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Mst. Susila Sa and ors. Vs. Durju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 452 of 1973
Judge
Reported inAIR1977Ori178; 44(1977)CLT37
ActsRegistration Act, 1908 - Sections 58; Evidence Act, 1872 - Sections 32 and 68; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantMst. Susila Sa and ors.
RespondentDurju and ors.
Appellant AdvocateB.K. Behura, Adv.
Respondent AdvocateP.K. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredJogannath v. Shri Nath.
Excerpt:
.....clearly supports the question of passing of consideration. even assuming that their statements are to be taken serious notice of, the materials available on record, as already found, clearly establish that their testimony cannot override the clear and unambiguous materials available on record. 4 does not clearly establish legal necessity. his sons are plaintiffs 2 and 3. giridhari would have been the best person to speak about legal necessity, but he has not come to the witness-box. 1 and has come to the conclusion that he was satisfied about existence of necessity for the transfer. i am satisfied that it is not a case where the findings are not supported by any evidence......sale deed executed in his favour. the sale deed is alleged to be without consideration and not for legal necessity. makunda also did not get possession.3. defendant 1 in his written statement contended that ujal and giridhari had gone away to patnagarh to reside there and they had sold away their homestead land in schedule b in 1943. they also sold schedule a lands to makunda sa for legal necessity and received the consideration in full. after such purchase. makunda and his family members continued in possession of schedule a lands. makunda also got his name mutated in a duly instituted proceeding. after death of makunda, defendants 1 to 4 have also divided those lands among themselves and have made improvements on the same. the plea of undue influence, coercion or misrepresentation has.....
Judgment:

1. Plaintiffs are appellants against a reversing decision. Plaintiffs filed the suit for declaration of title of the plaintiffs along with defendants 8 to 11 in respect of Schedules A and B properties described in the plaint. Further, they claimed for recovery of possession of Schedule A properties.

The dispute in this Second Appeal relates only to Schedule A properties.

Defendants 1 to 4 are sons and defendants 5 to 7 are daughters of Makunda Sa since deceased. Makund was the alienee of the entire A schedule properties from Ujal and Giridhari who are sons of Parikshit. The properties are admittedly ancestral properties. Plaintiffs 1 and 4 are the daughters of Ujal and plaintiffs 2 and 3 are the sons of Giridhari Sa, Original defendant 8 and defendant 9 are the daughters and defendant 10 is the widow of Ujal. Defendant 11 is Giridhari himself. There is no dispute about the genealogy.

2. Plaintiffs' case is that Schedule A lands appertaining to holding 32 of village Jiratmal under Balangir P.S. were the ancestral properties of Ujal and Giridhari and they were in possession of the same. On 30-6-64, defendants 1 to 3 trespassed into those lands and created disturbance. A proceeding under Section 145, Cr. P. C. was started by the plaintiffs which ultimately was decided in favour of defendants 1 to 3. During the course of that proceeding, the lands were sold by Ujal and Giridhari to late Makunda Sa on 25-7-45 (?) by a registered sale deed for a consideration of Rs. 500/-. It is alleged that both of them were illiterate and they were induced by Makunda to execute a deed of mortgage, but by fraud, misrepresentation and undue influence, Makunda got a sale deed executed in his favour. The sale deed is alleged to be without consideration and not for legal necessity. Makunda also did not get possession.

3. Defendant 1 in his written statement contended that Ujal and Giridhari had gone away to Patnagarh to reside there and they had sold away their homestead land in Schedule B in 1943. They also sold Schedule A lands to Makunda Sa for legal necessity and received the consideration in full. After such purchase. Makunda and his family members continued in possession of Schedule A lands. Makunda also got his name mutated in a duly instituted proceeding. After death of Makunda, defendants 1 to 4 have also divided those lands among themselves and have made improvements on the same. The plea of undue influence, coercion or misrepresentation has been denied. The minor defendants 2 and 3 filed written statement admitting the stand taken by defendant 1.

4. The trial Court decreed the suit holding that the sale deed Ext. B was without consideration and defendant 1 to 3 did not acquire any title by the said sale deed, or by way of adverse possession. He did not give any finding as to legal necessity on the ground that as the document was found to be without consideration, the question of legal necessity did not arise.

The first appellate court reversed the decision of the trial Court holding that the transaction was supported by consideration and there was legal necessity for such transfer. As against that decision, the present Second Appeal has been filed.

5. Admittedly, the properties were ancestral properties of Ujal and Giridhari. There was a document Ext. B in favour of Makunda Sa. The trial Court disbelieved the question of passing of consideration on the ground that the oral evidence of witnesses does not fit in with the endorsement on the back of Ext. B made by the Sub-Registrar that the vendors admitted receipt of consideration. The lower appellate court reversed that finding of the trial Court holding that the endorsement of Sub-Registrar on the back of the document shows that the vendors admitted before him that they had already received the consideration.

