Andhra HC (Pre-Telangana)
Kusam Satyanarayana Reddy And Ors. vs Kusam Sambrajyamma (Died) By Lrs. And ... on 23 January, 2004
Equivalent citations: 2004(2)ALD635, 2004(3)ALT115
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. First appeal has been filed by Defendants 1 to 4 against the judgment and decree dated passed by Subordinate Judge, Guntur in O.S. No. 316 of 1979. Cross-objections have been filed by the plaintiffs. Both the cases are being disposed of by this common judgment. The parties shall hereinafter be referred to as they are arrayed in the suit.
2. The plaintiffs laid the suit for a declaration that the gift deed dated 6.11.1979 which was registered on 12.11.1979 purported to have been executed by late Puma Reddy in favour of Defendants 2 and 3 was illegal and void. They also sought a declaration that they were in possession of the suit property. Alternatively they prayed that if the Court did not find them in possession of the property, they should be given possession of the suit property which was gifted out and is mentioned in items 1 and 2 of plaint B schedule properties and Item No. 2 of plaint C schedule property. The plaintiffs also sought permanent injunction restraining the defendants from interfering in their possession and enjoyment over the suit schedule properties.
3. The contentions raised by the plaintiffs were that the suit schedule properties were owned by one Bhimavarapu Punna Reddy who was the husband of 1st plaintiff and father of 2nd plaintiff, 4th defendant and late Lakshamma, who was the wife of 3rd plaintiff and mother of plaintiffs 4 to 7. Late Punna Reddy had no male issue, he had only three daughters, i.e., 2nd plaintiff, 4th defendant and wife of 3rd plaintiff. Late Punna Reddy celebrated the marriages of his daughters. Defendants 2 and 3 are the sons of Defendants 1 and 4. Defendants 5 to 7 are the grandsons of late Punna Reddy's brother. Punna Reddy was suffering from mouth cancer for about a year before his death. He lived in his own house along with 1st plaintiff. 1st defendant who is the husband of 4th defendant was asking Punna Reddy to give him some property. Punna Reddy conveyed an extent of Ac.2.55 cents under a registered gift deed reserving life interest in Ac.0.74 cents to himself and to the 1st plaintiff who died subsequently. Punna Reddy also gifted a portion of the house to the Defendants 2 to 4 under a registered gift deed dated 10.2.1975 reserving life interest to himself and to his wife. While Punna Reddy was undergoing treatment for mouth cancer, doctors finally advised that he could not be cured, therefore he was brought to Nambur. He became weak and his voice was feeble. While he was well, Punna Reddy had executed a registered will deed dated 29.10.1979 bequeathing all his remaining properties. This will was his last will. He reserved life interest in plaint A, B and C schedule properties to himself and to his wife-1st plaintiff. The vested remainder in plaint A schedule property was bequeathed to his brothers grandsons viz., Defendants 5 to 7 who had to perform his obsequies being sapindas. The vested remainder in plaint B schedule property was bequeathed to 2nd plaintiff with absolute rights. The vested remainder in plaint C schedule property was bequeathed to plaintiffs 4 to 7. The 1st plaintiff had executed a registered gift deed in respect of Ac.0.77 cents of land reserving life interest to herself with vested remainder to the Defendants 2 to 4. The Plaintiffs 2 and 3 looked after the welfare of Punna Reddy while he was seriously ill. Punna Reddy lived in his house along with his wife-1st plaintiff. Punna Reddy lost his power of speech and also normal mental condition and consciousness even by 2/3.11.1979. Defendants land 4 after coming to know about the execution of the will in favour of Plaintiffs 1 and 2 and in favour of Plaintiffs 4 to 7 took away Punna Reddy on 5.11.1979 in two taxies. They also threatened Punna Reddy with dire consequences. The 1st plaintiff reported the matter to police on 5.11.1979. She also sent applications to the