LPA/230/2000 of Suraneni Lakshmi Vs Badugu Venkata Durga Rao on 31 December 2010

1. AIR 1992 DELHI 1182.AIR 1958 BOMBAY 2703.AIR 1967 SC 4364.AIR 1975 SC 1810

THE HON’BLE SRI JUSTICE GODA RAGHURAM

AND

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAOL.P.A.230 OF 2000

JUDGMENT (Per NRLN,J)

The wife of the deceased-first plaintiff who is the second plaintiff inO.S.No.191 of 1986 on the file of the court of Senior Civil Judge, Nuzvid, isthe appellant herein. The suit was filed by the deceased-first plaintiff fordeclaration of his title to “A” &”B” schedule properties claiming that he hasacquired those properties at different times from his earnings and also fromthe sale proceeds of the joint family lands. The allegations were made in theplaint that his second sister’s daughter was married to him in 1974 and soldaway his ancestral house at Borragudem in 1975 and shifted his family toChandragudem by the end of 1975-1976; he discontinued his self-cultivationand had leased out the properties to several persons. According to theplaintiff, apart from the leases given to others, in May 1976 the plaintiff leasedout item Nos.6 to 8 of plaint “B” schedule properties to the second defendant on an annual lease of Rs.750/- for a period of two(2) years and the seconddefendant continued default and surrendered the land to the plaintiff inFebruary-1978 and thereafter he gave the land on lease to Sri G.Sobhanadri.

It was further pleaded that in February-1977 he received balance of thesale consideration after the sale of the house and when plaintiff wanted topurchase land, the second defendant approached him and persuaded himand therefore he lent a sum of Rs.5,500/- and executed a promissory note inFebruary,1977. The promissory note was scribed by one KummarikuntaSatyanarayana. The second defendant therefore was in arrears of leaseamount and also the pronote debt.

According to the case of the plaintiff, taking advantage of his weak andgullible nature, the second defendant and his son Venkateswara Rao tookhim to Vijayawada on the night of 05-04-1978 and confined him wrongfully inthe house of one D.Bhadraiah and at about 9.00 A.M on 06-04-1998 theplaintiff was coerced to sign on some documents and when the plaintiffrefused, the second defendant beat him with a stout stick, caused bleedinginjury to his right knee and threatened. So the plaintiff contributed hissignatures on 07-04-1978. The plaintiff was taken to Machilipatnam and got a document registered by coercion and threat of life in spite of objections by theplaintiff. Again the plaintiff was brought back to Vijayawada and confined inthe house of one Bhadraiah by the acts of coercion and threat and on 29-05-1978 obtained signatures. On 30-05-1978 he was taken to Machilipatnamand in spite of protest another document was registered. It was furtherpleaded during the interval between the 07-04-1978 and 29-05-1978 theplaintiff was beaten and obtained pronotes including the one executed by theplaintiff in favour of the defendant, which was in the custody of one ShaikAmineebee of Chandragudem.

It was further pleaded that without releasing the plaintiff, he was taken toEluru and confined in the house of one S.Kanaka Rao for about a month andon 30-06-1978 the second defendant took the plaintiff from Eluru toMylavaram and managed the police to obtain his signatures on some papers.Thereafter, the plaintiff was again brought back to Vijayawada and kept in thehouse of one D.Chinna Rao, and finally on 31-10-1978 the plaintiff managedto escape from the house of the said Chinna Rao. He made enquiries andcame to know about the particular nature of the documents. According to thecase of the plaintiff, the allegations of indebtedness mentioned in the earliersale deed and passing of the cash consideration in, later sale deeds are allfalsity. The plaintiff came to know that the documents are obtained in thename of his minor son-first defendant. The plaintiff challenged the validity ofthe said sale deeds and also claims to have cancelled the above two saledeeds on 03-11-1978 and informed the same to the defendant by sending thecancellation deeds. As the defendants are trying to cause interference withthe possession and enjoyment, the suit was filed for declaration of title andalso for injunction. It was further pleaded that the defendantshave no capacity to purchase the land.

