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Bansiram Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.284
AppellantBansiram
RespondentThe Secretary of State for India in Council and ors.
Cases ReferredRahimbhoy Habibbhoy v. Charles. Agnew Turner
Excerpt:
fraud, pleading and proof of - vendor and purchaser--limitation--sale, consideration for--vendor's remedy, when part of consideration not paid--hindu widow's suit for cancellation of sale on ground of fraud dismissed--effect of dismissal on reversioners--pardanashin lady--burden of proof. - .....would be entitled to contend that it was granted under circumstances which did not make it binding on the inheritance in their hands. this is a question which could not be raised by the executant in the present litigation and it must be left open for consideration in a suit property framed for the purpose, if the occasion should ever arise.4. the result is that this appeal is allowed and the decree of the subordinate judge discharged. the suit will stand dismissed, but there will be no order for costs in either court.
Judgment:

1. The plaintiff instituted the suit, which has culminated in this appeal, for cancellation of a conveyance executed by her in favour of the defendant on the 20th April 1900, for recovery of possession of the property covered thereby, and for incidental reliefs. The suit was decreed by the Subordinate Judge on the 30th November 1910. The present appeal was lodged in this Court by the defendant on the 7th March 1911. The plaintiff, who was the sole respondent, died on the 10th April 1911. As the property in suit originally belonged to the husband of the plaintiff, an application was made by the appellant to bring on the record her daughter, who, upon her death, had succeeded to the estate as the reversionary heir. The daughter, who was an infant, was brought on the record, but died before a guardian ad litem could be appointed. An application was then made to bring on the record one Mukund Lal, who claimed to be an agnate of the husband of the original plaintiff, and the order for substitution was made in due course. It subsequently transpired that the title of Mukund Lal as reversionary heir had been repudiated in a proceeding in the Court below between him and one Moni Lal, the husband of the daughter of the original plaintiff, in the course of which the opinion had been expressed that neither of the claimants was entitled to the estate. The appellant, by way of caution, next applied that the Secretary of State for India in Council might be brought on the record, on the allegation that the property had probably vested in the Crown by escheat. : This Court thereupon directed that the Secretary of State be added as a party respondent. We have thus at the present moment two respondents in this appeal, namely, Mukand Lal who has not entered appearance, though he claimed to be the reversionary heir of the husband of the original plaintiff, and the Secretary of State, who is represented by the Government Pleader. In our opinion, the Secretary of State should be discharged from this appeal. We do not know whether the property has actually passed by escheat to the Crown. The appellant has invited our attention to portions of the evidence which, if reliable, would indicate that he himself is one of the possible heirs of the husband of the plaintiff. There has also been no final adjudication upon the question, whether the claim put forward by Mukand Lal is well founded. Besides this if the Secretary of State has taken the property by escheat, he may possibly be entitled to impeach the transaction on grounds not available to the original plaintiff. The these circumstances, it would not be right to draw the Secretary of State into this litigation and he is accordingly discharged from this appeal. He will in no way be bound by our decision in this appeal, which will now proceed as an appeal with Mukand Lal as the sole respondent on the record.

