PETITIONER: SUNDER DAS & ORS. Vs. RESPONDENT: GAJANANRAO & ORS. DATE OF JUDGMENT: 13/12/1996 BENCH: N.P. SINGH, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
S.B. Majmudar. J.
This appeal on the grant of special leave to appeal
under Article 136 of the Constitution of India is directed
against the judgment and order of a Division Bench of the
High Court of Madhya Pradesh in First Appeal No.2 of
1979 whereby the Division Bench dismissed the First Appeal
and confirmed with modification the decree passed by the
Trial Court against the appellants in Civil Suit No.13A of
1978 in the Court of learned District Judge, Datia. The
facts leading to this appeal shortly stated are as under.
The appellants are the original defendants against whom
respondent nos.1 to 3, original plaintiffs, filed
the aforesaid suit for a declaration that the registered
Sale Deed dated 30th May 1959 executed by their father,
respondent no.4 in this appeal who was original defendant
no.6 in the suit, in favour of the present appellants is
void and inoperative at law and for restoration of the
possession of the suit house bearing Municipal No 1153/1
situated in Rajgarh locality of Datia town in the State of
Madhya Pradesh. For the sake convenience we will refer to
the appellants as original contesting defendants and
respondents 1 to 3 as plaintiffs in the latter part of this
judgment. Respondent no.4, father of the plaintiffs was
joined as defendant no.6 in the suit. The case of the
plaintiffs is that their father original defendant no.6 had
executed registered Sale Deed dated 50th May 1955 conveying
the suit house to the contesting defendants for a sum of
Rs.l800/- and delivered possession of the said house to
them. According to the plaintiffs the suit house was their
ancestral property in which they had 90 undivided 3/4th
interest. That their father, defendant no.6, had no right to
transfer the suit house in favour of the contesting
defendants and consequently the said Sale Deed was not
binding on them.
The said suit was contested by the contesting
defendants on the ground that the house belonged exclusively
to their vendor defendant no.6 and plaintiffs had no
interest therein. lt was alternatively contended that even
assuming that the suit house was an ancestral house wherein
the plaintiffs, had undivided interest defendant no.6, their
vendor, had alienated the said house for family necessity
and his transaction was binding on the plaintiffs. Defendant
no.6 father of the plaintiffs on the other hand supported
the plaintiffs.
Learned Trial Judge after recording the evidence came
to the conclusion that the suit house was an ancestral
property of the parties wherein the plaintiffs had 3/4th
undivided interest while their father defendant no.6 had
1/4th interest and consequently the Sale Deed dated 30th
May 1959 was voidable to the extent of 3/4 share of the
plaintiffs. Accordingly the learned Trial Judge directed
the plaintiffs to be placed in joint possession of the suit
house along with the contesting defendants 1 to 5. Being
aggrieved by the aforesaid judgment and decree of the Trial
Judge the contesting defendants carried the matter in First
Appeal before the High Court. As stated earlier Division
Bench of the High Court was pleased to the same. However the
cross objections filed by the plaintiffs were allowed and
accordingly Trial Court’s decree was modified as under :
“The suit of the plaintiffs for
possession is decreed the
contesting defendants to deliver
possession of the suit house to the
plaintiffs but the execution of the
decree in so far as it directs the
contesting defendants to deliver
possession of the suit house to the
plaintiffs shall remain stayed for
a period of six months from today
and, if before the expiry of the
period the contesting defendants
bring a suit for general partitions
then the stay should continue till
the disposal of the suit but if no
such suit is brought within the
period, the stay of execution of
the decree shall stand cancelled
on the expiry of the period of six
months and the plaintiffs shall be
entitled to obtain the possession
of the suit house.”
It is the aforesaid decree in favour of the plaintiffs
as confirmed with modification by the Division Bench of the
High Court that is brought on the anvil of scrutiny of this
Court in the present proceedings by the dissatisfied
contesting defendants.
