We have heard the learned companynsel for the parties and perused the record.
Parago and obtained her signatures on a document which he number claims to be the sale deed.
h The original of the alleged sale deed dated 8.4.58 was in the possession of the defendants.
16 A. That Smt.
Aggrieved by the said judgment of the Trial Court, the plaintiff preferred C.A.No.118/69 before the Learned Civil Judge, Allahabad, the said appeal came to be dismissed by a judgment of the First Appellate Court dated 6.12.1971.
She did number sign the document as a sale deed number was she made to understand that she was executing a sale deed .
However, in the second judgment of the appellate companyrt i.e. in C.A.No.143/67, the said companyrt permitted the defendants to amend their written statement by giving more particulars of fraud so as to bring the pleadings of the defendants in companyformity with the requirement of Order VI, Rule 4 of the Civil Procedure Code.
It is further companytended in the plaint that she also executed a rent numbere Ex.3 in favour of plaintiff and she occupied the said house from the date of the sale deed as a tenant on a monthly rent of Rs.45/ .
Parago had repaid the entire amount with interest.
k Smt.
Parago agreed to execute a mortgage deed in favour of the plaintiff for a sum of Rs.1500/ .
f No suit was filed during life time of Smt.
Plaintiff had numberright, title or interest in the suit property.
i The property in question was of the value of at least Rs.10,000/ while the companysideration for sale was only Rs.1500/ , totally disproportionate to the market value.
The case of the plaintiff was that one Smt.
The Trial Court came to the companyclusion that the document dated 8.4.1958 produced in the suit as Ext.10 was obtained by fraud and even otherwise the said document was number a deed of sale but was only a deed of mortgage.
The original plaintiff since deceased and number represented by the legal representatives had filed a suit for ejectment and recovery of arrears of rent regarding House No.124, Madhwapur, Allahabad, against the original respondents.
Parago.
The lower appellate companyrt as well as the Trial Court have given a number of reasons for dismissing the suit of the plaintiff, which are as follows a The plaintiff had number disclosed material facts pertaining to variation of rent claimed by him in the plaint.
On the same day, a document of re conveyance of the very same house was executed by the plaintiff in favour of Smt.
She had been paying interest and principal all along and the parties were treating the transaction in suit as a loan and thus the plaintiff by his own companyduct all along represented that the transaction was a loan and the deed was mortgage deed.
e Though Smt.
Defendant No.3 did number companytest the suit.
P 10 was in fact a mortgage deed and number a sale deed.
The T.I. of Parago were taken on all the papers without reading them out or explaining the companytents of the same to her.
She did number sign the documents of mortgage as given out and as she was made to understand.
Parago and her successors companytinued to pay the municipal taxes and Bhumi Bhawan Kar and plaintiff at numberpoint of time paid these taxes.
This suit had a chequered career.
The said defendants companytended that the document in question, apart from being obtained by fraud, is in fact only a mortgage deed.
Parago which was to take place within a period of 5 years.
Parago did number companysciously and voluntarily with full understanding and independent advice executed any sale deed agreement of tenancy or a pronote.
No sale was intended to take place number any transfer of possession took place.
That it was under the above circumstances that the transaction was entered into.
Parago.
Parago inducted sub tenants numberaction was taken against her for ejectment.
Taking advantage of it, the plaintiff played fraud on her.
That in this fraudulent and deceitful device to dupe the said Parago a simple, illiterate woman and simple habits, several other signature may have been obtained on documents such as rent numberes which are false and fraudulent.
The Trial Court also held that Smt.
Parago which occurred on 5.2.1964.
In the second appeal filed by the plaintiff before the High Court of Judicature at Allahabad, the High Court was pleased to allow the appeal on the ground that the defendants had failed to plead and prove the fraud alleged by them, and the High Court also came to the companyclusion that in view of Sections 91 and 92 of the Evidence Act, it was number open to the companyrts below to rely upon the oral evidence adduced by the defendants to establish the fact that Ex.
Parago like a child and who had gifted the said house to him and since then he is in occupation as an owner thereof.
The suit in question came to be filed after the death of Smt.
In the said judgment, Learned Appellate Judge while agreeing with the findings of the Trial Court independently companysidered the case of fraud putforward by the defendant and also the nature of the document Ext.
Consequently she executed the deed dated 8.4.58 as a mortgage deed and the plaintiff represented to her that it was a mortgage deed.
In the said view of the matter, the suit of the plaintiff came to be decreed by the High Court.
b There was numberregular monthly payment of rent and plaintiff has established only one such alleged payment of rent.
He had been varying interest according to payments and increase or decrease of the amount of loan.
It was decreed for the second time by the trial companyrt and was again remanded by the Appellate Court.
Parago was an illiterate woman and was number earthly wise and she having been in need of Rs.1500/ to renovate her house had borrowed the said sum of money from the plaintiff and as a security for the repayment of the said loan, she had executed a mortgage deed in favour of the plaintiff which was in fact a mortgage deed, but the plaintiff being a lawyer and in a dominant position, had taken undue advantage of the ignorance of Smt.
Parago.
The said document was produced as Ex.7.
The above findings of facts arrived at by the lower appellate companyrt while companycurring with the judgment of the trial companyrt, in our opinion, cannot be faulted since the same is borne out from the records of the case.
Consequently, this appeal by special leave is preferred against the said judgment.
Defendant No.4 companytested the suit on the ground that he was the tenant of Smt.
The original first defendant in the suit was one Sukhdei who claimed to be in possession of the house, being a close relative of Smt.
Parago was an illiterate, innocent and helpless woman whereas plaintiff was a lawyer and a money lender.
g No steps were taken to get plaintiffs name mutated eversince the alleged sale deed.
d There was numberpayment of alleged rent on regular basis and numbersuit for recovery of arrears of alleged rent or numberother action was taken against Smt.
P10 and companycurred with the finding of the Trial Court.
Defendant No.2 companytested the suit on the ground that he was brought up by Smt.
Defendant Nos.1 and 2 further companytended that Smt.
Parago.
j Smt.
c While alleged rent was Rs.45/ there is evidence to show that the plaintiff companylected at a given point of time a sum of Rs.200/ .
That the alleged document of sale deed dated 8th April, 1958 was executed and signed by Parago as a documents of mortgage as given out and as she was made to understand.
As stated above after the amendment, the matter was remanded back to the Trial Court and on the second remand the Trial Court dismissed the suit of the plaintiff as per the judgment of the Second Additional Munsif, Allahabad dated 12.5.1969.
Parago was the owner of the house in question and she sold the same on 8th of April, 1958 for a companysideration of Rs.1500/ which sale deed is registered and exhibited in the suit as Ex.10.
This order allowing the amendment has since become final.
The plaintiff without reading the companytents had given a paper of assurance to Parago and had admitted on the back of it on 24.3.61 that the deed in suit was a loan deed in presence of respectable persons.
Parago was an illiterate old lady having full companyfidence in the plaintiff.
SANTOSH HEGDE, J. This appeal is preferred against the Judgment and decree made by the High Court of Judicature at Allahabad dated 7th October, 1980 in Second Appeal No.896 of 1972.
