SMT. HANS RAJIversusYASODANAND

A                               SMT. HANS RAJI
                                      v.
                                 YASODANAND

                              NOVEMBER 24, 1995

B            (B.P. JEEVAN REDDY AND S.B. MAJMUDAR, JJ.]

          Constitution of India-Article l36-lnte1ference--Concurrent findings
    of fact-Courts below concurrently held that no fraud or misrepresentation
    was perpetrated by the respondent-Whether can be inteifered with.
c         Constitution of India-Article 136-Inteiference-Mixed question of law
    and fact-Appellant contends that sale deed was signed under the impression
    that it was a will-Whether parties were ad idem-Contention supported
    neither by pleadings, nor by evidence put forward before courts below-Held,
    no inteiference is required.
D
          Evidence Act, 1872-Section SB-Examination of attesting wit-
    nesse~When required-Sale deed attested by witnesse~Whether examina-
    tion of witnesses is mandatory.

         · The appellant filed a suit against the respondent for cancellation of a
E sale deed executed by her in favour of the respondent on the ground that the
    sale deed was got executed by exercising fraud and misrepresentation. The
    appellant claimed that she was an illiterate harijan widow and had been
    given employment in the Railway on compassionate ground on the death of
    her husband. The respondent was living in appellant's house and allegedly
F   got her signatures on blank documents in the guise of getting a will executed
    by the appellant in favour of her brother's son. However, the said document
    was used for executing a sale deed in favour of the respondent.

          The Trial Court, the appellate Court as well as the High Court
    rejected· the claim of the appellant. Before this Court, the appellant con-
G   tended that-

          (a) the appellant being an illeterate, harijan woman, her position is
    that of a 'pardanashin' lady and therefore, the sale deed, which was ob-
    tained by fraud and misrepresentation should be cancelled.

H         (b) the witnesses attesting the sale deed had not been examined by
                                        666
               HANS RAH v. YOSADANAND [S.B. MATMUDAR, J.)                     667

    the respondent and therefore, requirement of Section 68 of the Evidence          A
    Act was not fulfilled.



-         (c) the appellant had not put her signature on the document for the
    purpose of executing sale deed and therefore the parties were not ad idem.
    This contention was allowed to be raised as additional ground by this
    Court.                                                                           B

          Dismissing the appeal, this Court

          HELD : 1. All the Courts below have concurrently found that the
    appellant had on her own and without any fraud or misrepresentation on           C
    the part of the respondent executed the Sale Deed in question. Said finding
    is based, on appreciation of evidence and is a pure finding of fact which

                                             ..
    is not required to be interfered with in this appeal. [670-E-F]

          2. So far as the contention that the plaintiff was an illiterate harijan
    woman and was a childless widow and hence was like a 'pardanashin' lady          D
    goes, it has rightly been rejected by the High Court by observing that she
    was already serving in Railway and there was nothing on record to show
    that she was suffering from any ignorance or illiteracy or mental deficiency
    and she could not be compared to a 'pardanashin' lady. [671-E]

         3. So far as the applicability to the proviso to Section 68 is concerned,
                                                                                     E
    it must be noted that there was no occasion for the respondent to examine
    any attesting witness to the document in question as it was a Sale Deed
    which never required any attestation and even if some "marginal" witnesses
    had attested the document, the document did not attract Section 68 of the
    Evidence Act, 1872 which in term applies to the proof of execution of            F
    document required by law to be attested. [671-F-G]

          4. The question, namely, whether both the parties were ad idem or
    not and whether the appellant had put her signature on the document
    thinking that it is a will and not a Sale Deed, is a question which is linked G
    up with the intention of the executant for which there should be plt:ading
    and evidence. On this aspect neither any pleading nor any evidence is put
    forward by the appellant in courts below. On the contrary, no such argu-
    ment has been can-·assed before the High Court or before the first appel-
    late Court which was the final court of facts. Consequently on the facts as
    found on the record and in the light of the evidence as led by the parties H
    668                    SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   this cannot be effectively supported or made out. Even othenvise when it
    has been concurrently found by all Courts below on evidence on record
    that the document was executed as a Sale Deed by the appellant, the
    aforesaid additional ground pales into insignificance. (672-E-F; H; 673-A]


B 1995.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11236 of               -
          From the Judgment and Order dated 26.10.88 Allahabad High Court
    in S.A. No. 392 of 1978.

            Manoj Swarup and Ms. Lalita Kohli for the Appellant.
c
            Nalin Tripathi, R.N.Tripathi and Mrs. Sarla Chandra for the Respon-
    dent.

            The Judgment of the Court was delivered by

D           S.B. MAJMUDAR, J. Leave granted.

