AI Structured Summary
Not yet generated for this judgment
Judgment
Dharam Chand Chaudhary, J.
The subject matter of dispute in the present lis is land entered in Khatta/Khatauni No. 1310 min/1955 min, Khasra Nos. 2766, 8384/2767 and 2769 measuring 3-4-0 bighas situated in Phati and Kothi-Kais, Tehsil and District Kullu.
One Prittam Singh was owner-in-possession of the suit land. Respondent No. 1 Bhim Dassi, hereinafter referred to as the plaintiff, was legally wedded wife of said Shri Prittam Singh. On the death of her husband, Prittam Singh, she inherited the suit land and became owner thereof. Respondent No. 2-Cross-Objector, hereinafter referred to as defendant No. 1, contracted second marriage with plaintiff and within few days of his marriage with her, he managed the execution of gift deed Ex. DW-2/A from her in his favour. He also managed to attest mutation No. 5543 of the suit land consequent upon the gift deed in his favour. Later on, defendant No. 1, sold the suit land to the appellant, hereinafter referred to as defendant No. 2, vide sale deed dated 30.9.1998, Ex. DW-5/A.
The grouse as brought in the civil suit by the plaintiff was that the execution of gift deed by her in favour of defendant No. 1 was on account of fraud he played upon her because he having contracted marriage with her and she reposed faith and confidence in him, it is on account of that he was in a position to dominate her will as a result thereof, in the last week of September, 1996 i.e. 28.9.1996, she was taken by him to the office of Tehsildar at Kullu at the pretext of attestation of some agreement in relation to her marriage with him. On that day, she was made to sign some paper. She signed the same believing to be the papers pertaining to her marriage with defendant No. 1 and because of contents thereof were not disclosed to her. Subsequently, defendant No. 1 started quarrelling with her and also asked her to give him divorce. Ultimately in May 1998, he allegedly left her company and started to dispossess her from the suit land on the basis of gift deed and the mutation of the suit land he managed to execute and attest in his favour. It was, therefore, claimed that defendant No. 1 being in fiduciary relation with her was in a position to dominate her will and played fraud upon her as a result thereof he managed the execution of the gift deed, which she never executed. On inquiry she made subsequently, came to know that consequent upon the gift deed Ex. DW-2/A, Defendant No. 1 also managed attestation of mutation No. 5543 in his favour. During the pendency of the suit she further come to know that defendant No. 1 had further sold the suit land to defendant No. 2 vide sale deed No. 1247 dated 30.9.1998 Ex. PB for ostensible sale consideration of Rs. 2,80,000/-. She, therefore, sought the declaration that gift deed Ex. DW-2/A and mutation No. 5543 attested on the basis thereof as well as further sale of the suit land by defendant No. 1 in favour of defendant No. 2, being the result of fraud and misrepresentation are illegal, null and void and not binding upon her.
Defendant No. 1 in the written statement while admitting he having solemnized marriage with the plaintiff has denied that he obtained the gift deed of the suit land by practicing fraud upon the plaintiff and rather she after understanding the contents thereof executed the gift deed in respect of the suit land in his favour. He at that time was residing with her in her own house. She did not permit him to visit his village Raogi to see his family. She wanted him to live with her permanently and abandoned his own family in village Raogi. He did not agree thereto and it is thereafter, she started threatening him to interfere in his ownership and possession qua the suit land. He filed civil suit No. 67 of 1998 against her. The present suit, according to him, was filed by her as counter blast to the suit he filed against her.
Appellant-defendant No. 2 claims himself to be the bonafide purchaser of the suit land on payment of sale consideration i.e. Rs. 2,80,000/- and had spent Rs. 40,000/- towards stamp duty etc., for execution of the sale deed in his favour. He allegedly was put in possession of the suit land also.
Learned trial Court has framed the following issues:-
i. Whether the gift deed No. 1441 dated 28.9.96 obtained by defendant No. 1 from the plaintiff is a result of fraud and misrepresentation, as alleged? OPP
ii. Whether the sale deed No. 1247 dated 30.9.98 executed by defendant No. 1 in favour of defendant No. 2 is without valid title and as such, illegal and void, as alleged? OPP
iii. Whether the plaintiff is owner in possession of the suit land? OPP
iv. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP
v. Whether defendant No. 2 is a bonafide purchaser of the suit land for consideration? OPD-2
vi. Whether the suit is not maintainable? OPD
vii. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
viii. Relief.
