Patna High Court
Mst. Sita Kueri And Anr. vs Basisth Narain Tiwary And Ors. on 2 August, 1984
Equivalent citations: AIR1985PAT158, AIR 1985 PATNA 158, (1985) BLJ 261 (1985) PAT LJR 199, (1985) PAT LJR 199
JUDGMENT Prabha Shanker Mishra, J.
1. This appeal by the defendants in a suit for declaration that sale deed executed by the father of the plaintiff-respondent is void is directed against the judgment and decree in Title Appeal No. 97/1967.
2. The relevant facts, in short, are as follows : --
The plaintiffs father, who was illiterate and addicted to intoxication and was virtually insane, executed a sale deed on 19-9-1940 in favour of Laxmi Ahir, husband of defendant No. 1 and father of the other defendants for a nominal price. According to the plaintiff, the sale was without any legal necessity. The property conveyed under the sale deed (fully described in Schedule I to the plaint) was worth more than Rs. 3,000/- at the relevant time, but was sold only for a consideration of Rs. 400/- inclusive of the mortgage money amounting to Rs. 393/- and odd. The plaintiff was in his mother's womb when the sale deed was executed. When he attained majority, he realised that he had full claim upon the property and the defendants were illegally trying to dispossess him. He, accordingly, filed the instant suit, in forma pauperis. Defendants, however, in the written statement maintained that the sale in question valid. The price paid was adequates and the same had been executed by the father of the plaintiff for legal necessity to pay outstanding debt (to redeem the mortgage). The redemption was, accordingly affected on 18-9-1940, that is to say, before the sale deed was executed.
3. While the plaintiff maintained that the aforesaid sale deed was never acted upon and when he found that the defendants were trying to dispossess him, he came to the Court, the defendants asserted that after the execution of the sale deed, Laxmi Ahir got possession and thereafter remained in possession of the property. The trial court rejected the plaintiffs case on the finding that the plaintiff was not in his mother's womb on 19-9-42 when the sale deed in question (Ext. A) was executed by his father and since he was not even in his mother's womb at the time of the execution of the sale deed, he had no right to question the transfer. The plaintiff preferred an appeal against the trial court judgment and decree. The appeal was eventually heard by the 2nd Additional Subordinate Judge at Buxar. The learned Additional Subordinate Judge however came to the conclusion that the plaintiff must have been in his mother's womb when the sale deed (Ext. A) was executed. He further held that the said sale deed was obtained on payment of inadequate price for no legal necessity, and, accordingly, allowed the appeal and decreed the suit. The defendants have come to this Court against the said judgment and decree of the court of the 2nd Additional Subordinate Judge, Buxar.
4. Mr. K. D. Chatterjee, learned counsel for the appellants has submitted before me that the learned Additional Subordinate Judge has committed error of law in holding that the suit presented by the plaintiff-respondent was not barred by limitation, as according to his finding on the question of the plaintiff's attaining majority, he has said that he attained majority some time in the year 1959. If the plaintiff attained majority in the first or second week of Jan. 1959, the suit filed by him in the court on 24-1-1962 was beyond the period of three years after his attaining majority. Alternatively, Mr. Chatterjee has submitted that as the plaintiff has stated in para 16 of the plaint that he attained majority in Dec. 1961, he was not in his mother's womb on 19-9-1940, i.e. the date when the sale deed was executed.
5. Mr. Balabhadra Prasad Singh, learned counsel appearing for the plaintiff-respondent has, however, drawn my attention to para 16 of the judgment of the learned Additional Subordinate Judge and pointed out that the learned Additional Subordinate Judge has accepted the evidence of P. W. 2 (the Purohit) who has proved the horoscope of the plaintiff (Ext. 1) and has categorically said that Ext. 1 or P. W. 2 cannot be disbelieved. The date of the plaintiffs birth is mentioned in Ext. 1 as 10th of Feb. 1941. Calculated from that date, the plaintiff attained majority evidently within three years of the institution of the suit, that is to say, on the 10th of Feb. 1959. To the alternative argument of Mr. Chatterjee, Mr. Singh has stated that the statement made in para 16 of the plaint is a laconic expression to state that he (the plaintiff) having attained majority was competent to file the suit to question the validity of the sale deed executed by his father.
