Sunder
Das & Ors Vs. Gajananrao & Ors [1996] INSC 1605 (13 December 1996)
N.P.
Singh, S.B. Majmudar S.B. Majmudar. J.
ACT:
HEAD NOTE:
This
appeal on the grant of special leave to appeal under Article 136 of the
Constitution of India is directed against the judgment and order of a Division
Bench of the High Court of Madhya Pradesh in First Appeal No.2 of 1979 whereby
the Division Bench dismissed the First Appeal and confirmed with modification
the decree passed by the Trial Court against the appellants in Civil Suit
No.13A of 1978 in the Court of learned District Judge, Datia. The facts leading
to this appeal shortly stated are as under.
The
appellants are the original defendants against whom respondent nos.1 to 3,
original plaintiffs, filed the aforesaid suit for a declaration that the
registered Sale Deed dated 30th May 1959 executed by their father, respondent
no.4 in this appeal who was original defendant no.6 in the suit, in favour of
the present appellants is void and inoperative at law and for restoration of
the possession of the suit house bearing Municipal No 1153/1 situated in Rajgarh
locality of Datia town in the State of Madhya Pradesh. For the sake convenience
we will refer to the appellants as original contesting defendants and
respondents 1 to 3 as plaintiffs in the latter part of this judgment.
Respondent no.4, father of the plaintiffs was joined as defendant no.6 in the
suit. The case of the plaintiffs is that their father original defendant no.6
had executed registered Sale Deed dated 50th May 1955 conveying the suit house
to the contesting defendants for a sum of Rs.l800/- and delivered possession of
the said house to them. According to the plaintiffs the suit house was their
ancestral property in which they had 90 undivided 3/4th interest. That their
father, defendant no.6, had no right to transfer the suit house in favour of
the contesting defendants and consequently the said Sale Deed was not binding
on them.
The
said suit was contested by the contesting defendants on the ground that the
house belonged exclusively to their vendor defendant no.6 and plaintiffs had no
interest therein. lt was alternatively contended that even assuming that the
suit house was an ancestral house wherein the plaintiffs, had undivided
interest defendant no.6, their vendor, had alienated the said house for family
necessity and his transaction was binding on the plaintiffs. Defendant no.6
father of the plaintiffs on the other hand supported the plaintiffs.
Learned
Trial Judge after recording the evidence came to the conclusion that the suit
house was an ancestral property of the parties wherein the plaintiffs had 3/4th
undivided interest while their father defendant no.6 had 1/4th interest and
consequently the Sale Deed dated 30th May 1959 was voidable to the extent of
3/4 share of the plaintiffs. Accordingly the learned Trial Judge directed the
plaintiffs to be placed in joint possession of the suit house along with the
contesting defendants 1 to 5. Being aggrieved by the aforesaid judgment and
decree of the Trial Judge the contesting defendants carried the matter in First
Appeal before the High Court. As stated earlier Division Bench of the High
Court was pleased to the same. However the cross objections filed by the
plaintiffs were allowed and accordingly Trial Court's decree was modified as under
:
"The
suit of the plaintiffs for possession is decreed the contesting defendants to
deliver possession of the suit house to the plaintiffs but the execution of the
decree in so far as it directs the contesting defendants to deliver possession
of the suit house to the plaintiffs shall remain stayed for a period of six
months from today and, if before the expiry of the period the contesting
defendants bring a suit for general partitions then the stay should continue till
the disposal of the suit but if no such suit is brought within the period, the
stay of execution of the decree shall stand cancelled on the expiry of the
period of six months and the plaintiffs shall be entitled to obtain the
possession of the suit house." It is the aforesaid decree in favour of the
plaintiffs as confirmed with modification by the Division Bench of the High
Court that is brought on the anvil of scrutiny of this Court in the present
proceedings by the dissatisfied contesting defendants.
