Patna High Court
Mahipat Missir And Ors. vs Ganpat Sah And Ors. on 28 January, 1963
Equivalent citations: AIR1963PAT277, AIR 1963 PATNA 277
JUDGMENT Ramratna Singh, J.
1. This Letters Patent appeal by some of the defendants arises out of a suit for declaration of title to, and confirmation of possession, or, in the alternative, recovery of possession, of 1 bigha 5 Kathas and odd land comprised in survey plot Nos. 65, 66 and 66/1421, in village Damodarpur alias Dumri. The trial Court dismissed the suit, but the first appellate Court decreed it; and a second appeal was dismissed by a Single Judge of this Court. Hence, the present appeal.
2. The suit land belonged to one Deonarayan Thakur who died in 1945, leaving behind a widow, named Rajmato Kuer (defendant No. 7). He had a son, named Chaturbhuj, who died before 1937, leaving behind him a son, Shyamnandan (defendant No. 6), and a widow, Mossamat Sripato Kuer (defendant No. 8). The plaintiff-respondents first party acquired the suit land under a registered sale deed dated the 5th December, 1947, executed by defendant Nos. 6 and 8. The appellants, who are defendants 3 to 5, also took a sale deed in respect of the suit land, but it was executed by defendants 6 to 8. This sale deed purported to have been executed on the 26th November, 1947, but it was presented for registration on the 27th February, 1948 and was compulsorily registered under Section 77 of the Indian Registration Act in October, 1948. Sometime later, the plaintiffs instituted a criminal case against the defendants for having cut and taken away some bamboos from a portion of the suit land, but it ended in acquittal. These facts are admitted.
3. According to the plaintiffs, they had a quarrel with defendants 1 and 2, because on the 8th January, 194S they got two sale deeds executed in respect of some other land, one by defendant No. 6 and the other by defendant No. 7, though the plaintiffs had got the sale deed, dated the 5th December, 1947, and another sale deed, dated the 18th September, 1947, executed by defendants 6 and 8 only; and, on account of this difference, defendants 1 and 2 got an ante-dated sale deed, which was registered in October, 1948, executed by defendants 6 to 8 on or about the 8th January, 1948 in favour of their relations, who are defendants 3 to 5. It was then alleged that defendant No. 6 had come in possession of all the properties of Deonarayan by right of survivorship and he executed several sale deeds in respect of Deonarayan's properties prior to the purchases of the plaintiffs, and defendant No. 7 did not join any of these sale deeds. It was further alleged that, on the 3rd January, 1951, that is, five days before the institution of this suit, the defendants demolished a hut belonging to the plaintiffs on a portion of the suit land; and this was the cause of action for the suit.
4. In a separate written statement, defendants 1 and 2 said that they had no concern with the suit land or the sale deed in favour of defendants 3 to 5. The defence of the appellants, however, was that the sale deed of the plaintiffs was collusive and without consideration, and that the sale deed in favour of the appellants was in fact executed on the 26th November, 1947 and, consequently, they acquired a valid title and came in possession of the suit land. The allegation of the plaintiffs regarding demolition of any hut was denied. The alleged relationship between the two sets of defendants was also denied.
5. It is unnecessary to state the findings of the trial Court. The first appellate Court accepted the case of the plaintiffs that defendants 3 to 5 were relations of, or Closely connected with, defendants 1 and 2 and the latter got the sale deed in favour of defendants 3 to 5 executed on some date subsequent to the 8th January, 1948 and ante-dated with the object of defeating the claim of the plaintiffs to the suit land. It also accepted the plaintiffs' case regarding possession over the suit land. These findings of fact were accepted by the learned Single Judge of this Court; and the learned Advocate for the appellants conceded before us that he could not challenge the findings now.
6. On, the question whether the plaintiffs' title was perfect or not, it was held by the first appellate Court that, even if defendant No. 7 had any interest, she chose not to claim it and it was not open to the appellants to question the title of the plaintiffs, which could be challenged by defendant No. 7 alone. With reference to this finding, the learned Advocate for the appellants submitted before the learned Single Judge that, in view of the admitted fact that her husband died in 1945, defendant No. 7 had an interest in the joint family property under the Hindu Women's Rights to Property Act, 1937: and, inasmuch as she did not, admittedly, execute the sale deed, dated the 5th December, 1947, in favour of the plaintiffs, the title of the plaintiffs must be held to be defective and, therefore, they could not get a decree for declaration of title and confirmation of possession, irrespective of the fact whether the appellants had title or not in the suit land. The learned Judge rejected this submission and observed thus.