After holding full trial, issues No. 1 to 4 were held in affirmative i.e. in favour of the plaintiff whereas issue No. 5 in negative against defendant No. 2, however holding the said defendant entitled for reimbursement of Rs. 3,20,000/- i.e. Rs. 2,80,000/- towards ostensible sale consideration and Rs. 40,000/- towards expenses incurred upon execution of the sale deed. Issues No. 6 and 7 again in negative i.e. against the defendants. Consequently, the suit was decreed for the relief of declaration with further direction to defendant No. 1 to refund the ostensible sale consideration of Rs. 2,80,000/- + Rs. 40,000/- total Rs. 3,20,000/- to defendant No. 1 within a period of six months, failing which together with interest @12% per annum, vide judgment and decree dated 3.8.2001.
Aggrieved by the judgment and decree passed by learned trial Court, defendant No. 1 preferred civil appeal No. 84/2001 whereas defendant No. 2, Civil appeal No. 92/2001. Learned lower appellate Court framed the following points for consideration in both the appeals:-
i. Whether the trial court wrongly concluded the gift deed qua the suit land in favour of the defendant No. 1 to be void, illegal and the findings liable to be reversed after accepting the appeal?
ii. Whether the decree directing the defendant No. 1 to return Rs. 3,20,000/- to defendant No. 2 is without any claim and issue and therefore requires to be set aside?
iii. Whether the suit for declaration was not maintainable due to the plaintiff out of possession of the suit land?
iv. Final order.
Points No. 1 and 3 have been answered in favour of the plaintiff and against defendant No. 2 whereas point No. 2 in favour of defendant No. 1. Consequently, the appeal preferred by defendant No. 1 was partly allowed by holding that he was not liable to refund Rs. 3,20,000/- to defendant No. 2. The appeal preferred by defendant No. 2 has, however, been dismissed.
The legality and validity of the judgment and decree passed by learned lower appellate Court has only been assailed by defendant No. 2 in the present appeal on the grounds inter alia that both the Courts below have erroneously concluded that the plaintiff was illiterate and rustic widow and that defendant No. 1 obtained the gift deed from her by playing fraud upon her because cogent and reliable evidence in this regard is stated to be not available on record. He having purchased the suit land for sale consideration and spent money for getting the sale deed registered, therefore, is entitled to recovery of Rs. 3,20,000/- from defendant No. 1. The findings so recorded by learned trial Court are stated to be erroneously quashed by learned lower appellate Court. The value of the suit for the purpose of Court Fee and jurisdiction was Rs. 2,80,000/- and the objections raised in this behalf is stated to be not taken into consideration. On the other hand, the oral as well as documentary evidence available on record has not been appreciated in its right perspective and rather misconstrued and misinterpreted.
Defendant No. 1 in cross-objections has assailed the legality and validity of the impugned judgment and decree only on the short ground that there being no evidence showing that he by practicing fraud upon the plaintiff and obtained the gift deed under undue influence and by way of misrepresentation, no findings to the contrary could have been recorded.
This appeal has been admitted on the following substantial questions of law:-
Whether the suit of the plaintiff for declaration without seeking the cancellation of the gift deed and the sale deed Ex. DW-2/A and DW-5/A was maintainable?
Whether in view of the fact that the sale deed was for Rs. 2,80,000/-, the suit was properly valued for the purpose of Court Fees and jurisdiction and the Senior Sub Judge, Lahaul Spiti had the jurisdiction to try the same and the findings of the court below are without jurisdiction?
Whether the finding that the gift deed executed by Bhim Dassi was vitiated on account of fraud and mis-representation is sustainable, being based on misrepresentation and misconstruction of oral and documentary evidence and the findings are perverse?
Whether in view of the findings of the court below that the appellant was bonafide purchaser for consideration, the gift deed and the sale deed could be declared void without payment of the sale consideration and expenses incurred by the appellant and the findings to the contrary are based on misconstruction of the pleadings of the parties?
