Andhra HC (Pre-Telangana)
Potluri Saraswathi vs Vallabhaneni Veerabhadra Rao on 11 March, 2002
Equivalent citations: 2002(3)ALD690
JUDGMENT G. Bikshapathy, J.
1. The appeal is filed against the judgment and decree passed by the learned Senior Civil Judge, Gudivada in OS No.169 of 1984, dated 21-11-1988 dismissing the suit.
2. Appellant is the plaintiff. She filed a suit against the defendant, who is her father for recovery of possession of the plaint schedule property consisting of a total extent of Ac. 10-07 cents. It is the case of the plaintiff that she purchased Item-1 ofthe plaint schedule land having an extent of Ac. 3-07 cents from her brother V. Gopala Krishna for a consideration of Rs.24,500/- under a registered sale deed dated 14-9-1971. It is her case that a sum of Rs.24,000/- was paid as on the date of the agreement of sale and possession was given to her pending registration. On the very same day when the Sale Deed was executed i.e., 14-7-1971, the said Gopala Krishna executed a registered gift deed in her favour in respect of the land of 7 acres and she was put in possession of the said land. Ever since the execution of the gift, she has been enjoying the same. The plaintiff also executed a General Power of Attorney in favour of her father the defendant to look after her properties and he has been looking after the property by virtue of the power conferred under the General Power of Attorney. However, the General Power of Attorney was cancelled on 5-2-1981. It is the case of the plaintiff that in June, 1983, the defendant requested her to make her own arrangements to cultivate the land, but he created some obstructions at the time of harvesting the crop. Therefore, the plaintiff initiated proceedings under Section 144. The learned Magistrate passed Orders on 3-12-1983. Thereupon, the plaintiff filed a suit initially for perpetual injunction, but subsequently, it was amended on 17-1-1988 seeking decree for recovery of possession. The defendant filed the written statement. While denying the averments made in the plaintiff and he submitted that himself, his father and his son Gopala Krishna who was minor of 8 years partitioned the joint family property under a registered partition deed on 25-4-1955 so as to avoid the impending legislation of ceiling on agricultural lands and the said partition was only nominal and it was never acted upon and the entire property was continued to be joint. The cultivation was joint and they were also living jointly. It is also stated that Agreement of Sale dated 25-8-1970, which was executed in favour of the plaintiff by his son Gopala Krishna was also nominal and no consideration was passed and it was ante dated. Similarly, the Sale Deed and the gift deed executed on 14-9-1971 were nominal documents and they were executed on the ill advise to avoid the proposed land Legislation. It is also stated that Sale Deed was not supported by consideration and his son Gopala Krishna was in USA from 1961 to 1971 to pursue higher studies. Therefore, no Agreement of Sale could have executed by him. It is also stated that there was no obligation on the part of the Gopala Krishna, to gift away any property as he was not the father of the appellant or Kartha of Hindu Joint Family. It is also stated that it is not even gift made to her at the time of her marriage. Therefore, there was no obligation to execute Gift Deed in her favour. The possession of the suit land was never given to the plaintiff and the defendant has been in possession and enjoyment throughout in his own right and not as a General Power of Attorney. Sale Deed and Gift Deed were never acted upon. It was also alternatively contended that the defendant has perfected the title by adverse possession.
3. The trial Court based on the respective contentions framed the following issues:
1. Whether the plaintiff is not entitled to possession of the plaint schedule properties?
2. Whether the suit is not barred by time?
3. Whether the gift deed dated 14-9-1971 in favour of the plaintiff is only a nominal document never intended to be acted upon?
4. Whether the partition between the defendant and his son seen from document dated 25-4-1955 was ever given effect to and the family of Dl and his son continued to be joint as an undivided Hindu Joint Family?
5. Whether the gift deed dated 14-9-1971 is void for the reasons mentioned in the written statement?
6. Whether the sale deed dated 14-9-1971 is only a nominal document and never intended to be acted upon?
7. Whether the plaintiff is entitled to the injunction prayed for?
8. Whether the son of Dl is a necessary and proper party to the suit?
9. To what relief?
On behalf of the plaintiff, she was examined as PW1 and Exs.A1 to A24 were marked, eight witnesses were examined for the defendants and Exs.Bl to B13 were marked. The trial Court found that the partition between the defendant, his father and his son in 1955 was only nominal and that the family continued to be joint. It also found that the sale deed was not supported by any consideration. Thus, the sale deed and gift deed were nominally executed documents to avoid the proposed land ceiling Legislation. The trial Court further found that the suit schedule lands were always with the possession and enjoyment of the defendant and he has also perfected his title by adverse possession. Therefore, the trial Court dismissed the suit, against which the present appeal has been preferred by the unsuccessful plaintiff.
