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[Cites 6, Cited by 0]

Madhya Pradesh High Court

Sanjay vs Onkur on 11 July, 2017

                 HIGH COURT OF MADHYA PRADESH
                   PRINCIPAL SEAT AT JABALPUR

                            Second Appeal No.55/1995
                    Ramgopal through LRs
                              V.
                 Smt. Jashoda Bai through LRs
                  =================

For the Appellant : Mr. R.K. Samaiya, Advocate
For the respondents 1 and 2 : Mr. Jaideep Sirpurkar, Adv.
For the respondent No.3 : Mr. Ramji Pandey, P.L.
   ==================================
                                 JUDGMENT

(11.7.2017) This second appeal has been filed under Section 100 of the Code of Civil Procedure against the common judgment dated 23.12.1994 passed by the learned second ADJ, Sihore Camp, Nasrullahganj, in Civil Appeals No. 9A/93 and 6-A/93 arising out of the judgment dated 30.07/1993 passed by learned Civil Judge, Class-II, Budhni in Civil Suit No.35-A/1992.

2. It is not disputed that the respondent No.1 Raju is the son of respondent No.2 and the deceased Jashoda Bai was the mother of respondent No.2 Onkar. The deceased plaintiff -Jashoda Bai had filed Civil Suit No.35-A/1992 against the defendant/respondent No.2 Omkar and appellant/defendant Ramgopal and proforma party the State of MP, seeking the relief of declaration of title and injunction with regard to suit property bearing khasra Survey Numbers 62/1, 62/2, 112/61 admeasuring 8.17 acres situated at village – Jamuniya, Tahsil – Budhni, district – Sihore. The plaintiff sought the relief of declaring the sale deeds dated 26.04.1982 and 14.09.1992 to be null and void. Learned trial court allowed the suit, declared the sale deed dated 14.09.1982 null and void and out of 4 acres of the suit land declared the plaintiff/ respondent No.1 Yashoda Bai as the owner and title holder of two acres of land.

3. It is also not disputed that the suit land originally belonged to Bhurelal. Burelal was owner of the land admeasuring 11.99 acres. He had three sons, namely, Jhandulal, Chhotelal and Lalsingh. These three brothers were jointly in possession of the land. Subsequently, Jhandulal got his share of 4 acres of land out of 8.17 acres bearing khasra numbers 62/1, 62/2 and 112/62. Jhandulal died in the month of “Falgun” in the year 1975. The plaintiff Jashoda Bai is the widow of Jhandulal and the defendant No.1 Omkar is the son of late Jhandulal.

4 Respondent/plaintiff's case before the learned Civil Judge is that the defendant No.1 vide registered sale deed dated 26.04.1982 sold part of the suit land area 2 acres out of the whole 8.17 acres to defendant No.2 – Ramgopal. Subsequently he again sold the remaining two acres to defendant No.2 Ramgopal vide registered sale deed dated 14.09.1982. It is claimed that the defendant No.1 Omkar had no right to sell 4 acres of land during the life time of his mother plaintiff Jashoda Bai. After the death of Jhandulal, there was no partition. Before the trial Court, defendant No.1 Omkar and the State remained ex parte. The trial Court held that the plaintiff Jashoda Bai has share in the land. Therefore, her share in the property is two acres. Defendant No.1 Omkar had no right, title and interest to transfer the second part of rest two acres. Thus, the sale deed dated 14.09.1982 has been declared as null and void.

5. Being aggrieved by this judgment, plaintiff Jashoda Bai filed civil appeal No.9-A/1993, whereas the appellant/defendant Ramgopal filed CA No.6-A/93 to challenge the judgment. Wherein the sale deed dated 14.09.1982 has been declared as null and void.

6. The First Appellate Court allowed the appeal of the plaintiff Jashoda Bai and declared both the sale deeds as null and void stating that as the partition was not effected after the death of ancestor Jhandulal, the land which was sold to defendant No.2/ Ramgopal could not be identified without partition. After the first sale deed, no mutation took place. The property could not be identified by meets and bounds. Therefore, the second sale deed is also improper as there was no demarcation of the land. Learned first appellate court allowed Civil Appeal No.9-A/1993 and held th that plaintiff Jashoda Bai entitled to 1/4 share in the property th and the defendant No.1 – Omkar entitled to 3/4 share in the property. Injunction was granted in favour of the plaintiff/Jashoda Bai against the defendant No.1 - Omkar and the defendant No.2 – purchaser Ramgopal not to disturb the peaceful possession of Jashoda Bai.

