Suit for cancellation of sale deed - trial dismissed the suit - their lordships held that the plaintiff failed to prove fraud and failed to produce the primary evidence that is cell phone through which the conversation was recorded not produced - consideration was proved , possession was delivered , etc., clearly established that plaintiff sold the property for consideration and delivered the possession - No fiduciary relationships established - No illiteracy pleaded and proved - their lordships confirmed the judgement of trial court and dismissed the appeal =
1) Whether the document dated 22.11.2006 in respect of plaint 'A' schedule
property is obtained by the defendant by playing fraud on the plaintiff?
2) Whether the document dated 22.11.2006 executed by the plaintiff in favour of
the defendant is liable to be cancelled?
3) To what relief?
Cell Phone record Evidence - CD produced - Cell Phone not produced - Not admissible
In the cross-examination, P.W.2 admitted that he recorded the
conversation as they have no other evidence. This aspect clearly indicates that
the plaintiff's family knows how to secure the evidence in order to substantiate
their stand in the court of law.
As per the testimony of P.W.2, he recorded the
statement of defendant in his mobile phone bearing No.9811630304.
The conversation between the plaintiff and defendant, if any, recorded in the mobile
phone as stated by P.W.2 is primary evidence.
It is a settled principle of law
that primary evidence is the best piece of evidence.
Admittedly the mobile
phone bearing No.9811630304 was not produced before the trial court.
Ex.A.20 is
the C.D. copy prepared from the alleged conversation recorded in the mobile
phone.
The C.D. copy is only secondary evidence.
The secondary evidence cannot
be admissible without satisfying the court with regard missing or non-
availability of primary evidence.
Whether the plaintiff has elicited any
relevant material in support of their version or not is a crucial question.
It is not out of place to extract relevant portion of cross-examination of P.W.2.
"It is a fact that in the entire conversation recorded by me, there is no
reference to the document in question Ex.A.20".
whether a party to a
document is entitled to adduce oral evidence contrary to its recitals.
The
underlying object of Section 92 of the Indian Evidence Act is that the admission
of oral evidence would defeat the very object of reducing the agreement to a
written form. Section 92 of the Act postulates that the parties to the
instrument are precluded from adducing oral evidence to contradict, vary, add to
or subtract from the terms of a valid written instrument. However, the party to
a document is entitled to adduce oral evidence under which circumstances he was
compelled to execute the same. Thus, the plaintiff is precluded to adduce oral
evidence contrary to the recitals of the sale deed in question in view of
Section 92 of the Indian Evidence Act.
As seen from the evidence of D.W.1, the plaintiff executed the sale deed in
respect of plaint 'A' schedule property but in fact handed over plaint 'B'
schedule property. As seen from the testimony of D.W.1, he has been in
possession and enjoyment of plaint 'B' schedule property. As per the testimony
of P.W.1, the relatives of the defendant are in possession of plaint schedule
property and not the defendant. Even as per the version of the plaintiff, she
is not in possession of the plaint schedule property since 2007. If really the
plaintiff had not executed the sale deed in question at her volition what
prompted her to allow the relatives of the defendant or the defendant to come
into possession of plaint 'B' schedule property. This aspect also lends support
to the version of the defendant. The plaintiff having taken the plea that the
defendant had obtained sale deed in question by playing fraud, failed to
establish the same. On the other hand, the material available on record
clinchingly establishes that the defendant obtained the sale deed in question,
which is supported by valid consideration.
Having regard to the facts and circumstances of the case on hand and in view of
the ratio laid down in cases 2 to 5 cited above, we have no hesitation to hold
that the plaintiff is not entitled to the relief sought by her.
2014 (March. Part) http://judis.nic.in/judis_andhra/filename=11081
THE HON'BLE Ms. JUSTICE G. ROHINI and THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
APPEAL SUIT No.220 OF 2010
27-03-2014
Kurella Venkata Satyavathi...APPELLANT/PLAINTIFF
Kanyamayini Devender Yadav...RESPONDENT/DEFENDANT
Counsel for Appellant: Sri K.S. Murthy
Counsel for Respondent: Smt. K. Udaya Sri
<GIST:
>HEAD NOTE:
?Cases referred:
1 (2004) 9 SCC 468
2 AIR 1937 PC 146
3 AIR 1941 PC 93
4 AIR 1951 SC 280
5 2010 (3) ALD 815
THE HON'BLE Ms.JUSTICE G.ROHINI
AND
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
APPEAL SUIT No.220 OF 2010
JUDGMENT: (Per T. Sunil Chowdary, J.)
This appeal, under section 96 C.P.C, is filed assailing the decree and
judgment dated 29.12.2009 passed in O.S.No.169 of 2007 on the file of the I
Additional District Judge, Guntur, whereby the suit filed by the
appellant/plaintiff for cancellation of the sale deed dated 22.11.2006 in
respect of the plaint 'A' schedule property was dismissed.
For the sake of convenience, parties to this appeal will hereinafter be
referred as they are arrayed before the trial Court.
The case of the plaintiff, in nutshell, is that she got the land
admeasuring 649-8/9 and house bearing Assessment No.162 (new Assessment No.616),
Door No.4-1-23, situated in Ward No.5 (old Ward No.1), T.S.No.509 of Guntur town
(hereafter, plaint 'A' schedule property) from her parents. Originally the said
property along with plaint 'B' property and other properties were purchased by
her father, by name Kurella Adinarayana Sastry, from Pannala Venugopala Krishna
Murthy under registered sale deed dated 19.01.1959. Part of the property was
sold by her father to Mogili China Kotaiah and to Beesa Venkata Subbamma under
registered sale deeds. After death of plaintiff's father, her mother filed
O.S.No.829 of 1986 against Beesa Venkata Subbamma and her son-in-law Veera
Brahmam. The suit was partly decreed against which plaintiff's mother preferred
A.S.No.238 of 1989 wherein the appellate court directed Venkata Subbamma and her
adopted daughter to pay Rs.10,000/- in respect of the site occupied by them.
Aggrieved by the said direction, Venkata Subbamma and her adopted daughter
preferred S.A.No.576 of 1994 and the same is pending.
In September, 2006 plaintiff's mother suffered with intestinal cancer and
plaintiff took her to Kamineni Hospital, Hyderabad. In the hospital, one G.N.R.
Lakshmi who introduced herself as member of Santhiniketan, which is a social
welfare organisation, and her husband was also taking treatment in Kamineni
Hospitals due to cancer in the next room of plaintiff's mother. The said
Lakshmi introduced the defendant to the plaintiff stating that defendant is a
social worker and real estate dealer. The defendant pretended as if he is a
well-wisher of the plaintiff and his services can be secured for any purpose,
which the plaintiff requires. The defendant made enquiries about the properties
of the plaintiff and came to know that the plaint schedule property is owned by
her at Guntur and there is no body to look after the same. At that time the
plaintiff owned a vacant site at Kuntluru, which is under dispute. The
defendant with a view to gain confidence of the plaintiff purchased the same for
a price which is far lower than the real market value. Having gained confidence
of the plaintiff, the defendant acted as if he is very much interested in the
welfare of the plaintiff and now and then helping the plaintiff in consulting
the doctors for treatment of plaintiff's mother. The plaintiff's mother passed
away on 26.10.2006.
The defendant represented plaintiff that there is a cancer society, which is a
Non Governmental Organisation, to help the cancer patients. The defendant was
having a big plot and out of which he already conveyed a portion in favour of
the plaintiff. If the plaintiff executes a document in respect of the said plot
in favour of society, the society will pay her Rs.2 to 3 lakhs. The plaintiff
was asked to come to the Registrar's office on 22.11.2006 and she went there and
executed a document in favour of cancer society. A week thereafter the
defendant brought a draft for Rs.10.00 lakhs and after crediting the amount in
plaintiff's bank account, the defendant took Rs.7.00 lakhs representing that the
cancer society gave Rs.3.00 lakhs only to the plaintiff.