The defendants filed written statement denying most of the allegationsabout the claim of the plaintiff that he is innocent and illiterate and that thedefendants have no capacity to purchase the properties and that thedocuments are obtained by fraud and coercion and thereby they are vitiated.According to the defendants, the plaintiff has executed documents voluntarilyand for consideration and there are no grounds to challenge the above saletransactions. Scribe and attesters are respectable people. According to thedefendants, the second defendant owns a small amount of debt to one M.Venkata Satyam and when he resorted to unnecessary suit, he has soughtfor instalments. The second defendant is an ardent agriculturist and cultivatedlands on lease. He has saved money and lent to others. He has got soundfinancial capacity. The defendants have been in possession and enjoymentof the property and the suit as framed is not maintainable. The court fee paidis not correct. Therefore, the suit is liable to be dismissed.

On the basis of the above pleadings, necessary issues have beenframed by the lower court and on behalf of the plaintiff PWs.1 to 8 wereexamined and marked Exs.A-1 to A-17. On behalf of the defendants, DWs.1to 4 were examined and marked Exs.B-1 to B-36. Ex.X-1 was also marked onbehalf of the plaintiff.

After considering the evidence on record, the learned Senior Civil Judgedecreed the suit of the plaintiff. As against the said judgment, AS No.2457 of1986 was preferred by the defendants and the learned single judge of thiscourt by judgment dated 25-09-2000 allowed the appeal and dismissed thesuit of the plaintiff.

Aggrieved by the said judgment, LPA was preferred and a learnedDivision Bench of this Court by the judgment dated 30-11-2000 dismissed theLPA. As against the dismissal order, the plaintiff has preferred SLP, beingSLP NO.2362 of 2001, to the Hon’ble Supreme Court and the SupremeCourt in its order dated 19-02-2001 set aside the judgment dated 30-11-2000in the LPA and finding that the order under challenge needs to be heard in agreater detail and remanded the matter.

We heard the learned counsel for the appellant Sri VedulaVenktaramana and Sri N.Rama Sarma, for the respondents touching on allthe aspects involved in the case.

The points that arise for consideration are:-

(1) Whether the plea of the plaintiff that the documents wereobtained under coercion and fraud is true?obtained under coercion and fraud is true?

(2) Whether the alleged documents are valid and binding on thedefendants and plaintiff?defendants and plaintiff?

(3) Whether the suit for declaration filed by the plaintiff is tenable?(4)Whether the judgment of the learned single judge dismissingthe plea of the plaintiff calls for any interference?(4)Whether the judgment of the learned single judge dismissingthe plea of the plaintiff calls for any interference?

(5) To what relief?

Before considering the rival contentions of both parties, a plea wasraised before the lower court that the suit one being filed for declaration of titleto the property without seeking a relief of cancellation of document is not validsince the challenge on the sale deeds Exs.B-1 and B-2 said to have beenexecuted by the plaintiff in favour of the first defendant are said to have beenobtained under coercion and fraud and thereby they being voidabledocuments. The learned Senior Civil Judge found though the sameis one fordeclaration of title, it is based on the attack of the validity of the sale deedsand therefore the suit as framed cannot be faulted. The same contention wasrepeated before the learned single judge and he also took the same viewholding that there is no need to seek cancellation of the documents. Thesame contention was feebly raised by the learned counsel for therespondents, since it is a legal aspect we wish to answer the same. It isneedless to say that there is a difference between a void document and avoidable document. The law is well settled that in case of a void document,there is no need to get it set aside as the party can ignore it. So far as thevoidable document is concerned, the party to a document if he feels that hisrights are threatened, he has to seek for a cancellation of the same. In thisconnection, it is useful to refer to Section 31 of the Specific Relief Act,1963,which reads as under:- Section 31.When cancellation may be ordered.--- (1) Anyperson against whom a written instrument is void or voidable, and whohas reasonable apprehension that such instrument, if left outstanding,may cause him serious injury, may sue to have it adjudged void orvoidable, and the Court may, in its discretion, so adjudge it and order itto be delivered up and cancelled.

Therefore, even in case of void document or voidable document as per theabove provision, a person may sue for setting aside of the same. In case ofvoid document, it is useful to refer the decision reported in Sanjay KaushishVs.D.C.Kaushish and others([[1]])whereunder in para.43 of the judgment, itwas observed as under:- “ Be that as it may, in my view, the well settled principle of law isthat if a particular document or decree is void the person affected bythe said document or decree can very well ignore the same and file asuit seeking substantive relief which may be available to him without

seeking any declaration that the said decree or document is void orany consequential relief of cancellation of the same.”