7. The present second appeal has been filed by defendant No.2 purchaser– Ramgopal purchaser challenging the judgments and decree of the courts-below on the ground that, no suit for partition was filed. The appellate court gravely erred in holding that the plaintiff was in peaceful possession of the property. The suit of the plaintiff was not maintainable without seeking the relief of possession. Without direction of refund of consideration paid by the defendant/Ramgopal with interest, declaring the sale deed as null and void is bad in the eye of law.

8. On the above premises, this Court admitted the appeal on 13.08.1996, on the following substantial questions of law:

“1) Whether on the facts and in the circumstances of the case the first appellate court was justified in declaring the sale deeds th to be void despite holding that 3/4 share belongs to respondent Omkar and whether the appellate Court should have directed the present appellant to file suit for partition in view of 1977 MP 222 ? [correct citation is 1973 JLJ 764]
2) Whether on the facts and in the circumstances of the case the suit was within limitation ?
3) Whether the first appellate court was justified in granting permanent prohibitory injunction in favour of the respondent No.1 and 2 contrary to the evidence on record ?”
9. Thereafter vide order dated 13.11.2003 the following substantial questions of law have been framed:
“4. Whether as per fact found the suit of the plaintiff for declaration of the sale deed as void is not maintainable without seeking the relief for possession ?
5. Whether as per fact and circumstances of the case plaintiff having not pleaded in regard to lack of legal necessity is not entitled to get the sale deed declared void ?”
10. It would be interesting to note that deceased Yashoda Bai died during the pendency of the appeal, therefore, she has been substituted by Raju (the son of respondent Omkar Yadav) the defendant/respondent as her LR. It means Raju is not only the successor of defendant Omkar but also the successor of plaintiff Yashoda. Raju claimed to be the LR of plaintiff Yashoda on the ground that respondent No. 2 (Yashoda) is not taking interest in the appeal. It would be appropriate to mention here that during the pendency of the appeal, appellant Ramgopal (the purchaser) has also passed away. Therefore, the present appellants, his widow and children have been impleaded as the Lrs of deceased Ramgopal.
11. On perusal of the record, it found that learned Civil Judge while deciding the civil suit elucidating the evidence held that the first sale deed dated 26.04.1982 executed in favour of Ramgopal by Omkar to be valid. But Omkar after the death of his father Jhandu Lal has become the successor of the property to the extent of 50% share. The Court held that Yashoda (the widow of Jhandu Lal) is the successor of the property of 50% of Jhandu Lal, therefore, the second sale deed executed on 14.09.1982 by Omkar was not valid, for Omkar had no right to alienate that part of the property is the share of Yashoda (the widow of Jhandu Lal).

Hence, the share fall in favour of Yashoda could not be transferred or sold without the consent of plaintiff Yashoda.

12. Jhandu Lal died in the year 1978 is an admitted fact. It is also admitted that after the death of Jhandu Lal, Omkar (defendant), his son was in possession of the suit land and was cultivating the four acres of land. In the cross-examination of plaintiff/witness No. 2 (Balmukund), he admits that after the death of Jhandu Lal, his son (defendant) Omkar become the Karta of the family. Balmukund (PW 2) is the neighbour farmer. He also admits that the suit land was being cultivated by Omkar (defendant) after the death of Jhandu Lal.

13. It would be pertinent to mention here that the purchaser defendant Ramgopal has asserted that plaintiff Yashoda was also present at the time of execution of the second sale deeds. However, because her name was not mutated in the revenue records, she did not sign in the sale deed as it was not felt necessary. After the execution of the sale deed in the year 1987, the name of defendant, Ramgopal was mutated in the revenue record Ex. D/1. No objection has been raised in this regard. Therefore, name of defendant, Ramgopal (the purchaser) has been entered in the revenue records. Ramcharan (DW/2) the Patel of the village has also supported the case of defendant Ramgopal and has said that since last 10 to 11 years [his deposition was recorded on 24.07.1993] Ramgopal is cultivating the suit land which is indication of possession of Ramgopal. Keshar Bai (DW 3) is the Chaukidar of the village and according to her Ramgopal has been cultivating the land since last 11 years (her deposition was recorded on 24.07.1993).

