Coming to the agreement to sell (Ext. 1) both the courts below have held that the document is not genuine and is a forged one, and this finding being based on appreciation of evidence is a finding of fact. But. as much argument was advanced, I have to look to the evidence in relation to the execution of the document and its genuineness. Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.
Madhya Pradesh High Court
Ramjan Khan And Ors. vs Baba Raghunath Dass And Ors. on 5 December, 1990
Bench: S Dubey
1. The aforesaid two second appeals are being disposed of by this common judgment.
2. The plaintiffs have preferred these two appeals aggrieved of the judgment and decree of the two Courts below, whereby two separate suits of the plaintiffs for reconveyance of agricultural suit-lands after executing sale-deeds in relation to the same have been dismissed.
3. The facts leading to these two apepals are that the plaintiffs executed two registered sale-deeds on 10-10-1956 before Sub-Registrar, Morena, one of which is typed on a stamp paper and the other is handwritten for a consideration of Rs. 2500/- each and transferred the suit-lands in favour of Baba Lakhan Dass (for short, the 'Baba1), resident of Inderkhi Galarkhoh, Tahsil and District Morena, after obtaining previous sanction of Sub-Divisional Officer, Morena, after obtaining previous sanction of Sub-Divisional Officer, Morena, under Section 70 of the M. B. Land Revenue & Tenancy Act, Samvat 2007 (for short, the 'Act') in file Rs. 22/56 x 6/1x7 possession of the lands under the two sale-deeds was delivered to the Baba through Baba Ratan Dass Vairagi. In these two sale-deeds at the place above two sentences from the bottom the following words are written with pen "Yah Bhoomi Dev Sthan Shri Ram Janki Ke Upbhog Main Rahegi. Deegar Ko Antarit Na Kar Sakenge." The addition of these words in the two sale-deeds does not bear the signatures or the thumb inpression of the Baba or Baba Ratan Dass. It is alleged that the Baba subsequently on the same day entered into agreements to sell the suit lands on payment of an amount of Rs. 2500/- each without interest, as the alienee, the Baba, was usufructing the land. It may be mentioned here only that the Baba was an illiterate person and used to put his thumb impression on the document, which was written by R.R. Patankar (PW 1), a resident of Gwalior and an employee of the Municipal Corporation, Gwalior. There was no term of covenant in the two sale-deeds; about the transaction being in the relationship of debtor and creditor and the transfer being a collateral security for loan. The sale deeds and the agreements were not executed contemporaneously, nor they were executed at the same place; the sale deeds were executed before Sub-Registrar, Morena, and the agreements were said to have been executed at a temple near Banmore, which is 75 Km. away from Morena. The plaintiffs averred that when they arranged Rs. 5000/- after pledging their utensils and taking loans approached the Baba in the month of December 1963 for reconveying or re-purchasing the suit lands in accordance with the agreements to sell (Ext. P-1), the Baba was not well and asked the plaintiffs to come after 2-3 months, but because of the ill-health the sale-deeds could not be executed. On 11-8-1964 the Baba died; thereafter the plaintiffs approached the defendant on several occasions but he avoided to execute the sale-deeds on one pretext or the other, and on 21-1-1971 refused to reconvey the suit-lands and to execute the sale-deeds. Notice (Ext. P-1) dt. 15-3-1971 was issued by the plaintiffs through their advocate Shri Nizamuddin Khan. In this notice there was no mention of the agreement (Ext. P-1) but the plaintiffs challenged the right of the Baba to transfer the suit-lands to the Baba challenged (sic) The allegations in the notice were denied by the defendant vide Ext. P-3. Then another notice (Ext. P-2) dt. 4-6-1971 was issued by the plaintiffs through the same Advocate wherein a demand was made to execute the sale-deeds and to deliver possession of the suit-lands on the basis of Ext. P-1.
4. The defendant denied the claim and contested the suit; the sale in favour of the Baba was an out and out sale and the document (Ext. P-I) is a forged document which was never executed by the Baba nor it bears his thumb impression.
