ZAHIRUDDIN Vs. NAIRUNNISA BIBI

JUDGEMENT

(1.) Second appeal has been preferred against the judgment and decree dated 12.12.1988 passed by the Ist Additional District Judge, Ghazipur in Civil Appeal No. 395 of 1982 allowing the appeal arising out of judgment and decree passed by 5th Additional Munsif Ghazipur dated 29.07.1982 in Original Suit No. 138 of 1979 (Smt. Sadulan Bibi (deceased) v. Zahiruddin).

(2.) Brief background of the case is that Mst. Sadulan Bibi filed Original Suit No. 138 of 1979 (Smt. Sadulan Bibi (deceased) v. Zaheeruddin) contending therein that she is pardanashin widow lady and has one daughter Zulekha. Said Zulekha has step son Jahandaad Khan and said Jahandaad Khan used to help plaintiff also in carrying out her activities. Plaintiff was interested in getting Will executed in favour of her daughter Zulekha and for this purpose she had gone to Tehsil Zamaniya and at Tehsil zamaniya in stead of getting Will in question executed, to the contrary sale deed in question was got executed in favour of Zahiruddin Khan whereas fact of the matter is that at no point of time she has ever intended to execute any sale deed in favour of Zahiruddin Khan and further at no point of time any amount in question had ever been paid to her by way of sale consideration. Said suit was contested by Zahiruddin Khan by taking specific plea that amount in question had been paid to Mst. Sadulan Bibi and after accepting amount in question at her place in presence of witness she has gone to the office of Sub-Registrar and after being fully explained the contents and nature of transaction, she has voluntarily appended her signature on the instrument in question and as such there is no fraud and misrepresentation on the part of the defendant-appellant and to the contrary plaintiff fully and well knowingly that she was executing sale deed with open mind after accepting sale consideration has executed sale deed in question. After pleadings inter se parties were exchanged issues were framed which were seven in number. Oral as well as documentary evidence has been led from both sides and thereafter trial court scrutinized evidence led by both parties and concluded that plaintiff has utterly failed to prove her case that disputed sale deed was not executed and she has not received any consideration. Against the said judgment and decree appeal being Civil Appeal No. 395 of 1982 had been filed by Mst. Sadulan Bibi and during the pendency of said appeal Mst. Sudulan Bibi died and then application was moved from the side of appellant for substitution on the basis of Will executed by Sadulan Bibi during her life time. Said substitution application was allowed with condition that genuineness of the Will has to be substantiated by adducement of evidence at appellate stage and thereafter evidences were led on Will from both sides and additional issue was also framed at the appellate stage regarding genuineness of Will and Will in question has been found to be genuine thereafter appeal in question has been allowed holding therein that Smt. Sadulan Bibi was Pardanashin lady and at no point of time she was ever made to understand exact nature of the transaction in question and further passing of monetary consideration has not been established. At this juncture present Second Appeal has been filed.

(3.) Sri Syed Mehmood, learned Counsel for the defendant-appellant contended with vehemence that in the present case substantial question of law, which arises, for consideration is that lower appellate court has erred in law in not considering evidence of namely DW-1, DW-2 and DW-3 in its correct prospective and on totally erroneous approach to the matter has recorded perverse findings and the findings recorded are contrary to the evidence available on record and alternatively, it has also been mentioned that accepting for the purposes of the case that amount in question has not been passed on, even then same will not vitiate the sale as has been provided for under Section 54 of Transfer of Properties Act, as such judgment and decree passed by court below is liable to be set aside.