The plaintiff believed the words of defendant because her mother was
hospitalised and her sons are not with her. Her elder son fell in love with a
Punjabi girl and married her. Her younger son failed B.Com and living as a
vagabond. The defendant pretended as if cancer society gave Rs.3.00 lakhs to
the plaintiff towards sale consideration of the alleged plot. The defendant
represented that he has spent huge amounts on the younger son of the plaintiff.
At the request of the plaintiff, her elder son came to Hyderabad on 10.9.2007.
There was a confrontation between her younger son and elder son. At that stage,
the defendant revealed that the plaintiff's younger son had incurred several
debts and involved in number of criminal cases and as he spent huge amounts on
younger son, the plaintiff executed the sale deed in respect of the plaint 'A'
schedule property. Since the plaintiff was under depression, the defendant took
advantage of her position and fraudulently obtained the sale deed in his favour
in respect of plaint 'A' schedule property. The plaintiff never intended to
execute such deed in favour of the defendant. After coming to know about the
fraud played by the defendant, the plaintiff had conversation with defendant in
the mobile and the same was recorded. Hence, the suit for cancellation of the
sale deed dated 22.11.2006.
The defendant contested the suit by filing written statement, inter alia
contending that the plaintiff sold plaint 'A' schedule property to the defendant
for an amount of Rs.40,90,000/- and out of which Rs.10.00 lakhs was credited to
the plaintiff's bank account. The remaining amount was given to the plaintiff
at the time of registration before the attestors. The plaintiff is a Post
Graduate and is well versed with the consequences of execution of a document
being daughter of a document writer. The plaintiff is acting as President of
'WORTH' organisation from the year 1994 and 'Vani Balananda Sangham' and drew
more than Rs.35.00 lakhs from the Government on behalf of the above two
organisations. The conversation of the plaintiff with the defendant was
recorded in a mobile phone is not true and if the plaintiff choose to file such
C.D. it is nothing but manipulation by using advanced technology. The plaintiff
filed the suit 91/2 months after execution of the sale deed, but she has not
given any notice to the defendant prior to the filing of the suit. The original
link documents are with the defendant. The defendant is a bona fide purchaser
for valuable consideration. Hence the suit is liable to be dismissed.
Basing on the above pleadings, the trail court framed the following issues
for trial:
1) Whether the document dated 22.11.2006 in respect of plaint 'A' schedule
property is obtained by the defendant by playing fraud on the plaintiff?
2) Whether the document dated 22.11.2006 executed by the plaintiff in favour of
the defendant is liable to be cancelled?
3) To what relief?
Before the trial Court on behalf of the plaintiff P.Ws.1 to 3 were
examined and Exs.A.1. to A.21 were marked. On behalf of the defendant, D.Ws.1
and 2 were examined and Ex.B.1 was marked.
After scrutinising the oral, documentary evidence and other material
available on record, the trial court by disbelieving the version of the
plaintiff, dismissed the suit. Aggrieved by the same, the unsuccessful
plaintiff preferred this appeal.
The points that arise for determination are viz.,
a. Whether the document dated 22.11.2006 in respect of plaint A schedule
property is obtained by the defendant by playing fraud on the plaintiff?
b. Whether document dated 22.11.2006 executed by the plaintiff in favour of the
defendant is liable to be cancelled? and
c. Whether the judgment and decree of the trial Court are sustainable?
The contention of the learned counsel for the appellant/ plaintiff is two
fold. 1) Since the defendant obtained the sale deed dated 22.11.2006 by playing
fraud on the plaintiff, the same is liable to be cancelled; and 2) Ex.A.2 sale
deed is not supported by consideration.
Per contra, the learned counsel for the respondent/defendant submitted
that there are no grounds much less valid grounds to interfere with the well
considered judgment and decree of the trial Court.
To substantiate the case, the plaintiff examined herself as P.W.1 and got
marked Exs.A.1 to A.21. P.W.2 was examined to prove the conversion of Ex.A.20
C.D. P.W.3 was examined to prove that the plaintiff paid an amount of Rs.7.00
lakhs to the defendant. To dislodge the case of the plaintiff, the defendant
examined himself as D.W.1 and got marked Ex.B.1. D.W.2 is one of the attestors
of Ex.A.2.
Point Nos.1 and 2:
Points Nos.1 and 2 are intertwined. Hence we are inclined to address
these two points together in order to avoid repetition of the facts and
evidence.
It is needless to say that a person, who challenges the validity of sale
transaction on the ground of fraud, undue influence and charges his opponent
with bad faith, has the burden of proof on him in view of Section 101 of the
Indian Evidence Act. There is an exception to this rule where a fiduciary of
the contractual relationship subsists between the contracting parties. Section
111 of the Indian Evidence Act is an exception to Section 101 of the Indian
Evidence Act.
The plaint was drafted cleverly so as to fix the burden of proof on the
defendant to establish that the sale transaction dated 22.11.2006 is perfectly
fair and reasonable and no advantage has been taken of defendant's position.
The Hon'ble Supreme Court had an occasion to deal with this type of transaction
in Krishna Mohan Kul Alias Nani Charan Kul v Pratima Maity and Others1. At para
No.12 of the judgment, the Hon'ble Supreme Court has held as under:
".......... A person standing in a fiduciary relation to another has a
duty to protect the interest given to his care and the Court watches with
jealously all transactions between such persons so that the protector may not
use his influence or the confidence to his advantage. When the party complaining
shows such relation the law presumes everything against the transaction and the
onus is cast upon the person holding the position of confidence or trust to show
that the transaction is perfectly fair and reasonable, that no advantage has
been taken of his position. This principle has been engrained in Section 111 of
the Indian Evidence Act, 1872............"
Let us consider the facts of the case on hand in the light of the legal
principle enunciated in the case cited supra.
As per the averments in the plaint and the testimony of P.W.1 and D.W.2
coupled with Exs.A.8, A.9, A.12 and A.13 to A.16, the mother of the plaintiff
was admitted in Kamineni hospital, Hyderabad for taking treatment for cancer.
Ex.A.11 death certificate reveals that the mother of the plaintiff died on
26.10.2006. Even as per the stance of the plaintiff, D.W.2 introduced the
defendant to her in Kamineni hospital. Plaintiff executed the sale deed in
favour of the defendant on 22.11.2006. Hardly the plaintiff had two months
acquaintance with the defendant prior to the execution of Ex.A.2 sale deed. The
version of the plaintiff that she sold her property situated in Kuntlur of
Hyderabad, which is in litigation, to the defendant for lower price, is not
supported by any documentary evidence. The version of the plaintiff that the
defendant conveyed his plot in her favour with an understanding to reconvey the
same in favour of Cancer Society is also not supported by any documentary
evidence. The possibility of distortion of the facts by the parties to the
proceedings in order to strengthen their case eventually to weaken the case of
the opposite party cannot be ruled out completely. It is not uncommon to take
certain pleas by the parties to the suit in order to gain the sympathy of the
Court. The court shall not lost sight of the human conduct while appreciating
the testimony of the witnesses. Suffice to say, suspicion is integral part of
human psychology more particularly in financial and property dealings. An
individual, however high intellectual he may be, may not gain the confidence of
the other person within a short span of time. The fiduciary relationship between
two individuals always depends upon relation by blood, by friendship and some
times by operation of law such as ward and guardian, trustee etc.