At the outset it may be started that at the suggestion
of the Court the contesting parties were given time to
explore any possibility of settlement. But we were informed
that settlement was not possible. However is view of the
fact that two of the plaintiffs are minors at the time when
their father executed the impugned Sale Deed and as the
prices of the properties have naturally got escalated over
years the Court suggested to learned counsel for the
appellants, contesting defendants, that in case they succeed
in this appeal they may ex. gratia make payment of suitable
amount to the respondent-plaintiffs to avoid any possible
heart burning to them. We are happy to note that the
suggestion of the Court was accepted by the appellants,
contesting defendants. Appellant no.1 Sunder Das who was
present in the Court has filed a written undertaking on
affidavit to the effect that having consulted Laxman son of
Tehalram, appellant no.2 in this appeal he was giving
undertaking to this Court that if the appeal filed on their
behalf is allowed and the judgment and decree are set aside
they shall pay ex gratia an amount of Rs.2,00,000/- to the
plaintiff respondents Gajanan Rao, Ravindra Kumar and Govind
Rao within three months from the date of the delivery of the
judgment. We were also informed by the learned counsel for
the appellants that similar affidavits will he filed by the
remaining appellants within one week of the delivery of the
judgment in case the appeal is ultimately allowed and the
suit of the plaintiffs is dismissed. They undertake to make
payment of Rs.2.00,000/- to the plaintiffs aforesaid ex
gratia with a view to alleviate likely heart burning of the
plaintiffs in such an eventuality. We appreciate the good
gesture made by the appellants. It is now time for us to
deal with the merits of the appeal.
We have heard the learned counsel for the contesting
defendants as well as for the respondent plaintiffs in
support of their respective cases.
Learned counsel for the contesting defendants submitted
that both the courts below had patently erred in law as well
as on facts in taking the view that the suit for challenging
the impugned Sale Deed was within limitation. According to
the learned counsel the suit was barred by Article 109 of
the Limitation Act. On merits it was contended that the suit
house belonged exclusively to the contesting defendants’
vendor original defendant no.6, father of the plaintiffs
and, therefore the plaintiffs had no right to challenge the
said Sale Deed. It was alternatively contended that even
assuming that the suit property was ancestral property as
plaintiffs father defendant no 6 was the ‘karta’ of the
joint Hindu family the Sale Deed executed by him was
Perfectly legal and valid and binding on the plaintiffs
unless it was shown that the Sale Deed was vitiated on the
ground of it being executed or paying off a debt incurred by
their father fol an illegal or immoral purpose. That there
was no such case pleaded by the plaintiffs. It was next
contended that the said transaction was for legal necessity
and for family requirement as mentioned in the Sale Deed
these recital were binding on defendant no.6. That there was
no cogent evidence led by the plaintiffs to rebut these
recitals in the Sale Deed. That both the courts below were
patently in error when they took the view that the
transaction was not binding on the plaintiffs. That the suit
was purely a collusive suit got filed by defendant no.6
through his sons after eleven and a half years of the
transaction. That they stood by the transaction for
all these years, allowed the contesting defendants to spend
huge sums of money for re-construction and rennovation of
the house and that suit was filed merely to knock out more
money from the contesting defendants and to harass them.
Hence it was liable to be dismissed even on merits.
On the other hand learned counsel Shri Khanduja for
the respondent-plaintiffs submitted that both the courts on
appreciation of evidence had come to a concurrent finding of
fact that there was no legal necessity for defendant no.6 to
execute the Sale Deed. That defendant no.6 was not shown to
have incurred any debts or was in such a stringent economic
condition that he was required to sell of the suit house to
the contesting defendants and, therefore on the evidence on
record the conclusion reached by both the court below that
defendant no.6, father of the plaintiffs. could not legally
alienate the undivided 3/4th interest of the plaintiffs in
the suit house, remained well justified and called for no
interference in this appeal.
Having carefully considered the aforesaid rival
contentions we find that the judgment and decree as passed
by Trial Court and as confirmed with modification by the
Division bench of the High Court cannot be sustained.
However before we proceed to consider the merits of the case
we may in the first instance deal with the question of
limitation for filing the present suit. Article 109 in the
Schedule to the Limitation Act. 1963 provides for a period
of limitation of twelve years for a Hindu governed by
Mitakshara law who files a suit to set aside his father’s
alienation of ancestral property and twelve years’ period
begins from the date when alienee takes possession of the
property. In the present case the contesting alienees took
possession of the suit property on 30th May 1959 when they
got registered Sale Deed in their favour. Counting 12 years
from 30th May 1959 limitation for filing the suit or
challenging the said alienation would expire by 29th May
1971. The present suit was filed on 20th August 1970 .
Therefore it was clearly within limitation. However the said
suit underwent rough weather It was originally filed in the
court of Civil Judge Class II, Datia on the basis that the
valuation for the purpose of jurisdiction of the court would
be Rs.1800/- the consideration amount mentioned in the Sale
Deed. In the first instance the said court took the view
that the suit was within its pecuniary jurisdiction. However
the High Court took a contrary view and held that the
valuation of the suit should be equal to the market value of
the property on the date of the suit and hence ordered
return of the plaint for presentation to the proper court
and that is how the suit was filed in the District Court on
26th November 1975 after valuing the suit at Rs.42,700/-.