4. The issues that arise for consideration in the appeal are as follows:
1. Whether the partition effected on 25-4-1955 was nominal and sham transaction?
2. Whether the Agreement of Sale dated: 25-8-1970 and Sale Deed as well as the Gift Deed dated 14-9-1971 are sham and nominal and whether in fact they were not acted upon?
3. Whether the defendant is estopped from raising the plea against the admitted and proved contents of the documents?
4. Whether the plaintiff was entitled for possession of the suit schedule property?
5. On the basis of the evidence adduced, it is clear that the joint family of the defendant consisted of himself, his aged father and his son Gopala Krishna. The defendant had one son Gopala Krishna and two daughters. The plaintiff was the second daughter of the defendants. It is also admitted that the partition of the joint family properties was effected in 1955 by virtue of the registered deed of partition.
6. The plaintiff as PW1 deposed that she purchased one item of suit schedule property under a registered sale deed Ex.A1 and another item was acquired through Gift Deed Ex.A2 from Gopala Krishna. The sale was effected through registered sale deed and the gift was also a registered Gift Deed and the Sale Deed was preceded by the Agreement of Sale Ex.A24. Consequent on the execution of Exs. Al and A2, the lands were being cultivated by her own father defendant. Even prior to execution of Exs.A1 and A2 she has given General Power of Attorney in favour of her father to manage her properties. Of course, the Sale Deed and the Gift Deed were subsequent to the General Power to Attorney. It is her case that she is entitled for the possession of the suit schedule property by virtue of the aforesaid documents. DW1 is the defendant. He deposed that they partitioned the joint family properties in 1955. He also admitted that some properties were also allotted to the daughter at the time of partition. Even though he stated that he is having a document, he did not produce the same. It was the contention of the defendant that the Partition Deed was a nominal document. It was never intended to be acted upon. It is also not in dispute that the suit schedule property fell to the share of Gopala Krishna in the partition and Ex.A1 and Ex. A2 were executed by Gopala Krishna in favour of the plaintiff and the defendant is an Attestor. It is also seen from the evidence that consequent on the execution of the Sale Deed and the Gift Deed, Exs. Al and A2, the name of the plaintiff was mutated in the revenue records. But, it is sought to be contended that the possession was always with the defendant. The evidence was also adduced to the effect that the possession was with the defendant and he raised sugar-cane crop and he has sold to the sugar factory and he produced certain documents. He also produced the letters issued by the sugar industry to the effect that the plaintiff did not supply any sugar cane. It is also stated by DW that as on the date when Ex.A24 was executed, the Agreement of Sale dated 28-7-1980, Gopala Krishna was not in the station and he was in the America for pursuing the studies.
7. It is to be noted that documents namely Partition Deed, though not produced, the Agreement of Sale Ex.A24 and Sale Deed Ex.A1 and Gift Deed Ex.A2 were executed in accordance with law and it is also admitted by defendant that they were validly executed, but he tries to interdict the documents on the ground that these documents executed nominally and they were never intended to be acted upon. It is only to save the impending Land Legislations, such documents were executed. Therefore, these documents cannot confer any right on the plaintiff to claim the property. It is also to be noted in this regard that the defendant himself has stated that some properties were also given to the daughters and that the Partition Deed was in his possession and the same was not produced for the reasons best known to him and the learned Counsel for the appellant urges that necessarily adverse inference has to be drawn as otherwise, the factum of allotment of land to the daughter would be revealed. More over, the statement of the defendant that some lands were allotted to the daughters has to be believed as in 1962 subsequent to the partition, plaintiff executed a General Power of Attorney in favour of her father defendant to manage the properties. Thus, it goes to establish that the plaintiff was having some property in her favour and that property was sold. It is also" in evidence that she purchased some more properties from third parties and sold the same before purchasing the property under Ex.A1.
