Baboolal vs Ratanlal

A.R. Navker, J.—This is a second appeal against the judgment and decree dated 2-3-1973, passed by the First Additional District Judge, Morena in Civil Appeal No. 11-A/69, whereby the judgment and decree dated 19-7-1969, passed by the Civil Judge, Class II, Sabalgarh in Civil Suit No. 22/66 was confirmed.

The plaintiff's suit was on the following allegations: that he is an illiterate and a blind villager and there is no one to look after him; he owns land admeasuring 20 Bighas 11 Biswas, the land revenue of which is Rs. 50.36 and which is situated in village Mangrol, pargana Sabalgarh. District Morena. People belonging to the said village are after his property and somehow they want to take advantage of his disability Upto 1961, his sister Kinti was looking after him, but because of some family matters, she left him and there was no one to look after him. The defendant's father Ramratan, taking advantage of this opportunity, kept the plaintiff with himself and told him that if he will execute a Patta in favour of his son, then the other persons who want to grab his property, will be defeated in their intention. Believing this, on 7-6-1961, he executed a Patta for eight years of Survey No. 563, 789/1 and 790. There was wrong mention of one number. Therefore, that mistake was corrected subsequently The Patta mentions that Rs. 200- were paid as consideration to the plaintiff The plaintiff has challenged this Patta on the allegation that it was got executed from him by practising fraud on him. The Patta is with it any consideration. The Patta is in favour of a minor and, therefore, that is not valid. As the Patta is unilateral it will not bind the plaintiff because the plaintiff never accepted it and the transaction of Patta is a sham one Alleging this, he submitted that the possession of the disputed property should be given back to him and if defendant takes possession forcibly of Survey No. 789/1, then that may also be given to him. He also claimed Rs. 1,000/- as mesne profits per year.

The written statement of the defendant was that he admits that the plaintiff is an illiterate and a blind. But, it is not admitted that there is none to look after him. The ownership and the land revenue and the area of the disputed property is admitted. But it was submitted that on 16-1-1964, the disputed property was sold in favour of one Shridharlal and Ramdayal sons of Devilal and possession was handed over to them. Therefore, at the time of Sling of the suit as the plaintiff is not the owned of the property, he has no right to file a suit. The allegations which the plaintiff referred to the defendant regarding fraud and other things were denied by the defendant. He says in his written statement that the Patta was executed after complete understanding of the said transaction and on 22-9-1964 the transaction dated 7-6-1961, was admitted by the defendant. The allegation that no consideration was paid was also denied It was admitted that the Patta is in favour of a minor, but it was said that it is in favour of a minor, but it is through his natural guardian. It was also said that in Civil Suits No. 59-A 64 C. O. and 56-64 C. O. in the Court of the Civil Judge Class It, Sabalgarh, the plaintiff has given his written statements, affidavits and also filed applications in which he has admitted that he has executed the alleged Patta in favour of the defendant. If these admissions are taken into consideration, then it is quite clear that no fraud was practiced on the plaintiff and after understanding the nature of the transaction, the plaintiff has entered into it. The amount of mesne profits was also denied. So also, it was denied that the defendant is not in possession the property. There was an objection u/s 10 of the Code of Civil Procedure, because a suit regarding injunction was pending between the plaint ft and the defendant, the number of which is 10-A/56.