14. Learned first appellate Court held that the plaintiff Yashoda th th Bai had only 1/4 share in the property and Omkar had 3/4 th share in the property. Therefore, Omkar could have sold 3/4 of the total property. The learned first appellate Court set aside the judgement dated 29.7.1993 passed by the second Civil Judge, Class II, holding that as both the sale deeds dated 26.04.1992 and 14.09.1992 (Ex. P/1 and Ex.P/2) are null and void and injunction was also granted against Ramgopal (defendant) the purchaser and it was directed to deposit the rest Court fees as is required for valuation of the sale deeds i.e Rs.18,000/-. It would be pertinent to mention here that the respondent/plaintiff Yashoda not has deposited the Court fees as per the directions reflected from the record.

15. On behalf of the respondent, it is contended that the deceased Yashoda Bai was the successor of the 50% of the property of Jhandu Lal, After his death it devolved with Yashoda, his widow according to Hindu Succession Act, 1956, because Jhandu Lal died intestated. It is also claimed that Yashoda as the widow of deceased, Jhandu Lal, she is the class-I heir of Jhandulal.

16. Learned counsel for the respondent further contended that because of the property was not partitioned, therefore, Omkar could not have been sold the share of the land without having shown the meets and bounds. The property sold by Omkar was not in the interest of the family as there was no legal necessity. Therefore, the sale deed executed by Omkar was not valid.

17. Replying to this argument, learned counsel for the petitioner submits that plaintiff Yashoda did not deposit the Court fees, therefore, the judgment of the first appellate Court is not executable as against the appellant/defendant/Ramgopal. It is further claimed that the common vakalatnama filed on behalf of Omkar and Yashoda shows that they have been jointly making the pleas. Omkar did not oppose at the time of estopped mutation. Therefore, he is estopped from raising such a plea.

18. The “will” executed by plaintiff Yashoda in favor of Raju (the son of defendant Onkar) on 05.08.2003, has not been properly proved. In order to prove the due attestation of the “will” the propounder of “will” has to prove that two witnesses saw the testator sign the “will” and they themselves signed the same in the presence of the testator. In this regard reliance has been placed on Girja Datt Singh Vs. Gangotri Datt Singh, AIR 1955 SC

346.

19. It would be appropriate to mention here that in Hindu Law, the widow cannot be the Karta of the family, neither she can be coparcener. In Commissioner of Income-tax, Madhya Pradesh Vs. Seth Govindram Sugar Mills, AIR 1966 SC 24, the Hon'ble Apex Court has held that under Hindu Law Coparcenership is a necessary qualification for the managership of a joint hindu family. A widow is not a coparcener. She has no legal qualification to become the manager of a joint hindu family. A widow of a coparcener cannot, therefore, be a Karta of hindu joint family.

20. It is also vehemently contended by the learned counsel for the respondent that Omkar, after the death of Jhandu Lal, became the Karta of the family and there was no plea of want of necessity raised by the plaintiff/ Yashoda. Therefore, alienation by the Karta Omkar was proper. In this regard reference has been made to Pandurang Mahadeo Kavade Vs. Annaji Balwant Bokil & Others AIR 1971 SC 2228 in which the Apex Court has held that :-

“(A) Hindu Law- Alienation by Karta- Proof of legal necessity by alienee is not necessary when specific plea as to want of necessity is not raised.”

21 Learned counsel for the appellant has also raised the issue of the sale deeds stating that the sale deeds are the documents which have been executed by Omkar, the Karta of the Hindu Joint Family in favour of the defendant/appellant Ramgopal are documents duly registered and after registration it has become a deed giving full and complete account on transaction by which the title to the property has been transferred. After the registration of the sale deed, it gives publicity and public exposure to the document. The sale deeds were executed in the year 1982, whereas Yashoda filed the civil suit in the year 1992 after elapse of about ten years. Whereas the limitation period for filing of civil suit is only three years. The finding of the learned trial Court that the suit was within the time limit is not correct in the eyes of law.

22 The plea by the plaintiff/Yashoda that she came to know about the sale deed in the year 1992 through the village Patel has not been established. Plaintiff witness 2- Balmukund states that Omkar became the Karta of the family after the death of Jhandu Lal and the suit property was being cultivated by Omkar, after the death of his father Jhandu Lal. Whereas the defendant/witnesses Ramcharan (DW/2), the neighbor farmer of the suit land, Keshar Bai (DW 3), the Chaukidar of the village have clearly stated that defendant Ramgopal has been cultivating the land since 10-11 years, which shows that the plaintiff/Kesharbai has utterly failed to establish that she came to the knowledge of the sale deeds in the year 1992.