In a sale transaction if one of the parties to the document is in a
dominant position to other party, then the court can suspect the bonafides of
the transaction. Taking into consideration the facts and circumstances of the
case, the plaintiff is not a weak person so as to act as per the directions of
the defendant. Even assuming that the plaintiff has some family problems, she
can capable of solving the problems by taking the advice and help of her
husband. Domestic problems are common in a family life. The problems of the
plaintiff as mentioned in the plaint by itself are not sufficient to blindly
believe the words of the defendant, who is a stranger to their family. The
material placed before this Court is not sufficient to arrive at a conclusion
that the defendant is in a dominant position to gain unlawful advantage by
influencing the plaintiff at the time of execution of the sale deed. By any
stretch of imagination, it cannot be presumed that fiduciary relationship was
existed or subsisted between the plaintiff and the defendant as on 22.11.2006.
In the light of the foregoing discussion, we have no hesitation to hold
that the facts of the case on hand will fall outside the purview of Section 111
of the Indian Evidence Act.
The gist of the plaint is that the defendant obtained the sale deed by
playing fraud on her. A perusal of the plaint, at a glimpse, gives an
impression that the plaintiff is a defrauded party. Before adverting to the
findings of the trial Court on the plea of fraud, it is apposite to refer to
certain precedents in order to resolve the lis involved in this case.
i. Bharat Dharma Syndicate Ltd v Harish Chandra2 wherein the ratio laid down
is that the person who alleges the fraud has to give full particulars of
allegations which he intended to prove.
ii. A.L.N. Narayana Chettyar v Official Assignee, High Court Rangoon3 wherein
the principle enunciated is that fraud of any nature, like any other charge of a
criminal offence whether made in civil or criminal proceedings, must be
established beyond reasonable doubt.
iii. Bishundeo Narain v Seogeni Rai and Jagernath4. In this case, the Hon'ble
Supreme Court at para No.28 held that "..........If there is one rule which is
better established than any other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the particulars as laid. There can be no departure
from them in evidence. General allegations are sufficient even to amount to an
averment of fraud of which any court ought to take notice however strong the
language in which they are couched may be, and the same applies to undue
influence and coercion."
iv. Regati Ramraju v Neelamsetti Kataji Rao5. In this case, the ratio
decidendi is that the allegations have to be proved in court with the help of
evidence either by way of oral, documentary or circumstantial evidence.
In view of the principle enunciated in the cases referred supra, the
burden of proof lies on the plaintiff to establish that the Ex.A.2 is outcome of
the fraud played by the defendant. As observed earlier, for the first time, the
plaintiff had seen the defendant in Kamineni hospitals, Hyderabad in the month
of September 2006. As per the averments in the plaint and the oral testimony of
P.W.1, the defendant told her that she will get Rs.3.00 lakhs from a cancer
society if she accepts the property from the defendant and reconvey the same to
the cancer society. If really the defendant transferred his plot to the
plaintiff as alleged by her, what prevented the plaintiff to produce the
document executed by the defendant in her favour as well as the document
executed by her in favour of the alleged Cancer Society? In the absence of
cogent and convincing evidence in this regard, much weight cannot be attached to
the oral testimony of plaintiff. Even if the version of the plaintiff is true
and correct, it appears that the plaintiff wants to take undue advantage by
joining hands with the defendant to get money from the Cancer Society, which
idea of the plaintiff is not appreciable.
It is not in dispute that the father of the plaintiff purchased a vacant
site under registered sale deed dated 19.01.1959 (ExB.1) from one P.V.G.K.
Murthy. The oral testimony of P.W.1 coupled with certified copy of the sale deed
dated 02.04.1978 reveals that the father of the plaintiff sold the vacant site
in favour of Venkata Subbamma. As per the averments of the plaint, the father of
the plaintiff sold certain extent of vacant site in favour of Mogili China
Kotaiah. For one reason or the other, the plaintiff did not choose to file the
sale deed executed in favour of said Mogili China Kotaiah. The oral testimony
of P.W.1 coupled with Ex.A.5 certified copy of plaint in O.S.No.829 of 1986
clearly reveals that the plaintiff and her mother filed suit against Venkata
Subbamma and her son-in-law for declaration, recovery of possession and
mandatory injunction. The suit was partly decreed. Feeling aggrieved by the
disallowed portion of decree and judgment dated 05.09.1986, the plaintiff and
her mother preferred A.S.No.238 of 1989 and the same was allowed. Exs.A.6 and
A.7 are the certified copies of judgment and decree dated 29.06.1994 in
A.S.No.238 of 1989. The dispute between the plaintiff and Venkata Subbamma has
nothing to do with the present suit.
The plaintiff in unequivocal terms admitted that Ex.A.2 certified copy of
sale deed bears her signature on each page. At one stage, P.W.1 deposed that
the defendant has taken 1959 sale deed to get the death certificate of her
mother. In order to overcome the adverse situation, the plaintiff came forward
with a plausible explanation that the defendant has taken the sale deed Ex.B.1
obtained by her father to get the death certificate of her mother and returned
the same. The plaintiff categorically deposed that Ex.B.1 sale deed is with
her. If that is so, how the defendant has produced the same before the trial
Court is not properly explained by the plaintiff. Basing in the material
available on record, the court can safely presume that the plaintiff might have
handed over Ex.B.1 sale deed to the defendant at the time of execution of sale
deed in question.
It is a known fact that a sale transaction cannot be entered into without
verifying the link documents. In Ex.A.2, certified copy of the registered sale
deed dated 22.11.2006 executed by the plaintiff in favour of the defendant,
minute details as to the date of purchase of property by the father of the
plaintiff under registered sale deed dated 19.01.1959 (Ex.B.1), and the dates of
death of the mother and father of the plaintiff are mentioned. It is not
possible to mention all these minute factual aspects in Ex.A.2 without
cooperation and help of the plaintiff. It is not the case of the plaintiff that
the photo affixed in the sale deed is not of her. For the reasons best known,
the plaintiff did not mention in the plaint, the place where the plot of the
defendant is situated. It is not the case of the plaintiff that the property
alleged to have been reconveyed by her to Cancer Society is situated in Guntur
at least to probablise the stand of the plaintiff that she subscribed her
signature on the sale deed in question under misconception. Generally the Sub-
Registrars of the Registration Department accept registration of a document if
the property covered under the document is situated within their jurisdiction.
As per the testimony of D.W.2, she is one of the attestors of sale deed
(Ex.A.2). It is not elicited in the cross-examination of D.W.2 that the
plaintiff and herself have subscribed their signatures on the sale deed in
question under a bona fide impression that the document relates to Cancer
Society. A careful scanning of the testimony of D.W.2 reveals that P.W.1
executed a sale deed in question in her presence with an intention to convey the
property situated in Guntur in favour of the defendant.
Exs.A.17, A.18 and A.19 are marked to substantiate the stand of the
plaintiff that D.W.2 and defendant have cheated one lady by name Smt.Y.Seetha
Lakshmi. Neither D.W.2 nor the defendant herein is the parties to O.S.No.1614
of 2004. In fact Smt.Y.Seetha Lakshmi is the competent person to speak whether
she was cheated by D.W.2 and defendant. More over she is the competent person
to speak about Exs.A.17, A.18 and A.19. Non-examination of Smt.Y.Seetha Lakshmi
also casts a cloud on the stand of the defendant. These documents are no way
helpful to the plaintiff to establish that D.W.2 and defendant are persons of
dubious character as contended by her. As seen from the testimony of D.W.1, he
purchased the property from the plaintiff by paying the sale consideration.
Nothing is elicited in the cross examination of D.W.1 so far as payment of
consideration in respect of the sale transaction is concerned. A perusal of
Ex.A.2 reveals that the defendant paid an amount of Rs.10.00 lakhs by way of
demand draft and Rs.30,90,000/- by way of cash on the date of registration of
the sale deed. In the cross-examination, D.W.1 in unequivocal terms deposed
that he spent money on the younger son of the plaintiff to help her. In the
chief examination itself, P.W.2 deposed that he was informed by his mother that
the defendant told her as if he had spent huge amount for bailing out younger
son of the plaintiff from police cases. This aspect also supports the version
of the defendant that the sale deed in question is supported by consideration.
