The plaintiff appeals against judgment and decree dated 11-10-1973 passed by learned Additional District Judge, Lahore accepting the appeal of the respondent from judgment and decree dated 19-7-1972, passed by the learned trial Court decreeing the suit of the appellant.
2. The appellant alongwith Mst. Kapuri filed a suit for possession of land measuring 107 kanals 17 marlas situated in village Watna Teshil and District Lahore. This land was originally owned by Arjan deceased son of Jodha resident of village Watna Tehsil and District Lahore who was alleged to be the father of the appellant and husband of Mst. Kapuri. The said Arjan died on 1-10-1968 at the age of 104 years. It was averred in the plaint that Arjan who was of unsound mind and was unable to know the nature and the terms of contract, was persuaded by respondent/defendant who prevailed upon him and succeeded in getting a sale-deed executed in his favour regarding the said land on 27-7-1965 which was got registered on 2-8-1965. He also pleaded that the sale-deed was based on fraud and misrepresentation and the amount mentioned therein was fictitiously entered. He also averred that Arjan has no necessity to sell the land and the sale-deed was obtained through fraud in order to deprive the plaintiff of their reversionary right and same was illegal, void and did not effect their rights in the land.
The suit was contested by the respondent who filed written-statement. ' On the pleadings of the parties, the learned trial Court framed the following issues:-- (1)Whether the plaintiff No. 1 is the son, and plaintiff No. 2 is the wife of deceased Arjan? O.P.P.
(2)Whether the impugned sale-deed had been executed through fraud, and without consideration? O.P.P.
(3)Whether the deceased Arjan was not capable of understanding the facts due to his old age at the time of execution of sale-deed, if so what effect? O.P.P.
(4)Relief.
After recording evidence of the parties, the learned trial Court through judgment dated 19-7-1972, decreed the suit. Under issue No. 1 it was held that the present appellant was proved to be son of Arjan whereas his mother Mst. Kapuri though was wife of Arjan but seized to be so because she had already peen divorced. Issue No. 2 were decided in favour of the appellant and it was held that the disputed sale of land by Arjan in favour of the respondent was without consideration therefore was no sale in the eye of law and the same was declared to be void. The learned trial Court also held that the sale-deed was based on misrepresentation and because it was without consideration as such illegal. Feeling aggrieved the respondent filed appeal before the learned lower appellate Court which has been accepted through impugned judgment and decree dated 11-10-1973. The learned lower appellate Court held that the appellant could not establish that he was the son of Arjan. It was also held that the suit was barred by time as Article 91 of the Limitation Act was applicable and the period of limitation prescribed thereunder was applicable to the suit. Learned lower appellate Court also came to the conclusion that merely because the actual payment of consideration was not made which was mentioned in the sale-deed, the sale-deed could not be held to be without consideration.
4. Learned counsel for the appellant maintained that the findings of the learned lower appellate Court that the appellant was not proved to be son of Arjan is based on m is-reading of the record.
He also argued that the finding that the sale-deed was with consideration is not based on correct application of law and the appraisal of material on the record. According to him the conduct of the respondent for not getting a mutation sanctioned on the basis of alleged sale in his favour by Arjan is sufficient to prove his mala fide and to conceal the factum sale from the appellant so that he may not take steps for initiating legal of proceedings against the sale as such the suit could be filed within three years from the date of knowledge of the appellant regarding the said sale under Article 91 of the Limitation Act as such the suit was not barred by time. The main burden of the argument presented by the learned counsel for the appellant was that Arjan was 104 years old when he died and due to his old age he was not in a position to understand the terms of the contract and as also the nature of the disputed document obtained from him the respondent with whom Arjan was residing exerted his undue influence upon him and got the sale-deed executed through mis-representation and fraud. He also complained that there was no issue with regard to limitation therefore appellant has been taken unaware.
5. I have examined the record and the evidence produced by the parks with the assistance of the learned counsel for the appellant. Mst. Kapuri one o the plaintiffs examined herself as P.W.5 and she deposed that she was married to Arjan and from this wed-lock the present appellant Bashir Ahmad was born. She was not cross-examined on this point. She being the wife of Arjan is a direct witness of the factum of the appellant's birth. Her evidence to this extent shall be deemed to have been taken as correct. The learned lower appellate Court ignored the statement of Mst. Kapuri while recording finding that the appellant was not proved to be son of Arjan. In the presence of statement of Mst. Kapuri which is the best and direct evidence it could not be held that the appellant did not establish himself to be the son of Arjan. The reliance on the written --statement Ext. P.2 allegedly filed on behalf of Arjan deceased in the previous suit in these circumstances could not legally be made inasmuch as it has been established that Arjan deceased was examined by the said Court and he owned the said written statement and the appellant had opportunity to cross-examine him. The appellant has proved himself to be the son of Arjan. The finding of the lower appellate Court on this point is reversed.
