Dismissed

Sidar and Others v. Ganeshram and Others

Chhattisgarh HC18 Nov 2019SA/202/2007

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for cancellation of a sale deed, the High Court dismissed the appeal. The court held that a delayed death certificate obtained during the suit's pendency lacked reliability and that the registered sale deed created a presumption of valid execution.

What did the court decide?

The judgment and decree of the first appellate Court are reaffirmed; the second appeal is dismissed with no costs.

Sidar and Others Vs Ganeshram and Others — Property and Title | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 202 of 2007

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1.Sidar (died) through Lrs.

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1.1. Smt. Sukhmati, Wife of Shri Ram Prasad
Rathia (D/o Late Sidar), Aged about 40 years, R/o
Village Jamabira, Tahsil Dharamjaigarh, Distt.
Raigarh, Chhattisgarh.

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2.Mangalsai (died) through Lrs.

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2.1. Madan Ram, Aged about 50 years, S/o Late
MangalSai.

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2.2. Anant Ram, Aged about 45 years, S/o Late
Mangalsai.

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2.3. Sadh Ram, Aged about 35 years, S/o Late
Mangalsai.

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2.4. Smt. Chamrin Bai, Aged about 50 years, Wd/o
Late Ram Sai (S/o Late Mangalsai).

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All R/o Village Sajwari, Tahsil Dharamjaigarh,
District Raigarh, Chhattisgarh.

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3.Nanhiram, Son of Bhagatram, Aged about 30 years.

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4.Ghassiram (died) through Lrs.

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4.1. Smt. Hiramoti, Wd/o Late Ghasiram, Aged
about 65 years.

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4.2. Jagmohan S/o Late Ghasiram, Aged about 45
years.

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4.3. Madan Mohan S/o Late Ghasiram, Aged about 40
years.

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All R/o Village Sajwari, Tahsil Dharamjaigarh,
Distt. Raigarh, Chhattisgarh.

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5.Tijram, Son of Premsai, Aged about 35 years.

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6. Tijobai, Daughter of Premsai, Aged about 40 years.

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7. Belar Singh, Son of Bhagatram, Aged about 60 years.

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All R/o Village Sajvari, Tahsil Dharmajaigarh,
District Raigarh, chhattisgarh.

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---- Appellants/Plaintiffs

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Versus

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1. Ganeshram, Son of Heeraram, Aged about 33 years.

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2. Maheshram, Son of Heeraram, Aged about 28 years.

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3. Sumitra Bai, Daughter of Heeraram, Aged about 26 years.

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4. Sushila Bai, Daughter of Heeraram, Aged about 24 years.

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5. Chamrin Bai, Widow of Heeraram, Aged about 34 years.

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All residents of Sajwari, Tahsil Dharamjaigarh,
District Raigarh, Chhattisgarh.

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6. State of chhattisgarh, Through the Collector, Raigarh, Chhattisgarh.

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---- Respondents/Defendants

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For Appellants :Mr. A.N. Bhakta and Mr. Vivek
Bhakta, Advocates
For Respondents :Ms. Sharmila Singhai, Advocate
For State :Ms. Anjali Singh Chouhan, Panel
Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board

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18/11/2019

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1. This second appeal preferred by the plaintiffs was admitted for hearing on the following substantial questions of law:-

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“1. Whether in the facts and

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circumstances of the case the plaintiffs
have been able to prove that the sale-
deed dated 23-5-1981 (Ex.P-1) was not
executed by them ?

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2. Whether the lower appellate Court is
justified in disbelieving the death
certificate (Ex.P-3) ?

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3. Whether in the absence of the

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attesting witnesses to the sale-deed
having been examined by the defendants
to prove the execution of the sale-deed,
the first appellate Court is justified
in dismissing the suit ?”

