Himachal Pradesh High Court
Karam Chand vs Satavi Om And Another on 27 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.678 of 2005.
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Date of decision: 27.12.2018.
Karam Chand ..... Appellant/Plaintiff.
Versus
Satavi Om and another ....Respondents/defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Ajay Sharma, Advocate.
For the Respondents : Mr. Ajay Chandel, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge (Oral).
The plaintiff is the appellant, who aggrieved by the judgments and decrees passed by the learned Courts below, has filed the instant appeal.
2. The parties hereinafter shall be referred to as the 'plaintiff' and 'defendants'.
3. The plaintiff filed a suit for declaration to the effect that he along with defendants and proforma defendant was co-sharers in 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 2 possession of land comprised in Khata No. 47, Khatauni No.109, Khasra Nos. 780, 781, 804, 807 and 907, plots 5, measuring 0-18-75 .
H.M., situate in Tika and Mauza Chabbar, Tehsil Jawali, District Kangra, H.P. (for short 'suit land'). It was pleaded that the parties are agriculturists and governed by Kangra Customary Law in matters of alienation. Since the property was inherited from father, the same was ancestral property. Defendant No.1, who was none other than father of the plaintiff and defendant No.2 and proforma defendant, had no right to alienate the same in favour of defendant No.2. Defendant No.1 was illiterate and simple person and not conversant with the worldly affairs and an habitual drunkard, whereas, defendant No.2 is a clever person and knowing fully well that the suit land was ancestral and could not be disposed of, he still got executed a sale deed in his favour by coercion and misrepresentation that too when defendant No.1 was under the influence of liquor. On the basis of these allegations, the plaintiff filed a suit for declaration to the effect that he along with defendants and proforma defendant are co-sharers in possession of the suit land and the sale deed executed by defendant No.1 in favour of defendant No.2 was null and void and not binding on the plaintiff.
::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 34. The defendants contested the suit by filing joint written statement whereby they took preliminary objections regarding locus-
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standi, cause of action, estoppel, mis-joinder of cause of action, non-
joinder of necessary parties and maintainability etc. On merits, it was averred that since defendant No.1 was not having independent source, so, he sold his share out of the suit land to defendant No.2 for sale consideration of Rs.3500/- and thereafter put him in possession of the same. After purchasing share of defendant No.1, defendant No.2 is now co-sharer of 2/3rd share, whereas, plaintiff and proforma defendant only had equal share in the suit land. It was further averred that the suit property was neither ancestral nor the parties were governed by Kangra Customary Law. Therefore, defendant No.1 had every right to transfer his share out of the suit land to defendant No.2. It was further averred that the plaintiff about 36 years back separated from defendant No.1 and was living separately ever since then. Plaintiff did not contribute or pay a penny to defendant No.1 and his mother. So much so, mother of the plaintiff also died 16 years back.
5. Out of the pleadings of the parties, the learned trial Court initially framed issues on 09.08.1996 and thereafter on 06.09.2002 additional issues were framed. The issues so framed are as under:-
::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 4"1. Whether the parties are governed by Customary Law in the matter of alienation, as alleged? OPP.
2. Whether the suit property is ancestral, as alleged? OPP.
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3. If issue No.1 is proved, whether the sale deed No.459 dated 24.12.91 executed by defendant No.1 in favour of defendant No.2 is illegal, null and void and not binding upon the rights of the plaintiff qua the suit land, as alleged? OPP.
4. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD.
5. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD.
6. Whether the plaintiff has no enforceable cause of action, as alleged? OPD.
7. Whether the plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD.
8. Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD.
9. Whether the suit of the plaintiff is bad for multifariousness, as alleged? OPD.
9-A. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD.
10. Relief."
6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit. Even the appeal filed against the said judgment and decree came to be dismissed by the learned ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 5 first appellate Court vide judgment and decree dated 06.10.2005, constraining the plaintiff to file the instant appeal.
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7. On 07.11.2007, this Court admitted the appeal on the following substantial questions of law:-
"1. Whether impugned judgments and decrees as passed are result of misreading and misappreciation of evidence, more particularly, the statement of PW-1 thereby vitiating the same?
2. Whether impugned judgment and decree passed by learned first appellate court below being hit by the provisions of Order 20 Rule 5 CPC, thus, stand vitiated and liable to be set aside?"
Substantial Question of Law No.1.
