K. C. Kapoor Vs. Radhika Devi &
Ors [1981] INSC 178 (15 October 1981)
KOSHAL, A.D.
KOSHAL, A.D.
ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)
CITATION: 1981 AIR 2128 1982 SCR (1) 907 1981
SCC (4) 487 1981 SCALE (3)1565
ACT:
Second Appeal-It is not open, in second
appeal, to the High Court to interfere with the finding of facts based on good
evidence of the trial court-Code of Civil Procedure, section 100.
HEADNOTE:
Estoppel by conduct and construction or
pleadings in the absence of an application under order Xl C.P.C.
Sale for legal necessity of joint Hindu
family property-"Kutumbarthe" explained.
Sheo Dularey Misra, in terms of a compromise
decree dated 29th August, 1931 was declared the exclusive owner of a block of
houses situated in Rae Bareli and also one half of 4 annas and 9 pies share in
a Zamindari. He died in 1951 leaving his widow, his son Parmeshwar Din Misra
and grand- sons Gajendra Narain and Sunil. His entire property was then mutated
in the name of his son Parmeshwar Din Misra both in the revenue records as well
as in the registers maintained by the Rae Bareli Municipal Committee. From then
onwards, Parmeshwar Din Misra was in possession of the entire property left by
his father and also acted as its exclusive manager. He received compensation
for some of the zamindari property, a part of which was also sold by him on
12th January, 1959 for a consideration of Rs. 800. In the year 1960 and 1961,
he constructed a one-storey building on a plot of land in Khurshid Bagh,
Lucknow, where he was employed and residing with his wife and children. On 14th
February, 1964, he sold the western portion of the block of houses purchased by
his late father, to the appellant vide sale deed Exhibit A l. In that sale deed
he described himself, as "exclusive and complete owner" of the Rae
Bareli property and claimed that he was "in possession and occupation
thereof with powers of transfer of all kinds.. ".
The necessity for the sale was thus described
by him: "I am constructing a house in Mohalla Khurshed Bagh, City Lucknow,
the lower portion whereof has already been constructed and for the construction
of the upper portion whereof funds are required." On 17-9-1964 his mother
(Plaintiff No. 1) and his two sons (Plaintiff Nos. 2 & 3) instituted a suit
claiming the share in the said property and to have the 908 sale covered by
Exhibit A-l set-aside on the ground that the transaction was not for any
necessity of the family. The trial court dismissed the suit holding: (i) all
the three plaintiffs and defendant No. 2 formed a joint Hindu family of which
defendant No. 2 was the karta and his two sons (Plaintiffs 2 & 3) acquired
an interest by birth in the property left by their grand-father; (ii) the Luck
now house was the property of the said joint Hindu family; (iii) the disputed
sale was and act of good management and was in the circumstances for the
benefit of the family and, therefore, for legal necessity; (iv) the vendee
(appellant) was not entitled to any protection under section 41 of the Transfer
of Property Act; and (v) it was the duty of defendant No. I to give the details
of misrepresentation constituting estoppel in the written statement, which was
not done so that the evidence on the point could not be looked into. The first
appeal before the District Judge failed. But the High Court, accepting a second
appeal cancelled sale deed Exhibit A-l and passed a decree for possession of
the disputed property in favour of the plaintiffs. Hence the appeal after
obtaining spccial leave.
Allowing the appeal, the Court,
HELD :1 :1 The findings given by the first
appellate court on the point of estoppel was eminently reasonable and the short
ground on which the High Court turned the tables on the appellant was
untenable. That finding being a finding of fact and being based on good
evidence, it was not open to the High Court to interfere with it in a second
appeal. [923 B-C] 1: 2. Proper foundation was laid for the plea of estoppel in
the pleadings. A combined reading of paragraphs 14 and 16 of the written
statement gave sufficient notice to the plaintiffs of what case they had to
meet. The representation said to have been made by plaintiff No. 1 is set out
in paragraph 14, while the plea that she was estopped from contesting the sale
is taken in paragraph 16.
Undoubtedly, the written statement is
inartistically drafted and leaves much to be desired, but then pleadings are
not to be construed in a hyper-technical manner. In fact, no objection to the
lack of particulars was taken at the stage when issues were framed or later when
statements of parties' counsel were recorded on a subsequent occasion or during
the course of arguments addressed to the trial court, the District Judge and
the High Court, even though the issue of estoppel was hotly contested before
all three of them. All these circumstances unmistakably indicate that the case
put forward by defendant No. 1 was throughout understood by the plaintiff to be
that it was the belief induced in him by the representation of plaintiff No. I
which made him accept the title of defendant No. 2 as being exclusive. [923
C-H] l: 3. The declaration of plaintiff No. 1, in the presence of the
appellant, that the property belonged to her son and that he was at liberty to
deal with it as he liked, does not suffer from any ambiguity and makes it clear
that she had nothing to do with the property. [921 A-B] 1: 4. The onus of proof
of the allegation that she was the owner of a half share in the property at the
time of the sale was on her and she was duty bound to depose to facts which
would make section 3 of the Hindu Women's Right to Property Act, 1937
applicable to her case. Her failure to depose to the existence thereof must
result in a finding that she has failed to prove the issue. [922 E-F] 909 1: 5.
