{"id":247418,"date":"1996-12-13T00:00:00","date_gmt":"1996-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunder-das-ors-vs-gajananrao-ors-on-13-december-1996"},"modified":"2017-03-27T15:08:53","modified_gmt":"2017-03-27T09:38:53","slug":"sunder-das-ors-vs-gajananrao-ors-on-13-december-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunder-das-ors-vs-gajananrao-ors-on-13-december-1996","title":{"rendered":"Sunder Das & Ors vs Gajananrao & Ors on 13 December, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sunder Das & Ors vs Gajananrao & Ors on 13 December, 1996<\/div>\n
Author: S Majmudar.<\/div>\n
Bench: N.P. Singh, S.B. Majmudar<\/div>\n
           PETITIONER:\nSUNDER DAS & ORS.\n\n\tVs.\n\nRESPONDENT:\nGAJANANRAO & ORS.\n\nDATE OF JUDGMENT:\t13\/12\/1996\n\nBENCH:\nN.P. SINGH, S.B. MAJMUDAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS.B. Majmudar. J.\n<\/p>\n
     This appeal  on the  grant of  special leave  to appeal
\nunder Article  136<\/a> of  the Constitution of India is directed
\nagainst the  judgment and  order of  a Division Bench of the
\nHigh Court  of Madhya  Pradesh in  First Appeal\t     No.2 of
\n1979 whereby  the Division Bench  dismissed the First Appeal
\nand confirmed  with modification  the decree  passed by\t the
\nTrial Court  against the  appellants in Civil Suit No.13A of
\n1978 in\t the Court  of learned\tDistrict Judge,\t Datia.\t The
\nfacts leading to this appeal shortly stated are as under.\n<\/p>\n
     The appellants are the original defendants against whom
\nrespondent nos.1 to 3, original plaintiffs, filed
\nthe aforesaid  suit for\t a declaration\tthat the  registered
\nSale Deed  dated 30th  May 1959\t executed by  their  father,
\nrespondent no.4\t in this  appeal who  was original defendant
\nno.6 in\t the suit,  in favour  of the  present appellants is
\nvoid and  inoperative at  law and  for\trestoration  of\t the
\npossession of  the suit\t house bearing\tMunicipal No  1153\/1
\nsituated in  Rajgarh locality  of Datia town in the State of
\nMadhya Pradesh.\t For the  sake convenience  we will refer to
\nthe  appellants\t  as  original\t contesting  defendants\t and
\nrespondents 1  to 3 as plaintiffs in the latter part of this
\njudgment. Respondent  no.4, father  of\tthe  plaintiffs\t was
\njoined as  defendant no.6  in the  suit.  The  case  of\t the
\nplaintiffs is that their father original defendant no.6 had
\nexecuted registered  Sale Deed dated 50th May 1955 conveying
\nthe suit  house to  the contesting  defendants for  a sum of
\nRs.l800\/- and  delivered possession  of the  said  house  to
\nthem. According\t to the\t plaintiffs the suit house was their
\nancestral property  in which  they had\t90   undivided 3\/4th
\ninterest. That their father, defendant no.6, had no right to
\ntransfer  the\tsuit  house  in\t favour\t of  the  contesting
\ndefendants and\tconsequently the  said\tSale  Deed  was\t not
\nbinding on them.\n<\/p>\n
     The  said\t suit  was   contested\tby   the  contesting
\ndefendants on the ground that the house belonged exclusively
\nto  their  vendor  defendant  no.6  and\t plaintiffs  had  no
\ninterest therein.  lt was  alternatively contended that even
\nassuming that  the suit house was an ancestral house wherein
\nthe plaintiffs, had undivided interest defendant no.6, their
\nvendor, had  alienated the  said house\tfor family necessity
\nand his transaction was binding on the plaintiffs. Defendant
\nno.6 father  of the  plaintiffs on  the other hand supported
\nthe plaintiffs.\n<\/p>\n
     Learned Trial  Judge after\t recording the evidence came
\nto the\tconclusion that\t the suit  house  was  an  ancestral
