S.N. Singh, J.
1. The dispute in the present case is in respect of plots Nos. 1150, 1151 and 1152/1 of Khata No. 121 of village Makhena district Bulandshahr. These three plots along with other plots of Khata No. 121 admittedly belonged to Smt. Namania opposite party No. 4. Petitioner is the daughter of Smt. Namania and opposite party No. 2 is her real sister. Opposite party No. 3 is the husband of opposite party No. 2. It appears that opposite party No. 4 executed a sale deed in respect of the entire holding No. 121, on 13th November, 1960 in favour of the petitioner. This execution of the sale deed of the entire Khata in favour of one of the daughters caused bad blood between the two sisters. They fell out so much so that Marpit took place between them causing grievous hurt to Smt. Bhuria opposite party No. 2. After this Marpit between the two sisters a sale deed was executed on 8th June, 1962 in respect of the above three pilots which are a portion of Khata No. 121 in favour of Smt. Bhuria allegedly for an apparent consideration of Rs. 2500/-.
2. After the execution of this sale deed parties again fell out and a civil suit was instituted for the cancellation of the sale deed and criminal proceedings under Section 145, Cr. P. C. were started in respect of the plots in dispute. Proceedings under Section 145, Cr. P. C. terminated in favour of the petitioner. The Civil suit which was instituted by the petitioner in the court of Munsif was dismissed by the Munsif who although held that no cash consideration passed in respect of the sale sent (sic) came to the conclusion that the sale deed had been executed on account of a compromise having been arrived at between the parties after the Marpit between them and it was in response to the compromise to patch up the differences between them that the sale deed had been executed. Since the Munsif was of the opinion that the sale deed was in consideration of the rapprochement between the parties the sale deed was held to be valid. He rejected the case of the petitioner about duress and coercion.
3. An appeal was preferred against this decision of the Munsif before the Civil Judge. During the pendency of this appeal consolidation proceeding started and the hearing of the appeal was stayed. In the basic year the names of Smt. Namania and Mania found recorded over the plots in dispute.
4. Before the Consolidation Officer opposite parties Nos. 2 and 3 claim ed tenure-holder's right in respect of the three disputed plots on the basis of the sale deed dated 8th June 1962. On the other hand the petitioner asserted that the sale deed executed in favour of opposite parties Nos. 2 and 3 was the result of duress and coercion and the same being without consideration was void. The Consolidation Officer placed onus on the transferee to prove the payment of consideration and having arrived at the conclusion that there was no corroborative evidence in support of the payment held that the sale deed was without consideration and he further held that possession of opposite parties Nos. 2 and 3 was not proved. In the result he rejected the objection of Smt. Bhuria and directed the expunction of the name of Smt. Namania who had not objected to the expunction of her name from the consolidation records. The Consolidation Officer gave no finding on the question of duress and coercion raised by the petitioner.
5. An appeal was preferredagainst the above decision which was heard by an Assistant Settlement Officer (Consolidation) who by his judgment dated 9th July, 1964 affirmed the decision of the Consolidation Officer. He also placed the onus on the vendee to prove the payment of consideration and came to the conclusion that consideration was not proved to have been paid. He was of the opinion 'that in the circumstances of this case the sale deed had been executed as alleged by the petitioner. He refused to raise presumption about the payment of consideration because of the endorsement made by the Sub-Registrar on the admission of the petitioner.
6. A revision was filed against the decision of the Settlement Officer (Consolidation) which was heard by the Deputy Director. He reversed the decisions of the two subordinate authorities and came to the conclusion that the sale deed dated 8th June, 1962 passed valid title to the vendees. Accordingly he directed that the name of the vendee Smt. Bhuria be recorded as Bhumidhar of the disputed plots. The Deputy Director did not give any categorical finding about the receipt or non-receipt of the consideration by the petitioner. According to the Deputy Director there were two possibilities: either the sale deed in the instant case was executed on account of fear or was executed by Smt. Mania by way of rapprochement with her sister.
Having weighed the evidence and the circumstances of the case he came to the conclusion that the sale deed had been executed on account of a compro-mise between the parties. For arriving at this conclusion he took into his consideration the fact that Smt. Namania the mother of the petitioner as well as her sons had joined in the execution of the document and further the Pradhan of the village had also signed it. He definitely discarded the theory that the sale deed was executed under duress. According to the Deputy Director if the sale deed was executed to bring about peace amongst the family members even though consideration was not paid the sale cannot be held to be void lacking consideration.