In view of the fact that on Shiv Dularey Misra's death all his property was
mutated in favour of his son to the exclusion of plaintiff No. I and was all
along being dealt with by him as its sole and absolute owner without any
objection whatsoever having been raised by her at any point of time to such
conclusion or dealing leads to the presumption that plaintiff No. I had
relinquished her share in favour r of her son either immediately after her
husband s death or at any other point of time prior to the disputed sale. In
the above situation the appellant was fully justified in accepting her word on
the point of ownership, the said section 3 notwithstanding. [922 G-H, 923 A] 2:
1. That the disputed sale was for legal necessity is clear from the following:
(a) The written statement of the appellant contains a definite plea in para 15
to the effect that if the disputed house is proved to be joint Hindu family
property, its transfer was made by the karta for legal necessity so that it was
binding on the family, (b) no objection by the plaintiffs was taken at any
stage of the trial to any lack of particulars of the legal necessity in the
plea so set up; (c) in the said para it was specifically asserted that the
disputed house was sold by defendant No.
2, "for the purpose of building a more
profitable and advantageous house at Lucknow with a view to dispose of a
construction which was old and in perilous condition and which was of no
present utility." The appellant was, therefore, had the right to let in
evidence that putting up a second storey in 1) the Lucknow house constituted
legal necessity. Nor was any on objection taken at the evidence stage to such
right; (d) the appellant was a total stranger to the family of the plaintiffs
and in the very nature of things could not have had any personal knowledge
referable to the actual manner in and the precise source from which either the
Lucknow house or, for that matter, the Rae Bareli property was acquired, such
manner and source being within the special knowledge of plaintiff No. 1 and her
son, defendant No. 2, both of whom had stayed away from the witness box and had
thus deprived the Court of the only real evidence which could throw light on
the source of the consideration paid for the purchase of Lucknow house; (e) the
salary of defendant No, 2 which was no more than Rs. 240 per mensem was too
meagre to have sufficed for the maintenance of his family and any savings
therefrom were out of question and (f) defendant No. 2 was not only the karta
of the family and its sole adult male member at the time of the sale but was
also the father of the only other two copartners for whom he must naturally be
having great affection and whose interests he would surely protect and promote,
rather than jeopardise, there being no allegation by the plaintiffs that he was
a profligate or had other reason to act to their detriment. [924 C-H, 925 A-E,
G-H, 926 A, D-E, 927 B-C] 2: 2. The Lucknow house being the property of the
joint Hindu family consisting of defendant No. 2 and his sons and the disputed
sale being an act 'G of good management, the sale is "Kutumbarthe"
and justified by legal necessity. [927 C-D] Nagindas Maneklal and others v.
Mohomed Yusuf Mitchella, ILR (1922) 46 Bombay 312, approved and applied.
Hunoomanpersaud Pandey v. Mussumat Babooee
Munraj Koonweree, (1856) 6 Moo. I.A. 393, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 515 of 1970.
Appeal by special leave from the judgment and
order dated the 19th February, 1970 of the Allahabad High Court (Lucknow)
Bench) Lucknow in Second Appeal No. 362 of 1966.
G.L. Sanghi and R.P. Gupta for the Appellant.
G.C. Mathur and C.P. Lal for Respondent Nos.
2 & 3.
The Judgment of Court was delivered by
KOSHAL. J. This is an appeal by special leave against a judgment of a learned
Single Judge of the High Court of Allahabad dated 19th February, 1970 reversing
in a second appeal the first appellate decree passed on 1st June, 1966 by the
District Judge, Rae Bareli in confirmation of the decree of the trial Court.
The prayer made by the plaintiffs in the suit, which was dismissed by the first
two Courts, was to the effect that a sale-deed executed on 14th February, 1964
(Exhibit A-1) by defendant No. 2 in favour of defendant No. 1 in respect of a
portion of a block of houses situated in Rae Bareli, be cancelled, and that
possession of that portion be delivered to the plaintiffs who should also be
awarded mesne profits. While accepting the second appeal, the High Court
decreed the suit except in regard to mesne profits.
2. Most of the facts giving rise to this appeal
are undisputed and may be briefly stated with reference to the following
pedigree table:
Sheo Dularey Misra-Radhika Devi (Plaintiff
No. 1) Parmeshwar Din Mishra (Defendant No. 2) Gajendra Narain Sunil (Plaintiff
No. 2) (Plaintiff No. 3) In the years 1916 and 1918 Sheo Dulary Misra (S.D. Mishra
for short), who was a leading lawyer at Rae Bareli, purchased a block of Houses
in that town by means of two sale-deeds (Exhibits 2 and 3), both executed by
one Shambhu Dayal. In the year 1931 S.D.Mishra filed a suit against his father
and brothers for a declaration 911 that he was the absolute owner of the Rae
Bareli houses above A mentioned as also of a 4 annas and 9 pies share in
proprietory Zamindari situated in Mohal Badri Prasad of village Tera Baraula in
Pargana and District Rae Bareli. On the 29th August 1931 a decree based on a
compromise (Exhibit 5) was passed in that suit to the effect that S.D. Mishra
was the exclusive owner of the Rae Bareli houses and also of a half of the
salid 4 annas and 9 pies share in the Zamindari .
On the death of S.D. Misra in l951, his
entire property was mutated in the name of defendant No. 2, both in the revenue
records as well as in the registers maintained by the Rae Bareli Municipal
Committee. From then onwards till the date of the disputed sale-deed (Exhibit
A-I) defendant No. 2 was in possession of the entire property left by his
father and also acted as its exclusive manager. He received compensation for
some of the Zamindari property, a part of which was also sold by him on the
12th January 1959 to one Imam Ali for a consideration of Rs, 800 (vide Exhibit
A-19).