8. The learned senior Counsel appearing for the appellant would further submit that adverse inference has to be drawn for not producing the Partition Deed and he relies on the decision of the Supreme Court reported in Gopal Krishnaji Ketkar v. Mohamed Haji Latif, . He also submits that the defendant is estopped from contending that Ex.A1, Ex.A2, Ex.A24 are not true and that they are nominal documents, when he himself attested the documents. He relies on the decision of the Madras High Court reported in Jegannatham Pillai v. Kunjithapatham Pillai, AIR 1972 Mad. 380. The evidence is also available to the effect that Gopala Krishna filed returns under the provisions of the Land Reforms Act before the Land Reforms Tribunal and when the suit schedule lands were included in the computation of his holding on the ground that the Sale Deed and Gift Deed cannot be relied, he filed Appeal No.94 of 1978 and appellate Tribunal recorded a finding that Sale Deed and Gift Deed are bona fide and genuine and the lands covered by the said documents are to be deleted from the holdings of Gopala Krishna and allowed the appeal on 3-8-1978. This order became final. By virtue of this Order, the Gopala Krishna, who contended before the appellate Tribunal that the suit schedule lands were either sold or gifted away to the plaintiffs and they have to be deleted from his holdings is accepted. It is also the case of the plaintiff that she was asked to give an affidavit to the effect that these lands were acquired under the documents. Therefore, having obtained the advantage under the documents, by deleting the suit schedule properties from his holdings and thus becoming non-surplus holder, can it be contended that defendant could put up a contrary contention. The learned Counsel would submit that the said decision of the appellant Tribunal is binding as a judicial precedent and relies on the decision of the this Court reported in Chanumolu Nirmala v. Chanumolu Indira Devi, 1994 (1) APLJ 394 (DB). The learned Counsel would thus submit that the defendant is estopped from raising the plea after obtaining the benefit out of the document and then again resile and contend that it is a nominal and sham document. He submits that the doctrine of estoppels operates against the defendant and he relies on the decision of the Supreme Court reported in R.N. Gosain v. Yashpal Dhir, .
9. On the other hand, the learned senior Counsel for the defendant Mr. Chandrasekhar Rao submits that the finding recorded by the trial Court that the Partition Deed was only a nominal document and the same cannot be said to be erroneous finding. He submits that such a plea is always available. He further submits that Ex. A-24 and Exs. Al and Ex. A2 though admitted to have been executed, but they are equally nominal and sham documents and they are invalid as they were never acted upon. He contends that during the period when Ex.A28 was executed, Mr. Gopala Krishna was not in the station and the family of defendant is an affluent family having extensive fertile lands and there was no need for Gopala Krishna to sell away the properties for Rs.24,500/-. The air fare from USA to India was about more than Rs.15,000/-. Therefore, it is incomprehensible that Gopala Krishna came to India to receive Rs.24,000/- by spending Rs.15,000/- towards air fare alone and that no prudent person would act in this manner. The he tries to explain the situation contending that there was no necessity to sell the land. With regard to the Gift Deed, he submits that an extent of 7 acres was gifted away under Ex.A2, it was equally nominal; Gopal Krishna was under no obligation to gift away the property. He submits that to decide whether the transaction is nominal or sham, intention of the parties and their relations and whether they are supported by the considerations and subsequent conduct are all relevant including the custody of the documents and these ingredients are relevant. He seeks to rely on the decision reported in Thakur Bhimsingh v. Thakur Kan Singh, , and Shaik Abdul Khader v. Vakantham Nagabhushana Rao, . He also submits that if the transaction is sham and nominal, it is ab initio, void and no rights would emanate from that document. He relies on the decision reported in Bandaru Subbaraidu v. Alluri Satyanarayana Raju, AIR 1962 AP 25. He also submits that if the transfer is gratuitous, the burden is upon the donor to prove that it is a real transaction and in this case it was not proved at all. He relies on the decision of the Delhi High Court reported in Raj Narain Aggarwal v. Bay Nath Khanna, . With regard to the possession of the documents Sale Deed and Gift Deed the defendant was in possession through out, but only at a later stage in his absence, the documents were taken away. Therefore, even the possession of the documents is established. He further submits that the judgment of the Land Reforms Tribunal is not binding and it does not constitute either estoppel or res judicata. He relies on the decision of the Supreme Court reported in Bhagwan Dayal v. Mst. Reotidevi, . Even the decision on the incidental matters, it would not constitute res judicata in subsequent proceedings. He relies on the decision of the Supreme Court reported in G. Venkatachala Odayar v. Ramchandra Odayar, , and Siddareddy Chenchu Kami Reddy v. Alaganadhaswamy Temple, by its Executive Officer, 1969 (1) An.WR 228. He also submits that doctrine of approbation and reprobation has no applicability. He relies on the decision of the Supreme Court reported in P.R. Deshpande v. Maruti Balaram Haibatti, . He further submits that the Court has to decide the issue with reference to the evidence on record as to whether the transaction are sham, nominal or invalid applying the decisions laid down in Thakur Bhim Singh 's case (supra) and also Shaik Abdul Khader's case (supra). Further, even assuming that there is a collusion between the father and the son i.e., defendant and Gopala Krishna and any documents emanated out of collusion are invalid. Therefore, the property should be allowed to lie where it" was prior to the execution of the documents as per the decision of the Supreme Court reported in Immani Appa Rao v. Gollapalli Ramalingamurthi, .
