Jharkhand High Court
Kali Charan Pandey vs (Ii). Mohan Lal Mahto on 13 June, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.417 of 2003
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Kali Charan Pandey .... .... .... Appellant
Versus
1(ii). Mohan Lal Mahto
1(iii). Shankarlal Mahto
1(iv). Dineshwar Mahto
1(v). Sabitri Devi
1(vi). Purnima Devi & Budhni Devi
3. Chintamani Devi
4(a) Shyam Narayan Upadhya
5. Lakhi Sharan Pandey .... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant : Mr. Manjul Prasad, Sr. Advocate For the Respondent (s) : Mr. Sardhu Mahto, Advocate
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C.A.V. ON 16.04.2024 PRONOUNCED ON 13.06.2024
1. This Second Appeal has been filed against the judgment and decree passed in Title Appeal No. 64 of 1990 whereby and where under the judgment and decree passed in Title Suit No. 27 of 1986/12 of 1988, has been reversed.
2. Parties shall be referred to by their original placement in the suit and shall include the legal representatives substituted at different stages.
3. Plaintiff's suit is for declaration of the sale deed to be executed by his father in favour of a third party, as it pertained to ancestral property in which the plaintiff had subsisting interest.
4. Plaintiff's suit was decreed by the Trial Court, and reversed in appeal by the first Appellate Court.
5. Plaintiff's case is that Rangu Pandey was the great grandfather of the plaintiff. He had two sons Shankar Pandey and Sibu Pandey @ Shib Dayal Pandey from his wife, and one son Meghu Singh from his concubine. Shib Dayal Pandey died leaving behind a son Thakur Prasad Pandey who was defendant no. 2 in this case and died during the course of trial. Shankar Pandey and Shib Dayal Pandey had land in village Honhay which was recorded under khata no. 136 and under khata no. 22 and 94 of village Siru. Shankar Pandey and Shib Dayal Pandey were in joint possession over the aforesaid land.
16. Shib Dayal Pandey instituted a partition suit no. 162 of 1928 for partition of his half share in the Court of Sub-Judge Hazaribagh which was decreed on 18.03.1940 and thereafter the defendant Nandlal Pandey filed an appeal bearing no. 64 of 1941 which was also dismissed on 12.08.1941 and the decree passed in favour of Shib Dayal Pandey and Thakur Pandey was confirmed. Shib Dayal Pandey and his son took delivery of possession of the land of khata no. 136 of village Honhay and Siru and execution case no. 5 of 1941 on 04.09.1941 and 07.11.1941. Nandlal Pandey and others were not satisfied with the judgment and decree of the Civil Court and hence he and his legal heirs started causing serious obstruction in cultivation of land of khata no. 136 because they wanted more share in the land and they lost all including Title Suit no. 38 of 1968. Heirs of Meghu Pandey also lost the suit in the Court of Sub Judge Hazaribagh and from the appellate court.
7. Thakur Pandey (Defendant no.2) father of the Plaintiff, executed a deed of sale in favour of defendant no. 1 in respect of schedule A of the plaint, who had no right to execute the same because the plaintiff was in joint possession on the date when the sale deed was executed on 01.10.1974 in favour of defendant no. 1.
8. The suit has been brought for a declaration that the sale deed no. 10034 executed on 01.10.1974 is void, illegal and bogus document never conferred any title on defendant no. 1. Plaintiff claims to be in continuing possession over the land and the defendant no. 1 had got no title over the suit land and his sale is void and the same was done without any legal necessity and also without consent of the plaintiff.