In the years 1960 and 1961 defendant No. 2
constructed a one-storey building on a plot of land in Khurshid Bagh, Lucknow,
where he was employed as a clerk in the Department of Health of the Government
of Uttar Pradesh and where he was residing with his wife and children.
The disputed sale-deed (Exhibit A-1) was
executed by defendant No. 2 on the 14th February 1964 in respect of the western
portion of the said block of houses for Rs. 6500 in favour of K.C. Kapoor,
defendant No. 1 who is the sole appellant before us. In that sale-deed
defendant No. 2 described himself as "exclusive and complete owner"
of the Rae Bareli property and claimed that he was "in possession and
occupation thereof with powers of transfer of all kinds.. ". The necessity
for the sale was thus described by him:
"I am constructing a house in Mohalla
Khurshed Bagh City Lucknow, the lower portion whereof has already been
constructed and for the construction of the upper portion whereof funds are
required."
3. This litigation started on the 17th
September 1964 with the institution of a suit by the three plaintiffs. It was
claimed therein that on the death of S. D. Misra, plaintiff No. 1 succeded to a
half share in his property, being his widow, while the other half 912 was
inherited by defendant No.2 so, however, that his sons (plaintiffs Nos. 2 and
3) had an interest therein by birth.
In other words, while half of the property
left by S.D. Mishra was claimed to belong exclusively to Radhika Devi,
Plaintiff No. 1, in respect of the other half the assertion was that it
belonged to a coparcenary consisting of defendant No. 2 and his two sons. The
relief of a possession of the property sold by virtue of sale-deed Exhibit A-l
was prayed for in consequence of the cancellation of that document which was
sought to be set aside for the reason that the transaction covered by it was
not for any necessity of the said family.
4. In the written statement the stand taken
by defendant No. 1 was that defendant No 2 was the sole owner of the entire
block of houses above mentioned and had full power to alienate the same, but
that even if it was proved to be coparcenary property as alleged, the sale
would still be good as it was made for legal necessity. In this connection the
contents of paragraph 15 of the written statement may be quoted here with
advantage:- "That defendant No. 2 sold the house in suit for the purpose
of building a more profitable and advantageous house at Lucknow and with a view
to dispose of a construction which was old and in perilous condition and which
was of no persent utility. Even if the house in suit is proved to be joint
family property the transfer is for legal necessity by the Karta and is binding
on the joint family and the plaintiffs." Two other material pleas were put
forward in paragraph 14 and 16 of the written statement and are extracted
below:
"14. That defendant No. 2 represented to
the answering defendant No. 1 that defendant No. 2 was the sole owner of house,
a portion of which is the subject matter of dispute, and in fact he has all
along been acting as sole owner of the properties left by his father. The
answering defendant No. I also made diligent and reasonable enquiries about the
right, title and interest of defendant No. 2 and his sole power to transfer it,
and as such the answering defendant is a transferee in good faith for
consideration and without notice."
16. That defendant No. 2 executed the
sale-deed in favour of the answering defendant with the active consent and 913
approval of plaintiff No. I and plaintiff No. 1 is estopped from asserting her
right against it." Statements of counsel for parties were recorded by the
trial court on the 27th April, 1965 when it framed 8 issues, of which issues
nos. I to 3, S and 7 were:
"1. Whether plaintiffs and defendant No.
2 formed a joint family ? If so, who was the Karta of the family ?
2. Whether plaintiffs Nos. 2 and 3 have
interest in the house in suit by birth ?
3. Whether defendant No. 2 had a legal
necessity to sell the house ? If so, its effect ?
5. Whether defendant No. I is a transferee
for value in good faith and is entitled to protection of Section 41 of the
Transfer of Property Act ?
7. Whether the suit by plaintiff No. 1 is
barred by estoppel ?" Statements of learned counsel for the parties were
again recorded on 28th May 1965 and 31st May, 1965. On behalf of defendant No.
1 a part of his case was stated like this: E "Defendant is a purchaser for
value in good faith and without notice. In any view of the case the disputed
portion is not more than the share of Parmeshwar Din and the . alienation is
valid and cannot be impeached by the plain tiffs. Disputed portion was sold
with the active consent and approval of plaintiff No. l and she is estopped
from challenging the transaction,"
5. In its jugment the trial court held that
all the three plaintiffs and defendant No. 2 formed a joint Hindu family of
which defendant No. 2 was the Karta and that plaintiffs Nos. 2 and 3 acquired
an interest by birth in the property left by their grand-father.
In deciding issue No. 3 the trial court took
note of the following facts:
(a) The joint Hindu family consisting of the
three plaintiffs and defendant No. 2 received Compensation for the Zamindari,
914 (b) The family had income from the Zamindari.
(c) The family derived rent from the said
block of houses.
(d) S.D. Misra was a successful lawyer, which
circums- tance made it probable that he had left behind some cash in addition
to other property.
(e) on 12th January 1959 defendant No. 2
received Rs. 800 as consideration for the sale covered by Exhibit A-19.
(f) Sanction for plan of the building of the
Lucknow house (Exhibit A-21) was accorded by the Lucknow Municipality on 28th
June 1960 and the building was completed in 1961.