6. There is no difficulty in accepting the argument of Mr. Singh on the question of limitation even though Mr. Chatterjee is right in submitting that the learned Additional Subordinate Judge has not recorded in so many words as to when the plaintiff was born and has only said that the plaintiff must have been his mother's womb when the sale deed was executed. By accepting Ext. 1 (horoscope) as genuine including its content, the learned Subordinate Judge has accepted the date of birth of the plaintiff disclosed in the said document (Ext. 1) which, as noticed by me above is 10-2-1941. Being one born on the 10th of Feb. 1941, the plaintiff attained majority on the 10th of Feb. 1959. The present suit has been filed by him on 24-1-1962. It is accordingly, within three years of his attaining majority. Under Section 60 of the Limitation Act, 1963, the period of limitation for instituting a suit by the ward who has attained majority for setting aside transfer of the property made by the guardian is three years. Since the plaintiff has filed the suit within three years of his attaining majority, the suit in hand is not barred by limitation. The alternative argument of Mr. Chatterjee, however, requires a bit more deliberation. Mr. Chatterjee has submitted that the statement made by the plaintiff in para 16 of the plaint about his attaining majority in the year 1961 is an admission by him that he was not born in the year 1941. He has submitted that the plaintiff has founded his case on the statement that he attained majority in the year 1961 and if any other date of his attaining majority is introduced by way of evidence on his behalf that has to be rejected. He has placed reliance upon the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471. The Supreme Court has said in the said case : --
"Admissions, if true and clear, are by far best proof of the case admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
In other words, according to Mr. Chatterjee, the admission in the pleadings by the plaintiff that he attained majority in the year 1961 is conclusive on the question of his attaining majority so far he is concerned. The plaintiff is bound by this admission and he, therefore, has to support his case only on the basis of this admission and not otherwise. Para 16 of the plaint, however, is couched in the words as extracted :
^^16& ;g ds tgwjnkoh eksdnek gktk o rkjh[k 19&9&40 cjkst rkehy gksus clhdk cSykdykeh ckS eh o ekg v"kkM lu~ 1958 Nch cc[r djus essa n[ky cks eh o ekg fnlEcj lu~ 1961 ds cc[r gklhy djus cyqxh;r eu eqcbZ oks eh o rkjh[k ekslryh d cjkst ryc rdktke oks budkj ckds ekStk cukbZiqj o bykds Fkkuk cDlj vUnj gn lek;r vnkyr gktk ds iSnk gqvk**
7. There is no statement any where that the plaintiff was born in the year 1941 and/or he attained majority in the year 1961. Para 16 of the plaint is obviously not a statement of fact as to the date of birth or the date of attainment of majority. It only says that the plaintiff got his cause of action on 19-9-1940 when the sale deed was executed, in the year 1958 when the defendants wanted to dispossess him and in Dec. 1961 after attaining majority. That the plaintiff was major in the year 1961 is not in doubt. But can it be said that he has admitted in para 16 that he attained majority in the year 1961? In my opinion, that is not the effect of the statement in para 16 of the plaint. The composition of para 16 of the plaint is to some extent misleading. It is a statement made inadvertently in somewhat inaccurate language or is a laconic expression as Mr. Singh has called it. To constitute admission, as pointed out by the Supreme Court in Nagindas's case, the statement should be unambiguous and clear. It is only when it is true and clear that it shall stand as a proof of the facts admitted. Although the above quoted statement is part of the pleadings on behalf of the plaintiff yet, as the learned Additional Subordinate Judge has found, it is not a true and clear statement that the plaintiff attained majority in the year 1961. It, in my opinion, does not constitute an admission of the category that should be taken as conclusive in a court of law. It is also not the foundation of the claim of the plaintiff because the plaintiffs claim is based upon the statement that he had been begotten before his father executed the sale deed in question.
8. Besides the above two contentions on the merits of the case, Mr. Chatterjee has submitted that the plaintiffs' suit and the consequent appeals have abated because a notification under Section 3 of the Consolidation of Holdings and Prevention of Fragmantation Act, 1956 has already been issued. Section 4(c) of the Consolidation Act runs as follows : --
"Every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated :
Provided that if the State Government empowers any officer appointed under this Act to dispose of any proceeding relating to survey settlement operations Tenancy Act, 1885 (Bihar Act VIII of 1885), or (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated.
