Patna High Court
Sita Sharan Prasad vs Manorma Devi on 29 February, 2012
Author: Vijayendra Nath
Bench: Vijayendra Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.364 of 1993
===========================================================
Sita Sharan Prasad
.... .... Appellant/s
Versus
Manorma Devi
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Mr. S.K.Verma, Sr.Adv.
Mr. Jitendra Kishore Verma,Adv.
Mr. Rajnandan Pd.Singh,Adv.
For the Respondent/s : Mr. S.S.Dwivedi,Sr.Adv.
Mr. Anjani Kumar,Adv.
Mr. Sanjay Kumar,Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH
C.A.V. JUDGMENT
Date: 29-02-2012
Vijayendra 1. The main question to be decided in this appeal is as to
Nath, J.
whether the suit filed by the plaintiff-respondent was barred by
limitation under Article 59 of the Limitation Act. Although at the
time of admission of this appeal, by order dated 24.02.1994, two
substantial questions of law were framed but the learned senior
counsel appearing on behalf of the appellant has submitted that the
substantial question of law with regard to Benami Transaction
(Prohibition) Act, 1988 is not being pressed. However, he has
proposed another substantial question of law, as to whether the
reversal of finding by the appellate court below is against the
provision of Order 41 Rule 31 C.P.C. as it has failed to pass a
reasoned judgment assigning its own reasons specially when there is
2
2 / 21
absence of cogent evidence on behalf of the plaintiff to establish the
sale deed dated 18.08.1973 Ext.F/1 as evidencing a sham transaction,
and has prayed for hearing of this appeal on this substantial question
of law also. In view of the judgment, which is going to be passed
hereafter, there is no necessity to formulate another substantial
question of law and consider the same.
2. Heard the learned senior counsel appearing on behalf of the
appellant and the learned senior counsel appearing on behalf of the
respondent. The parties, hereinafter, shall be referred to by their
position in the suit.
3. The present second appeal has been filed against the
judgment and decree dated 05.05.1993 passed by Additional District
Judge III, Nalanda Biharsharif in T.A.No.53/92 whereby the appeal
has been allowed and the judgment and decree passed in T.S.No.
181/1982/02/1992dated 08.07.1992 by Sub Judge IV, Biharsharif has been set aside and the suit has been decreed. The plaintiff has filed the suit for declaration that the sale deed dated 18.08.1973 is "numaisee" (showy) document which had not been acted upon. The further relief is for declaration that another sale deed dated 01.10.1974 had not been executed by the plaintiff and is a document void ab initio, and be set aside. Thereafter the plaintiff has also made the prayer for declaration of title over the suit house and recovery of 3 3 / 21 possession.
4. Shorn of unnecessary details, it is the case of the plaintiff that there was family relation between the plaintiff and the defendant who happened to be a friend of the plaintiff's husband as well as a distant relative. The husband of the plaintiff and the defendant decided to set up a small scale industry and they also agreed to obtain loan from the industries department. The plaintiff accepted the advice of her husband to execute a sale deed for her house (suit house) in favour of the defendant as the defendant was required to have land in Biharsharif for obtaining loan from the government. The plaintiff has asserted that the defendant also convinced the plaintiff by wrongly representing the facts in that regard and thereafter the plaintiff executed a showy sale deed dated 18.08.1973 for a showy consideration money of Rs. 2000/- in favour of the defendant with regard to the suit house and got the same registered. It is further case of the plaintiff that due to nearness in relation with the defendant, she handed over the mortgage money to him for redemption of the mortgage of the suit house which he did but retained the mortgage deeds with him on false pretext. The plaintiff has alleged that later on the defendant also took the original sale deed of the suit house from the plaintiff and also obtained the key of the suit house for residing in the same, by misrepresenting the fact. The plaintiff has further 4 4 / 21 asserted that when her husband came to know that the defendant was going to start business of light stainless steel materials exclusively in his own name in the suit house, he immediately filed a petition before the Sub Divisional Officer, Biharsharif to stop the business of the defendant and in the process he also came to know that the defendant had prepared another registered sale deed dated 01.10.1974 for the suit house purported to have been executed by the plaintiff by setting up some another women. It is the plaintiff's case that only then the husband of the plaintiff obtained the certified copy of the sale deeds dated 18.08.1973 and 01.10.1974 and the plaintiff for the first time came to know that the defendant had played fraud upon the plaintiff. It has been stated in the plaint that the defendant had obtained the sale deed dated 18.08.1973 by playing fraud and exercising undue influence upon the plaintiff and the said sale deed was in fact executed only for the purpose of partnership business between the defendant and the husband of the plaintiff, and the possession has also been obtained by the defendant by playing fraud upon the plaintiff. The plaintiff has described the details of the facts and circumstances to establish that the fraud has been played by the defendant in obtaining the sale deed dated 18.08.1973 and the sale deed dated 01.10.1974. On the basis of these main assertions the plaintiff has prayed for grant of the aforesaid reliefs.