The contention of learned counsel for the contesting
defendants is that the limitation for file in the suit will
have to be seen from the date of filling of the second suit
before the competent court and if 26th November 1975 being
the date of filing of that suit is taken to be the date in
the light of which limitation question is to be decided then
the period of limitation of 12 years from the date of the
Sale Deed dated 30th May 1959 must be treated to have
expired and the suit was, therefore, beyond time. This
contention was rightly not accepted by both the courts below
for the simple reason that originally the suit was filed
within limitation, but it was filed before a court which was
found to be lacking in pecuniary jurisdiction and when it
was re-filed before a competent court the plaintiffs were
entitled to the benefit of Section 14 of the Limitation Act
enabling them to get exclusion of the time from 20th August
1970 to 22nd November 1975 when the High Court took the view
that the suit should be returned for presentation to the
proper court. It is obvious that the plaintiffs were
prosecuting in good fath their suit before a court which
from defect of pecuniary jurisdiction, was unable to
entertain it and if this period gets excluded the re-filed
suit on 26th November 1975 would remain within limitation
of 12 years from the date of the impugned Sale Deed. The
plea of bar of limitation as raised by the learned counsel
for the contesting defendants, therefore stands rejected.
So far as the merits of the case are concerned certain
salient facts which are well established on record deserve
to be noted. There is ample evidence on record to show that
the suit house was the ancestral house of the plaintiff and
defendant no.6. Evidence shows that originally the suit
house was occupied by plaintiffs’ grand-father Mukundrao who
had died 60 years prior to the filing of the suit. It is
also revealed from the evidence that suit house was occupied
by plaintiffs’ father defendant no.6 and also by latter’s
uncle. They were staying together till defendant no.6 uncle
died. Even the recital in the impugned sale Deed to the
effect that the Sale Deed was executed Oil account of family
necessity indicated that the suit house was treated was
joint family property wherein obviously the plaintiffs would
have interest. Both the courts below have held that the suit
house was an ancestral property in the hands of plaintiffs’
father, defendant no.6. This finding is well sustained on
the record of the case and calls for no interference in this
appeal. We, therefore, reject the contention canvassed by
learned counsel for the appellants that the suit house was
self-acquired property of defendant no.6.
Once it is held that the suit house was an ancestral
property in the hands of palintiffs’ father, defendant no.6,
the plaintiffs could naturally have right by birth in the
suit house. However the moot question is whether the
alienation of the suit house by the impugned Sale Deed by
the plaintiffs’ father, defendant no.6 to the contesting
defendants was binding on the plaintiffs. So far as this
question is concerned it Must be kept in view that
plaintiffs’ father was the ‘karta’ of the joint Hindu
family., The evidence shows that at the relevant time he was
working as Upper Division Clerk in the civil court at
Chhatarpur. His monthly income was Rs.150/- in 1958-59 when
the sale Deed was executed as seen from his deposition as
D.W.1. He has clearly recited in the impugned sale Deed in
favour of the contesting defendants that he was selling the
suit house for Rs.1800/- on account of family necessity. He
revealed in his deposition before the court that he had a
family of seven persons to be maintained out of his income
of Rs.150/- per months as he had got his wife three sons
namely tile present plaintiffs and two young daughters It is
also revealed from his evidence that he was staying at
Chhatarpur as he was serving as Upper Division Clerk in the
Chhatarpur court. The suit house was situated at village
Datia. According to defendant no.6 he occasionally came to
Datia to look after the house. No attempt was made in his
evidence to get out of the clear recitals in the Sale Deed
that he had entered into the transaction for family
necessity. It is also pertinent to note that our of the
three plaintiffs plaintiffs no.1 was major at the time of
the Sale Deed. Me his conspicuously remained absent from the
witness box and avoided inconvenient cross examination which
is might have faced, In support of the plaintiffs only
plaintiff no.3 P.M.1 Govind Rao who was admittedly aged 8