Provided that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard :
Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder:
Provided that the State Government may be notification in the Official Gazelle exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purpose of this Act :
Provided further that nothing in this section shall apply to any proceedings under Chapters XI and XII of the Code of Criminal Procedure, 1898 (Act V of 1898), Section 48E of the Bihar Tenancy Act (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).
9. According to Mr. Chatterjee, since the notification has already been issued, its statutory effect has made the entire proceeding incompetent and the court is legally obliged to record that the suit and the consequent appeals have abated.
10. The question of abatement was raised by the defendants (respondent before the learned Additional Subordinate Judge) and the learned Additional Subordinate Judge by his order dated 17-1-1978 rejected the application made on their behalf holding that the matter in controversy before the court was beyond the jurisdiction and competence of the consolidation court. For what matter falls under Section 4(c) of the Consolidation Act, a reference is always made to a judgment of the Supreme Court in the case of Gorakh Nath Dubey v. Hari Narayan Singh, AIR 1973 SC 2451. In Dubey's case the Supreme Court has provided an answer to this vexing question and said :
"We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it."
11. It is. therefore, necessary to see whether the sale deed executed by the lather of the plaintiff can be found to be effective or ineffective without being adjudicated upon as to its validity by a competent court or not. In other words, it has to be seen whether the invalidity of the sale deed is not dependent upon a declaration made by the court, but it is invalid because it has been accorded without any valid authority at all, before the suit is held to have abated under Section 4(c) of the Consolidation Act. If, however, the document is found to be valid otherwise until declared by a competent court to be invalid, the matter has to be adjudicated in the court. The plaintiff is governed by the Banares Sub-school of Mitakshara School of Hindu Law. The property, in dispute, is the ancestral property of the plaintiff. His father as the karta of the family was authorised to alienate the property for legal necessities of the family. The plaintiff, as a coparcener other than the alienor was/is entitled to impeach the disposition. He was in existence on the date of the disposition complained of as he was in his mother's womb on that date. In Mitakshara, a male child in the mother's womb is a coparcener entitled to inheritance by survivorship. Since the plaintiff was in his mother's womb on the date of the disposition by his father, he was a coparcener entitled to a share in properties. Since the property alienated by his father was the ancestral property, the plaintiff is fully qualified to attack or impeach the said transfer after attaining majority.
12. But can unauthorised disposition by a father or the karta be described as void and not voidable ? A disposition by the karta of a joint Hindu family governed by the Mitakshara law is good and valid until impeached by a coparcener on the grounds, inter alia, that it was made without consent or authority of the coparceners and/or was made for the purposes which are not legal necessities. Most of the difficulties arise because the word 'void' is invariably used to describe such alienations made by a co-parcener and impeached by a coparcener other than alienor. If such unauthorised disposition is void and not voidable, every coparcener should be able to impeach it whether he was in existence or not for such a disposition will be a nullity. But every coparcener is not entitled to impeach the disposition by the father or the karta. A coparcener born subsequently or admitted into the coparcenary after the disposition of the property is not entitled to impeach the transfer made by the karta or the father. It is obvious that a disposition of this kind has to be avoided by a person qualifying as a coparcener in existence on the date of the disposition and on the grounds, inter alia, that the transfer was unauthorised and/or for no legal necessity. In other words, the transfer by the karta or the father unless impeached by a person legally entitled to impeach it and found to be made by a person without authority and/or for no legal necessity, is valid and operative. A transaction of this kind is only voidable at the instance of such a person who is entitled to challenge or impeach and it becomes inoperative only when it is so found by a Court of law. Such transactions are only voidable and not void.
13. Returning to the question whether the controversy before this Court and/or the controversy in the suit is one which could be left to be decided by the consolidation authorities, in view of my discussion above, I have no hesitation in concluding that such suit shall not abate and Section 4(c) of the Act shall not affect the jurisdiction of the Civil Court.
14. In the result, I find no merit in this appeal. It is, accordingly, dismissed, but, on the facts of this case, there shall be no order as to costs.