\nproperty of  the parties  wherein the  plaintiffs had  3\/4th
\nundivided interest  while their\t father defendant  no.6\t had
\n1\/4th interest\tand consequently  the\tSale Deed dated 30th
\nMay 1959  was voidable\tto the\textent of  3\/4 share  of the
\nplaintiffs.   Accordingly the  learned Trial  Judge directed
\nthe plaintiffs\tto be placed in joint possession of the suit
\nhouse along  with the  contesting defendants  1 to  5. Being
\naggrieved by  the aforesaid judgment and decree of the Trial
\nJudge the  contesting defendants carried the matter in First
\nAppeal before  the High\t Court. As  stated earlier  Division
\nBench of the High Court was pleased to the same. However the
\ncross objections  filed by  the plaintiffs  were allowed and
\naccordingly Trial Court’s decree was modified as under :\n<\/p>\n
     “The suit\tof  the\t plaintiffs  for
\n     possession\t   is\t  decreed    the
\n     contesting\t defendants  to\t deliver
\n     possession of the suit house to the
\n     plaintiffs but the execution of the
\n     decree in\tso far as it directs the
\n     contesting\t defendants  to\t deliver
\n     possession of the suit house to the
\n     plaintiffs shall  remain stayed for
\n     a period  of six  months from today
\n     and, if  before the  expiry of  the
\n     period  the  contesting  defendants
\n     bring a suit for general partitions
\n     then the  stay should continue till
\n     the disposal of the suit  but if no
\n     such suit\tis  brought  within  the
\n     period, the  stay of  execution  of
\n     the  decree shall\tstand  cancelled
\n     on the  expiry of the period of six
\n     months and\t the plaintiffs shall be
\n     entitled to  obtain the  possession
\n     of the suit house.”<\/p><\/blockquote>\n
     It is  the aforesaid decree in favour of the plaintiffs
\nas confirmed  with modification by the Division Bench of the
\nHigh Court  that is brought on the anvil of scrutiny of this
\nCourt  in   the\t present  proceedings  by  the\tdissatisfied
\ncontesting defendants.\n<\/p>\n
     At the  outset it may be started that at the suggestion
\nof the\tCourt the  contesting parties  were  given  time  to
\nexplore any  possibility of settlement. But we were informed
\nthat settlement\t was not  possible. However  is view  of the
\nfact that  two of the plaintiffs are minors at the time when
\ntheir father  executed the  impugned Sale  Deed and  as\t the
\nprices of  the properties  have naturally got escalated over
\nyears  the  Court  suggested  to  learned  counsel  for\t the
\nappellants, contesting defendants, that in case they succeed
\nin this\t appeal they may ex. gratia make payment of suitable
\namount to  the respondent-plaintiffs  to avoid\tany possible
\nheart burning  to them.\t We  are  happy\t to  note  that\t the
\nsuggestion of  the Court  was accepted\tby  the\t appellants,
\ncontesting defendants.\tAppellant no.1\tSunder Das  who\t was
\npresent in  the Court  has filed  a written  undertaking  on
\naffidavit to  the effect that having consulted Laxman son of
\nTehalram, appellant  no.2  in  this  appeal  he\t was  giving
\nundertaking to\tthis Court that if the appeal filed on their
\nbehalf is  allowed and the judgment and decree are set aside
\nthey shall  pay ex  gratia an amount of Rs.2,00,000\/- to the
\nplaintiff respondents Gajanan Rao, Ravindra Kumar and Govind
\nRao within three months from the date of the delivery of the
\njudgment. We  were also\t informed by the learned counsel for
\nthe appellants\tthat similar affidavits will he filed by the
\nremaining appellants  within one week of the delivery of the
\njudgment in  case the  appeal is  ultimately allowed and the
