1. This judgment will dispose of two Letters Patent Appeals, one preferred by the plaintiff and the other by the defendants directed against the same judgment and decree dated 3rd December, 1982, passed by the learned single Judge, upsetting the judgment and decree of the learned trial Court
2. We will first take up the Letters Patent Appeal preferred by the plaintiff which arises in the following circumstances : --
Two persons namely, Abdul Gani Shah and his wife Jalla Bano by virtue of two sale deeds purchased the suit house from its owner Lala Shiv Dass in the year 2007 SV. This sale was pre-empted by Gulam Zuhra, the appellant herein, by filing two suits, and decrees were passed therein in her favour in the year 1957, and she was also put in possession of the suit house in pursuance of the execution of the said decrees. Thereafter, these two vendees purchased another house from its owner Lala Ramcharan Dass. This sale was also sought to be pre-empted by the appellant, for which she laid a suit, but this suit was later on withdrawn by her. Abdul Gani Shah and Jallo Bano later on sold this house to one Mohd Sultan Lassu. The appellant's case is that she served a notice on Mohd Sultan Lassu on 7th Jan. 1961 through her Counsel, calling upon him to execute a sale deed in her favour in respect of the house purchased by him within a week from the date of the notice, failing which she would file a suit for pre-emption against him Mohd Sultan Lassu not having agreed to execute the sale deed, the respondent Hafiz Ullah brought the necessary stamps and the petition writer over to the house of the appellant and got two documents signed by her on 24th Jan. 1961 by making a false representation to her that one of these documents was a plaint in the proposed suit for pre-emption, and the other a power of attorney in his favour on behalf of the plaintiff for prosecuting in the Court the proposed suit on her behalf. These documents were not in fact the plaint and the power of attorney, but one of them, according to her, was a sale deed in respect of half portion of the suit house on her behalf in favour of the respondent, and the other was a deed of agreement restraining her from alienating the other half of the house to any person other than the respondent She further goes on to state that she came to know about this fraud for the first time, when she received a summons from the Sub Registrar, Srinagar, requiring her to admit or deny the execution of the aforesaid sale deed She accordingly challenged the execution of the aforesaid two documents on the grounds: firstly, that these were got executed by fraud, and misrepresentation and secondly, that these were neither supported by any consideration nor was the alleged consideration lawful. In this suit, she also claims a decree for future mesne profits.
3. The suit was resisted by the respondent on the ground that none of the two documents was vitiated by any fraud or misrepresentation, rather the suit resulting in the pre-emption decree had been filed by the appellant for his benefit because he himself could not have pre-empted the sale, that the suit for declaration simpliciter was not maintainable, that the suit was not properly valued for the purposes of court-fee, that it did not disclose any cause of action and that no decree for mesne profit could be claimed in the suit,. without specifying the amount of mesne profit and paying adequate court-fee on it.
4. The parties joined issues and led voluminous evidence on them The trial Court finally decreed the suit of the plaintiff in the following terms : --
' The sale deed and the agreement dt 24-1-1961 purported to have been executed by the plaintiff in favour of defendant are held to be the outcome of fraud and misrepresentation These deeds are further held to be liable for cancellation on the ground of their being the outcome of fraud and the plaintiff is also held to be entitled to possession of the suit property.
It is further decreed that these two deeds are unlawful and inoperative for the reason of their being without consideration and having the unlawful object behind them It is further decreed that the plaintiff is entitled to mesne profits at the rate of Rs. 500/- per year from the date of decree to the date of delivery of possession.'
5. On appeal by the defendant the learned single Judge partly allowed the appeal and modified the judgment and decree of the trial Court to the extent that instead of getting possession of the entire house, the appellant (plaintiff) shall be entitled to possession of southern half of it. As a general relief a decree in the amount of Rs. 1400/- was also passed in her favour.
6. We have heard the learned counsel for the parties at length and have gone through the file thoroughly.
7. The appellant (plaintiff) has assailed the said judgment and decree of the learned single Judge on many grounds which will be dealt with during the course of discussipn as follows :
8. The first contention of the learned counsel for the appellant is that the learned single Judge has erred in not holding the appellant as a 'Pardanashin Lady', which finding according to him has changed the very complexion of the case. He has vehemently tried to establish that the appellant was a 'Pardanishin Lady', and therefore it was heavily on the respondent to prove that the appellant understood the nature and contents of the documents in question at the time of their execution.
