# settlement of fisheries rights. In Similesh Kumar v. Gaon Sabha Uskar Ghazipur and others; AIR

- **Citation:** (2006) 1 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-22
- **Case number:** Second Appeal No. 2904 of 1986
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/settlement-of-fisheries-rights-in-similesh-kumar-v-gaon-sabha-uskar-ghazipur-40740
- **Pages:** 12

## Headnote

Code of Civil Procedure-180 S-Section
100-Second Appeal-Substantial question
of law-explained-a question law-directly
and substantially affecting the rights of
parties-not covered by the decision of
Supreme Court or Privi Council of the
Federal
court-document
obtained
by
playing fraud and mis representation
render the deed as voidable documentLower appellate Court side tracking
these issues-wrongly interpreted as gift
deed-ignoring the reasons given by Trail
Court-held-lower court directing and
substantially effected the rights of the
parties-hence
rightly
interpreted
as
substantial question of law.

Held: Para 20

In view of the aforesaid proposition and
also in the circumstances and facts
available on record, this appeal appears
to have enough merit and the judgment
and decree passed by the appellate court
requires to be set aside and thus the
appeal should be allowed.
Case law discussed:
AIR 1971 Alld-151
AIR 1999 SC-2213
J.T. 2005 (7) SC-630
AIR 1953 SC-521
AIR 1962 SC-1314
AIR 1982 Alld-376
AIR 1968 SC-956
1979 R.D.-212
1992 RD-231

## Text

1 All] Ram Kumar and others V. The State of U.P. and others
393
37. Questions No.6 and 7 both are
answered in affirmative. The Civil Court,
meaning thereby, Courts dealing with
suits and such matters would not have
jurisdiction to consider matters regarding
settlement of fisheries rights. In Similesh
Kumar
Vs.
Gaon
Sabha
Uskar
Ghazipur
and
others;
AIR
1977
Allahabad 360, a Full Bench of this Court
took the view that validity of lease
granted under 1950 Act is final which
bars civil suit or any other proceeding in
the civil Court.

38. While considering the question
No.8, it is necessary to take note of an
earlier Five Judges Full Bench judgment
of this Court in Smt. Guddi Vs. State of
U.P. and others; (1997) 2 UPLBEC 872.
The Full Bench in Smt. Guddi's case
(supra) considered one of the questions as
to whether right created under the
instrument in question of catching the
fish, in favour of the petitioner from
Pachaura Tank reservoir for a period of
five years on payment of premium is a
lease within the meaning of Section 2(16)
of the Act, chargeable to stamp duty in
accordance with Article 35 of Schedule 1B of the Stamp Act in the light of the
pronouncement of the Supreme Court
referred to therein or it is a licence
chargeable to stamp duty under Article 5
(c) of Schedule 1-B of the Act as held by
the three Judge Special Bench of this
Court in Board of Revenue Vs. Mulak Raj
(supra). The Full Bench in paragraph 10
of the said judgment held that right to
catch any carry away fish from a
tank/reservoir for a specified period for
consideration is immovable property as
defined in Section 3 (26) of the General
Clauses Act and it may be made only by a
registered instrument under Section 107
of Transfer of Property Act and as such
requires stamp duty under Article 35 (b)
of Schedule 1-B of the Indian Stamp Act.

39. The settlement of fishery rights
is settlement of property and is a right in
immovable property in the nature of a
"profit a prendere" These rights have
always been held as registrable and do not
cease to be so merely because the grant is
being made by or at the instance of the
State Government. Question No.8 is
accordingly answered in the affirmative.
However, we also make it clear that
fishery right being obviously for purposes
which are agricultural within the meaning
of Section 117 of the Transfer of Property
Act, it would be open to the State
Government
to
issue
appropriate
notification for taking those outside the
purview of compulsory registration. If
such notification is issued, the same
would be followed, but without such
notification the necessity of registration
remains.

