KRIPA RAM Vs. MAINA

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree of the learned District Judge, Sirmaur at Nahan dated June 10, 1998. Facts necessary for the disposal of this appeal may be noticed: Maina Devi, plaintiff and respondent in this appeal, hereinafter referred to as "the plaintiff is the owner in possession of the suit property along- with proforma defendants. Contesting defendants, "appellants herein" namely, Kripa Ram, Som Dutt, Rama Nand and Rajinder are the real brothers. Plaintiff Maina Devi laid a suit before learned Sub Judge 1st Class, Kandaghat, District Solan for declaration that she was the owner in possession of the suit property and the sale deed of the property, allegedly executed by her on May 18, 1992, in favour of the contesting defendants was without consideration and result of fraud and misrepresentation. Therefore, the sale deed as well as consequent mutation attested in favour of the contesting defendants on September 19, 1992, was null and void and not binding on the plaintiff. Plaintiff also sought relief of permanent injunction restraining the contesting defendants from interfering in the suit property in any manner either themselves or through agents, servants, relatives or assignees.

(2.) The case of the plaintiff was : She was a issueless widow of about 70 years of age. There was nobody to lookafter her in the family of the plaintiff in old age. Kripa Ram, the eldest of the contesting defendants, was Namberdar of the village and, therefore, was a powerful and influential person. In March 1992, Kripa Ram visited the plaintiff, in her house, and told the plaintiff that he and his brothers would lookafter her if she executes a registered will in their favour. Plaintiff agreed to the proposal. On May 18,1992, she was brought by the defendants to the Tehsil Office at Rajgarh with an understanding that she was to execute registered will of her share in the suit property in favour of the defendants. On September 15, 1993, plaintiff went to the patwari halqa, to obtain revenue papers of her land to raise loan from' the Bank. To the dismay of the plaintiff, she came to know from the patwari that her entire land measuring 45-14 bighas has been mutated in favour of the contesting defendants on September 19, 1992 on the basis of the sale deed and no land was left in her share. Plaintiff filed a complaint before the Deputy Commissioner, Sirmaur but nothing came out. On the advice of her Advocate, she obtained copies of the sale deed and mutation No. 346 and thereafter, she came to know that instead of will, the defendants got a sale deed executed from her, which was registered with the Sub-Registrar at Rajgarh It was the further case of the plaintiff that witnesses of the fraudulent sale deed were not present on the day when the plaintiff was brought, to Tehsil head quarters at Rajgarh to execute the will. According to her, the sale deed bears the date of May 18, 1992 on which date, neither the plaintiff was asked to appear before the Sub Registrar nor the witnesses were present on that day It is the case of the plaintiff that the contents of the document, the alleged sale deed, were never read over or explained to her at the time of execution of the sale or by the Sub- Registrar when the document was presented for registration. The plaintiff was merely asked to sign certain papers and she obliged. The alleged sale deed and consequent mutation No. 346, maintained plaintiff, was the result of fraud, misrepresentation by the defendants and collusion between the defendants marginal witnesses and the Sub-Registrar, Rajgarh and, therefore the same is illegal, null and void and not binding on the rights of the plaintiffs over the suit property.

(3.) The defendants resisted the suit. Allegations were controverted. Several preliminary objections as to the maintainability of the suit, it being barred by the period of limitation and estoppels etc., were raised. According to the defendants, plaintiff had concealed material facts and, therefore, was not entitled to the discretionary relief from the Court. On merits, the case of the defendants was that plaintiff had large landed property at her parental house in village Nandli, Tehsil Renuka and she wanted to dispose of the suit property to defendants 1 to 4 who were lookingafter her. It is pleaded that the plaintiff herself obtained revenue papers and purchased stamp papers and voluntarily executed the sale deed of the suit property in favour of the contesting defendants No. 1 to 4 on May 18, 1992 for a consideration of rupees 47.000 but plaintiff in order to save the registration fees, got the sale deed registered for a consideration of rupees 7,000. It is pleaded that the plaintiff is a clever lady and experienced in litigation. The plaintiff, after the execution of the sale deed, swore an affidavit before the Executive Magistrate and gave an undertaking that she will not claim the land from the Government after the sale of the suit land. Plaintiff executed the sale deed after having fully understood the nature of the document, which was registered with the Sub-Registrar. According to the defendants, one Sohan Lal and Bhuria are interested in the suit property and it is at the instance of these persons that the plaintiff had filed the suit against the defendants. It is the further case of the defendants that the sale deed after its execution was read over and explained to the plaintiff as also by the Sub-Registrar in the presence of the witnesses who were also witness to the execution and registration of the sale deed and were present at Rajgarh on that date. According to the defendants, the suit land was partitioned between the contesting defendants and proforma defendants to the knowledge of the plaintiff and, therefore, the suit of the plaintiff was not maintainable.