At the
outset it may be started that at the suggestion of the Court the contesting
parties were given time to explore any possibility of settlement. But we were
informed that settlement was not possible. However is view of the fact that two
of the plaintiffs are minors at the time when their father executed the
impugned Sale Deed and as the prices of the properties have naturally got
escalated over years the Court suggested to learned counsel for the appellants,
contesting defendants, that in case they succeed in this appeal they may ex. gratia
make payment of suitable amount to the respondent-plaintiffs to avoid any
possible heart burning to them. We are happy to note that the suggestion of the
Court was accepted by the appellants, contesting defendants. Appellant no.1
Sunder Das who was present in the Court has filed a written undertaking on
affidavit to the effect that having consulted Laxman son of Tehalram, appellant
no.2 in this appeal he was giving undertaking to this Court that if the appeal
filed on their behalf is allowed and the judgment and decree are set aside they
shall pay ex gratia an amount of Rs.2,00,000/- to the plaintiff respondents Gajanan
Rao, Ravindra Kumar and Govind Rao within three months from the date of the
delivery of the judgment. We were also informed by the learned counsel for the
appellants that similar affidavits will he filed by the remaining appellants
within one week of the delivery of the judgment in case the appeal is
ultimately allowed and the suit of the plaintiffs is dismissed. They undertake
to make payment of Rs.2.00,000/- to the plaintiffs aforesaid ex gratia with a
view to alleviate likely heart burning of the plaintiffs in such an
eventuality. We appreciate the good gesture made by the appellants. It is now
time for us to deal with the merits of the appeal.
We
have heard the learned counsel for the contesting defendants as well as for the
respondent plaintiffs in support of their respective cases.
Learned
counsel for the contesting defendants submitted that both the courts below had
patently erred in law as well as on facts in taking the view that the suit for
challenging the impugned Sale Deed was within limitation. According to the
learned counsel the suit was barred by Article 109 of the Limitation Act. On
merits it was contended that the suit house belonged exclusively to the
contesting defendants' vendor original defendant no.6, father of the plaintiffs
and, therefore the plaintiffs had no right to challenge the said Sale Deed. It
was alternatively contended that even assuming that the suit property was
ancestral property as plaintiffs father defendant no 6 was the 'karta' of the
joint Hindu family the Sale Deed executed by him was Perfectly legal and valid
and binding on the plaintiffs unless it was shown that the Sale Deed was
vitiated on the ground of it being executed or paying off a debt incurred by
their father fol an illegal or immoral purpose. That there was no such case
pleaded by the plaintiffs. It was next contended that the said transaction was
for legal necessity and for family requirement as mentioned in the Sale Deed
these recital were binding on defendant no.6. That there was no cogent evidence
led by the plaintiffs to rebut these recitals in the Sale Deed. That both the
courts below were patently in error when they took the view that the
transaction was not binding on the plaintiffs. That the suit was purely a
collusive suit got filed by defendant no.6 through his sons after eleven and a
half years of the transaction. That they stood by the transaction for all these
years, allowed the contesting defendants to spend huge sums of money for
re-construction and rennovation of the house and that suit was filed merely to
knock out more money from the contesting defendants and to harass them.
Hence
it was liable to be dismissed even on merits.
On the
other hand learned counsel Shri Khanduja for the respondent-plaintiffs
submitted that both the courts on appreciation of evidence had come to a
concurrent finding of fact that there was no legal necessity for defendant no.6
to execute the Sale Deed. That defendant no.6 was not shown to have incurred
any debts or was in such a stringent economic condition that he was required to
sell of the suit house to the contesting defendants and, therefore on the
evidence on record the conclusion reached by both the court below that
defendant no.6, father of the plaintiffs. could not legally alienate the
undivided 3/4th interest of the plaintiffs in the suit house, remained well
justified and called for no interference in this appeal.
Having
carefully considered the aforesaid rival contentions we find that the judgment
and decree as passed by Trial Court and as confirmed with modification by the
Division bench of the High Court cannot be sustained.
However
before we proceed to consider the merits of the case we may in the first
instance deal with the question of limitation for filing the present suit. Article
109 in the Schedule to the Limitation Act. 1963 provides for a period of
limitation of twelve years for a Hindu governed by Mitakshara law who files a
suit to set aside his father's alienation of ancestral property and twelve
years' period begins from the date when alienee takes possession of the
property. In the present case the contesting alienees took possession of the suit
property on 30th May
1959 when they got
registered Sale Deed in their favour. Counting 12 years from 30th May 1959 limitation for filing the suit or
challenging the said alienation would expire by 29th May 1971. The present suit was filed on 20th August 1970 .
Therefore
it was clearly within limitation. However the said suit underwent rough weather
It was originally filed in the court of Civil Judge Class II, Datia on the
basis that the valuation for the purpose of jurisdiction of the court would be
Rs.1800/- the consideration amount mentioned in the Sale Deed. In the first
instance the said court took the view that the suit was within its pecuniary
jurisdiction. However the High Court took a contrary view and held that the
valuation of the suit should be equal to the market value of the property on
the date of the suit and hence ordered return of the plaint for presentation to
the proper court and that is how the suit was filed in the District Court on
26th November 1975 after valuing the suit at Rs.42,700/-.