"In the facts and circumstances of the case, I am unable to accept this contention of the learned Counsel. The appellants contested the suit in the trial Court chiefly on the ground that they having taken the kebala in November, 1947, there was nothing left to be sold to the plaintiffs in December, 1947. The necessary facts to arrive at the conclusion as to whether defendant No. 7 had right, title and interest in the properties in dispute, whether she had relinquished the same, if any, whether defendant No. 6, Shyamnandan, had executed the kebala in question as karta of the family and whether the kebala was executed for legal necessity or not, were neither pleaded nor investigated. The defendants having failed in the court of appeal below on their main point of contest as to whether their kebala was prior to that of plaintiffs wanted to fall back upon showing the defect in title of the plaintiffs."
Before us, the learned Advocate submitted that the learned Judge was under a misapprehension inasmuch as the relevant facts were pleaded by the appellants and investigated by the first two Courts. He referred to paragraphs 3 and 4 of the written statement, in which the interest of defendant No. 7 under the Act of 1937, on account of her husband's death in 1945, has been clearly mentioned and it is further stated that, on account of the non-joinder of defendant No, 7 in the execution of the sale deed, title did not pass to the plaintiffs in the entire suit land. On the other hand, in paragraphs 2 and 5 of the plaint, it is stated that defendant No. 6 came into possession of all the properties left by Deonarayan Thakur by the rule of survivorship, and that defendant No. 7 was merely a Hindu widow and she had no right to execute any kebala. These facts are stated in the statements of the respective cases of the parties in the judgments of the first two Courts. Of course, it is not pleaded that defendant No. 7 had relinquished her claim or that defendant No. 6 had executed the sale deed as Karta of the family; but it was for the plaintiffs to plead these material facts. There are also some discussions on these points in the judgments of the first two Courts. These points are covered by issues Nos. 4 and 5, which read as follows:
"4. Is the kebala in favour of plaintiffs dated 5-12-47 genuine, valid and for consideration and have plaintiffs acquired title and possession over suit land by means of the said kebala? 5. Is the kebala in favour of defendants 3 to 5 dated 26-11-47 ante-dated, forged and without consideration?.. ..." There is an observation of the trial Court, which reads thus:
"It is said on behalf of plaintiffs that Shyamnandan had executed the kebala as karta of the family so the interest of defendant No. 7 also passed. There is no mention in the kebala that Shyamnandan was executing the kebala as karta. There is no evidence, either, on this point......This is the first defect in the title of the plaintiffs."
The following observations of the first appellate Court are also relevant:
"From all these previous kebalas it appears that whatever lands belonged to the family of Deonarain Thakur were dealt with by defendant No. 6, Shyamnandan, and his mother Musammat Shree Pato, defendant No. 8. It was for the first time that Deonarain's widow Musammat Rajmato defendant No. 7 assumed title in-herself...and executed the kebala in favour of defendants Nos. 1 and 2 which is Ext. l(b) on the record......We find that defendant No. 7 Rajmato never challenged the claim of Shyamnandan or his mother to the entire property left behind by Deonarain Thakur...It was argued that defendant No. 8 (a typing mistake for No. 7) had an interest of a Hindu widow because her husband died only in the year 1945......but even according to the amendment to the Act of the year 1937, defendant No. 8 (a typing mistake for No. 7) could be deemed to get only a right to partition of her interest......No doubt the capacity of Shyamnandan as the karta is nowhere mentioned in the kebala Ext. l(a)......but in any case, from the entry in Register D as well as from the several kebalas......it can certainly be inferred that Musammat Rajmato, even if she had any interest chose not to claim it......"