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(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court. )

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2.The suit property bearing khasra No. 42/13
admeasuring 0.324 hectare and khasra No. 42/14
admeasuring 0.405 hectare situated at Village
Sajwari,PatwariHalkaNo.16,Tahsil

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Dharamjaigarh, District Raigarh was originally held
by father of plaintiffs No. 4 to 6 namely Premsai.
The sale deed (Ex. P/1) in question was said to
have been executed by plaintiffs No. 1 to 3 and

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Premsai – father of plaitniffs No. 4 to 6 in favour of one Heeraram who is the father of defendants No. 1 to 4 and husband of defendant No. 5 on 23/05/1981 for a sale consideration of ₹ 1,018/- thereby transferring the suit property in Heeraram's favour.

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3. On 11/03/2002, plaintiffs No. 1 to 3 along with the sons of Premsai i.e. plaintiffs No. 4 to 6 and one Belar Singh, plaintiff No. 7 filed a civil suit seeking cancellation of sale deed dated 23/05/1981 (Ex. P/1) stating that it is a forged document as they have never executed the said sale deed in favour of Heeraram i.e. father of defendants No. 1 to 4 and husband of defendant No. 5 and they have also not obtained any consideration amount for the sale.

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4. Defendants denied the plaint allegations by filing their written statement stating inter alia that the suit property was sold by plaintiffs No. 1 to 3 and father of plaintiffs No. 4 to 6 namely Premsai in their favour and they have been in possession of the suit property since then. They have also stated that their father/husband Heeraram's name had already been recorded in the revenue records in the year 1981 and he died five years prior to the filing of the written statement and thereafter, defendants have been in cultivating possession of

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the suit property and moreover, the suit filed by
the plaintiffs is barred by limitation.

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5.Learned trial Court, after framing five issues and
after appreciating the oral and documentary
evidence on record, decreed the suit of the
plaintiffs vide its judgment and decree dated
23/02/2006 holding that the sale deed dated
23/05/1981 (Ex. P/1) was obtained by Heeraram i.e.
father of defendants No. 1 to 4 and husband of
defendant No. 5 by playing fraud and without
payment of consideration amount and the suit is
within limitation, as such, plaintiffs are entitled
for decree for cancellation of said sale deed dated
23/05/1981 (Ex. P/1).

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6.On appeal being preferred by the defendants under
Section 96 of the CPC, learned first appellate
Court set aside the judgment and decree of the
trial Court and dismissed the suit of the
plaintiffs vide its judgment and decree dated
19/02/2007 holding that plaintiffs have failed to
prove their case against which this second appeal
under Section 100 of the CPC has been preferred by
the plaintiffs in which three substantial questions
of law have been framed and are set out in the
opening paragraph of this judgment.

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7. Mr. A.N. Bhakta and Mr. Vivek Bhakta, learned counsel appearing for the appellants/plaintiffs

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would submit that the first appellate Court has
gravely erred in holding that Ex. P/3, in which
date of death of Premsai is recorded as 10/03/1981,
is not proved by the plaintiffs in accordance with
law. It is a document issued by the competent
authority under the Registration of Births and
Deaths Madhya Pradesh Rules, 1973, as such, it is a
document issued in performance of public duty in
accordance with Section 35 of the Indian Evidence
Act, 1872, therefore, the document (Ex. P/3) is
admissible in evidence, having evidencing value.
They would further submit that the sale deed dated
23/05/1981 (Ex. P/1) was never executed by the
plaintiffs and no consideration amount was paid to
them and the defendants have not even examined the
attesting witnesses of the sale deed, therefore,
the first appellate Court ought not to have
interfered with the judgment and decree of the
trial Court and the second appeal deserves to be
allowed.

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8.Ms. Sharmila Singhai, learned counsel appearing for
the respondents/defendants would submit that
learned first appellate Court is absolutely
justified in dismissing the suit filed by the
plaintiffs as the death certificate of Premsai
(Ex. P/3) was obtained after the institution of the
suit i.e. on 17/11/2003 and the said document

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7 (Ex. P/3) was issued at the instance of the son of plaintiff No. 4 namely Madan Mohan (impleaded as legal heir of plaintiff No. 4 in this second appeal) and though it was issued by the order of the Sub-divisional Magistrate, Dharamjaigarh, but the documents (Ex. D/6 to D/8) would clearly show that merely on the basis of the affidavit of Madan Mohan i.e. son of plaintiff No. 4, order was passed by the Sub-divionsal Magistrate, Dharamjaigarh without due verification, on the basis of which endorsement was made by the concerned police station on 6/11/2003 and the death certificate of Premsai (Ex. P/3) was issued on 17/11/2003, therefore, such a document (Ex.P/3) is not reliable in evidence though it is admissible in evidence. She would further submit that the sale deed is proved in their favour is a legal document which has not been controverted by leading an appropriate evidence, therefore, the first appellate Court has rightly set aside the judgment and decree of the trial Court. Accordingly, the second appeal deserves to be dismissed.

