- (1.) THE plaintiffs -appellants have filed this second appeal against the judgment and order dated 10.12.2013, whereby the VIII -Additional District Judge, Raebareli, allowed the First Appeal No. 7 of 2001 and set aside the judgment and decree dated 15.12.2000, passed by the Civil Judge (Junior Division), Raebareli, thereby dismissing the Regular Suit No. 456 of 1997.
(2.) THE second appeal was admitted on 18.12.2003 without formulating the substantial questions of law. Since the parties have already been heard, the following substantial questions of law are being formulated for the disposal of second appeal: - "1. Whether in case for cancellation of a sale deed allegedly executed by an infirm illiterate person aged about 90 years, a heavy burden lay on the defendant/ vendee to prove that the sale deed was executed by the vendor knowing full well the consequences; in other words the intelligent execution of the deed must be proved by the vendee? 2. Whether in a suit for cancellation of sale deed, the principal of law, the preponderance of burden of proof, looses its importance when both the parties adduce the evidence knowing full well the case of each other? 3. Whether the fraud is inferred from the circumstances obtaining in the execution of the document, as there can be no direct evidence? 4. Whether the first appellate court can interfere with the exercise of the discretion by the trial court; if the discretion has been exercised in good faith guided by judicial principles after giving due weight to relevant matters and without being swayed by irrelevant matters -
(3.) THE brief facts giving rise to this second appeal are that the plaintiffs/ appellants filed a suit for cancellation of sale deed with the allegation that the deceased Nanku was Bhoomidhar with transferable rights of land Gata Nos. 437, 625, 613, 620, 624, 622 and 556 situate at Mauja Saidanpur, Pargana, Tehsil and District Raebareli. The said Nanku was aged and infirm before his death and was being looked after by her elder daughter, namely, Smt. Vidya Devi, her husband and sons. On 14.3.1996 the son -in -law of the younger daughter of Nanku took him to his place for better treatment. On the very next day the wife of deceased Nanku died on account of the illness. Nanku was so much frightened with the death of his wife that he apprehended that his younger daughter would kill him also. He, therefore, came back to his house along with Vidya Devi. It was further alleged by the plaintiffs -appellants that the defendants/ respondents have always been trying to usurp his property by any means. The deceased Nanku received a notice from Tehsil in a mutation case from which he came to know that the defendant/respondent no.1 had applied for mutation on the basis of a sale deed allegedly executed by him. There upon Nanku filed objections before the Tehsil court and also filed a suit for permanent injunction and cancellation of sale deed. It was further pleaded by the plaintiffs/ appellants that the alleged sale deed was executed by playing fraud and the sale deed did not bear the thumb impression of Nanku and he has also not been paid any sale consideration. It was further pleaded by Nanku that after the death of his wife he was not mentally fit and as such the sale deed allegedly executed by him in favour of the defendants/ respondents is liable to be cancelled. The defendants/ respondents contested the suit and pleaded that they were in possession of the disputed property on the basis of the sale deed executed by Nanku. It was also stated by them that Nanku was mentally fit at the time of his death and as such the allegation of the plaintiffs/ appellants to the effect that Nanku was not able to understand anything is baseless. Vidya Devi and Narain Dei are real sisters. Vidya Devi had already purchased some property but when Narain Dei purchased the property from her father, Vidya Devi started making false allegations against her. The sale deed was executed after paying sale consideration and the sale deed was registered before Sub Registrar, after following the procedure of registration. In view of the aforesaid pleadings it was prayed that the suit for cancellation be dismissed. The original suit was field by Nanku himself but during the pendency of the suit Nanku died and in his place, the plaintiff/ appellants were substituted.;