From the foregoing facts, it appears that the materials regarding the question whether defendant No. 7 had any right, title and interest in the suit property had been pleaded, and the question whether she had relinquished the same, as well as the question whether defendant No. 6 had executed the sale deed as karta of the joint family had been investigated. Of course, Tacts relating to the last two questions were not pleaded; but, if defendant No. 7 ceased to have any interest in the property, it was the duty of the plaintiffs to plead such facts, particularly when they stated in paragraph 5 of the plaint that, being 'a Hindu widow, defendant No. 7 had no right to execute any sale deed 'separately'. It is surprising that, even after this statement in the plaint, the plaintiffs did not plead that defendant No. 7 had relinquished her claim to the properties of the joint family. The observation of the first appellate Court that defendant No. 7 "assumed title in herself" is not at all justified, as she had acquired in the joint family properties, soon after the death of her husband in 1945, an interest equal to the share of her husband by the Act of 1937. If, however, the property was the separate property ot her husband, she would inherit under the Act the same share as a son or a son's son. The mere fact that she was not a party to any sale deed executed by defendants 6 and 8 could not justify the inference that defendant No. 7 relinquished her calm or that she 'never challenged the claim' of defendants 6 and 8 to the entire property left by Deonarain, because she could, in law, challenge such a claim at any time within twelve years of the execution of these sale deeds. The same comments would apply to the inference drawn by the first appellate Court from the entry of the names of defendants 6 and 8 and after 1945. Before taking up the submissions on the observations of the learned Single Judge regarding the absence of evidence or pleading in respect of legal necessity, I should point out another error committed by the first appellate Court.
7. That Court has said that defendant No. 8 i had "no right for exclusive alienation, because there was no automatic breaking of the joint family after Deonarain's death." But it is well settled that such a widow can alienate her undivided interest; and it is enough to refer to two Bench decisions of this Court. In Pem Mahton v. Bandhu Mahto, 1957 BUR 370: (AIR 1958 Pat 20), Das, C. J. (as be then was), with whom Imam, J. agreed, said:
"Therefore, it is clear from these decisions that it has been consistently held that the right which devolves on a widow under Sub-section (2) bf Section 3 of the Hindu Women's Rights to Property Act, 1937, is subject to the provisions of Sub-section (3) of Section 3 of that Act, and the nature of the right is that of a Hindu woman's estate. Therefore, the interest which the widow gets on the death of her husband would be governed by the provisions of Hindu Law, so far as those provisions relate to a Hindu Woman's estate. The result of Sub-section (3) of Section 3 of the Act, therefore, is that the widow can, without any legal necessity, alienate her own life estate in the property, but if she wants to convey her undivided interest absolutely, it is 'necessary that there should be legal necessity for the alienation. This, in my opinion, is the correct interpretation of Sub-sections (2) and (3) of section 3 of the Hindu Women's Rights to Property Act, 1937."
In coming to this conclusion, his Lordship also relied on a Full Bench decision of the Madras High Court, a decision of the Orissa High Court and two decisions of the Bombay High Court. To the same effect is the other Bench decision of this Court in Bhila Raut v. Nathuni Choudhary, 1957 'BLJR 175. In view of these decisions, defendant No. 7 could alienate her interest in the joint family properties and such alienation would be valid for her lifetime, even if it were without legal necessity; and, therefore, the observation of the first appellate Court was not correct.
8. Mr. R. S. Chatterjee, learned Advocate for the plaintiff-respondents relied on a decision of S. C. Prasad, J. dated the 14th April, 1959, in Hemant Kumar Pande v. Somenath Pandey, AIR 1959 Pat 557, wherein his Lordship observed as follows:
"The true view is that a Hindu widow, upon whom the interest of a member of the joint Hindu family devolves, has got no right of alienation even for legal necessity where her husband coparcener had no such right.
She can of course get a partition made, and after that has been done she will have all the rights of a Hindu widow who holds a Hindu Woman's estate similar to those widows who inherit separated property which falls to the husband after partition, but so long as that has not been done, she cannot claim the right of alienating the interest which has devolved upon her, even for legal necessity or for her life without such legal necessity when her husband had no such right."
The learned Judge dissented from the Orissa decision and distinguished the Madras decision; but he aid not refer at all to the above two Division Bench cases of this Court, though they were decided in April, 1955 and January, 1957, respectively. Mr. Chatterjee tried to distinguish the two Division Bench decisions of this Court on the ground that there were two or more male members in the joint family in those cases, while in the case decided by S. C. Prasad, J. there was only one male member, as in the present case. But the provisions of the Act of 1937 did not justify such a distinction, nor the learned Judge indicated such a distinction. It is, therefore, not possible to accept the decision of S. C. Prasad, J. as a good law.
