Madhya Pradesh High Court
Dr. Kailashchandra vs Damodar & Ors. on 17 October, 2019
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Single Bench: Hon'ble Ms. Justice Vandana Kasrekar
F.A. No.29/2002
Dr. Kailashchandra S/o Ramchandra Mishra
vs.
Damodar S/o Balabax (Deceased) through Legal
Heirs (Smt. Reva Devi W/o Damodar Mishra and others)
======================================
Shri A.S. Kutumbale, learned senior counsel assisted by
Ms. Bharti Lakkad, learned counsel for the appellant.
Shri Rohit Mangal with Shri Pankaj Sohani, learned
counsel for the respondents.
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JUDGMENT
(Delivered on 17/10/2019) The appellant has filed the present appeal challenging the judgment and decree dated 27/08/2001 passed by ASJ, Bioara in civil suit No.55-A/1997 whereby dismissing the suit filed by the appellant.
2. Facts in brief are that the appellant/plaintiff filed a suit for declaration of sale-deed dated 01/05/1995 executed by the respondent No.1 in favour of the respondents No.2 and 3 as null and void and not binding upon him as well as for executing a sale-deed in his favour for Rs.1,65,000/- and for getting vacant possession of part of the property illegally sold by the respondent No.1 in favour of the respondents No.2 and
3. The suit was filed on the allegations that house in dispute situated at Sardar Bazar, Bioara, Ward No.7 (New No.9) belonged to late Shri Balabax S/o Mangilal Mishra, who on 16/03/1972, executed a Will and divided the said property in Digitally signed by Jagdishan Aiyer Date: 2019.10.17 15:15:38 +05'30' 2 four parts, out of which plaintiff got ¼ th part and the respondent No.1/Damodar got ¼th part in the suit property. It has been alleged in the plaint that in the Will executed by Late Shri Balabax, there is a condition No.13 (1 to 3) mentioned in the Will that the house is being partitioned in four parts and in case of sale, mortgage by any of them, the same would be transferred only to each other and only the beneficiaries shown in the Will i.e. Damodar, Kailashchandra would be entitled to purchase the property.
3. It has also been mentioned in the Will that in case any of the beneficiaries are not in a position to purchase the property, then, it may be sold to other beneficiary (Bhagidar) and in case of sale of property to an outside person. The consent of all the beneficiary (Bhagidar) is compulsory. It is also contended that Balabax expired on 22/04/1977 and after his death all the beneficiaries occupied the premises given in the Will and their names have also been mutated. It is further alleged that Shyamkumar, Vinodkumar, Subhash and Dinesh wanted to sale their property and they asked respondent No.1 to purchase the property and he deceived to purchase the same, as such the offer was given to the plaintiff, who purchased the property by registered sale-deed dated 01/02/1994 and became owner of the portion owned by them.
4. It is further alleged in the plaint that the defendant No.3/Babulal was occupying ground floor of the suit house as tenant and running a Kirana Shop in the said premises and an ejectment suit No.121-A/1987 was filed against him by respondent No.1 before the Civil Judge, Class-I, Bioara and in 3 the said suit, Will executed by Late Shri Balabax was also placed on record and he was full aware of the conditions mentioned in the Will. Inspite of the aforesaid fact, the respondent No.1 on 01/05/1995 sold the disputed property to the respondent No.2 contrary to the terms of the Will and without asking the plaintiff as to whether he is ready to purchase the property or not, and also without taking consent of all the co-owners of the property for Rs.1,50,000/-.
5. It has also been alleged that the plaintiff was ever ready and willing to purchase the property and is even today ready to purchase the property by paying 10% more, and that the respondents No.1 and 2 have acted contrary to the terms and conditions mentioned in the Will. It has further been alleged that the respondents have illegally got the sale-deed executed at Rajgarh though the Sub Registrar was available at Bioara. It has also been alleged that the respondent No.1 contrary to the Will has sold some area to the respondent No.2.
6. Thus, the plaintiff claimed vacant possession of this part of the property and also claimed that as per Will and the Hindu Succession Act, he had a right to preemption and the same was binding upon the respondent No.1, who has violated the mandatory conditions mentioned in the Will, and though the respondents No.2 and 3 had full knowledge of these conditions, they have purchased the property in dispute, and thus, the sale-deed be declared as null and void and not binding upon the plaintiff and he is entitled to get the property by purchase and a sale-deed be executed in his favour.
7. The respondent No.1 filed a written statement whereby 4 denying all the allegations made in the plaint and alleged that the plaintiff was not ready to purchase the property and as per the Will, his name has been mutated and the ejectment suit filed against the respondent No.3 remained pending for about 16 years and the plaintiff did not give any positive answer about his readiness for purchase of property and thus, sold the property to the respondent No.2. It has also been alleged that in the sale-deed also a condition has been mentioned about the mandatory condition given in Will. It has also been alleged that the plaintiff did not pay any sum in advance to him and thus the property was not sold to him.