Before proceeding further, I will have to take into consideration litigations which were decided between Ratanlal, the plaintiff on one hand and Shridharlal and Ramdayal and also the appellant on the other hand. Cases Numbers are 56/64 C. O., 59/64 C. O. and 20/65 C. O. in the Court of the Second Civil Judge Class II, Sabalgarh. There were other litigations also, but they are not of much importance to decide the matter before me. Ratanlal, on 16-1-64, sold his land including the land in dispute. The suit No. 59/64 was filed by Ratanlal against Shridharlal for cancellation of the sale-deed effected in favour of Shridharlal of Rs. 3,000. In that plaint, it is mentioned that the sale-deed dated 16-1-1964, is without consideration and, therefore, it is void. It is also mentioned that the consideration Was meagre looking to the price of the land which was sold under the sale-deed. The other suit is No. 56/64 which was filed by Shridharlal and Ramdayal against Ramratan, Babulal and Ratanlal for declaration that they are the owners of the land in dispute under the sale-deed executed on 16-1-1964 and for an injunction that the defendants may not disturb the possession of theirs. An application under Order 39, rules 1 & 2, C.P.C. was filed in the above mentioned suit. When an adverse order was passed against the present plaintiff, the matter was taken up in appeal before the Second Additional District Judge, Morena (Appeal No. 26 of 1964). In that appeal, an affidavit was filed by Ratanlal, in which he has stated that he has executed a Patta in favour of the present appellant, but as to consideration, he says that he has to pay about Rs. 1,300 and the property was mortgaged with them. The suit No. 59/64 was compromised on 23-1-1965, in which Ratanlal has given an application that he does not want to proceed with the suit. Copy of the order dated 1-1-1966 shows that the compromise dated 23-1-1965 was set aside because of the decree passed in case No. 20/65 on 26-11-1965. In the written statement filed on Case No. 56/64, the defendant has admitted that he has executed a Patta in favour of the present appellant and has given possession to them. But here also, it does not mention that a consideration of Rs. 200 was given by the appellant to the respondent. To the same effect is the reply filed to an application under Order 39 rules 1 and 2 CPC by Ramratan. The statement dated 29-10-1964, given in case No. 56/64 by Ramratan says that he has to pay Rs. 300 to Ramratan which he has taken as a loan from him. Whether he pays the loan back or not does not matter much to Ramratan, because he has executed a Patta for five years. He refers to the land in dispute as "Zamin Nauwali" and he also admits that the possession of the appellant is which his consent.

I have referred to these proceedings to show that the plaintiff is in habit to put his thumb impression on any document without considering what will be the effect on his interest of such document. Secondly, I have mentioned all this to show that finding of both the Courts below that no consideration was paid to the plaintiff when the alleged Patta was executed is also correct In all the documents I have considered above, there is no mention that Rs. 200 were paid as consideration at the time when the Patta was executed. The document (Patta) is a registered one and the endorsement of the Sub-registrar does not show that the plaintiff admitted that he received the same amount as consideration for giving the Patta of the disputed fields to the defendant. Therefore, the evidence of the defendant also that the amount was paid some-time before, inspires no confidence to come to the conclusion that actually the amount was paid to the plaintiff. The witnesses of the Patta produced in support of the Patta also do not say to that effect. Therefore, I am of the view that I will have to confirm the finding of both the Courts below that no consideration was paid to the plaintiff when the alleged document was executed or prior to the execution of the said document. I may consider here also the manner in which the plaintiff has given his statement before the Court. That also indicates that he is an unsophisticated villager and a blind man who has to depend on others and his faculties are not developed to that extent so that he may understand the implications of the documents to which he puts his thumb impression. When he was asked as to what must be the income from the lands which are given under the Patta, his answer is worth considering. He has stated that he gets crop of about 100 maunds from the disputed field. Then, he says that it may be 50 maunds. Then again he says that it may be 25 maunds. Then again in next sentence, he says that it may be 500 maunds. That in the next sentence, he says 200 maunds. Then again he says that at present sugarcane is standing in the field and it may be worth Rs. 4,000. Or, it may be even worth Rs. 6,000. Therefore, looking from this evidence, it is abundantly clear as to how much he understands of the worldly affairs. He has stated in his statement that he has not executed any Patta in favour of the defendant. Shridhar (P.W. 2) has stated in his statement that from each field. Ramratan should get about Rs 600 per year. Taking three fields together, the calculation should be about Rs. 1,800. To the same effect is the statement regarding the income of the fields, of Ganesha (P.W. 4) and Bhagwanlal (P.W. 6). Therefore, roughly taking into consideration the evidence led by the plaintiff as well as the defendant, the income from the fields is not less than Rs. 1,500 per year.