In fact, it is the consistent view of the courts with regard to voiddocuments. In this case, the document as such is not void since it wasexecuted by the plaintiff but the challenge is on the ground that it was not outof free will and it was by fraud and coercion. The suit was filed by the plaintifffor a declaration of his title to the property and injunction. It is needless to saythat while considering the relief in any suit the court has to consider theallegations in the plaint and grant relief. If in substance, the allegations in theplaint clearly goes to show that as to how the documents were obtained andnot enforceable being vitiated and a declaration is sought for title, the courthas to take into consideration such allegations while granting the relief and adeclaration if granted by the court is substantially a declaration about thebinding nature and validity of the sale transactions.

It cannot be lost sight that a suit for declaration of title to be decided bya Court takes into its fold, consideration of several factors as to how theplaintiff is entitled for declaration of title. In such cases the plea of thedefendants about the validity and binding nature and enforceability of anydocument defeating the title of the plaintiff have also to be considered. Insuch cases, the court naturally views the evidence on both sides leavingapart the frame of the suit. Therefore, the lower court found that thoughspecific cancellation is not asked, the declaration of title is as good as a reliefof cancellation of the sale deeds and found that the suit is not bad.

The only impediment in cases of voidable document is the question oflimitation and in this case there is no such problem since the suit is filedwithin three (3) years from the date of the alleged execution of the sale deeds.Therefore, we hold that the suit for a declaration is more exhaustive todetermine the title or validity of the transactions and when the relief ofdeclaration of title is granted, it is in substance ignoring or setting aside thetransactions under dispute though no separate prayer is made forcancellation of the documents. Many a time it so happens in a suit fordeclaration of title apart from challenges to the alienation against somedefendants, there may be connected issues to be decided different to theother parties to the suit. Therefore, the suit for declaration of title is more comprehensive and the objections sought to be raised about themaintainability does not find any strength.

In this case, it is useful to refer to a decision reported in Vithoba Bhanji and others Vs. Vithal Sakroo and others([[2]])wherein it was held asunder:- “ in order to decide whether the plaintiff’s suit was one which wasexclusively a suit for a bare declaration that the alienation is notbinding upon them, or whether in essence, it is a suit for any furtherand better relief, it will be necessary to scan the allegations in theplaint with some care and analyse the substance of the plaintiff’sclaim. In order to see the substance of the plaintiff’s case, it is notenough for a Court to consider the mere allegations that the plaintiffhas chosen to make but the Court must go behind the mere form andverbiage of the plaint and ascertain what indeed is the true relief whichthe plaintiff is asking for.”

It is needless to say that the settled proposition of law is that theprovisions under Section 34 of the Specific Relief Act,1963 are notexhaustive and the court’s power to exercise discretion in granting adeclaratory decree are wide. In this connection, it is useful to refer to adecision of the Supreme Court in Rama Raghava Reddy Vs. SeshaReddy([[3]]) which was also followed subsequently in Supreme GeneralFilms Exchange Limited Vs. His Highness Maharaza Sir Brijnath SinghjiDeo of Mahiar ([[4]]). In this case it is not in doubt that the plaintiff is seekingdeclaration of his legal right and entitlement to the immovable property andtitle as such. It cannot also be contended that there is no further relief sincethe plaintiff being in possession of the property claims relief of injunction.Earlier there used to be a conflict as to the valuation to be adopted by thecourt in a suit for cancellation of the document or a decree and the suit fordeclaration of title. But the law is new well settled Sofar as the court fee payable in a suit for cancellation of sale deed isconcerned, as per the recent judgment of our High Court report in 2010 (5)ALT 96 (D.B), it is not on consideration that is mentioned in the sale deed butit shall be on the market value of the property thereby showing that theamount of court fee will be equivalent to the court fee payable on a suit fordeclaration of title, which also takes into consideration the market value of theproperty. Further more in a suit for declaration of title, there will be several aspects to be considered by a court against the several parties to the suitapart from the validity of the sale transaction.