10. With regard to the drawing of adverse inference, he submits that the decision relied on by the learned Counsel for the appellant does not apply to the facts of the case and when there is enough evidence to show that the case of the appellant was not true and that the drawing of adverse inference for non-production, depends on the facts of each case. He relies on the decision of the Supreme Court reported in Harpal Singh v. Devinder Singh, , Krishna Kumar Sinha v.
The Kayastha Pathshala (Prayag) Allahabad, AIR 1966 All. 570, Smt. Indira Nehru Gandhi v. Raj Narain, , State of Karnataka v. Main Patel, , Ramrati Kuer v. Dwarika Prasad Singh, and Gopal Krishnaji Ketkar's case (supra).
11. On the basis of available material both on facts and law, let us consider the issues framed.
12. With regard to the partition deed of 1955, defendant as DW1 himself has categorically deposed that the Partition Deed was made in 1955, dividing the property between his father, himself and his minor son. It was also stated by him that his father was allotted 13 acres of land and himself and his son got 30 acres each. He also accepted that the Partition Deed was registered Partition Deed and the document was in his possession. It is also in evidence that the Government records were changed and the names were mutated in accordance with the 1955 partition. It is also in evidence that the name of the plaintiff was figuring in Adangals for Faslies 1391 and 1392. Further, it was also accepted that the lands, which fell to the share of the defendant and also to his son were reflected in the declarations filed by them under the agricultural and ceiling Laws before the Tribunal. Defendant also stated that in the Partition Deed, certain lands were allotted to his daughters namely plaintiff and another.
13. The learned Standing Counsel for the appellant, however, submits that for not producing the Partition Deed, even though it was in his possession and he was aware of the contents, adverse inference would be drawn as per the decisions referred to by him in the preceding paragraphs. On the other hand, it is seriously disputed by the learned Counsel for the respondent on the ground that no adverse inference can be drawn for not producing the documents inasmuch as, no notice was issued calling upon the defendant to produce the documents. Therefore, the presumption cannot be successfully raised. He takes assistance from the decisions referred to above. As can be seen from the admission of the defendant himself, that there was in fact a registered Partition Deed in 1955 and the lands were allotted to his father, himself and his son and daughters and necessary mutations were also affected in revenue records. Further, the defendant and his son also filed the declarations under the Agricultural Land Ceiling Laws declaring such of the lands, which fell to their respective share by virtue of the Partition Deed of 1955 and that the defendant has filed declaration as a family unit consisting of himself, his wife and no declaration was filed in the capacity of joint family. When the defendant himself accepts the existence of the document, even though it was in his possession, he did not file the same into the Court, the question of drawing adverse inference would not arise. The contents of Partition Deed as revealed by the defendant himself are not disputed by anybody including the defendant. The only defence which he is trying to put up is that it was only a nominal and sham document. This aspect has to be concentrated rather than drawing adverse inference. The adverse inference can be drawn only when the document is in possession of a person and if such document is filed, the contents would go against the interest of the said person. But, in the instant case, he himself accepting that there was a Partition Deed and that too it is a registered Partition Deed. In such a case, when the contents are admitted even though, such document is not produced, it has to be necessarily presumed that existence of such a document. Therefore, the necessity for drawing adverse inference or issuing notice by the plaintiff calling upon the defendant to produce the documents would not arise. But, how far the claim of the defendant that it was only a sham and nominal and it was never intended to be acted upon has to be considered.
14. The burden of proving that Partition I Deed was a sham and nominal is on the defendant. He neither filed the document nor led any evidence on this aspect except his sole testimony. In order to ascertain whether transaction is a sham and nominal, whether any consideration was paid at all, the motive behind entering into such transaction, the possession of the property alleged to be transferred was given to the transferee as also custody of the Deed of Transfer and the conduct of the parties are relevant factors. (Ref: M. Pullaiah v. Guravaiah, 1969 (1) An. WR 209. the question of passing of consideration would not arise in respect of Partition Deed. But, what is the conduct of the parties, whether they have acted upon or not are the crucial questions. As already noticed, the division of property took place between the family members and also their names were mutated in the Government accounts and they have also reflected the lands, which was affected under 1955 Partition Deed in the respective declarations.
15. It is also not the case that the suit was filed by the beneficiary namely Gopala Krishna or the defendant seeking declaration that the Partition Deed was sham and nominal and it was never acted upon. Except the sole testimony of the defendant, to say that the property was joint and that the family continued to be a joint and the property being a joint family property, there is no evidence at all either documentary or oral.
16. It is also to be noted in this regard that the partition was affected in 1955 and the parties under the Deed kept silent, even till today, without seeking proper declaration. That is yet another militating factor against the defendant and supports the view that the deed was genuine and it was acted upon.
