- (1.) MRS. Poonam Srivastava, J. Heard learned counsels for the parties.
(2.) THE instant second appeal has been filed against the judgment and order dated 19. 11. 1981 passed by the VIth Additional District and Sessions Judge, Varanasi in Civil Appeal No. 121 of 1981 reversing the judgment and decree of the Trial Court dated 26. 2. 1981 in Original Suit No. 3 of 1978. Civil Suit was instituted by Ram Adhar alias Rama and Hari Nath, minor adopted son of Ram Adhar alias Rama claiming relief for cancellation of sale deed dated 31. 10. 1977 registered on 14. 11. 1977 in favour of Ram Sagar Pandey and others, defendant-respondents. THE plaintiff No. 1 died during the pendency of the suit on 9. 8. 1978 leaving behind only adopted son namely Hari Nath, appellant. Substitution application was allowed 'on 24,7. 1978. Two written statements were filed, one by defendant Nos. 1 to 5 on 21. 3. 1978- and the other by defendant Nos. 6 to 9 on 30. 8. 1978. THE suit was decreed by 13th Munsif, Varanasi vide its judgment and decree dated 26. 2. 1981 which was challenged in civil appeal filed by Virendra Nath Pandey and others. THE first appeal was allowed by the District and Sessions Judge, Varanasi setting aside the judgment and decree passed by the learned Munsif, Varanasi. THE judgment of the lower appellate Court is challenged in the instant second appeal which was admitted on the following substantial question of law: "whether the judgment of the lower appellate Court is vitiated by mis placing the burden of proof entirely on the plaintiff and also reversing the finding of the trial Court which is based entirely on the appraisal of the oral evidence". The submission of the counsel for the appellant is that the lower appellate Court has illegally dismissed the plaintiffs suit on wrong assumption of fact. The sale deed was registered one and therefore, there is presumption of correctness. Since it is an official act and protected under the provisions of Evidence Act as well as Indian Registration Act. The next ground of challenge is that the lower appellate Court while allowing the appeal failed to reverse the specific finding of fact which was based solely on appreciation of the oral testimony of the witnesses. It is settled law that the Court where the oral evidence is recorded, is in a better and advantageous position to observe the demeanor of the witnesses and, therefore, the lower appellate Court was liable to confirm the finding of the trial Court. It is also argued on behalf of the appellant that the trial Court has recorded a finding and arrived at a conclusion while deciding Issue No. 2 that the statement of the defendant witnesses particularly DW-1 and DW-2 are contradictory and they have failed to prove the pleadings in the written statement so far it relates to the exchange of consideration on the date of alleged sale deed. Learned counsel has emphasized that there can hardly be any evidence available for proving the allegation of fraud which was specific pleading in the plaint and it was incumbent on the Court below to examine material evidence available on record while reaching a conclusion which was contrary to the trial Court. The findings of the trial Court have not been reversed by the appellate Court with regard to mental status of the plaintiff. The Court also ignored the material fact that previously the plaintiff-appellant Hari Nath instituted original suit No. 1 of 1977 seeking relief for permanent injunction against the plaintiff No. 1 Ram Adhar alias Rama restraining him from executing any sale deed of the disputed property. Since the said suit ended in the terms of compromise, the Court was liable to take this fact into special consideration. It is further submitted that the lower appellate Court misinterpreted and misconstrued the oral as well as documentary evidence available on record and the ratio settled in the case of Hans Raj Gupta v. Dehradun Mussoorie Electric Tramway Co. Ltd. and others, AIR 1940 PC, 98 has completely been overlooked. Counsel for the appellant states that it was the duty of the lower appellate Court to consider and examine whether the defendant-respondents have been able to discharge their burden and establish due execution of the sale deed which was specifically denied by the plaintiff on the ground of fraud etc. The findings stands vitiated on the ground that the benefit available to a Pardanashin lady should also be made available in the instant case. The Court should have considered that the transferee was dealing with an aged and infirm person suffering from physical disability and therefore, genuineness of the transaction and burden of proof lay heavily on his shoulders but has wrongly been placed on shoulders of the plaintiff. Reliance has been placed on a number of decisions; S. V. R. Mudaliar (dead) by LRs. And others v. Mrs. Rajabu F. Buhari (Dead) by LRs. , AIR 1995 SC, 1607. In this case, Hon'ble Supreme Court held that the reasons given by trial Court for arriving at a certain conclusion must be considered by appellate Court. Paragraph 15 of the said judgment is quoted below: "15. There is no need to pursue the legal principle as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Ran; Hemant Kumar; v. Maharaja Jagadhindra Nath, (1906) 10 Cal WN 630, wherein, while regarding the appellate judgment of the High Court of Judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge. "
(3.) THE next decision relied upon is, Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 SC 114. Paragraph 8 of the said judgment is quoted below: "in an appeal against a trial Court decree, even when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance or improbability to displace its opinion as to where the credibility lies. " The next decision relied upon by the counsel is, Daya Shankar v. Smt. Bachi and others, Al R 1982 All 376. Paragraphs 6 and 9 of the said judgment are quoted below: "6. The law presumes, prima facie, in favour of the deeds being duly executed. So ordinarily the person who challenges the validity of a transaction on the ground of fraud, undue influence etc. and charges his opponent with bad faith has to discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who relies on such deed if a relationship of "active confidence" or fiduciary relationship subsists between the contracting parties, such as guardian ward, agent and principal, doctor and patient, spiritual adviser and disciple, trustee and cestuiqui turst etc. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus Section 111 of the Evidence Act has to be read along with the provisions of Section 16 of the Contract Act (1887) 36 Ch D 145 and Halsbury's Laws of England Third Edn. Vol. 17 para 1297, p. 672, Foil. 9. The word 'fiduciary' as contained in the Webster's New International Dictionary connotes "a person in trust, a person or thing holding something in trust. " The other meaning given in the dictionary is "of or pertaining to a trust, pertaining to or of the nature of trusteeship". Thus whenever it is brought to the notice of the Courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the Courts always insist on placing the burden of proof on the person who was in such advantageous position to establish that he did not abuse his position. The principle was originally confined to cases of Pardahnashin ladies who manifestly suffered from such inhibition and limitation. There is no reason why the said principle should not also embrace within its sweep the cases of males who by reason of their apparent physical or mental incapacity or infirmity or being placed in circumstances where they are greatly amenable to the overpowering influence of another person are induced to enter into conveyances and transactions relating to their property. The burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith. ";