KHAIRUL NISA Vs. AISHA BIBI

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of the judgment and decree dated 15-7-1977 passed by the learned District Judge, Sultanpur, whereby he dismissed the defendants' appeal and confirmed the decree of the trial court decreeing the plaintiff's suit with costs.

(2.) IT will appear that the plaintiff-respondent No. 1 Smt. Aisha Bibi filed the suit giving rise to this appeal for cancellation of a sale-deed dated 31-1-1974 executed by her in favour of Smt. Khairul Nisa, the present appellant in respect of some agricultural land. The consideration shown in the sale deed was Rs. 3000.00. IT was alleged that the plaintiff-respondent was Bhumidhar of the plots in dispute which comprised Chak No. 61 (2). She claimed to be an old, illiterate and ignorant type of lady. The defendent Smt. Khairul Nisa and her husband Jalil Khan were said to be residents of the same village and Jalil Khan had a plot bearing No. 346/4 area J Biswa 7 Dhoor close to the Chak of the plaintiff but the same had been allotted in the chak of the plaintiff during consolidation proceedings. The defendants according to the plaintiff started sympathising with the plaintiff who had earlier had litigation with Rafiq Khan and Siddiq Khan and in that process the defendants tried to come close to her and ultimately she was deceived by them into executing the sale-deed saying that they were executing a 'Dast Bardari' in respect of the aforesaid plot No. 346/4 area 1 Biswa 7 Dhoor which had been allotted to the plaintiff during consolidation proceedings. The defendants took her to Hasanpur on the pretext of taking her to the Mela of Moharram on the 7th of the month of Muhairam and from there she was taken to Sultanpur on the pretext of executing a 'Dast Bardari'. Later she claimed to have come to know that the defendants had frudulently obtained from her a sale-deed in respect of her Khata No. 61 (2) on the pretext of 'Dast Bardari'. The plaintiff's sons-in-law Mansoor Khan and Maqbool Khan were living with her and looking after her cultivation and were pulling Rickshawa as well. When she told them about what she had learnt relating to 'Dast Bardari' and the sale deed they inspected the records and it was confirmed that the defendants had obtained a sale-deed from her. She denied having received any consideration for the sale-deed and said that it was not read over to her and she did not know the contents of the document. In the sale-deed Rs. 2000.00 had been shown as having been paid to the plaintiff before the execution of the sale-deed and Rs. 1000.00 paid before the sub-Registrar. All this was denied and it was contended in para 16 of the plaint that Jalil Khan defendant had handed over some currency notes to her in the Registration Office which he had taken back outside the office.

(3.) THE learned Ilnd Addl. Munsif, Sultanpur who tried the case found that the plaintiff was an old lady and there was no occassion for her to execute the sale-deed and she had actually been defrauded into executing the same. On the point of the sale-deed being void under section 168-A of the U. P. Act I of 1951 the learned Munsif held that the transfer related to a fragment which was prohibited under the aforesaid provision and consequently on that ground also the sale-deed was void. THE plaintiff's suit was accordingly decreed for cancellation of the sale-deed. Feeling aggrieved Smt. Khairul Nisa, the purchaser, preferred a first appeal which came up for hearing before the learned District Judge, Sultanpur. On a consideration of the evidence on record and the arguments addressed the learned Judge came to the conclusion that the findings recorded by the learned Munsif on the point of fraud on the plaintiff being an illiterate lady were contrary to evidence and circumstances and, therefore, the finding was reversed. It was held that the sale-deed in question was not invalid on that account and was rather executed for valid consideration and after full understanding. However, on the point relating to the prohibition contained in Section 168-A of U. P. Act No. 1 of 1951 the learned Judge found that the transfer was certainly of a fragment and was prohibited and was consequently void. On this ground, therefore, the cancellation of the sale-deed was upheld and the appeal dismissed.