9. Regarding the question of legal necessity, it is necessary to revert to the judgment under appeal. On behalf of the appellants it was submitted before the learned Single Judge that, on the pleadings, it must be held that defendant No. 7 had an interest in the joint family properties; and either the plaintiffs' sale deed was not executed by defendant No. 6 as karta or even if he acted as the karta, the sale deed was not for any legal necessity. The learned Judge accepted the well-settled principle that a plaintiff had to prove his own title, irrespective of the defect in, or absence of, title of the defendant. Then, the learned Judge observed:
"Shyamnandan was the only male member in the family and it must be presumed, therefore, that he was the karta of the family. Unless the defendants challenged his position as a karta or asserted that he was a junior member of the family and that the kebala was executed without legal necessity, the plaintiffs were not called upon to prove these facts before the trial Court."
I agree that defendant No. 6 (Shyamnandan) might be the karta of the family; but did he execute the sale deed as karta and did he execute it for legal necessity? The sale deed does not say that he executed it as karta. On the admitted facts, defendant No. 8 was entitled to maintenance only, but she may have been a party to the sale deed, as her name was recorded along with defendant No. 6. But there is no plea or evidence regarding legal necessity.
10. Learned Advocate for the appellants submitted that the learned Judge was in error in rejecting their contention regarding the defective title of the plaintiffs on the ground that it was the duty of the appellants to plead the absence of legal necessity for the plaintiffs' sale deed, it is conceded that it was necessary to speak in the pleading about the existence or want of legal necessity. But whose duty it was to do so? Was it the duty of the appellants to do so in their written statement? I think, not. The appellants did plead that defendant No. 7 had interest in the property in her own rights under the Act of 1937, and, therefore, title did not pass to the plaintiffs in the entire lands covered by their kebalas. It was also pleaded by the appellants that these kebalas were 'fraudulent, collusive and without consideration'. These facts gave sufficient indication of the alleged defect in the plaintiffs' title. It was, therefore, not necessary for the appellants to plead further about want of legal necessity. Even if consideration had passed for the sale deed of the plaintiffs, the burden of proof of legal necessity, so as to bind the interest of defendant No. 7 and to create a valid title in the plaintiffs in respect of the entire interest of the joint family, lay on the plaintiffs; and, therefore, it was not the duty of the appellants to plead the want of legal necessity. This burden of proof, which is called the burden of proof of the pleadings, is constant and it does not shift like the burden of adducing evidence, which is described as "shifting' (See K. Lakshmanna v. T. Venkateshwarlu, 76 Ind App 202: (AIR 1949 PC 278). It was held in Anant Ram v. Collector of Etah, AIR 1917 PC 188 that the mortgage of joint estate made by the manager of the property, who is not the father of the other members of the joint family, can only be justified so far as it is wanted for the Joint family purposes. The burden of proof lies on the person who claims the benefit of the mortgage. There is no difference between the burden of proof when it is desired to support a mortgage made by a manager of a joint estate and that which is required to support the mortgage made, for example, by a widow, who has only a similar limited power of disposition. In Sham Sunder Lal v. Achhan Kunwar, 25 Ind App 183 (PC), which was a case of an alienation by a Hindu lady, the Privy Council said that in a suit "on a bond made by a person with restricted power of alienation, the defendants are not required to plead the absence of legal necessity for the borrowing. It is for the plaintiffs to allege and prove the circumstances which alone will give validity to the mortgage........."
This principle was reiterated by their Lordships in Kondama Naicker v. Kandaswamy Goundar, 39 Cal LJ 194: (AIR 1924 PC 56). Their Lordships further said that this is the legal position "even though the absence of necessity be not pleaded by the reversioner." The principles applicable to a mortgage created by a Hindu widow or a manager of a joint family apply also to a sale (Sri Krishan Das v. Nathu Ram, 54 Ind App 79: (AIR 1927 PC 37)). Thus, it is well settled that it is the duty of the alienee to plead and prove the legal necessity for the alienation made by the manager of the joint family, I am, therefore, unable to agree with the learned Single Judge when he says that, in the absence of a definite attack by the defendants on the title of the plaintiffs on the ground that defendant No. 6 (Shyam Nanadn) had no right to execute the kebala, because he was either not the karta or 'the kebala was not for legal necessity, ft must be presumed that the kebala was also in respect of the right, title and interest of defendant No. 7.