Superintendent of Police and others on 14.11.1979. On 15.11.1979 the Defendants 1 and 2 brought the dead body of Punna Reddy to the village. The 1st plaintiff gave a report to the police. The police seized the dead body and conducted post-mortem examination in pursuance of the report dated 6.11.1979. Obsequies of late Punna Reddy were celebrated by 5th defendant. Punna Reddy had no capacity to execute any will after execution of will dated 29.10.1979 which was in favour of Plaintiffs 1, 2 and 4 to 7. He could not have executed any document in favour of Defendants 1 to 4. The 1st plaintiff had been in possession and enjoyment of the properties. After the death of Punna Reddy defendants 1 and 4 were trying to interfere with the possession and enjoyment of the plaintiffs over the suit properties. The plaintiffs filed a suit being O.S. No. 2045 of 1979 for permanent injunction. The Court granted temporary injunction. The defendants did not receive notices and summons ordered in the suit, but filed a suit being O.S. No. 2078 of 1979 for permanent injunction respect of Items 1 and 2 of plaint B schedule properties and Item No. 2 of plaint C schedule properties. Subsequently the plaintiffs came to know that the defendants brought into existence a registered gift deed alleged to have been executed by late Punna Reddy in respect of Items 1 and 2 of plaint B schedule properties and item No. 2 of plaint C schedule property as if they were conveyed to Defendants 2 and 3 after the life time of Punna Reddy. The said gift deed was antedated as if it was executed by Puna Reddy on 6.11.1979 and the same was stage managed. In the meantime the 1st plaintiff also died on 13.8.1983. 2nd plaintiff filed a memo stating that the 1st plaintiff executed a registered will before her death on 26.4.1982. As per the terms of the will the 2nd plaintiff became entitled to her estate.
4. The Defendants 1 to 4 filed their written statement in which it was stated that the plaintiffs had brought into existence a registered will deed dated 29.10.1979 alleged to have been executed by late Punna Reddy in respect of plaint schedule properties by playing fraud on late Punna Reddy. The alleged will deed is not valid and not binding. The alleged will deed was not the last will. The suit was not filed for declaration of title in respect of the suit schedule properties under the alleged will dated 29.10.1979. Punna Reddy was aged 80 years when he was attacked by cancer. He was with his daughter i.e., 4th defendant. The 1st defendant was looking after the agricultural operations of Punna Reddy's lands. 4th defendant was looking after the welfare of late Punna Reddy including his medical treatment. The 4th defendant spent money. Punna Reddy settled Ac.3-01 cents of land bearing D.Nos. 458/2, 90/G and 375 of Nambur Village in favour of Defendants 2 and 3 under a settlement deed dated 6.11.1979 with absolute rights. The Defendants 2 and 3 were represented by their mother-4th defendant and next friend and guardian in the said settlement deed. From the dale of execution of settlement deed the Defendants 2 and 3 were in possession and enjoyment of Ac.3-01 cents of land. Before execution of settlement deed dated 6.11.1979 the 1st defendant raised crops in the land. After execution of the settlement deed the Defendants 1 and 4 were looking after the said land. After the execution of the settlement deed by late Punna Reddy and after his death on 15.11.1979 the plaintiffs attempted to interfere with the peaceful possession and enjoyment of the defendants over Ac.3-01 cents of land, The defendants 2 and 3 represented by their mother-4th defendant filed O.S. No. 2078/79 and obtained interim orders.
5. An additional written statement was also filed on behalf of 4th defendant in which it was contended that the 1st plaintiff herself could not leave interest or right in the schedule properties after her death. Late Punna Reddy executed a will bequeathing Ac. 1-75 cents of wet land bearing D.No. 635/ 2C and Ac.0-75 cents bearing D.No. 608/D to the 4th defendant with absolute rights.