As rightly found by the lower appellate court coercion and fraud has to bepleaded and proved. Sofar as the plea of coercion is concerned, except astatement of confinement on 06-04-1978 and beating, there are absolutely noother facts attributed. The plea is very vague to attract the ingredients ofcoercion or any fraud in bringing about the documents. Assuming to be thatthe plea taken by the plaintiff is sufficient, the question is about the burden ofestablishing the same and there can be no dispute about the fact that theburden is on the plaintiff to prove either coercion or fraud exercised on him. Evidently, both the courts found that there is no direct evidence of proving theabove facts. The difficulty of the second plaintiff can be understood by thefact that the first plaintiff who is said to be the victim was not available forgiving evidence and the information is only for the second plaintiff said tohave been given by the first plaintiff. Added to that none of the personsassociated with those documents were examined on behalf of the plaintiff.Therefore, the oral evidence attacking the document is lacking and the lowercourt has come to a conclusion on circumstances available on record tocome to a conclusion that the document is vitiated. Each of the circumstancefound by the lower court was further analysed by the learned single judgeand discarded the circumstances.

In fact the learned counsel for the appellant has also reiterated all thecontentions, which found favour with the lower court and tried to impress thatthe trial judge has taken a reasonable and correct view of the matter.

The first circumstance the learned trial judge took into consideration wasthat the second defendant is not capable of purchasing the property and theconsideration was not paid before the Sub-Registrar and the seconddefendant as DW.1 claimed that he is only an agriculturist and purchased theproperty from his agricultural income for which there is no evidence. Reliancewas also placed on Ex.A-16, which is an affidavit given by the seconddefendant in O.S.No.431 of 1977 whereunder the second defendant pleadedfor instalments @ 25/-. Subsequently, the amount was also not paid. Thecourt also considered that the defendants admitted to have borrowed frombanks earlier to Exs.B-1 and B-2 and he was repaying the debts. The seconddefendant attending to coolly and he claims exporting baskets of mangoes for which there is no proof. Touching on this aspect, the learned single judgefound that it is not uncommon for the Judgment Debtors to plead forinstalments in spite of financial capacity and judicial notice can be taken ofthe fact that agriculturists have a penchant for the purchase of the landsadjacent to their lands, when offered for sale, even by borrowing the amountsfrom others. Further more, it is useful to refer that in the plaint no specificallegation about the instalment decree was made and it is only stated by thedefendant in his written statement which is sought to be taken advantage bythe plaintiff. There is nothing to show that a document is invalidated by themere fact that consideration was not paid before the Sub-Registrar. In manytransactions it happens so, it is not that all persons possessed of the cash orliquidity acquires the property and it many times happens that people eventhough do not have money, acquires the property by any source which theycan avail. All the contentions raised by the plaintiff fails, if we are to say forthe single reason that if the second defendant is not a solvent, one fails tounderstand as to how he could have lent a sum of Rs.5,600/- in 1977 which isnot a small money and as to how he could have believed the seconddefendant and given the properties on lease to him in 1977. These thingswould not have been accommodated by the plaintiff if the second defendantis a man on street without any liquidity or solvency. Therefore, the abovecircumstances referred above clearly shows that the contentions of theplaintiff and inference drawn by the learned trial judge are far from reality andhave been rightly ignored by the learned single judge. It is people who areeager to earn money works be as a labourer, be by a selling mango basketsor by cultivation of lands. This circumstance shows the attitude of the seconddefendant to earn and save.

The failure of the defendants to produce a discharged promissory noteas found by the lower court is irrelevant. Evidently, when a promissory notehas been discharged it will be given back to the executants of the promissorynote and it will not be kept with the holder of the promissory note. Therefore,when the consideration under the promissory note was given dischargeunder the sale, the promissory note will be returned to the first plaintiff andthere is absolutely no reason for examining the scribe or attesters or toproduce the said promissory note by the second defendant.