Now I turn to the document itself. The document is dated 7-6-1961. It is given for eight years. It mentions that land revenue for eight years is already received by the plaintiff. But it is silent as to what is that land revenue. It is also mentioned that if the defendants have to spend something to get possession, the responsibility for the said expense will be that of Ratanlal. The amount of land revenue is not mentioned in figures, but it is said indirectly that it is the same as he pays to the Government. That means that it should be taken as Rs. 50.36. Then, for eight years, it should come to Rs. 402.88. But, as I have already mentioned above, that this amount was paid to the plaintiff is not mentioned in any of the documents referred to above.

The property was sold formerly for Rs. 3,000 /- There is no difference between the land revenue paid by the plaintiff to the Government and by the defendant to the plaintiff. Therefore, the plaintiff could not get anything from the said transaction. Bearing in my mind that he is a blind and excepting this, he has no other property sufficient to support him, I will have to hold that the alleged consideration paid is meagre and the transaction is unconscionable. I may refer here to section 25 of the Contract Act which deals with the inadequacy of consideration and it says in Explanation 2 as under :--

Explanation 2.--An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given

I may add here that the defendant has not discharged the burden which was on him to show that the transaction is valid eyen though the consideration was inadequate, In fact, I have held that no consideration did pass for the said transaction. Section 105 of the Transfer of Property Act defines, a lease as under;--

A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money a share of crops, service or any other thing of value, to be rendered periodically of on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Therefore, to support the contract of a lease, consideration it essential. That consideration may be price-paid or promised or of money or of share of crops or of service or any other thing of value to be rendered periodically or on specified occasions. But, here in this case. I do not find the existence of consideration of any type to support the transaction. The effect of it is that section 25 of the Contract Act will be applicable, which says that an agreement made without consideration is void. It is not the case of the defendant that this agreement was executed in their favour because of natural love or affection. Neither the plaintiff and defendant stand in near relationship to each other. Therefore section 25(i) of the Contract Act will not be applicable to the said document and, therefore, I will have to hold that as the agreement is made without consideration, it is void,

This takes me to the legal implications of the case. In the plaint, the plaintiff has alleged that the document was brought about by fraud and coercion and because it was brought about by fraud and coercion, therefore, that document does not bind him If the document is brought about by practicing fraud and coercion, then what is the effect of such a document is considered in section 19 of the Contract Act which says that such contract is voidable at the option of the party whose consent was so caused.

The difference between a void contract and voidable contract, I will have to consider. The difference between void and voidable contract was considered in Asaram v. Ludheshwar AIR 1938 Nag 335, which is a Full Bench Judgment and in that Judgment, it was also considered as to which section of the Limitation Act will be applicable to the said case. The relevant observations from the Judgment are as under : --

We have next to determine which Article of that Act applies. It was suggested that the suit is really u/s 38 Specific Relief Act for cancellation of an instrument I do not think it is. It has certainly not been framed as such and even if it had been, the addition of a relief of that effect could not have altered its real character so far as the relief for possession is concerned One has to look beyond the mere verbiage of the plaint to the real relief claimed, that is to say to the real relief which according to the law the plaintiff is bound to seek before he can succeed : Bhagwan Appa v. Shivappa (23 NLR 73) Sharkersa v, Punamchand (ILR 1937 Nag 254 at p. 258) and Bindhyachal Chand v. Ram Gharib Chand (57 All 27 - at p. 285). There is in my opinion a wide difference between an instrument which is voidable and one which is void from the beginning. In the former the right under the contract continues until it is avoided and therefore restoration of property handed over in pursuance of it cannot be claimed until the instrument is avoided either by the act of parties or through the Court. In the latter no legal contract ever came into being and so the rights of the parties are determined independently of the deed. There is no need to avoid or cancel that which never existed in the eye of the law and so the substantial relief claimed would not be governed by Art. 91 : Petherperma1 Chetty v. Muniandy Chetty (35 Cal. 551 at pp. 559-560) and Husen v. Rajaram (10 NLR. 133 at p. 136); nor can the mere addition of an ancillary relief for cancellation on which need never have been claimed make any difference : Muhammad Nazir v. Mst. Zalaikha Bibi (50 All 510), Sundarram v. Sithammal (16 Mad 311 at 314 : see also Rai Bahadoor Singh v. Achumbit Lall (6 CLR 12 at. p. 15) Rampalsingh v. Balbhaddar Singh (25 All 1), at. p. 16 and Mulkarjun v. Nathan (25 Bom 337 at p. 350)