6. 8th defendant filed a separate written statement and claimed that he had taken Ac.2-50 cents of wet land on lease from late Punna Reddy for two years i.e., 1979-80 and 1980-81 at annual maktha of Rs. 1,000/- and paid Rs. 2,000/- towards maktha for two years. He was enjoying the property as a statutory tenant from 1979-80. The Plaintiffs 1 and 2 approached him in 1979-80, promised to pay the expenses incurred by him and requested him to vacate the land. He did not agree as he had paid maktha and was entitled to rights under the A.P. (Andhra Area) Tenancy Act, 1956. The Plaintiffs 1 and 2 threatened the 8th defendant with dire consequences. Thereafter the 8th defendant filed ATC No. 18 of 1980 before the Principal District Munsiff and the same was pending.
7. On the basis of these pleadings the following issues were framed:
(1) Whether the plaintiffs are entitled to the relief prayed for ?
(2) To what relief the parties are entitled to?
The following additional issues were framed:
(1) Whether the will dated 29.10.1979 is true, valid, binding and enforceable against the Defendants 1 to 4 ?
(2) Whether the gift deed dated 6.11.1979 is true, valid and binding on the plaintiffs?
(3) Whether the will dated 15.11.1979 is true, valid and binding on the plaintiffs?
(4) Whether the will dated 26.4.1982 creates any interest over the suit properties in favour of second plaintiff?
(5) Whether the alleged lease in favour of 8th defendant is true, valid and binding on the plaintiffs?
8. The documents, which are bone of contentions, are will deed dated 29.10.1979 (Ex.A6), settlement/gift deed dated 6.11.1979 (Ex.B9) and will deed dated 15.11.1979 (Ex.B7). All these three documents have been allegedly executed within 17 days. Learned Counsel for the plaintiffs submits that late Punna Reddy was not in a fit condition to make any gift or will in the month of November, 1979 as he had lost his consciousness and even power to speak, but he submits that he was in a fit condition on 29.10.1979 when he executed a will which was in favour of the 1st plaintiff and other plaintiffs. The onus was on the plaintiffs to prove this issue.
9. Before going to the arguments let us examine the evidence which was recorded by the Trial Court. The plaintiffs examined 7 witnesses. P.W.I is the 2nd plaintiff. The relationship between the plaintiffs and the defendants is not in dispute. She stated that Punna Reddy was her father who died leaving three daughters. She was eldest and 4th defendant was youngest. Laxmamma was another daughter of Punna Reddy who was the wife of 3rd plaintiff and she died even before the death of her father-Punna Reddy. The witness stated that her father got throat cancer for six months prior to his death. He was treated at Hyderabad for 20 days. She and 1st defendant were looking after him. Her father was living in his own house. After returning from Hyderabad he stayed for a week at Nambur. As his condition became critical, he was again shifted to Hyderabad. Doctors advised them to take him back as he could not be cured. He was kept for a few days at Nambur and later he was admitted in Joseph's Hospital at Guntur where he was treated for 15 days. Doctors advised them to take him back to his home as he could not be cured. Punna Reddy wanted to make settlement with regard to his properties and executed a will deed on 29.10.1979 at Nambur in his house. At that time she was present. Village elders were also present.
