Calcutta High Court
Khandu Charan Polley And Anr. vs Sreemati Chanchala Bhuinya on 13 March, 2002
Equivalent citations: AIR2003CAL213, AIR 2003 CALCUTTA 213, (2002) 3 CAL HN 609
JUDGMENT Narayan Chandra Sil, J.
1. This appeal has been directed against the judgment and decree dated 20-1-1997 passed by Sri S. K. Nandi, Learned Additional District Judge, 1st Court, Howrah in connection with Title Appeal No. 222 of 1993 reversing the judgment, and decree dated 31-7-1993 passed by Sri S. S. Chatterjee, learned Munsif, 7th Court, Howrah in connection with Title Suit No. 19 of 1991.
2. The suit before the Trial Court was for injunction and recovery of possession after evicting the licencee on revocation of licence. The Trial Court dismissed the suit but the Lower Appellate Court was pleased to allow the appeal and having reversed the judgment and decree passed by the Trial Court, decree the suit.
3. At the time of admission of the appeal the Division Bench of this Court was pleased to pass an order that the appeal will be heard on all grounds taken in the memorandum of appeal.
4. It is stated in the grounds of appeal that the learned Judge erroneously held that the plaintiff was an illiterate, rustic woman and is entitled to special protection of law. It is also stated that the Lower Appellate Court totally overlooked the material point to the effect that the plaintiff was a party to a partition deed in 1976 and she is not entitled to get any protection as pardanashin lady inasmuch as she had arranged the marriage of her sister and she sells fish in the market. It is also stated in the grounds of appeal that the plaintiff admitted in her evidence that the deed was explained to her to the effect that after her demise some portion of the property would devolve on the defendants in terms of deed in question, but this evidence was overlooked by the Lower Appellate Court.
5. Thus, to sum up the grounds taken in the memo of appeal by the appellant/defendant and to formulate the substantial question of law for the purpose of determination in the present appeal my enquiry will be whether the plaintiff had executed the deed in question with her full knowledge and whether the Lower Appellate Court made any perverse finding in arriving at its decision.
6. The plaint case before the Trial Court in brief is that the plaintiff is the absolute owner of the suit property. The plaintiff is a childless, illiterate widow and there was none to guide her in the management of her landed properties. In such situation the plaintiff sought the help of the defendant No. 1, who is the husband of the defendant No. 2. The defendant No. 2 is the sister of the plaintiff. But the defendant No. 1 suggested the plaintiff to execute a written authority in his favour to which the plaintiff agreed. Thereafter as advised by one Basudeb, a friend of the defendant No. I working in the Registry Office that the plaintiff was required to execute a power of attorney in favour of the defendants, the plaintiff went to the Registry Office and put her thumb-impression on a deed which was never read over and explained to her. Thereafter in the month of November, 1989 the defendant started quarrel with the plaintiff and threatened her to drive away from the suit property. Then the plaintiff obtained the certified copy of the deed and came to know that the said deed was turned into a family settlement in favour of the defendants, although the plaintiff was under the impression that she had executed a power of attorney in favour of the defendants. It is the further case of the plaintiff that she permitted the defendants to use two rooms in the suit property in order to look after the suit property during the absence of the plaintiff. But, the moment the plaintiff came to know as regards the fraudulent deed, she revoked the licence and asked the defendants to quit and vacate the suit property. The defendants contested the suit before the Trial Court and denied all the material allegations made in the plaint. It is the case of the defendant the plaintiff brought her sister, the defendant No. 2 in the suit property and gave her in marriage to the defendant No. 1 and thereafter the defendants started living in the suit premises. It is also the case of defence that the plaintiff but of her own will had executed the deed of settlement in question and the said deed was properly registered.