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9.I have heard learned counsel for the parties,
considered their rival submissions made herein-
above and went through the records with utmost
circumspection.

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10. Plaintiffs instituted civil suit No. 9-A/2002 for cancellation of sale deed dated 23/05/1981 (Ex. P/1) allegedly executed by plaintiffs No. 1 to 3 and Premsai – father of plaintiffs No. 4 to 6 in favour of Heeraram – father of defendants No. 1 to 4 and husband of defendant No. 5 and thereby transferred the suit property in their favour for a sale consideration amount of ₹ 1,018/-. The instant suit was filed as late as on 11/03/2002 for cancellation of sale deed in question (Ex. P/1) stating that no sale deed was ever executed in favour of Heeralal by plaintiffs No. 1 to 3 and father of plaintiffs No. 4 to 6, as such, they are in possession of the suit property and the sale deed (Ex. P/1) is a forged document which deserves to be cancelled wherein defendants controverted by stating that it is a registered sale deed which raises the presumption of being a valid document and consideration amount was paid to the plaintiffs and they have been in possession of the suit property since then, as such, the suit deserves to be dismissed.

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11.The main dispute is with regard to the document
(Ex. P/3) that is the death certificate of Premsai
alleging that he died on 10/03/1981 and the sale
deed was executed on 23/05/1981, as such, the sale
deed in question is a forged document for which

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substantial question of law No. 2 has been framed
therefore, for the sake of convenience, 2nd
substantial question of law is taken up for
consideration first.

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nd
Answer to 2 Substantial question of law:-

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12.It would be appropriate to mention here that when
the suit was filed on 11/03/2002, the plea was only
that sale deed dated 23/05/1981 (Ex. P/1) be
cancelled as it was never executed by plaintiffs
No. 1 to 3 or by Premsai – father of plaintiffs No.
4 to 6. It appears thereafter on 6/11/2003,
Madan Mohan – son of plaintiff No. 4 moved an
application before the Sub-divisional Magistrate,
Dharamjaigarh that his grandfather Premsai died on
10/03/1981 which could not be recorded in the death
register and since more than one year has lapsed,
therefore, direction be issued to the station house
officer, Dharamjaigarh to record the date of death
of Premsai as 10/03/1981 which was considered by
the Sub-divisional Magistrate, Dharamjaigarh vide
Ex. D/7 and the application of Madan Mohan i.e. Ex.
D/8 and his affidavit is Ex. D/9 on the basis of
which the Sub-divisional Magistrate passed order
dated 06/11/2003 directing the concerned station
house officer to record the date of death of

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Premsai as 10/03/1981 and accordingly, it was
recorded vide Ex. D/6 and thereafter, the death

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certificate was issued in favour of plaintiffs as
Ex. P/3 on 17/11/2003. Then, plaintiffs filed an
application for amendment on 22/12/2005 and filed a
copy of the said document (Ex. P/3) on that day
only. The said application filed by the plaintiffs
for amendment was allowed on 26/12/2005 and the
plea that Premsai died on 10/03/1981 and therefore,
the sale deed could not have been executed by
Premsai on 23/05/1981. This plea was inserted in
the plaint due to which learned trial Court framed
an additional issue 6 (a) and (b) and thereafter,
recorded a finding that Premsai died on 10/03/1981
and in view of that, the sale deed dated 23/05/1981
is void and illegal.

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13.In civil appeal No. 10-A/2006 preferred by the
defendants, the aforesaid finding recorded by the
trial Court was reversed by the first appellate
Court and learned first appellate Court did not
rely upon Ex. P/3 i.e. death certificate of Premsai
and held that plaintiffs have failed to prove the
fact that Premsai died on 10/03/1981.

