of the District Registry Office namely Abhiram Nayak (DW10) has proved the registered deed of sale as Exhibit D an also the registered deed of gift of 1970.

29. On these evidences it is apparent that on the point of possession there is conflicting evidence led on behalf of both the sides. Two shops in the Dharmsala were in possession of the plaintiff, but four rooms were rented out by Ashu Devi (D1) in favour of the Notified Area Committee. Mere possession in part of the suit property by the plaintiff cannot be a circumstance under which it can be held that the deed was vitiated by fraud. The part possession of the executant after the execution of the deeds is understandable in view of the condition in the gift deed (Ext A) that the donee shall maintain and take all care of the donor. This explains the possession of the plaintiff over the suit property after the execution of the deed of gift regarding Dharmshala.

30. Once the conveyance of property has been effected by a registered instrument like a sale or a gift, the transferee cannot be divested of the title even if it is assumed that transfer has not been followed by the possession of the transferee. It can not be a ground for cancellation of the deed or to declare the same to void on the ground of fraud.

31. As discussed above, there is inconsistent and contradictory pleading of fraud with respect to both the registered deeds and there was no evidence in support of it, except the testimony of the plaintiff herself. The pleading and evidence is not sufficient to rebut the due execution of the registered sale and gift deed in favour of the defendants. The learned Courts below committed a gross error to shift the burden of proof on the defendants regarding the due execution of the registered deeds. Although one of the attesting witness ( D.W 1) was examined still a finding was recorded that there was no evidence to show that the contents of the gift deed was not read over and explained to the donor which renders it perverse finding.

32. From the plain reading of the gift it is apparent that there was no clause in the gift for its revocation and it was a transfer of property subject to the rules enacted under Chapter II of the T.P. Act. When an absolute gift is made it is transfer of property inter vivos. It is open to the donor to transfer by gift title and ownership in the property and at the same time reserves its possession and enjoyment to oneself during her life time. It has been held K. Balakrishnan v. K. Kamalam, (2004) 1 SCC 581 :

15. Section 123 of the Transfer of Property Act provides the mode of effecting transfer by gift which reads:

"123. Transfer how effected.--For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered."

16. The other relevant Section 126 specifies circumstances under which a gift can be suspended or revoked:

"126. When gift may be suspended or revoked.--The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."

(underlining by the Court) From the above, it is manifest that the deed of gift cannot be revoked unless there is a revocation clause in the gift deed. There is no scope for revocation of a deed of gift when the said deed was executed by the 17 donor, accepted by the donee and registered by the registering authority. Where no specific condition of revocation is made it cannot be revoked on the failure of the donee to render service to the donor.

33. On the point of limitation, period of limitation to cancel or set aside an instrument or decree for the rescission of contract shall be governed by Article 59 of the limitation of Act which is three years from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first come to the knowledge of the party. It has been held in Prem Singh v. Birbal, (2006) 5 SCC 353: 2006 SCC OnLine SC 522 at page 358 "13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.............. 20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void."

34. The gift deed was executed in the year 1970 and the sale deed was executed in the year 1974, whereas the instant suit has been filed in 1988. Brindavan Bhagat was the first party in M. Case no. 359 of 1981 (Ext F) who is own Devar (brother-in-law of plaintiff) and is father of Pramod Bhagat who has been substituted in the present second appeal after the death of original plaintiff Most. Domini. From this apparent that the plaintiff had full knowledge of the registered deeds of the year 1970 and 1974. The suit filed in the year 1988 was time barred.

35. All the three substantial questions of law are accordingly answered. The present suit has been filed with inconsistent and contradictory pleadings for declaration of the deed of gift and sale to be void. These deeds being registered, there was a presumption in their favour that it was duly executed and the plaintiff has failed to rebut its due execution. One of the attesting witnesses was examined on behalf of the defendants but the learned courts below recorded an erroneous finding that no attesting witness was examined and misdirected itself by shifting the burden of 18 proof of the registered deeds on the defendants. The finding that it was vitiated by fraud was perverse for want of pleading and proof. The suit was also hopelessly barred by limitation.

The Judgment and decree passed by the courts below is not sustainable and is accordingly set aside.

Appeal is allowed.

I.A., if any, also stands disposed of.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 21st September, 2022 AFR / AKT

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Jharkhand High Court