Smt v Somakka Since Dead Represented by Her Lrs Vs Sri B Abdul Kuddus

& 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED25.10.2010 PASSED IN O.S.10628/1997 ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE,MAYOHALL UNIT, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND POSSESSION.

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NC: 2026:KHC:8123 RFA No. 369 of 2011

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The caption appeal is by the unsuccessful plaintiffs assailing the judgment and decree rendered in O.S.No.10628/1997 thereby, plaintiffs' suit seeking relief of declaration to declare the sale deed dated 29.03.1990 as null and void and not binding on the plaintiffs and consequently the cancellation of the sale deed, was also sought and the relief of possession was dismissed by the Trial Court.

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For the sake of brevity the parties are referred to

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as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The original plaintiff instituted the suit with a specific and categorical plea that defendants No.1 and 2 had fabricated and fraudulently brought into existence a

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document styled as a sale deed. It was averred that defendant No.1 was inducted as a tenant in one of the ground floor shops on a monthly rent of Rs.500/- and was running a scooter garage therein. According to the plaintiff, owing to the deteriorating health condition of her second son, she was constrained to borrow a hand loan of Rs.50,000/- from the defendants. Taking advantage of her illiteracy and lack of worldly knowledge, the defendants allegedly secured her signatures on blank stamp papers under the pretext that a document was required as security for the loan transaction. The plaintiff contended that the defendants retained all her original title deeds and subsequently misused the signed stamp papers to concoct a sale deed. On this factual foundation, she asserted that the purported sale deed is a nullity in the eye of law and not binding on her. It was further pleaded that her sons, Sathyanarayana and V. Chandrakumar, who also have a share in the property, were not parties to the alleged conveyance. The plaintiff also disputed the recital of

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consideration of Rs.1,50,000/- and contended that the market value of the property at the relevant point of time was in excess of Rs.3,50,000/-.

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Upon service of summons, defendants No.1 and 2 entered appearance and filed a detailed written statement stoutly denying the plaint averments in toto. The defence set up was that the plaintiff had voluntarily agreed to sell the property and had executed an agreement of sale dated 04.01.1990 prior to the execution of the registered sale deed dated 29.03.1990. It was further contended that after execution of the sale deed, the plaintiff had attorned the tenancy in favour of the defendants by issuing notices to the tenants. The defendants asserted that the plaintiff had shifted her residence after the sale and that they had financially assisted her by paying Rs.35,000/- to one Veliamma, the landlord of her new residence, and that she had borrowed Rs.35,000/- on 25.07.1990. It was also their

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case that the plaintiff subsequently availed a further sum of Rs.1,00,000/- by way of cheque dated 08.07.1991 for

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securing employment for her second son and for purchase of a vehicle. On these pleadings, the defendants sought dismissal of the suit.

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In light of the rival pleadings, the Trial Court framed appropriate issues and the parties were called upon to adduce oral and documentary evidence. The plaintiff examined herself as P.W.1 and examined two supporting witnesses as P.Ws.2 and 3. The first defendant entered the witness box as D.W.1. The defendants also examined D.W.2, an attesting witness to the sale deed, and D.W.3, a practicing advocate who was the scribe of the document. The defendants relied upon letters allegedly issued by the plaintiff to the tenants intimating attornment of tenancy, as well as documents evidencing refund of advance security deposits to certain tenants upon their vacating the premises and handing over possession to defendants No.1 and 2.

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Upon appreciation of the entire oral and

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documentary evidence, the Trial Court answered Issue No.1 against the plaintiff, holding that she had failed to establish that the sale deed dated 29.03.1990 was obtained by fraud. While answering Additional Issue No.1 in the affirmative, the Trial Court further held that the suit was barred by limitation and consequently dismissed the suit.

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Learned counsel for the plaintiff, reiterating the grounds urged in the memorandum of appeal, vehemently contended that the material on record clearly demonstrates that a vulnerable and illiterate woman was exploited by defendants who were in a dominant position. It was argued that the defendants had failed to prove due execution and passing of valid consideration and that the Trial Court had misread the evidence on record. According to the learned counsel, the finding on Issue No.1 is vitiated by perversity inasmuch as relevant circumstances

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were ignored and the burden of proof was improperly shifted upon the plaintiff.

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This Court has independently re-appreciated the pleadings, the oral testimony of the witnesses and the documentary evidence produced by both sides. Having bestowed anxious consideration to the rival submissions, the following points arise for determination:

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(i) Whether the finding of the Trial Court that the plaintiff has failed to prove that defendants No.1 and 2 fraudulently obtained the sale deed dated 29.03.1990 suffers from perversity or illegality warranting interference by this Court?

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(ii) What order?