8. In order to answer this question, it would be necessary to advert to the statement of PW-1, who is none other than, the plaintiff Karam Chand himself, who stated that the suit land was about 2 Kanals and some Marlas and owned by the parties. The suit land was purchased by them from the son of their paternal uncle. His father got share in the suit land with the estate equal to the share of their uncle's son which devolved upon them after the death of their grandfather. His father had no right to sell the suit property to anyone as the parties were agriculturists and governed by Kangra Customary ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 6 Law which prohibited the sale of such land. He further averred that his father died at the age of 122 years and the alleged sale deed was .
executed at the time when he was 98 years of age and not in sound disposing state of mind. He was habitual drunkard. There was no necessity for the father to have sold the suit land and moreover the sale consideration was never paid to him. After the death of their father, all the three brothers were entitled to equal shares in the suit property. However, during his cross examination, the plaintiff admitted that Mangta was their father but denied that Mangta had distributed the suit property amongst his sons during his life time. He denied that suit land had been kept by Mangta for his personal use. He also denied that he was living separately from his father for the last 35-36 years. He also admitted that his father was handicapped, but was having sound disposing state of mind. He further denied that he had not paid any money to his father after he got separated from his parents. He denied that on 09.07.1991, he gave an application to SHO, Indora for registration of a case against his father under sections 107/150 of the Code of Criminal Procedure. He denied that his father had sold the land in order to meet out the expenses on account of his ailment.
::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 79. At this stage, it would now be necessary to advert to the evidence led by the defendants. Suresh Kumar, Document Writer, .
appeared as DW-1 and stated that the registered sale deed Ex. D-1 was scribed by him on the instructions of Mangat Ram. During his cross examination, he denied that he used to write in all his sale deeds that the alleged transaction is for the purpose of meeting out the family expenses, however, he voluntarily stated that in case some
10.
r to body asked him to write those words, only then he used to write the same in the documents.
Defendant No.2 Satavi Om is none other than the son of Mangat Ram, father of the plaintiff and defendant No.2, who stated that he was owner qua 2/3rd share in the suit property, whereas, plaintiff was entitled to 1/6th share and proforma respondent to the other 1/6th share. He stated that he purchased half share of the suit property from Mangat Ram vide registered sale deed for a consideration of Rs.3500/-. His father was in need of money for meeting out the expenses on account of his illness. The plaintiff and defendant No.3 had separated themselves from defendant No.1 about 35-36 years ago. They never paid any expenditure to their father. He also denied that the parties were governed by Kangra Customary Law. He went to state that his father was having 100-150 Kanals of ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 8 land and had during his life time divided whole of land in three equal shares and had kept some land for himself where he had constructed .
house. He also placed on record the revenue records pertaining to the suit land Ex.D-2 to D-7.
11. During his cross examination, defendant admitted that on 24.12.1991 he had not paid even a single penny to his father, but voluntarily stated that he gave money at home two to three months prior to the execution of the sale deed. He further stated that his father died at the age of 96 years. He also stated that plaintiff had got himself separated from his father when he was studying in 5th class and when his father fell ill, the plaintiff did not attend upon him and it was defendant, who took him to government and private hospitals many times. He admitted that his father had executed a Will in favour of all three brothers whereby his share had to be devolved upon in equal shares, but voluntarily stated that suit land was not included in that Will. He denied that the suit land was ancestral. He also denied that his father had no legal necessity to sell the suit land in his favour.
He admitted that he had instituted partition proceedings regarding the suit land and other land as they were recorded in joint possession.
He further denied that his father had not divided the suit land in three equal shares.
::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 912. It would be noticed that the main thrust of the plaintiff is that the land was ancestral in the hands of Mangta, defendant .
No.1(since deceased), who, according to him, had no authority to alienate the suit land because the parties are agriculturists and governed by Kangra Customary Law. However, as rightly noticed by the learned Courts below the plaintiff himself in his statement that too in his examination-in-chief has categorically stated that the suit land had been purchased by his father from the son of their paternal uncle.
If that be so, then obviously, the property in the hands of defendant No.1 cannot be held to be ancestral.
13. Apart from the above, in case the averments in the plaint are adverted to, it would reveal that in para-5 thereof, the plaintiff has categorically averred that defendant No.1 had not only executed the sale deed in favour of defendant No.2 on the fateful day, but he also executed another sale deed in favour of one Om Parkash. Therefore, this in itself is an additional circumstance to hold that the property in the hands of defendant No.1 was not ancestral.
14. It is vehemently argued by Shri Ajay Sharma, learned counsel for the appellant/plaintiff that the learned Courts below have failed to take into consideration the fact that the sale deed executed by defendant No.1 in favour of defendant No.2 was without consideration ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 10 and it was an outcome of fraud and misrepresentation as defendant No.2 had intoxicated defendant No.1 in order to grab the suit land.
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15. The contention raised by the plaintiff is again without any merit as the pleadings regarding fraud and misrepresentation are wholly deficit and not in accordance with Order 6 Rule 4 of the Code of Civil Procedure. It is only in para-5 of the plaint that general averments regarding coercion and misrepresentation have been made.
16. to Order 6 rule 4 CPC reads thus:-
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
17. The plaintiff apart from using the word "coercion/ misrepresentation" has not given any specific particulars regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve this purpose of Order 6 Rule 4 CPC and the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.
::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 1118. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Subhas Chandra Das .
Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:
"10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR): (at p. 1288 of AIR):
"A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 12 making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was .
therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
19. It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:
"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 13 had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no .
issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
20. In Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and others (1999) 4 SCC 262, the Hon'ble Supreme Court held that while pleading fraud, particulars necessary for establishing the same should be specifically stated in the plaint and it was further held that findings on a question of fraud concurrently arrived at by the Courts below should not be interfered with by the High Court while exercising power under Section 100 of CPC. The aforesaid Rule is mandatory and no departure from the Rule is permissible while leading evidence. As regards the plea of misrepresentation, the same means wrong, false or misleading representation.
21. Yet again on the subject, reference to a judgment rendered by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 is also essential as the law on the subject was lucidly dealt with and it was held as under:
"............The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 14 prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the .
revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 15 to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be .
unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud......"
22. The question whether a particular transaction is vitiated on the ground of undue influence, fraud and misrepresentation etc. is primarily a decision on a question of fact as was held by the Privy Council in Satgur Prasad versus Har Narain Das, A.I.R. 1932 Privy Council 89 wherein it was observed that in a suit for setting aside a deed on the ground that it was procured by undue influence and fraud, the finding as to undue influence and fraud is a finding of pure fact and in appeal the concurrent finding of fact by the lower Courts will not be disturbed unless it is shown that there has been a miscarriage of justice or violation of any principle of law.
23. The ratio laid down in Satgur Prasad's case (supra) was relied upon with approval by a Constitution Bench of the Hon'ble ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 16 Supreme Court in Ladli Parshad Jaiswal versus The Karnal Distillery Co. Ltd., Karnal and others, AIR 1963 SC 1279 and it was .
observed as under:-
"19. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satgur Prasad v. Har Narain Das, 59 Ind App 147:
(AIR 1932 PC 89) the Privy Council held that in a suit to set aside a deed on the ground that it was procured by undue influence and fraud, the finding that it was so procured is a finding of fact and is not liable to be reopened if fairly tried. Under the Civil Procedure Code, a second appeal does not lie to the High Court, except on the grounds specified in the relevant provisions of the Code, prescribing the right to prefer a second appeal, and the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be" (Mt.Durga Choudhrain v. Jawahir Singh Choudhri, 17 Ind App 122(PC). But the challenge before Bishan Narain, J., to the decision of the District Judge was founded not on the plea that appreciation of evidence was erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 17 producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."
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24. Similar reiteration of law can be found in the subsequent judgment of the Hon'ble Supreme Court in Bellachi (dead) by LRS.
versus Pakeeran, (2009) 12 SCC 95 and in a judgment of this Court in Smt. Padma Devi & Anr. versus Smt. Soma Devi, AIR 2011 HP
98.
25. As already observed above, some portion of the land has already been sold to one Om Parkash, but the said deed has not been challenged by the plaintiff. If defendant No.1 had no right to alienate the property in favour of defendant No.2 as per custom, then obviously, he did not have the right to alienate or sell the same in favour of Om Parkash, but then the plaintiff has not challenged the said deed. Otherwise also, the custom in question would only apply in case the property is held to be ancestral, whereas, in the present case, it has been admitted by the plaintiff himself that his father had purchased the property from the son of his paternal uncle and thus was a self-acquired property in the hands of defendant No.1.
26. On the basis of the pleadings as also oral and documentary evidence available on record, the plaintiff has failed to prove that the suit property was ancestral property in the hands of ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 18 Mangta and, therefore, no exception can be taken to the findings recorded by the learned Courts below to this effect. Thus, the findings .
recorded by the learned Courts below cannot be termed to be perverse. Accordingly, substantial question of law No.1 is answered against the plaintiff.
Substantial Question of Law No.2.
27. Order 20 Rule 5 CPC reads thus:-
"5. Court to state its decision on each issue In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
28. As per the aforesaid provisions, the learned trial Court was required to render issue-wise findings, whereas, this is not so insofar as the requirement of learned first appellate Court is concerned, especially, when the judgment and decree are one of affirmance. The judgment of the learned appellate Court must reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. The task of the appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial ::: Downloaded on - 01/01/2019 20:01:55 :::HCHP 19 Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with .
reasons given by the Court, decision of which is under appeal, would ordinarily suffice. (Refer: Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124).
29. Reverting back to the case, it would be noticed that the learned first appellate Court in the instant case has itself undertaken to scrutinize the entire pleadings and evidence on record and only thereafter affirmed the findings recorded by the learned trial Court by passing a detailed judgment. Therefore, no exception can be taken to the judgment so passed by the learned first appellate Court, more particularly, when the same are hit by the provisions of Order 20 Rule 5 CPC. In view of the aforesaid discussion, even this substantial question of law is answered against the plaintiff.
30. In view of the substantial questions of law being answered against the plaintiff, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
Pending application also stands disposed of.
( Tarlok Singh Chauhan ) th 27 December, 2018. Judge.
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