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14.It is pertinent to mention here that under Rule 10
(3) of the Registration of Births and Deaths Madhya
Pradesh Rules, 1973, any birth or death which has
not been registered within one year of its
occurrence, shall be registered only on an order of
a Magistrate of the first class and on payment of a

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11 late fees of rupees five. The Rules of 1969 have been substituted by the Rules of 1999, which provides that after one year, it shall be registered by the order of the Executive Magistrate. The Karnataka High Court, in the matter of H. Subba Rao v. The Life Insurance Corporation of India and Ors.¹ , while considering Section 13 (3) of the Registration of Births and Deaths Act, 1969, held that entry of date of birth made pursuant to the direction of Magistrate is not conclusive evidence of disputed date of birth and held as under :-

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“The policy of the law embodied in the
Section, as it appears to me, is to avoid
manipulation in the entries relating to the
date of births and deaths. Such entry shall
be made immediately after the occurrence.
Precaution should be taken while making
delayed entries. The law says that an entry
which has not been made within one year of
its occurrence cannot be made without an
order of the Magistrate. Section 13(3) of
the Act is just a constraint on the
Registrar. It is not a provision whereby an
aggrieved party could get an adjudication on
his disputed date of birth. The order of the
Magistrate binds only the Registrar and not
others. The entry made by the Registrar,
pursuant to an order of the Magistrate,
cannot carry higher probative value and its

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1 ILR 1976 KAR 800

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proof must necessarily depend upon the facts
and circumstances of each case.”

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15.In this case, Madan Mohan – son of plaintiff No. 4

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filed an application (Ex. D/8) before the
Sub-divionsalMagistrate,Dharamjaigarhon
06/11/2003 stating that his grandfather Premsai
died on 10/03/1981 and that application was
supported by his affidavit (Ex. D/9) and that was
taken cognizance of by the Sub-divisional
Magistrate on that day i.e. on 06/11/2003 (Ex. D/7)
and on the basis of that order, Ex. D/6 was passed
directing the station house officer to register the
date of death of Premsai as 10/03/1981 without
verifying the contents of application qua the date
of death of Premsai.

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16. The question is whether the first appellate court is justified in disbelieving the death certificate of Premsai (Ex. P/3) ?

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17.The entry in the register of birth and death
recorded by the Registrar under the Registration of
Births and Deaths Madhya Pradesh Rules, 1973 may be
admissible in evidence under Section 35 of the
Evidence Act, but by no means it is conclusive as
entries in the birth and death register are public
documents.

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18. In the matter of Bujhawan Singh and Ors. v. Mt. Shyama Devi and Ors.² , Division Bench of Patna High

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2 AIR 1964 Patna 301 (v. 51 c. 85)

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Court has held that entries in birth and death
register are public documents and are admissible
under Section 35 of the Evidence Act. The ground of
reception of such evidence is that it is the public
duty of a person who keeps the register to make
such entries after satisfying himself of the truth.
When it is the duty of the public servant to make
such entries in any public or official register, it
becomes admissible to prove the truth of facts
entered as well as the fact that the entries were
made by the officer. It was further held that
entries in a register of birth, death or marriage
are at least prima facie, though they may not be
always conclusive evidence. It is not necessary to
prove who made the entries and what was the source
of information.

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19.In the instant case, though the entry was made as
per Rule 10 (3) of the Registration of Births and
Deaths Madhya Pradesh Rules, 1973 by the order of
the Sub-divisional Magistrate, Dharamjaigarh, but
the fact that requires to be noticed is that after
the filing of the suit and during the pendency of
the suit, Madan Mohan – son of plaintiff No. 4
filed an application before the Sub-divisional
Magistrate for entering the date of death of
Premsai as 10/03/1981 vide Ex. D/8 and D/9 and
simply on that basis, the Sub-divisional

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Magistrate, by its order dated 6/11/2003, directed
the station house officer to register the date of
death of Premsai as 10/03/1981. It nowhere records
the satisfaction of the Sub-divionsal Magistrate as
to whether he had verified the date of death of
Premsai from any source or by any means and even no
notice was issued to the affected parties as it was
issued during the pendency of the instant suit, and
he had blindly accepted Madan Mohan's affidavit
which is full of over-writing and correction and
directed the station house officer to register the
date of death of Premsai as 10/03/1981 and
thereafter, Premsai's death certificate (Ex. P/3)
was issued mentioning his date of death as
10/03/1981 which led the plaintiffs to file
application for amendment and thereafter, an entire
new case was made out by the plaintiffs before the
trial Court.

