Kishanlal vs Chhidda

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal, by the defendants, is directed against the judgment and decree dated 18.01.2006 passed by Additional District Judge, Gohad, District Bhind (M.P.) in Civil Appeal No. 37/2004 confirming the judgment and decree dated 27.08.2004 passed by Civil Judge Class II, Gohad in Civil Suit No. 95A/2001 whereby the suit filed by the plaintiff seeking declaration of a partition deed dated 12.07.2001 as null and void has been decreed.

Plaintiff instituted a suit seeking declaration and injunction with respect to agricultural land bearing Survey No. 32 area 0.19, Survey No. 61 area 0.22, Survey No. 245 area 0.07, Survey No. 364 area 0.27, Survey No. 429 area 0.43, Survey No. 491 area 0.33, Survey No. 1206 area 0.40, Survey No. 462/1537 area 0.05, total Survey No. 8 area 1.96 hectares situated in village Echaya, Pargana Gohad, District Bhind (M.P.). It is said that the aforesaid agricultural land is a self acquired property of the plaintiff and the alleged partition is based upon misrepresentation and fraud which may be declared as null and void. Injunction was also prayed that the defendants be restrained from interfering into the possession of the plaintiff.

Defendants by filing written statement denied the plaint averments on very many grounds. It is said that the partition deed was executed by the plaintiff on 12.07.2001 by free will and free consent thereby it was transferred in favour of defendants as well as Ramveer, Rambabu and Bhagwan Singh, sons of Baturi. It is said that no fraud has been played at the time of execution of the partition deed, therefore, the suit filed by the plaintiff ought to be dismissed.

Learned courts below decreed the suit in part holding that in the absence of any document available on record, it cannot be held that the property in question is a self acquired property of the plaintiff. But relying upon the testimony of the plaintiff as well as his witnesses Naresh (PW-2), Bhurelal (PW-3) and Omprakash (PW-4) it came to hold that the partition deed got executed by the defendants under misrepresentation playing fraud with him which has to be declared as null and void. Such finding has been confirmed by the appellate court in toto. Being aggrieved thereby, this appeal has been preferred by the defendants/appellants.

Shri Chitnis, learned counsel appearing on behalf of the defendants/appellants, submits that partition deed Ex. P-3 dated 12.07.2001 is a registered document, however, to have a doubt much less to prove its execution by misrepresentation and fraud burden lies on the plaintiff to disprove it calling the attesting witness as plaintiff witness before the court. Merely relying upon the testimony of the plaintiff and three other witnesses who supported the plaintiff''s case shifting burden on defendants, to prove execution of partition deed Ex. P-3 is not proper. The courts below did not find the suit property as self acquired property of the plaintiff. In support of his contention, reliance has been placed on a judgment rendered by Hon''ble Apex Court in the matter of Ranganayakamma and Another Vs. K.S. Prakash (D) by L.Rs. and Others, and urged that in a case of voidable contract which vitiates by fraud or misrepresentation heavy burden lies on the plaintiff. However judgment and decree passed by the two courts below deserve to be set aside and this appeal may be admitted formulating the substantial questions of law.

After hearing Shri Chitnis, learned counsel, and on perusal of the record it is not in dispute that the plaintiff is the father and the defendants are the sons. In the present case, plaintiff sought declaration that the suit property is his self acquired property and the partition deed Ex. P-3 dated 12.07.2001 executed by him is under misrepresentation and fraud played by the defendants. The courts below in the absence of any revenue entry and material document held that the relief to declare the suit property as self acquired property cannot be directed but the partition deed has been declared as null and void because it is executed under misrepresentation. As per the pleadings and the evidence brought on record it is stated that the defendants insisted the plaintiff to go in the court for advancement of loan which is being given by the government and in lieu thereof signature on the partition deed has been taken. The testimony of the plaintiff is supported by three other witnesses i.e. Naresh (PW-2), Bhurelal (PW-3) and Omprakash (PW-4). As per Section 68 of the Evidence Act, it is apparent that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Proviso thereto makes it clear that except a Will the other document if registered, and unless its execution is denied by a person who executed the same its proof is not necessary. In the facts and circumstances of the present case, it is apparent that the plaintiff, who is the executor of the partition deed, has denied its execution and challenges on the basis of misrepresentation and fraud. To substantiate his contention, specific evidence has been brought by him and other three witnesses who were alongwith him at the said point of time, supported his testimony. In such circumstances, burden shifts to prove the said documents as genuine on the defendants and the heavy duty lies on the defendants to prove its execution by calling the witness as per the spirit of Section 68 of the Evidence Act. In the absence thereof, the findings of fact concurrently recorded by the two courts below decreeing the suit in part to declare the document Ex. P-3 as null and void, do not warrant any interference. However, in my considered opinion, no substantial question of law arises for determination in this appeal.

Consequently, this appeal being sans substratum is hereby dismissed at motion hearing stage.