The learned Senior Civil Judge has taken into consideration the case of

the plaintiff that there was no necessity to sell the property and the first andsecond plaintiffs are only members of the family and they have no children. Itwas also found that in Exs.A-3 to A-9 up to 1977 the plaintiff has purchasedthe property. The above purchases may be true. The learned Senior CivilJudge failed to take into consideration the allegations in the plaint that thefirst plaintiff in the year 1977 sold his house property and further given up theown cultivation and was leasing the properties to others and shifted toChandragudem and agriculture was discontinued after 1975-76. Therefore, itis not as though that the first plaintiff was acquiring the properties only and hewas also disposing. Further more, after the end of agricultural season on1975-76, he had no cultivation and the second defendant was inducted intopossession of the property as lessee. It is not for us to consider the prudenceof the first plaintiff as to why he has resorted to sale of the property. Thereason is obvious since he had no children, cannot look after the cultivation,might thought of disposing of the properties.

The learned Senior Civil Judge found the circumstance that the firstplaintiff was absent form the village for a period of six months, which fortifiesthe case of the plaintiff about the alleged circumstance of extracting thedocuments. According to the trial judge, he has taken it for granted that from06-11-1978 onwards indisputably the first plaintiff was not in Chandragudemand in the caveat application (Ex.A-17) the second defendant alleged thatfrom 06-04-1978, the second plaintiff was absent. Allegations in the saidaffidavit that second plaintiff has given a report against the second defendantfor the missing of the first plaintiff and that the police arrested the seconddefendant and the first plaintiff was brought to Mylavaram Police Station andthe second defendant apprehended a suit. Therefore, the learned SeniorCivil Judge has taken into consideration that the version set up by the firstplaintiff is true.

Negativing this conclusion arrived at by the learned Senior Civil Judge,the learned single judge found that Exs.B-1 and B-2 were executed ondifferent dates with a clear gap of more than one month and PW.1 stated thatthe deceased did not take the promissory note executed by the seconddefendant and further she sent a word to the second defendant through herfather and the Sarpanch and that the second defendant told them that thedeceased went to his relatives house and would return in four or five days.

The learned single judge also found that she did not inquire as to whether thesecond defendant paid the money or not. The learned single judge alsofound that 22 or 23 days after the deceased left the house and as he did notreturn, she gave a report to the police at Mylavaram and that the report wasdrafted by one P.Venkateswara Rao and the police did not take any actionthereon. It is also found by the learned single Judge that the saidP.Venkateswara Rao was not examined and the report said to have beengiven by PW.1 is also not produced before the court. Further more, as can beseen from the specific allegations in the plaint after the confinement of theplaintiff in between the date of two registrations of sale deeds, the seconddefendant and his major son fraudulently managed to take the pronotesincluding the one executed by the second defendant in favour of the plaintifffrom the custody of one Shaik Ameena Bee of Chandragudem. The saidAmeena Bee who is an important witness was not examined to prove thetheory of the plaintiff.

Further more, keeping aside the allegations in the alleged caveat thespecific allegation in the plaint were that on 30-06-1978 the seconddefendant took the plaintiff from Eluru to Mylavasram police station andmanaged the police there and thereafter brought to Vijayawada and wasdetained at Vijayawada for about four months in the house of one D.Chinna. No effort was made to prove the above allegations nor was any attempt madeto summon the witness to prove the alleged facts. From the evidence ofPW.1, it is quite clear that the second defendant was very much available inthe village from the next day after he allegedly took the deceased from hishouse. It is difficult to believe that PW.1 being the wife of the deceased-firstplaintiff could have kept quite for a period of six months when he was said tohave been confined elsewhere. As can be seen from the contents in Ex.A-17, they do not reflect that the first plaintiff was away from the village from 06-04-1978. Evidently, this caveat petition was filed some time in November-1978 and not referring to anything after the alleged detention. In fact thecaveat (Ex.A-17) clearly reflects that the first plaintiff has executed the suitsale deeds on 06-04-1978 and on 29-05-1978 for valuable consideration.The caveat does not disclose as to when a complaint was given to theMylavaram Police Station and as to when first plaintiff was brought to thepolice station. Therefore, from Ex.A-17 which was issued in November, 1978