8. The respondents No.2 and 3 they have filed a separate written statements and denied that there is any collusion with defendant No.1 and have purchased the property after making full payment and thus the conditions mentioned in the Will are not binding upon them.
9. During trial the plaintiff examined himself and has proved all the documents filed during pendency of the suit. The plaintiff also examined Ramchandra Mishra, Trilok Choudhary as witnesses who have supported the plaintiff's case.
10. The respondent No.1 examined himself and he in his statement has admitted the fact that the plaintiff was ready and willing to purchase the house in dispute. The respondent No.1 had thus practically admitted entire plaintiff's case. The respondents No.2 and 3 examined only respondent No.3/Narayandas, who has supported his case.
11. The learned trial Court after recording statement of witnesses and after hearing the arguments of parties, vide its 5 judgment had decided issues No.1,4,5,8 in favour of appellant/plaintiff. Issue No.9 against him. Issues No.10 and 11 in favour of appellant/plaintiff. Issues No.12 and 14 against the appellant/plaintiff. Issue No.15 in plaintiff's favour and dismissed plaintiff's suit by holding that the plaintiff has failed to prove that he had any right of preemption and that the respondent No.1 has sold part of plaintiff's portion to the respondent No.2 and also that the respondent No.1 has sold his part of property. Being aggrieved by the aforesaid judgment and decree, the appellant has filed the present appeal.
12. Learned senior counsel for the appellant has argued that the learned trial Court has erred in dismissing the suit filed by the plaintiff, as the finding given by the learned trial Court that the appellant has failed to prove that he had any right of preemption available in purchase of property. He submits that the learned trial Court has committed grave illegality in not following the terms of the Will the execution of which has been admitted by the parties and the conditions mentioned in the said Will are mandatory and binding upon the parties to the Will and the condition No.13 mentioned in the Will is mandatory and binding upon the parties. It is argued that respondent No.1 in his statement had admitted that plaintiff is ready and willing to purchase the property and the learned trial Court has failed to consider that respondent No.1 was estopped from selling the property to any person outside the family and he did not give any intimation or notice of sale of property to any of the family members, therefore, the Will is 6 petently illegal, void and contrary to the terms of the Will and not binding upon the appellant. Condition No.13 of the said Will categorically lays down mandatory conditions that before selling the property to any person outside the family, consent of family members must be taken. He further argued that respondents No.2 and 3 were knowing the mandatory conditions mentioned in the Will as they were parties in the ejectment suit filed by the respondent No.1 and the Will was filed before the Court and thus, they cannot escape from the fact that they had no knowledge about the conditions mentioned in the Will.
13. He relied upon the judgment passed by Hon'ble Supreme Court in the matter of K. Naina Mohamed vs. A.M. Vasudevan (2010) 7 SCC 603. Thus, on the basis of this, the learned senior counsel appearing on behalf of the appellant submits that plaintiff has right to preemption. As far as condition No.13 mentioned in the Will the fact has been admitted by the respondent No.1, therefore, the Will executed in favour of respondents No.2 and 3 is null and void. Prima facie the trial Court has committed an error in dismissing the suit filed by the appellant.
14. Learned counsel for the respondents supports the judgment and decree passed by the trial Court and submits that the Section 22 of the Hindu Succession Act is not applicable in the present case. He submits that plaintiff in para 6 of the plaint had admitted the fact that the appellant and respondent No.1 had obtained the possession of their share after the death of Balabax, therefore, after obtaining their 7 shares, the respondent No.1 has became absolute owner and in such circumstance, appellant has no right to preemption. The condition No.13 of the Will is contrary to the Section 22 of Hindu Succession Act, so far as it relates to Section 127 of Indian Succession Act.
15. Learned counsel for the respondent has also raised an objection regarding limitation on the ground that the Court below has decided the said issue wrongly and determined the same as preliminary issue on 12/01/1999, therefore, the civil suit is time barred, hence the appeal deserves to be rejected.
16. It is submitted that it is settled principle of law that if the entire judgment is in favour of the respondent but an issue is decided against the respondent, then, without filing the cross- objection, he can assail the legality and validity of such adverse finding at the time of final hearing.