(g) There is no evidence to show that
defendant No. 2 had income of his own from which he could save enough money to
be spent on the said building (h) Plalntiff No. 1, who was actively conducting
the case on behalf of the plaintiffs, and defendant No. 2, had both stayed away
from the witness-box.
Taking all these facts into consideration the
trial court concluded that the Lucknow house was the property of the said joint
Hindu family. It went on to point out that the disputed sale was an act of good
management in view of the following circumstances:
(i) The portion of the block of houses sold
through exhibit A-I was in a dilapidated condition and on 14th July 1964, i.e.,
less than 5 months after the sale, the municipal authorities isssued a notice
to defendant No.l pointing out that the building purchased by him was in a
dangerous condition and requiring him to demolish it within 3 days, so that
defendant No. 2 was under & an obligation to pull down the building and
either leave the site underneath un-built (which would have meant a loss of
some income to the family) or to construct a new building thereon.
(ii) Construction of a building in Lucknow
would have been more rewarding income-wise than erecting one at Rae Bareli.
915 (iii)Defendant No. 2 was employed at
Lucknow and it was A in the interest of the family to put on a second storey in
the house there The trial court concluded that the sale was, in the
circumtances above mentioned, for the benefit of the family and, therefore, for
legal necessity. 13 Issue No. 5 was decided by the trial court against
defendant No. I for the following reasons:
(a) Defendant No. I knew that the property
sold to him had descended from S.D. Misra who had left behind a widow and a
son, so that defendant No. I could not be regarded as a purchaser without
notice of the fact that the plaintiffs had an interest in the house.
(b) Defendant No. 1 did not consult any
lawyer to make sure that defendant No. 2 was the sole owner of the property
sold as asserted by the latter.
The trial court, therefore, held that
defendant No. I was not entitled to any protection under section 41 of the
Transfer of Property Act.
In relation to issue No. 7 the trial court
remarked that it was the duty of defendant No. I to give the details of the
mis-representation constituting estoppel in the written statement, which was
not done so that the evidence on the point could not be looked into Issue No. 7
was thus decided against defendant No. 1.
Legal necessity for the disputed sale having
been found by the trial court to be established, it dismissed the suit with
costs.
6. It is also necessary to recount at some
length the findings arrived at by the learned District Judge in appeal.
The conclusions reached by the trial court
that the plaintiffs and defendant No. 2 (; formed a joint Hindu family and that
the said block of houses belonged to that family were not challenged before him
and the main contest in the course of the first appeal embraced points of legal
necessity and estoppel as also the applicability of section 41 of the Transfer
of Property Act to the facts of the case.
Taking up the last point first, the learned
District Judge decided it against defendant No. I for the following two reasons;
916 (a) Defendant No. I had had notice that
the building in dispute originally belonged to S.D. Misra and that the latter
died leaving behind a widow, a son and a grandson. . Thus defendant No. 2 was
posted with the know ledge that at the time of the sale in his favour persons
other than defendant No. 2 had interest in the property in dispute.
(b) Plaintiffs Nos. 2 and 3 were minors on
the date of the sale and even at the time of the institution of the suit and
could not, by reason of their minority, be deemed to have consented to the
ostensible ownership of the property vesting in their father.
On the question of sextuple, the learned
District Judge discussed in detail the evidence produced before the trial court
and concluded that on 22nd January, 1964, when a sum of Rs. 1000 was paid by
defendant No. I to defendant No. 2 as earnest money through receipts Exhibit
A.-26, plaintiff No. I gave her consent to her transaction of sale in the
presence of defendant No. I as well as that of Radha Krishan D.W. S and Gopal
Nath Chopra, D.W. 6, both of whom were attesting witnesses to that receipt. He
went on to hold that the trial court was in error when it refused to look into
the evidence on the point with the observation that the particulars of the consent
of plaintiff No. I were not given in the pleadings. The learned District Judge
was firmly of the opinion that the statement in para 16 of the written
statement to the effect that the sale had taken place with the active consent
and approval of plaintiff No. I was enough to raise the question of estoppel
and that it was not necessary for defendant No. I to further mention in his
peladings the particulars of such consent or the details of the evidence by
which the same was to be proved. The learned District Judge concluded that by
reason of the consent given by plaintiff No. I to the sale, she was estopped
from attacking disputed sale- deed.
On the question of legal necessity, the
District Judge took note of all those facts which the trial court had taken into
consideration, as also of the following additional circumstances:
(a) Defendant No. 2 was the only adult male
member of the family at the time of the sale. He had throughout 917 been
managing the property of his father and was the Karta of the joint Hindu family
aforesaid.
(b) The sale had come about with the consent
of plaintiff No. 1 who was the only other adult member of the family. B In the
result, the learned District Judge upheld the finding of the trial court that
the Lucknow house belonged to the joint Hindu family. He further held, for more
or less the same reasons as had weighed with the trial court in that behalf,
that the sale was an act of prudence on the part of defendant No. 2 who had
wisely sold a dilapidated building, and instead of pulling it down and
incurring expense over its re-construction, had raised money for the purpose of
building the first floor of the new house at Lucknow which was a big city as
compared to the "small and sleepy town" of Rae Bareli.
On the above findings, the first appeal was
dismissed with costs.