As per the testimony of P.W.1, the defendant taken her to the bank and in
his presence she deposited the demand draft in her Savings Bank account
(S.B.A/c.). In the cross-examination, she simply stated that she paid
Rs.7,75,000/- to the defendant. As per the chief-examination of P.W.1, she
withdrew Rs.10.00 lakhs from the bank and the defendant paid Rs.3.00 lakhs to
her. A perusal of Ex.A.16 S.B.A/c. passbook of the plaintiff issued by S.B.I.,
Malakpet branch, Hyderabad, clearly reveals that the demand draft for Rs.10.00
lakhs referred in Ex.A.2 was encashed by her. As seen from the cross-
examination of P.W.2, elder son of the plaintiff, he is very much aware of
deposit of Rs.10.00 lakhs in the S.B.A/c. of his mother. As per the testimony
of P.W.3, on 27.11.2006, the plaintiff withdrew an amount of Rs.8.00 lakhs from
her S.B.A/c. and paid an amount of Rs.7,75,000/- to the defendant. There is no
specific pleading in the plaint that P.W.3 was present at the time of withdrawal
of the amount by the plaintiff from her S.B.A/c. on 27.11.2006. In order to
prove the plea of fraud, the plaintiff ought to have laid foundation in the
plaint. Non-mentioning of the name of P.W.3 in the plaint also creates a doubt
in the mind of the court. Whatever deposed by P.Ws.1 and 3 is not tallying with
the entries in Ex.A.16 S.B.A/c. passbook of the plaintiff.
It is an admitted fact that P.W.3 is not a resident of Hyderabad. In such
circumstances, the presence of P.W.3 on 27.11.2006 along with plaintiff in
S.B.I., Malakpet branch premises is somewhat doubtful. In the cross-
examination, P.W.3 categorically deposed that he is accompanying plaintiff to
the court every day and watching the proceedings in the court. This fact is
being admitted by P.W.1 in her cross-examination. As seen from the testimony of
P.W.3, the plaintiff is his elder sister. In view of the close relation between
P.W.3 and plaintiff, the possibility of distortion of facts by him to suit the
version of the plaintiff cannot be ruled out. The testimony of P.W.3 does not
inspire the confidence of the court; therefore much weight cannot be attached to
the oral testimony of P.W.3.
Therefore, we have no hesitation to hold that the plaintiff failed to
establish that the demand draft for Rs.10.00 lakhs was encashed and the
plaintiff paid Rs.7.00 lakhs to the defendant on 27.11.2006.
P.W.2 in the chief-examination stated that the conversation between his mother
and defendant was recorded in his mobile phone on 14th, 15th and 16th September,
2007. In the cross-examination, P.W.2 admitted that he recorded the
conversation as they have no other evidence. This aspect clearly indicates that
the plaintiff's family knows how to secure the evidence in order to substantiate
their stand in the court of law. As per the testimony of P.W.2, he recorded the
statement of defendant in his mobile phone bearing No.9811630304. The
conversation between the plaintiff and defendant, if any, recorded in the mobile
phone as stated by P.W.2 is primary evidence. It is a settled principle of law
that primary evidence is the best piece of evidence. Admittedly the mobile
phone bearing No.9811630304 was not produced before the trial court. Ex.A.20 is
the C.D. copy prepared from the alleged conversation recorded in the mobile
phone. The C.D. copy is only secondary evidence. The secondary evidence cannot
be admissible without satisfying the court with regard missing or non-
availability of primary evidence. Whether the plaintiff has elicited any
relevant material in support of their version or not is a crucial question. It
is not out of place to extract relevant portion of cross-examination of P.W.2.
"It is a fact that in the entire conversation recorded by me, there is no
reference to the document in question Ex.A.20".
The fact remains that there is no material in Ex.A.20 to establish the alleged
fraud played by the defendant in obtaining the sale deed from the plaintiff.
Therefore, Ex.A.20 is no way helpful to the plaintiff.
The court has to take into consideration the socio-economic, education and
cultural background of the parties to the proceedings while appreciating their
evidence. The plaintiff is a Graduate and daughter of a document writer. Even
as per the admitted facts, the plaintiff is running a hostel for girls since
2001. She has been maintaining a voluntary organisation for rural development
and the Government granted an amount of nearly Rs.30.00 lakhs from 2002 to 2004
to her organisations. All these facts go to prove that the plaintiff is a
worldly-wise person. The plaintiff might have come across several people while
running an organisation with the financial aid and funds of the Government. In
such circumstances, the possibility of subscribing her signature on each page of
the sale deed without knowing the nature of the document is highly improbable
and far away from truth. The court has to scrutinise minute details while
appreciating the testimony of rustic villagers, who are prone for cheating
easily in the hands of intellectual persons. Along with the plaint, plaintiff
filed Ex.A.3 laminated copy of sale deed with colour Xerox and obtained interim
order. In the cross-examination, P.W.1 categorically deposed that she has not
gone through the contents of Ex.A.3. She further deposed that the respondent
(sic, defendant) taken the plea that Ex.A.3 is a fake document and then she
filed a memo stating that she was misled and deceived. In the cross-examination,
P.W.3 stated that the defendant has taken a plea that Ex.A.3 is not original
document. All these facts go to prove that plaintiff is not innocent person to
sign on a document without knowing the contents of it.
The next crucial question that falls for consideration is whether a party to a
document is entitled to adduce oral evidence contrary to its recitals. The
underlying object of Section 92 of the Indian Evidence Act is that the admission
of oral evidence would defeat the very object of reducing the agreement to a
written form. Section 92 of the Act postulates that the parties to the
instrument are precluded from adducing oral evidence to contradict, vary, add to
or subtract from the terms of a valid written instrument. However, the party to
a document is entitled to adduce oral evidence under which circumstances he was
compelled to execute the same. Thus, the plaintiff is precluded to adduce oral
evidence contrary to the recitals of the sale deed in question in view of
Section 92 of the Indian Evidence Act.
As seen from the evidence of D.W.1, the plaintiff executed the sale deed in
respect of plaint 'A' schedule property but in fact handed over plaint 'B'
schedule property. As seen from the testimony of D.W.1, he has been in
possession and enjoyment of plaint 'B' schedule property. As per the testimony
of P.W.1, the relatives of the defendant are in possession of plaint schedule
property and not the defendant. Even as per the version of the plaintiff, she
is not in possession of the plaint schedule property since 2007. If really the
plaintiff had not executed the sale deed in question at her volition what
prompted her to allow the relatives of the defendant or the defendant to come
into possession of plaint 'B' schedule property. This aspect also lends support
to the version of the defendant. The plaintiff having taken the plea that the
defendant had obtained sale deed in question by playing fraud, failed to
establish the same. On the other hand, the material available on record
clinchingly establishes that the defendant obtained the sale deed in question,
which is supported by valid consideration.
Having regard to the facts and circumstances of the case on hand and in view of
the ratio laid down in cases 2 to 5 cited above, we have no hesitation to hold
that the plaintiff is not entitled to the relief sought by her. Hence point
Nos.1 and 2 are answered against the plaintiff and in favour of the defendant.
Point No.3:
The trial court considered the oral and documentary evidence in right
perspective keeping in mind the scope of the lis involved in the suit. The
findings recorded by the trial court are based on sound reasoning. There are no
grounds much less valid grounds to set aside the well considered decree and
judgment of the trial court.
Accordingly, the appeal is dismissed, confirming the decree and judgment dated
29.12.2009 in O.S.No.169 of 2007 on the file of I Additional District Court,
Guntur. No costs. Consequently, the miscellaneous petitions if any pending in
this appeal shall stand closed.