          This appeal is moved by the original plaintiff who had filed Regular
  Civil Suit No. 223 of 1976 in the Court of learned Munsif Gonda for
  cancellation of Sale Deed dated 7.4.1975 said to have been executed by her
E in favour of the respondent-defendant. The suit came to be dismissed by
  the Trial Court. Appellant lost her appeal before the appellate court and
  further appeal being second appeal before the High Court. That is how she
  has invoked this Court's jurisdiction under Article 136 of the Constitution
  of India. Notice was ordered to be issued to the respondent on 20th
  January 1995 by a Division Bench of this Court consisting of S. Mohan, J.
F and one of us S.B. Majmudar, J. It was also stated therein that notice to
  go on additional grounds as well. We will advert to the additional grounds
  permitted to be urged by the appellant pursuant to the notice aforesaid a
  little later. Respondent has appeared through his learned counsel. We have
  heard learned counsel for both the parties. We tried to explore the pos-
G sibility of a settlement but as no settlement could be arrived at despite
  adjournment of this petition on number of occasions, ultimately the petition
  was finally heard on merits and the appeal pursuant to the same is being
  disposed of by this judgment.

         A few relevant facts are necessary to be noted at the outset to
H   appreciate the grievance of the appellant-plaintiff. According to her she is
               HANS RAH v. YOSADANAND [S.B. MATMUDAR, J.)                   669
'\



     an illiterate harijan woman and a childless widow. On the death of her A
     husband who was a Railway servant she was given employment on compas-
     sionate ground in Railway by Railway authorities. She had inherited the
     house which belonged to her husband situated in Gonda Town in Gonda
     District of Uttar Pradesh. Respondent, who was known to her came to
     Gonda town and as he was in need of accommodation, the appellant
                                                                                 B
     accommodated him in her house. That happened about three years prior
     to filing of the suit from which the present proceedings arise, that is
     somewhere in the year 1973 as the suit was filed in 1976. Thereafter
     according to the appellant-plaintiff her brother came to Gonda in 1975
     and on his persuasion she agreed to execute a Will in favour of her
     brother's sons as she was a childless widow. It is her further case that at c
     that time respondent was also present and he undertook to get the
     necessary Will executed by the appellant in favour of her brother's sons.
     But instead of doing so he, dishonestly and fraudulently told the appellant
     that before the Will is executed permission of the District Magistrate will
     have to be obtained and accordingly made her sign some blank document D
     and later on took her to the office of Registrar for getting the Will
     executed. However, it was found that instead of getting the Will executed
     the respondent got a Sale Deed executed in his favour by practising fraud
     and misrepresentation on the appellant.

           The respondent resisted suit and contended that as the appellant was    E
     a Railway servant residing at Pachperwa Railway Station and as she was a
     childless widow she was no longer in need of the suit house and, therefore,
     she agree to sell the same to him on having accepted a consideration of
     Rs. 2,500.
                                                                                   F
           The learned Trial Judge after permitting the parties to lead evidence,
     both oral and documentary, and on an appreciation of the same came to
     the conclusion that the appellant had failed to establish her case of fraud
     and misrepresentation on the part of the respondent and that the Sale
     Deed was duly executed by the appellant in favour of the respondent. The
     suit was, therefore, dismissed. As noted earlier she failed also in appeal as G
     well as in the second appeal.

            Learned counsel appearing for the appellant vehemently submitted
     that the alleged Sale Deed was a result of fraud and misrepresentation on
     the part of the respondent. That she was an illiterate harijan lady and the   H
    670                  SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A   respondent misused the trust reposed by her on him and fraudulently got
    the document executed as the Sale Deed while she was all the while under
    impression that a Will was being executed by her. He submitted that it is
    true she does not deny her signature on the document but according to
    him she never executed a Sale Deed in favour of the respondent. It was
    next contended that she did not receive any consideration from the respon-
B
    dent and the appellate court has simply conjectured about the ·same and
    whieh conjecture has been erroneously accepted by the High Court. He
    also contended that the respondent had not examined attesting witness to
    the document and tha't the High Court was in error in taking the view that
    proviso to Section 68 of the Indian Evidence Act was applicable to the facts
c   of the present case. He lastly submitted placing reliance on the additional
    grounds permitted to be raised by this Court while issuing notice on the
    Special Leave Petition as aforesaid, that the ground for cancellation of the
    Sale Deed was in spirit based on the defence of non est factum as the
    appellant's signature on the Sale Deed was never made for the purpose of
D   Sale Deed and consequently the transaction was void. The learned counsel
    for the respondent refuted these contentions and submitted that all the
    courts below have concurrently found as a matter of fact that the appellant
    had willingly executed the Sale Deed and had taken a consideration of Rs.
    2,500 prior to the execution of Sale Deed and that there was no question
    of the transaction suffering from non est factum.
E
        According to us the appellant has made out no case· for our inter-
  ference in this appeal. It may be noted at the outset that all the Courts
  below have concurrently found that the appellant had on her own and
  without any fraud or misrepresentation on the part of the respondent had
  executed the Sale Deed in question. Said finding is based on appreciation
F of evidence and is a pure finding of fact which is not required to be
  interfered with in this appeal. This first appellate court in particular has
  relied upon the evidence of respondent D.W.l and his witness Ambika
  Prasad, D.W. 2 and another neighbour Om Prakash D.W. 3. The Court has
  also found that the appellant had herself applied to the District Magistrate
G for permission to sell the house and thereafter the Sale Deed was ex-
  ecuted. The appellate court has also noted that the version put forward by
  the appellant that she was made to understand that she was executing the
  Will in favour of her nephews, could not be accepted as her brother had
  made no effort to take any interest in getting the Will executed in favour
  of his sons and that when the respondent was entrusted with that task in
H
                HANS RATI v. YOSADANAND [S.B. MAJMUDAR, J.]                  671