The
contention of learned counsel for the contesting defendants is that the
limitation for file in the suit will have to be seen from the date of filling
of the second suit before the competent court and if 26th November 1975 being
the date of filing of that suit is taken to be the date in the light of which
limitation question is to be decided then the period of limitation of 12 years
from the date of the Sale Deed dated 30th May 1959 must be treated to have
expired and the suit was, therefore, beyond time. This contention was rightly
not accepted by both the courts below for the simple reason that originally the
suit was filed within limitation, but it was filed before a court which was
found to be lacking in pecuniary jurisdiction and when it was re-filed before a
competent court the plaintiffs were entitled to the benefit of Section 14 of
the Limitation Act enabling them to get exclusion of the time from 20th August
1970 to 22nd November 1975 when the High Court took the view that the suit should
be returned for presentation to the proper court. It is obvious that the
plaintiffs were prosecuting in good fath their suit before a court which from
defect of pecuniary jurisdiction, was unable to entertain it and if this period
gets excluded the re-filed suit on 26th November 1975 would remain within limitation of
12 years from the date of the impugned Sale Deed. The plea of bar of limitation
as raised by the learned counsel for the contesting defendants, therefore
stands rejected.
So far
as the merits of the case are concerned certain salient facts which are well
established on record deserve to be noted. There is ample evidence on record to
show that the suit house was the ancestral house of the plaintiff and defendant
no.6. Evidence shows that originally the suit house was occupied by plaintiffs'
grand-father Mukundrao who had died 60 years prior to the filing of the suit.
It is also revealed from the evidence that suit house was occupied by
plaintiffs' father defendant no.6 and also by latter's uncle. They were staying
together till defendant no.6 uncle died. Even the recital in the impugned sale
Deed to the effect that the Sale Deed was executed Oil account of family
necessity indicated that the suit house was treated was joint family property
wherein obviously the plaintiffs would have interest. Both the courts below
have held that the suit house was an ancestral property in the hands of
plaintiffs' father, defendant no.6. This finding is well sustained on the
record of the case and calls for no interference in this appeal. We, therefore,
reject the contention canvassed by learned counsel for the appellants that the
suit house was self-acquired property of defendant no.6.
Once
it is held that the suit house was an ancestral property in the hands of palintiffs'
father, defendant no.6, the plaintiffs could naturally have right by birth in
the suit house. However the moot question is whether the alienation of the suit
house by the impugned Sale Deed by the plaintiffs' father, defendant no.6 to
the contesting defendants was binding on the plaintiffs. So far as this
question is concerned it Must be kept in view that plaintiffs' father was the 'karta'
of the joint Hindu family., The evidence shows that at the relevant time he was
working as Upper Division Clerk in the civil court at Chhatarpur. His monthly
income was Rs.150/- in 1958-59 when the sale Deed was executed as seen from his
deposition as D.W.1. He has clearly recited in the impugned sale Deed in favour
of the contesting defendants that he was selling the suit house for Rs.1800/-
on account of family necessity. He revealed in his deposition before the court
that he had a family of seven persons to be maintained out of his income of
Rs.150/- per months as he had got his wife three sons namely tile present
plaintiffs and two young daughters It is also revealed from his evidence that
he was staying at Chhatarpur as he was serving as Upper Division Clerk in the Chhatarpur
court. The suit house was situated at village Datia. According to defendant
no.6 he occasionally came to Datia to look after the house. No attempt was made
in his evidence to get out of the clear recitals in the Sale Deed that he had
entered into the transaction for family necessity. It is also pertinent to note
that our of the three plaintiffs plaintiffs no.1 was major at the time of the
Sale Deed. Me his conspicuously remained absent from the witness box and
avoided inconvenient cross examination which is might have faced, In support of
the plaintiffs only plaintiff no.3 P.M.1 Govind Rao who was admittedly aged 8
years at the time of the Sale Deed has been examined. He naturally could not
have any personal knowledge about what transpired in 1959 when his father who
was serving in a Civil Court as Upper Division Clark thought it fit to sell the
ancestral house in village Datia to the defendants and whether the recital made
by him in the Sale Deed that the transaction was being executed for family
necessity was right of not. Nor defendant no.6 vendor father of the plaintiffs;
had even whispered about the necessity for inserting the recital in the Sale
Deed that he was executing the same for family necessity. It has to be kept in
view that defendant no.6 being the father of the plaintiffs and 'karta' of the
joint Hindu family was legally entitled to alienate the suit house also the
interest of the minor plaintiffs in the said house even for his won
requirements unless it was shown that the transaction was tainted by any
immoral or illegal propose. That is not the plaintiffs. Nor have they suggested
that their father was addicted to any immoral conduct. Their only case is that
their father had no right to alienate their undivided interest in the suit
house. We must keep in view the fact that defendant no.6 father of the
plaintiffs was a worldly person who was presumed to know the ways of the world
as he was attached to the Civil Court as Upper Division Clerk at the relevant
time. His evidence shows that upto 1954 he had worked in the Civil Court as a Lower Division Clerk. Then he
was promoted by the High Court to the post of Upper Division Clerk in the year
1954 and he was transferred to Panna and from Panna he was transferred to Chhatarpur.