7. Before the High Court it was conceded on
behalf of defendant No. I that the widow of S.D. Misra had inherited half of
his property by reason of the provisions of section 3 of the Hindu Women's
Right to Property Act, 1937 (for short the 1937 Act), that she had become the
full owner of that half share on the commencement of the Hindu Succession Act
in 1956 (hereinafter referred to as the 1956 Act) and that she was, therefore,
not bound by any sale of her share effected by her son unless she was estopped
from challenging it. The learned Single Judge, therefore, at once took up the
question of estoppel, reliance in support of which was placed on behalf of
defendant No. l on a portion of his own testimony as W-3 which when freely
translated, would read thus:
"Parmeshwar Din told his mother that a
portion of the Rae Bareli house was in ruins and yielded low rent, that the
family (ham log) were residing at Lucknow and that he wanted to sell a portion
of the Rae Bareli house and make the Lucknow house two-storeyed which would
result in a better rent yield and would also provide comfort for residence (of
the family).
Then Parmeshwar Din's mother said: 'It is
your thing;
do as you wish." 918 The learned Single
Judge was of the opinion that this statement could not estop plaintiff No. I
from challenging the sale in so far as her share in the disputed house was
concerned. His reasons were:
"The above-cited statement of respondent
No. 1 (defendant No. I) does not indicate if the portion which was being
actually sold was then specified to appellant No. I (plaintiff No. 1) by
respondent No. 2 (defendant No. 2). So if in these circumstances she did not
resist the proposal saying that Parmeshwar Din was at liberty to do as he chose
since it was his property, it can by no means be construed to mean that she
thereby readily agreed even for the sale of her share by her son." The
question of legal necessity was also determined by the learned Single Judge
against defendant No. 1 with the following findings:
(a) There was no pleading by defendant No. 1
in his written statement to the effect that the house at Lucknow was the
property of the said joint Hindu family. Besides, in his deposition as DW-3,
defendant No. 1 had himself stated that to his knowledge Parmeshwar Din was the
sole owner of that house.
(b) Merely because S.D. Misra possessed
property and cash at the time of his death and that property continued to yield
some income thereafter did not furnish reasons enough for the Court to presume
that the Lucknow house belonged to the joint Hindu family. A presumption to
that effect could only be raised if it was shown that there was sufficient
nucleus for the acquisition of that house.
In view of the above findings the learned
Single Judge cancelled sale deed Exhibit A-l and, accepting the appeal, passed
a decree for possession of the disputed property in favour of the plaintiffs.
8. After hearing learned counsel for the
parties at great length we have no hesitation in recording our disagreement
with the High Court on the findings reached by it in relation to both the 919
points canvassed before it, namely, those of estoppel and legal A necessity,
and are fully satisfied that it stepped outside the limits of its jurisdiction
when it interfered with the conclusions of the fact arrived at by the learned
District Judge on the basis of fully acceptable evidence and a correct
appreciation thereof.
9. Before we proceed to detail our reasons
for differing with the view expressed by the High Court we would like to advert
to that aspect of the case which concerns the rights of plaintiff No. I in the
property inherited by her husband. The trial Court acted on the assumption that
the entire property left by S.D. Misra on his death vested in the joint Hindu
family consisting of his widow, son and grand-sons. No challenge to this
assumption was made before the learned District Judge and the case proceeded on
the basis that it was correct. Before the High Court, however, the assumption
was assailed and, as already stated, it was conceded on behalf of defendant No.
I that plaintiff No. I succeeded to a life estate in a half share in the
property of her husband in pursuance of the provisions of section 3 of the 1937
Act and that such an estate ripened into absolute ownership on the enforcement
of the 1956 Act. This concession, in our opinion, could be said to have been
correctly made only on the assumptions (I) that S.D. Misra died intestate or
that if he left a will, he devised a half share in the disputed house to
plaintiff No. I and (2) that the share to which plaintiff No. I succeeded was
not relinquished in favour of defendant No. 2 or otherwise transferred to him
by her right up-to the time when the disputed sale took place.
10. We shall now take up the question of
estoppel.
Plaintiffs Nos. 2 and 3 being minors that
question does not arise in their case and it is only in relation to the half
share of plaintiff No. I in the disputed property that it calls for a decision.
In this connection the following facts which are undisputed may be taken note
of:
(a) on S.D.Misra s death his entire property
was mutated in the name of his son (defendant No. 2) to the exclusion of the
former's widow (Plaintiff No. 1).
(b) Right up to the date of the disputed sale
that property was managed exclusively by defendant No. 2.
(c) No objection to the exclusion of her name
from the records of the revenue department or of the municipal 920 committee or
from the management was ever preferred by plaintiff No. 1 who fully acquiesced
in such exclusion all through.
(d) Defendant No. 2 alone received
compensation for the Zamindari and sold a portion thereof as sole owner (vide
exhibit A-19) again without any objection on the part of plaintiff No. 1.
(e) When negotiations for the disputed sale
were initiated, defendant No. I enquired from defendant No. 2 as to how the
latter had acquired full ownership of the . property in dispute. The reply of
defendant No. 2 as contained in his letter from Lucknow dated 14th January 1964
(exhibit A-25) was:
"Regarding our talks about the sale of
my house at Station Road, Rae Bareli and regarding your enquiry about the title
to the said house, I have to inform you that I am the absolute owner of the
portion of house proposed to be sold." "I own all responsibility and
give you word of honour that there is absolutely no dispute about my title to
the portion proposed to be sold and you should have no hesitation on that
score.