7. Aggrieved with the decision of the Deputy Director the present writ petition under Article 226 of the Constitution has been filed by the petitioner. It has been contended on behalf of the petitioner that the Deputy Director has not set aside the finding of the Settlement Officer (Consolidation) to the effect that no consideration passed. It is submitted that the Deputy Director made out a new case for the contesting opposite parties which was not pleaded and that the finding of the Deputy Director about duress is also not worthy of reliance since it has been expressed in one line. Learned counsel relying on the cases of Commr. of Income Tax, Andhra Pradesh v. Motors and General Stores (P) Ltd., AIR 1968 SC 200. The State of Madras v. M/s. Gannon Dunkerley and Co. (Madras) Ltd. : 1SCR379 and Mahima Byasadeba Gadi v. Dina-bandhu Mohanty : AIR1960Ori16 submitted that in order that a transaction may be sale there must be cash consideration. Since there was no cash consideration the transaction must fail as a sale. On an observation made by the Court that even if the transaction failed as a sale (sic) why cannot it be upheld passing title to the transferee as a gift or in pursuance of a family arrangement.
8. Mr. S. P. Gupta learned counsel for the petitioner drew the attention of the Court to the cases of Sheodhari Rai v. Suraj Prasad Singh. : AIR1954SC758 , Deoki Nandan v. Murlidhar : 1SCR756 , Raj Pat Singh v. Dy. Supdt. of Police, Basti 0044/1961 : AIR1961All169 and other cases in support of his contention that the case of gift and family arrangement not having been pleaded by the contesting opposite parties it was not open to the Court to accept the transaction as valid treating it to be a gift or as a result of family arrangement. Mr. Gupta submitted that in view of Section 92 of the Evidence Act it was not possible to lead evidence to show that the document which apparently was a sale was not a sale but gift or was the result of the family arrangement. Hesubmitted that a family arrangement must be bilateral document and it can be arrived at only between members of a joint Hindu family. Reliance was placed on Tek Bahadur Bhujil v. Debi Singh Bhujil : AIR1966SC292 . Sahu Madho Das v. Mukand Ram : AIR1955SC481 and other cases.
9. As against these submissions it was submitted for the contesting opposite parties that in the instant case the main thing to be decided was as to whether the transaction had been entered into between the parties on account of duress and coercion as asserted to in the petition. In case duress and coercion asserted to in the petition failed the opposite parties Nos. 2 and 3 were entitled to succeed. Learned counsel submitted that there is no categorical finding by the Deputy Director about the non-payment of consideration. The Deputy Director assuming the case set up by the petitioner came to the conclusion that in the circumstances of the case the sale deed had been executed on account of rapprochement and compromise between the parties and there was no reason why the parties who on account of rapprochement entered into the transaction of sale be allowed to resile from it. The Deputy Director concluded that the sale deed should be honoured by both the parties.
Learned counsel drew the attention of the Court to the judgments of the Consolidation Officer and the Settlement Officer (Consolidation) and commented that their judgments are vitiated in law inasmuch as they placed the onus on wrong shoulders. It was submitted that the contesting opposite parties adduced sufficient evidence to prove the payment of consideration and also relied on the presumption arising out of the admission made by the petitioner in the sale deed. He contended that as against this there was interested testimony of the petitioner and her sons. There was no independent evidence to contradict the solemn statement made by the petitioner in the sale deed.
Learned counsel relied on Madhavarao Moreshvar v. Kasibai Dattubhai, (1910) ILR 34 Bom 287. Angal Lal v. Muhammad Hussain. (1891) ILR 13 All 409 and Raj Nath Singh v. Paltu, (1908) 5 All LJ 96 in support of his contention that on the facts found by the Deputy Director that the transaction had been entered into between the parties without duress and on account of the compromise between the parties the transaction could be held to be for consideration and cannot be said to be void.
10. I have considered the respective submissions of the learned counsel for the parties and I am of opinion that in view of the finding recorded by theDeputy Director this petition should fail. On the contest put by the parties before the Consolidation authorities the main thing to be determined was as to whether the document had been executed on account of duress and coercion as alleged by the petitioner or it was a free act of the petitioner who had willingly executed the document in favour of the contesting opposite parties. Whether the document was executed willingly or under duress is a question of fact and on this question of fact there is a clear finding of the Deputy Director that the document was executed without duress and the theory of duress put forth by the petitioner was rejected. This finding of the Deputy Director cannot be termed as perverse. This finding is very much supported by the evidence and the circumstances of the case.
Learned counsel for the contesting opposite parties is right when he submits that the Consolidation Officer and the Settlement Officer (Consolidation) placed onus on wrong shoulders in giving a finding about the non-receipt of consideration. In such a case when there is an admission of a party admitting the receipt of consideration it is for him to prove by cogent evidence that the statement contained in the document was false. In the instant case except for the statement of the petitioner and her son Kishan Lal there is no evidence about the non-receipt of consideration. In an old case reported in Mt. Ramdee Koonwaree v. Baboo Shib Dayal Singh, (1867) 7 Suth WR 334 the husband sued his wife to recover certain property alleged to have been sold for no consideration. It was said that the sale was a sham one made 'maslahattan' for the purpose of expediency, inasmuch as he was at that time leading a wild life.