7. Mr. Soumitra Pal, learned advocate appearing for the appellants/defendants submits before me that the plaintiff admitted in her evidence that she had talks with the Sub-Registrar and the deed was read over and explained to her. It is also pointed out by Mr. Pal that all the DWs are the persons who had signed in the deed in question. In this connection the learned advocate for the appellant had referred to the ratio decided in the case of Kuppuswami v. Arumugam, . In the said case the High Court held that the Ext. B-1 was not vitiated by misrepresentation and the appellant was well aware of the nature of the deed when he executed it. The appellant was somewhat deaf of hearing. But he was a wealthy and shrewd money lender and capable of managing his affairs. He took the draft of the deed to his own lawyer and after obtaining legal advise, executed it. He himself presented the deed for registration. There were other facts mentioned in the said judgment and after having considered all those facts in the background, the High Court held that the plea of the appellants that the deed was induced by misrepresentation, was an afterthought. The Apex Court being in agreement with the High Court had accepted the testimony of the respondents witnesses and rejected the evidence of the appellant and his witness. Thus the Apex Court held that the onus is on the appellant in such circumstances to establish the plea of misrepresentation.
8. Mr. P. R. Mitra, learned advocate appealing for the respondent/plaintiff submits before me that the Lower Appellate Court had examined the evidence of the witnesses and thereafter arrived at the decision to reverse the judgment and decree of dismissal passed by the Trial Court. Mr. Mitra has further argued before me that when the deed is executed by an illiterate, rustic lady and grounds of misrepresentation and inducement are taken, the onus lies heavily upon the other side to prove that there was no misrepresentation or any inducement. In this connection Mr. Mitra has referred to a number of case laws.
9. Thus it was held in the case of Abdul Jabbar v. Venkata Sastri, that prima facie the Registering Officer puts his signature on the document in discharge of his statutory duty under Section 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.
10. Mr. Mitra has then referred to the ratio decided in the case of Amiruddin Ali v. Kali Bala Bhunia, 1993 (97) CWN 495. In the said case a suit was filed far declaration that the plaintiff was persuaded to execute a deed of sale on the misrepresentation that it was a power of attorney. The said suit was decreed concurrently by the Courts below. In the Second Appeal it was urged that the onus of proof was wrongly placed on the dependant/appellants. In such circumstances It was held by the learned single Judge of this Court that the burden of proof always rests upon the person who seeks to sustain a transaction entered into with a pardanashin lady to prove that the transaction was not only her physical act but also a mental one. It was also held in that case that the said protection is extended to an illiterate village woman. A similar decision was also made in the case of Chameli Debi v. Purusattam Singh, by the Division Bench of this Court and also in the case of Shrimati Khetrabala Ghosh v. Ambus Bala Basuri, AIR 2001 NOC 111 by the learned single Judge of this Court.
11. Mr. Mitra has then referred to the ratio decided in the case of Paras Nath v. Mohani Dasi, AIR 1959 SC 1204. It was observed in that case by the Apex Court that it was clear that the decision of the High Court on the second Appeal, reversing the concurrent finding of fact of the two Courts is based upon the impression drawn from evidence oral and documentary after misplacing the onus of proof, which the High Court was not entitled to do.
12. In order to arrive at a proper finding on the substantial question of law formulated for the purpose of determination in the present appeal, the evidence of the parties adduced in this regard is required to be considered. Smt. Chanchala Bhunia , the plaintiff of the suit had examined her self as PW-1 before the Trial Court. She stated in her evidence that she was an illiterate lady. She asked the defendants to look after her property and at this the defendant No. 1 asked the PW-1 to execute a deed in his favour in respect of the property and for that purpose the defendant No. 1 took her to the Registry Office and asked her to put her LTI on a paper and accordingly she put her LTI on paper. She further stated in her examination-in-chief.
"The contents were not read over and explained to me. Thereafter I asked the Mohorar to read it over to me. He did not show me any paper. Mohorar explained to me that it was written in the said paper that on my demise the defendant No. 2 would get one room. Thereafter the Sub-Regd. asked me certain questions and I have answers to that."