It is seen that vide order passed on 3rd January 2002, the cross-objections were tagged with the main appeal for final hearing without passing order qua admission thereof on any substantial question of law. Vide separate order of the day in the file, cross-objections have been admitted on the following substantial question of law:-
i) Whether the findings that the gift deed Ex. DW-2/A is the result of fraud and misrepresentation are not based upon proper appreciation of evidence available on record and rather the evidence available on record has been misconstrued and misread?
Now coming to the arguments addressed on behalf of appellant-defendant, Shri Kapil Dev Sood, learned Senior Advocate has emphasized that although there is no evidence to show that gift deed Ex. DW-2/A is the result of fraud and misrepresentation, yet even if the finding so recorded by both Courts below are believed to be legally sustainable, in that event also, defendant No. 2 was legally entitled for refund of the sale consideration i.e. Rs. 3,20,000/- from defendant No. 1. The findings recorded by learned trial Court could have not been brushed aside by learned lower appellate Court. Even if in the present suit no such relief could have been granted to the appellant-defendant, according to learned counsel, liberty should have been reserved in favour of the appellant-defendant No. 2 to recover the same from defendant No. 1 by filing separate suit.
Mr. Bhupender Gupta, learned Senior Advocate appearing on behalf of defendant No. 1/cross-objector has also contended that the gift deed was not the result of fraud and misrepresentation, nor any such findings could have been recorded for want of cogent and reliable evidence.
On the other hand Mr. Sanjeev Kuthiala, Advocate appearing on behalf of respondent No. 1-plaintiff has supported the judgment and decree under challenge in the present appeal as according to him, both the Courts below, on appreciation of the oral as well as documentary evidence available on record in its right perspective, have rightly concluded that the gift deed Ex. DW-2/A was the result of fraud and misrepresentation. Consequently the sale deed Ex. DW-5/A has also been rightly declared as illegal, null and void because defendant No. 1 has no right, title or interest in the suit land nor could have sold the same to defendant No. 2.
On analyzing the submissions made by learned counsel on both sides and the record, this Court finds no illegality and infirmity in the findings to the effect that gift deed Ex. DW-2/A is the result of fraud and misrepresentation for the reason that both the Courts below while arriving at such conclusion has appreciated the oral as well as documentary evidence available on record in its right perspective. The contentions to the contrary are neither legally nor factually sustainable. As a matter of fact, defendant No. 1 has miserably failed to controvert the plaintiff''s case to the effect that he managed the gift deed Ex. DW-2/A from her fraudulently and taking undue advantage of she being in fiduciary relations with him at the relevant time. He has not denied this part of the plaintiff''s case while in the witness box. Learned lower appellate Court while adjudicated upon point No. 1 with the help of the evidence available on record and also the case law has concluded as under:-
"21. From the aforesaid evidence crucial circumstances appearing are that defendant No. 1 when contracted marriage with the plaintiff was already married with four children. His first wife was alive. His so called second marriage with the plaintiff being contrary to the provisions of the Hindu Marriage Act, 1955 consequently was void. What was the necessity for him to go for second void marriage when had four children from the first marriage and the first wife was alive. This makes me to penetrate into the mind of the defendant No. 1. He might have done it with ulterior motive having eyes on the landed property of the plaintiff. Otherwise, there was no question for him to have married the plaintiff. Resultantly, narration of the plaintiff inspires confidence that she was kept in dark about previous marriage by the plaintiff and consequently was persuaded and misled by the defendant No. 1 to contract marriage with her. So appears that with evil eyes on the property of the plaintiff, defendant No. 1 ventured to infringe law of the land.
This secret hidden idea was utilized by the defendant No. 1 when within 7-8 days of the marriage he obtained gift deed from the defendant. Had he intended to keep relations with the plaintiff as husband, would not have so soon persuaded her to gift the property. By keeping the property in the name of the plaintiff, defendant No. 1 could have discharged the duty of husband. Rather such hurry in obtaining gift deed within 7-8 days of the marriage shows that he had his eyes on her property. He wanted to grab it by hook or crook. Therefore, it does not appear to the senses that relation between the plaintiff and defendant No. 1 got strained when defendant No. 1 insisted to visit his children and wife, which was not consented to by the plaintiff. Also there is no authentication of this claim of defendant No. 1. Hence defendant No. 1 has failed to shed the burden resting on his shoulder that the gift deed in question was free from misrepresentation, fraud or undue influence.