9. The defendant no. 1 in the written statement has pleaded that the Schedule A lands are among those which were allotted to the father of Thakur Pandey (defendant no. 2). After the partition suit no. 26 of 1926 was disposed by the Munsif Hazaribagh the schedule A lands and others were allotted to the father of Thakur Pandey. Subsequently, Thakur Pandey again brought a title suit no. 38 of 1967 in the court of Sub- Judge Hazaribagh against the heirs of Shankar Pandey and Meghu Pandey which was ultimately decreed by the 3 rd Additional Sub Judge on 20.09.1972. Thakur Pandey was in exclusive possession of schedule A lands and other lands given in partition suit no. 26 of 1926 ratified in Title 2 Suit no. 38 of 1967. He was managing all the affairs of lands of khata no. 136 including schedule A lands and was karta of the his family consisting of his son the plaintiff, his widow and daughters. In the year 1974 Thakur Prasad Pandey was in debt and for that he was making effort to raise money and also, he had to construct house and purchase cattle. Defendant no. 1 paid Rs.10,000/- to Thakur Pandey on 20.09.1974 and the remaining amount of Rs.9,500/- was paid on 01.10.1974 on which date Thakur Pandey executed the sale deed in respect of Schedule-A of the plaint in favour of defendant no. 1 and he was put in possession of the same.
10. On the basis of the pleadings of the parties the following main issues were framed:
I. Is the suit maintainable?
II. Is the plaintiff entitled for a declaration that defendant and no. 1 had no right to execute any sale deed in respect of Schedule A land of the plaint in favour of defendant no. 2?
III. Is the sale deed dated 01.10.1974 executed by defendant no. 1 in favour of defendant no. 2 void, illegal and not binding on the plaintiff? IV. Is the suit bad for non-joinder of necessary parties?
V. Is the plaintiff entitled to any relief?
11. The learned Trial Court decreed the suit for cancellation of the sale deed No. 10034 dated 01.10.1974 in respect of Schedule-A inter alia on the ground that:
Vendor (D2) had no exclusive right to alienate suit land which was admittedly ancestral. Father of defendant no.2, namely Shiv Dayal Pandey had filed a Partition Suit No. 162 of 1928 which was decreed on 18.03.1940 and attained finality after the appeal preferred against it was dismissed. Plaintiff had subsisting right in the suit property which could not be alienated by his father defendant no.2 in favour of the third party.
The averment regarding ancestral property and being obtained on partition, was not denied in the written statement.
12. The First Appellate Court reversed the judgment of the learned Trial Court on the ground that subsequent purchasers and others were not impleaded in the suit and, therefore, the suit was bad for non-joinder of necessary party(s).
313. The Second Appeal has been admitted to be heard on the following substantial question of law:-
(i) Whether the land, in question is an item of joint family property?
(ii) Whether the sale deed executed by defendant no. 2 in favour of defendant no. 1 is illegal and void?
(iii) Whether the learned lower appellate Court has misconducted the provisions of law in setting aside the judgment and decree of learned trial Court?
14. It is argued by learned Senior counsel for the appellant that the First Appellate court has erred in allowing the appeal against the plaintiff(s) on the ground of subsequent purchasers being not impleaded in the suit.
15. It is further argued that plaintiff being the son of Thakur Pandey (defendant no.2) was one of the coparceners of the joint family and the property being ancestral in nature, his share could not have been alienated by his father without his consent.
16. It is also argued that there is specific averment in the plaint in Para-2 and the same was not denied in the written statement that Shiv Dayal Pandey had got his property by way of partition and the nature of suit was ancestral in nature. Reliance is placed on the judgment reported in AIR 2017 SC 3995 wherein it has been held that in absence of specific denial, the same amounts to admission.
FINDING
17. With regard to the first substantial question of law regarding the nature of the property there is no denial in the written statement that the suit land was a joint family property. The averment as made in para 2 of the plaint that it was obtained on partition by the grandfather of the plaintiff, has not been denied. It is however pleaded that the sale was made by Defendant no.2 as Karta, for improvement of estate in the form of construction of house and to purchase cattle.
