Keuli Devi (Smt.) vs Kisun Devi (Smt.)

Satyabrata Sinha J.

The Plaintiff/Appellant has filed the instant appeal against the judgment and decree dated February 15, 1998 passed by N.K. Saha, Judge, 10th Bench, City Civil Court, Calcutta, whereby and where under the said learned Court dismissed the suit filed by the Appellant. The basic fact of the matter is not disputed. The Plaintiff and the Defendant No. 1 are said to be the vendors and used to sell fruits and vegetable in the pavement of the High Court. The property in question belonged to one Janaki Devi who was the elder, sister of the Plaintiff/Appellant. The said Janaki Devi executed a Will in favour of the Plaintiff on May 17, 1977. The Plaintiff filed an application before this Court for grant of probate in respect of the said Will which was marked as Matter No. 127 of 1980. This Court granted a probate in the said matter.

The Plaintiff's case is that the Defendant No. 1 had been known to her since 1966 and she was dealing in vegetables and fruits. According to the Plaintiff, due to intimacy, the Defendant No. 1 induced her to obtain a licence for selling fruits and vegetables on the pavement and for the aforementioned purpose she introduced the Defendant No. 2 to her. Allegedly the Plaintiff gave her thumb impression on different set of papers. On March 1, 1981 on the request of the Defendant she handed over the documents of her landed property to the Defendant whereafter, she put her L.T.I, in the documents presented before the registration officer on March 5, 1981, on a bona fide belief that she had been executing the said documents for the purpose of obtaining a licence. The Defendant No. 1 thereafter dispossessed her on June 5, 1983 on the ground that she had become absolute owner of the suit property. The Plaintiff thereafter obtained the certified copy of the said document and came to learn that on March 4, 1981 a deed of conveyance in respect of the suit property was executed in favour of the Defendant No. 1, which was registered on March 5, 1981. She made out a case that the said sale deed was obtained on misrepresentation by the Defendant upon practicing fraud upon her by them. In her written statement, the Defendant No. 1 stated that she was a thika tenant in respect of the suit property and the structure thereupon was constructed by her husband Nanoo Phatik. She denied the allegation that the sale deed in question was obtained by practicing fraud or on misrepresentation. The Defendant No. 1''s positive case is that the Plaintiff was her sister-in-law and she intended to sell her property on her own and for that purpose the Plaintiff herself took her to the office of Sri Milan Das, learned Advocate, and in his Chamber talks of executing of the deed of conveyance took place. The Defendant paid a sum of Rs. 8,000.00 by way of consideration money and the said deed was voluntarily and knowingly executed by the Plaintiff. In view of the aforementioned contentions of the parties, the learned trial Judge framed the following issues:

Whether the suit is maintainable in its present form?

Whether the deed of conveyance dated 4.3.1981 was got executed by the Defendant No. 1 on deliberate misrepresentation of fact and by practicing fraud upon the Plaintiff?

Whether an amount of Rs. 8,000.00 or any part thereof was at all received by the Plaintiff from the Defendant No. 1 towards the alleged consideration for the alleged sale and transfer of the property in dispute?

To what relief or relief’s is the Plaintiff entitled to?

Addl. Issues 5. Is the Plaintiff entitled to get a decree as prayed for?

The learned trial Judge took up all the issues together and upon consideration of materials on records came to the conclusion that the Plaintiff has failed to prove the case of fraud or misrepresentation made by the Defendant No. 1.

The learned Counsel appearing on behalf of the Appellant in support of this appeal, inter alia, submitted that the learned trial Judge has failed to consider the materials on record in their proper perspective. It was further submitted that in view of the provision of the Calcutta Thika Tenancy (Regulation & Acquisition) Act, 1981, transfer became prohibited and thus the purported deed of sale is void ab-initio. The learned Counsel also submitted that in any event, the Defendant No. 1 had not been able to prove that she had paid consideration money of Rs. 8,000.00 to the Plaintiff.

The learned Counsel appearing on behalf of the Respondent has supported the judgment. In view of the submissions made at the Bar, only two questions arise for consideration in this appeal, namely (1) whether the deed of conveyance dated March 4, 1981 was invalid having been executed in violation of the said Act, and (2) whether the Plaintiff has been able to prove her case that the Defendant No. 1 practiced fraud upon her and obtained the said deed of conveyance upon a misrepresentation and on good faith on the Defendant No. 1 she put her L.T.I, on certain paper for the purpose of obtaining the trade licence from the Calcutta Municipal Corporation.