With these answers, the matter will
go back to the respective Benches having
jurisdiction
for
disposal
thereof
in
accordance with the views that we have
expressed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Second Appeal No. 2904 of 1986

Ram Lakhan and another ...Appellants
Versus
Ghurahoo

 ...Respondent

Counsel for the Appellant:
Sri R.B. Pradhan
394 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Sri R.S. Ram

Counsel for the Respondents:
Sri S.K. Verma
Sri Siddharth Verma

Code of Civil Procedure-180 S-Section
100-Second Appeal-Substantial question
of law-explained-a question law-directly
and substantially affecting the rights of
parties-not covered by the decision of
Supreme Court or Privi Council of the
Federal
court-document
obtained
by
playing fraud and mis representation
render the deed as voidable documentLower appellate Court side tracking
these issues-wrongly interpreted as gift
deed-ignoring the reasons given by Trail
Court-held-lower court directing and
substantially effected the rights of the
parties-hence
rightly
interpreted
as
substantial question of law.

Held: Para 20

In view of the aforesaid proposition and
also in the circumstances and facts
available on record, this appeal appears
to have enough merit and the judgment
and decree passed by the appellate court
requires to be set aside and thus the
appeal should be allowed.
Case law discussed:
AIR 1971 Alld-151
AIR 1999 SC-2213
J.T. 2005 (7) SC-630
AIR 1953 SC-521
AIR 1962 SC-1314
AIR 1982 Alld-376
AIR 1968 SC-956
1979 R.D.-212
1992 RD-231

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. This second appeal of the plaintiff
has been filed against the judgment and
decree dated 20.9.1986 passed by the
lower appellate court (IInd. Addl. District
Judge, Ghazipur).

2. The appellant had filed a suit for
cancellation
of
a
sale-deed
dated
10.12.1984 on several grounds taken in
the pleadings including the ground that
the sale had been obtained by practicing
fraud upon him which could be easily
manipulated by the defendant/respondent
on account of his old age and also on
account of his being illiterate. He further
stated that no consideration in the present
transfer by sale had passed from the
defendant to him and he was cleverly
deceived
by
the
respondent,
who
represented to the plaintiff that he wanted
a surety bond to be executed by him to
indemnify the defendant towards the
payment of some dues to the Government.
The plaintiff was also given to understand
that in case he did not execute the surety
bond, the defendant/respondent might
face arrest and detention for such nonpayment of the dues. After having been
fully convinced by the crafty talks of the
defendant and on account of being under
his influence from before, the plaintiff
agreed to execute the surety bond and he
was taken to the court premises where
instead a bond this sale-deed was got
executed by fraud and misrepresentation.

3.

The
defendant/respondent
contested the suit and filed a written
statement disclosing certain facts and
pleading inter alia that the sale-deed in
question was not got executed by him by
practising
fraud
or
any
sort
of
misrepresentation nor did he unduly
influence the plaintiff, an old man of
seventy years of age. He further pleaded
that the plaintiff had three daughters only
who had been married and finding himself
all alone and lonely he started living with
the defendant who happens to be his
nephew. He was taking his meals and
1 All] Ram Lakhan and another V. Ghurahoo
395
staying with the defendant and after the
defendant joined a service he used to give
all money which he received as his salary
to the plaintiff only. The plaintiff's
daughters and his sons-in-law did not take
any care of him and as such the defendant
had been looking after his uncle (plaintiff)
with utmost sincerity and care. Since the
defendant's father had died and he had
separated from his other brothers, his
marriage was also got arranged and
conducted by the plaintiff himself. The
defendant's wife also took maximum care
of plaintiff's comfort while he was
residing with her. Later on since the
plaintiff was extremely pleased with the
care and comfort accorded to him by the
defendant and the wife he told his
daughters that he was going to transfer his
entire property to his nephew (defendant).
The defendant further pleaded that in the
circumstances as stated above, this saledeed was executed and no element of
fraud had been there in this transfer of
plaintiff's property through the impugned
sale-deed.

4. On the pleadings of the parties,
the trial court framed as many as five
issues and in the findings of issues No. 1
and 5 taken together it was held that no
consideration passed for the disputed sale
of property and that was the only property
held and possessed by the plaintiff as a
source of his livelihood and virtually there
was no occasion in such circumstances to
transfer the property showing it to be a
transaction of sale. Accordingly the
learned trial court having believed the
story set up in the plaint about fraud and
misrepresentation
played
upon
the
plaintiff by the defendant found that the
sale-deed in question was liable to be
cancelled and accordingly after giving
formal finding on the other issues decreed
the suit with costs.

5.

