Patna High Court
Harbans Singh vs Smt. Tekamani Devi And Ors. on 23 May, 1989
Equivalent citations: AIR1990PAT26, AIR 1990 PATNA 26
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This second appeal arises out of a judgment and decree dated 17-7-1984 passed by Sim Ranjit Prasad Sinha, 3rd Additional Subordinate Judge, Giridih in Title Appeal No......24/81.... whereby and where 22/84 under the said learned court reversed the judgment and decree dated 8-8-1981 passed by Shri D.K. Lal, Munsif, Giridih in Title Suit No. 260 of 1970.
2. The facts of the case lie in a very narrow compass.
3. The plaintiff filed the aforementioned suit, inter alia, on the ground that the properties in question belonged to one Dhanpat Ram, predecessor in interest of the defendants who by reasons of a sale deed dated 14-5-1966 (Ext. 2) transferred his right, title and interest in favour of the plaintiff. By an unregistered agreement dated 15-5-1966, the plaintiff inducted the said Dhanpat Ram as a tenant in the said premises on a monthly rent of Rs. 125/-. According to the plaintiff the rent in respect of the said tenanted premises was paid up to December, 1967 by the aforesaid Dhanpat Ram.
4. On the other hand, the case of the defendants-respondents is that the properties in suit actually belonged to Nando Ram father of Dhanpat Ram. Upon the death of Nando Ram, all his heirs and legal representatives i.e. Dhanpat, his other brothers and the defendants inherited the said properties. It was further the case of the defendants-respondents that Dhanpat Ram, being only a coparcener, had no power or authority to transfer the properties in question without any legal necessity. The defendants have further denied the relationship of landlord and tenant between the parties and they had set-up their own right, title and interest in respect of the properties in suit in themselves.
5. The learned trial court held that Dhanpat Ram was the owner in respect of the properties in question and by reason of the aforementioned agreement dated 15-5-1966 (Ext. 1) he become a tenant in respect of the suit premises and upon his death his heirs also become tenants under the plaintiff and thus there existed a relationship of landlord and tenant between the parties to the suit.
6. On the basis of the aforementioned findings, the learned trial court decreed the plaintiffs-appellants' suit.
7. On appeal, the learned lower appellate court reversed the said judgment and decree, inter alia, on the ground that Dhanpat Ram had no authority to execute the aforementioned sale deed dated 14-5-1966 alone and as such the said deed of sale was void abilities and no title passed thereby to the plaintiff. The learned lower appellate court further held that there was no relationship of landlord and tenant by and between the plaintiff and the defendants and as such the defendants cannot be directed to be evicted. The learned court of appeal below further held that in view of the fact that the plaintiff paid a sum of Rs. 4,000/- only out of Rs. 12,000/- which was the consideration amount in respect of the said deed of sale and as the balance consideration money was not paid, no title on that account also passed to the plaintiff by name of the said deed of sale.
8. The learned lower appellate court further held that the 'Kirayanama dated 15-5-1966 (Ext. 1) was inadmissible in evidence and cannot be looked into for any purpose whatsoever.
9. At the time of admission, by an order dated 5-5-1985 the following substantial questions of law were formulated :--
"(1) Whether in the nature of the suit that it was, the court below could have gone into an elaborate discussion with 'regard to the validity of the sale deed which was executed in favour of the appellant?
(2) Whether in view of the fact that the defence of the respondent against ejectment had been struck off, whether the court below could have considered the evidence of the respondent also for recording a finding that he was not a defaulter in paying the rent within the meaning of law'?
9A. Mr. N.K. Prasad, the learned counsel appearing on behalf of the appellant submitted that, true it is, that the 'Kiraya-nama' dated 15-5-1966 (Ext. 1) was not admissible in evidence being an unregistered document but the same could have been looked into for collateral purposes under proviso to Section 49 of the Registration Act.
The learned counsel, in this connection has relied upon decisions reported in AIR 1974 Pat 195 (Rameshwar Lal Sharma v. Sardar Amrik Singh) AIR 1943 Lah 127 (FB) (Mohan Lal v. Ganda Singh) AIR 1975 Mad 231 (FB) (Arumugha Counder v. Ardhanari Muddliar).
10. It was also submitted that in that view of the matter, the learned lower appellate court ought to have come to a finding that in terms of the aforementioned agreement (Kirayanama) dated 15-5-1966, the defendants predecessors in interest became a tenant under the plaintiff. The learned counsel further submitted that if Dhanpat Ram was inducted by the plaintiff as a tenant by reason of the aforementioned 'Kirayanama dated 15-5-1966 (Ext. 1) the defendants appellants being his heirs cannot deny the title of the plaintiff unless they deliver vacant possession of the premises in terms of Section 116 of the Evidence Act. The learned counsel also submitted that in this view of the matter, it was not at all necessary for the learned lower appellate court to go into the question as to whether the plaintiff acquired valid title in respect of the suit property or not or whether the said Dhanpat Ram had any authority to transfer the property in question in favour' of the plaintiff. The learned counsel further submitted that in fact, all the questions were unnecessarily decided by the learned lower appellate court with regard to the title of the plaintiff.