It further goes to say regarding limitation as under;--

In my opinion Art. 142, Limitation Act applies to such a case. I confess that at first upon a somewhat cursory reading of Chhatra Kumari v. Mohan Bikram (10 Pat 851), I thought that Art. 120 would apply but I am obliged to my learned brother Digby, J for saving me from error I now find that at p. P68 their lordships observe that if the title had resided in the plaintiff and he had been the owner of the property claimed, the 12 year's rule would have applied, but inasmuch as he was not the owner, the claim fell within Art, 120. The question then is whether Art. 142 applies or Art. 144. I am clear that Art. 144 does not. In Chhatra Kumari's case (supra), their Lordships state at-p. 863 that it applies only when the person sued in holding adversely to the plaintiff and without title, and at page 868 they say :

This would, in their Lordship's opinion, depend upon whether he could rightfully assert that he was the owner of the properties and that the appellant's possession was that of a trespasser.

In the present case, the plaintiff has also stated that the document which he has executed is a sham one and if such a document is a sham one, what will be the effect of that document on the parties, I will have to consider. The Supreme Court had an occasion to consider the application of Article 91 to such document in Ningawwa Vs. Byrappa and Others, It has considered the position when a document has been executed because of fraudulent misrepresentation and a document which is brought about into existence by a fraudulent misrepresentation as to the contents thereof. It is held in that Judgment as under :--

The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as its character. The authorities make a clear distinction between fraudulent mis-representation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Machinon, (1859) 4 C. P. 704 the act on was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed:

It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.........The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect but as to the "actual contents'' of the instrument.

The learned counsel appearing on behalf of the appellant submitted before me that Article 91 (old=Art. 59 now) of the Limitation Act will be applicable to the present case. His submission before me is that for avoiding the contract, the plaintiff has stated that the contract was brought about by fraud and undue influence and if that contract is brought by fraud or undue influence, then, that contract will be voidable and not void and, therefore, there should be judicial avoidance of the said contract. If judicial avoidance of the contract is required, then, he submits that Article 91 (old=Art. 59 new) of the Limitation Act will be applicable. I am not in a position to accept this submission of his, because I am of the view that as the contract is void, the position will be that the position of the defendant from the date of contract will be adverse to the plaintiff and he could only retain in possession if he had perfected his title by holding the property adversely to the plaintiff. I may refer for this proposition to Appanna Vs. Jami Venkatappadu and Others, in which Article of along with Article 144 (old) was considered It was laid down that: "Article 91 presupposes that a suit is necessary under the law to set aside the instrument But where under the law there is no duty cast on the person to get an instrument set aside, the article does not impose any obligation on him to get it set aside." When the document is wholly void or inoperative, such deed does not require to be set aside and a simple suit for recovery of possession is the proper remedy and therefore Article 144 (old) of the Limitation Act will be applicable. The fact that there is a prayer for declaration that the deed is void or that it should be set aside does not affect this position, because it is the intention which is gathered from the plaint that is to be considered. If the suit is for getting possession back, then certainly the other prayer which may be considered to be ancillary, may not be taken into consideration. In Appunna's case (supra) AIR 1934 130 (Privy Council) was relied on. If there are other prayers when the document itself is void, what will be the effect was also considered in Dalim Kumar Sain and Others Vs. Smt. Nandarani Dassi and Another, . It was laid down in that case: that "Art. 9 I of the Limitation Act prescribing limitation for cancellation of an instrument, is not for a suit which is in substance a suit for a declaration that an instrument is void, even though an otiose prayer for cancellation is there in the plaint. Once the Court voids an instrument, it is in law a nullity, and little remains in it for the Court to cancel or set aside. In Karma Nand Vs. Sewa Nand and Another, a mortgage-deed was asked to be declared void because there was no consideration and the question came whether Article 91 will be applicable to such a suit. It was held in that judgment that it is not supported by any consideration is governed by Art. 120, Limitation Act, 1908 and not by Article 91 of the Act. Art. 91 is not applicable to transactions which are void ab-initio but applies to cancellation or setting aside of instruments which embody voidable transactions. Consequently, a suit for declaration that the mortgage deed in question was without consideration and, void, is governed by Art. 120 and not by Art. 91