18. One of the reasoning of the first appellate court for dismissing the suit is on the ground that those impleaded in the proceeding under Section 145 of the Cr.P.C had not been impleaded in the suit and therefore the suit was bad for non-joinder of necessary party. This reasoning cannot be accepted and therefore is rejected. Where a party who is either a 4 necessary or a proper party to a suit is not joined as a party to the suit, the case is one of non-joinder of parties. Order 1 Rule 9 is only a rule of procedure which does not affect the substantive law. It has been held in Kasturi v. Iyyamperumal & Ors, (2005) 6 SCC 733 :
"Two tests are to be satisfied for determining the question who is a necessary party. Tests are -- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party".
19. The main dispute is with respect to substantial question no.2 which has been framed by the trial court as Issue No.II. On this issue, as discussed above, trial court decreed the suit and the first appellate court, has dismissed the suit.
20. At the outset, it should be noted that there is a difference between seeking cancellation of sale deed, and seeking a declaration that it was not binding on the plaintiff. Executant of a deed in the event of execution being obtained by fraud, has a remedy in cancellation of the deed under Section 31 of the Specific Relief Act. Non-executant may seek a declaration that the deed is invalid, or non-est or illegal or that it is not binding on him under Section 34 of the Specific Relief Act, interalia on the ground that the executant had no or had imperfect title in the execution of the sale deed.
21. Title in an immovable property, is transferred on the date of execution of the sale deed and cancellation cannot be sought for balance consideration amount. Only a money suit is maintainable on non- payment of the consideration amount. The cancellation can however be sought by the executant on grounds of fraud or forgery. A declaration that the deed was not binding can be made in favour of a third party if the executant has no title or partial title over the suit property [Refer to (2019) 2 SCC 727, (2010) 12 SCC 112, (2006) SCC OnLine AP 900 referred to by the Apex Court in Deccan Papers Mills Co. Ltd. Versus Rejency Mahavir Properties; (2021) 4 SCC 786.
22. In the present case, the suit for declaration of sale to be void, has not been sought by the executant (defendant no.2), who is the father of the plaintiff. Therefore, cancellation on the ground of fraud, is not available 5 to the plaintiff.
23. What is to be seen, is whether the plaintiff is entitled to a declaration as the property was admittedly an ancestral one in which the plaintiff had a subsisting right and property had been sold by his father in favour of the defendant no.1.
24. In my considered opinion, as per legal position, the transactions entered into by the karta of the Hindu Joint Family are binding on the undivided share of the minors as well as other members of the family, not only when they are executed for the legal necessity but also for the benefit of joint family. The burden of proof is on the purchaser to lead evidence that the alienation of the joint family property was made by the karta for the legal necessity or benefit of estate. Recital of the registered instrument can be one of the evidence to show that transfer was made for the benefit of estate.
25. In the present case as per the case of the purchaser (Defendant no.1) the suit land was disposed of to raise money for construction of house and for purchase of cattle. The sale deed executed by Defendant no.2 in favour of Defendant No.1 has been proved and marked as Ext-B/3. As per its recital the sale was made to raise money as pleaded for construction of house and for purchasing cattle. Under the circumstance the defendant purchaser has discharged the onus that the transfer was for benefit of estate. No contrary evidence has been led to in rebuttal that transfer was not made for benefit of estate.
26. It has come in the evidence of the witnesses examined on behalf of the Plaintiff that he was living with his father Defendant no.2 and therefore it cannot be said that he was completely unaware of the sale of the property. Father being the Karta of the joint family, had the right to alienate the joint family property for legal necessity or benefit of the estate. The suit for declaration has been filed after 12 years of the said execution of the sale deed made by Defendant No.2 in favour of Defendant No.1. In the meantime, the name of the purchaser was mutated and was also re-transferred to the other purchasers. Therefore, in the circumstance this Court does not find any infirmity in the finding of the first appellate Court with regard to the finding of the sale deed being validly executed. Substantial question no.(ii) &(iii) of law regarding the 6 validity of sale is accordingly answered in favour of the Defendant/Respondent and the learned Appellate Court did not commit any illegality in allowing the appeal and dismissing the suit of the plaintiff.
The second appeal, accordingly, stands dismissed.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi.
Dated 13th June, 2024 Sandeep/Pawan 7