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Finding on point no.(i):

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The gist of the plaintiff’s case is that the sale deed dated 04.09.1990 was brought into existence by playing fraud and that the document does not reflect a genuine transaction. In contradistinction, defendants No.1 and 2, in

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order to establish the authenticity and due execution of the transaction, have produced the original registered sale deed marked at Ex.P.1 and have adduced both oral and documentary evidence in support thereof. The attesting witness to the sale deed was examined as D.W.2, and the scribe of the document, who is a practicing advocate, was examined as D.W.3. D.W.3 has categorically deposed that he drafted the sale deed at the instructions of the parties and that the transaction was executed in his presence after the contents were read over and explained. Both witnesses have spoken to the due execution and passing of consideration.

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On a careful scrutiny of the plaint averments, it is evident that the allegations of fraud are couched in general and bald terms. The plaint does not furnish particulars of the alleged fraud, nor does it disclose the manner in which the defendants are said to have deceitfully procured the sale deed. Significantly, during the course of trial, the plaintiff attempted to introduce an

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altogether new version. While admitting her signature on the sale deed, she sought to contend in her oral evidence that her signatures were obtained under the impression that a mortgage deed was to be executed as security for a hand loan and not a sale deed. This plea, which strikes at the very root of the transaction, is conspicuously absent in the pleadings. It is trite that evidence beyond pleadings cannot be looked into, and a party cannot be permitted to set up a new case at the stage of trial. The deviation in her testimony materially affects the credibility of her version.

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Insofar as the genuineness of the sale deed is concerned, except for the bare assertion of fraud, the plaintiff has not produced any documentary evidence to substantiate her allegation. On the contrary, the evidence of D.W.2, the attesting witness, inspires confidence. He has withstood the rigours of cross-examination and no material contradictions or admissions have been elicited to discredit his testimony. The evidence of D.W.3, the scribe and practicing advocate, further fortifies the defence. He

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has affirmed that the document was drafted at the instance of the parties and that the transaction was an out-and-out sale. There is hardly any effective crossexamination to impeach his credibility.

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Apart from the oral evidence, the defendants have placed reliance on contemporaneous documentary material. Ex.D.6, the agreement of sale dated 04.01.1990, is specifically pleaded in the written statement. Notably, there is no rejoinder filed by the plaintiff disputing the existence or execution of the said agreement. The conduct of the plaintiff subsequent to the execution of the sale deed assumes considerable significance. Ex.D.15, a notice dated 29.03.1990 addressed by the plaintiff to the tenant C.D. Radhakrishnan, indicates that she had attorned the tenancy in favour of defendants No.1 and 2. Ex.D.12, another communication dated 25.09.1991, unequivocally acknowledges that she had sold the suit schedule property

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and calls upon the tenant to remit rent henceforth to defendants No.1 and 2. These documents unmistakably

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demonstrate that the sale was communicated to the tenants and that the tenancy stood validly attorned.

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Ex.D.22 assumes further relevance. It evidences

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that a tenant, M. Rama, acknowledged receipt of Rs.7,500/- towards refund of the security deposit, which was originally paid to the plaintiff. The document clearly reflects that the said amount was paid by defendants No.1 and 2 and that possession was handed over to them upon vacating the premises. Such documentary evidence, coupled with attornment notices and refund of deposits, constitutes strong corroborative material establishing that the defendants had stepped into the shoes of the owner pursuant to a completed sale transaction. The subsequent conduct of the plaintiff in addressing tenants and acknowledging the sale is wholly inconsistent with the theory of fraud now propounded. These contemporaneous acts materially displace the plea that the sale deed was fabricated or fraudulently procured.

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Upon an independent and comprehensive

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reassessment of the rebuttal evidence, this Court finds that the plaintiff has failed to discharge the burden of proving fraud. The defendants have produced cogent, consistent and clinching evidence demonstrating that the transaction was an out-and-out sale for valuable consideration. The documentary material further indicates that even after execution of the sale deed, the plaintiff maintained cordial relations with defendants No.1 and 2 and continued to receive financial assistance from them, including amounts for securing rental accommodation and for facilitating the purchase of a vehicle for her second son’s transport business. These subsequent transactions belie the theory of deception and instead reflect a subsisting and voluntary relationship between the parties.

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In the light of the overwhelming rebuttal oral and documentary evidence adduced by defendants No.1 and 2, this Court is of the considered opinion that the Trial Court was fully justified in holding that the sale deed

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marked at Ex.D.1 represents a genuine and valid conveyance. The finding that the plaintiff has failed to establish fraud does not suffer from perversity or misappreciation of evidence. Accordingly, Point No.(i) is answered in the " Negative".

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Finding on point no.(ii):-

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