17. In view of the judgments, learned counsel for the respondent submits that sale-deed was executed on 01/05/1995, the appellant became aware of the sale-deed after 2 months 24 days as admitted in para 11 of plaint and para 8 of his statement and the civil suit was filed on 29/07/1997 after expiring the period of limitation. Article 97 of Limitation Act, 1963 specifically provides the period of limitation for filing civil suit claiming right of preemption is 1 year. The learned trial Court while deciding the preliminary issue of limitation has held that the appellant is challenging the sale-deed, therefore, the period of limitation for filing the suit is 3 years. He submits that as per settled principle of law special provision will always prevail over and above the general 8 provision and when there is a specific provision for limitation is 1 year under Article 97, then, the residuary article and general article will not applicable.
18. It is averred that as per Section 3 of the Limitation Act, 1963 the issue of limitation can be raised at any point of time without averments in the pleadings and thus, the civil suit deserves to be dismissed as time barred.
19. Learned counsel for the respondents placed reliance on judgment in cases of Gourish Banik and another vs. Smit Banik and others AIR 2013 Gauhati 60, Balsaheb Annasaheb Jasud vs. Aniruddha Vikas Kurbetti and others 2017 (3) AKR 329 and Ashutosh Chaturvedi vs. Prano Devi and others (2008) 15 SCC 610.
20. I have heard learned counsel for both the parties at length and perused the entire record.
21. "Section 22 of Hindu Succession Act, 1956 reads as under:-
22. Preferential right to acquire property in certain cases (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred 9 under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."
22. As per the said Section an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
23. In the present case, the original owner i.e. late Balabax neither died instestate nor original plaintiff is Class 1 heir of Late Balabax, therefore, the trial Court has rightly held that the appellant is not entitled for any relief on the basis of right of preemption.
24. In the present case, the appellant in para 6 of the plaint 10 had admitted that the fact that the appellant and respondent No.1 had obtained possession of their share after the death of Balabax, therefore, after acquiring their shares, the respondent No.1 became absolute owner and in such circumstances, the appellant has no right to claim right of preemption. The same principle has been pronounced by High Courts in following judgments.
1. Krishnapada Rao and another vs. Parimal Chandra Saha (2000) 2 Gauhati Law Reports 398.
2. Bhagirathi Chhatoi vs. Adikanda Chhatoi and others AIR 1988 Orissa 285.
3. Ghanshyam vs. Km. Sanghmittra Datta and another AIR 2011 CHH 117.
4. Aloki Wd/o Anandrao Idre and others vs. Gajanan Lahaniju 2015 (3) Mh.L.J. 233.
25. As per Section 127 of the Indian Succession Act, 1925 any clause in a Will which is contrary to Section 22 of Hindu Succession Act, 1956 is void. In the present case, the fulfillment of Clause No.13 creating right of preemption is contrary to Section 22 of Hindu Succession Act, 1956, therefore, it become void as per Section 127 of Indian Succession Act, 1925, hence not enforceable in law and on such void condition, the appellant cannot claim any right in the disputed property. Similarly, the learned trial Court has held in paras No.37, 38 and 39 of the impugned judgment that Clause 13 is illegal and not in accordance with law.
26. So far as point of limitation is concerned, the Court below has decided the said issue as preliminary issue and 11 rejected the plea raised by the respondent vide order dated 12/01/1999. The said finding is challenged by the respondent at the time of filing of this appeal without filing the cross- objection.
27. The learned senior counsel appearing on behalf of the appellant argued that respondent No.1 cannot raise this ground at this stage. He submits that order dated 12/01/1999 has not been challenged by the respondent No.1 at any point of time or during pendency of the said civil suit and, therefore, now he cannot challenge the same without filing any cross- objection.
28. Learned counsel for the respondent relied on judgments in case of Tej Kumar Jain vs. Purshottam and another AIR 1981 MP 55, Ravinder Kumar Sharma vs. State of Assam and others (1999) 7 SCC 435, Banarsi and others vs. Ram Phal (2003) 9 SCC 606, State of M.P. vs. Ku. Rajiya Vano and others 2003 (3) MPLJ 514, Nazeer Ahmed vs. State Bank of Mysore and others (2007) 11 SCC 75 and Akhilesh Hazari vs. Lalji Dubey 2017 SCC Online MP 1182.
29. Relying on these judgments, he submits that findings of the trial Court can be assailed by the respondent without filing the cross-objection.
30. Respondents No.2 and 3 by relying on the judgment delivered in the matter of Laxman Tatyaba Kankate and others vs. Taramati Harish Chandra Dhatrak (2010) 7 SCC 717 and Rajendra Kumar vs. Ramgopal FA.317.1998 (MP High Court, Indore Bench) has held 12 that without filing a cross-objection, finding of trial Court cannot be assailed.
31. Learned counsel for the respondents submit that these two judgments are not binding precedents because the Hon'ble Apex Court in the matter of Laxman Tatyaba (Supra) has not taken into consideration the earlier settled law of the Hon'ble Apex Court in the matter of Ravindra Kumar (Supra) and as per Article 141 as well as ratio laid down in the matter of Jabalpur Bus Operator vs. State of M.P. (2003) 1 MPJR 158 the larger Bench of this Court held that earlier judgments can be prevailed.