Re.: Question No. 1: The question as regard the invalidity or illegality of the transaction has not been pleaded in the plaint. In terms of Order 6 Rule 4 read with Order 8 Rule 2 of the CPC it was obligatory on the part of the Plaintiff to specifically plead the case of illegality or invalidity of the said transaction. It is not a case where the transaction is said to be ex facie illegal in terms of Section 23 of the Indian Contract Act. Furthermore, the said Act came into force in January, 1982 whereas the sale deed in question had been executed on March 5, 1981. It is true that the said Act was preceded by some Ordinances promulgated by the Governor in exercise of his power under Article 213 of the Constitution of India but it is accepted at the Bar that the said Ordinance did not contain any provision debarring the owner or a thika tenant from transferring his property in favour of a third party. In this view of the matter, the aforementioned contention raised by Mr. Sanyal, learned Counsel for the Appellant cannot be accepted.

Re.: Question No. 2: It is true that the Plaintiff is illiterate. However, it is admitted that she is aware of the worthily state of affairs. It is also admitted that she and the Defendant No. 1 both had been carrying on1 similar business. It is further admitted that the Plaintiff moved this Court for the purpose of grant of probate in respect of the Will which was executed by Sm. Janaki Devi in respect of which she was the legatee.

It is, however, admitted that the Defendant was a tenant in respect of the suit property. It is also admitted that in the aforementioned probate case she had engaged one Milan Das, learned Advocate of this Court who had drafted the deed in question.

It is also admitted that the Plaintiff and the Defendant No. 1 are known to each other since 1966. No plea has been raised on behalf of the Plaintiff as regard the ill motive of the Defendant No. 1 to grab the suit property. Admittedly the Defendant No. 1 was in possession of the property in question.

Keeping in view the fact that the Plaintiff has set up a case that she executed the aforementioned document on the belief that the same was required for the purpose of obtaining a trade licence for the purpose of selling of fruits and vegetables on the foot path ; the onus was on her to prove the said fact. The Plaintiff has not pleaded as regard acts of commission or omission on the part of the Defendant No. 2, if any. Even the Plaintiff who examined herself as .P.W. 1 did not make any whisper in her examination-in-chief about misrepresentation or undue influence in respect of the said transaction.

The learned trial Judge has also relied upon the circumstances that it is unlikely that the Plaintiff did not know as regard the requirement of having a trade licence although she had been in the vending business for the last 20 years. It is unlikely that one illiterate unlicensed fruit seller would induce another unlicensed vendor to have a trade licence. It is not the case of the Plaintiff that the Defendant No. 1 had obtained a trade licence earlier. No document was called for from the office of the Calcutta Municipal Corporation to show that any application for grant of a trade licence was filed or whether the Defendant No. 1 had obtained such a licence. It is, therefore, difficult to believe that any induction or influence was made on the Plaintiff by the Defendant No. 1 for the alleged trade licence. Furthermore, the Plaintiff was well acquainted with the learned Advocate of this Court. She had also been selling fruits in the High Court area for the last 20 years. The will was probated on September 26, 1980 and she had been keeping contact with the aforementioned lawyer not only at a point of time when her husband was alive but also thereafter.

It is not a case where the transaction herein entered into by an illiterate pardanashin lady, the onus of proof is shifted upon the Defendant to prove that the transaction is bona fide. In the instant case, both the parties are illiterate ladies. It is not the case of the Plaintiff that the Defendant No. 1 had the advantage of obtaining any independent advice or there was some other persons who had purchased the property in the name of the Defendant No. 1. D.W. 1 in her evidence categorically stated that the Plaintiff herself engaged Mr. Milan Das, learned Advocate, who drafted the deed. The Plaintiff also accepted the said fact in cross-examination although an attempt was made by her at the first instance to feign loss of memory as regard the learned Advocate. No practice of fraud has been alleged as against the learned lawyer.

From the impugned document it also appears that the deed of conveyance in question was read over and explained by the aforementioned Mr. Milan Das, Seamed Advocate who was also a witness to the payment of consideration money of Rs. 8,000.00 to the Plaintiff. It is beyond any doubt that the Plaintiff registered the document in the Registration Office. The duty of the Registrar has been enumerated in Section 34 of the Indian Registration Act. In absence of any evidence to the contrary, presumption would arise in terms of Section 114 of the Evidence Act that an official act has been done in ordinary course of business. Furthermore, the learned trial Judge has rightly pointed out that the Plaintiff did not go to the Defendant No. 1 to collect rent in respect of the suit premises for a long period, although on her own showing she used to do the same earlier. There is nothing to show as to how she dealt with the suit property from March 5, 1981 till September 24, 1983 when the aforementioned suit was filed. Had the contention of the Plaintiff been correct, her natural conduct would have been to deal with the matter in the same way. As according to her no transaction had taken place, there was no absolute reason as to why she would not make attempt to realize rent in respect of the suit premises from the Defendant No. 1.

In view of the aforementioned facts and circumstances of this case, we are of the opinion that there is no merit in this appeal and the findings arrived at by the learned trial Judge is correct and we affirm the same.

This appeal is dismissed. There will be no order as to costs.

Bhaskar Bhattacharya, J.

I agree.