10. P.W.2 was a resident of Nambur. He stated that he attested the will deed which was signed by Punna Reddy. He could identify his signatures. One Sattar scribed Ex.A6 at the dictation of Punna Reddy. The contents of this document were read over to Punna Reddy who admitted them to be true and correct and then put his thumb impression in his presence. At that time he, B. Subba Reddy, B.Guruva Reddy, K.Alika Reddy, K.N. Reddy, B.P.A. Reddy and Konda Nagi Reddy were present and they attested the document. According to him, Punna Reddy was in a sound state of mind with feeble voice. After execution of Ex.A6 Punna Reddy was in the village for about 4 days. Thereafter he learnt that he was taken away in two taxies. By the time he went there on hearing galata, the taxies had left the place. His dead body was brought by 1st defendant 15 days after execution of will deed. Ex.A6 was executed in respect of Ac.5.50 cents of land. It contains a recital with regard to the previous will. By the previous will Punna Reddy had bequeathed Ac.2-30 cents of land in favour of Defendants 2 and 3. Subsequently the Defendants 1 and 4 took Punna Reddy and got executed a document for Ac. 5.50 cents of land. The will which was attested by him gave Ac.2.30 cents of land to 2nd defendant and Ac.2.38 cents of land to Plaintiffs 3 to 7 and 0.77 cents of land to legal representatives of Punna Reddy whose names he did not know. The document was executed on 29.10.1979 and it was registered on the next day. He had not gone to the office of Sub-Registrar. He did not know whether 4th defendant had filed an application before the Sub-Registrar of Mangalagiri informing that her father was forcibly taken away in order to get executed a will.
11. P.W.3 is another attesting witness to the will. He stated that the will was executed by Punna Reddy and it had been scribed by Abdul Sattar Sahib at the dictation of Punna Reddy. This witness had not stated anything about the health of Punna Reddy. P.W.4 is another attesting witness to the will. He stated that Punna Reddy was in sound and disposing state of mind. After Punna Reddy executed Ex.A6, he was kidnapped by 1st defendant five days thereafter. P.W.5 is also an attesting witness to the will. He also stated that Punna Reddy was in sound and disposing state of mind when he executed Ex.A6. Same thing has been stated by P.W.6.
12. P.W.7 is the brother of Punna Reddy who stated that Punna Reddy was kidnapped some time before his death by defendants 1 and 4 and others. They were in a camp and took Punna Reddy during night time. 1st defendant and others showed knives to them and took away Punna Reddy when he was not able to speak. They made cries and people gathered there. Defendants 1 and 4 and others took away Punna Reddy in a car. In cross-examination he stated that Punna Reddy had not given any property to him. Punna Reddy was serious two days prior to the kidnapping. He did not know to which place 1st defendant had taken Punna Reddy. He had not given a report to the police.
13. Although the plaintiffs did not produce any medical evidence with regard to the health condition of Punna Reddy, the defendants have produced a witness being D.W.5 who was a medical practitioner. He stated that he was running a nursing home by name Sri Venkateswara Nursing Home in Arundelpet, Guntur since 1970. He knew D.W.2. D.W.2 brought her father for treatment to his nursing home in 1979. The patient was suffering from cancer. He was inpatient in his nursing home for about a week or 10 days. During this period the patient was taken from his nursing home only once and again brought to the nursing home. The patient was alive and conscious when he was admitted in the hospital. From this witness it appears that while Punna Reddy was being treated in the hospital, he was taken out of the hospital to register a gift deed or will deed which was allegedly executed by Punna Reddy in favour of defendants. In his cross-examination he stated that Punna Reddy did not execute any document within his knowledge in his nursing home during the period he was in the hospital. The patient died in the nursing home. At the time when he was admitted in the nursing home, he was in the final stage of cancer. The cancer had spread to other parts of the body. The patient was not in a position to take solid food even by the time he was admitted in the nursing home. He was only given pain killers and sedation by way of treatment. He was given drugs like sedation pethidrin, Morfine and diazepam. When a patient gets accustomed to these drugs, higher doses of medicine would be given. The patient was given pain killers and sedatives according to the requirement. He had maintained case sheets of the deceased Punna Reddy and all the patients. After three years the case sheets would be destroyed, thereafter he could not produce the case sheet of the deceased. Normally the cancer patient is kept under sedatives for a week before his death. He had no special equipment for treatment of cancer. In his hospital he was mostly treating psychiatric patients. He had not verified whether the patient was conscious and in a sound and disposing state of mind when he was taken out with his permission from the nursing home to register a document. 