The
respondent/defendant
preferred an appeal before the lower
appellate court against the judgment and
decree passed by the trial court in which
the findings, as had been recorded by the
trial court that the sale-deed in question
was
a
result
of
fraud
and
misrepresentation practised upon the
plaintiff, were reversed and it has been
held that the document was executed by
way of love and affection which the
plaintiff possessed for the defendant. The
parties are uncle and nephew and since
the plaintiff (uncle) was residing for the
last several years with the defendant this
execution of the sale-deed transferring the
property belonging to the plaintiff was a
natural and phenomenal result of that
relation. The lower appellate court has
though specifically concurred with the
findings recorded by the trial court that no
consideration in the present sale as
mentioned in the sale-deed, had passed,
yet the sale-deed could not be set aside in
view of the provisions of Section 25 (i) of
the Contract Act. Accordingly the appeal
was allowed by the lower appellate court
and the judgment and decree of the trial
court was set aside. Consequently the suit
of the appellant was dismissed.

Aggrieved by the judgment of the
lower appellate court this second appeal
has been preferred.

6. While admitting this appeal, the
Court adopted questions No. 3 and 4 as
referred to in the memo of appeal as the
substantial questions of law which are
reproduced as below:
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
1.
Whether the lower appellate court
is right in not considering the
fraud
played
upon
the
plaintiff/appellant
and
the
inducement on him made by the
defendant?
2.
Whether
the
principle
of
Pardanashin lady will apply in
case of seventy years old illiterate
villager as well and the burden lies
upon the defendant to prove due
attestation of the document?

FINDINGS

7. A perusal of the judgment of the
lower appellate court shows that it had
concurred with the findings recorded by
the trial court that no consideration in the
present transaction of sale had passed
from the vendee to the vendor. Taking the
protection of Section 25 (i) of the
Contract Act, the learned counsel has
tried to emphasise that even if no
consideration in the present case had
passed for the transfer of the property, it
will not make any difference in view of
Section 25 (i) of the Contract Act. This
transfer is by virtue of natural love and
affection between the parties. The learned
counsel further tried to impress upon the
Court that not passing of consideration in
such agreements does not render the
transaction as void. In this context he has
referred to the case law of Smt. Mania
Vs. Deputy Director of Consolidation,
AIR 1971 Allahabad 151.

8. It would be relevant to refer to
Section 25 (i) of the Contract Act which is
reproduced below:

"An
agreement
made
without
consideration is void unless -

(i) it is expressed in writing and
registered under the law for the time
being in force for the registration of
documents and is made on account of
natural love and affection between
parties standing in a near relation to
each other or unless."

9. The lower appellate court has
considered the pleading and the evidence
led from the side of the defendant that in
lieu of the service and comfort accorded
to the plaintiff by the defendant in last
several years while living with him this
document of transfer of property by sale
was executed. Accordingly the findings
have been recorded that the sale-deed was
executed by way of love and affection
between the uncle and the nephew and the
agreement was protected under Section 25
(i) of the Contract Act. A perusal of the
impugned sale-deed shows that it has
been executed in return of the sale
consideration of Rs. 22,500/- received by
the transferor. This part of the recital of
the sale-deed is admittedly false. In the
case of Smt. Manhia (supra), the Court
has taken the agreement questioned in that
case to be valid because it had been
arrived at between the parties by way of
certain reproachment and it was treated as
a gift. Here the defendant/respondent
himself in his pleadings has stated about
passing of certain consideration when in
para 6 of the written statement he states
that for the last eight years of his earnings
from the service had been given by him to
plaintiff/appellant. Of course it has also
been pleaded by the defendant in his
written statement that he had been looking
after his uncle (the plaintiff) who all
through, after the marriage of his
daughters, had been staying with him, but
at the same time reference to the passing
of consideration by way of money
1 All] Ram Lakhan and another V. Ghurahoo
397
regularly paid by him to the plaintiff has
also
been
given in
the
pleadings.
Therefore, the document in question has
to be treated as a sale-deed and
accordingly the argument for treating it to
be a document of gift cannot be accepted.
The recitals in the sale-deed are that as the
executant urgently needed money for
certain repayment of loan and also for
meeting his personal expenses and for that
purpose he intended to transfer the
property to the vendee for a sum of Rs.
22,500/-. In such circumstances, if the
consideration which has not passed for the
execution of such a sale-deed which is so
patent and also held by both the courts
below, it is definitely not a gift-deed and
it could not have been validly held to be a
transaction of gift executed by the
plaintiff
in
favour
of
his
nephew
(defendant) out of love and affection. An
express case of love and affection has
nowhere been taken by the defendant in
his pleadings except mere mention of
facts that he had been maintaining and
looking after his uncle (plaintiff) during
the last several years. It is stated in para 6
of the written statement that the plaintiff
before executing the transfer in his favour
had told his daughters that he was going
to transfer his property.