     1975 as alleged by the plaintiff, it was strange that her brother did not make A
     any efforts in seeing to it that the respondent got the Will executed


..   accordingly by the appellant, though appellant's brother was a school
     teacher and was not an ignorant or illiterate person. These are pure
     findings of fact which remain well supported by evidence on record. It
     must, therefore, be held that there was no misrepresentation or fraud
     perpetrated by defendant-respondent in getting the Sale Deed executed by B
     the appellant.

           So far as the question of consideration is concerned, the first appel-
     late court as a final court of fact has held that as the appellant had herself
     permitted the respondent to stay in her house since about three years prior C
     to the suit and as he was well known to her there was every possibility of
     the respondent having paid Rs. 2,500 to the appellant even prior to the
     execution of the Sale Deed. The High Court also was not inclined to take
     any contrary view on this question as the learned Single Judge of the High
     Court noted in the impugned judgment that even though in para 12 of the
     plaint it is vaguely alleged that the Sale Deed was without consideration, D
     no issue was framed by the Court and no effort was made by the plaintiff
     to get such an issue framed and agitated.

           So far as the contention that the plaintiff was an illiterate harijan
     woman and was a childless widow and hence was like a 'pardanashin' lady
     goes, it has rightly been rejected by the High Court by observing that she     E
     was already serving in Railway and there was nothing on record to show
     that she was suffering from any ignorance or illiteracy or mental deficiency
     and she could not be compared to a 'pardanashin' lady.

           So far as the applicability to the proviso to Section 68 is concerned, F
     it must be noted that there was no occasion for the respondent to examine
     any attesting witness to the document in question as it was a Sale Deed
     which never required any attestation and even if some "marginal" witnesses
     had attested the document the document did not attract Section 68 of the
     Evidence Act which in term applies to the proof of execution of document G
     required by law to be attested. It reads as under :

             "68. Proof of execution of document required by law to be attested.
             - If a document is required by law to be attested, it shall not be
             used as evidence until one attesting witness at least has been called
             for the purpose of proving its execution, if there be an attesting H ·
    672                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A           witness alive, and subject to the process of the Court and capable



                                                                                    ..
            of giving evidence :

                Provided that it shall not be necessary to call an attesting
            witness in proof of the execution of any document, not being a will,
            which has been registered in accordance with the provisions of the
B           Indian Registration Act, 1908 (16 of 1908), unless its execution by
            the person by whom it purports to have been executed is specifi-
            cally denied."
    •
    Therefore, Section 68 would not cover such a transaction. Hence there
C would remain no occasion to invoke the proviso to Section 68 with a view
    to finding out whether the execution of such a document was specifically
    denied by the adverse party or not. Consequently all the main contentions
    canvassed before the High Court which are repelled by the High Court
    cannot be said to be wrongly repelled.
D
          Now remains the question of additional ground which was permitted
    by this Court while issuing the notice in these proceedings. It is of course
    true that such additional ground was permitted to be raised in support of
    the Special Leave Petition from which this appeal arises. However, the said
E   contention raises a mixed question of law and fact; namely, whether both
    the parties were ad idem or not and whether the appellant had put her
    signature on the document thinking that it is a Will and not a Sale Deed.
    This is a question which is linked up with the intention of the executant for
    which there should be pleading and evidence. On this aspect neither any
    pleading nor any evidence is put forward by the appellant in Courts below.
F   On the contrary, no such argument has been canvassed before the High
    Court or before the first appellate Court which was the final Court of facts.
    So far as the judgment of the first appellate Court is concerned, it has
    noted that the only point for determination in the appeal was as to whether
    the Sale Deed has been got executed by the defendant in his favour through
G   fraud and misrepresentation as alleged by the plaintiff-appellant. Save and
    except this point no other point appears to have been urged before the first
    appellate Court. Consequently on the facts as found on the record and in
    the light of the evidence as led by the parties the aforesaid contention
    covered by the additional ground c~not be effectively supporte~ or made
H   out by learned counsel for the appellant. Even otherwise when it has been


                                                                                     r
                                                                                    j
           HANS RAH v. YOSADANAND [S.B. MAJMUDAR, J.]                  673

concurrently found by all Courts below on evidence on record that the A
document was executed as a Sale Deed by the appellant, the aforesaid
additional ground pales into insignificance. For all these reasons there
is no substance in this appeal. It, therefore, fails and is dismissed. In the
facts and circumstances of the case, however, there will be no order as to
costs.                                                                        B
B.K.M.                                                  Appeal dismissed.