In this connection the learned counsel has relied upon a decision reported in AIR 1974 Pat 195 (Rameshwar Lal Sharma v. Sardar Amrik Singh) the learned counsel has further relied upon the decisions reported in AIR 1978 Pat 82 (Mohammed Iris Mian v. Doman Sah) and AIR 1968 Pat 26 (Adit Prasad v. Chhagan Lal).
11. Mr. Debi Prasad, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that the findings o' the learned lower appellate court to the effect that the property in suit belonged to Nando Ram is a finding of fact. According to the learned counsel, if this finding of fact is accepted, there cannot be any doubt that upon his death all his sons including Dhanpat Ram as also the present defendants inherited the properties as the parties constituted a joint family governed by the Mitakshara School of Hindu law.
12-13, The learned counsel further submitted that it has come in evidence that there had been no partition by metes and bounds between Dhanpat Ram and his other brothers and in that view of the matter, the status of Dhanpat Ram will be deemed to be that of a coparcener and thus he had absolutely no authority to execute the purported deed of sale dated 14-5-1966 (Ext. 2). In this connection, the learned counsel has drawn my attention to Art. 223 of the Hindu Law by Mulla for the purpose' of showing that a person inherits his ancestral property for the benefit of and on behalf of his sons.
14. The learned counsel further submitted that the plaintiff did not pay the entire consideration amount to Dhanpat Ram and thus he had acquired no title by reason of the aforementioned deed dated 14-5-1966 and as such on this ground too, the plaintiff cannot be said to have become the owner of the suit properties.
15. The learned counsel next submitted that admittedly the registered agreement dated 15-5-1966 (Ext. 1) was inadmissible in evidence, as by reason thereof, a contract' of tenancy was created by and between the plaintiff and the defendants and in this view of the matter, Ext. 1 could not have been looked into for the purpose of proving the nature of possession of Dhanpat Ram.
16. The learned counsel, in this connection, has relied upon an unreported decision of this Court in Rajendra Behal v. Deshraj Singh (F.A. 71 of 1985) disposed of on 15-4-1989.
17. The learned counsel further submitted that as the question of title raised by the defendants was a serious and contested one, a simple suit for eviction without payment of ad-valorem court fee was not maintainable. The learned counsel in this connection has placed strong reliance upon a decision reported in 1971 BLJR 186 (Ramchandra Sah v. .Chotan Sah) and 1985 Pat LJR 891 : (AIR 1986 Pat 78) (Raghubar Dayal Prasad v. Ramekbal Sah). It was further submitted by the learned counsel that the defendants-respondents have been claiming title in respect of the suit property on their own behalf and not by reason of inheritance from their predecessors in interest Dhanpat Ram, and thus Section 116 of the Evidence Act, will have 'no application in the facts and circumstances of this case. .. .
18. In view of the rival contentions as noticed hereinbefore, the following questions arise for consideration in this appeal:--
(a) Whether the registered Kirayanama dated 15-5-1966 was admissible in evidence for collateral purposes?
(b) Whether the defendants-respondents were estopped and precluded from challenging the title of the plaintiff-appellant?
(c) Whether a-simple suit for eviction was maintainable without payment of ad valorem court fee on the market value of the suit property?
Re : Question No. (a) : From a perusal of unregistered deed dated 15-5-1966 (Ext. 1) it is evident that a tenancy was created in favour of Dhanpat Ram by the plaintiff. Evidently, therefore, the said agreement was not admis-sible in evidence.
19. However, in terms of proviso to Section 49 of the Registration Act, the said document could have been looked into for the collateral purposes. In Rajendra's case (supra) 'this court while holding that unregistered Kirayanama was not admissible in evidence, proceeded to decide the said issue involved in that case namely the term in the Kirayanama in question, by reason whereof 11 months lease was created could not be proved and on that ground alone, it was held that the said Kirayanama was inadmissible in evidence for the purpose of determining as to whether the period of the lease was for 11 months or not. Evidently, such is not the position here. By reason of Ext. 1, a month to month tenancy had been created. True, it is, that the terms and conditions of the said unregistered agreement cannot be looked into as the said agreement was unregistered one, but in my opinion and there cannot be any doubt, whatsoever, that the said Kirayanama is admissible for collateral purposes viz. to determine the question of nature of possession of the parties, who could be put in possession even without any agreement in writing.