17. Under these circumstances, it has to be clearly held that the defence tried to be projected by the defendant that the partition was sham and nominal and it was never intended to be acted upon is absolutely untenable, and there is any amount of clinching evidence to establish that the partition was real, genuine and it was acted upon. Thus, the trial Court failed to consider this aspect and rendered an erroneous finding on this issue.
18. Accordingly, I set aside the finding of the trial Court and the Partition Deed is sham and nominal hold that the said Deed was genuine and real.
19. The next question that calls for consideration is whether the Sale Deed and the Gift Deed are true and valid or whether they are nominal and sham documents?
20. With regard to the issue Nos. 2 and 3, it is to be noted that four pivotal documents are required to be considered.
21. First document is Agreement of Sale Ex.A24 and the Sale Deed Ex.A1, Gift Deed Ex.A2 and the certified copy of the document in the appeal Ex.A8.
22. It is not in dispute that the defendant was the attesting witness to Exs.A1 and A2 and it is also in evidence that he was aware of the Order Ex.A8 of the Land Reforms Appellate Transaction. DW2 is the scribe of Ex. Al and A2, DW3 is scribe of Ex.A24, Dv/4 is the attestor of Ex.A24. DW6 is the attestor of Exs.A1 and A2 DWs.5 and 1 spoke about the raising of crops by the defendant and DW8 alleged to be lessee, who raised the sugar crop on behalf of the defendant. The evidence of defendant is most essential, which would clinch the issue from the roots. The documents Exs.A1 and A2 are admitted by the defendant, but he only fries to impress upon the Court that they are sham and nominal documents and they were never intended to be acted upon and the evidence was let in by the defendant that no consideration was passed when the Agreement of Sale and Sale Deed were executed. It was also stated that when the Gift Deed was executed, the plaintiff was not present and she had not accepted the gift. Further evidence was sought to be pressed into service to the effect that the lands were in possession of the defendant and they were in fact cultivated by the defendant or through tenants. I have already held that the partition of 1955 was genuine and real and it was acted upon in toto. In the preamble of the document Exs.A1 and A2, it is clearly mentioned that the land, which was sold under Ex.A1 and properties were gifted under Ex.A2 were acquired by the Gopala Krishna by virtue of the Partition Deed of 1955 and the defendant is none-else-than the father has complete knowledge of the situation. It is also admitted by the defendant that after execution of the documents, the Adangals were also issued in the name of the plaintiff. But, the contention of the defendant is that even though these documents were executed, yet, they were never acted upon and the possession and continued to be with the defendant and the defendant raised the crops and the General Power of Attorney though issued in favour of the defendant was never utilised at any point of time and it is only a paper transaction.
23. It cannot be disputed that Exs. Al and A2 were duly executed in accordance with law. In this regard, it is also necessary to refer to Sections 91 and 92 of the Evidence Act.
24. Under Section 91 when a term of contract or the grant or any dispossession of the property was reduced to the form of a document of which is required to be reduced in such form, no evidence, shall be given in proof of the term of such dispossession or contract except document itself or the secondary evidence subject to certain conditions. Under Section 92 of Evidence Act, when a document has been properly executed as required under Section 91, no evidence of any oral agreement or statements shall be admitted as between the parties for the purpose of contradicting or varying or subtracting from the terms subject to certain provisions as contained in Section 92. It is open for the party to prove that the invalidity on the ground of fraud, want of due execution, want of capacity in any contradicting party or failure of consideration etc. But, these exceptions are not present in the instant case. The execution of the document is agreed upon and Exs. Al and A2 were required to be registered and in fact it was admitted that they were registered documents. It was not the case of the defendant that it was vitiated by fraud or any other illegality. But, it was sought to be avoided on the ground that it was only a sham and nominal document. Therefore, even considering the matter under Sections 91 and 92, no evidence contradicting the terms is admissible as it will not fall in any of the exceptions contained in proviso. The requirement of Section 91 of Evidence Act have been complied with and they are compulsorily registrable documents under the provisions of the Registration Act and in such situation, the bar operating under Section 92 would stare at the defendant. He can avoid only if the transaction is fraudulent one or it is a misrepresentation. But, this defence is also cannot be said to be available to the defendant inasmuch as the transaction was between Gopala Krishna and the plaintiff. Admittedly, Gopala Krishna executed the documents in favour of the plaintiff and Gopala Krishna never created any obstructions nor challenged the documents stating that they are nominal and sham documents. Further, when the defendant examined various other witnesses, namely scribes and attestors of these, documents, it is not understood why he did not examine his own son Gopala Krishna to the effect that no consideration was passed on and it is only sham and nominal document. The only appropriate person, who could speak to the nominal nature and the other essential features of the document, is the person, who executed the document. More especially, when he is living and he is very much alive to the situation. For failure to examine Gopala Krishna, creates any amount of suspicion on the evidence of the defendant, who is none-else-than the father. It is also to be noted that defendant has the knowledge that Gopala Krishna has filed declaration in respect of the lands which fell to