She also stated in her evidence that she had no intention to give up all her properties in favour of the defendants. In her cross-examination the PW-1 stated that she did not execute the deed of her own will. It was also stated by her that the deed was not read over and explained to her by Basudeb. The PW-1 stated in her further cross examination "It is fact that I sometimes give out that I will take back the property being compelled with the situation." No other witness had been examined on behalf of the plaintiff. As much as four witnesses were examined on behalf of the defendants. Out of them DW-1 is the defendant No. 1 himself. DW-2 is the deed writer. Basudeb Ghughu is the DW-3 and the DW-4 is the brother of the DW-1. The DW-2 stated in his examination-in-chief that the discussions as regards the preparations of the deed was held sitting in the house of Chanchala in her presence and the deed was written as per her instructions. He further stated that the plaintiff made the expenditure for the deed, which was of course denied by PW-1. It is further stated by him that the deed was drafted as per instructions of the PW-1 and the attesting witnesses signed in her presence. There is nothing in the evidence of the DW-2 that he read over and explained the deed to the plaintiff after the same was written. It is also in the evidence of the DW-2 that the discussion was held prior to two or three days of the date of the registration and the matter of discussion was put down in black and white. It is admitted by the DW-2 in his cross-examination, "I did not say to the plaintiff that after the deed she would have no title therein." The DW-2 has also stated, "The deed was drafted on one or two days before the registration". He could not say the exact date of drafting the deed although the DW-2 stated in his cross-examination that he took some notes as regards the main points to be drafted in the deed and there was no paper excepting the deed to show that the discussion as regards the deed was held at the residence of the plaintiff.
13. Basudeb Ghughu is the DW-3. He stated in his evidence that the plaintiff expressed her desire to transfer her property to the defendants and asked the DW-3 to identify her in the Registry Office: The DW-3 stated in his examination-in-chief, "the deed writer only read over and explained the deed to her" (underlined for emphasis). But, it may be stated here that nowhere in the evidence of the DW-2 who is the scribe stated that he read over and explained the deed to the plaintiff. The DW-3 admitted in his cross-examination that the plaintiff is an illiterate lady and that the plaintiff has no other accommodation for her residence. The DW-3 claimed that he had explained to the plaintiff that after the execution of the deed she would have right to live during her lifetime in respect of one room on the suit" premises. But, on my scrutiny there appears nothing in the deed in question (Ext. A) that one room will be in possession of the plaint if during her lifetime. And what is striking in the evidence of the DW-3 is, "The writing of the deed and registration was completed in a single day". Here I may hark back to the evidence of the DW-2 who is the scribe and who stated that the writing of the deed was made one or two days before the registration. The DW-3 appears to have contradicted his own statement in evidence as regards the explanation of the recitals in the deed vis-a-vis the right of the plaintiff after the execution of the deed when the DW-3 stated in his cross-examination, "I have done nothing in respect of the deed except attestation and identification". And then again he stated, "I was there in the Registry Office to explain the deed". Nemai Polley is the DW-4. He is the brother of the defendant No. 1. He claims himself to be present at the time of negotiation of marriage of the defendant No. 1 with defendant No. 2 and he stated "at the time of negotiation the plaintiff stated that in lieu of dowry she would give property to my brother". The DW-4 further stated that there are six rooms in the house and out of those six rooms, four rooms were constructed by his brother and in those four rooms "the defendants reside. But, in his cross-examination, the DW-3 stated, "I cannot say as to who spent for those rooms". The DW-4 had also claimed that the deed was read over and explained by the Mohrar that is the scribe. But, it may be repeated that DW-2 never stated in his evidence that he read over and explained the deed to the plaintiff. In his cross-examination the DW-4 admitted that he had not read over the deed to the plaintiff. It is also admitted by the DW-4 that he had no talks about the deed before the execution of the same. The DW-4 contradicted the scribe who is DW-2 when it is stated by the DW-4, "We. reached Registry Office at 10 A.M. Thereafter the deed writer came and drafted our deed", although it is in the evidence of the deed writer himself that the deed was drafted one or two days before its registration. The DW-4 ultimately admitted that he did not know about the contents of the deed.
14. The defendant No. 1 is the DW-1 in the instant case. Like his brother, the DW-4, the DW-1 had brought altogether a new story in his evidence that at the time of negotiation of marriage the plaintiff agreed to give suit property to the defendants and that the defendant No. 1 would live as a domesticated son-in-law. To my utter dismay I do not find any such averment to that effect made in the written statement filed by the defendants. The DW-1 stated that there are five rooms (and not six rooms as claimed by DW-4) in the suit premises and out of those five rooms plaintiff is in occupation of three rooms and the other two rooms are in the occupation of other defendants. This is also not in corroboration of the evidence of other witnesses. The DW-1 claimed that he constructed three rooms out of the five rooms from his own pockets. The DW-1 stated in his examination-in-chief. "The said deed was read over and explained to the plaintiff by Basudeb Ghughu" but Basudeb Ghughu, the DW-3 stated nothing to that effect that he had read over and explained the said deed to the plaintiff and on the other hand, at the cost of representation, the DW-3 stated that it was only the DW-2 who had read over and explained the deed to the plaintiff, DW-3, the DW-1 admits, is the friend of DW-3.