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20.It is well-settled legal position that if a
document comes into existence during the pendency
of the suit even in the public record(s), the Court
has to scrutinize and assess the evidentiary value
of that document with great care and caution. As in
the present case, the document (Ex. P/3) was
brought into existence at the instance of Madan
Mohan – son of plaintiff No. 4 who got the date of
death of Premsai registered as 10/03/1981 by the

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order of the Sub-divisional Magistrate, but
surprisingly, Madan Mohan – son of plaintiff No. 4
at whose insistence, the date of death of Premsai
was registered as 10/03/1981 did not enter into
witness box and failed to make himself available
for cross-examination to the other side as to what
was the basis of his information with regard to the
date of death of his grandfather Premsai as
10/03/1981 though his father was plaintiff No. 4
before the trial Court. As such, learned first
appellate Court rightly disbelieved the document
(Ex. P/3) holding that plaintiffs have failed to
prove the date of death of Premsai as 10/03/1981.
Thus, the 2nd substantial question of law is
answered against the plaintiffs and in favour of
defendants.

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Answer to 1st and 3 rd subtantial questions of law
collectively:-

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21.The sale deed in question (Ex. P/1) was said to
have been executed by plaintiffs No. 1 to 3 and
father of plaintiffs No. 4 to 6 namely Premsai in
favour of Heeralal i.e. father of defendants No. 1
to 4 and husband of defendant No. 5 on 23/05/1981
that is a registered document issued under Section
60 of the Registration Act, 1908 after complying
with the provisions contained under Sections 34,

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35, 58 and 59 of the Act with endorsement of the
registering officer.

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22.Recently, the Supreme Court in the matter of
Jamila Begum (dead) through legal representatives

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v.ShamiMohd.(dead)throughlegal
representatives and Anr.3has held that

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registration of the sale deed reinforces valid
execution of the sale deed. It was observed as
under :-

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“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
Prem Singh v. Birbail4, it was held as
under:-

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“27. There is a presumption that a
registereddocumentisvalidly
executed. A registered document,
therefore, prima facie would be valid
in law. The onus of proof, thus, would
be on a person who leads evidence to
rebut the presumption. In the instant
case, Respondent 1 has not been able to
rebut the said presumption.”

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The above judgment in Prem Singh’s case has
been referred to in Vishwanath Bapurao

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3 (2019) 2 SCC 727 4 (2006) 5 SCC 353

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Sabale v. Shalinibai Nagappa Sabale and
Others5”

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23.So far as the examination of attesting witnesses of
sale deed are concerned, it has already been held
by the Supreme Court in the matter of Bayanabai
Kaware v. Rajendra S/o Baburao Dhote6 that Section
68 of the Evidence Act which deals with examination
of attesting witnesses to prove execution of
document does not apply to sale deed.

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24.In the instant case, defendant No. 1 has entered
into witness box and proved the execution of the
sale deed and plaintiffs themselves have filed the
sale deed and exhibited it in evidence (Ex. P/1)
without any protest or demur, as such, in my
considered opinion, learned first appellate Court
has rightly held that plaintiffs have not been able
to prove that sale deed was not executed by
plaintiffs No. 1 to 3 and father of plaintiffs No.
4 to 6 in favour of father of defendants No. 1 to 4
and husband of defendant No. 6. Thus, the 1st and
3rd substantial questions of law are also answered
against the plaintiffs and in favour of defendants.

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25.As a fallout and consequence of the aforesaid
discussion, the judgment and decree of the first
appellate Court is reaffirmed and the second appeal
deserves to be and is accordingly dismissed. No
cost(s).

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