9. We have gone through the evidence on the file to find out if the appellant is a 'Pardanashin Lady' or not. The witnesses produced by the appellant no doubt have parrot-like stated that the appellant was a 'Pardanishin Lady', but this alone however is not sufficient to give her such a status, unless the Court is satisfied that she is really living in seclusion and not having any communication with male strangers. The evidence on the record shows that she has rather behaved as a male member in her day to day dealings, she has filed suits and complaints in various Courts and prosecuted them in a 'manly' manner. She has been meeting the petition writers, the lawyers and all others coming in her way during the course of litigation. She cannot therefore, be deemed to be enjoying the status of a Pardanishin Lady'.
10. 'In our opinion the learned single Judge has rightly held the appellant as not holding the status of a 'Pardanishin Lady'. That being so, the burden is heavily on the appellant to prove that she had signed the documents in question under an influence of fraud and mis-representatioa That burden has not been discharged Had she been a 'Pardanishin Lady' this burden could have shifted to the respondent Needless to say that a party who has signed a document in token of its executioa shall be presumed to have known and understood its nature and contents unless contrary is proved The appellant having failed to prove herself to be a 'Pardanishin Lady', she cannot be given the benefit of this rule,
11. The second contention of the learned counsel for the appellant upon which hinges the fate of this case is that the learned single Judge has erred in holding the sale deed EXPB and the deed of agreement EXPC as genuine and not an outcome of fraud and misrepresentation.
12. 'In order to return a finding on this issue, we had to see the voluminous evidence led by the parties. The following facts emerge from the plaintiffs evidence :
1. That the appellant had given one week's notice to Mohd Sultan Lassoo to execute a sale deed in her favour in respect of the house purchased by him, failing which she would file a suit for pre-emption against him. When the said period expired and Mohd Sultan Lassoo did not execute the sale deed in her favour, the respondent brought the necessary stamps and the petition writer to the appellant's house and got the documents in question signed by her on 24-1-1961 by making a false representation to her that one of these documents was a plaint in the proposed suit for pre-emption and the other a power of attorney. These documents were not as a matter of fact the plaint and the power of attorney but one of them, according to her a sale deed and the other a deed of agreement
2. That the respondent has pleaded throughout that the first pre-emption suit which was decreed in favour of the appellant was fought out by him at his own expenses and the suit house was as a matter of fact required by him. Had it been so, why should he pay the consideration to the applicant as mentioned in the sale deed EXPS?
3. That the respondent had no house of his own and that he was a poor man and could not afford to pay the consideration amount to the appellant and also bear the litigation expenses.
13. On thorough scrutiny of the evidence led by the parties, and keeping in view the fundamental principle of civil law that preponderance of evidence should clinch the issue, and that fraud and misrepresentation must be strictly proved, it appears to us that the documents in question are genuine and not an outcome of fraud and mis-representatioa Both the parties have tried to suppress the real facts to be brought before the Court and to that extent have not come to the Court with clean hands. No alternative is therefore left with the Court but to take recourse to the rule of preponderance. The very doubt about the genuineness of the documents in question is removed when we consider the evidence of the D. Ws. which include Gh. Ahmad Shawl and Gh. Mohd Shwal, who happen to be brothers of both the parties. It may be pertinent to mention here that the plaintiff Ghulam Zuhra is the sister of the defendant Hafiz-ullah. On the death of the defendant his legal representatives have been brought on record The said witnesses have deposed that the appellant has read up to middle standard Being a literate lady and a tried litigant she could not be duped so easily by the respondent and get her signatures on blank papers. She has as a matter of fact, refused to sign the pronote unless possession of other half of the house was given to her. She has also kept a stipulation in the agreement that unless possession of the other half was given to her, it could not be registered This all shows that she was an intelligent lady knowing some niceties of law and could not be easily defrauded in such a manner. Moreover she has herself deposed in her complaint before Sub Judge, A. D. M Srinagar on 1-11-1961, during the course of her statement EX DI that at the time of execution of the documents in question none else except the petition writer and the respondent Hafiz-ullah were present This admission on her part excludes the evidence of the P. Ws which she has produced to prove the alleged fraud, and such witnesses therefore, merit no credence whatsoever.
14. 'Again the Court cannot brush aside the evidence of the scribe and other marginal witnesses, who have proved the execution of the documents, including the payment of the consideration amount more so, in absence of any reliable evidence to the contrary.