3 or 4 days before his death the patient was taken to register a document. The patient was shifted from his nursing home only once during the period before his death. He did not remember whether the police investigated into the cause of death of Punna Reddy. If any hole was created in the trachea, the patient conveys his feelings only by whispers. On the basis of this evidence one cannot safely come to a conclusion that Punna Reddy was in a fit state of mind even on 29.10.1979 and whether he could make conscious decisions. Therefore, in our view, the Trial Court was right in not accepting the will deed dated 29.10.1979 to be a genuine document. Although the learned Counsel for the plaintiffs argued that the conditions required for the proof of will were fulfilled because PWs.1 to 6 had deposed that the will had been made in their presence and their evidence should not be disbelieved. According to the doctor (D.W.5) produced by the defendants, Punna Reddy was admitted in the hospital some where on 5.11.1979 i.e., six days after 29.10.1979. He was not in a position even to swallow food. Doctor even did not deny that there was a hole in his trachea. Doctor also accepted that other parts of the body had also got affected with cancer. When he was admitted in the hospital, he was in the last stage of life. Such things could not have happened within six days. It appears that the daughters were fighting for the properties of Punna Reddy and not fighting for his life. When on 29.10.1979 Punna Reddy was made to execute a will, the defendants got knowledge of it, they came and took him to their house, admitted him in the hospital and then made him to write documents in their favour viz., settlement/gift deed dated 6.11.1979 and will deed dated 15.11.1979 i.e., the date of death of Punna Reddy. Therefore we do not believe that the will deed dated 29,10.1979 was a genuine will and the findings of the Trial Court on this issue are upheld. For the same reasons the two other documents i..e., settlement/gift deed dated 6.11.1979 and will deed dated 15.11.1979 which came into existence subsequent to 29.10.1979 cannot be accepted to be genuine documents. The doctor (D.W.5) who was produced by the defendants and whose evidence we have discussed hereinabove had categorically stated that for about 10 days prior to his death Punna Reddy was admitted in the hospital and he ultimately died in the hospital. During this period he was only taken once away for the purpose of registering a document. That document was registered by D.W.6 who was Sub-Registrar at the relevant time. He stated that he had registered the document Ex:B9 on 6.11.1979. He followed the rules and registered Ex.B9. Ex.B9 was registered in Venkateswara Nursing Home at Mangalagiri, whereas the doctor (D.W.5) stated that the patient was taken out of the nursing home for registering a document. This witness (D.W.6) curiously stated that whenever an application was made for registration of a document at home on the ground of ill-health, they insist on a medical certificate by the doctor about the mental status of the patient. In this case he did not insist for such a certificate, although the executant of the document was inpatient in the nursing home itself. Therefore these documents cannot be believed to be genuine documents. D.W.7 is a witness who identified Punna Reddy before the Sub-Registrar. In his cross-examination he stated that he was attending the District Registrar's office at Guntur for filling up forms. He denied that he used to attest documents and also identify the executants of the documents before the Registrar after taking money. He could not identify Punna Reddy even from his photograph because his eyesight was defective. The Trial Court did not believe any of these documents and we are in agreement with the reasons given by the Trial Court and for the reasons given by us hereinabove it should be also pointed out that Ex.A7 was a letter given by 4th defendant before the Sub-Registrar, Mangalagiri in which it was stated:
"On 14.9.1979 Sri Bhimavarapu Punna Reddy, son of Pitcha Reddy executed a will bequeathing all his property reserving life interest in him and his wife, to my sons and the said will got registered in your office. Thereafter on the night of 29.10.1979 in the absence of my husband, about 20 persons came to my house, abducted my father and obtained a will on 30.10.1979 and are approaching you to register the same. Now my father is suffering from cancer and he is unable to speak. This is to inform you that the said will or any other document is void and unenforceable as my will is in force."