\nsuit of\t the plaintiffs is dismissed. They undertake to make
\npayment of  Rs.2.00,000\/- to  the  plaintiffs  aforesaid  ex
\ngratia with  a view to alleviate likely heart burning of the
\nplaintiffs in  such an\teventuality. We\t appreciate the good
\ngesture made  by the  appellants. It  is now  time for us to
\ndeal with the merits of the appeal.\n<\/p>\n
     We have  heard the\t learned counsel  for the contesting
\ndefendants as  well as\tfor  the  respondent  plaintiffs  in
\nsupport of their respective cases.\n<\/p>\n
     Learned counsel for the contesting defendants submitted
\nthat both the courts below had patently erred in law as well
\nas on facts in taking the view that the suit for challenging
\nthe impugned  Sale Deed\t was within limitation. According to
\nthe learned  counsel the  suit was  barred by Article 109<\/a> of
\nthe Limitation Act<\/a>. On merits it was contended that the suit
\nhouse belonged\texclusively to\tthe  contesting\t defendants’
\nvendor original\t defendant no.6,  father of  the  plaintiffs
\nand, therefore the plaintiffs had no right to challenge the
\nsaid Sale  Deed. It  was alternatively\tcontended that\teven
\nassuming that  the suit\t property was  ancestral property as
\nplaintiffs father  defendant no\t 6 was\tthe ‘karta’  of\t the
\njoint Hindu  family  the  Sale\tDeed  executed\tby  him\t was
\nPerfectly legal\t and valid  and binding\t on  the  plaintiffs
\nunless it  was shown  that the Sale Deed was vitiated on the
\nground of it being executed or paying off a debt incurred by
\ntheir father  fol an  illegal or immoral purpose. That there
\nwas no\tsuch case  pleaded by  the plaintiffs.\tIt was\tnext
\ncontended that the said transaction was for  legal necessity
\nand for\t family requirement  as mentioned  in the  Sale Deed
\nthese recital were binding on defendant no.6. That there was
\nno cogent  evidence led\t by the\t plaintiffs to\trebut  these
\nrecitals in  the Sale  Deed. That both the courts below were
\npatently  in   error  when  they  took\tthe  view  that\t the
\ntransaction was not binding on the plaintiffs. That the suit
\nwas purely  a collusive\t suit got  filed by  defendant\tno.6
\nthrough his  sons after\t eleven and  a\thalf  years  of\t the
\ntransaction. That they stood by the transaction for
\nall these  years, allowed the contesting defendants to spend
\nhuge sums  of money  for re-construction and  rennovation of
\nthe house  and that  suit was filed merely to knock out more
\nmoney from  the contesting  defendants and  to harass  them.
\nHence it was liable to be dismissed even on merits.\n<\/p>\n
     On the  other hand\t learned counsel  Shri Khanduja\t for
\nthe respondent-plaintiffs  submitted that both the courts on
\nappreciation of evidence had come to a concurrent finding of
\nfact that there was no legal necessity for defendant no.6 to
\nexecute the  Sale Deed. That defendant no.6 was not shown to
\nhave incurred  any debts or was in such a stringent economic
\ncondition that\the was required to sell of the suit house to
\nthe contesting\tdefendants and, therefore on the evidence on
\nrecord the  conclusion reached by both the court  below that
\ndefendant no.6,\t father of the plaintiffs. could not legally
\nalienate the  undivided 3\/4th  interest of the plaintiffs in
\nthe suit  house, remained  well justified  and called for no
\ninterference in this appeal.\n<\/p>\n
     Having  carefully\t considered  the   aforesaid   rival
\ncontentions we\tfind that  the judgment and decree as passed
\nby Trial  Court and  as confirmed  with modification  by the
\nDivision bench\tof the\tHigh Court  cannot  be\t  sustained.