5. The trial Court framed issues on which the parties were at contest and after recording of evidence dismissed the suits holding that no agreement to sell (Ext. 1) was executed by the Baba; the document is a forged document and that the sale deed by the plaintiffs in favour of the Baba was an out and out sale. The plaintiffs preferred appeals. The lower appellate Court after re-appreciating the evidence and the contentions raised before it dismissed the appeals observing also that under Section 16(c) of the Specific Relief Act, 1963, there was no averment of readiness and willingness to perform the essential terms of the contract; therefore, also, the plaintiffs were not entitled for any decree. It is this decree passed in the two suits which has been challenged in these two appeals.
6. This Court on 31-3-1981 admitted the appeals for final hearing on the following substantial question of law :--
"Whether the finding that the alleged agreement dated 10-10-1956 is not proved is vitiated due to the misreading and misapprehension of the evidence on record?"
During the pendency of the appeals the appellants moved two applications dt. 19-8-1987 whereby the appellants prayed to urge two additional substantial questions of law to the effect that the sale-deeds dt. 10-10-1956 were void, as no permission to sell the disputed lands was obtained as required under Section 79 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (for short, the 'Act') and that the sale-deeds being void can be treated as agreements to sell and the appellants are entitled to take possession of the suit-lands back on payment of Rs. 2500/-each. The appellants also moved two applications (LA. No. 3 dt. 5-2-1987 and LA. No. 5 dt. 1-5-1987 under 5, 6, 8, 17, CPC, whereby they proposed to amend the pleadings to base their claim of conditional sale and the sale-deeds being transactions of loan, the relationship between the Baba and the plaintiffs was of a creditor and debtor.
7. Shri M.W. Kaushik, learned counsel for the appellants and Shri N.K. Dixit, learned counsel for respondent No. 1, were heard at length. Shri Kaushik made assiduous efforts to convince this Court either to decree the suits or to remit the cases for re-trial, and for that raised various contentions placing a plethora of case-laws in support of his contentions, which I deal with one by one.
8. The first contention of the appellants is that Section 70 of the Act requires the previous sanction of the Baba, but in the instant cases the sanction was granted by Sub-Divisional Officer/Deputy Collector therefore, the sale was void from its inception. Reliance was placed on a Single Bench decision of this Court in case of Laxman v. Ganpat, 1983 RN 238. Learned counsel took this Court to various provisions of Part 1 of the Act and contended that the Sub-Divisional Officer could not have exercised the powers of Collector, and, in the absence of the previous sanction of the Suba or the Collector, the sale was void. This contention, in my opinion, has no merit, as Section 5 of Chapter II deals with the power to create, alter and abolish divisions, districts, sub-divisions, parganas and tappa. Section 5(3) lays down that the Government may create new districts, parganas and may divide any district or pargana into sub-divisions or tappas and may alter the limits or abolish any district, pargana, sub-division or tappa. Section 6 specifies the classes of Revenue Officers, and Naib Subas are one of them, specified at item No. (S) Section 13 deals with appointment of Naib Subas; Government may appoint to each District as many persons, as it thinks fit, to be Naib Subas who shall exercise such powers, and discharge such duties under the Act or any other law for the time being in force as the Government may by notification in the Government Gazette confer on them. Section 14 speaks of Naib Suba to be in charge of Sub-Division, and such Naib Suba shall be called a Sub-Divisional Officer. Under Section 16 the Government may confer on any Naib Suba. Tehsildar or Naib Tehsildar the powers conferred by the Act or any other law for the time being in force on a Revenue Officer of a higher grade. Sub-section (2) of Section 16 speaks that in conferring powers under this section the Government may empower persons by name or classes of officials generally by their official designations.
9. The Government vide Notification No. 1963, dt. 11th May 1951 (issued under Section 16 and published in Government Gazette on 19-5-1961), empowered Naib Subas to exercise powers of a Suba under Sections 35(1), 51, 70, 71, 81, 116 and 118 of the Act and also under various sections of the Canoon Mal, Gwalior. The Government again vide Notification No. 3039, dt. 18th July 1951, (issued under Section 16 and published on 28-7-1951) invested the Sub-Divisional Officers with the powers of the Suba under the aforesaid sections. Vide Madhya Bharat General Clauses (Amendment) Act, Samvat 2008 Section 28-A was added after Section 28 to MB. General Clauses Act, Samvat 2007, which reads as under:--
"28-A. In all Acts and Ordinances in force in Madhya Bharat and in every Appointment, Order, Schedule, rule, regulation, bye-law, notification or form made or issued thereunder all references to Suba shall be construed as references to Collector, and all references to Naib Suba shall be construed as references to Deputy Collector or Assistant Collector, as the case may be."