no inference can be drawn that the second defendant admitted the absenceof the plaintiff from 06-04-1978. Therefore, the conduct on behalf of the PW.1is unnatural when not reacting about the absence of her husband for a periodof six months. The evidence of the persons who are aware of the facts andwould have been aware of the facts is also not placed before the court.Therefore, we have no hesitation to hold that the conclusions arrived at by thelearned single judge discarding the finding of the trial court cannot befaulted. We may also further add here that though the first plaintiff is said tohave been confined from 06-04-1978 and come out on 31-10-1978 he himselfdid not give any complaint to the police station about the wrongfulconfinement or the coercion or the extraction of the documents as alleged byhim. Any prudent man would have definitely done so if the version is true.Even before filing of the suit also, no legal notice was given even though inpara 13 of the plaint it was alleged that after the release he has cancelled thedocuments on 03-11-1978 which are under Exs.A-1 and A-2 and informedthe developments of the same by sending the cancellation deeds to them.There is absolutely no evidence to prove the same. No registeredacknowledgment or accompanying letter is filed informing about thecancellation of the sale deeds. The conduct of the deceased himself isunnatural though the first plaintiff is said to have been beaten, causing injuryto his knee, there is no proof of medical treatment by himself or by any body. The theory of wrongful confinement and extracting the sale deeds also failsfor the simple reason that Exs.B-1 and B-2 are on different dates and ifanybody indulges in criminal activity, would not give such a scope of delayand there is absolutely no reason as to why the document should be taken ondifferent dates when a man is in physical custody and the custody beingforcible.

The other contention that the persons associated with the documents arelabourers or mutha mastries and their credibility cannot be accepted is far-fetched. Merely because they are living by their dignity of labour, theircharacter cannot be doubted while they have got their association with theparties. All these things may come as a lighter circumstances, which have nobearing at all when the theory propounded by the first plaintiff is fallacious. Soalso the mere fact that the documents were registered at Machilipatnam isalso no ground to hold that the appreciation is suspicion. Further more, the claim of the plaintiff that he is a weak intellect and not worldly-wise is alsounbelievable since he acquires properties, sell them and manages of his ownaccord and lends money to others. The learned single judge has rightly foundthat the evidence on behalf of the plaintiff is an ipse dixit and we have nohesitation in holding that best evidence which is available supporting thecontentions of the plaintiff is not produced.

Further more, we wish to add that PW.5 who is said to be associatedwith the documents Exs.A-1 and A-2 which are cancellation deeds hasclearly deposed that “I do not know whether the first plaintiff received any saleconsideration under those sale deeds. The first plaintiff executed two saledeeds. He told me about the sale consideration but I do not remember thoseamounts”. This statement of PW.5 is sufficient to hold that the documentswere executed by the deceased-first plaintiff for consideration. The evidenceof PWs.2 to 5 who are said to be associated with Exs.A-1 and A-2 does notclearly bring out the theory in the plaint since none of them have spokenabout the circumstance if any disclosed by the first plaintiff at the time ofexecution of the cancellation deeds. On the other hand, the evidenceadduced on behalf of the defendants shows that the consideration was paidin the presence of the witnesses who are examined by the defendants.

All the circumstance against the first plaintiff are further crystallises bythe single fact that the suit was filed on 13-11-1979 merely one year after therealisation of the fraud and coercion, even without issuing any notice. It isquite clear that in order to explain and attempt to avoid the liability on saledeeds, the theory of coercion fraud and confinement for six months wasdeveloped by the first plaintiff.

The learned counsel for the appellant contended that the court sitting inappeal should not have interfered with the discretion of the lower court andshould not have reappraised the evidence. We are not agreeing with theabove contention since interfering with the exercise of discretion is quitedifferent from the power of the appellate court to reassess the evidence andcome to a conclusion of its own. In this connection the powers under Order 41Rule 33 CPC are wide and poses no doubt about the power of the appellatecourt to reassess the evidence and pass appropriate orders or decrees.

On the above analyses, we find no merits in the appeal andaccordingly the appeal is liable to be dismissed. The points are accordingly answered.

The L.P.A is accordingly dismissed with costs.

___________________

GODA RAGHURAM,J

_______________________

N.R.L.NAGESWARA RAO,J

31 -12-2010LR copy to be marked: Yes(B/O)TSNR

[1]AIR 1992 DELHI 118[2]AIR 1958 BOMBAY 270[3]AIR 1967 SC 436[4]AIR 1975 SC 1810