\nHowever before we proceed to consider the merits of the case
\nwe may\tin the\tfirst instance\tdeal with  the\tquestion  of
\nlimitation for\tfiling the  present suit. Article 109<\/a> in the
\nSchedule to  the Limitation  Act<\/a>. 1963 provides for a period
\nof limitation  of twelve  years\t for  a\t Hindu\tgoverned  by
\nMitakshara law\twho files  a suit  to set aside his father’s
\nalienation of  ancestral property  and twelve  years’ period
\nbegins from  the date  when alienee  takes possession of the
\nproperty. In  the present  case the contesting alienees took
\npossession of  the suit\t property on 30th May 1959 when they
\ngot registered\tSale Deed in their favour. Counting 12 years
\nfrom 30th  May\t1959  limitation  for  filing  the  suit  or
\nchallenging the\t said alienation  would expire\tby 29th\t May
\n1971. The  present suit\t was filed  on 20th  August  1970  .
\nTherefore it was clearly within limitation. However the said
\nsuit underwent\trough weather It was originally filed in the
\ncourt of  Civil Judge  Class II, Datia on the basis that the
\nvaluation for the purpose of jurisdiction of the court would
\nbe Rs.1800\/-  the consideration amount mentioned in the Sale
\nDeed. In  the first  instance the  said court  took the view
\nthat the suit was within its pecuniary jurisdiction. However
\nthe High  Court took  a contrary  view\tand  held  that\t the
\nvaluation of the suit should be equal to the market value of
\nthe property  on the  date of  the suit\t and  hence  ordered
\nreturn of  the plaint  for presentation\t to the proper court
\nand that  is how the suit was filed in the District Court on
\n26th November  1975 after  valuing the\tsuit at Rs.42,700\/-.
\nThe  contention\t  of  learned  counsel\tfor  the  contesting
\ndefendants is  that the limitation for file in the suit will
\nhave to\t be seen from the date of filling of the second suit
\nbefore the  competent court  and if 26th November 1975 being
\nthe date  of filing  of that suit is taken to be the date in
\nthe light of which limitation question is to be decided then
\nthe period  of limitation  of 12  years from the date of the
\nSale Deed  dated 30th  May 1959\t must  be  treated  to\thave
\nexpired and  the suit  was,  therefore,\t beyond\t time.\tThis
\ncontention was rightly not accepted by both the courts below
\nfor the\t simple reason\tthat originally\t the suit  was filed
\nwithin limitation, but it was filed before a court which was
\nfound to  be lacking  in pecuniary  jurisdiction and when it
\nwas re-filed  before a\tcompetent court\t the plaintiffs were
\nentitled to  the benefit of Section 14<\/a> of the Limitation Act
\nenabling them  to get exclusion of the time from 20th August
\n1970 to 22nd November 1975 when the High Court took the view
\nthat the  suit should  be returned  for presentation  to the
\nproper\tcourt.\tIt  is\tobvious\t that  the  plaintiffs\twere
\nprosecuting in\tgood fath  their suit  before a\t court which
\nfrom  defect   of  pecuniary  jurisdiction,  was  unable  to
\nentertain it  and if  this period gets excluded the re-filed
\nsuit on\t 26th\tNovember 1975 would remain within limitation
\nof 12  years from  the date  of the  impugned Sale Deed. The
\nplea of\t bar of\t limitation as raised by the learned counsel
\nfor the contesting defendants, therefore stands rejected.\n<\/p>\n
     So far  as the merits of the case are concerned certain
\nsalient facts  which are  well established on record deserve
\nto be  noted. There is ample evidence on record to show that
\nthe suit  house was the ancestral house of the plaintiff and
\ndefendant no.6.\t Evidence shows\t that  originally  the\tsuit
\nhouse was occupied by plaintiffs’ grand-father Mukundrao who
\nhad died  60 years  prior to  the filing  of the suit. It is
\nalso revealed from the evidence that suit house was occupied
\nby plaintiffs’\tfather defendant  no.6 and  also by latter’s
\nuncle. They  were staying together till defendant no.6 uncle
\ndied. Even  the recital\t in the\t impugned sale\tDeed to\t the