6. The next question which falls for consideration is whether suit filed b the appellant was barred by time. In the suit the appellant challenged the validity of sale-deed allegedly executed by Arjan deceased in favour of respondent on the ground of fraud and misrepresentation. Article 144 of the Limitation Act was not attracted to the suit merely because a prayer for possession of land was made. Since the appellant could not be granted relief regarding possession of land unless he had croned the hurdle of sale-deed in favour of respondent therefore the provision of Limitation Act prescribing limitation for getting a document on the basis of fraud declared as void would be applicable. In the facts and circumstances as pleaded in the plaint the suit is mainly for a declaration that the said sale-deed was void having been procured through fraud and relief of possession is in the nature of consequential relief therefore Article 91 of the Limitation Act is applicable. This article prescribed a period of three years from the date when the alleged fraud came to the Knowledge of the plaintiff. In such a suit the plaintiff was bound to disclose as to on which particular date he came to know about the fraud played by the respondent upon the deceased. No date has been specified by the appellant either in the plaint or in the evidence of any of the witnesses about the knowledge of fraud. In the absence of specification of any such date, it is the appellant who has to fail. It is true that the question of Limitation was not raised in the written statement but under section 3 of the Limitation Act it is the duty of the Court to dismiss the suit if it is barred by time though pica of limitation was not raised by the defendant. I would have given opportunity to the appellant to read evidence provided there had been given a date in the plaint as to when the appellant acquired knowledge of fraud. The laws is firmly established that no parties can be allowed to lead evidence on a particular matter not pleaded in the pleadings. In the plaint only this much has been stated in general terms that the plaintiff came to know of fraud, they filed the suit. In the relevant paragraph regarding cause of action in the plaint it has been stated that on coming to know of the above facts stated in the plaint the plaintiff came to know that their rights had been affected and that the cause of action arose against the defendant on 27-7-1965 when the sale-deed was executed. No date of knowledge of the fraud has been given.
The argument that the respondent concealed the execution of sale-deed from the appellant and with the said purpose he did not get the mutation attested in the revenue papers, is belied by Ext.
D4 which is a copy of mutation No. 430 which was originally sanctioned in favour of the plaintiff on the basis of inheritance of Arjan which was subsequently cancelled by order dated 20-11-1969 passed by A.C.II on the ground that on the basis of sale mutation No.340 in favour of respondent had already been sanctioned about which the suit was pending before a civil Court. It appears from this, that a mutation was sanctioned m favour of respondent in pursuance to the said sale- deed therefore cannot be argued that the respondent did not get the mutation sanctioned in order to keep the factum of execution of sale-decd secret. The finding of the learned appellate Court that the suit was barred by time is not open to any exception and the same is upheld.
7. Now I proceed to decide the crucial point as to whether the sale in question was obtained by respondent through fraud, misrepresentation and same was without consideration. The case of the appellants was that due to old age Arjan deceased was not in a position to understand the nature of the transaction and he was compelled by the respondent through undue influence and mis-- representation to execute sale-deed, which was also without consideration and the amount of Rs.5,000 mentioned in the sale-deed as consideration was fictitiously shown. I have scrutinised the evidence of the parties in detail. It is proved through Ex.P2 which is a certified copy of the death entry of Arjan deceased that he was 104 years old at the time of his death. P.W.2 stated that at the time of his death he was financially very poor and he was also not enjoying good health. P.W.3 also stated that at the time of his death, Arjan could not understand the talks. It is clear from the evidence of the witnesses produced by the appellant that they have stated about poor state of health of Arjan at the time of his death. None of them deposed about any of these disabilities in him at the time of execution of sale-- deed. 1t may be pointed out that the sale-deed was executed in July, 1965 whereas he died on first October, 1968 i.e. More than three years thereafter. It was imperative upon the appellant to have brought evidence on record about the mental disabilities of Arjan deceased at the time of execution of sale-deed. Mst. Kapuri one of the plaintiffs appeared as P.W. 5 admitted that Arjan was in proper senses at the time of his death. This admission of Mst. Kapuri has negatived the evidence of the abovementioned witnesses. Merely because a person was of old age would not be sufficient to presume that he was not in a position to understand the terms of the agreement of that he was not retaining senses. Since no evidence has been produced to prove that Arjan deceased at the time of execution of sale-deed was not in a position to understand the terms of the contract therefore the sale-decd cannot be held to be illegal on the ground that the executant was not in a position to understand it. The consideration has been fixed in the sale-decd itself m lieu of which the bargain was struck therefore merely because the amount was not actually paid to the executant is not valid ground to hold that it was without consideration. For completion of a sale contract it is sufficient that a consideration is fixed and actual payment of the same is not necessary to constitute it as a valid contract. It has been rightly held by the learned lower appellate Court that non-payment of consideration might give a right to be the executant_ to recover the amount but the contract itself could not be struck down being without consideration.
8. Learned counsel for the appellant then maintained that Arjan deceased was under the influence of respondent because he was residing with him who was his nephew therefore he exerted undue influence over him to get the sale-deed executed through misrepresentation and fraud. I am afraid, it is difficult to accept this argument. Respondent examined himself as D.W.4 and no such suggestion was put to him in cross-examination. None of the witnesses produced by the appellant specifically stated that respondent got this sale-deed from Arjan through undue influence and fraud. Mst. Kapuri as P.W. 5 only stated that respondent got this land through sale without her knowledge and without consideration. There being no evidence about the undue influence; misrepresentation and fraud having been played by respondent in getting the sale---deed, therefore, it cannot be argued that the sale-deed was suffering from any such illegality: For the foregoing reasons, this appeal fails which is hereby dismissed leaving the parties to bear their own costs.
H.B.T./B-111/L