2. The property in dispute belonged admittedly to Gopinath Das who died on the 6th July 1895, leaving a widow, Panchami Dasi, the plaintiff in this suit, and a daughter by her, Mrigasira, who died on the 4th August 1911. It is alleged that he also left a son, Jadunath Das, who died in 1896. He had a maternal uncle, Balgobind, whose son Mukandram is the second defendant in this litigation and whose grandson Bansi by another son Kanhai is the first defendant. On the 20th April 1900 the plaintiff executed a conveyance in favour of the first dofendant; the consideration consisted of the money due on a mortgage-bond given by her to the purchaser on the 25th February 1897 and an additional sum paid at the time of the sale; she instituted this suit on the 11th October 1909 for cancellation of the conveyance on the ground of fraud, Her case may be stated in the words used by her in the fourteenth paragraph of the plaint: 'Both the defendants were agents of the plaintiff, and as such they used to do her work and as such they got the bond, dated the 25th February 1897, and the deed of sale, dated the 28th April (sic), signed by her, without making her aware of the contents thereof. The contents of the said deed of sale were not read out and explained to the plaintiff. As the plaintiff did not get any independent legal advice in connection therewith and as she did not get any consideration or execute the bond mentioned in the deed of sale, so the same is not binding on her, nor have the defendants acquired any right thereunder.' The plaintiff was subsequently examined in support of her claim and she made statements which not only do not bear out her allegation but are self-contradictory and cannot be reconciled. She alleged in one part of her deposition that she had put her signature on blank sheets, which had-subsequently been filled up without her knowledge or consent by the defendants and turned on one occasion into a mortgage-deed, and, on another occasion, into a conveyance. This is plainly inconsistent with the case made in the plaint, which undoubtedly implies that she had executed a conveyance though the document was not read over or explained to her and though she had no independent advice in the transaction Mahomed Buksh Khan v. Hosseini Bibi 15 C. 684 : 15 I.A. 81 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 176. But this theory is weakened, if not negatived, by her signatures on the mortgage-bond and the conveyance, which show that she must have been acquainted with their nature and contents. On the mortgage-bond she wrote with her own hand 'this bond for Rs. 1,975 executed by me is correst,' and then signed her name; similarly, on the conveyance she wrote this deed of sale which I have executed for Rs. 5,000 is true and correct and is admitted and ratified by me,' and then affixed her signature. As there is no doubt whatever about the genuineness of these signatures, the position of the plaintiff was clearly one of grave embarrassment. She was consequently constrained to have recourse to the theory that the defendants were in possession of blank sheets which bore her signature, and which they fraudulently filled up as a mortgage-deed and as a conveyance. But the obvious answer is that this was not the specific fraud she alleged in the plaint. In another part of her deposition she asserted that she had not received any part of the consideration mentioned in the mortgage-deed or conveyance, but this by itself would not invalidate the sale; for if her allegation was true, she might sue to recover the unpaid balance on purchase-money. The plaintiff, it seems, was not able to make up her mind as to the precise ground for cancellation of the conveyance. It is obvious that relief might have been sought on one of three hypotheses, namely, first, that she had signed blank papers, relying on the representation of the defendants, who subsequently filled them up and turned them into a mortgage-deed and a conveyance respectively; secondly, that she had put her signatures after the documents had been engrossed but had acted in reliance on a misrepresentation of their true nature by the defendants; thirdly, that though the documents were genuine, no consideration was ever paid for either of them. It is unfortunate for the plaintiff that she does not make a consistent case in the plaint, much less does she adhere to the case of fraud indicated therein; her case does not thus fulfil the conditions essential for success. Two principles, it is well settled, are applicable in these circumstances. In the first place, as pointed out by the Judicial Committee in Gunga Narain Gupta v. Tiluckram 15 I.A. 119 : 15 C. 533 : 12 Ind. Jur. 254 : 5 Sar. P.C.J. 168 where reliance was placed upon the observations of Selborne, L.C. in Wallingford v. Mutual Society (1880) 5App. Cas. 685 at p. 697 : 50 L.J.Q. B. 49 : 43 L.T. 258 : 29 W.R. 81 when a plaintiff impeaches a transaction on the ground of fraud, the facts which constitute the alleged fraud must be distinctly, specifically