55 / 21
5. The defendant, by filing his written statement, has denied the allegations of the plaintiff and has asserted that he had actually purchased the suit house for a total sum of Rs. 21,500/- from the plaintiff who alongwith her husband had received the part of the said money and were demanding more money but the defendant insisted that he would pay further amount only after the execution of the sale deed. It is the case of the defendant that the husband of the plaintiff represented before the defendant that it would take time for obtaining the requisite stamp for the sale deed for Rs. 21,500/- and prevailed upon the defendant to get the sale deed executed for only Rs. 2,000/- which the defendant accepted bonafidely having faith upon the plaintiff's husband and accordingly the sale deed for the suit house was registered on 18.08.1973. Later on, however defendant came to know that one person, in possession of the part of the suit house, was not a tenant as wrongly informed by the plaintiff but was a mortgagee of the plaintiff. As such, the defendant insisted upon the plaintiff to execute another sale deed for the entire amount received by her and ultimately the sale deed dated 01.10.1974 was executed for consideration amount of Rs. 30,000/-. It is the case of the defendant that he has validly acquired title over the suit house through the sale deeds executed by the plaintiff in his favour and has not committed any fraud or exercised undue influence in obtaining those sale deeds. 6 6 / 21 On these main allegations the defendant prayed for dismissal of the suit.
6. The trial court, in view of the rival pleadings of the parties, framed besides other issues, the following main issues:
(i) Is the suit barred by law of limitation.
(ii) Whether the sale deed dated 18.08.1973 is showy and
inoperative.
(iii) Whether the sale deed dated 01.10.1974 is void ab initio and liable to be set aside.
(iv) Whether the plaintiff or defendant has got right, title and interest in the suit property.
7. After hearing the parties and considering their evidence the trial court came to the finding that the sale deed dated 18.08.1973 was not a showy document but was a valid and genuine document for consideration and the defendant has acquired valid title over the suit house on the said basis. It has been found that the later sale deed dated 01.10.1974 was void ab initio. The trial court below has further held that the suit was barred by limitation. On these findings the suit was dismissed.
8. In appeal, the learned appellate court below framed two points for consideration in view of the rival submissions of the parties, which related to the validity of the sale deed dated 18.08.1973 7 7 / 21 and the validity of the sale deed dated 01.10.1974. After elaborately considering the evidence of the parties, the learned appellate court below has come to hold that the defendant has failed to establish that the consideration amount for the sale deed dated 18.08.1973 was Rs. 21,500/-. However, thereafter, the learned appellate court below also examined the evidence of the defendant regarding the payment of the said amount of Rs. 21,500/- and came to the finding that the defendant could not establish his case of the payment of the aforesaid amount. The learned appellate court below further came to the finding that the defendant had exercised undue influence upon the plaintiff and the sale deed 18.08.1973 was a showy and colourable document which has remained inoperative. The learned appellate court below also held that the sale deed dated 01.10.1974 was a forged, unlawful and inoperative document which was void ab initio.