10. While arguing in the aforesaid
context, the learned counsel for the
respondents citing the case law of
Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar and others, AIR 1999
supreme Court 2213, has tried to
emphasise that even though a point of law
has not been pleaded specifically by a
party or is found to be assigned between
the parties in absence of any factual
format a litigant should not be allowed to
raise that question as substantial question
of law. The substantial question of law
would definitely arise when the first
appellate court has assumed jurisdiction
which did not vest in it. That question is a
question which is adjudicatable in the
second appeal.

11. As already observed in the
preceding paragraph that in the face of the
fact as pleaded in the written statement of
the respondent defendant and as also from
the documents (impugned sale deed) it is
not decipherable that at any point of time
this transaction of sale was ever treated by
the parties as a gift deed and the
provisions of Section 25 (1) of the T.P.
Act, were thus could not be attracted. The
trial court has held this document to be a
void deed on the ground that no
consideration in the transaction actually
passed from the vendee to the vendor.
From the discussions made in the
judgment by the trial court, it was found
that misusing the confidence reposed by
the appellant plaintiff in the respondent
defendant, the document in question was
got executed projecting it to be a surety
bond for indemnifying the defendant from
his liability and thus, avoiding his arrest
in pursuance to the recovery certificate
issued against him. A perusal of the
impugned appellate judgment shows that
at no place a proper discussion has been
made about the fact that this deed in
question while apparently being executed
as a sale deed could turn out, without any
specific pleading to that effect, to be a
deed of gift. The judgment also does not
have any discussion as to how and in what
circumstances the plaintiff who was
admittedly a man of about 70 years of age
and reposing confidence in the defendant
could execute a clear and patent sale deed
instead a gift deed. As per the judgment
of the lower appellate court, the appellant
plaintiff's evidence has been recorded and
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
he specifically stated before the court that
he was taken by the defendant to District
Hqrs. Ghazipur for purchasing some
clothes for him on the assurance that he
would obtain the clothes at cheaper rate
through him (defendant). The plaintiff
was told there at Ghazipur that some
repayment of Govt. loan is to be made by
the defendant which he is not able to
make for the time being and the plaintiff
may sign a surety bond or put his thumb
impression thereon to which he agreed. In
these circumstances, the document in
question was got executed. Actually the
evidence which was given by the plaintiff
is more than sufficient to cover the entire
pleadings
of
the
plaint
regarding
misrepresentation and fraud, which was
committed by the defendant while getting
the impugned deed executed by him. The
alleged fraud as described in the plaint, in
the
light
of
the
evidence
and
circumstances available, which has been
fully discussed by the trial court, does not
find proper discussion in the appellate
court's judgment while reversing those
findings. A sale deed on the face of it
when not executed after receiving the due
consideration, mentioned in the deed
itself, such document is definitely a void
document and the claim of its validity
could not have been upheld in the present
context by taking the help of Section 25
(1) of the Contract Act. Therefore, it is
apparent from the judgment of the lower
appellate court itself that it has not
considered all these circumstances and
facts in the light of the pleadings and
evidence available on record while
holding that the document was a valid
agreement duly executed by the appellant
plaintiff as a gift deed. The lower
appellate court was under legal obligation
while reversing the findings of the trial
court, to go into the substance of matter
and only then find out if the document
was a document of gift or sale. In no
otherwise manner such finding of the trial
court could be validly reversed and the
appeal could be allowed. Here the
findings of fact given by courts below are
not concurrent. The lower appellate court
has assumed the impugned sale as a
transaction of gift which it would not do
in the facts and circumstances available in
the case. This is nothing but a wrongly
assumed jurisdiction which did not vest in
it. The case law of Kondiba Dagadu
Kadam (supra) does not help out the
submission made on behalf of the
respondent.