______________
G. ROHINI, J
__________________________
T. SUNIL CHOWDARY, J
Date: 27.03.2014
1) Whether the document dated 22.11.2006 in respect of plaint 'A' schedule
property is obtained by the defendant by playing fraud on the plaintiff?
2) Whether the document dated 22.11.2006 executed by the plaintiff in favour of
the defendant is liable to be cancelled?
3) To what relief?
Cell Phone record Evidence - CD produced - Cell Phone not produced - Not admissible
In the cross-examination, P.W.2 admitted that he recorded the
conversation as they have no other evidence. This aspect clearly indicates that
the plaintiff's family knows how to secure the evidence in order to substantiate
their stand in the court of law.
As per the testimony of P.W.2, he recorded the
statement of defendant in his mobile phone bearing No.9811630304.
The conversation between the plaintiff and defendant, if any, recorded in the mobile
phone as stated by P.W.2 is primary evidence.
It is a settled principle of law
that primary evidence is the best piece of evidence.
Admittedly the mobile
phone bearing No.9811630304 was not produced before the trial court.
Ex.A.20 is
the C.D. copy prepared from the alleged conversation recorded in the mobile
phone.
The C.D. copy is only secondary evidence.
The secondary evidence cannot
be admissible without satisfying the court with regard missing or non-
availability of primary evidence.
Whether the plaintiff has elicited any
relevant material in support of their version or not is a crucial question.
It is not out of place to extract relevant portion of cross-examination of P.W.2.
"It is a fact that in the entire conversation recorded by me, there is no
reference to the document in question Ex.A.20".
whether a party to a
document is entitled to adduce oral evidence contrary to its recitals.
The
underlying object of Section 92 of the Indian Evidence Act is that the admission
of oral evidence would defeat the very object of reducing the agreement to a
written form. Section 92 of the Act postulates that the parties to the
instrument are precluded from adducing oral evidence to contradict, vary, add to
or subtract from the terms of a valid written instrument. However, the party to
a document is entitled to adduce oral evidence under which circumstances he was
compelled to execute the same. Thus, the plaintiff is precluded to adduce oral
evidence contrary to the recitals of the sale deed in question in view of
Section 92 of the Indian Evidence Act.
As seen from the evidence of D.W.1, the plaintiff executed the sale deed in
respect of plaint 'A' schedule property but in fact handed over plaint 'B'
schedule property. As seen from the testimony of D.W.1, he has been in
possession and enjoyment of plaint 'B' schedule property. As per the testimony
of P.W.1, the relatives of the defendant are in possession of plaint schedule
property and not the defendant. Even as per the version of the plaintiff, she
is not in possession of the plaint schedule property since 2007. If really the
plaintiff had not executed the sale deed in question at her volition what
prompted her to allow the relatives of the defendant or the defendant to come
into possession of plaint 'B' schedule property. This aspect also lends support
to the version of the defendant. The plaintiff having taken the plea that the
defendant had obtained sale deed in question by playing fraud, failed to
establish the same. On the other hand, the material available on record
clinchingly establishes that the defendant obtained the sale deed in question,
which is supported by valid consideration.
Having regard to the facts and circumstances of the case on hand and in view of
the ratio laid down in cases 2 to 5 cited above, we have no hesitation to hold
that the plaintiff is not entitled to the relief sought by her.
2014 (March. Part) http://judis.nic.in/judis_andhra/filename=11081
THE HON'BLE Ms. JUSTICE G. ROHINI and THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
APPEAL SUIT No.220 OF 2010
27-03-2014
Kurella Venkata Satyavathi...APPELLANT/PLAINTIFF
Kanyamayini Devender Yadav...RESPONDENT/DEFENDANT
Counsel for Appellant: Sri K.S. Murthy
Counsel for Respondent: Smt. K. Udaya Sri
<GIST:
>HEAD NOTE:
?Cases referred:
1 (2004) 9 SCC 468
2 AIR 1937 PC 146
3 AIR 1941 PC 93
4 AIR 1951 SC 280
5 2010 (3) ALD 815
THE HON'BLE Ms.JUSTICE G.ROHINI
AND
THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY
APPEAL SUIT No.220 OF 2010
JUDGMENT: (Per T. Sunil Chowdary, J.)
This appeal, under section 96 C.P.C, is filed assailing the decree and
judgment dated 29.12.2009 passed in O.S.No.169 of 2007 on the file of the I
Additional District Judge, Guntur, whereby the suit filed by the
appellant/plaintiff for cancellation of the sale deed dated 22.11.2006 in
respect of the plaint 'A' schedule property was dismissed.
For the sake of convenience, parties to this appeal will hereinafter be
referred as they are arrayed before the trial Court.
The case of the plaintiff, in nutshell, is that she got the land
admeasuring 649-8/9 and house bearing Assessment No.162 (new Assessment No.616),
Door No.4-1-23, situated in Ward No.5 (old Ward No.1), T.S.No.509 of Guntur town
(hereafter, plaint 'A' schedule property) from her parents. Originally the said
property along with plaint 'B' property and other properties were purchased by
her father, by name Kurella Adinarayana Sastry, from Pannala Venugopala Krishna
Murthy under registered sale deed dated 19.01.1959. Part of the property was
sold by her father to Mogili China Kotaiah and to Beesa Venkata Subbamma under
registered sale deeds. After death of plaintiff's father, her mother filed
O.S.No.829 of 1986 against Beesa Venkata Subbamma and her son-in-law Veera
Brahmam. The suit was partly decreed against which plaintiff's mother preferred
A.S.No.238 of 1989 wherein the appellate court directed Venkata Subbamma and her
adopted daughter to pay Rs.10,000/- in respect of the site occupied by them.
Aggrieved by the said direction, Venkata Subbamma and her adopted daughter
preferred S.A.No.576 of 1994 and the same is pending.
In September, 2006 plaintiff's mother suffered with intestinal cancer and
plaintiff took her to Kamineni Hospital, Hyderabad. In the hospital, one G.N.R.
Lakshmi who introduced herself as member of Santhiniketan, which is a social
welfare organisation, and her husband was also taking treatment in Kamineni
Hospitals due to cancer in the next room of plaintiff's mother. The said
Lakshmi introduced the defendant to the plaintiff stating that defendant is a
social worker and real estate dealer. The defendant pretended as if he is a
well-wisher of the plaintiff and his services can be secured for any purpose,
which the plaintiff requires. The defendant made enquiries about the properties
of the plaintiff and came to know that the plaint schedule property is owned by
her at Guntur and there is no body to look after the same. At that time the
plaintiff owned a vacant site at Kuntluru, which is under dispute. The
defendant with a view to gain confidence of the plaintiff purchased the same for
a price which is far lower than the real market value. Having gained confidence
of the plaintiff, the defendant acted as if he is very much interested in the
welfare of the plaintiff and now and then helping the plaintiff in consulting
the doctors for treatment of plaintiff's mother. The plaintiff's mother passed
away on 26.10.2006.
The defendant represented plaintiff that there is a cancer society, which is a
Non Governmental Organisation, to help the cancer patients. The defendant was
having a big plot and out of which he already conveyed a portion in favour of
the plaintiff. If the plaintiff executes a document in respect of the said plot
in favour of society, the society will pay her Rs.2 to 3 lakhs. The plaintiff
was asked to come to the Registrar's office on 22.11.2006 and she went there and
executed a document in favour of cancer society. A week thereafter the
defendant brought a draft for Rs.10.00 lakhs and after crediting the amount in
plaintiff's bank account, the defendant took Rs.7.00 lakhs representing that the
cancer society gave Rs.3.00 lakhs only to the plaintiff.