9. The learned senior counsel appearing on behalf of the appellant has mainly submitted that the suit filed by the plaintiff was barred by limitation as the primary relief is for declaration of the sale deed dated 18.08.1973 as sham and inoperative transaction by filing the suit in the year 1982. It has been contended that the averments made in the plaint clearly show that the plaintiff was fully aware of the sale deed being executed by her and even believing the case made out by the plaintiff to be true, she was also aware that she was 8 8 / 21 executing a showy sale deed and the same was to be used for the purpose of obtaining loan from the Industries Department or at least for the purpose of showing that the defendant had the title over the suit property. It has been contended that the plaintiff has accepted that the defendant redeemed the two mortgages upon the suit house subject matter of the sale deed in question but has tried to explain the same on the ground that it was done on behalf of the plaintiff with the money paid by her for this purpose and further the plaintiff has also admitted the possession of the defendant over the suit property but has tried to explain the same on the ground that the defendant had come in possession on the basis of fraudulent misrepresentation. It has been further argued that the plaintiff has also admitted that the defendant has got his name mutated in the municipality with regard to the suit house but again has alleged the same to be the fraudulent act of the defendant. Thus the learned senior counsel has emphasized that from the own case of the plaintiff as made out in the plaint, all the ingredients showing acquisition of title through duly executed and registered sale deed have been made out and the legal effect of the same can only be taken away by a suit filed within the prescribed period of limitation. It has been contended that the sale deed dated 18.08.1973 in question, being a registered instrument, will be presumed to have been validly executed conferring title upon the 9 9 / 21 purchaser and its legal effect can only be taken away through a decree passed by a competent court in a suit filed within the prescribed period of limitation. The learned senior counsel has urged that the suit has been filed beyond three years of limitation as prescribed in Article 59 of the Limitation Act which is applicable to the facts and circumstances of the case and even otherwise also the suit would be governed by the residuary Article 58 of the Limitation Act. It has been submitted that the trial court has rightly decided the issue of limitation holding the suit to be barred by limitation but the appellate court below on erroneous findings has wrongly reversed the said finding. In view of these contentions, the learned senior counsel has further submitted that this appeal is not pressed with regard to the sale deed dated 01.10.1974.
10. Per contra, the learned senior counsel appearing on behalf of the plaintiff-respondent has submitted that from the allegations made in the plaint itself it is clear that the sale deed dated 18.08.1973 is a document which is void ab initio and as such the provisions of Article 58 or 59 of the Limitation Act will not be attracted. The assertions in the plaint, it has been submitted, show that the sale deed in question was from the very beginning a showy document meant to be inoperative and the limitation in such case for obtaining necessary declaration with regard to this sale deed would start to run only from 10 10 / 21 the date when the plaintiff got the knowledge of the assertion of title on the basis of said document, by the defendant. Relying upon para 17 of the plaint, it has been contended that the starting point of limitation will be the year 1982 itself when the plaintiff became aware of the assertions by the defendant of his title. The learned senior counsel has further contended that the execution of the second sale deed by the plaintiff in favour of the defendant itself shows that the first sale deed was a showy transaction and had never been acted upon between the parties. It is his further submission that the defendant cannot now be allowed to turn back and disown the sale deed of the year 1974 and assert that only the sale deed dated 18.08.1973 was a valid document. The learned senior counsel has extensively referred to the findings of the appellate court in order to buttress his submission that no consideration money was paid by the defendant to the plaintiff and in fact nothing was to be paid as the sale deed was actually a sham transaction. It has been submitted that there was relationship of mutual trust between the plaintiff and her husband on the one hand and the defendant on the other, and the sale deed dated 18.08.1973 was created by the plaintiff only for the purpose of helping the business of her husband which he was to start jointly with the defendant. It has been further submitted that in view of the findings of fact recorded by the appellate court which are binding on 11 11 / 21 this court in second appeal, this appeal has got no merit and no substantial question of law arises for consideration.