his share under 1955 Partition Deed. In the said declaration, he also included the lands covered by Exs.A1 and A2 when they were included in the holdings of Gopala Krishna. He filed an appeal before the learned Land Reforms appellate Tribunal contending that they are genuine documents and the ownership vested with his sister, the plaintiff herein. It was contention of the learned Government Pleader in the said appeal that they were sham and nominal documents. But, the appellate Tribunal had categorically held that they are genuine documents and therefore, deleted extents covered by Exs.A1 and 2. Thus, Gopala Krishna had obtained complete benefit of all these documents holding that these are valid and genuine documents and definitely this constitutes estoppel on the part of the Gopala Krishna. The principle of approbation and reprobation applies on all its fours to Gopala Krishna. But, the contention is that the same principle would not apply to the defendant. This contention has to be negatived at the threshold. When the real beneficiary is barred by principles of estoppel and an unconnected person may be father cannot be said that they will not apply to him. It is a far fetched argument to contend that the father is not bound by the principles of estoppel. It is not in dispute that the defendant was in complete knowledge of the situation by filing the appeal, his son had taken the advantage of the documents and that is the reason why he could not pressed into service, the evidence of his own son as obviously his son Gopala Krishna cannot have any defence except to accept the validity of the documents. As already noticed by me, the father cannot be said to have any locus standi to contend that Exs.A1 and A2 are sham and nominal documents. He is neither the transferor nor transferee. At the most, it may be open for the transferor to contend, it is only a sham and nominal. Therefore, a person who is remotely connected with the property has no right to contend that the document to which he is not a party that they are only sham and nominal documents. The Supreme Court in Desh Pande's case (supra), has succinctly traced out this principle. The cases relied on by the learned Counsel for the defendant would not help, inasmuch as they are criminal cases in which the Supreme Court held that mere non-examination of the listed prosecution witnesses would not lead to the inference that the prosecution failed to establish the case. But, in the instant case, the very principle of estoppel when applicable to the party to the document and the said principle cannot be allowed to be raised or invoked by the third party to the advantage of the executant of the document, in collateral proceedings. Admittedly, in the instant case, the suit was filed by the plaintiff, who is the daughter of the defendant for possession. In that suit, the father cannot be allowed to take defence that the documents are nominal and sham and they were introduced only to avoid land ceiling laws. But, this defence can only be allowed to be taken by the person, who executed the document, but not the third party. Moreover, the father has kept quite for decades without challenging the documents or seeking declaration that they are nominal and sham. When he felt that his interests would adversely affect by such documents and he has also interest in the said property, he could have impeached these documents, but did not take such steps.
25. The learned senior Counsel for the Appellant-plaintiff submits that Exs.A1 and A2 are genuine and bona fide documents covering true transactions and therefore, the defendant is estopped from contending that they are sham and nominal documents. Apart from other evidence, he strongly relies on the judgment of the Land Reforms Tribunal in LRA No.94 of 1978 Ex. A8. The learned Counsel would also submit that the judgment Ex. A8 constitutes res judicata and that general principles of res judicata, the defendant is estopped from contending that it is a sham transaction. The defendant cannot be allowed to approbate and reprobate, even though defendant is not a party, the transaction Ex. A8, which was scrutinised by the appropriate Court constituting a judicial precedent and the same is binding on the defendant also.
26. In Sahu Madho Das v. Mukand Ram, AIR 1955 SC 481, the Supreme Court observed that where the Privy Council has construed a certain document namely a Will, though the decision is not binding on a person, not a party to the litigation, yet, the decision operates as judicial precedent. Taking clue from this observation, the learned Counsel would submit that Ex. A8 though not directly binding on the defendant, it operates as a judicial precedent and the finding rendered by the Land Reforms Appellate Tribunal is valid against all the persons.
27. The Division Bench of the this Court in Chanumolu Nirmala 's case (supra), held that when once the interpretation placed by the Land Reforms Appellate Tribunal was accepted by the High Court in a civil revision, affirming that a document evidenced partition between 'A' and his son, it constitutes judicial precedent in all subsequent proceedings even between the parties, who were not the parties to the original proceedings.
28. In Gosain's case (supra), the Supreme Court observed as follows:
(10) Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage." [See: Verschures Creameries Limited v. Hull and Netherlands Steamship Company Limited, Scrutton, L.J). According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside." (para 1508).
(11) In Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker this Court was dealing with a similar situation. The High Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year's time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time. The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by 31-12-1985, i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court." It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed: (pp 655-56):
"This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. We do not wish to encourage this kind of practice for obtaining time from the Court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution."