6. From the endorsement made by the Sub-Registrar on the back of Ext. B, it appears that the executants admitted before him that they had already received the consideration. Section 58 of the Indian Registration Act provides what endorsement should be made by the registering officer while registering a document. Section 58(c) of the Act provides that he shall endorse any payment of money or delivery of goods made in his presence in reference to the execution of the document and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. Under Section 60(2) of the aforesaid Act, the said endorsement is admissible for the purpose of proving that the document has been duly registered and that the facts mentioned as required under Section 59 have also occurred therein. In Nainsukhdas Sheonarayan v. Gowardhandas Bindrabandas, AIR 1948 Nag 110, it has been held that the endorsement made by the Sub-Registrar of payment of consideration in his presence is prima facie evidence that the amount was actually paid by the vendee. Reliance in this respect has been placed on a Privy Council decision reported in Nawab Mirza Ali Kadar Bahadur v. Indar Parshad, (1896) 23 Ind App 92 (PC). This Nagpur decision has also been followed by this Court in Dinesh Chandra v. Satchidananda Mukherji, AIR 1972 Ori 235 and it has been held that endorsement as to payment of money made in presence of the Sub-Registrar gives rise to initial presumption as to payment of consideration of the document. In Fuljari Lal v. Ram Sarup, AIR 1953 Madh Bha 177, a Division Bench has held that in a case under the Gwalior Registration Act, 1971, the provisions of which are in pari materia with the Indian Registration Act, the certificate of registration has indeed an evidentiary value attached to it and it is admissible for the purpose of proving that the document has been duly registered and that the facts mentioned in the endorsement made thereunder have occurred as they are mentioned. In this case, there was some payment before the Sub-Registrar and the balance money had already been received before execution of the sale deed and it was held that the endorsement of prior receipt of money is of considerable evidential value and must prevail unless its effect is negatived by other circumstances appearing in the case.

The endorsement made by the Sub-Registrar clearly shows that the executants had admitted before him that they had received the consideration before actually the registration of the document was made.

Of the two executants, Ujal is already dead. This fact is not disputjed. From the contents of Ext. B, it appears that Ujal admitted receipt of consideration. This admission by Ujal is admissible under Section 32(3) of the Evidence Act. This principle has been clearly laid down by this Court in Gulam Ali Sana v. Sultan Khan, ILR (1966) Cut 571 : (AIR 1967 Ori 55) and Lakshmidhar Sahu v. Kanhei Sahu, 1973 (2) Cut WR 1759. The admission made by Ujal in the document about receipt of the consideration money is also a good piece of evidence in support of passing of consideration.

The scribe of Ext. B has also said that according to the instructions given by the vendors the contents of the document were written out. This evidence, read with the contents of the document, clearly supports the question of passing of consideration.

Simply because there is discrepancy in evidence of witnesses as to whether the amount was paid before the Sub-Registrar, or prior to registration, it cannot be said, in view of the aforesaid materials available on record, that court will come to the conclusion that there was no passing of consideration, basing on oral testimony of witnesses, Moreover, it has been held, and rightly held, by the lower appellate court that the witnesses are rustic belonging to an ex-State area and, as such, discrepancy about this fact should not be taken serious notice of. Even assuming that their statements are to be taken serious notice of, the materials available on record, as already found, clearly establish that their testimony cannot override the clear and unambiguous materials available on record.

7. The lower appellate court, after discussing the evidence, has come to the conclusion that the transaction was supported by legal necessity. Admittedly, Ujal and Giridhari were the fathers of the plaintiffs. The lower appellate court has believed the oral testimony adduced by the defendants as to legal necessity. It is contended on behalf of the appellants that the evidence of D. W. 1 and D. W. 4 does not clearly establish legal necessity. This being a finding of fact, is binding on parties in Second Appeal. Giridhari, who is defendant 11 in this suit, is one of the executants of the document. His sons are plaintiffs 2 and 3. Giridhari would have been the best person to speak about legal necessity, but he has not come to the witness-box. This circumstance is sufficient for having a reasonable inference in support of existence of legal necessity. This finding is supported by a decision in Jogannath v. Shri Nath. AIR 1934 PC 55. The lower appellate Court has also accepted the testimony of D. W. 1 and has come to the conclusion that he was satisfied about existence of necessity for the transfer. There are other circumstances on record also to support that Ujal and Giridhari were in need of transferring properties. They had already shifted to Patnagarh and they had some loans to clear up. The oral testimony to this effect has been discussed by the lower appellate Court and he has come to the conclusion that there are materials on record which satisfactorily establish that I there was legal necessity.

8. It is contended on behalf of the appellants that the findings of the lower appellate court are based on no evidence. I was taken through the evidence of witnesses. I am satisfied that it is not a case where the findings are not supported by any evidence. On the other hand, the decision of the court below is based on assessment and appraisal of evidence on record which does not suffer from any intrinsic infirmity. In view of this, I am of opinion that there is no reasonable ground to interfere with the findings of the court below.

9. In the result, the appeal fails and is dismissed. In the circumstances of the case, there will be no order as to costs of this Court.


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