MATHU Vs. CHERCHI

JUDGEMENT

(1.) Mother sued to cancel Ext.A2 sale deed for Rs. 10,000/- in favour of the son relating to 68 cents and a building on the sole ground that she executed the document to benefit the son believing his word that it is only a chitty hypothecation bond for Rs. 10,000/-. The only evidence is her testimony as PW 1 that she was made to execute the document saying that he wants money for his trade purposes. The suit was decreed and the decision was confirmed in appeal. Second appeal is by the defendant son.

(2.) Rejecting the contention that what is involved is a bona fide sale, the courts below decreed the suit on the grounds of relationship as mother and son, inadequacy of consideration, payment of tax by the mother after sale and possession of the original sale deed by her. Even after giving the most liberal interpretation what would come out from the plaint and evidence of PW 1 is only a mistake of fact or a fraudulent misrepresentation. S.16 of the Contract Act or S.111 of the Evidence Act were not relied on by the respondent or the courts below, but the decisions seen to be presumably under those sections.

(3.) Voluntary execution of the document thinking that it is a chitty hypothecation bond for Rs.10,000/- is admitted. It is also admitted that the document was executed to benefit the appellant and she told the Sub Registrar, at the time of registration, that she received Rs. 10,000/-. Such a statement she could have made to the Sub Registrar only when asked by him. If so, it is clear that the Sub Registrar must have properly discharged his official duty eliciting voluntary execution and receipt of consideration. Though respondent claims to be illiterate, it is proved otherwise. She has experience in execution of documents and conduct of cases also. DW.2 and 3 are the scribe and attestor to Ext.A2. Their evidence show that contents of Ext.A2 were known to the respondent before execution and registration. The mere fact that DW2 was declared hostile on some other answer given by him does not make the above version unacceptable. Along with these aspects, there is also the presumption under S.114 Illustration (e) of the Evidence Act arising out of the registration of the document.