"Further I may add that I realize the
rent of the shops which you can enquire from the tenants." Presumably
defendant No. 1 was quite satisfied with this reply and asked defendant No. 2
to furnish copies of the municipal records which were shown to defendant No. 1
on the 22nd January 1964 at the Lucknow residence of defendant No. 2.
(f) According to the testimony of defendant
No. 1 as DW-3 and of the two witnesses (Radha Krishan-DW-5 and Gopal Nath
Chopra-DW-6) who attested receipt exhibit A-26, it was at that stage that
defendant No I told his mother about the proposed sale and she consented
thereto. In the words of defendant No. 2 921 she declared: "It is your
thing; do as you wish." The A evidence of these three witnesses was not
challenged during the course of their cross- examination.
These facts would conclusively show that by
declaring in the presence of defendant No. 1 that the property belonged to the
defendant No. 2 and that he was at liberty to deal with it as he wished,
plaintiff No. I represented to defendant No. I that her son was the sole owner
of the property and that she had nothing to do with it. Her declaration is,
therefore, a clincher on the point of estoppel and we find it impossible to
agree with the learned Single Judge when he says that the declaration did not
mean that defendant No. 2 had the permission of plaintiff No. I to deal with
the latter's share of the property. In our opinion the declaration does not
suffer from any such ambiguity as the learned Single Judge has read into. In
giving the details of the proposed sale the son had not told the mother that he
was selling only his own half share in that part of the block of houses
situated in Rae Bareli which was proposed to l? be sold. He said in clear terms
that a portion of the Rae Bareli house was to be sold and his mother declared
that he was the sole arbiter in the matter of the disposal of the property.
There was no proposal to sell only defendant No. 2's undivided half share nor
did any question arise of either defendant No. I purchasing it or plaintiff No.
I being consulted about it.
In the absence of any qualifying words
limiting the proposed sale to such a share, the lady must be taken to have
understood the statement made to her by her son as carrying its plain meaning,
i.e., that the sale was to be of the entire portion chosen for the purpose and
her consent must be construed accordingly.
Learned counsel for the plaintiff vehemently
argued that even if the declaration made by plaintiff No. 1 be interpreted as
we have done, it would create no estoppel against her inasmuch as defendant No.
1 had not acted on it but had purchased the property on the strength of the
representations made to him by defendant No. 1. G Now it is true that defendant
No. I had made enquiries regarding the title of defendant No. 2 to the property
in dispute and the latter had made an unequivocal representation that he alone
was the owner thereof, but then it was only after the lady had been consulted
and had told her son to go ahead with what he thought proper as he was the
owner of the property that receipt exhibit A-26 was executed. Till then
defendant No. I was not fully satisfied about 922 the title of defendant No. 2
and had not only raised the question with defendant No. I at Lucknow but even
after the assurance given by the latter in communication exhibit A-25 insisted
on the municipal records being produced for his inspection. The inquiry into
the title was, therefore, very much in progress when defendant No. 2 consulted
his mother in the presence of defendant No. 1. This was presumably done to ally
the lurking suspicion in the mind of defendant No. 2 as to the title to the
entire property vesting in defendant No. 2 It was contended on behalf of the
plaintiffs that the representation made by the lady could not have been taken
at its face value by any prudent purchaser in view of the fact that one-half of
the property left by S.D. Misra had admittedly devolved on plaintiff No. 1.
This contention suffers from two important infirmities. Under section 3 of the
1937 Act, plaintiff No. I would have succeeded to a half share only if S.D.
Misra had died intestate. So the question would be whether or not S.D. Misra
left a will. The concession made before the High Court on the point of
inheritence of a half share by plaintiff No, I was obviously based not on any
facts within the knowledge of defendant No. 1 but on the circumstance that
nobody had talked of any will by S.D. Misra. Whether or not such a will was
made was a fact specially within the knowledge of plaintiff No. I and, as
stated earlier, that she remained absent from the witness box so that the Court
is left in the dark as to what was the actual state of affairs. The onus of
proof of the allegation that she was the owner of a half share in the property
at the time of the sale was on her and she was duty bound to depose to facts
which would make section 3 aforesaid applicable to her case. Her failure to
depose to the existence thereof must result in a finding that she has failed to
prove the issue.
Again, even if it be assumed that plaintiff
No. I succeeded to a half share in the property of S.D. Misra, there was no
impediment in the way of her relinquishing that share in favour of her son
either immediately after her husband's death or at any other point of time
prior to the disputed sale. This aspect of the matter cannot be lost sight of
in view of the fact that on S. D. Misra's death all his property was mutated in
favour of his son to the exclusion of plaintiff No. 1 and was all along being
dealt with by him as its sole and absolute owner without any objection whatsover
having been raised by her at any point of time to such exclusion or dealing.
923 In the above situation defendant No. I
was fully justified in A accepting her word on the point of ownership, the said
section 3 not withstanding.
The above discussion of the evidence has been
entered into by us merely to show that the finding given by the learned
District Judge on the point of estoppel was eminently reasonable and that the
short ground on which the High Court turned the tables on defendant No. I was untenable.
That finding of the District Judge being a finding of fact and being based on
good evidence, it was not open to the High Court to interfere with it in a
second appeal.