12. In the case of Rajeshwari Vs.
Puran Indoria JT 2005 (7) SC 630, the
Hon'ble
Supreme
Court
while
summarising the case law of Raghunath
Prasad Singh Vs. Deputy Commissioner
of Pratabgarh, 54 Indian Appeals 126,
Dy. Commissioner Vs. Rama Krishna,
AIR 1953 S.C. 521 and Chunnilal Vs.
Mehta and sons Ltd. Vs. Century
Spinning and Manufacturing Co. Ltd.
AIR 1962 S.C. 1314, has propounded in
this context in the following words:

"Thus, it was accepted that a
question of law would be a substantial
question of law if it directly and
substantially affects the rights of the
parties and if it was not covered by a
decision of the Supreme Court or of the
Privy Council of the Federal Court."

13. Much emphasise has been given
by the learned counsel for the defendant
respondent that such questions involving
mixed question of law and facts are not to
be taken as a substantial questions of law
for the purpose of second appeal and such
1 All] Ram Lakhan and another V. Ghurahoo
399
question is beyond the scope of Section
100 C.P.C.

14. As I have discussed above that
the lower appellate court has taken up a
case of Section 25 (1) of Contract Act,
which has not been specifically pleaded in
the written statement and thus has given
the benefit of the same to the defendant
respondent for reversing the findings of
the
trial
court
and
dismissing the
plaintiff's suit. Besides that the lower
appellate court has also not, as discussed
above, considered the reasonings given in
the judgment of the trial court for holding
the questioned sale being a resultant fraud
and misrepresentation and has straightway
given a finding that the defendant proved
the questioned deed as a valid peace of
agreement. The reasonings and findings
recorded by the lower appellate court
cannot be justified by the case law of Smt.
Mania (supra)

15. In the aforesaid context the case
law of Rajeshwari Vs. Puran Indoria, JT
2005 (7) SC 630 is relevant to mention in
which the apex court in following two
paragraphs has suggested for restoration
of position in Section 100 C.P.C. prior to
1976 amendment and has observed that
there are instances when the first appellate
court merely, mechanically, confirm the
findings of fact rendered by the trial court
without an independent reappraisal of the
pleadings and the evidence in the case.
There are occasions when the High Court
feels constraint of Section 100 C.P.C. and
declines
to
interfere
though
such
interference is proper to render justice
between the parties. In the present case it
is not only a matter of mechanical
confirmation of the finding of fact by the
appellate court but it is a definite case of
carving out a case which is nowhere
inferable either form the deed or the
pleadings of parties. Thus, it is a
judgment of reversal given by lower
appellate court without properly justifying
the dismissal of the reasons given by the
trial court in its judgment. The paragraphs
6 and 7 of the aforesaid judgment are as
below:-