years at the time of the Sale Deed has been examined. He
naturally could not have any personal knowledge about what
transpired in 1959 when his father who was serving in a
Civil Court as Upper Division Clark thought it fit to sell
the ancestral house in village Datia to the defendants and
whether the recital made by him in the Sale Deed that the
transaction was being executed for family necessity was
right of not. Nor defendant no.6 vendor father of the
plaintiffs; had even whispered about the necessity for
inserting the recital in the Sale Deed that he was executing
the same for family necessity. It has to be kept in view
that defendant no.6 being the father of the plaintiffs and
‘karta’ of the joint Hindu family was legally entitled to
alienate the suit house also the interest of the minor
plaintiffs in the said house even for his won requirements
unless it was shown that the transaction was tainted by any
immoral or illegal propose. That is not the plaintiffs. Nor
have they suggested that their father was addicted to any
immoral conduct. Their only case is that their father had no
right to alienate their undivided interest in the suit
house. We must keep in view the fact that defendant no.6
father of the plaintiffs was a worldly person who was
presumed to know the ways of the world as he was attached to
the Civil Court as Upper Division Clerk at the relevant
time. His evidence shows that upto 1954 he had worked in the
Civil Court as a Lower Division Clerk. Then he was promoted
by the High Court to the post of Upper Division Clerk in the
year 1954 and he was transferred to Panna and from Panna he
was transferred to Chhatarpur. He also deposed that he used
to visit Datia in connection with supervision of the suit
house. Therefore, defendant no.6, father of the plaintiffs
apart form being the ‘karta’ of the joint Hindu family was
well versad in the ways of the world and was not a novice or
a layman. With his open eyes he disposed of the suit house
which appeared to be almost a ruin for Rs.1800/-. It is easy
to visualize that when defendant no.6 the vendor, was
staying with his family at Chhatarpur and when the ancestral
house at Datia Village was in a ruinous condition and which
would almost be a burden to them he thought it fit in his
wisdom to dispose it of for Rs.1800/- in favour of the
defendants and made an express recital in the Sale Deed that
it was for family necessity that he was disposing it of. As
a Hindu father and ‘karta’ of the family he had every right
to do so and in the process could have legally disposed of
the interest of his minor sons in the said property also for
the benefit of the family and necessity of the family. The
plaintiffs have not been able to lead any cogent evidence to
rebut the clear recitals found in the Sale Deed to that
effect. We may usefully remind ourselves of what Mulla’s
Hindu law 16th Edition by S.T. Desai has to state in
connection with alienation by father’ at paragraph 256 of
the said volume. It reads as under ”
“256. Alienation by father- A
Hindu father as such has special
powers of alienating coparcanary
property which no other coparcener
has. In the exercise of these
powers-
(1) he may make a gift of
ancestral movable property to
the extent mentioned in
paragraph 225. and even of
ancestral immovable property
to the extent mentioned in
paragraph 226.
(2) he may, sell or mortgage
ancestral property, whether
movable or immovable,
including the interest of his
sons, grandsons and grandsons
therein, for the payment of
his own debt, provided the
debt was an antecedent debt
and was not incurred for
immoral or illegal purposes
[Paragraph 295].
Except as aforesaid, a father has
no greater power over coparcenary
property than any other manager
(o), that is to say, he cannot
alienate coparcenary property
except for legal necessity or for
the benefit of the family
[paragraph 242]. This section must
be read with what is stated under
paragraphs 213-215 ante”.
Shri Khanduja, learned counsel appearing for the
respondent plaintiffs in this connection submitted that the
defendants as alienees should have properly enquired as to
why the transaction was being entered into by the father of
the minor plaintiffs in their favour. It is difficult to
appreciate this submission. The evidence on record clearly
shows that contesting defendants before entering into the
suit transaction had taken all permissible processions and
made enquires in this connection. contesting defendants
witness no.1 Tehalram stated in this evidence that he was
informed by defendant no.6, that his uncle had expired. His
debt has to be paid off. Money lenders had also to be paid.