14. It was her own case that even on 30.10.1979 Punna Reddy was not even able to speak and his condition was bad and therefore she requested the Sub-Registrar not to register a document executed on 29.10.1979. How could it be said that documents executed even after 30.10.1979 were executed by Punna Reddy in a fit state of mind. The Trial Court after disbelieving all these documents passed a decree for partition because it found that the additional issue No. 4 which related to a will dated 26.4.1982 made by the 1st plaintiff who died during the pendency of the suit could not be given effect to because the 1st plaintiff had claimed rights under the will deed dated 29.10.1979 which has been disbelieved by the Court. The Trial Court passed the decree for partition as it found that the relationship of the parties was not in dispute. Now the question which has been raised at the bar is whether the Trial Court could pass a decree for partition for which neither of the parties have approached the Court.
15. The Trial Court held that the claim of the plaintiffs that late Punna Reddy had executed a will in favour of Plaintiffs 2 to 7 and defendants 5 to 7 was not genuine and the document executed on 29.10.1979 was not true and valid. It also held that the document executed on 6.11.1979 was also not true and valid, therefore the plaintiffs were not entitled for recovery of possession on the basis of Ex.A6-registered will dated 29.10.1979. Since all the documents relied on by both the parties were held to be invalid, the Trial Court ordered partition of the suit schedule properties as the Court fee had been paid and the plaintiffs had also prayed for possession. Wife of late Punna Reddy also died during the pendency of the suit. Their legal heirs were 2nd plaintiff, 4th defendant and Plaintiffs 3 to 7. The Trial Court found that the suit schedule properties belonged to their parents, therefore it ordered the partition. Whether in a suit for declaration and possession a decree for partition could be granted is the question which has been raised. The Trial Court relied on the judgment of a Division Bench of this Court reported in Pendyala Narasimham v. Pendyala Venkata Narasimha Rao, 1962 (1) An.WR 282. We have gone through this judgment. A similar question arose in that case. The Court was considering the question whether a suit for ejectment could be regarded as one for partition if the plaintiff was found entitled to it even in the absence of an alternative claim. The Court referred to a decision of the Madras High Court reported in Viswanathaswamy Naicker v. Kammu Ammal, (1912) 21 Indian Cases 724. In this judgment the Madras High Court held that the plaintiff could be given a decree for a share of a part of the property, if he was found entitled to it even though the suit was for ejectment, and the plaintiff did not ask for the alternative relief of partition. This Court also noted a decision reported in Adhilakshmi Ammal v. Nallasivan Pillai, AIR 1944 Mad. 530, in which the same view was expressed. In another case reported in Rama Naickan v. Muthayammal, (1911) 21 Mad. LJ 997, a co-widow sought to recover possession of the properties from her husband's brother in her exclusive right. During the trial it was found that 1st defendant had acquired the right of 2nd defendant, the other widow, under an arrangement and consequently the plaintiff was entitled only to a decree for half share of the properties and the suit was decreed for division of the property. In another case reported in Ali Raza Khan v. Nawazish Ali Khan, AIR 1942 Oudh 243 where in a suit for possession claiming sole and exclusive rights over certain property the Trial Court found that the plaintiff was actually entitled to claim only 1/3rd share in the property, but the Trial Court refused to give a decree on the ground that the plaint was not amended. But the High Court in an appeal granted a personal decree for a share of the property to the plaintiff on the basis of his being a co-owner observing that it was not illegal or unjust to give such a relief as such a decree would not alter the frame of the suit so as to cause any hardship or injustice to the defendant. In para-29 the Division Bench of the Court said:
"What emerges from these rulings is that even without an amendment in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer provided such a relief would not result in much prejudice or injustice to the other side."
