HAMEED GHOSH BEEVI Vs. ABDUL HAYOOM

JUDGEMENT

(1.) THE second appeals arise out of two suits filed by the same parties before the District Munsif, Sirkali. O. S. No. 371 of 1984 was filed on 20. 11. 1984 for a declaration that the sale deed dated 30. 7. 1984 was void and for a consequential injunction restraining the respondents herein from registering the same. O. S. No. 24 of 1985 was also filed for a declaration that the sale deed dated 30. 7. 1984 was void and for a consequential injunction restraining the respondent from registering the same. THE first plaintiff in o. S. No. 371 of 1984 is the second plaintiff in O. S. No. 24 of 85. THE first defendant in O. S. No. 371 of 1984 is the sole defendant in O. S. No. 371 of 1985. THE Sub-Registrar is a party only in O. S. No. 371 of 1984. For the sake of convenience the parties will be referred to by their ranks in O. S. No. 371 of 1984. THE first plaintiff is the mother of the second plaintiff. THEy are respectively the widow and daughter of one Sultan Maraccair. According to them they became entitled to the properties in both the suits. THEy were mortgaged under Ex. B. 4 to the first defendant's wife for Rs. 15, 000 on 30. 4. 1975. THEreafter, under Ex. B. 5 the same properties were usufructuraly mortgaged to the first defendant himself for Rs. 5000. He was put in possession and enjoyment pursuant to Ex. B5. THE first defendant required the plaintiffs to repay the mortgage debt and the plaintiffs required six months time. As both the mortgages were prior to the Debt Reliefs Acts, the first defendant was apprehensive that the debts would attract the provisions of the Debt Reliefs act. So he wanted fresh mortgages to the amount due under the mortgages to be executed and he represented that if the plaintiffs agreed to execute fresh deeds, he would not go to court. THE plaintiffs agreed to the above course and the first defendant got two deeds executed by the plaintiffs. Immediately after execution the first defendant went on Haj Pilgrimage and therefore sale registration was not done immediately, but was postponed. THE plaintiffs got summons from the second defendant Sub Registrar on 10. 11. 1984 to appear on 22. 11. 1984 for registering the document of sale alleged to have been executed by them for Rs. 25, 000. No sale deed was executed by the plaintiffs. It had been fraudulently prepared. THE plaintiffs trusted the first defendant and without reading the document, signed the same. THEy were illiterates. THE first defendant cannot even sign and the second plaintiff knows only to sign. It was under these circumstances O. S. No. 371 of came to be filed before the learned district Munsif, Sirkali. After the filing of the said suit on 5. 1. 1985 another notice was received from the District Registrar, Mayiladuthurai, asking the plaintiff to appear before him for an enquiry relating to a document in respect of a house property in Sirkali Town. As the plaintiffs accepted the signature and the thumb impressions, the District Registrar directed registration. This document was non-est. not valid and unenforceable. It was in these circumstances the second suit O. S. No. 24 of came to be file.

(2.) THE suits were resisted by the first defendant on the following averments: Sultan Maraccair was entitled to a 1"3 rd share in the suit property and the plaintiff became entitled to that 1"3 rd share. THEy got the properties under a heeba and they were in possession pursuant to the heeba and the plaintiffs indeed accompanied when the two mortgage deeds came to be executed. As they were still not out of the woods and were in strained circumstances, they offered to sell their 1/3rd share to the first defendant and after adjusting the amounts due under the mortgage, a sum of Rs. 1000 was due and the same was paid to the plaintiffs and they voluntarily executed the sale deed and the sale deed was duly attested by witnesses in a proper manner. At or about that time the first defendant had to undertake a pilgrimage to Haj and the plaintiffs told the first defendant that registration could be had after his return. Only on that assurance the first defendant went on the pilgrimage. However, after he returned from the pilgrimage the plaintiffs were dodging and therefore the document was presented for compulsory registration. THE details about the sale were known to Abdul Hameed S/o Haneefa and Sambandam. Only after knowing the contents of the documents, the plaintiffs signed the same. THE plaintiffs were not entitled to any relief.

(3.) ON the basis of the above submission of the learned counsel, the following substantial question of law arises for decision in both the second appeals: Whether there was proper casting of burden of proof by the courts below"