\neffect that the Sale Deed was executed Oil account of family
\nnecessity indicated  that the  suit house  was\ttreated\t was
\njoint family property wherein obviously the plaintiffs would
\nhave interest. Both the courts below have held that the suit
\nhouse was  an ancestral property in the hands of plaintiffs’
\nfather, defendant  no.6. This  finding is  well sustained on
\nthe record of the case and calls for no interference in this
\nappeal. We,  therefore, reject\tthe contention\tcanvassed by
\nlearned counsel\t for the  appellants that the suit house was
\nself-acquired property of defendant no.6.\n<\/p>\n
     Once it  is held  that the\t suit house was an ancestral
\nproperty in the hands of palintiffs’ father, defendant no.6,
\nthe plaintiffs\tcould naturally\t have right  by birth in the
\nsuit  house.  However  the  moot  question  is\twhether\t the
\nalienation of  the suit\t house by  the impugned Sale Deed by
\nthe plaintiffs’\t father, defendant  no.6 to  the  contesting
\ndefendants was\tbinding on  the plaintiffs.  So far  as this
\nquestion  is   concerned  it  Must  be\tkept  in  view\tthat
\nplaintiffs’ father  was\t the  ‘karta’  of  the\tjoint  Hindu
\nfamily., The evidence shows that at the relevant time he was
\nworking as  Upper Division  Clerk  in  the  civil  court  at
\nChhatarpur. His\t monthly income was Rs.150\/- in 1958-59 when
\nthe sale  Deed was  executed as\t seen from his deposition as
\nD.W.1. He  has clearly\trecited in the impugned sale Deed in
\nfavour of  the contesting defendants that he was selling the
\nsuit house  for Rs.1800\/- on account of family necessity. He
\nrevealed in  his deposition  before the\t court that he had a
\nfamily of  seven persons  to be maintained out of his income
\nof Rs.150\/-  per months\t as he\thad got\t his wife three sons
\nnamely tile present plaintiffs and two young daughters It is
\nalso revealed  from his\t evidence that\the  was\t staying  at
\nChhatarpur as he was serving as\t Upper Division Clerk in the
\nChhatarpur court.  The suit  house was\tsituated at  village
\nDatia. According  to defendant\tno.6 he occasionally came to
\nDatia\tto look\t after the house. No attempt was made in his
\nevidence to  get out  of the clear recitals in the Sale Deed
\nthat  he   had\tentered\t into  the  transaction\t for  family
\nnecessity. It  is also\tpertinent to  note that\t our of\t the
\nthree plaintiffs  plaintiffs no.1  was major  at the time of
\nthe Sale Deed. Me his conspicuously remained absent from the
\nwitness box and avoided inconvenient cross examination which
\nis might  have faced,  In support  of  the  plaintiffs\tonly
\nplaintiff no.3\tP.M.1\tGovind Rao who was admittedly aged 8
\nyears at  the time  of the  Sale Deed  has been examined. He
\nnaturally could\t not have  any personal knowledge about what
\ntranspired in  1959 when  his father  who was  serving in  a
\nCivil Court  as Upper  Division Clark thought it fit to sell
\nthe ancestral  house in\t village Datia to the defendants and
\nwhether the  recital made  by him  in the Sale Deed that the
\ntransaction was\t being executed\t for  family  necessity\t was
\nright of  not. Nor  defendant  no.6  vendor  father  of\t the
\nplaintiffs; had\t even\twhispered about\t the  necessity\t for
\ninserting the recital in the Sale Deed that he was executing
\nthe same  for family  necessity. It  has to  be kept in view
\nthat defendant\tno.6 being  the father of the plaintiffs and
\n‘karta’ of  the joint  Hindu family  was legally entitled to
\nalienate the  suit house  also the  interest  of  the  minor
\nplaintiffs in  the said\t house even for his won requirements
\nunless it  was shown that the transaction was tainted by any
\nimmoral or  illegal propose. That is not the plaintiffs. Nor
\nhave they  suggested that  their father\t was addicted to any
\nimmoral conduct. Their only case is that their father had no
\nright to  alienate   their undivided  interest in  the\tsuit
\nhouse. We  must keep  in view  the fact\t that defendant no.6