11. Learned Single Judge observed towards the end of his judgment that, in the alternative, he was inclined to agree with the lower appellate, Court that, in the circumstances of the case, it must be presumed that either defendant No. 7 had no right, title or interest in the property or, even if she had any, she was not exercising the same. But it has been pointed out earlier that defendant No. 7 had some interest in the properties under the Hindu Women's Rights to Property Act, 1937, as amended in 1938, and that the absence of her name from the entry in Register D, or execution of some kebalas by defendants 6 and 8 alone, all of which came into existence after 1945, could not amount to disclaimer by defendant No. 7 of her interest.
12. Still one question remains to be considered. It is admitted that defendant No. 7 (Rajmato) died during the pendency of the second appeal in this Court. The learned Single Judge, therefore, observed that, even if she had any right, title or interest in the properties the same devolved upon Shyamanandan (defendant No. 6), and, in that view of the matter, no useful purpose would be served by lengthening the litigation by remanding the case for further investigation of facts which really did not arise in the case. But the death of Rajmato, would not perfect the title of the plaintiffs under a sale deed to which she was not a party. On the date the sale deed was executed defendant No. 6 had merely a chance of succession to the interest of defendant No. 7 and such a right could not be transferred by him under the sale deed dated the 5th December, 1947. (See Section 6(a) of the Transfer of Property Act, 1882). On the other hand, the interest of defendant No. 7 had passed to the appellants under the sale deed executed by defendants 6 to 8 in January-February, 1948. It is true that the first Appellate Court found this sale deed to have been ante-dated and added that it was executed some time after the 8th January, 1948, when the sale deed in favour of defendants 1 and 2 had been executed; but it has not been found by any to the Courts that the sale deed in favour of the appellants was not executed at all by defendant No. 7. It must be held, therefore, that this sale deed was executed by defendant No, 7 along with defendants 6 and 8 some time after the 8th January and before the 27th February, 1948, when it was presented for registration; and, consequently, the interest of defendant No. 7 passed to the appellants in view of the fact that none of the executants has come forward to deny the execution of, or passing of consideration under, this sale deed. The first appellate Court has observed that Mossammat Rajmato alone could question the title of the plaintiffs in respect of her interest, and, in the absence of any contest by her, the appellants could not question the same. But, after the execution of the sale deed and its subsequent registration, Rajmato had no interest left in the vended property, and, therefore, she could not be expected to come to Court and contest the claim of the plaintiffs. She could have, on the other hand, come and challenged the sale deed of the appellants, if she had not executed the same or she had not received the consideration money thereof. In the circumstances, the appellants, as transferees of the interest of Rajmato, were competent to question the title of the plaintiffs; and it must be held that the plaintiffs did not acquire the interest of Rajmato by their sale deed dated the 5th December, 1947.
13. Another question raised was whether the plaintiffs can take the aid of Section 43 of the Transfer of Property Act in respect of Rajmato's interest after her death. It is agreed that they can do so, provided they have proved that defendant No. 6 "erroneously represented" that he was authorised to transfer the interest of Rajmato. But no case of such representation was ever made out, nor is there any evidence on the record to prove this fact. It will be recalled that there is nothing in the sale deed of the plantiffs to indicate that defendant No. 6 executed it as Karta of the joint family or on behalf of Rajmato. Of course, the entire suit land is covered by the sale deed; but defendant No. 6 was not the only executant. Defendant No. 8, a maintenance-holder, was the other executant; and this fact indicates that defendant No. 6 did not represent that he was the sole owner of the suit land. Further, on the basis of the recital in the sale deed alone, it would not be fair to decide a new question raised for the first time at this stage. The Supreme Court, in Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 at 263, has observed:
"It would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and, on the basis of that evidence, to come to a finding on a matter which was not in issue."