"6. Before parting, we feel that we
would be justified in pointing out that the
amendment brought to Section 100 of the
Code with effect from 1.2.1977 by Act 104
of 1976, has really not advanced the
cause of justice. Earlier, interference
could be had under Section 100 of the
code if the decision was contrary to law
or some usage having the force of law; or
the decision had failed to determine some
material issue of law or usage having the
force of law; or suffered from a
substantial error or defect in procedure
provided by the Code or any other law for
the time being in force, which may
possibly have produced the error or
defect in the decision of the case upon the
merits. The provision enabled the court to
correct errors of law or of procedure in
an
appropriate
case
and
even
unreasonable appreciation of evidence
could have been brought within the
contours
of
error
of
law
in
the
circumstances of a given case. But by
introducing the concept of "substantial
question of law" in Section 100 of the
Code, the right of the litigants to have a
decision after a reappraisal of the
relevant materials by the High Court has
been curtailed. Though, courts of first
appeal are made the final courts of facts,
there are instances when first appellate
courts merely, mechanically, confirm the
findings of fact rendered by the trial court
without an independent reappraisal of the
pleadings and the evidence in the case.
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Since a judgment of affirmance need not
be as elaborate as a judgment reversing
the decision of the court below, it is often
contended that the judgment of the
appellate court satisfies the requirements
of Order XLI Rule 31 of the Code. There
are occasions when the High Court feels
the constraint of Section 100 and
reluctantly declines to interfere though
interference would have been proper to
render justice between the parties. High
Courts are often confronted with an
argument that even if what was involved
was a mixed question of fact and law or
even a question of law, that did not
constitute a substantial question of law
justifying interference under Section 100
of the Code. Why not an error of law
committed by the appellate court be
corrected in second appeal? Why should
not a litigant have an opportunity of
having the decision in his case corrected
for an error of law by the High Court at
the second appellate stage? When a
substantial question of law as expounded
by this Court is only an open question of
law substantial as between the parties, a
restoration of the position as it existed
prior to 1.2.1977 does not appear to be
reopening of the door too wide. It must be
remembered,
that
now,
after
the
amendment of the Code by Act 22 of
2002, interference in revision under
Section 115 of the Code of Civil
Procedure,
1908
has
also
been
substantially curtailed. Even if the High
Court is satisfied that there would be
failure of justice if the order is allowed to
stand, the High Court cannot interfere
under Section 115 of the Code, in view of
the deletion of the particular proviso
which extended prior to the amendment.
Therefore, the High Courts cannot correct
errors that could lead to a mis-trial or a
finding of fact to be arrived at based on
an erroneous approach that is proposed
then and there by exercising a revisional
jurisdiction, even at the initial stage so
that at a later stage, a remand by the first
appellate
court
is
avoided.
The
curtailment of the right to interfere under
Section 115 of the Code has only resulted
in the High Courts being flooded with
proceedings under Article 227of the
Constitution of India challenging all sorts
of interlocutory orders. It is for the law
makers to consider whether it would not
be more appropriate to restore Section
115 of the Code as it existed prior to its
amendment by Act 22 of 2002 and confer
a broader right of second appeal as it
existed prior to the introduction of the
concept of substantial question of law into
Section 100 of the Code, by Act 104 of
1976.

7. It is true that it is in consonance
with public policy, to curtail a right of
 appeal (that too, a second appeal) so as
to ensure that a litigation attains finality
as early as possible. At the same time, it
has also to be ensured that justice,
according to law, is made available to the
litigants who approaches the court. Our
experience, as lawyers and Judges of
High Courts shows that more often than
not,
first
appellate
courts,
simply,
mechanically, reiterate what is stated by
the trial court and confirm findings of fact
rendered by the trial court without
making an independent reappraisal of the
pleadings and the evidence in the case as
they are bound to do as courts of appeal.
But even in such cases, the High Courts
find it difficult to interfere, though, they
do interfere, when the injustice caused to
the litigants is so apparent that the same
could not be overlooked and the judgment
under appeal allowed to pass muster.
There have also been occasions when the
1 All] Ram Lakhan and another V. Ghurahoo
401
High Courts had felt compelled to
interfere, notwithstanding the limitation
imposed by the wording of Section 100 of
the Code of Civil Procedure, and on
occasions such decisions have been
interfered with by this Court, on the
ground that the High Court has exceeded
its jurisdiction under Section 100 of the
Code of Civil Procedure. After all, the
purpose of the establishment of courts of
justice is to render justice between the
parties. Is it necessary to unduly curtail
the jurisdiction of the High Courts, either
under Section 100 of the Code of Civil
Procedure or under Section 115 of the
Code of Civil Procedure in that context?
Of course, the High Courts have to act
with circumspection while exercising
these jurisdictions. Certainly, it is for the
Parliament to take into account all the
relevant aspects. We are making these
observations only with a view to highlight
the position at has emerged in the light of
the amendments to Section 100 and 115 of
the Code of Civil Procedure as they are
now obtaining."