20. In Rameshwar Lal Sharma v. Sardar Amrik Singh reported in AIR 1974 Pat 195, learned single Judge of this Court relied upon a decision in Mt. Ugni v. Chowa Mahto reported in AIR 1968 Pat 302 (FB) and held as follows:--
"An unregistered lease deed which required registration cannot be looked into for proving the tenancy but may be considered for the collateral purpose of ascertaining the nature and character of the possession of a party".
Proviso to Section 49 of the Indian Registration Act stipulates that an unregistered document although inadmissible in evidence, is admissible for certain purpose as mentioned therein i.e. inter alia, as evidence of collateral transactions not required to be effected by registered instrument.
21. The court 'of appeal below has incorrectly held that the unregistered agreement cannot be looked into' for the purpose of ascertaining the nature of possession. In this connection, reference may be made to the case reported in AIR 1972 Pat 43 (Habibur Rahman v. Mt. Tetri), and AIR 1975 Madh Pra 230 (Sardar Amar Singh v. Surinder Kaur) wherein Full Bench of the Madhya Pradesh High Court held that "unregistered lease deed can be used to show the nature and character of possession of the defendants".
22. In a decision reported in AIR 1943 Lah 127 (FB) (Mohan Lal v. Ganda Singh), it was held that unregistered deed of lease can be relied upon to establish the relationship of landlord and tenant between the parties.
23. In paragraph 13 of the written statement, although the defendants purported to have contended that the unregistered Kiraya-nama dated 15-5-1966 was a forged and fabricated document; the learned lower appellate court proceeded to hold that the said Kirayanama cannot be relied upon as the same was inadmissible in evidence. In this view of the matter, it is evident that no finding of fact has been arrived at by the lower appellate court reversing the finding of the learned trial court that the execution of the Kirayanama by Dhanpat Ram was not disputed.
24. In this view of the matter, it must be held that the aforementioned unregistered Kirayanama dated 15-5-1966 was admissible in evidence for the purpose of proving the nature of possession of the aforementioned Dhanpat Ram. The said document was, therefore, admissible in evidence for collateral purpose and thus the same could be used for proving that it was Dhanpat Ram who was inducted as a tenant by reasons in terms of the said Kirayanama which established that the plaintiff put the aforementioned Dhanpat Ram in possession of the property in suit as a tenant. Re : Question No. (b): Once by reason of the said Kirayanama, relationship of landlord and tenant was established by and between the plaintiff and the said Dhanpat Ram, the title of the landlord could not be challenged under general principles of estoppel, apart from the principles laid down under Section 116 of the Evidence Act.
25. In the case of Tejbhan Madan v. IInd Additional District Judge and Ors. reported in(1988) 3 SCC 137 : (AIR 1988 SC 1413), it has been held by the Supreme Court that if a tenant has paid rent to the landlord, he cannot dispute the title of his landlord under general principles of estoppel. The aforementioned decision of the Supreme Court has recently been followed by this Court in Sayeed Abull Wahab v. Mommad. Sakman alias Lokman reported in 1989 BLJ 332.
26. This aspect of the matter has also been considered by a Division Bench decisions of this Court in the case of Rambaran Paswan v. Smt. Kalo Devi reported in AIR 1974 Pat 333 and Jaikaran Singh v. Ram Agarwalla reported in AIR 1974 Pat 364.
27. In view of the aforementioned authoritative pronouncements, there cannot be any doubt that upon execution of the aforementioned Kirayanama, Dhanpat Ram and consequently the defendants-appellants were estopped from challenging the title of the plaintiff.
28. At this juncture, the main submission of Mr. Debi Prasad is to the effect that the properties were owned and possessed by Nando Ram and upon his death the defendants-appellants being the grandsons of Nando also inherited may be considered. The defendant No. 1 examined himself as DW 1. He admitted in paragraph 7 of his cross-examination which has also been taken note of by the learned trial court in paragraph 11 of his judgment, that Nando died 15-16 years back from the date of the deposition. He examined himself before the trial court on 29-1-1981. In this view of the matter, it may be presumed that Nando died some time in the year 1965 i.e. after coming into force of Hindu Succession Act, 1956.
29. Both the courts below have concurrently found that Dhanpat Ram and his family were in exclusive possession of the suit properties. As Dhanpat Ram had executed a deed of sale on 14-5-1966 as also a Kirayanama on 15-5-1966, the defendants-respondents could have disputed the title of the plaintiff, only if they could set-up a title in the suit properties in themselves.