11. There is no dispute that the plaintiff was the title holder of the suit house. The plaintiff has stated in the plaint that her husband and the defendant agreed to establish a small scale industry after obtaining loan from the District Industries Office and the plaintiff agreed to the suggestion of her husband for execution of a showy sale deed for her house in favour of the defendant in order to enable him to obtain loan from the Government, as he had no land in Biharsharif. The plaintiff has accepted the execution of the showy sale deed on 18.08.1973 in favour of the defendant. The plaintiff has further accepted that the defendant redeemed the two mortgages of the suit house on her instruction with her money and also came in possession of the suit house as well as its original sale deed on false pretext. However, the plaintiff has asserted that she became aware of the fraudulent design of the defendant in the year 1982 when he started setting up independent business in the suit house without the knowledge of the husband of the plaintiff. The plaintiff has also stated that thereafter she came to know that the defendant has also got his name mutated in the municipality for the suit house. On the basis of these basic facts, the plaintiff has claimed the relief for declaration that the sale deed dated 18.08.1973 was showy and inoperative 12 12 / 21 document with further relief for declaration of title and recovery of possession.
12. Thus from the averments made in the plaint it is pellucid that the primary relief is the relief against the sale deed dated 18.08.1973 because unless the said declaration is given to the plaintiff, the further relief for declaration of title and recovery of possession cannot be granted. It has been accepted by the plaintiff that she has executed the sale deed dated 18.08.1973 and got it registered. It has also been accepted by the plaintiff that the said sale deed was to be used by the defendant as document of title for obtaining loan from the Government Department or at least for the purpose of showing necessary qualification of having immovable property for establishing an industry in Biharsharif. It is not the case of the plaintiff that she was not aware of the legal effect of the said sale deed. It is now well settled that a registered sale deed is presumed to have been validly executed with all its legal consequences. Moreover, the plaintiff has sought the declaration also on the ground that the fraud, misrepresentation and undue influence have been adopted and exercised by the defendant in obtaining the same. The relevant statements made in the plaint are quoted herein below:
^^;g fd eqnky; us pUn rjg dh mYVh lh/kh ckrsa Qhnoh;k dks 13 13 / 21 Hkh le>k;s vkSj eqnky;g ds dgus ds eqrkfcd Qhnoh;k us ,d uqek;lh olhdko; dk o rkjh[k 18-8-1973 bloha dks dyhy ekyh;r eks0 dks 2000@& nsdj cuke dks cgd ewnky; lhrklju ds uke ls okMZ la[;k 8 gkWyfMax la[;k 50 dk dj fn;k** "......mu nksuksa olhdk dk udy gkfly fd;k rks Qhnoh;k dks ;g igyh ckj irk pyk fd Qhnoh;k ij ,d cgqr cM+k QzkWM eqnky;g us fd;k gS---------..............."
"---- tks /kks[kk o Qjso esa ykdj vaM~;w baQY;ks,l a ds djds vey esa yk;k x;k Fkk dHkh Hkh eqnky;g [kjhnkj u Fks oks u :i;k vnk fd;k u oks dCtk esa vk;s oks u vly olhdk dHkh Hkh muds ikl Fkk] vly olhdk ljdkjh egdes dks fn[kykus ds cgkus Qhnoh;k ls /kks[kk nsdj ys fy;k x;k Fkk oks dCtk Hkh jkstxkj ds iSjoh ds cgkus ------ /kks[kk nsdj eqnky; us ys fy;kA"
";g fd mijksDr ckrksa ls ;g lkQ tkfgj gksxk fd fo'okl?kkr djds oks /kks[kk djds lHkh dk;Zok;h vey esa yk;s x;s gSa tks csoDr is'kh eqdnek gktk ds lkQ tkfgj gksxh------"
13. From these statements in the plaint, it is manifest that the plaintiff has in fact sought to avoid the sale deed on the ground of fraud and undue influence but has framed the suit simpliciter for the declaration of the sale deed as showy and inoperative document. The legal effect of a validly executed and registered sale deed has been laid down by the apex court in the matter of Prem Singh Vs. Birbal 14 14 / 21 (2006(5)SCC 353) as follows:
"...There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption ....."