32. In view of the aforesaid submissions, it is crystal clear that without filing a cross-objection even an issue or any finding decided against the respondents can be assailed before the appellate Court at the time of final hearing.
33. So far as period of limitation is concerned, sale-deed was executed on 01/05/1995, the appellant became ware of the sale-deed after 2 months 24 days as admitted in para 11 of the plaint and in para 8 of his statement. The civil suit was filed on 29/07/1997 after expiring the period of limitation.
34. Article 97 of Limitation has specifically provides that period of limitation for filing civil suit claiming right of preemption is 1 year. The trial Court while deciding the issue of limitation has held that the appellant has challenged the sale- deed, therefore, the period of limitation for filing suit is 3 years. It is settled principle of law that special provision will always prevail over and above the general provision and when there is a specific provision for limitation is provided under 13 Article 97 of Limitation Act for filing civil suit on the basis of right of preemption, then general provision will not applicable in the present case. Thus, the learned trial Court has rightly decided the preliminary issue on 12/01/1999.
35. So far as sale-deed is concerned, respondent No.1 has stated in his evidence as DW/2 in para 2 and 6 that the appellant/original plaintiff did not ready to purchase the property in question, therefore, appellant does not have any right of preemption. The said paragraphs 2 and 6 are re- produced as under :-
"2- -----------------------;g edku eSus firk ds e`R;q gks tkus ds ckn foy ds vk/kkj ij izkIr gqvk Fkk eSus edku cspus ds igys dzrs k dks olh;r ds ckjs esa lwpuk ns nh FkhA eSus mDr foy :de.khckbZ ckcqyky vkSj ukjk;.knkl dks crkbZ FkhA foy eSus vius ?kj ij gh crk;h FkhA ml le; esjs yM+ds Hkh mifLFkr Fks eSus :de.khckbZ dks oknxzLr Hkkx fodz; djus ds iwoZ foy dh 'krZ ds vuqlkj oknh ls ml Hkkx ds dz; djus ds laca/k esa ckrphr dh FkhA og ckrphr eSus oknh ds nok[kkus esa tkdj dh FkhA eSus oknh ls dgk Fkk fd eSa Ms<+ yk[k :i;s esa oknxzLr fgLls dks csp jgk gwWA D;k vki [kjhnuk pkgrs gS] bl ij oknh us esjs ls dgk Fkk fd eSa [kjhnwaxk ij oknh us dgk Fkk fd eSa lkspdj tokc nwaxkA ftl le; esjh oknh ls ;g ckr gqbZ ml le; oknh dh nqdku ij oknh ds ejht vkSj f=yksdflag firk Nrjflag tkV fuoklh& C;kojk dk Hkh mifLFkr FkkA ---------------------------------- 6- D;ksfa d oknh us eq>s fgLlk [kjhnus ds ckjs esa Li"V tokc ugh fn;k Fkk cfYd ;g dgk Fkk fd eSa lkspdj tokc nwaxk vkSj eSa ijs'kku Fkk blfy;s eSus etcwj gksdj izfroknh dks viuk fgLlk csp fn;k FkkA :de.khckbZ dks oknxzLr Hkkx fodz; djus ds yxHkx eghuk Ms<+ efguk igys esjh bl laca/k esa oknh ls ckr gqbZ FkhA"
36. From perusal of the said statement, it is clear that the respondent No.1 has offered to sale the property to the plaintiff but the plaintiff did not turn-up to purchase the said property and therefore, it cannot be said that the sale-deed executed in favour of respondents No.2 and 3 by the respondent No.1 is null and void.
1437. Now, so far as the question of applicability of citation given by learned senior counsel for the appellant is concerned, the same would not be made applicable in the present case, as in that case, the deed was executed in the year 1951 i.e. prior to enforcement of Hindu Succession Act, 1956. In the present case, the sale-deed was executed on 16/03/1972 i.e. after enforcement of Hindu Succession Act, 1956.
38. The judgment cited by learned senior counsel for the appellant, the provision of Section 22 of Hindu Succession Act, 1956 has not been considered. Thus, on the basis of aforesaid detailed discussions and after marshalling the evidence adduced by the parties and also the after gone through the findings recorded by the trial Court, I do not find any error committed by the learned trial Court in dismissing the civil suit filed by the appellant. Accordingly, the present appeal sans merits, deserves to be and stands dismissed hereby.
(Ms. Vandana Kasrekar) Judge Aiyer* Digitally signed by Jagdishan Aiyer Date: 2019.10.17 15:14:41 +05'30'