(12) Similarly in Vidhi Shanker v. Heera Lap and Ramchandra Jai Ram Randive v. Chandanmal Rupchand this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking,
29. Taking clue from the said decision, the learned Counsel for the appellant submits that when once the Gopala Krishna had obtained the advantage of documents Exs.A1 and A2 on the ground that they are valid documents, then it cannot be turned around and said that it was only a nominal and sham document.
30. But, however, the learned senior Counsel for the respondent submits that this view was not accepted by the Supreme Court in P.R. Deshpande's case (supra). In that case, the Supreme Court referred the matter to the Larger Bench opining that the principle laid down in Gosain 's case (supra), cannot preclude the Supreme Court from exercising its jurisdiction under. Article 136 of Constitution of India. The reference was as follows:
(7) Learned Judges who referred this matter have expressed in the reference order that remedy under Article 136 is a constitutional right which cannot be taken away by legislation, much less by invoking the principles of election or estoppel. The following observations made in the reference order are worthy of quotation here:
"The principle of 'approbate and reprobate' or the law of election which is the basis of the decision in R.N. Gosain case cannot, in our opinion, be applied appropriately to preclude this Court from exercising its jurisdiction under Article 136. The doctrine of election is founded on equitable principle that where a person persuades another one to act in manner to his prejudice and derives any advantage from that then he cannot turn around and claim that he was not liable to perform his part as it was void. It applies where a vendor or a transferor of property tries to take advantage of his own wrong. This principle cannot, in our opinion, be extended to shut out or preclude a person from invoking the constitutional remedy provided to him under Article 136. The law that there is no estoppel against statute is well settled. Here it is a remedy under the Constitution and no law can be framed much less the principle of election which can stand in the way of the appellant from invoking the constitutional jurisdiction of this Court."
31. Therefore, the Supreme Court considering that matter, held as follows:
(8) The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. But that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. (vide Black's Law Dictionary, 5th Edn.) (9) It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot impede right of appeal and particularly the constitutional remedy. The House of Lords has considered the same question in Evans v. Bartlam. The House was dealing with an order of the Court of appeal whereby Scott, LJ., approved the contention of a party to put the matter on the rule of election on the premise that the' defendant knew or must be presumed to know that he had the right to apply to set the judgment aside and by asking for and obtaining time he irrevocably elected to abide by the judgment. Lord Atkin, reversing the above view, has observed thus:
"My Lords, 1 do not find myself convinced by these judgments. I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. It cannot bring myself to think that a judgment-debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election."
(10) Lord Russell of Killowen while agreeing with the aforesaid observations has stated thus:
"My Lords, I confess to a feeling of some bewilderment at the theory that a man (who, so long as it stands, must perforce acknowledge and bow to a judgment of the Court regularly obtained), by seeking and obtaining a temporary suspension of its execution, thereby binds himself never to dispute its validity or its correctness, and never to seek to have it set aside or reversed. If this were right, no defeated litigant could safely ask his adversary for a stay of execution pending an appeal, for the grant of the request would end the right of appeal. The doctrine of election applies only to a man who elects with full knowledge of the facts."
(11) A party to a lis can be asked to give an undertaking to the Court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking, no Court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior Court or even the same Court on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior Court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower Court to abide by the decree or order within the time fixed by that Court.
(12) We are, therefore, in agreement with the view of Sahai and Venkatachala, JJ., that the appeal filed under Article 136 of the Constitution by special leave cannot be dismissed as not maintainable on the mere ground that the appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court's order in abeyance for some time."
32. Thus, it is clear that undertaking given by the tenant before the High Court would not create a estoppel for filing an appeal under Article 136 of Constitution of India. In effect, the Supreme Court only clarified that there cannot be estoppel from invoking the constitutional remedy under Article 136. But, the principle on fact remains the same as held in Gosain's case (supra). The principle reiterated in para 10 of Gosain's case (supra) remains the same except to the extent that, it would not operate as an estoppel to invoke the jurisdiction of the Supreme Court under Article 136.
33. In this regard it is also necessary to refer to the contentions of the learned Counsel for the respondent that it is a sham document and that the requirement of such document has been stipulated in Faydayal Poddar v. Bibi Hazra and also reiterated in Thakur Bhim Singh's case (supra), while referring to the benami transaction in India, the Supreme Court observed in Meenakshi Mills, Madurai v. The Commissioner of Income-tax as follows:
"This view is in accord with the following observations made by this Court in Meenakshi Mills Madurai v. CIT., Madras:
In this connection, it is necessary to note that the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense. It signifies a transaction which is real, as for example when A sells properties to B but the sale deed mentioned X as the purchaser. Here die sale itself is genuine, but the real purchaser, is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately, to refer, to a sham transaction, as for example, when A purports to sell his property to B, without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid."