He also deposed that he used to visit Datia in connection with supervision of
the suit house. Therefore, defendant no.6, father of the plaintiffs apart form
being the 'karta' of the joint Hindu family was well versad in the ways of the
world and was not a novice or a layman. With his open eyes he disposed of the
suit house which appeared to be almost a ruin for Rs.1800/-. It is easy to
visualize that when defendant no.6 the vendor, was staying with his family at Chhatarpur
and when the ancestral house at Datia Village was in a ruinous condition and
which would almost be a burden to them he thought it fit in his wisdom to
dispose it of for Rs.1800/- in favour of the defendants and made an express
recital in the Sale Deed that it was for family necessity that he was disposing
it of. As a Hindu father and 'karta' of the family he had every right to do so
and in the process could have legally disposed of the interest of his minor
sons in the said property also for the benefit of the family and necessity of
the family. The plaintiffs have not been able to lead any cogent evidence to
rebut the clear recitals found in the Sale Deed to that effect. We may usefully
remind ourselves of what Mulla's Hindu law 16th Edition by S.T. Desai has to
state in connection with alienation by father' at paragraph 256 of the said
volume. It reads as under " "256. Alienation by father- A Hindu
father as such has special powers of alienating coparcanary property which no
other coparcener has. In the exercise of these powers- (1) he may make a gift
of ancestral movable property to the extent mentioned in paragraph 225. and
even of ancestral immovable property to the extent mentioned in paragraph 226.
(2) he
may, sell or mortgage ancestral property, whether movable or immovable,
including the interest of his sons, grandsons and grandsons therein, for the
payment of his own debt, provided the debt was an antecedent debt and was not
incurred for immoral or illegal purposes [Paragraph 295].
Except
as aforesaid, a father has no greater power over coparcenary property than any
other manager (o), that is to say, he cannot alienate coparcenary property
except for legal necessity or for the benefit of the family [paragraph 242].
This section must be read with what is stated under paragraphs 213-215
ante".
Shri Khanduja,
learned counsel appearing for the respondent plaintiffs in this connection
submitted that the defendants as alienees should have properly enquired as to
why the transaction was being entered into by the father of the minor
plaintiffs in their favour. It is difficult to appreciate this submission. The
evidence on record clearly shows that contesting defendants before entering
into the suit transaction had taken all permissible processions and made
enquires in this connection. contesting defendants witness no.1 Tehalram stated
in this evidence that he was informed by defendant no.6, that his uncle had
expired. His debt has to be paid off. Money lenders had also to be paid.
That
he tried to verify these facts. That he went to the shop of Chetandes in the
area. He also enquired from grocer Meghamal and out that defendant no.6 was in
debts and, therefore, he came to the conclusion that defendant no.6 was in need
of money and accordingly he had sold his house to him. Shri Khanduja learned
counsel appearing for the plaintiffs submitted that defendant no.1 in his cross
examination has stated that defendant no.6 Hanumantrao had no title to the
property and in order to help him he had purchased the house from him. It is
difficult to appreciate this contention. The evidence of defendant no.1 when
read in its correct perspective showed that he was informed by one Ganpati that
the property belonged to King and the King of Datia had given it to the
ancestor of the plaintiffs Mukundrao to stay therein and accordingly he thought
that defendant no.6 would not be having title to the property. It must be kept in
view that plaintiffs' ancestor Mukundrao had died 60 years prior the suit.