Thus, the official designations of Subas and Naib Subas in the classes of Revenue Officers were changed to Collectors and Deputy Collectors, and a Naib Suba under Section 14 used to be in charge of a sub-division or more sub-divisions of a District, and he is known by his official designation as a Sub-Divisional Officer. Therefore, the contention of Shri Kaushik that under the Act Naib Suba could not have exercised the powers of Sub-Divisional Officer, who was conferred by the State Government with the powers of Collector to grant sanction for sale under Section 70 of the Act, cannot be accepted. This Court in case of Sasidas v. Sardar Singh, 1989 RN 161 has held that sanction given by Sub-Divisional Officer by virtue of the powers conferred on him to exercise the powers of Collector vide Notification dt. 19-5-1991, issued under Section 70 of the Act, is valid and sale cannot be declared to be void. Reliance of Shri Kaushik Laxman v. Ganpat (supra) in the circumstances has no application.
10. Shri Kaushik next contended that the learned courts below have not intelligently appreciated the evidence about execution of the document (Ext. P-1); the testimony of R.R. Patankar (PW 1) has not been believed holding him to be a chance witness and considering some inconsistency in the testimony of other witnesses, which were not material. Shri Kaushik took this Court through the evidence, the two sale-deeds and Ext. P-1. Learned counsel laid emphasis on the added words in the two sale-deeds that the documents in fact were not a sale of the suit-lands, which were given only for use till the repayment of the loan and execution of a document of repurchase. It was also con- tended that the courts below erred in holding that the execution of the document (Ext. P-1) is not proved and the document is not a genuine one; therefore, interference was sought in these appeals. Learned counsel placed reliance on Shashi Kuumar v. Subodh Kumar, AIR 1964 SC 529;Razik Ram v. J.S. Chouhan, AIR 1975 SC 667; Madanlal v. Mst. Gopi, AIR 1980 SC 1754; Deo Chand v. Shiv Ram, 1970 JLJ 66 (SC); Raja Bai v. Ramrao 1976 JLJ N-76; Bairagilal v. Narrottam, (1977) MPWN 8 and Kanai v. Devi, (1979) MPWN 160.
11. There cannot be any quarrel about the proposition that when a lower appellate Court rejects vital evidence on a wrong appreciation of the legal position, or ignores testimony of material witnesses alleging them to be interested without any proof of justifying interestedness, or misreads evidence and omits to consider important circumstances, or does not scrutinise whole evidence intelligently, interference can be made in second appeal, but each case has to be judged on its own facts and the material on record.
12. The appellants came with a case of complete sale by the two registered sale deeds and based their claim on Ext. P-1 for repurchase. In the plaint there was no assertion or foundation of relationship of debtor and creditor, nor the fact is that the two sale-deeds were executed as collateral security for loan, but the suits were based only on Agreement (Exi. P-i) dt. 10-10-56 Before this Court Shri Kaushik placing reliance on the words added in the two sale-deeds, which are extracted in para 3 above, tried to convince that the title was not transferred, but the two documents were documents of conditional sale by way of mortgages under Section 58(c) of the Transfer of Property Act, 1882, (for short, the 'TP Act). For that it was submitted that the intention of the parties has to be seen by reading the document as a whole and the surrounding circumstances, coupled with the fact that Ext. P-1 was not executed on the same day, which was duly proved. This argument on facts of the case, in my opinion, has no merit.
13. The q uestion whether a given transaction is a mortgage by conditional sale of a sale outright with a condition of repurchase is a vexed one, which came up for consideration before the apex Court in case of Chunchun Jha v. Ebadat AH, AIR 1954 SC 345 : (1954 All LJ 546), wherein the apex Court observed that the question has to be decided on its own facts; the intention of the parties is a determining factor. In Para 6 it was observed that where a document has to be construed, the intention must be gathered, in the first palce, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used, if, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. In Para 8 it was also observed that if the sale and agreement to repurchase are embodied in separate documents than the transaction cannot be a mortgage under Section 58(c) of the TP Act whether the documents are contemporaneously executed or not. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. The legislature has made a clear-cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore, it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of Section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage.