Before parting with the question of estoppel,
we may briefly notice another contention put forward on behalf of the
plaintiffs whose learned counsel urged that no plea of estoppel could be
countenanced for the reason that no proper foundation was laid for it in the
pleadings. A combined reading of paragraphs 14 and 16 of the written statement,
hower, furnishes a complete answer to the contention. The representation said
to have been made by plaintiff No. I is set out in paragraph 14 while the plea
that she was estopped from contesting the sale is taken in paragraph 16. It is
true that the plea last mentioned is linked with "the active consent and
approval of plaintiff No. I'' and not in so many words with the said
representation. It can also not be disputed that defendant No. I did not
specifically state that he purchased the disputed property in the belief that
the representation was true and that he would not have entered into the
transaction but for that belief. Thus undoubtedly the written statement is
inartistically drafted and leaves much to be desired, but then pleadings are not
to be construed in such a hypertechnical manner and what is to be seen is
whether the allegations made in paragraphs 14 and 16 gave sufficient notice to
the plaintiffs of what case they had to meet. In this connection we may refer
to the significant fact that no objection to the lack of particulars was taken
at the stage when issues were framed or later when statements of parties'
counsel were recorded on a subsequent occasion or during the course of
arguments addressed to the trial Court, the District Judge and the High Court.
even though the issue of estoppel was hotly contested before all three of them.
All these circumstances unmistakably indicate that the case put forward by
defendant No. I was throughout understood by the plaintiffs to be that it was
the belief induced in him by the representation of plaintiff No. l which made
him accept the title of defendant No. 2 as bein exclusive. In this view of the
matter it is too late in the day for the plaintiffs 924 to raise the contention
under consideration and we have no hesitation in rejecting it as untenable.
11. We may now attend to the controversy
about the legal necessity for the disputed sale. The contest on the point is
restricted to that half share of the property sold which belonged to the coparcenary
consisting of the son and grand-sons of S. D. Misra. In this connection the
High Court observed that not only defendant No. I did not plead in his written
statement that the Lucknow house was the property of the coparcenary but that
he also stated in the witness box as DW-3 that to his knowledge defendant No. I
was the sole owner of that house. We are clearly of the opinion that the High
Court erred in taking either of these circumstances as a minus point for
defendant No. 1. In so far as the written statement is concerned it contains a
definite plea in para 15 to the effect that if the disputed property is proved
to joint be Hindu family property, its transfer was made by the Karta for legal
necessity so that it was binding on the family. Was it then incumbent on
defendant No. I to further plead how he propsed to prove the legal necessity?
This question was pointedly posed to learned counsel for the plaintiffs during
the course of arguments and although his answer was in the affirmative, he
could quote neither law nor precedent in support of the same.
It may also be pointed out that no objection
by the plaintiffs was ever taken at any stage of the trial to any lack of
particulars of the legal necessity set up by defendant No. I in paragraph 15 of
the written statement. On the other hand they were fully posted about what case
they have to meet on the point by reason of the contents of that paragraph
itself in which it was specifically asserted that the disputed house was sold
by defendant No. 2 "for the purpose of building a more profitable and
advantageous house at Lucknow and with a view to dispose of a construction
which was old and in perilous condition and which was of no present
utility." In view of this averment it was fully open to defendant No. 1 to
prove by evidence that putting up a second storey in the Lucknow house
constituted legal necessity and, in the process, to establish that the Lucknow
house was owned by the said coparcenary. Again, no objection was taken at the
evidence stage to the right of defendant No. I to show that the Lucknow house
was so owned and thereby to prove the existence of legal necessity for the
sale. No fault can thus be found with the case of defendant No. l on the ground
of his failure to take a specific plea in the written statement abount the
ownership of that house vesting in the coparcenary.
925 Nor was the High Court right in putting
the construction that A it did on the testimony of defendant No. I as DW-3 to
the effect that to his knowledge defendant No. 2 was the sole owner of the
Lucknow house. Obviously all that he meant was that according to such knowledge
as he had, the Lucknow house vested in the exclusive ownership of defendant No.
2; and that knowledge, in the circumstances of the case, could be no more than
a belief arising from what he was told by defendant No. 2 who had been at pains
to stake his claim to the exclusive ownership of all the property under his
control, including the property left by his father. In this connection we
cannot lose sight of the fact that defendant No. 1 was a total stranger to the
family of the plaintiffs and in the very nature of things could not have had
any personal knowledge referable to the actual manner in and the precise source
from which either the Lucknow house or, for that matter, the Rae Bareli
property was acquired, such manner and source being within the special
knowledge of plaintiff No. I and defendant No. 2 only. That part of the
deposition of defendant No. I which the High Court has pressed into service against
him, cannot, therefore, form the basis of solution to the question of the
ownership of the property.
12. In the present case both plaintiff No. l
and defendant No. 2 have stayed away from the witness-box and have thus
deprived the Court of the only real evidence which could throw light on the
source of the consideration paid for the purchase of the Luck- now house. There
may be some force in the argument that no duty was cast upon defendant No. 2 to
appear as a witness in as much as he was not a contesting party, but then such
an excuse is not open to plaintiff No. 1 who was actively contesting the case
in the trial Court on behalf of herself and her two grand-children.
