Dismissed

Banshi Lal v. Ram Milan and 7 Others

Allahabad HC20 Feb 2024SAPL/36/2024

Case brief

AI extract

What is this about?

In a second appeal challenging the dismissal of a suit for cancellation of a registered sale deed, the High Court held that Section 111 of the Evidence Act does not apply as the plaintiff lacked active confidence in the respondents, and Section 114 supports the presumption of bona fides regarding transactions with the child heirs.

What did the court decide?

The appeal was dismissed as no substantial question of law arose from the impugned order.

Banshi Lal vs Ram Milan and 7 Others — Specific Performance | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:14949

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Court No. - 29

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Case :- SECOND APPEAL No. - 36 of 2024

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Appellant :- Banshi Lal Respondent :- Ram Milan And 7 Others Counsel for Appellant :- Shobhit Saxena,R.P. Singh

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard learned counsel for the appellant.

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The instant appeal has been filed for setting aside the judgement and order dated 31.10.2023 passed by Special Judge, P.C. Act-6/Additional Sessions Judge, Lucknow in R.C.A. No. 4700211 of 2008 ( Banshi Lal vs. Ram Milan and others ) and judgement and order dated 1.11.2008, passed by Additional Civil Judge (J.D.)-III, Court No.35, Lucknow in Original Suit No. 897 of 2005 ( Smt. Hubraja vs. Ram Milan and others ).

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The contention of learned counsel for the plaintiff is that the plaintiff Smt. Hubraja, who was maternal aunt ( mausi ) of the appellant, had filed a suit for cancellation of sale deed dated 9.1.2002 on the ground that the sale deed was executed by playing fraud on the part of the respondents in the garb of getting pension as she was not in good terms with the respondents and she was staying with the appellant in whose favour, she had already executed a registered power of attorney on 30.5.1992. However, the learned Civil Judge dismissed the suit vide order dated 1.11.2008, on the ground that the plaintiff Smt. Hubraja could not prove her case as the sale deed in question was a registered document. Thereafter, an appeal was also filed against the order dated 1.11.2008 of Additional Civil Judge (J.D.). However, during pendency of the said appeal, the plaintiff died, therefore, the present appellant was substituted in place of the plaintiff Smt. Hubraja, being her registered power of attorney holder. The appeal of appellant was also dismissed on the ground that the plaintiff could not prove her case as the plaintiff was alleging the fraud in execution of the registered sale deed, therefore, it was upon her to prove the said fraud.

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It is further submitted by learned counsel for the appellant that the sale deed in question was executed under the undue influence, taking advantage of the weakness and old age of the plaintiff and in such case, it is the respondents who were required to prove that the transaction was bona fide. In support of his contention, learned counsel for the appellant has relied upon the judgement of Apex Court in Subhash Chandr Das

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Mushib vs. Ganga Prasad Das Mushib and others; AIR 1967 SC 878.

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Section 111 of the Evidence Act provides that when there is a transaction between two persons in which one person is in active confidence to the other, then the person who is in the active confidence has to prove that the transaction was bona fide.

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Considering the aforesaid submission and on perusal of record, this Court finds that the plaintiff Smt. Hubraja was an old aged woman and she had been residing with the appellant and had also executed a registered power of attorney in favour of the appellant, therefore, she was having active confidence in the appellant and not in the respondents. Therefore, the present ruling as well as Section 111 of Evidence Act do not apply in the case of transaction between the plaintiff Smt. Hubraja and the respondents, who were living separately. Even otherwise, the respondents No. 1, 2 & 3 are daughters as well as a daughter's son, therefore, the Court can presume under Section 114 of the Evidence Act that execution of sale deed in favour of the real daughters and a real daughter's son cannot be said to be doubtful and under influence, especially when they are not residing with the deceased plaintiff Smt. Hubraja.

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In view of the above, no substantial question of law is arisen in the present case. Accordingly, the appeal is dismissed.

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Order Date :- 20.2.2024 Vandana

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Digitally signed by :- VANDANA GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

Banshi Lal v. Ram Milan and 7 Others

Case brief

What is this about?

What did the court decide?

Banshi Lal v. Ram Milan and 7 Others

Case brief

What is this about?

What did the court decide?

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