I Apart from this, the plaint shows that the plaintiffs were aware of the fact that Deonarain died in 1945, leaving behind defendants 6, 7 and 8, and they wrongly treated Rajmato (defendant No. 7) merely as a maintenance-holder. The law by which Rajmato acquired the interest equal to that of her husband had been passed about nine years before the sale deed of the plaintiffs; and, therefore, it cannot be said that they were ignorant of the correct legal position. Hence, there could be no question of erroneous representation by defendant No. 6. Learned Advocate for the plaintiff-respondents relied on two decisions of the Calcutta High Court. But the decision in Niras Purbe v. Mt. Tetri Pasin, 20 Cal WN 103: (AIR 1917 Cal 655) is in respect of the application of Section 41 of the Transfer of Property Act and it was conceded that in the present case that section does not come into play. In the other case, namely, Sulin Mohan Banerjee v. Raj Krishna Ghose, AIR 1921 Cal 582, Section 43 was held to be applicable; but the facts of that case were absolutely different. In that case, there were three brothers, Khetra, Gopal and Gobinda. Khetra left a daughter, Muktakeshi, whose sons were plaintiffs 1 and 2; and they claimed as reversionary heirs to the estate of their maternal grandfather. Gopal left a son, Jogendra, whose widow, Suresi, Bala, was plaintiff No. 3. Gobinda's son Sarat, left a widow, Manmohini, who was a pro forma defendant in the suit. The property in suit was taken by the three brothers, Khetra, Gopal and Gobinda, in equal shares. Consequently, upon their death, Muktakeshi, Jogendra and Sarat held the property in equal shares by right of inheritance. On the 18th April, 1904, Muktakeshi and Sarat granted a lease of the entire property to the first defendant, 'as if Jogendra had no interest therein and they themselves were entitled to it to his exclusion.' Muktakeshi died on the 4th August, 1909. Jogendra had died on the 14th October, 1908; prior to his death, he had made a testamentary disposition of his properties on the 18th August, 1908. Under that will, he left one-half of his one-third share to his cousin sister, Muktakeshi, and the other half to his cousin, Sarat. The plaintiffs claimed to recover the property from the first defendant on the allegation that the permanent lease granted to him on the 18th April, 1904 was without legal necessity and ceased to be operative upon the death of Muktakeshi. In these circumstances, the Courts below had held that the provisions of Section 43 of the Transfer of Property Act were applicable and that the share of Jogendra, when it vested in Muktakeshi and Sarat on the 14th August, 1908, became available to perfect their title and consequently the title of the first defendant in the entire property and this finding was upheld by their Lordships. The words underlined (here in ' ') by me indicate the distinguishing feature of the case.
14. The last argument advanced on behalf of the plaintiff-respondents was that the appellants have no right to the share of defendant No. 7 (Rajmato) after her death, as there is no plea or evidence regarding legal necessity for their sale deed. But it was not necessary for the appellants to take such a plea or adduce evidence to that effect, as the lady was alive at the time of the 'disposal of the suit by the first two Courts. It is well settled that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. Though an Appellate Court can and must take such action in the light of subsequent events as will shorten litigation, it must preserve the rights of both parties and subserve the ends of justice. (See Ram Ratan Sahu, v. Bishun Chand, 11 Cal WN 732; Rai Charan Mandal v. Bishwanath Mandal, AIR 1915 Cal 103, Chhote Khan v. Mohammad Obedulla Khan; AIR 1953 Nag 361; Lalloo Prasad Singh v. Lachman Singh, ILR 3 Pat 224: (AIR 1924 Pat 438); and Mt. Arundmoyee Chowdhoorain v. Sheeb Chunder Roy, 9 Moo Ind App 287 (PC) ).
15. It is, therefore, to be seen what would be the consequence of taking notice of the death of Rajmato at the appellate stage. If the sale deed of the appellants were for legal necessity, the title of Rajmato in the suit land would pass absolutely to the appellants, otherwise her life interest only would pass. Hence, after the death of Rajmato, the appellants are entitled to plead and prove that the sale deed was for legal necessity. But, while Rajmato was alive, they had only to show that her interest did not pass to the plaintiff-respondents. It would, therefore, be unjust to the appellants to hold that, after the death of Rajmato during the pendency of the second appeal, they acquired only her life interest on the ground that they had not pleaded or proved in her life time legal necessity for their sale deed. On the other hand, the plaintiff-respondents cannot get any advantage of the death of Rajmato, unless they prove the ingredients required for the application of Section 43 of the Transfer of Property Act, and the only person who can take advantage of her death is defendant No. 6, who was a co-executant of the plaintiffs' sale deed as well as the defendants' sale deed and duped both these parties. It is, therefore, fair and just to leave the question of the consequences of the death of Rajmato to be tried in another suit and the death of Rajmato should not be taken into account in the present litigation.
