Patna High Court
Nagina Devi vs Saryug Prasad & Ors on 6 February, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.339 of 1998
Against the Judgment and Decree dated 30.05.1998 passed by 6th Addl. District
Judge, Siwan in Title Appeal No.5 of 1980 / 51 of 1997 reversing the Judgment
and Decree dated 21.11.1979 passed by First Addl. Munsif, Siwan in Title Suit
No.282 of 1970 / 64 of 1978.
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Nagina Devi
................................. Appellant/s
Versus
Lalu Prasad & Ors
........Defendants-appellants-respondent/s
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Appearance :
For the Appellant/s : Mr. S. S. Dwivedi, Sr. Advocate,
Ms. Sangeeta Sharma, Advocate,
Mr. Ranjan Kumar Dubey, Advocate
Mr. Rakesh Chandra, Advocate,
For the Respondent/s . Mr. Anil Chandra, Advocate,
Mr. Gauri Shanker Thakur, Advocate,
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Dated : the 6thday of February, 2012
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV J U D G M E N T
1. The present appellant has filed this Second Appeal against
the Judgment and Decree of the lower appellate Court dated
2 Patna High Court SA No.339 of 1998 dt. 06-02-2014
2 / 13
30.05.1998passed by the learned 6th Addl. District Judge, Siwan in title appeal No.5 of 1980 / 51 of 1997 whereby the learned lower appellate Court allowed the appeal and set aside the Judgment and Decree of the trial Court dated 21.11.1979 passed by the learned Ist Addl. Munsif, Siwan in title suit No.282 of 1970/ 64 of 1978.
2. It may be mentioned here that this appellant was not party to the suit and the appeal.
3. The plaintiff respondent had filed the aforesaid title suit for redemption of the zarpeshgi and for recovery of possession over the suit house in question after removing the defendant. According to the plaintiffs, Pargan Ram had five sons, namely, Saryug Prasad who is defendant No.1, Kamta Prasad who is plaintiff, Santa whose widow and children are defendant No.6 to 9, Ramta who is defendant No.10 and his children are defendant No.11 to 13 and Awadh Bihari who is defendant No.14 and son is defendant No.15.
4. The plaintiff and defendants had already separated by metes and bonds long ago.
5. The owner of the suit property, comprised within khata No.263 plot No.2886 measuring 5 dhur, sold the suit land on 03.09.1930 in the name of the plaintiff for Rs.999/-. Out of the said consideration amount, the mortgage amount of Rs.325/- was kept in 3 Patna High Court SA No.339 of 1998 dt. 06-02-2014 3 / 13 deposit towards Zarpeshgi dated 11.01.1913 which was executed in favour of Pargan Prasad. The defendant got rest of Rs.674/- in cash. The plaintiff had purchased the property which is his self acquired property and the defendants have no concern with it. In Zarpeshgi amount, the share of the plaintiff comes to Rs.65/-, he has deposited the entire money. On 30 Jeth 1377 Fasli, the plaintiff tendered the mortgage money and requested to give the possession but the defendants refused. According to the plaintiff, the original sale deed has been lost from his possession. Therefore, the plaintiff filed the suit for redemption.
6. The defendant filed contesting written statement denying the case of the plaintiff that he is the owner of the suit property. According to the defendant, the property has been acquired from joint property income in the name of the plaintiff and his brothers have share in the same. There is no partition between the brothers. The plaintiff has got only 1/5th share in the entire joint family property including the present suit property. The plaintiff has no right to redeem the property.
7. The trial Court after trial on the basis of the evidences recorded the finding that the consideration amount has been paid by the plaintiff for the sale deed in question which is of the year 1930 4 Patna High Court SA No.339 of 1998 dt. 06-02-2014 4 / 13 ext.'E'. The account book ext.'D' shows the payment of consideration by the plaintiff. Plaintiff was separate at the time of purchase of the suit property and the plaintiff has got rights to redeem the Jerpeshgi land.
8. The defendants then filed title appeal before the lower appellate Court. The lower appellate Court came to the conclusion that the suit property is the joint family property of plaintiff and his 4 brothers. There had been no partition at the time of execution of the sale deed. The plaintiff had no right to redeem the zerpeshgi and the story of tender of plaintiff is wrong. Accordingly, the lower appellate Court set aside the Judgment and Decree of the trial Court. The plaintiff's suit was dismissed.
9. The present appellant Nagina Devi has filed this Second appeal along with an application for permission to file the appeal and prosecute the same on the ground that after the decree in favour of the plaintiff, the plaintiff in the year 1982 sold the suit property by registered sale deed dated 06.07.1982 to Urmila Devi. Said Urmila Devi filed application under Order 22 Rule 10 C.P.C. for being added as party but prior to passing any order on that application, the purchaser Urmila Devi sold the property to the present appellant by terms of registered sale deed dated 11.09.1995. After selling the 5 Patna High Court SA No.339 of 1998 dt. 06-02-2014 5 / 13 property Kamta Prasad the plaintiff left pairvi and likewise Urmila Devi also left the pairvi. Therefore, by the impugned Judgment and Decree, the appellant's interest is adversely affected, as such she may be permitted to file this second appeal and to prosecute the same.