\nfather of  the plaintiffs  was\ta  worldly  person  who\t was
\npresumed to know the ways of the world as he was attached to
\nthe Civil  Court as  Upper Division  Clerk at  the  relevant
\ntime. His evidence shows that upto 1954 he had worked in the
\nCivil Court  as a Lower Division Clerk. Then he was promoted
\nby the High Court to the post of Upper Division Clerk in the
\nyear 1954  and he was transferred to Panna and from Panna he
\nwas transferred\t to Chhatarpur. He also deposed that he used
\nto visit  Datia in  connection with supervision of the\tsuit
\nhouse. Therefore,  defendant no.6,  father of the plaintiffs
\napart form  being the  ‘karta’ of the joint Hindu family was
\nwell versad in the ways of the world and was not a novice or
\na layman.  With his  open eyes he disposed of the suit house
\nwhich appeared to be almost a ruin for Rs.1800\/-. It is easy
\nto visualize  that  when  defendant  no.6  the\tvendor,\t was
\nstaying with his family at Chhatarpur and when the ancestral
\nhouse at  Datia Village was in a ruinous condition and which
\nwould almost  be a  burden to  them he thought it fit in his
\nwisdom to  dispose it  of for  Rs.1800\/- in  favour  of\t the
\ndefendants and made an express recital in the Sale Deed that
\nit was\tfor family necessity that he was disposing it of. As
\na Hindu\t father and ‘karta’ of the family he had every right
\nto do  so and  in the process could have legally disposed of
\nthe interest of his minor sons in the said property also for
\nthe benefit  of the  family and necessity of the family. The
\nplaintiffs have not been able to lead any cogent evidence to
\nrebut the  clear recitals  found in  the Sale  Deed to\tthat
\neffect. We  may usefully  remind ourselves  of what  Mulla’s
\nHindu law  16th Edition\t by  S.T.  Desai  has  to  state  in
\nconnection with\t alienation by\tfather’ at  paragraph 256 of
\nthe said volume. It reads as under ”\n<\/p>\n
     “256.     Alienation by  father-  A
\n     Hindu father  as such  has\t special
\n     powers  of\t alienating  coparcanary
\n     property which  no other coparcener
\n     has.  In\tthe  exercise  of  these
\n     powers-\n<\/p><\/blockquote>\n
     (1)  he  may   make   a   gift   of
\n\t  ancestral movable  property to
\n\t  the\textent\t  mentioned   in
\n\t  paragraph  225.  and\teven  of
\n\t  ancestral  immovable\tproperty
\n\t  to  the  extent  mentioned  in
\n\t  paragraph 226.<\/p><\/blockquote>\n
     (2)  he  may,   sell  or\tmortgage
\n\t  ancestral  property,\t whether
\n\t  movable     or      immovable,
\n\t  including the\t interest of his
\n\t  sons, grandsons  and grandsons
\n\t  therein, for\tthe  payment  of
\n\t  his  own  debt,  provided  the
\n\t  debt was  an\tantecedent  debt
\n\t  and  was   not  incurred   for
\n\t  immoral or illegal purposes
\n\t    [Paragraph 295].\n<\/p><\/blockquote>\n
     Except as\taforesaid, a  father has
\n     no greater\t power over  coparcenary
\n     property  than  any  other\t manager\n<\/p><\/blockquote>\n
     (o), that\tis  to\tsay,  he  cannot
\n     alienate\t coparcenary\tproperty
\n     except for\t legal necessity  or for
\n     the   benefit    of   the\t  family
\n     [paragraph 242].  This section must
\n     be read  with what\t is stated under
\n     paragraphs 213-215 ante”.<\/p><\/blockquote>\n
     Shri  Khanduja,   learned\tcounsel\t appearing  for\t the
\nrespondent plaintiffs  in this connection submitted that the
\ndefendants as  alienees should\thave properly enquired as to
\nwhy the\t transaction was being entered into by the father of
\nthe minor  plaintiffs in  their favour.\t It is\tdifficult to
\nappreciate this\t submission. The  evidence on record clearly
\nshows that  contesting defendants  before entering  into the
\nsuit transaction  had taken  all permissible processions and
\nmade enquires  in  this\t connection.  contesting  defendants
\nwitness no.1  Tehalram stated  in this\tevidence that he was
\ninformed by  defendant no.6, that his uncle had expired. His
\ndebt has  to be paid off. Money lenders had also to be paid.