23. As regarding the possession of the suit land, it would be appropriate to hold that the recital of the documents (sale deeds) that possession has been delivered to the purchaser cannot be disbelieved until otherwise established. In the case of Mansigh (Deceased) Through L.Rs. Smt. Sumranbai & Others Vs. Rameshwar, (decided on 22.01.2010 by Division Bench of Calcutta High Court in W.P. No. 6464/2008) it has been held that:-

“ Agreement to sell immovable property with a recital in the document that possession has been delivered to the purchaser- Seller has raised a plea that possession is not delivered to purchaser- Held- Seller's plea will not affect the character of document- Document would be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly.”

24. It is contended that defendant/Omkar sold out the suit property to the appellant Ramgopal and Ramgopal the purchaser claimed to be in possession of the suit land. After the sale, his name is also mutated in the revenue records. It would be appropriate to mention here that there was no impediment as regarding first sale deed (Ex. P/1) i.e. dated 26.04.1982, which has been decided by the learned Civil Judge in the Civil Suit No. 35 A/1992. As regarding the second sale deed (Ex. P/2) dated 24.09.1982, it would be appropriate to mention here that after the death of Yashoda this property has been reverted back to Omkar. In such circumstances, it can be safely said that, if at all, the second sale deed was executed erroneously by Omkar in favour of the appellant Ramgopal but, subsequently, the property by virtue of inheritance has been devolved to Omkar, therefore, Section 43 of the Transfer of Property Act, 1882 comes into play.

25. Section 43 of the Transfer of Property Act, 1882 provides that:-

“ 43. Transfer by unauthorized person who subsequently acquires interest in property transferred.- Where a person [fraudulently or] erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

26. The principle embodied in Section 43 of the Transfer of Property Act had been variously described as the Common Law doctrine of “feeding the grant by estoppel” or as the doctrine of equity that “equity treats that as done which ought to be done” or as a combination of both, but, a statutory shape having been given to the principle, it is the section itself which must ultimately determine its scope and the conditions of its application. The rule enunciated in the Section, and to be presently discussed, assumes that the transferor had no title over at least a portion of the property he had engaged to transfer, but which he has since acquired, in which case, upon the principles of elementary equity, he is bound to make good his representations to the transferee. In this regard reference can be made to Brahmvart Sanathan Dharam Mahamandal Kanpur Vs. Prem Kumar, 1985 (3) S.C.C 350.

27. Thus, the first appellate Court is not justified in declaring the sale deed dated 14.09.1982 to be void despite holding that Onkar th had 3/4 share in the property. The first appellate Court should have directed the appellant to file a suit for partition. Otherwise also on the facts and circumstances of the case, the suit filed by Yashoda Bai challenging the sale deeds dated 26.04.1982 and 14.09.1982 in the Civil Suit No. 35A/1992 on 27.03.1992 is barred by limitation. The first appellate Court granting permanent prohibitory injunction in favour of the plaintiff Yashoda Bai and defendant Omkar is contrary to the evidence on record.

28. It would also be appropriate to mention here that the possession of the suit land was given to Ramgopal (the purchaser) in the year 1982 and he was in possession of the suit land after the execution of the sale deeds (Ex. P/1 and Ex. P/2). Therefore, without seeking a relief for possession, suit for declaration of the sale deed as void, was not maintainable. As has been held in the case of Pandurang Mahadeo Kavade (supra).

29. Omkar as Karta of the family, alienated the suit land to the purchaser appellant Ramgopal. There was no specific plea as to want of necessity raised in the civil suit. Therefore, in the absence of specific plea regarding legal necessity, the sale deed executed in favour of Ramgopal could not have been challenged. Hence, it is held that the plaintiff Yashoda Bai failed to plead regarding the legal necessity, therefore, is not entitled to get the sale deed declared void.

30. On the above discussion and the analysis of legal aspect, answer to the substantial question Nos. 1 and 4, 5 are given in affirmative and answer to substantial question Nos. 2 and 3 are answered in negative.

31. So far as the merit of the second appeal is concerned, this Court in the above premises, is unable to hold that the learned Courts below are not justified in partly decreeing the suit and allowing the first appeal. Therefore, this appeal is allowed. The judgment dated 23.12.1994 passed by the learned second ADJ, Sihore (Camp-Nasurullaganj) in Civil Appeals No. 9-A/1993 and No. 6A/1993 and judgment dated 30.07.1993 passed by learned Civil Judge, Class II, Budhni and decrees passed by the Courts below are set aside. Appeal is allowed. Under the circumstances, no order as to cost. Decree be drawn accordingly.

(SUSHIL KUMAR PALO) JUDGE kc/awinash