16. Order 7, Rule 7 of the Code of Civil Procedure (for short "the Code") lays down:
"Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
17. The import of this rule along with Order 6, Rule 2 of the Code was considered by the Supreme Court in a judgment reported in Firm Srinivas Ram Kumar v. Mahabir Prasad and Ors., . Before coming to the principle laid down by the Supreme Court in this judgment, it will be necessary to mention the relevant facts on the basis of which suit had been filed in the case before the Supreme Court. The plaintiffs case was that in September, 1941 the defendants-second party, who owned a house at Gaya, entered into negotiations for sale of the same, with one Jadu Ram and title deeds of the property were handed over to him. The negotiations failed, but ultimately the second party-defendants entered into an agreement with the plaintiff firm in October, 1945 by which the second party-defendants agreed to sell the property for a consideration of Rs. 34,000/-. Out of this consideration, an amount of Rs. 30,000/- was paid by the plaintiff firm. The defendants-second party in turn put the plaintiff in possession of the house and it was promised that the conveyance would be executed as soon as the title deeds were returned to them by Jadu Ram with whom the first negotiations had taken place. The second party-defendants, however, went back on their promise and did not execute the conveyance in favour of the plaintiff firm even after they got back their title deeds from Jadu Ram, and on the other hand, they had sold the house to the defendants-first party, therefore the plaintiff filed the suit. The defence in the suit was that the amount taken by the second party-defendants was by way of loan with interest @ 6% p.a. and it was entirely for facilitating payment of the interest due on the loan that the agreement had been executed and not in part performance of the contract of sale. Possession was handed over to ensure the payment of interest. The Trial Court came to the conclusion that the agreement was not a sale agreement. The defence story was held to be correct. It was also held that the amount of Rs. 3 0,000/- had been advanced, but this was by way of loan and not in part performance of a contract of sale. The Subordinate Judge dismissed the suit for specific performance, but granted a decree for Rs. 30,000/- with interest @ 6% p.a. from the date of suit till realization. The matter was taken to the High Court of Patna. It was heard by a Division Bench of Patna High Court. The Patna High Court dismissed the suit in its entirely and the matter came up before the Supreme Court. The Patna High Court was of the opinion that the decree granted against the second party-defendants was not warranted in law as no case of recovery of loan was made by the plaintiff in the plaint. The Supreme Court, while considering this finding of the High Court, held in Para-9:
"As regards the other point, however, we are of the opinion that the decision of the Trial Court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000/- was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder, in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which mere was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor, AIR (30) 1943 PC 29. This appeal arose out of a suit commenced by the plaintiff appellant to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This plea was given effect to by both the lower Courts as well as by the Privy Council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under Section 65 of the Indian Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellant even though the appeal was heard exports in the absence of the respondent."
18. In view of this judgment and in view of the mandate of Order 7, Rule 7 of the Code which clothes the Courts with inherent power to grant either general relief or other relief which appears to be just, legitimate and proper in any case even though such reliefs have not been specifically asked for. We find no difficulty in this case in upholding the Trial Court's judgment. It may also be, however, noted that under Order 7, Rule 7 of the Code although the Court can grant a relief which has not been asked for, but it cannot grant a relief which is larger than the relief claimed by the plaintiff, but where the relief claimed by the plaintiff is larger and the Court grants a relief which is smaller than the one claimed, it would be legal. In the present case the plaintiffs claimed whole property, but on facts the Trial Court found that they could claim part of the property as legal representatives of the original owner along with some of the defendants. Therefore, in our view, the Trial Court was right in granting the decree of partition. Same view was expressed by the Orissa High Court in a judgment reported in Managobinda v. Brajabandhu Misra, , where the plaintiff had claimed a declaration of exclusive title, confirmation of possession and consequent permanent injunction, but the Court found it to be joint property and did not agree with the plaintiff that he had the exclusive title and possession. In the result the Court passed a decree that the plaintiff had joint title and possession over the suit property.
19. For the reasons given hereinabove, we dismiss the appeal and cross-objections and uphold the judgment and decree of the Trial Court. In the peculiar circumstances of the case, no order as to costs.
S.A.No. l69 of 1995
20. This second appeal is not connected to AS No. 1519 of 1987. Hence it may be posted before the appropriate Bench for hearing.