Therefore, even if originally the property have belonged to the King it was
being, occupied by plaintiffs' ancestor Mukundrao and his descendants since
generations as owners thereof and even by doctrine of adverse possession they
would have perfected their title. It may also he kept in view that there was
nothing Oil the record to suggest. that the King of Datia had ever attempted to
Put forward any claim of ownership over the suit property. Even that apart it
was not the case of the plaintiffs themselves that the suit property did not
belong to their father or their ancestors. On the contrary their case is that
the suit house did belong to their father jointly with them. Therefore it is
too date in the day for the learned counsel for the plaintiffs to submit that
suit house did not belong to the plaintiff and their father or that at the time
of the sale plaintiffs' father had or right. title or interest in the suit
house. In our view the evidence on record clearly establishes that the
defendants made all permissible efforts to find out the legal necessity which
prompted defendant no.6 to enter into the said transaction in their favour. It
is of course true, as contended by Shri Khanduja for the plaintiffs that the
efforts made by the contesting defendants by relying upon the evidence of Meghamal
D.W.2 who is said to have sold grocery on credit to defendant no.6 at the
relevant time remained unsuccessful as there would have been also occasion for
defendant no.6 who was staying with his family at Chhatarpur to purchase at Datia
grocery items on a continuous basis on credit from witness Meghamal. But even
leaving aside the evidence of witness Meghamal which was not accepted by courts
below we find that the evidence of the evidence, of the plaintiffs and
defendant no.6 clearly establishes that the suit house which was in a
dilapidated and ruinous condition at Datia was found to be a dead burden to the
family and. therefore. for family necessity it was disposed of by defendant
no.6, father of the plaintiffs in 1959. The said transaction, therefore, as the
recitals in the Sale Deed themselves rightly showed, in the light of
surrounding circumstances was a transaction for the benefit of the family. The
said conclusion of ours gets further fortified from the well established facts
on record that after purchasing the suit house the contesting defendants
re-constructed it to a substantial extent by spending an amount of Rs.33,000/-
as held by a Division Bench of the High Court especially when the suit house
was purchased for an amount of Rs.1800/-. That shows that it must be in a
totally dilapidated condition and the defendants appear to have purchased only
the site on which they put a substantially new construction at a huge cost of Rs.
33,000/ as compared to the original purchase price of Rs. 1800/. They very fact
that defendant no.6 who was presumed to be well acclimatised with the court
proceedings as he was an Upper Division clerk in the in the Civil Court at Chhatarpur
at the relevant time stood by the transaction and the recitals in the sale Deed
for eleven and a half years and the further fact that he saw to it that his
sons challenged the transaction after such a long period of time when defendants
in the meantime went on spending huge amounts on the property and ultimately
came forward in the suit to support the plaintiffs, leave no rood for doubt
that the suit was got filed by defendant no.6 only with a view to knock out
more money from the contesting defendants and was clearly a collusive suit. On
an overall consideration of evidence on record, therefore, we find ourselves
unable to endorse the conslusions reeached by both the courts below that the
suit transaction was not binding on the plaintiffs.
The
said finding is against the weight of evidence and cannot be sustained. We,
therefore, hold that the plaintiffs had made out no case for getting any relief
from the court in the present proceedings and their suit was, therefore, liable
to be dismissed. Accordingly this appeal succeeds and is allowed. The judgment
and decree passed by the Trial Court and as confirmed with modification by the
High Court are quashed and set aside. Plaintiffs' suit will stand dismissed.
However in the facts and circumstances of the case there will be no order as to
costs all throughout.
Before
parting with the present proceedings, however, we may mention that, as noted
earlier, appellant no.1 on his own behalf and on behalf of appellant no.2 has
given a written undertaking to this Court to pay ex gratia Rs2,00,000/- to the
plaintiff respondents. We also permit the remaining contesting defendants to
file similar written undertaking will stand accepted and accordingly while
allowing the appeal of the contesting defendants, we direct the
appellant-defendants to ex gratia pay sum of Rs.2,00,000/- to the respondent -
plaintiffs within three months from today. The said amount be deposited by the
appellants in the Trial Court within that time. The deposited amount of Rs..2,00,000/-
will be permitted to be withdrawn by the plaintiffs from the Trial Court on due
identification. Orders accordingly.
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