That he tried to verify these facts. That he went to the
shop of Chetandes in the area. He also enquired from grocer
Meghamal and out that defendant no.6 was in debts and,
therefore, he came to the conclusion that defendant no.6 was
in need of money and accordingly he had sold his house to
him. Shri Khanduja learned counsel appearing for the
plaintiffs submitted that defendant no.1 in his cross
examination has stated that defendant no.6 Hanumantrao had
no title to the property and in order to help him he had
purchased the house from him. It is difficult to appreciate
this contention. The evidence of defendant no.1 when read in
its correct perspective showed that he was informed by one
Ganpati that the property belonged to King and the King of
Datia had given it to the ancestor of the plaintiffs
Mukundrao to stay therein and accordingly he thought that
defendant no.6 would not be having title to the property. It
must be kept in view that plaintiffs’ ancestor Mukundrao had
died 60 years prior the suit. Therefore, even if originally
the property have belonged to the King it was being,
occupied by plaintiffs’ ancestor Mukundrao and his
descendants since generations as owners thereof and even by
doctrine of adverse possession they would have perfected
their title. It may also he kept in view that there was
nothing Oil the record to suggest. that the King of Datia
had ever attempted to Put forward any claim of ownership
over the suit property. Even that apart it was not the case
of the plaintiffs themselves that the suit property did not
belong to their father or their ancestors. On the contrary
their case is that the suit house did belong to their father
jointly with them. Therefore it is too date in the day for
the learned counsel for the plaintiffs to submit that suit
house did not belong to the plaintiff and their father or
that at the time of the sale plaintiffs’ father had or
right. title or interest in the suit house. In our view the
evidence on record clearly establishes that the defendants
made all permissible efforts to find out the legal necessity
which prompted defendant no.6 to enter into the said
transaction in their favour. It is of course true, as
contended by Shri Khanduja for the plaintiffs that the
efforts made by the contesting defendants by relying upon
the evidence of Meghamal D.W.2 who is said to have
sold grocery on credit to defendant no.6 at the relevant
time remained unsuccessful as there would have been also
occasion for defendant no.6 who was staying with his family
at Chhatarpur to purchase at Datia grocery items on a
continuous basis on credit from witness Meghamal. But even
leaving aside the evidence of witness Meghamal which was not
accepted by courts below we find that the evidence of the
evidence, of the plaintiffs and defendant no.6 clearly
establishes that the suit house which was in a dilapidated
and ruinous condition at Datia was found to be a dead
burden to the family and. therefore. for family necessity it
was disposed of by defendant no.6, father of the plaintiffs
in 1959. The said transaction, therefore, as the recitals in
the Sale Deed themselves rightly showed, in the light of
surrounding circumstances was a transaction for the benefit
of the family. The said conclusion of ours gets further
fortified from the well established facts on record that
after purchasing the suit house the contesting defendants
re-constructed it to a substantial extent by spending an
amount of Rs.33,000/- as held by a Division Bench of the
High Court especially when the suit house
was purchased for an amount of Rs.1800/-. That shows that it
must be in a totally dilapidated condition and the
defendants appear to have purchased only the site on
which they put a substantially new construction at a huge
cost of Rs. 33,000/ as compared to the original purchase
price of Rs. 1800/. They very fact that defendant no.6 who
was presumed to be well acclimatised with the court
proceedings as he was an Upper Division clerk in the in the
Civil Court at Chhatarpur at the relevant time stood by the
transaction and the recitals in the sale Deed for eleven and
a half years and the further fact that he saw to it that his
sons challenged the transaction after such a long period of
time when defendants in the meantime went on spending huge
amounts on the property and ultimately came forward in the
suit to support the plaintiffs, leave no rood for doubt that
the suit was got filed by defendant no.6 only with a view to
knock out more money from the contesting defendants and was
clearly a collusive suit. On an overall consideration of
evidence on record, therefore, we find ourselves unable to
endorse the conslusions reeached by both the courts below
that the suit transaction was not binding on the plaintiffs.
The said finding is against the weight of evidence and
cannot be sustained. We, therefore, hold that the plaintiffs
had made out no case for getting any relief from the court
in the present proceedings and their suit was, therefore,
liable to be dismissed. Accordingly this appeal succeeds and
is allowed. The judgment and decree passed by the Trial
Court and as confirmed with modification by the High Court
are quashed and set aside. Plaintiffs’ suit will stand
dismissed. However in the facts and circumstances of the
case there will be no order as to costs all throughout.
Before parting with the present proceedings, however,
we may mention that, as noted earlier, appellant no.1 on his
own behalf and on behalf of appellant no.2 has given a
written undertaking to this Court to pay ex gratia
Rs.2,00,000/- to the plaintiff respondents. We also permit
the remaining contesting defendants to file similar written
undertaking will stand accepted and accordingly while
allowing the appeal of the contesting defendants, we direct
the appellant-defendants to ex gratia pay sum of Rs.
2,00,000/- to the respondent – plaintiffs within three
months from today. The said amount be deposited by the
appellants in the Trial Court within that time. The
deposited amount of Rs.. 2,00,000/- will be permitted to be
withdrawn by the plaintiffs from the Trial Court on due
identification. Orders accordingly.