I was referred to by the learned counsel for the appellant to Sukaloo and Another Vs. Punau, in which, it is laid down as under:--

On this argument, we agree the appellants stand in the shoes of Bhikmanga and could have challenged the deed for want of consideration. The right of Bhikmanga challenge the deed for want of consideration arose on the execution of the deed and he could do so only within three years from the date of its execution under Art. 91 of the Indian Limitation Act.

But, in my opinion, this case will not be applicable to the present case and moreover, in my opinion, the Full Bench judgment of Nagpur High Court in Asaram v. Ludheshwar (supra) was not considered in this case. Therefore, I am bound by the Full Bench judgment and I will have to follow the same The judgment in Sukaloo's case (supra) has no application to the present case at all. It was a case filed for recovery of damages and in that case there was no question directly involved of recovery of possession from the defendant on the ground that a document on the basis of which the defendant got possession is void. Therefore, in my opinion, this case will not help the appellant.

In Eswarareddi v. Vankatachellamma AIR Mad 83 Article 91 came for consideration as to whether it will be applicable if plaintiff wants cancellation or setting aside of instrument which is void and it was held:

Article 91 applies only to cases of voidable document which it would be necessary to set aside before recovering possession and not suits to recover possession where the plaint alleges that the registered sale-deed executed by the plaintiff is wholly void, as in such cases, it would not be necessary to set aside the sale-deed before recovering possession.

Because I have held that the plaintiff is a blind and an unsophisticated villager and the consideration which the defendant alleges to have given to the plaintiff is meagre, it was the duty of the defendant, if he wanted to substantiate that transaction, to prove that the document was read over and explained to him and he knew the nature of the transaction and particularly looking to the acreage involved in the transaction, everything should have been explained to him. Added to this, when it has come in evidence that while litigating against Shridharlal and Ramdayal, it was the defendant who took an active part in getting that sale set aside It clearly shows that the defendant had an influence over the mind of the plaintiff throughout. A similar situation was considered in Chandhala Bewa Vs. Madhab Panda and Others, In that case, Articles 142 and 91 of the Old Limitation Act were considered and it was held as under :--

It is clear, therefore, proper execution of the documents in question, which are being impugned by the plaintiff who is entitled to impugn them, has not been proved. As such, it is bound to be found that no title ever passed to the vendees. Therefore, the case cannot come under Article 91 of the Limitation Act. The only Article applicable would be 142. But the plaintiff is perfectly within time to bring the suit for recovery of possession under Article 142 of the Limitation Act.

It was argued before me that under Article 59=(Art. 91) of the Limitation Act. the limitation is three years, while under Article 65 and 64 --(Art. 144 and Art. 142) of the Limitation Act, the limitation to get possession is twelve years and when the case is covered by the two provisions of the Limitation Act, the lesser period will be applicable in deciding whether the suit is within limitation or not. The learned counsel for the appellant has referred to me to Mallam Singh v. Collector, Sehore 1971 JLJ: 1971 MPLJ 529, in which it is held as under :--

Plaintiffs aggrieved by order u/s 145 Criminal Procedure Code, Suit filed within three years of the order but plaintiffs did not prove that they were in possession within twelve years before suit. Suit barred by Article 142 though within time under Article 47 of the Limitation Act, 1908

But, I cannot accept this submission because there is no question of applying two periods of limitation to the present case. Article 91= (Article 59-new), I have already held, is not applicable to the present case. Therefore, the only Article which can be made applicable if Article (144, or 142=Art. 64, 65) Therefore, that submission of the learned counsel is rejected.

Therefore, taking into consideration the facts and circumstances of the case and the law applicable to the present case, I am of the opinion that the Judgment passed by the trial Court and confirmed by the appellate Court requires no interference and therefore, the result is that the appeal is dismissed with costs. Counsel's fee Rs. 150/-, if certified. The decree of the trial Court is confirmed.