11. The wife alleged out-and-out purchase under a sale on full payment of consideration.
12. Both the lower courts held that no consideration passed, and that the plaintiff was, therefore, entitled to recover possession.
13. The High Court in appeal held that parol evidence cannot be admitted to vary the express terms of a written agreement and the Full Bench ruling of that Court in the case of Kasheenath Chatterjee v. Chundy Churn Banerjee, (1866) 5 Suth WR 68 was relied and the Bench consisting of Hon. F.B. Kemp and Hon. F.A. Glower. JJ., held that the husband could not bring oral evidence to prove that no consideration ever passed between husband and his wife after having solemnly and in written document admitted that it had passed.
14. This decision supports the contention of the contesting opposite parties. Section 25 of the Contract Act which is relevant reads as follows :--
An agreement made without consideration is void unless-
(i) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other or unless.
(ii) * * * * (iii) * * * * in any of these cases such an agreement is a contract.
In the present case the documentis a registered document and it has beenexecuted by one sister in favour ofanother sister. If the assertion of coercion and duress is rejected it can safelybe said that the transaction is coveredby Section 25(1) of the Contract Actand such a transaction cannot be said tobe void even if cash consideration asasserted to by the petitioner was notpaid.
15. Now coming to the submissions of Sri S. P. Gupta this has to be mentioned that although the Deputy Director had given no finding about receipt or otherwise of cash consideration he has held that the transaction was for consideration since it was entered into on account of a compromise arrived at between the parties. This cannot be said to be a new case. The conclusion to which the Deputy Director arrived was on the proof of the falsity of the allegation of the petitioner that the transaction was arrived at under duress. The case of duress put forth by the petitioner was countered by the opposite party by the allegation that it was executed by free will and consent of the petitioner. While deciding the question of duress the Deputy Director had to decide the matter one way or the other and he came to the conclusion that on account of their rapprochement the document had been executed with the free consent of the petitioner. This cannot be said to be a new case called out by the Deputy Director.
In the instant case the petitioner has not placed before this Court the pleadings of the parties and the sale deed which was executed in favour of the petitioner by her mother on account of which the complete picture of the case has not been brought before the Court. In absence of the pleadings of the parties the the decisions relied on by the learned counsel for the petitioner about the variance in pleadings and proof cannot be of much assistance to the petitioner. Moreover, the petitioner was in the knowof the case accepted by the Deputy Director for when the petitioner had filed a suit for cancellation of the sale deed it had been upheld by the Munsif on the ground that it was entered into on account of compromise between the parties.
16. As regards the submission of the learned counsel for the petitioner that a gift can only be made by a document attested by two witnesses and that it can be revoked in view of Section 126 of the Transfer of Property Act, it was contended that if the case of gift had been taken the petitioner would have adduced evidence about its revocation, but the learned counsel could not suggest the ground of revocation in the instant case. The document which purported to be sale was attested by two witnesses.
17. As regards the contention of Sri Gupta about family arrangement it is not correct to say that family arrangement can only be arrived at between the members of a joint Hindu family and it must be a bilateral document. The family arrangement can be oral and if in pursuance of oral arrangement any document is executed that document is only in acknowledgment of the family arrangement- This view of mine is supported by the decisions cited by Sri Gupta himself, vide : AIR1966SC292 and : AIR1955SC481 . In the last mentioned case a family arrangement was arrived at between a widow and her daughters. A family arrangement which is brought about for the preservation of peace and honour of family or the avoidance of litigation has been held for consideration vide Sidh Gopal v. Behari Lal : AIR1928All65 . Mt. Latif Jahan Begum v. Md. Nabi Khan : AIR1932All174 and Smt. Bucbibai v. Nagpur University. AIR 1946 Nag 377 at p. 390.
18. As to the argument of Sri S. P. Gupta based on Section 92 of the Evidence Act reference need be made to Baijnath Singh v. Hajee Vally Mahommed Hajee Abba, AIR 1925 PC 75 and Munna Singh Rajput v. Narain Singh wherein it has been held that 'Section 92 merely prescribes a rule of evidence; it does not fetter the Court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances.' In it was also held that in the case of consideration mentioned in a written document it is open to the party contesting it to show that the consideration was different from that described in the contract. So this argument also fails.
19. While exercising jurisdiction under Article 226 of the Constitution this Court does not act as an appellate Court. This Court can only interfereif there is lack of jurisdiction, excess of jurisdiction or non exercise of jurisdiction or a patent error on the face of the record. On the findings of fact recorded by the Deputy Director of Consolidation I do not find any defect as mentioned above requiring interference by this Court. Substantial justice appears to have been done in this case. The petitioner who had voluntarily transferred the plots to her sister wants to resile from it. This is not a fit case in which this Court should exercise its discretion in favour of the petitioners.
20. Accordingly this petition fails and is hereby dismissed with costs.