14. From the statement made in the plaint as well as from the recitals in the sale deed dated 18.08.1973, it is clear that the said document cannot be said to be void ab initio and there cannot be "presumptive invalidity" attached to such a transaction. Such document comes within the category of documents which remain valid, on the principle that the apparent state of affairs is the real state of affairs, until the facts invalidating the same are established. It is only then that such document becomes void from the very beginning as distinguished from a document, witnessing a voidable transaction, which ceases to have legal effect from the day on which it is set aside and not prior to it. The plaintiff was therefore, required in law to bring a suit for cancellation of the said document or at least seeking necessary declaration in order to avoid its legal effect. Thus Article 59 of the Limitation Act or the residuary Article 58 are clearly applicable to the facts and circumstances of the case. Under both 15 15 / 21 these articles the starting period of limitation is three years from the date when the facts entitling the plaintiff to obtain the relief against the document by cancellation or setting aside the same first accrues. The plaintiff was well aware that she had executed a registered document of sale in favour of the defendant which according to her was a sham transaction and therefore her right to obtain the necessary relief by declaration or by cancellation had already accrued to her on the date of the execution of the document itself. The subsequent acts of assertion of title by the defendant on different dates will not be material for the purpose of limitation which starts running when the right to sue first accrued.
15. The submission on behalf of the plaintiff that the sale deed was void ab initio has inherent fallacy. If the sale deed according to the plaintiff was void ab initio there was no need for her to obtain the declaration as prayed in the suit but the averments in the plaint suggest that the sale deed stands between the plaintiff and her claim for declaration of title and recovery of possession over the suit land and the plaintiff has the apprehension that the sale deed, if left outstanding, would cause serious prejudice to her right, title and interest over the properties. Therefore, once the plaintiff has chosen to file the suit for declaration that the sale deed be adjudged as sham and inoperative document, the three years of limitation as provided in 16 16 / 21 Article 59 or at least in the residuary Article 58 would become applicable and the suit filed in the year 1982 for the declaration against the sale deed of 1973 is clearly barred by limitation. This view is also supported by the judgment of the apex court in the matter of Abdul Rahim Vs. Abdul Zabar (AIR 2010 SC 211) laying down as follows:
"...A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place..."
Their Lordships in the aforesaid judgment has referred to the another judgment of the apex court in the case of Md. Nurul Hodda Vs. Bibi Raifunnisa & Anr.(1996 (7)SCC 767) wherein also this aspect has been illumined as follows:-
"...When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which 17 17 / 21 otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled, or set aside or rescinded . Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or avoidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled..."