15. It is candid from the evidence discussed above that the DWs sharply contradicted with each other on the vital question as to who read over and explained the deed in question to the plaintiff who is a rustic and illiterate woman. Beside the DW-2, who is a scribe, all the other witnesses of the defence are highly interested and sometimes they appeared to be over zealous. The evidence as discussed above will show that the defendants had miserably failed to substantiate that the deed in question was read over and explained to the plaintiff.
16. Ext. A is the deed in question in the cause title of the said deed it is described as a "Bandobastonama" (deed of settlement) in respect of the house buildings along with the lands, it appears from the recitals of the said deed that the executrix gave the property appertaining to Khatian No. 539, Plot No. 3 measuring 4 decimal keeping only her life interest of joint living with the defendants. There is nothing in the evidence adduced by the parties us to why the plaintiff did not keep her title in any of the rooms on the suit property.
17. The ratio decided in the case of Kuppuswami supra as referred to by the learned Advocate for the appellant as already discussed, does not appear to have any application in the instant ease, for, the facts of that case are altogether different from the facts in the instant case. In the said case the executant was only deaf of hearing but, he took the draft of the deed to his own lawyer and after obtaining legal advice had executed the same. In the instant case the plaintiff is admittedly an illiterate rustic woman.
18. From the case laws cited by the learned Advocate for the respondent/plaintiff it is candid that the protection which a pardanashin lady is entitled, is also available to an Illiterate village woman.
19. In the case of Mallo v. Bakhtawari, the donor was art illiterate lady who filed a suit for cancellation of the deed of gift on the ground that the deed of gift was obtained by exercising fraud. The burden of proof that the gift was valid lay on the donee. It was held in the case of Jadu Gopal v. Parma Lal, that the construction of the basic document which goes to the root of the matter is a question of law and could be gone into in second appeal. It was held in the ease of K.D. Kadam v. S.S. Gujar, that the concurrent findings of fact, however erroneous, cannot be disturbed in the second appeal but in paragraph (5) of the same judgment it was held by the Hon'ble Apex Court that the High Court cannot substitute in its own opinion for the first Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions, of law applicable or its settled position on the basis of pronouncement made by the Apex Court or was based upon inadmissible evidence (underlined for emphasis)
20. Thus from the above three cases it is clear that the onus was on the defendants in the instant case to prove that the deed in question (Ext. A) was executed by the plaintiff of her own volition and without any misrepresentation which the defendants, as discussed earlier from the evidence adduced by the parties before the trial Court, had miserably failed to discharge.
21. The learned Munsif had failed to appreciate the purport of the evidence adduced by the parties before him and misdirected himself on shifting the onus in the instant case.
22. As the deed in question (Ext. A) goes, the status of the defendants in the suit property is unmistakably one of a licensee which the plaintiff had revoked. It is the admitted case of defence that the defendants were asked by the plaintiff to reside in the suit premises. The defendant has not taken any case of tenancy. Thus the plaintiff has succeeded to substantiate her claim that the defendants are the licensees and she had revoked the said licence. Therefore, in view of all what has been discussed above the appeal is liable to be dismissed.
23. The appeal is, therefore, dismissed on contest. The judgment and decree passed by the Lower Appellate Court are hereby affirmed. The judgment and decree of dismissal of the suit passed by the Trial Court are set aside.
24. The suit is decreed. It is hereby declared that the deed of settlement dated 20-3-78 is void and inoperative. The plaintiff do also get a decree for eviction against the defendants from the B-schedule property. There shall be no order as regards the other prayers of the plaintiff in the suit considering the relations of the parties.
25. The parties are directed to bear their respective costs.