Case Note & Summary
The appellant, Shivakumar, was the plaintiff in O.S.No.2108/2006 before the II Additional Senior Civil Judge, Bangalore Rural District, seeking cancellation of a sale deed dated 01.08.2006 (registered on 03.08.2006) and permanent injunction restraining the defendants from interfering with his possession. The suit property was ancestral property. The plaintiff claimed that the sale deed executed by him in favor of the first defendant, Nanjamma (wife of his brother N.Mallaiah, the second defendant), was obtained by undue influence and fraud. The trial court dismissed the suit, and the first appellate court (II Additional District Judge, Bangalore Rural District) in R.A.No.300/2010 confirmed the dismissal. The plaintiff then filed a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law regarding the concurrent findings. The court noted that the plaintiff failed to prove undue influence or fraud, and did not examine any attesting witness to the sale deed as required under Section 68 of the Indian Evidence Act, 1872. The court held that the concurrent findings were based on proper appreciation of evidence and were not perverse. The second appeal was dismissed, confirming the judgments of the courts below.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact based on appreciation of evidence cannot be re-opened unless shown to be perverse or based on no evidence. (Paras 1-10) B) Contract Law - Undue Influence - Section 16 Indian Contract Act, 1872 - Burden of Proof - The burden of proving undue influence lies on the person alleging it. The plaintiff failed to prove that the sale deed was executed under undue influence or fraud. (Paras 5-8) C) Evidence Law - Attestation - Section 68 Indian Evidence Act, 1872 - Proof of Execution - Where a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. The plaintiff did not examine any attesting witness to the sale deed. (Para 6) D) Property Law - Cancellation of Sale Deed - Burden of Proof - The plaintiff seeking cancellation of a registered sale deed must prove that the deed is void or voidable due to fraud, coercion, or undue influence. The plaintiff failed to discharge this burden. (Paras 5-8)
Issue of Consideration
Whether the concurrent findings of the courts below in dismissing the suit for cancellation of sale deed and permanent injunction suffer from any perversity or raise a substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed. The judgment and decree of the II Additional District Judge, Bangalore Rural District, dated 18.04.2011 in R.A.No.300/2010 confirming the judgment and decree of the II Additional Senior Civil Judge, Bangalore Rural District, dated 01.10.2010 in O.S.No.2108/2006 are confirmed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- undue influence
- burden of proof
- Section 16 Indian Contract Act
- 1872
- Section 68 Indian Evidence Act
- attestation of documents
- cancellation of sale deed
- permanent injunction
- delivery of possession