14. A look to the two sale deeds clearly shows that the parties intended to transfer the ownership in exchange of the price paid, and as the price paid was more than Rs. 100/- the documents were registered. There are no words in the two sale deeds which suggest or purport to suggest that the transferers ostensibly sold the property on condition that in default of payment of the consideration (loan) on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or that on such payment being made the buyer shall retransfer the property to the seller. In absence of any of these conditions, the documents (the two sale deeds) cannot, by any stretch of inagination, be treated as documents of mortgage by conditional sale. On the other hand, the two sale-deeds and Ext. P-1 show that the sale was an out and out sale, there was no relationship of debtor and creditor between the plaintiffs and the Baba nor the two sale deeds were executed as a collateral security for the debt. Ext. P-1 was also not executed contemporaneously but subsequently. In any case, if the sale is considered together with the agreement to reconvey there is no relationship of debtor and creditor nor the price is charged upon the property conveyed, but the sale is subject to an obligation to retransfer the property within the period specified. That is what has been held by the apex court in case of Bhaskar v. Shrinarayan, AIR 1960 SC 301, of which reliance was placed by Shri Dixit. Here addition of the words in the two sale deeds will not make them as deeds of usufructuary mortgage or deeds of mortgage by conditional sale, as the tenor of the language employed in the sale deeds clearly shows that it was a clear transfer by sale. The Words added in the two sale deeds, whereby the vendor agreed that in case the property transferred goes out of the hands of the vendee due to any defect in the title, the vendee shall be entitled to recover the whole amount of consideration with interest at the rate of 1% per annum, further strengthens that it was an out and out sale. Hence, in substance, the intention of the parties was to transfer the property by sale.
15. Coming to the agreement to sell (Ext. 1) both the courts below have held that the document is not genuine and is a forged one, and this finding being based on appreciation of evidence is a finding of fact. But. as much argument was advanced, I have to look to the evidence in relation to the execution of the document and its genuineness. Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.
16. A look to the document (Ext. P-1) shows that it is on a ruled Paper and not blank. On the first page the terms are incorporated; on this page there is no signature or thumb mark of the Baba. On the second Page, after para 4 R.R. Patankar (PW 1), the scribe of the document, has signed the same, and after leaving seven lines it bears the so-called thumb impression of the Baba. Thereafter, Bosa s/o Moji has put his thumb impression (he has not been examined); Mansingh (PW 5) and Bhikhamsingh (PW3) have also put their signatures as witnesses to the execution of the document. The execution of the document was specifically denied, and an issue was raised to that effect. The plaintiffs did not examine any handwriting expert to prove the thumb impression of the Baba on the back of the document. In the document there is no period fixed for executing the sale-deed. It merely says that the vendee, the Baba, will not be able to sell the land to any other person, except the vendors or their heirs after they return the amount of Rs. 2500/- on which no interest would be payable. R.R. Patankar (PW 1), the scribe of the document, has not stated that at the time of affixing the thumb mark on the document by the Baba, the document or its terms were properly explained to him so as to make him understand the true import of the document. The witness has not said a single word about it, except that the document was written at the instance and as per directions of the Baba. The witness has given contradictory and inconsistent statement about the place of execution of the document and also about the timings. In Para 9 the witness has admitted that he took one hour to write the document and that the document was written by him at his own accord; the Baba gave him only a slip containing details of the survey numbers of the lands. The witness has also not said that the document was read over to the Baba. Bhikamsingh (PW3)'s statement is in variance to the statement of R.R. Patankar (PW I) in relation to the place and timings of execution of the document, i.e., PW I stated that the document was executed in the temple, while PW 3 stated it was done near a well. In para 5 the witness has said that when he reached the spot the document was being written. The witness has admitted that before he put his signature, the thumb marks were already there and the Baba did not put his thumb marks before him; the thumb marks were put by the Baba on a thatched roof {CHHAPAR). The witness also admitted that he has not seen PW 1 scribing the document, as when he reached the writing of the document was already complete and thumb impressions were also affixed.
17. The last witness of the document (PW 1) is Mansingh (PW 5). He states that the document was written on two papers. The witness, a resident of Jawahar Nagar, Gwalior, was working with one of the plaintiffs, Umar Khan, in the Municipal Corporation, Gwalior. He reached from Gwalior by train at 4.00 p.m. and remained there up to 5.30 p.m.; 8 or 10 disciples of the Baba were already sitting and other disciples were coming and going; the Baba was on the CHHAPAR which was about 5 or 6 yards away from the well and was naked. In para 7 the witness stated that the Baba signed on the papers which were already written; after he put his signatures with a pen of the scribe he remained there for about 5 to 7 minutes, and then came back to Gwalior.