and accurately stated; Gilbert v. Lewis (1862) 1 De G.J. & S. 38 at p. 49 : 32 L.J. Ch. 347 : 7 L.T. 541 : 11 W.R. 223 : 9 Jur. (N.S.) 187 : 2 J. & H. 452 46 E.R. 15 : 137 R.R. 138; for, in the language of Fry, J. in Redgrave v. Hurd (1881) 20 Ch. D. 1 : 51 L.J. Ch. 113 : 45 L.T. 483 : 30 W.R. 251 it is only fairplay between man and man that the defendant should know what is charged against him Clydsdale Bank v. Paton (1896) A.C. 381 : 65 L.J.P.C. 73 : 74 L.T. 738; Lawrance v. Norreys (1890) 15 A.C. 210 at p. 221 : 59 L.J. Ch. 681 : 62 L.T. 706 : 38 W.R. 753 : 54 J.P. 708. In the second place, a charge of fraud must be substantially proved as laid, and when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof, be substituted for it Abdool Hoossein v. Turner 14 I.A. 111 : 11 B. 620; the rule that the Court will grant only such relief as the plaintiff is entitled to upon the case made by his pleadings, is strictly enforced when the plaintiff relies upon fraud Wilde v. Gibson (1848) 1 H.L.C. 605 : 12 Jur. 527 : 9 E.R. 897 : 73 R.R. 191; Hickson v. Lombard (1866) L.R. 1 H.L. 324. Tested in the light of these principles, the case presents grave difficulties. The plaint does not specify with clearness and certainty the grounds on which the plaintiff seeks to cancel her own deed; and matters are not improved by any means by her deposition. It cannot be disputed that as the documents bear her signature, the burden is upon her to establish that the recitals contained therein are untrue Fulli Bibi v. Bassirudi Midha 4 B.L.R. 54 (F.B.); Ali Khan Bahadur v. Indar Parshad 23 C. 950 : 23 I.A 92. But before the plaintiff can succeed, she is bound to make out a consistent case for cancellation of the documents; this she has not done. We may add that her omission to give details has created a serious difficulty in connection with the question of limitation. If the conveyance is not her deed, it does not require to be cancelled and she is entitled to sue for recovery of possession of the land within 12 years from the date of dispossession. If, on the other hand, the conveyance was executed under circumstances which made it not void but only voidable, she must avoid it within the period prescribed by Article 91 of the First Schedule to the Indian Limitation Act, that is, within three years from the date of discovery of the alleged fraud. The plaintiff must consequently specify the facts in connection with not merely the commission but also the discovery of the fraud. When a party seeks to avoid the Statute of Limitation on the ground of fraud, the statement of claim should set forth specifically the particular acts which constitute the fraud as well as the time when it was discovered, in order to enable the defendant to meet the fraud and the alleged time of its discovery, so that the Court may see whether by the exercise of ordinary diligence the discovery might not have been made before Gibbs v. Guild (1882) 9 Q.B.D. 59 : 51 L.J.Q.B. 313 : 46 L.T. 248 : 30 W.R. 591; Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu 28 I.A. 81 : 24 M. 387 : 5 C.W.N. 545 : 3 Bom, L.R. 303. This is all the more necessary for protection of the defendant who, according to the rule laid down by the Judicial Committee in Rahimbhoy Habibbhoy v. Charles. Agnew Turner 20 I.A. 1 : 17 B. 341 is bound to show that the plaintiff had had clear and definite knowledge of the facts constituting the particular fraud earlier than the date of the alleged discovery and for more than the period prescribed for the suit. In the case before us, the plaintiff stated in the plaint that she became aware of the fraud on the 1st May 1909; but no details are furnished as to the circumstances, which led to the discovery of the fraud. On the other hand, the facts make it plain that she must have been aware of the fraud, if there was any fraud, at least as early as 1904. Consequently, if the deed is taken to be not void but voidable, this suit brought in 1909 is obviously barred by limitation. It is thus plain that the original plaintiff could not possibly obtain any relief in the suit as framed.

3. It may be added that although the conveyance is not set aside in this suit, the reversionary heirs, if any, to the estate of Gopinath Das would not be necessarily bound thereby, for if we assume that conveyance was genuine and for consideration and consequently not liable to be set aside at the instance of the executant, the reversioners would be entitled to contend that it was granted under circumstances which did not make it binding on the inheritance in their hands. This is a question which could not be raised by the executant in the present litigation and it must be left open for consideration in a suit property framed for the purpose, if the occasion should ever arise.

4. The result is that this appeal is allowed and the decree of the Subordinate Judge discharged. The suit will stand dismissed, but there will be no order for costs in either Court.


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