30. In view of the fact that admittedly the property of the aforementioned Nando was not his ancestral property but was his self-acquired property and upon his death the same devolved upon Dhanpat and his brothers in terms of Section 8 of the Hindu Succession Act, 1956 which reads as follows :--
"The property of a male Hindu by intestate shall devalue according to the provisions of this Chapter:--
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I then upon the heirs, being the relatives specified in Class II of Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
31. From a bare perusal of the aforesaid provision, it is clear that the devolution of the interest is upon the sons along with the other heirs mentioned in the First Schedule appended to the said Act and such devolution of interest in the sons or the heirs mentioned therein cannot be for the benefit of others including his sons.
32. Reliance, as indicated hereinbefore, was placed by Mr. Devi Prasad upon Section 223 of the Mulla's Hindu Law, wherein the learned author was discussing the effect in the said section of devolution of interest in respect of an ancestral co-parcenary property prior to coming into force of the Hindu Succession Act, 1956.
33. There is a radical change in the matter of succession after coming into force of the said Act. As mentioned hereinbefore, the properties in question at the hands of Nando Ram were his self acquired property and in that view of the matter, as the property devolved upon the heirs of Nando was after coming into force of the Hindu Succession Act, 1956, the defendants did not inherit the same in their capacity as grandsons of Nando Ram.
34. So far as the question as to whether the title, interest in the properties in question passed on Harbans Singh or not, in view of payment of alleged part consideration amount in respect of the deed of sale dated 14-5-1966 is concerned, the said question also does not arise in this case.
35. It is now well settled that the question as to whether a title passed to the vendee, even if the consideration amount or a part thereof has not been paid depends upon the intention of the parties. Such, an intention has to be gathered primarily from the recitals made in the deed of sale as also circumstances surrounding thereto.- In terms of Section 54 of the Transfer of Property Act, a sale may became complete, although the consideration amount or a part thereof has not been paid, but promised to be paid.
36. In terms of Section 8 of the Transfer of Property Act, title passes forthwith upon the registration of the deed to the transferee with all the interest which the transferor had been capable of passing in the property and in the legal incidences thereof unless different intention as such is expressly or necessarily implied.
37. In this case, it has not been pointed out by Mr. Debi Prasad that a different intention is either expressed or necessarily implied that upon the execution of the aforementioned deed of sale dated 14-5-1966 (Ext. 2) the parties, thereof did not intend that the interest of Dhanpat Ram would not pass to the plaintiff.
38. Further the very fact that on the next day of the execution and registration of the aforementioned deed of sale the Kirayanama was executed, goes to show that the plaintiff derived title as persuant thereto Dhanpat Ram agreed to become a tenant of the plaintiff. In this view of the matter, and in the facts and circumstances of this case, it must be held that the plaintiff acquired title and interest in the suit property by virtue of the aforementioned deed dated 14-5-1966.
39. In any event, it was upon all the defendants-respondents to challenge the aforementioned deed dated 14-5-1966 or to pray for a decree for payment of unpaid consideration amount.
40. In view of execution of the aforementioned deed of Kirayanama dated 15-5-1966 it must be held that Dhanpat Ram and consequently the defendants were estopped from challenging the title of the plaintiff unless they delivered vacant possession of the said premises to him.
Re : Question No. (c): An objection was raised by Mr. Debi Prasad that a simple suit of eviction was not maintainable, in absence of payment of ad valorem court-fee on the market value of the suit property as the title of the plaintiff was disputed in the said suit. In view of my aforementioned finding that the relationship of landlord and tenant has been proved and the defendants-appellants were estopped from challenging the title of the plaintiff in this suit it was not at all necessary for the learned court below to go into the question as to whether the plaintiff acquired title by reason of the aforementioned deed of sale dated 14-5-1966 or not.
41. The question of title, in a given case can be incidentally gone into in a suit for eviction. However, in this case as the relationship of landlord and tenant was proved, even this question was not required to be gone into as the question that the plaintiff had no title raised by the defendants and thus the plaintiff was not required to pay advalorem court fee on the market value of the suit property.
42. Considering all the aspects of the matter, it has to be held that the judgment and decree passed by the learned court of appeal below cannot be sustained.
43. The aforementioned findings, disposed of the substantial question No. 1 formulated at the time of admission and has been referred to in paragraph 9 hereinbefore.
44. So far the substantial question No. 2 is concerned, admittedly no rent has been paid by the defendants-respondents to the plaintiff-appellant. Further, in view of the fact that their defence against ejectment was struck off, the question of rejecting the ex-party evidence adduced on behalf of the appellant does not arise.
In this situation, it must be held that the respondents were defaulter within the meaning of Section ll(1)(d) of the Act.
45. In the result, this appeal is allowed and the judgment and decree passed by the learned court below is set aside and that of the trial court restored. In the facts and circumstances of the case, however, there will be no order as to costs.