34. While reiterating the same view, the Supreme Court observed thus:
"Two kinds of benami transactions are generally recognized in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case, there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contribution the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is diverted from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882, which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit the person paying or providing the consideration."
35. In fact, the transaction would not fall within the definite word benami, as mentioned in the first category, but it falls in the second category namely a person who is the owner of the property executes a conveyance in favour of the another, without intention of transferring the title to the property thereunder, whereby the transferor continues to be the real owner. The difference was also carved out between these two transactions stating that in the former case, the transaction was only a operative transfer from the transferor to the transferee, though the transferee holds the property for the benefit of persons, who contributed purchase money, but in the late case, there is no operative transaction at all and the title rests with the transferor, notwithstanding execution of the conveyance.
36. Therefore, Mr. Chandrasekhar Rao contends that the possession was in the hands of the defendant and the motive was to avoid land ceiling laws, the custody of the title deeds was with the defendant, the conduct of the parties was never reflected towards the transfer of the property absolutely in favour of the plaintiff. But, a close reading of the aforesaid decisions would heavily lean towards the plaintiff rather than the defendant.
37. The conduct right from 1955 coupled with subsequent transactions under Ex,A28, Al, and A2 clearly and clinchingly establishes that the partition had in fact taken place that the Sale Deed was executed by Gopala Krishna and in those documents it was clearly mentioned that the properties fell to his share by virtue of the Partition Deed. That under Ex.A28 Agreement of Sale was concluded in which a sum of Rs. 24,000/- was paid towards the sale consideration and this was never disputed by Gopala Krishna at any point of time. Therefore, it is not open for the defendant to contend that there was no consideration. Further, the possession as already stated was only a permissive possession by virtue of the General Power of Attorney. Therefore, any acts done by the defendant should only be construed as if they are done under the authority of the General Power of Attorney. It is also to be noted that the relation between the plaintiff and the defendant is daughter and father and the lands are situated in Vuyyur, where the father was residing and after marriage, the plaintiff had to shift to her husband's place. Therefore, it is quite natural to presume that the plaintiff could not have supervised the cultivation activities personally and necessarily, she had to depend on the others. But, in the instant case, she had depended on his father by executing a General Power of Attorney in his favour. Therefore, the possession cannot be said to be exclusively with the defendant as the absolute owner. The defendant had stated that the documents are in his possession, he did not produce the same on the ground that the plaintiff had taken those documents in her absence. If that is so, there is no evidence forthcoming as to why he did not issue notice, when such documents were taken away by her. Therefore, the said contention also cannot be accepted. The conduct already stated, of the parties is clear that they had in fact acted upon documents of 1955 Partition Deed, Ex.A1 and 2.
38. This Court is not satisfied with the method and manner in which the defendant who is the father of plaintiff had conducted himself in the proceedings. His ingenuity has to be deprecated. Right from 1955, he accepted that the documents were properly executed, but when the question of implementation comes, he states that they, are sham and nominal documents. He takes the role of his son in respect of Exs.A1 and A2, but when the question of Ex.A8 comes, he turns himself to be a third party. He suppressed the evidence of his son and tried to protect his son to the disadvantage of his daughter.
39. Further, he tried to impress upon this Court that he was in possession of the suit schedule property, but this contention cannot be allowed to stand for the reason that he was already holding General Power of Attorney on behalf of his daughter-Plaintiff to manage the affairs of her property and even by that time, she was holding some properties. That itself indicates that the daughter was having some properties to be managed and subsequently, she acquired properties under Exs.A1 and A2. By virtue of those documents, he was allowed to cultivate the same. That would not constitute possession as a owner, but possession by virtue of the General Power of Attorney. The conduct of the father in changing the sides from time to time itself established that he is an unworthy witness and his statement cannot be relied on.
40. The trial Court failed to consider these aspects in a proper perspective and proceeded on mere surmises and conjectures.
41. Under these circumstances, I have to necessarily hold that even the ingredients for establishing the benami transactions or a nominal transactions are not present in this case. Thus, I hold that Exs.A1 and 2 are valid, legal and genuine documents and they were acted upon.
42. With regard to the limitation, the lower Court has held against the plaintiff, but the said finding is equally untenable inasmuch as the General Power of Attorney was cancelled on 5-2-1981 and the said suit was filed on 6-12-1983 i.e., well within the time. Therefore, the said finding is also liable to be rejected.
43. For the aforesaid reasons, the judgment of the lower Court is not sustainable in law and on facts. Accordingly, it is set aside and the suit is decreed as prayed for with costs.
44. The appeal is accordingly allowed with costs.