16. The point which has been
indicated in the second question framed
by this court that the plaintiff vendor
being old man of 70 years and illiterate
villager should be accorded the same
benefit as that of pardanaseen lady, the
law is settled on this point. It is true that
in a deed duly registered, there is legal
presumption of its correctness so the
original person who is challenging the
validity of transaction on the ground of
fraud and undue influence etc. the burden
of proof of such fraud etc. rests on him.
But a major exception to this rule is that
the initial burden would not be on the
party, who is old and illiterate challenging
the transaction and will, instead be cast on
the person who relies on such deed if
there exists any fiduciary relationship
between the parties. The possibility of this
relationship and probability of dominating
will over the challenging party arises
either directly from the very nature of the
relationship existing between the parties
or some times from a peculiar handicap or
disability from which that party suffers.
Section 111 of the Evidence Act read with
Section 16 of the Contract Act, the the
principle
enshrined
therein
is
also
extendable to cases where there is a proof
of a person dependent, by virtue of his
physical or mental infirmity or disability
on another party and the circumstances
have been proved to show that the other
party, taking advantage of such position,
has secured a deed or instrument for his
own benefit. In such cases a Division
Bench of this court in Daya Shankar Vs.
Smt. Bachi and others, AIR 1982
Allahabad 376, has held that the burden
to prove the genuineness of the deed lies
on dominating party and not on a person
challenging it. In this context the
following paragraphs of the decision of
Daya Shankar (supra) is quite remarkable
and is quoted as below:-

"In Parasnath Rai V. Tileshra Kuar,
1965, All. LJ 1080, Gangeshwar Prasad,
J. followed the decision of the Calcutta
High Court in Chinta Dasya V. Bhalku
Das, AIR 1930 Cal 591, wherein Mitter,
J. held, that rules regarding transactions
by a pardahnashin lady were equally
applicable to an illiterate and ignorant
woman,
though
she
may
not
be
pardahnashin.
We
are
unable
to
comprehend as to why the broad principle
which has been accepted and widely
applied in the numerous decisions to
which we have adverted should not also
embrace within its sweep the cases of
males who by reasons of their apparent
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 basic principle is the same and where
it is proved to the satisfaction of the court
either that the bargain was on the face of
it unconscionable or the executant was
the victim of physical or mental handicap
or that he was subdued by the complexity
of circumstances in which another person
had an upper hand, the burden must be
cast squarely on the person enjoying the
dominating position to show that he
secured the deed in good faith."

17. In the present case, the plaintiff
appellant was admittedly an old man of
70 years of age and as per the defendant's
case itself there did exist a fiduciary
relationship between the two. Since those
days the plaintiff was dependent on the
defendant and was living with him, he
was obviously suffering from these
handicaps and thus, the defendant was
definitely in a dominating position being
his nephew. The transaction is also
unconscionable as being a sale deed of the
entire property held by the vendor, the
only source of his livelihood. By this
transfer the plaintiff is also found to have
excluded his all the three daughters from
getting any share in the property. In such
circumstances, the initial burden was on
the defendant to prove that the deed was
valid and had been executed in all fairness
and
bonafide
and
not
otherwise
influenced
by
any
fraud
or
misrepresentation. The mere observation
of the lower appellate court that since the
defendant has come in the witness box he
actually has discharged his burden by
saying that he got the sale deed validly
executed, will not definitely be a finding
as
to
amount
holding
that
the
requirements of the provisions of Section
111 of Evidence Act read along with
provisions of Section 16 of the Contract
Act were in reality fulfilled. When there
was no finding recorded in favour of this
aspect of the matter by the trial court the
detailed findings should have been
recorded by the appellate court in that
regard.

18. Learned counsel for the
respondent/defendant while relying upon
the case law of Ningawwa Vs. Byrappa,
AIR 1968 SC 956 has further raised a
point that in the present case if the
contentions of the plaint are to be taken
on its face value, the transaction should be
treated as void and no decree for its
cancellation
as
sought
by
the
appellant/plaintiff
is
required to be
passed. He has tried to demonstrate from
the pleadings in the plaint that the deed in
question has been obtained by making
fraudulent
representation
as
to
its
character
and
the
fraud
allegedly
committed by the respondent defendant is
not a misrepresentation as to the contents
of the document and thus emphasised that
in the present case the suit was not at all
maintainable. The case, as has been taken
by the plaintiffs regarding questioned
deed, is that of void deed and such suit is
not maintainable in the Civil Court.
Learned counsel has further relied upon
the case law of Ram Roop Vs. Smt.
Budhiya, 1979 R.D. 212 and Indra Pal
Vs. Jagan Nath, 1992 R.D. 231 in same
context.