The plaintiff believed the words of defendant because her mother was
hospitalised and her sons are not with her. Her elder son fell in love with a
Punjabi girl and married her. Her younger son failed B.Com and living as a
vagabond. The defendant pretended as if cancer society gave Rs.3.00 lakhs to
the plaintiff towards sale consideration of the alleged plot. The defendant
represented that he has spent huge amounts on the younger son of the plaintiff.
At the request of the plaintiff, her elder son came to Hyderabad on 10.9.2007.
There was a confrontation between her younger son and elder son. At that stage,
the defendant revealed that the plaintiff's younger son had incurred several
debts and involved in number of criminal cases and as he spent huge amounts on
younger son, the plaintiff executed the sale deed in respect of the plaint 'A'
schedule property. Since the plaintiff was under depression, the defendant took
advantage of her position and fraudulently obtained the sale deed in his favour
in respect of plaint 'A' schedule property. The plaintiff never intended to
execute such deed in favour of the defendant. After coming to know about the
fraud played by the defendant, the plaintiff had conversation with defendant in
the mobile and the same was recorded. Hence, the suit for cancellation of the
sale deed dated 22.11.2006.
The defendant contested the suit by filing written statement, inter alia
contending that the plaintiff sold plaint 'A' schedule property to the defendant
for an amount of Rs.40,90,000/- and out of which Rs.10.00 lakhs was credited to
the plaintiff's bank account. The remaining amount was given to the plaintiff
at the time of registration before the attestors. The plaintiff is a Post
Graduate and is well versed with the consequences of execution of a document
being daughter of a document writer. The plaintiff is acting as President of
'WORTH' organisation from the year 1994 and 'Vani Balananda Sangham' and drew
more than Rs.35.00 lakhs from the Government on behalf of the above two
organisations. The conversation of the plaintiff with the defendant was
recorded in a mobile phone is not true and if the plaintiff choose to file such
C.D. it is nothing but manipulation by using advanced technology. The plaintiff
filed the suit 91/2 months after execution of the sale deed, but she has not
given any notice to the defendant prior to the filing of the suit. The original
link documents are with the defendant. The defendant is a bona fide purchaser
for valuable consideration. Hence the suit is liable to be dismissed.
Basing on the above pleadings, the trail court framed the following issues
for trial:
1) Whether the document dated 22.11.2006 in respect of plaint 'A' schedule
property is obtained by the defendant by playing fraud on the plaintiff?
2) Whether the document dated 22.11.2006 executed by the plaintiff in favour of
the defendant is liable to be cancelled?
3) To what relief?
Before the trial Court on behalf of the plaintiff P.Ws.1 to 3 were
examined and Exs.A.1. to A.21 were marked. On behalf of the defendant, D.Ws.1
and 2 were examined and Ex.B.1 was marked.
After scrutinising the oral, documentary evidence and other material
available on record, the trial court by disbelieving the version of the
plaintiff, dismissed the suit. Aggrieved by the same, the unsuccessful
plaintiff preferred this appeal.
The points that arise for determination are viz.,
a. Whether the document dated 22.11.2006 in respect of plaint A schedule
property is obtained by the defendant by playing fraud on the plaintiff?
b. Whether document dated 22.11.2006 executed by the plaintiff in favour of the
defendant is liable to be cancelled? and
c. Whether the judgment and decree of the trial Court are sustainable?
The contention of the learned counsel for the appellant/ plaintiff is two
fold. 1) Since the defendant obtained the sale deed dated 22.11.2006 by playing
fraud on the plaintiff, the same is liable to be cancelled; and 2) Ex.A.2 sale
deed is not supported by consideration.
Per contra, the learned counsel for the respondent/defendant submitted
that there are no grounds much less valid grounds to interfere with the well
considered judgment and decree of the trial Court.
To substantiate the case, the plaintiff examined herself as P.W.1 and got
marked Exs.A.1 to A.21. P.W.2 was examined to prove the conversion of Ex.A.20
C.D. P.W.3 was examined to prove that the plaintiff paid an amount of Rs.7.00
lakhs to the defendant. To dislodge the case of the plaintiff, the defendant
examined himself as D.W.1 and got marked Ex.B.1. D.W.2 is one of the attestors
of Ex.A.2.
Point Nos.1 and 2:
Points Nos.1 and 2 are intertwined. Hence we are inclined to address
these two points together in order to avoid repetition of the facts and
evidence.
It is needless to say that a person, who challenges the validity of sale
transaction on the ground of fraud, undue influence and charges his opponent
with bad faith, has the burden of proof on him in view of Section 101 of the
Indian Evidence Act. There is an exception to this rule where a fiduciary of
the contractual relationship subsists between the contracting parties. Section
111 of the Indian Evidence Act is an exception to Section 101 of the Indian
Evidence Act.
The plaint was drafted cleverly so as to fix the burden of proof on the
defendant to establish that the sale transaction dated 22.11.2006 is perfectly
fair and reasonable and no advantage has been taken of defendant's position.
The Hon'ble Supreme Court had an occasion to deal with this type of transaction
in Krishna Mohan Kul Alias Nani Charan Kul v Pratima Maity and Others1. At para
No.12 of the judgment, the Hon'ble Supreme Court has held as under:
".......... A person standing in a fiduciary relation to another has a
duty to protect the interest given to his care and the Court watches with
jealously all transactions between such persons so that the protector may not
use his influence or the confidence to his advantage. When the party complaining
shows such relation the law presumes everything against the transaction and the
onus is cast upon the person holding the position of confidence or trust to show
that the transaction is perfectly fair and reasonable, that no advantage has
been taken of his position. This principle has been engrained in Section 111 of
the Indian Evidence Act, 1872............"
Let us consider the facts of the case on hand in the light of the legal
principle enunciated in the case cited supra.
As per the averments in the plaint and the testimony of P.W.1 and D.W.2
coupled with Exs.A.8, A.9, A.12 and A.13 to A.16, the mother of the plaintiff
was admitted in Kamineni hospital, Hyderabad for taking treatment for cancer.
Ex.A.11 death certificate reveals that the mother of the plaintiff died on
26.10.2006. Even as per the stance of the plaintiff, D.W.2 introduced the
defendant to her in Kamineni hospital. Plaintiff executed the sale deed in
favour of the defendant on 22.11.2006. Hardly the plaintiff had two months
acquaintance with the defendant prior to the execution of Ex.A.2 sale deed. The
version of the plaintiff that she sold her property situated in Kuntlur of
Hyderabad, which is in litigation, to the defendant for lower price, is not
supported by any documentary evidence. The version of the plaintiff that the
defendant conveyed his plot in her favour with an understanding to reconvey the
same in favour of Cancer Society is also not supported by any documentary
evidence. The possibility of distortion of the facts by the parties to the
proceedings in order to strengthen their case eventually to weaken the case of
the opposite party cannot be ruled out completely. It is not uncommon to take
certain pleas by the parties to the suit in order to gain the sympathy of the
Court. The court shall not lost sight of the human conduct while appreciating
the testimony of the witnesses. Suffice to say, suspicion is integral part of
human psychology more particularly in financial and property dealings. An
individual, however high intellectual he may be, may not gain the confidence of
the other person within a short span of time. The fiduciary relationship between
two individuals always depends upon relation by blood, by friendship and some
times by operation of law such as ward and guardian, trustee etc.
In a sale transaction if one of the parties to the document is in a
dominant position to other party, then the court can suspect the bonafides of
the transaction. Taking into consideration the facts and circumstances of the
case, the plaintiff is not a weak person so as to act as per the directions of
the defendant. Even assuming that the plaintiff has some family problems, she
can capable of solving the problems by taking the advice and help of her
husband. Domestic problems are common in a family life. The problems of the
plaintiff as mentioned in the plaint by itself are not sufficient to blindly
believe the words of the defendant, who is a stranger to their family. The
material placed before this Court is not sufficient to arrive at a conclusion
that the defendant is in a dominant position to gain unlawful advantage by
influencing the plaintiff at the time of execution of the sale deed. By any
stretch of imagination, it cannot be presumed that fiduciary relationship was
existed or subsisted between the plaintiff and the defendant as on 22.11.2006.