10. At the time of admission of this Second Appeal on 10.09.2003, the following substantial question of law were formulated :-
(i) Whether the appellant can be debarred in proceeding with the appeal when her petition in the appellate court had been rejected as filed under Order 1 Rule 10 of the C.P.C?
(ii) Whether the appellate Court committed error in holding that the redemption suit is barred when there was no partition amongst the mortgagees' or the mortgagors?
(iii) Any other substantial questions of law may be raised a the time of hearing the appeal.
11. The learned senior counsel, Mr. S. S. Dwivedi, appearing on behalf of the appellant submitted that the lower appellate Court has approached the case in wrong angle and decided the question that the property is the joint family property and wrongly held that in absence of partition amongst the mortgagee or the mortgagor, the plaintiff is not entitled to pray for redemption. According to the learned counsel, since the present appellant is prejudicially affected by the Judgment and Decree of the lower appellate Court, this appeal is maintainable. The learned counsel further submitted that admittedly, the sale deed is 6 Patna High Court SA No.339 of 1998 dt. 06-02-2014 6 / 13 in the name of the plaintiff and the sale is of the year 1930 but the lower appellate Court proceeded to decide the case of Benami as alleged by the defendant and wrongly held that it is the joint family property although the defendants never raised this question that the joint family had any nucleous which was sufficient to acquire the land. The lower appellate court proceeded to decide this question and held that since the plaintiff admitted the fact in his evidence that the partition took place after 1930, therefore, on the date of execution of the sale deed in the year 1930, the parties were joint as such the property is the joint family property which is not sustainable at all. The trial Court considering these aspects of the matter has rightly held that the property is the self acquired property of the plaintiff.
12. On the other hand, the learned counsel appearing on behalf of the respondent submitted that there is no illegality in the impugned Judgment and Decree and moreover the substantial question of law formulated are not involved in this second appeal for decision. According to the learned counsel in the year 1930, the plaintiff was minor, therefore, he had no independent source of income. Except the defendant No.1, the other sons of Pargan including the plaintiff were minor. There was no question of purchasing by the plaintiff arises. Further, the parties were joint and the property was purchased by Pargan in the name of the plaintiff. In such circumstances, it was the 7 Patna High Court SA No.339 of 1998 dt. 06-02-2014 7 / 13 plaintiff who should have proved the fact that it is his self acquired property has not shown any such separate source of income in support of his case of self acquisition. Because there has been no partition between the parties and the properties was acquired by Pargan, the father, the plaintiff has got 1/5th share in the property.
13. It is admitted fact that the present appellant has purchased the suit property after decree in favour of the plaintiff. At the time of hearing of the appeal, an application was filed by the appellant for being added as party which has been rejected without considering the settled principle of law laid down by the Hon'ble Supreme Court in the case of Amit Kumar Shaw Vs. Farida Khatoon A.I.R. 2005 SC 2209. Since on the date of passing of the Judgment by the lower appellate Court, the plaintiff was vitally interested in the subject matter of the suit, she was necessary party. However, because of the fact that purchase is subject to the result of the suit or appeal in view of the fact that transfer in her favour is hit by the Principle of lispendence as provided under Section 52 of the Transfer of Property Act, she will be bound by the decree passed by the lower appellate Court. Therefore, she has a right to appeal against the impugned Judgment and Decree.
14. In the case of Banarsi Vs. Ramphal A.I.R. 2003 SC 1989, 8 Patna High Court SA No.339 of 1998 dt. 06-02-2014 8 / 13 the Hon'ble Supreme Court has held at paragraph 8 that Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.
15. In view of the above settled proposition of law laid down by the Hon'ble Supreme Court in my opinion, since the present appellant is pre-judicially affected by the impugned Judgment and Decree passed by the lower appellate Court she has the right to file appeal before this Court accordingly. So far rejection of her application under Order 1 Rule 10 C.P.C. is concerned, it speaks about the jurisdiction of the Court. Even if her application is rejected then also in view of the settled proposition of law laid down by the Hon'ble Supreme Court referred to above, she is entitled to present the appeal and prosecute to its logical conclusion. In my opinion, therefore the rejection of her application under Order 1 Rule 10 C.P.C. will not debar her from prosecuting this appeal. The criteria for hearing an application under Order 1 Rule 10 C.P.C. is separate matter and the hearing of an appeal is separate matter. In view of the above facts and 9 Patna High Court SA No.339 of 1998 dt. 06-02-2014 9 / 13 circumstances of the case and the settled law, the substantial question of law No.(i) is answered in favour of the appellant.