\nThat he\t tried to  verify these\t facts. That  he went to the
\nshop of\t Chetandes in the area. He also enquired from grocer
\nMeghamal and  out that\tdefendant no.6\twas  in\t debts\tand,
\ntherefore, he came to the conclusion that defendant no.6 was
\nin need\t of money  and accordingly  he had sold his house to
\nhim.  Shri   Khanduja  learned\tcounsel\t appearing  for\t the
\nplaintiffs  submitted  that  defendant\tno.1  in  his  cross
\nexamination has\t stated that  defendant no.6 Hanumantrao had
\nno title  to the  property and\tin order  to help him he had
\npurchased the  house from him. It is difficult to appreciate
\nthis contention. The evidence of defendant no.1 when read in
\nits correct  perspective showed\t that he was informed by one
\nGanpati that  the property  belonged to King and the King of
\nDatia had  given  it  to  the  ancestor\t of  the  plaintiffs
\nMukundrao to  stay therein  and accordingly  he thought that
\ndefendant no.6 would not be having title to the property. It
\nmust be kept in view that plaintiffs’ ancestor Mukundrao had
\ndied 60 years prior  the suit. Therefore, even if originally
\nthe property  have  belonged  to  the  King  it\t was  being,
\noccupied  by   plaintiffs’  ancestor   Mukundrao   and\t his
\ndescendants since  generations as owners thereof and even by
\ndoctrine of  adverse possession\t they would  have  perfected
\ntheir title.  It may  also he  kept in\tview that  there was
\nnothing Oil  the record\t to suggest.  that the King of Datia
\nhad ever  attempted to\tPut forward  any claim\tof ownership
\nover the  suit property. Even that apart it was not the case
\nof the\tplaintiffs themselves that the suit property did not
\nbelong to  their father\t or their ancestors. On the contrary
\ntheir case is that the suit house did belong to their father
\njointly with  them. Therefore  it is too date in the day for
\nthe learned  counsel for  the plaintiffs to submit that suit
\nhouse did  not belong  to the plaintiff\t and their father or
\nthat at\t the time  of the  sale plaintiffs’  father  had  or
\nright. title  or interest in the suit house. In our view the
\nevidence on  record clearly  establishes that the defendants
\nmade all permissible efforts to find out the legal necessity
\nwhich  prompted\t defendant  no.6  to  enter  into  the\tsaid
\ntransaction in\ttheir favour.  It  is  of  course  true,  as
\ncontended by  Shri Khanduja  for  the  plaintiffs  that\t the
\nefforts made  by the  contesting defendants  by relying upon
\nthe evidence of Meghamal D.W.2 who is said to have
\nsold grocery  on credit\t to defendant  no.6 at\tthe relevant
\ntime remained  unsuccessful as\tthere would  have been\talso
\noccasion for  defendant no.6 who was staying with his family
\nat Chhatarpur  to purchase  at\tDatia  grocery\titems  on  a
\ncontinuous basis  on credit  from witness Meghamal. But even
\nleaving aside the evidence of witness Meghamal which was not
\naccepted by  courts below  we find  that the evidence of the
\nevidence, of  the  plaintiffs  and  defendant  no.6  clearly
\nestablishes that  the suit  house which was in a dilapidated
\nand ruinous  condition at  Datia was  found to\t be  a\tdead
\nburden to the family and. therefore. for family necessity it
\nwas disposed  of by defendant no.6, father of the plaintiffs
\nin 1959. The said transaction, therefore, as the recitals in
\nthe Sale  Deed themselves  rightly showed,  in the  light of
\nsurrounding circumstances  was a transaction for the benefit
\nof the\tfamily. The  said conclusion  of ours  gets  further
\nfortified from\tthe well  established facts  on record\tthat