In the light of the foregoing discussion, we have no hesitation to hold
that the facts of the case on hand will fall outside the purview of Section 111
of the Indian Evidence Act.
The gist of the plaint is that the defendant obtained the sale deed by
playing fraud on her. A perusal of the plaint, at a glimpse, gives an
impression that the plaintiff is a defrauded party. Before adverting to the
findings of the trial Court on the plea of fraud, it is apposite to refer to
certain precedents in order to resolve the lis involved in this case.
i. Bharat Dharma Syndicate Ltd v Harish Chandra2 wherein the ratio laid down
is that the person who alleges the fraud has to give full particulars of
allegations which he intended to prove.
ii. A.L.N. Narayana Chettyar v Official Assignee, High Court Rangoon3 wherein
the principle enunciated is that fraud of any nature, like any other charge of a
criminal offence whether made in civil or criminal proceedings, must be
established beyond reasonable doubt.
iii. Bishundeo Narain v Seogeni Rai and Jagernath4. In this case, the Hon'ble
Supreme Court at para No.28 held that "..........If there is one rule which is
better established than any other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the particulars as laid. There can be no departure
from them in evidence. General allegations are sufficient even to amount to an
averment of fraud of which any court ought to take notice however strong the
language in which they are couched may be, and the same applies to undue
influence and coercion."
iv. Regati Ramraju v Neelamsetti Kataji Rao5. In this case, the ratio
decidendi is that the allegations have to be proved in court with the help of
evidence either by way of oral, documentary or circumstantial evidence.
In view of the principle enunciated in the cases referred supra, the
burden of proof lies on the plaintiff to establish that the Ex.A.2 is outcome of
the fraud played by the defendant. As observed earlier, for the first time, the
plaintiff had seen the defendant in Kamineni hospitals, Hyderabad in the month
of September 2006. As per the averments in the plaint and the oral testimony of
P.W.1, the defendant told her that she will get Rs.3.00 lakhs from a cancer
society if she accepts the property from the defendant and reconvey the same to
the cancer society. If really the defendant transferred his plot to the
plaintiff as alleged by her, what prevented the plaintiff to produce the
document executed by the defendant in her favour as well as the document
executed by her in favour of the alleged Cancer Society? In the absence of
cogent and convincing evidence in this regard, much weight cannot be attached to
the oral testimony of plaintiff. Even if the version of the plaintiff is true
and correct, it appears that the plaintiff wants to take undue advantage by
joining hands with the defendant to get money from the Cancer Society, which
idea of the plaintiff is not appreciable.
It is not in dispute that the father of the plaintiff purchased a vacant
site under registered sale deed dated 19.01.1959 (ExB.1) from one P.V.G.K.
Murthy. The oral testimony of P.W.1 coupled with certified copy of the sale deed
dated 02.04.1978 reveals that the father of the plaintiff sold the vacant site
in favour of Venkata Subbamma. As per the averments of the plaint, the father of
the plaintiff sold certain extent of vacant site in favour of Mogili China
Kotaiah. For one reason or the other, the plaintiff did not choose to file the
sale deed executed in favour of said Mogili China Kotaiah. The oral testimony
of P.W.1 coupled with Ex.A.5 certified copy of plaint in O.S.No.829 of 1986
clearly reveals that the plaintiff and her mother filed suit against Venkata
Subbamma and her son-in-law for declaration, recovery of possession and
mandatory injunction. The suit was partly decreed. Feeling aggrieved by the
disallowed portion of decree and judgment dated 05.09.1986, the plaintiff and
her mother preferred A.S.No.238 of 1989 and the same was allowed. Exs.A.6 and
A.7 are the certified copies of judgment and decree dated 29.06.1994 in
A.S.No.238 of 1989. The dispute between the plaintiff and Venkata Subbamma has
nothing to do with the present suit.
The plaintiff in unequivocal terms admitted that Ex.A.2 certified copy of
sale deed bears her signature on each page. At one stage, P.W.1 deposed that
the defendant has taken 1959 sale deed to get the death certificate of her
mother. In order to overcome the adverse situation, the plaintiff came forward
with a plausible explanation that the defendant has taken the sale deed Ex.B.1
obtained by her father to get the death certificate of her mother and returned
the same. The plaintiff categorically deposed that Ex.B.1 sale deed is with
her. If that is so, how the defendant has produced the same before the trial
Court is not properly explained by the plaintiff. Basing in the material
available on record, the court can safely presume that the plaintiff might have
handed over Ex.B.1 sale deed to the defendant at the time of execution of sale
deed in question.
It is a known fact that a sale transaction cannot be entered into without
verifying the link documents. In Ex.A.2, certified copy of the registered sale
deed dated 22.11.2006 executed by the plaintiff in favour of the defendant,
minute details as to the date of purchase of property by the father of the
plaintiff under registered sale deed dated 19.01.1959 (Ex.B.1), and the dates of
death of the mother and father of the plaintiff are mentioned. It is not
possible to mention all these minute factual aspects in Ex.A.2 without
cooperation and help of the plaintiff. It is not the case of the plaintiff that
the photo affixed in the sale deed is not of her. For the reasons best known,
the plaintiff did not mention in the plaint, the place where the plot of the
defendant is situated. It is not the case of the plaintiff that the property
alleged to have been reconveyed by her to Cancer Society is situated in Guntur
at least to probablise the stand of the plaintiff that she subscribed her
signature on the sale deed in question under misconception. Generally the Sub-
Registrars of the Registration Department accept registration of a document if
the property covered under the document is situated within their jurisdiction.
As per the testimony of D.W.2, she is one of the attestors of sale deed
(Ex.A.2). It is not elicited in the cross-examination of D.W.2 that the
plaintiff and herself have subscribed their signatures on the sale deed in
question under a bona fide impression that the document relates to Cancer
Society. A careful scanning of the testimony of D.W.2 reveals that P.W.1
executed a sale deed in question in her presence with an intention to convey the
property situated in Guntur in favour of the defendant.
Exs.A.17, A.18 and A.19 are marked to substantiate the stand of the
plaintiff that D.W.2 and defendant have cheated one lady by name Smt.Y.Seetha
Lakshmi. Neither D.W.2 nor the defendant herein is the parties to O.S.No.1614
of 2004. In fact Smt.Y.Seetha Lakshmi is the competent person to speak whether
she was cheated by D.W.2 and defendant. More over she is the competent person
to speak about Exs.A.17, A.18 and A.19. Non-examination of Smt.Y.Seetha Lakshmi
also casts a cloud on the stand of the defendant. These documents are no way
helpful to the plaintiff to establish that D.W.2 and defendant are persons of
dubious character as contended by her. As seen from the testimony of D.W.1, he
purchased the property from the plaintiff by paying the sale consideration.
Nothing is elicited in the cross examination of D.W.1 so far as payment of
consideration in respect of the sale transaction is concerned. A perusal of
Ex.A.2 reveals that the defendant paid an amount of Rs.10.00 lakhs by way of
demand draft and Rs.30,90,000/- by way of cash on the date of registration of
the sale deed. In the cross-examination, D.W.1 in unequivocal terms deposed
that he spent money on the younger son of the plaintiff to help her. In the
chief examination itself, P.W.2 deposed that he was informed by his mother that
the defendant told her as if he had spent huge amount for bailing out younger
son of the plaintiff from police cases. This aspect also supports the version
of the defendant that the sale deed in question is supported by consideration.