16. From the case of the plaintiff it appears that the sale deed dated 18.08.1973 was intended to create some rights or obligation, as the reason for creation of that document has been said to be for the purpose of obtaining the loan from the government. In this view of the matter also the said sale deed cannot be said to be a sham transaction or inoperative document for all purposes. Moreover, there is no evidence on record on behalf of the plaintiff to show that the ostensible or limited purpose, for which the sale deed was brought into existence, had in fact been achieved, and thereafter the sale deed had lost its utility. Conversely, however, it has been accepted by the 18 18 / 21 plaintiff that the two mortgages over the property, subject matter of the sale deed, had in fact been redeemed by the defendant though the plaintiff had explained the same by stating that the redemption was at the instance and from the money of the plaintiff. Even if the explanation of the plaintiff is accepted for a moment, it does not appeal to reason as to how a mortgage can be validly redeemed by a person having no right, title or interest in the mortgaged property and not acting as an agent under express authority of the mortgagor. The possession of the defendant over the property subject matter of the sale deed has also been admitted but tried to be explained by stating that the possession have been obtained after misrepresenting the facts. The appellate court below has apparently laid much emphasis on the non-payment of the consideration money in the manner as claimed by the defendant as well as the inadequacy of the consideration money but has overlooked the aspect that these considerations will only entitle the plaintiff to avoid the sale deed and will never make the sale deed void ab initio. The passing of title to the purchaser over the purchased property can be dependent upon the payment of consideration money if this intention of the parties is reflected from the recitals of the sale deed but that, too, can be investigated only when the suit is filed within the prescribed period of limitation. Once the plaintiff has chosen to file the suit for the relief 19 19 / 21 against the document, it would be governed by Article 59 of the Limitation Act and even if Article 59 is not attracted, the residuary Article 58 would apply. It would be apt here to refer to the judgment of the apex court in the matter of Naingawwa Vs. By Rappa (AIR 1968 SC 956) where their Lordships were considering the applicability of the Limitation Act almost in similar facts. In that case the plaintiff prayed for a decree for possession over the suit properties on the ground that she was the owner of the properties in spite of the gift deed executed by her, with the assertion that the gift deed had been obtained by her husband by exercising undue influence and dominating her will with regard to four plots out of which two had been inherited by the plaintiff from her father and other two plots, although belonged to her husband but after the redemption of mortgage for those two plots, reconveyance had been taken in her name. It was the specific case of the plaintiff that her husband represented to her that the gift deed related to only the two plots with regard to which the reconveyance stood in the name of the plaintiff but in fact had included in the gift deed the other two plots also which were inherited by the plaintiff from her father. In these circumstances, their Lordships concluded that in view of the express language of Article 91 of the Limitation Act (corresponding to Article 59 of the present Act) the prescribed three years of limitation would commence 20 20 / 21 from the date when the plaintiffs came to know the facts entitling her to have the instrument cancelled or set aside and thus their Lordships held that the relief with regard to the two plots with regard to which the plaintiff knowingly executed the gift deed even, under undue influence, would be barred as the limitation would start to run from the date of the execution of the gift deed itself.
17. The learned counsel appearing on behalf of the plaintiff has relied on the decision of the apex court reported in 2010(2)SCC 194 for his submission that the right to sue under Article 58 of the Limitation Act would arise only when the right asserted in the suit is infringed or there is threat to infringe that right. In this decision the suit was dismissed as barred by limitation under Article 58 of the Limitation Act holding that the cause of action arose much earlier i.e. on the date of compromise in between the parties and the suit having been filed 18 years thereafter. It has been held that the right to sue accrues only when a clear and unequivocal threat to infringe the right is made and mere existence of wrong entry in the revenue record was considered not sufficient infringement of right of the plaintiff. The facts are clearly distinguishable in the present case, because here the plaintiff was aware on the date of execution of the sale deed in question that the same was not a valid document, and therefore, her right to obtain the necessary relief against the said document first 21 21 / 21 accrued on that date itself and the suit filed 9 years thereafter was clearly barred by limitation. In view of the reasons and discussions above, the substantial question of law with regard to the limitation for the relief against the sale deed dated 18.08.1973 is answered in favour of the appellant and it is held that the suit filed by the plaintiff was barred by limitation.
18. As a result, this second appeal is allowed and the suit is dismissed as barred by limitation. Accordingly the judgment of the appellate court is set aside and that of the trial court is upheld on the issue of limitation. In the facts and circumstances the parties shall bear their own costs.
(Vijayendra Nath, J) Patna High Court/ The 29 of February, 2012/ A.F.R./Nitesh