With the risk of repetition be it stated again that defendant No. 1 stood in fiduciary relations with the plaintiff, was in a position to dominate her will and he took advantage of the village rustic, helpless, illiterate woman and by way of fraud managed the gift deed in his favour. Otherwise there was no necessity for the plaintiff to have gifted her property to the defendant No. 1 within 7-8 days of the marriage. Resultantly version of PW-1 Smt. Bhim Dassi inspires confidence that on the pretext of getting the marriage registered with the Panchayat, was brought to Kullu for attesting the marriage document when her signatures were obtained at Kullu."
The appellant-defendant has miserably failed to persuade this Court to form an opinion other than that formed by learned lower appellate Court and for that matter by learned trial Court also. Such findings of facts based upon the appreciation of the evidence cannot be said to be legally and factually unsustainable nor call for any interference.
As regards entitlement of the appellant-defendant No. 2 qua refund of Rs. 3,20,000/- from defendant No. 1, learned lower appellate Court after taking into consideration all pros and cons has held as under:-
"..... In circumstances of the case I concur with conclusion of the trial court that defendant No. 2 was not aware about any lis qua the suit property pending between the plaintiff and defendant No. 1 and without notice of such suit, in good faith purchased the suit land. Otherwise, he would have not done so. But this alienation of the suit land took place during the pendency of the suit. Defendant No. 2 could have claimed in alternative the relief for return of sale consideration from the defendant No. 1. But he had not claimed any relief for return of sale consideration of Rs. 2,80,000/- along with necessary expenditure relating to the sale deed from defendant No. 1. Neither any issue qua it was struck. Also no court fee was paid on this count, because no amount at all was claimed by the defendant No. 2 from defendant No. 1. Also in absence of any pleadings no issue qua it was struck. Without any pleadings and any issue, the trial Court ordered probably on the basis of equity defendant No. 1 to return Rs. 3,20,000/- to defendant No. 2 and passed the decree. When no such decree was claimed by defendant No. 2 against defendant No. 1 and there was no pleadings or issue thereon, so relief as granted by way of decree by the learned trial court in favour of the defendant No. 2 against the defendant No. 1 is not sustainable in the eyes of law......"
It is seen that conclusion hereinabove drawn by learned lower appellate Court suffers with no illegality, infirmity or irregularity because for want of any pleadings or any relief sought, defendant No. 1 could have not been directed to refund Rs. 3,20,000/- to defendant No. 2. This Court, however, feels that liberty should have been granted to defendant No. 2 to recover the amount in question from defendant No. 1 by filing fresh suit, of course subject to just exceptions and if legally permissible because prima facie in the opinion of this Court, in the matter the right to file a suit for recovery of the amount in question should have been accrued in favour of appellant-defendant No. 2 after the final outcome of the present lis. Therefore, though I maintain the findings that in the present lis, defendant No. 2 is not entitled to seek refund of Rs. 3,20,000/- from defendant No. 1, however, deem it appropriate to modify the judgment and decree passed by lower appellate Court to the extent of reserving liberty in his favour to file a suit for recovery of the amount in question, of course in accordance with law.
In view of what has been said hereinabove, this appeal and also cross-objections fail and are accordingly dismissed with liberty reserved to appellant-defendant No. 2 to file a suit for recovery of Rs. 3,20,000/- i.e. Rs. 2,80,000/- the sale consideration + Rs. 40,000/- the expenses he allegedly incurred upon in getting the sale deed registered, in accordance with law and before appropriate Court having jurisdiction over the matter. The judgment and decree passed in civil appeal Nos. 84/2001 and 92/2001, stands modified accordingly. Decree sheet be prepared accordingly.
The appeal and also the cross-objections stand disposed of accordingly. No order so as to costs.