Vinod Kumar and Another Vs Tarachand and 2 Ors.

Court No. - 53

Case :- SECOND APPEAL No. - 987 of 2018

Appellant :- Vinod Kumar And Another Respondent :- Tarachand And 2 Ors Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Bhanu Prakash Verma

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Hon'ble Vivek Agarwal,J.

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Sri Rahul Sahai, learned counsel for the appellant.

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Sri M.D. Shekhar learned Senior counsel assisted by Sri B.P. Verma, for the respondents.

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This second appeal has been filed against the judgment and decree dated 02.08.2018 passed by the Additional District Judge/ Special Judge, Mathura in Civil Appeal No.155 of 2016 (Vinod Kumar and another vs Tara Chand and others) whereby learned first appellate Court has affirmed the findings of the trial court and affirmed the judgment and decree dated 07.12.2016 passed by the Civil Judge(Senior Division) Fast Track Court, Mathura in O.S. No.1088 of 2002 (Vinod Kumar and another vs.Tarachand and others).

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Learned counsel for the appellants submits that the sale deed was executed on 16.07.2002 and thereafter the correction deed was executed on 05.09.2002.

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The suit was filed for seeking cancellation of the sale deed and also permanent injunction on the ground that on the date that such sale deed was executed or the correction deed was carried out, the mental health of the vendor was not proper and was not in a position to understand the consequences of execution of such sale deed and against of such pleas, next friend of the vendor filed a suit and thereafter first appeal.

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Two grounds have been raised by the learned counsel for the appellants, namely that the trial court as well as appellate court have incorrectly discarded the documentary evidence showing the mental status of the vendor on the date of execution of such sale deed or just before execution of such sale deed and secondly the authorities were not entitled to carry out the correction in the executed sale deed on 05.09.2002. The remedy, which was available to the defendant purchaser was of filing suit seeking such correction in the sale deed.

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Sri M.D. Shekhar, learned counsel for the respondents submits that plaintiff could not lead any evidence to show that the mental health of the vendor was not up to the mark to show incapacitated him to execute the sale deed and informs it has come on the record that even after execution of sale deed on 16.07.2002, sale deeds were executed by the vendor in favour different persons on different dates. It is further submitted that onus was on the vendor or on the next friend of the vendor i.e. plaintiff to lead such evidence to the fact that vendor was suffering from such disability or the disorder that he was not capable of understanding the import, meaning and impact of the transaction, which was carried out by him in favour of the defendants.

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It is also submitted that the correction was carried out on 05.09.2002 was in favour of vendor and demonstrates the bonafides of the purchaser inasmuch as due to typographical error instead of half portion of the property was to be sold in favour of defendant, 3/4 portion was mentioned in the sale deed and keeping the bonafidly that was allowed to be corrected to half which demonstrates that both the vendor and vendee had entered into a transaction with bonafide intention and such intention existed even after registration of the sale deed.

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Learned counsel for the appellant at this stage submits that since there was medical prescription prior to the date of actual transaction and subsequent to the date of transaction, therefore, the courts below should have accepted the continuity of the illness for the intervening period also though plaintiff who was already hardpressed because of illness of her husband, could not produce the relevant prescription/documentary evidence.

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After hearing learned counsel for the parties and going though the record, this Court is of the opinion that onus was on the plaintiff to demonstrate the actual mental status/ health of the vendor on the date of the transaction and subsequently, on the date of correction deed. Both the transactions were carried out within an interval of about 40 days in between and during both the transactions, the sickness of the vendor or ill will of vendee could not be established, thus the plea of mental health of the vendor is not made out and has been rightly rejected by the trial court and upheld by the first appellate Court. As far as plea of validity of the correction is concerned once the validity of the sale deed has been upheld by this Court as has been held by the trial court and affirmed by the first appellate court, transaction will merge into the original transaction and that being not a subject matter of this appeal, does not require any elaborate discussion any further.

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Thus, this appeal does not raise substantial questions of law lest the ones which one mentioned in the appeal memo, therefore, appeal lacks merit and is consequently dismissed.

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No order as to costs.

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Order Date :- 29.1.2020 Pr/-

Vinod Kumar and Another v. Tarachand and 2 Ors.

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Vinod Kumar and Another v. Tarachand and 2 Ors.

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