AJA DEI Vs. GAYADHAR DAS

JUDGEMENT

(1.) This appeal is against the reversing judgment of the learned Additional District Judge, Bhadrak dismissing the plaintiffs' suit for declaring the three sale deeds dated 15.9.1979 as void and inoperative.

(2.) The plaintiffs are the daughters of one Banchhanidhi and the defendant is the son-in- law of plaintiff No. 1 having married the latter's daughter. Banchhanidhi died in the year 1981, his wife having predeceased him in the year 1978. Banchhanidhi suffered from illness from 1979 till Chaitra 1981 when he died during illness. Out of these three sale deeds, one was in favour of defendant for consideration of Rs. 25,000/- and the other two in the name of his wife Satyabhama for Rs. 2,000/- and Rs. 1,000/- respectively. It is claimed by the plaintiffs that these sale deeds were executed during the illness of Banchhanidhi when he was mentally unfit and physically disabled and had no power of understanding. It was further pleaded that the sale-deeds were not backed by any consideration and that Banchhanidhi had no legal necessity to sell his entire property. The defendants took the defence that there was no fraud or coercion practical on Banchhanidhi. The sale deeds were executed validly for consideration.

(3.) The lower Court framed as many as five issues of which issue No. 3 related to the validity or otherwise of execution of the three sale deeds on the ground of fraud, etc. The lower Court gave a finding that illness of Banchhanidhi was duly proved by the plaintiffs' witnesses, Satyabhama was taking care of Banchhanidhi. The defendant took Banchhanidhi to Basudevpur hospital for treatment and taking advantage of the illness and incapacity of Banchhanidhi the defendant managed to get the three sale-deeds executed from him. With regard to the passing of consideration money the Court held that the sale deeds were executed on 15.1.1979, but in those sale deeds the day on which consideration money was paid to Banchhanidhi has not been mentioned. The Court disbelieved the evidence of P.Ws. 1 and 2 regarding passing of consideration money on the ground that P.W. 1 was admittedly the maternal uncle of the defendant and P.W. 2 was his cousin brother as well as a relation of P.W.1. The non-availability of consideration money with the defendant was also held to be another reason for disbelieving the passing of consideration. What in fact weighed the mind of the lower Court was, as is disclosed from para 11 of the judgment, that the sale deed embraced the whole of the landed properties of Banchhanidhi including his homestead and this was not a 'natural circumstance' and it was hard to be believed that a man would sell all the properties including the residential house and give delivery of possession. The fact that Banchhanidhi gave delivery of possession of the house to the defendant was disbelieved since admittedly Banchhanidhi lived in that house till his death. Therefore, a conclusion was drawn that Banchhanidhi did not deliver possession. The Court further held that purposefully the defendant did not produce the original sale deeds whereas the plaintiff produced the certified copy of the sale deeds. The non-examination of any of the two scribes was also a circumstances which was held to be against the defendant. In this context it was held by the lower Court that had any one of the scribe been examined by the defendant, their evidence would have been really helpful, to indicate that Banchhanidhi was in a fit state of health and mind and executed the documents having fully understood their implications. Thus holding, the lower Court decreed the suit.