It is in the light of this significant
circumstance that the Court must decide whether or not defendant No. l has been
able to discharge the burden of proving that the Lucknow house was purchased
with joint Hindu family funds. This important aspect of the matter was
completely lost on the High Court although it was an unassailable ground when
it formulated the proposition that before a presumption could be raised that a
property acquired by a member of a joint Hindu family could be regarded as the
property of the family, it must be shown that the family owned other property
which could be regarded as a nucleus providing a sufficient source for the
later acquisition. Furthermore, in assessing the evidence on that point, the
High Court referred only to two facts, namely, that S.D. Misra left immovable
property and cash at the time of his death and that 926 property continued to
yield some income thereafter, but paid no heed to at least three other
important circumstances which had been listed by the trial court in support of
the finding that a sufficient nucleus for the purchase had been proved. Those
circumstances are:
(a) The family received compensation for the
Zamindari.
(b) on 12th January 1959, defendant No. 2
received Rs. 800/- as consideration for the sale covered by exhibit A-l9.
(c) No evidence had been produced to show
that defendant No. 2 had income of his own from which he could have saved
enough money to be spent on the Lucknow building.
We may add that there is definite evidence in
the form of exhibit A-99 to the effect that in 1965 the family of defendant No.
2 consisted of nine souls and that he was then holding a subordinate position
in the office of the Director of Health Service, U P., at Lucknow with a salary
of no more than Rs. 240 per mensem. It goes without saying that his salary was
to meagre to have sufficed for the maintenance of the family and that any
savings therefrom were out of question.
Although each of the facts just above taken
note of, when considered in isolation, may not enable the Court to raise a
presumption of the sufficiency of the requisite nucleus, collectively they
constitute a formidable array and practically a clincher in favour of such a
presumption, especially in the absence of any attempt on the part of the
plaintiffs to produce evidence showing that defendant No. 2 had any source of
income of his own other than his salary.
And then the failure (referred to above) of
plaintiff No. I to step into the witness-box is enough for the Court to raise
another presumption, namely, that her deposition would not have supported the
plaintiffs' case. The onus of proof of the issue on the defendant was,
therefore, very light and stood amply discharged by the facts noted in that
behalf by the trial court, with whose finding on the point the first appellate
court concurred. No case at all was thus made out for interference by the High
Court with that finding.
13. The High Court did not express any
dissent from the conclusion concurrently reached by the trial court and the
learned 927 District Judge that the disputed sale constituted an act of
prudence A on the part of defendant No. 2 and was on that account for the
benefit of the family. We find ourselves in full agreement with that conclusion
which too is based on fully reliable evidence and follows logically therefrom,
as also with the reasons given by the two courts in support thereof. However,
we may point to another significant factor which lends strength to that
conclusion, the same being that defendant No. 2 was not only the Karta of the
family and its sole adult male member at the time of the sale but was also the
father of the only other two coparceners for whom he must naturally be having
great affection and whose interests he would surely protect and promote, rather
than jeopardise, there being no allegation by the plaintiffs that he was a
profligate or had other reason to act to their detriment.
14. The Lucknow house being the property of
the joint Hindu family consisting of defendant No. 2 and his sons and the
disputed sale being an act of good management, the latter must be held to be
justified by legal necessity, which expression, as pointed out in Nagindas
Maneklal and others v. Mahomed Yusuf Mitchella,(1) is not to be strictly
construed. In that case the facts were very similar to those obtaining here and
may be briefly recapitulated. The joint Hindu family had serveral houses, one
of which was in such a dilapidated condition that the Municipality required it
to be pulled down. The adult coparceners contracted to sell it to a third
person. The joint family was in fairly good circumstances and it was not
necessary to sell the house which, however, could not be used by the family for
residence and would not have fetched any rent. In a suit for specific
performance of the contract to sell instituted by the purchaser, the minor
coparceners contended that the contract did not affect their interest in the
absence of "necessity" for the sale. In repelling the contention,
Shah, J., who delivered the leading judgment of the Division Bench, referred to
the manner in which the expression kutumbarthe had been construed by
Vijnanesvara in the Mitakshara and observed:
"The expression used must be interpreted
with due regard to the conditions of modern life. I am not at all sure that
Vijnanesvara intended to curtail the scope of the word kutumbarthe while
explaining it. I do not see any reason why a restricted interpretation should
be placed upon the word 'necessity' so as to exclude a case like the present in
928 which defendants Nos. I and 2, on all the facts proved, properly and wisely
decided to get rid of the property which was in such a state as to be a burden
to the family. I think that the facts of the case fairly satisfy the
test." Fawcett., J., who agreed with these observations added a separate
short note of his own and relied upon the following passage in Hunoomanpersaud
Pandey v. Mussumat Babooee Munraj Koonweree,(1) "But where, in the
particular instance, the charge is one that a prudent owner would make, in
order to benefit the estate, the bona fide lender is no.
affected by the precedent mismanagement of
the estate.
The actual pressure on the estate, the danger
to be averted, or the benefit to be conferred upon it, in the particular
instance, is the thing to breaded." (Emphasis supplied) Although these
remarks were made in relation to a charge created on the estate of an infant
heir by its manager under the Hindu law, it is well settled that the principles
governing an alienation of property property of a joint Hindu family by its
Karta are identical.
15. The perimeters of the expression
kutumbarthe, as interpreted in Nagindas's case (supra) which meets with our
unqualified, approval, fully embrace the facts of the present case in so far as
legal necessity for the disputed sale is concerned.
16. In the result, the appeal succeeds and is
accepted.
The judgment impuged before us is set aside
and that of the District Judge restored. There will be no order as to costs of
the proceedings in this Court.
S.R. Appeal allowed.
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