As per the testimony of P.W.1, the defendant taken her to the bank and in
his presence she deposited the demand draft in her Savings Bank account
(S.B.A/c.). In the cross-examination, she simply stated that she paid
Rs.7,75,000/- to the defendant. As per the chief-examination of P.W.1, she
withdrew Rs.10.00 lakhs from the bank and the defendant paid Rs.3.00 lakhs to
her. A perusal of Ex.A.16 S.B.A/c. passbook of the plaintiff issued by S.B.I.,
Malakpet branch, Hyderabad, clearly reveals that the demand draft for Rs.10.00
lakhs referred in Ex.A.2 was encashed by her. As seen from the cross-
examination of P.W.2, elder son of the plaintiff, he is very much aware of
deposit of Rs.10.00 lakhs in the S.B.A/c. of his mother. As per the testimony
of P.W.3, on 27.11.2006, the plaintiff withdrew an amount of Rs.8.00 lakhs from
her S.B.A/c. and paid an amount of Rs.7,75,000/- to the defendant. There is no
specific pleading in the plaint that P.W.3 was present at the time of withdrawal
of the amount by the plaintiff from her S.B.A/c. on 27.11.2006. In order to
prove the plea of fraud, the plaintiff ought to have laid foundation in the
plaint. Non-mentioning of the name of P.W.3 in the plaint also creates a doubt
in the mind of the court. Whatever deposed by P.Ws.1 and 3 is not tallying with
the entries in Ex.A.16 S.B.A/c. passbook of the plaintiff.
It is an admitted fact that P.W.3 is not a resident of Hyderabad. In such
circumstances, the presence of P.W.3 on 27.11.2006 along with plaintiff in
S.B.I., Malakpet branch premises is somewhat doubtful. In the cross-
examination, P.W.3 categorically deposed that he is accompanying plaintiff to
the court every day and watching the proceedings in the court. This fact is
being admitted by P.W.1 in her cross-examination. As seen from the testimony of
P.W.3, the plaintiff is his elder sister. In view of the close relation between
P.W.3 and plaintiff, the possibility of distortion of facts by him to suit the
version of the plaintiff cannot be ruled out. The testimony of P.W.3 does not
inspire the confidence of the court; therefore much weight cannot be attached to
the oral testimony of P.W.3.
Therefore, we have no hesitation to hold that the plaintiff failed to
establish that the demand draft for Rs.10.00 lakhs was encashed and the
plaintiff paid Rs.7.00 lakhs to the defendant on 27.11.2006.
P.W.2 in the chief-examination stated that the conversation between his mother
and defendant was recorded in his mobile phone on 14th, 15th and 16th September,
2007. In the cross-examination, P.W.2 admitted that he recorded the
conversation as they have no other evidence. This aspect clearly indicates that
the plaintiff's family knows how to secure the evidence in order to substantiate
their stand in the court of law. As per the testimony of P.W.2, he recorded the
statement of defendant in his mobile phone bearing No.9811630304. The
conversation between the plaintiff and defendant, if any, recorded in the mobile
phone as stated by P.W.2 is primary evidence. It is a settled principle of law
that primary evidence is the best piece of evidence. Admittedly the mobile
phone bearing No.9811630304 was not produced before the trial court. Ex.A.20 is
the C.D. copy prepared from the alleged conversation recorded in the mobile
phone. The C.D. copy is only secondary evidence. The secondary evidence cannot
be admissible without satisfying the court with regard missing or non-
availability of primary evidence. Whether the plaintiff has elicited any
relevant material in support of their version or not is a crucial question. It
is not out of place to extract relevant portion of cross-examination of P.W.2.
"It is a fact that in the entire conversation recorded by me, there is no
reference to the document in question Ex.A.20".
The fact remains that there is no material in Ex.A.20 to establish the alleged
fraud played by the defendant in obtaining the sale deed from the plaintiff.
Therefore, Ex.A.20 is no way helpful to the plaintiff.
The court has to take into consideration the socio-economic, education and
cultural background of the parties to the proceedings while appreciating their
evidence. The plaintiff is a Graduate and daughter of a document writer. Even
as per the admitted facts, the plaintiff is running a hostel for girls since
2001. She has been maintaining a voluntary organisation for rural development
and the Government granted an amount of nearly Rs.30.00 lakhs from 2002 to 2004
to her organisations. All these facts go to prove that the plaintiff is a
worldly-wise person. The plaintiff might have come across several people while
running an organisation with the financial aid and funds of the Government. In
such circumstances, the possibility of subscribing her signature on each page of
the sale deed without knowing the nature of the document is highly improbable
and far away from truth. The court has to scrutinise minute details while
appreciating the testimony of rustic villagers, who are prone for cheating
easily in the hands of intellectual persons. Along with the plaint, plaintiff
filed Ex.A.3 laminated copy of sale deed with colour Xerox and obtained interim
order. In the cross-examination, P.W.1 categorically deposed that she has not
gone through the contents of Ex.A.3. She further deposed that the respondent
(sic, defendant) taken the plea that Ex.A.3 is a fake document and then she
filed a memo stating that she was misled and deceived. In the cross-examination,
P.W.3 stated that the defendant has taken a plea that Ex.A.3 is not original
document. All these facts go to prove that plaintiff is not innocent person to
sign on a document without knowing the contents of it.
The next crucial question that falls for consideration is whether a party to a
document is entitled to adduce oral evidence contrary to its recitals. The
underlying object of Section 92 of the Indian Evidence Act is that the admission
of oral evidence would defeat the very object of reducing the agreement to a
written form. Section 92 of the Act postulates that the parties to the
instrument are precluded from adducing oral evidence to contradict, vary, add to
or subtract from the terms of a valid written instrument. However, the party to
a document is entitled to adduce oral evidence under which circumstances he was
compelled to execute the same. Thus, the plaintiff is precluded to adduce oral
evidence contrary to the recitals of the sale deed in question in view of
Section 92 of the Indian Evidence Act.
As seen from the evidence of D.W.1, the plaintiff executed the sale deed in
respect of plaint 'A' schedule property but in fact handed over plaint 'B'
schedule property. As seen from the testimony of D.W.1, he has been in
possession and enjoyment of plaint 'B' schedule property. As per the testimony
of P.W.1, the relatives of the defendant are in possession of plaint schedule
property and not the defendant. Even as per the version of the plaintiff, she
is not in possession of the plaint schedule property since 2007. If really the
plaintiff had not executed the sale deed in question at her volition what
prompted her to allow the relatives of the defendant or the defendant to come
into possession of plaint 'B' schedule property. This aspect also lends support
to the version of the defendant. The plaintiff having taken the plea that the
defendant had obtained sale deed in question by playing fraud, failed to
establish the same. On the other hand, the material available on record
clinchingly establishes that the defendant obtained the sale deed in question,
which is supported by valid consideration.
Having regard to the facts and circumstances of the case on hand and in view of
the ratio laid down in cases 2 to 5 cited above, we have no hesitation to hold
that the plaintiff is not entitled to the relief sought by her. Hence point
Nos.1 and 2 are answered against the plaintiff and in favour of the defendant.
Point No.3:
The trial court considered the oral and documentary evidence in right
perspective keeping in mind the scope of the lis involved in the suit. The
findings recorded by the trial court are based on sound reasoning. There are no
grounds much less valid grounds to set aside the well considered decree and
judgment of the trial court.
Accordingly, the appeal is dismissed, confirming the decree and judgment dated
29.12.2009 in O.S.No.169 of 2007 on the file of I Additional District Court,
Guntur. No costs. Consequently, the miscellaneous petitions if any pending in
this appeal shall stand closed.
______________
G. ROHINI, J
__________________________
T. SUNIL CHOWDARY, J
Date: 27.03.2014
