DHANESHWARI DEVI Vs. DASHARATH SAO @ DASO SAO

JUDGEMENT

(1.) IN this Second Appeal the question to be answered is : Whether the withdrawal of a sum of Rs. 7459/ - from the Savings Bank Account will give rise to a presumption that respondent No. 1 had paid part of the consideration amount? Defendant plaintiff who is related to the respondent No. 1 as sali (the sister of the wife of respondent No. 1), brought a suit against him that his name (Dasrath Sao @ Daso Sao, respondent defendant No. 1) was fraudulently included in the sale deed No. 7024, dated 4.6.1982 as purchaser No. 2 in collusion with the scribe Girdhari Ram defendant No. 4 which has not created any right and possession to the defendant No. 1. The plaintiff is a purchaser of the land - bearing plot No. 4506 under Khata No. 26 of village Mandai Khurd, Thana No. 163, P.S. and District Hazaribagh in which a tided house was constructed by them. In the month of May 1982 defendant No. 2 and 3 expressed theitr desire to sell the aforesaid property and inform Gumani Das about it. Gumani Das; told plaintiff about the sell of the aforesaid house and land and she agreed to purchase the same. Thereafter the matter was settled that defendant No. 2 and 3 would sell the property to the plaintiff on consideration of Rs. 8,000/ -.

(2.) THE case of the plaintiff is that she was living with defendant respondent No. 1. Defendant No. 2 and 3 wanted to sell the land and from Gumani Das she came to know of their intention and thus she approached the defendant No. 2 and 3 along with Gumani Das and the consideration was settled at Rs. 8000/ -. Being related to the defendant No. 1, the plaintiff asked him to accompany on the date of execution of the deed and registration thereof. Then defendant No. 1 brought scribe Girdhari Ram (Munshi) (who is defendant No. 4) in the Court and the Munshi demanded the requisite amount for stamp etc. which the plaintiff paid and then the Munshi bought the requisite stamps for scribing the sale deed and the defendant No. 2 and 3 handed over their original sale deed to the Munshi. The Munshi along with defendant No. 1 went aside to write the deed and told the plaintiff and defendant No. 2 and 3 to wait in the varandah and the Munshi wrote down the deed in the meantime the defendant 2 and 3 demanded the consideration amount of Rs. 8000/ -which the plaintiff paid to them by herself in presence of Gumani Das and the defendant No. 2 and 3 also signed the deed besides she also put her LTI on different pages. Then before the Registrar when the defendant No. 2 and 3 were called they presented themselves and admitted to have executed the sale deed in favour of the plaintiff but the chirkut was not taken as defendant No. 1 asked her to go. Then on subsequent dates the plaintiff demanded the registration receipt from the defendant No. 1 but he told that as the original sale deed would be issued after a year so it would be kept reserved so that it may not be lost and as the defendant No. 1 is own relative of the plaintiff she relied upon him and then the defendant No. 1 went on his duty and whenever the plaintiff asked about the deed he told that it would be obtained from the registration office after a year and the plaintiff enquired from others who also informed that it takes about a year in getting back the deed from the registration office and the plaintiff had to wait till a year. Then the plaintiff started the repairing of the purchased house and started living in that house then she applied for mutation and in that Court also the defendant No. 1 took Rs. 200/ - from her. Ultimately she came to know from the Karamchari that the mutation has been done in the name of plaintiff and defendant No. 1. When she obtained the certified copy of the sale deed then she cam to now of the fraud. Her claim is that she has paid the entire consideration amount and she is the sole purchaser and defendant No. 1 has fraudulently got his name included in the sale deed so the sale deed has not created any right, title and interest in the house purchased by her. Thereafter the suit was filed.

(3.) THE learned trial Court along with other issues framed an issue -whether the sale deed executed in favour of plaintiff and defendant No. 1 is tainted with fraud? The learned trial Court also considered the evidence of both the sides. The plaintiff produced witnesses who speak of payment of consideration money in their presence, on the other hand the defendants besides his oral evidence has produced his passbook (Ext. D) which shows that a sum of Rs. 7450/ - was withdrawn on 3rd June 1982. The Court below found that since the consideration money was Rs. 8000/ - then appellant had to pay only Rs. 4000/ - as 1/2 of the consideration amount, there was no necessity to withdraw such a huge amount and thus he came to find that in order to cheat the illiterate plaintiff such tactics was adopted. The learned trial Court held that the deed was fraudulent and consequently decreed the suit.