18. Thus, it would be evident from the above evidence that the execution of the document cannot be said to be proved, more particularly when the Baba was an illiterate person. Beesides, if the document was in existence from the date of the sale, there was no reason way the plaintiffs could not take steps during the life time of the Baba for repurchase of the land as per the agreement. Further, in the notice issued by the descendants of the plaintiffs (Ext. P-2) there is no mention about this document and the condition of repurchase. The plaintiffs in the plaint averred that they approached the Baba in Dec., 1963 and then the defendant on 26-1-1971; refused to reconvey the property, they instituted the suit on 30-8-1971. In the backdrop of these facts and the fact that the execution of the document (Ext. P-1) was not duly proved in accordance with Section 67 of the Evidence Act, the two Courts below, in my opinion, have neither committed any illegality nor misread the evidence, nor any perversity is detected. Therefore, even if a different conclusion on the evidence on, record is possible, no interference in second! appeal can be made, as rightly contended by Shri Dixit, learned counsel for the defendant/ respondent by placing reliance on the decisions of the apex Court in cases of D. Pattabhiramaswamy v. S. Hanymayya, AIR 19'59 SC 57;Mst. Kharbuja Kuer v. Jang Bahadur Rai, AIR 1963 SC 1203; Dudh Nath Pandey (dead by L. Rs) v. Suresh Chandra, AIR 1986 SC 1509 and Sachindra Nath v. Santosh Kumar, AIR 1987 SC 409.
19. Shri Dixit's contention placing reliance on the apex Court's decision in Giri-janandini v. Bijendra Narain, AIR 1967 SC 1124 that when appellate Court agrees with the view of the trial Court on evidence it need not restate the effect of the evidence or to reiterate the reasons given by the trial Court, is well merited. Yet, the lower appellate Court has appreciated the evidence Independently and given its own reasons while confirming the conclusions arrived by the trial Court.
20. The last contention of Shri Kaushik is that the lower appellate Court erred in dismissing the two suits of the plaintiffs on the ground that there was no plea under Section 16(c) of the Specific Relief Act, 1963, of readiness and willingness of the plaintiffs to repurchase. Learned counsel placing reliance on a recent decision of the apex Court in case of Gajanan Jaikishan v. Prabhakar Mohanlal,(1990) 1 SCC 166, submitted that the application under O. 6, Rule 17, CPC filed in this Court be allowed and the matter be then remitted to the lower appellate Court for deciding the appeals afresh. Learned counsel placing reliance on two short-noted decisions of this Court in cases of Dasru v. Kaluram, 1981 MPLJ N-2 and Hafiz Habibur Rehman v. Jahi Ali Mohammad, (19810 2 MPWN 129, submitted that readiness and willingness of the plaintiffs to perform their part of the contract can be gathered from various material facts pleaded in the plaint; therefore, a decree ought to have been passed. The law is settled that when an application for amendment is made in appeal, that has to be decided only after hearing the appeal on merits and not before, and if after hearing the appeal on merits the appellate Court is of the view that there is a foundation in the case or the suit can be decreed after allowing the amendment of the pleadings and reception of additional evidence on the issue raised on the amended pleadings, then the opportunity can be afforded. See Khemchand Mulchand v. Government of Madhya Pradesh, Bhopal, 1972 MPLJ
524. As alluded, the execution of the document (Ext. P-1) has not been found proved not only by the two Courts below but by this Court also. Even if it is assumed for argument's sake that Ext. P-1 was duly executed, the conduct of the plaintiffs clearly demonstrates that they slept over their rights for a period of about 15 years. In such circumstances, the application for amendment taking up the plea under Section 16(c) of the Specific Relief Act 1963 and the fact that the two sale deeds were not the loan transactions and were executed for a collateral security for obtaining loan, cannot be allowed at this late stage to reopen the case for de novo, trial after more than 19 years from the date of institution of the suit, as a valuable right has accrued to the defendant.
21. In the result, the appeals have no merit and are dismissed with no order as to costs.
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