\nafter purchasing  the suit  house the  contesting defendants
\nre-constructed it  to a\t substantial extent  by spending  an
\namount of  Rs.33,000\/- as  held by  a Division\tBench of the
\nHigh Court especially when the suit house
\nwas purchased for an amount of Rs.1800\/-. That shows that it
\nmust  be   in  a   totally  dilapidated\t condition  and\t the
\ndefendants appear to have purchased only the site on
\nwhich they  put a  substantially new  construction at a huge
\ncost of\t Rs. 33,000\/  as compared  to the  original purchase
\nprice of  Rs. 1800\/.  They very fact that defendant no.6 who
\nwas  presumed\tto  be\twell  acclimatised  with  the  court
\nproceedings as\the was an Upper Division clerk in the in the
\nCivil Court  at Chhatarpur at the relevant time stood by the
\ntransaction and the recitals in the sale Deed for eleven and
\na half years and the further fact that he saw to it that his
\nsons challenged\t the transaction after such a long period of
\ntime when  defendants in  the meantime went on spending huge
\namounts on  the property  and ultimately came forward in the
\nsuit to support the plaintiffs, leave no rood for doubt that
\nthe suit was got filed by defendant no.6 only with a view to
\nknock out  more money from the contesting defendants and was
\nclearly a  collusive suit.  On an  overall consideration  of
\nevidence on  record,  therefore, we find ourselves unable to
\nendorse the  conslusions reeached  by both  the courts below
\nthat the suit transaction was not binding on the plaintiffs.
\nThe said  finding is  against the  weight  of  evidence\t and
\ncannot be sustained. We, therefore, hold that the plaintiffs
\nhad made  out no  case for getting any relief from the court
\nin the\tpresent proceedings  and their\tsuit was, therefore,
\nliable to be dismissed. Accordingly this appeal succeeds and
\nis allowed.  The judgment  and decree  passed by  the  Trial
\nCourt and  as confirmed\t with modification by the High Court
\nare quashed  and set  aside.  Plaintiffs’  suit\t will  stand
\ndismissed. However  in the  facts and  circumstances of\t the
\ncase there will be no order as to costs all throughout.\n<\/p>\n
     Before parting  with the  present proceedings, however,
\nwe may mention that, as noted earlier, appellant no.1 on his
\nown behalf  and on  behalf of  appellant no.2  has  given  a
\nwritten\t undertaking   to  this\t  Court\t to  pay  ex  gratia
\nRs.2,00,000\/- to  the plaintiff\t respondents. We also permit
\nthe remaining  contesting defendants to file similar written
\nundertaking  will   stand  accepted  and  accordingly  while
\nallowing the  appeal of the contesting defendants, we direct
\nthe  appellant-defendants  to  ex  gratia  pay\tsum  of\t Rs.
\n2,00,000\/- to  the  respondent\t–  plaintiffs  within  three
\nmonths from  today. The\t said amount  be  deposited  by\t the
\nappellants  in\t the  Trial  Court  within  that  time.\t The
\ndeposited amount  of Rs.. 2,00,000\/- will be permitted to be
\nwithdrawn by  the plaintiffs  from the\tTrial Court  on\t due
\nidentification. Orders accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sunder Das & Ors vs Gajananrao & Ors on 13 December, 1996 Author: S Majmudar. Bench: N.P. Singh, S.B. Majmudar 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247418","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSunder Das & Ors vs Gajananrao & Ors on 13 December, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunder-das-ors-vs-gajananrao-ors-on-13-december-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunder Das & Ors vs Gajananrao & Ors on 13 December, 1996 - 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