THATHA RAO DADA RAO Vs. JUMMARIAL DHANJI

JUDGEMENT

(1.) THIS appeal has been filed on behalf of Thatha Rao Defendant 2. The facts of the case briefly are that Jummarlal Plaintiff -Respondent 1 filed a suit for cancellation of the sale deed dated 23rd Dai 1347 F and for possession of the suit land stating that the, Plaintiff who was originally of Salegaum was, living in the village of Korhal. The plaint allegation is that the villagers of Salegaum having become inimical towards him, he left that place and came to live in Korhal. He possessed the suit land in Salegaum. The Plaintiff, had eternal trouble from his enemies and he was not able, to manage and enjoy his property peacefully. The Defendants made believe that if the Plaintiff sold the land to them the enmity will vanish and disappear in due course of time. They made him believe that during the duration of enmity they would pay half the produce of the land to the Plaintiff and after the cessation of the hostilities the land would be returned to him.

(2.) THE obvious facts that are against the case set up by the Plaintiff are that the sale deed in question is a registered sale deed. There is a recital in the sale deed that the Plaintiff received Rs. 5000/ - towards the purchase money from the Defendants. The same recital is repeated before the Registrar who registered the sale deed. Secondly, there is the admission by the Plaintiff in the civil suit filed by the Plaintiff for declaration of patta and shikmi rights in which Plaintiff clearly admits receipt of Rs. 5000/ -. Thirdly, there is the admission of the Plaintiff before the criminal Court referred to above.

(3.) I entirely agree with my learned brother that this appeal should be allowed and as an interesting question as to whether what would constitute fraud has to be determined in this case I desire to add a few lines. That there was an intention to defraud at the time when the transaction took place it is not always possible to lead direct evidence but a party would be permitted to show by the subsequent conduct of the opposite party that at the time when the transaction took place there was no intention to carry out the terms of the contract or to fulfil the promise that was made. This view is supported by a decision of the Supreme Court in : AIR 1951 SC 16 (B). It has to be observed that it would constitute fraud only where either there has been a promise made without any intention of performing it or where there has been an active concealment of fact by one having knowledge or belief of the fact.