16. Now the question is whether the plaintiffs are entitled to get a decree for confirmation of possession over the entire interest in the suit land. Mr. B. P. Singh submitted that the relief for confirmation of possession or, in the alternative, recovery of possession was consequential to the relief for declaration of title and, when the plaintiffs did not acquire the interest of Rajmato, they can get a decree for declaration of title in respect of only eight annas interest in the suit land, that is, the interest of defendant No, 6, and therefore, the possession of the plaintiffs could be confirmed over that interest only. He cited two decisions under Section 7 (iv) (c) of the Court-fees Act to show that the relief regarding possession was a consequential relief. These two decisions, namely, Sri Krishna Chandraji v. Shyam Behari Lal, (S) AIR 1955 All 177 and Nokhelal Jha v. Smt. Rajeshwari Kumari, AIR 1937 Pat 141 do support this contention; but this provision is relevant for the purposes of Court-fees only. Then Mr. Singh relied on the well-settled principle that a plaintiff has, got to prove his own title before he seeks a declaration cf his claim from a Court of law and cannot rely upon the defect of title or absence of title in the defendant. This proposition has been accepted by the learned Single Judge as well. Mr. Singh relied on a decision of the Calcutta High Court in Joloke Singh v. Gurwar Singh, 2 Suth WR (Civ.) 167, in which their Lordships said that the mere fact that the plaintiff, who had sued for confirmation of his possession over the suit property in right of his purchase from a person said to have succeeded to the property by inheritance, was in possession of the property was not sufficient to prove his title to the same. To the same effect was the decision of that Court in the case of Mohima Chunder Koondoo v. Noorooddeen, 11 Suth WR (Civ) 422. It was held that when a plaintiff alleges that he is in possession of property and asks for a declaration of his title only, the bona fides of that title, being questioned by the defendant, it is for the plaintiff to make out that that title is really and substantially what it purports to be on the face of the deed on which he relies.
17. On the other hand, learned Advocate for the respondents relied on a Bench decision of this Court in Govind Dutta v. Jagnarain Dutta, AIR 1952 Pat 314, where their Lordships reiterated the well-settled principle that "possession is good title against all but the true owner and a person in peaceable possession of land has, as against everyone but the true owner, an interest capable of being inherited, devised or conveyed,"
and granted to the plaintiff a decree declaring his title to, and recovery of possession of, the suit property even though the plaintiff had failed to prove his title by adverse possession or otherwise. The above principle was reiterated in another Bench decision of this Court in Raju Roy v. Kasinath Roy, 1956 BLJR 249: (AIR 1956 Pat 308) though in that case it was also found that the plaintiffs were in uninterrupted possession of the land for more than 12 years until they were dispossessed by the defendants, and, therefore, they were entitled to eject the defendants who were trespassers and had not perfected their title by remaining in possession for the statutory period. In the instant case, however, the appellants cannot be said to be trespassers, as they legally acquired the interest of Rajmato in the suit land and the consequences of the death of Rajmato cannot be decided in the present litigation. Hence, the plaintiff-respondents have failed to prove their title to the entire interest in the suit land and their possession can be confirmed only over right annas interest in the same,
18. I respectfully disagree with the learned Single Judge that it would have been necessary to remand the case for further investigation of facts in order to decide the legal question raised on behalf of the appellants, because, in view of the pleas in the written statement, it was the duty of the plaintiffs to adduce evidence at the trial to prove that their sale deed was for legal necessity and, therefore, binding on defendant No. 7. If any party did not care to discharge such a duty, then it would not be necessary to remand the case to give him an opportunity to make up the deficiency in his evidence.
19. In view of the foregoing discussions, it must be held that the interest of defendant No. 7 Rajmato) was not at all affected by the sale deed dated the 5th December, 1947, executed by defendants 6 and 8 in favour of the plaintiff-respondents, and, therefore, the plaintiffs did not acquire the interest of Rajmato in the suit property. Consequently, the plaintiffs are entitled to the declaration of title to, and confirmation of possession over, the interest of defendant No. 6 alone, and the plaintiffs cannot get any decree in respect of the interest of defendant No. 7.
20. The appeal is accordingly, allowed in part and the suit is decreed in part, as indicated above. In the circumstances of the case, the parties will bear their own costs throughout.
Kanhaiya Singh, J.
21. I agree