15. The evidence of the P. Ws otherwise also is not convincing. Firstly they have been belied by the appellant herself as stated above Secondly they have given contradictory statements The P. W. Gh Mohd is the servant, of the appellant and on that score also he cannot be treated as an impartial witness. He has deposed that when he returned from the hospital at about2 P. M, he found some persons (meaning P. Ws) present in the appellant's house including the petition writer and the respondent Hafiz-ullah. The other P. Ws have stated that they had come to the appellant's house on coming to know that Gh Mohd has returned home after hospitalisatioa These two versions are self-contradictory in so far as the arrival and presence of the P. W. Gh. Mohd and other P. Ws is concerned Gh Mohd has stated that the other P. Ws were already present at the appellant's house when he returned from the hospital The other P. Ws have stated that they came to the appellants' house on coming to know that Gh. Mohd has returned from the hospital In these circumstances it is not safe to believe either of them That apart it is not believable that the petition writer of such a long standing could obtain the thumb impressions of the appellant on a blank paper in the presence of so many persons. Moreover the said P. Ws too have stated that they were seated in an adjacent room and not in the room where the respondent and the petition writer allegedly obtained her signatures.' That being so. how could they witness the alleged occurrence? This all appears to be an afterthought on the part of such witnesses affecting their veracity as a whole.
16. On top of it all, Zainaul Abdin, the plaintiff's son is the marginal witness to the sale deed EX P8, the agreement deed EX PC and the receipt EX BS accompanying the sale deed all executed on the same day i.e. 24-1-1961. In his statement he has tried to do away with the importance of his signatures, as a marginal witness, by explaining the circumstances under which they were allegedly obtained from him. According to him he was duped by the defendant in getting his signatures affixed on the documents in questioa His explanation is not convincing at all. He was not a minor at that time as set out by the learned trial court; he has himself stated that he was a Government servant at that time. The question of his minority, therefore, does not arise. It is not believable that he would sign blank papers and more so with the authenticating words attributed to his mother uniess the documents stood scribed.
17. We have given our due consideration to the facts and circumstances of the case particularly to the arguments advanced at the bar regarding the genuineness or otherwise of the documents in question and have minutely scrutinised the findings of the learned single Judge thereon. We could not come to any conclusion other than the one arrived at by the learned single Judge in holding that no fraud and misrepresentation was committed in the execution of the documents in question.
18. The third contention of the learned counsel for the appellant is that the learned single Judge has held that part of the consideration of the sale deed EX P8, viz. an amount of Rs. 1400/- was not paid to the appellant and in view of this finding the sale deed becomes invalid as a whole. We have considered the findings of the learned single Judge in this regard and in our opinion no error has been committed by him in recording the same. The learned single Judge has disallowed part payment of the consideration amount to the extent of Rs. 1400/- on the ground that no accounts were maintained by the respondent nor any written acknowledgment obtained by him from the appellant to show as to how much he had actually expended on the previous litigation. Moreover in the sale deed EX, P8, itself the consideration amount of Rs. 5000/- has been specifically bifurcated showing Rs. 600/- having been paid in cash in presence of the witnesses, and Rs. 1400/- adjusted on account of the expenses incurred by the respondent on the previous litigatioa The learned single Judge has allowed Rs. 3600/- as part payment of consideration amount after taking into consideration the evidence of the marginal witnesses and the scribe. He has disallowed the remaining part of consideration amount and held it due from the respondent as there was no tangible evidence to prove its payment.
19. In these circumstances we are of the opinion that the third contention of the learned counsel for the appellant is also without any force.
20. We have also considered the other grounds of appeal and in our opinion no error whatsoever has been committed by the learned single Judge in recording his findings thereon. His findings are, therefore, hereby confirmed on all the issues.
21. The result is that the Letters Patent Appeal(Civil) No. 1 of 1983 captioned Ghulam Zuhra versus Habla Begum and others preferred by the plaintiff-appellant is dismissed
22. As regards the Letters Patent Appeal (Civil) No. 2 of 1983 captioned Habla Begum and others versus Ghulam Zuhra, assailing the judgment and decree of the learned single Judge on the ground that the appeal has been allowed partly and should be allowed in full, it may suffice to say that having upheld the said judgment and decree of the learned single Judge in Letters Patent Appeal( Civil) No. 1 of 1983 this appeal also merits dismissal which is hereby dismissed for the reasons mentioned above.
23. In the peculiar circumstances of the case no order is made as to the costs.
24. Let the files pertaining to Letters Patent Appeals be consigned to record. The record of the trial Court be remitted back immediately.