19. As per the plaint case the sale
deed in question was got executed by the
respondent defendant misrepresenting it
to be a document of security indemnifying
1 All] Ram Lakhan and another V. Ghurahoo
403
the defendant from repayment of Govt.
dues. But the contents of document are
otherwise stating it to be a sale deed after
having received the amount shown therein
as consideration. So far as the element of
fraud and misrepresentation is concerned,
it is obvious in the pleadings itself.
Whether the pleadings are squarely to be
categorized as denoting fraudulent and
misrepresentation as to the character of
document or as to the contents of
document, is a question which is in itself
unanswerable from the contents of the
deed. The facts were misrepresented to
the plaintiff by the defendant and taking
the plaintiff into his confidence and
dominating him by his position as such,
he got fraudulent deed of sale executed.
These mixed facts as demonstrated from
the circumstances as well as from the
contents of deed in question make the
document as one obtained by playing
fraud and misrepresentation as to its
contents also and that renders the deed as
a voidable document which requires to be
cancelled in law. The lower appellate
court side-tracking of these issues has
interpreted this document to be a deed of
gift and as per the discussions made
above, without going into other merits of
the evidence and attending circumstances
has actually ignored all the reasonings
given by the trial court in its judgment
and thus, has reversed it. The question
thus, so arises in this second appeal from
the facts and circumstances available in
the present case which is more than
obvious that that the judgment of lower
appellate
court
has
directly
and
substantially affected the right of the
parties and it has been rightly interpreted
as a substantial question of law arising
before this court for adjudication.

20. In view of the aforesaid
proposition and also in the circumstances
and facts available on record, this appeal
appears to have enough merit and the
judgment and decree passed by the
appellate court requires to be set aside and
thus the appeal should be allowed.

21. In result, the appeal is allowed
and the judgment and decree dated
20.9.1986 passed by the II Addl. District
Judge, Ghazipur, is hereby set aside. The
judgment and decree passed by the trial
court is restored. Costs of this appeal shall
be easy.
Appeal Allowed.
---------
404 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
APPELLATE JURISDICION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2005

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 769 of 2005

Ram Niwas Pandey (constable no. 5796)
and others
...Appellants/ Petitioners
Versus
Union of India and others

 ...Defendants/Respondents

Counsel for the Appellants:
Sri Shashi Nandan
Sri A.A. Khan

Counsel for the Respondents:
Sri Govind Saran

Railway protection force Rules 1987Rule
93.5-Transfer/posting
on
Non
sensitive post-it prohibit only these
tainted members of service-otherwise
large number of sensitive post remained
vacant-rule 93.5 has no application

Held: Para 7

In our view, the manner in which the
appellant is trying to read Rule 93.5 and
is applying the same, in the present case,
is also incorrect inasmuch a simple
reading of Rule 93.5 would show that it
only
prohibits
tainted
members
of
service from being posted on sensitive
post but converse is not true. It does not
say that even if a person has no such
adverse entry or poor reputation, yet he
also cannot be posted on non-sensitive
post. There may be several occasions
when the number of persons having bad
service record or reputation ma be less
than the number of non-sensitive posts.
If the contention of the appellant is
accepted, it may result in a large number
of sensitive post remained vacant since
they are to be filled in only by tainted
officers and none else. Neither rule say
so nor there is any other reason to
warrant such interpretation. Therefore,
the aforesaid submission of the appellant
is clearly incorrect in so far as it submits
that the impugned order of transfer is by
way of punishment taking support of
Rule
93.5.
The
said
rule
has
no
application in the present case at all.
Case law discussed:
AIR 1974 SC-555
1986(4) SCC-131
AIR 1991 SC-532
AIR 1993 SC-2444
2001(91) ELR-259
AIR 2004 SC-2165
2005 (107) FIR-37

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This special appeals is preferred
against the order of the Hon'ble Single
Judge dated 1.6.2005 dismissing writ
petition no. 44362 of 2005 the appellant
filed against the order of transfer dated
27.5.2005.

2. Heard Shri Shashi Nandan,
learned Senior Counsel appearing for the
appellant and perused the aforesaid order
of the Hon'ble Single Judge.

3. Learned counsel for the appellant
submitted that the impugned order of
transfer has been passed by way of
punishment inasmuch as it has been
passed on administrative grounds posting
the appellant on non-sensitive post. He
further relied upon Rule 93.5 of the
Railway Protection Force Rules, 1987,
which reads as under:-

"93.5 Members of the Force who
have got adverse entries or enjoy poor
reputation shall not be posted to sensitive
posts till they get good entries for three
consecutive years."