16. So far substantial question of law No.(ii) is concerned, it is dependent on the finding that the property is joint family property because the lower appellate Court has held that since there had been no partition and the property is joint, the plaintiff redemption suit is barred. It will not be out of place to mention here that the plaintiff case is that it is his self-acquired property. It is admitted fact that the sale deed is in the name of the plaintiff. The only case of the defendant is that the property has been purchased by Pargan Ram in the name of the plaintiff out of income from joint family. The lower appellate Court proceeded to decide as to whether there has been partition between the brothers or not and recorded the finding that there had been no partition on the date of execution of the sale deed in the year 1930. Therefore, it is joint family property. From perusal of the lower appellate Court Judgment, it further appears that the lower appellate Court has not considered the settled principle of law that there is no presumption that a family because it is joint possess joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property or when in a suit or a mortgage a party contends that a property is joint family property, the burden of proving that it is so rest on that party. 10 Patna High Court SA No.339 of 1998 dt. 06-02-2014 10 / 13 To render the property joint, the party must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn. When the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleous was sufficient to enable the property to acquire but in the present case, it is not the case of the defendant that there was any nucleous in the joint family and even if there was joint family property what is the extent of the nucleous has not been disclosed. Unless this nucleous is proved by the defendant, the onus will not shift on the plaintiff to prove that he has acquired the property without the aid of the joint family nucleous.
17. From perusal of the trial Court Judgment, it appears that the trial Court on the basis of the entry in account book came to the conclusion that in fact the amount of consideration for the sale deed has been paid by the plaintiff alone.
18. So far the case of the defendant that at the time of acquisition of the property, the plaintiff was minor, it may be mentioned here that the sale deed does not show. There is no mention that the plaintiff was minor on the date of purchase. The learned lower appellate Court at paragraph 24 of the Judgment held that there is 11 Patna High Court SA No.339 of 1998 dt. 06-02-2014 11 / 13 specific pleading in the written statement by the defendant in paragraph 8 that the plaintiff No.1, Kamta Prasad was minor in the year 1930 in whose name the sale deed was taken by the father and Pargan Ram died in the year 1931 in the estate of jointness with his five sons. Therefore, on the basis of the aforesaid pleadings vide paragraph 25 of the evidence, the lower appellate Court held that the trial Court did not give any finding on issue No.10 which is whether the theory of Benami Transaction is correct but then the lower appellate Court also did not record any finding on this question and set aside the Judgment of the trial Court on that ground also.
19. So far the contention of the learned counsel for the respondent that the sale deed was produced by the defendant No.1 is concerned, it may be mentioned that merely because the original sale deed of the year 1930 has been produced by the defendant No.1, no finding can be recorded that the property is purchased by Pargan Ram in the name of the plaintiff and the plaintiff is benamidar of Pargan Ram. The trial Court recorded the finding that the consideration amount was paid by the plaintiff on the basis of the entry made in ext. 'D', the account book. The lower appellate Court only mentioned at paragraph 17 that ext. 'C' and ext. 'D' supports the defendant's case without considering as to how it supports the defendant's case. While disagreeing with the finding of the trial Court, the lower appellate 12 Patna High Court SA No.339 of 1998 dt. 06-02-2014 12 / 13 Court has not met the reason assigned by the trial Court. The trial Court on the basis of perusal of ext. 'D' held that ext. 'D' directly supports the case of the plaintiff that consideration money for the dispute house was paid exclusively from the custody of the plaintiff, Kamta Prasad vide paragraph 8.
20. In view of the above discussion, it is clear that the lower appellate Court proceed to decide this question that whether the property is joint family property or self acquired property and recorded the finding that the property is joint family property only because the property was purchased when there was no partition between the parties. This approach of the lower appellate Court is erroneous approach. The lower appellate Court has not considered the settled principle of Hindu Law as discussed above. In my opinion, therefore, the finding recorded by the lower appellate Court on this question is perverse, vitiated and unsustainable in the eye of law. Therefore, the finding of the lower appellate Court on this question is set aside and that of the trial Court is hereby restored.
21. Now, therefore, when the property is the self acquired property of the plaintiff, the plaintiff has the right to maintain the suit for redemption. The finding of the lower appellate Court that the plaintiff's suit is not maintainable as the property is joint family 13 Patna High Court SA No.339 of 1998 dt. 06-02-2014 13 / 13 property is concerned, as stated above the lower appellate Court has proceeded / approached the case in wrong angle. Therefore, the finding of the lower appellate Court on this question is also vitiated.
22. In view of my above discussion, this substantial question No.(ii) is also answered in favour of the appellant.
23. In the result, this Second Appeal is allowed. The impugned Judgment and Decree of the lower appellate Court is set aside. The Judgment and Decree of the trial Court is restored. In the facts and circumstances of the case, the parties shall bear their own cost.
(Mungeshwar Sahoo, J) Sanjeev/-
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