{"id":81956,"date":"1971-03-03T00:00:00","date_gmt":"1971-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moman-lal-vs-anandi-bai-ors-on-3-march-1971"},"modified":"2015-07-19T12:43:04","modified_gmt":"2015-07-19T07:13:04","slug":"moman-lal-vs-anandi-bai-ors-on-3-march-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moman-lal-vs-anandi-bai-ors-on-3-march-1971","title":{"rendered":"Moman Lal vs Anandi Bai & Ors on 3 March, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Moman Lal vs Anandi Bai & Ors on 3 March, 1971<\/div>\n
Equivalent citations: 1971 AIR 2177, \t\t 1971 SCR (3) 929<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nMOMAN LAL\n\n\tVs.\n\nRESPONDENT:\nANANDI BAI & ORS,\n\nDATE OF JUDGMENT03\/03\/1971\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nSHELAT, J.M.\nDUA, I.D.\n\nCITATION:\n 1971 AIR 2177\t\t  1971 SCR  (3) 929\n\n\nACT:\nPractice  and  Procedure-Plea  not raised  in  pleadings  or\nissues\tor  evidence-If\t could be allowed to  be  raised  in\narguments-Amendment of pleadings-When may be permitted.\n\n\n\nHEADNOTE:\nThe  appellant,\t who was the mortgagee purchased  under\t two\nsale  deeds dated 13th May, 1951 the mortgaged\tproperty  in\ndischarge  of the mortgage.  The respondents, who  were\t the\ndaughters of the original owner filed a suit claiming  title\nto  the property under gift deeds executed by  their  mother\nwith  respect to a share, (which she got under a  sale\tdeed\nfrom  her husband) and by their father on 2nd May  1951,  in\nrespect\t of the entire property, and alleging that the\tsale\ndeeds in favour of the appellant were collusive.  The  trial\ncourt  held  that the gift deed executed by the\t mother\t was\nvalid  but  that the gift deed executed by  the\t father\t was\nfraudulent and not binding on the appellant.  On appeal, the\nfirst  appellate  court held that both-the gift\t deeds\twere\ninvalid.  It held that the mother had lost her right to\t her\nshare,\tthat  the  gift deed executed  by  the.\t father\t was\nantedated having been in fact executed after 13th May, 1951,\nand that it was intended to defeat the sale in favour of the\nappellant.   It also held that a judgment in another  matter\ninter parties, delivered during the pendency of the  appeal,\noperated as res judicata.  It held that the gift deed by the\nfather\twas antedated on the grounds, (i) it  was  belatedly\nregistered on 23rd August 1951 and (ii) the register of\t the\npetition-writer\t who  wrote the gift deed was  not  produced\nthus  raising  a presumption against  the  respondents.\t  In\nsecond\tappeal,\t the High Court held that the  lower  courts\nerred  in  deciding  the case on the  grounds  of  fraud  or\nantedating  when  no  such  case  was  put  forward  in\t the\npleadings,  that on the question of res judicata  there\t was\nnot  enough material, and that the case should be,  remanded\npermitting   the  parties  to  make  amendments,  in   their\npleadings but only in respect of the plea of res judicata.\nIn appeal to this Court it was contended that : (1) the High\nCourtwas not justified in setting aside the findings of\t the\nfirst  appellate  court that the gift deed executed  by\t the\nfather\twas  fraudulent and ante-dated;\t (2)  the  appellant\nshould have been given an opportunity to amend the,  written\nstatement  so  as  to  include\tpleas  in  respect  of\t the\nfraudulent nature and antedating; and (3) the High Court  in\nfact had set aside all the findings and therefore its  order\npermitted the appellants to raise new plea& by amending\t the\npleadings.\nHELD  : (1) (a) The pleadings in the written  statement\t did\nnot  indicate that the appellant put forward the  case\tthat\nthe gift deed was executed by the father after May 13,\t1951\nand that it was ante-dated.  Not only was there no substance\nof  such pleas there was not even a hint of such  objections\nin   the  pleadings,  and  even\t the  facts  necessary\t for\ndetermining the, questions were not before the court.\tEven\nthe  parties  and  the trial court did\tnot  understand\t the\npleadings  as  containing  a plea that\tthe  gift  deed\t was\nantedated  and\tfraudulent  in\tthe  sense  of\thaving\tbeen\nexecuted to defeat and delay the creditors of the father  of\nthe respondents.  No issue,\n930\nwas framed on the question of fraud or antedating.  Even  in\nthe  course of evidence no questions were put on  behalf  of\nthe appellant to the witnesses of the respondents suggesting\nsuch  fraud  or antedating.  The question of the  gift\tdeed\nbeing  fraudulent was raised for the first time\t before\t the\ntrial court in the course of arguments after the parties had\nalready concluded their evidence. [934 B-D; 935 B-D; 937 E]\nTherefore, there was no justification for the trial court to\ngo into the question and record its finding. [935 D]\nNagubai\t Ammal\tv. B. Shama Rao,<\/a> [1956]\t S.C.R.\t 451;  Kunju\nKesavan\t v. M. M. Phillip,<\/a> [1964] 3 S.C.R. 634,\t Kidar\tLall\nSeal v. Hari Lall Seal,<\/a> [1952] S.C.R. 179 and Union of India\nv. M\/s. Khas Karanapura Colliery<\/a> .Ltd. [1968] 3 S.C.R.\t784,\nreferred to.\n(b)  The first appellate court committed a similar error  in\naffirming  this finding of the trial court and\tcommitted  a\ngreater\t error in going into the question whether  the\tgift\ndeed  was  antedated, because, the plea was raised  for\t the\nfirst  time before it only in the course of arguments.\t The\ndelay  in registration was not explained by the\t respondents\nbecause\t the plea,was not raised in the trial court and\t was\nraised\tfor  the  first time at the  appellate\tstage.\t The\nregister   of  the  petition-writer  was  not\ta   document\nmaintained by or in possession of the respondents.  Its non-\nproduction  could  only\t affect the  evidence  of  petition-\nwriter,\t but  even if his evidence was not  relied  upon  no\nfinding\t of  ante-dating could be given when  there  was  no\nassertion and no evidence on behalf of the appellants.\t[935\nE-F; 936 E-H]\n(c)  Further, the appellant was the only creditor or of\t the\nrespondents'   father  and  the\t gift  in  respect  of\t the\nproperties already mortgaged could not in any way defeat  or\ndelay  his  right  because  the done  could  only  take\t the\nproperties subject to the mortgage. [935 G-H]\n(d)  The plea that the mother lost her right to her share of\nthe  property  and that her husband acquired the  right\t was\nimmaterial,  because, even if her gift deed was\t disregarded\nthe title to the properties was acquired by the\t respondents\nthrough the gift deed executed by the father. [939 D-E].\n(2)  The  pleas\t regarding the fraudulent nature  and  ante-\ndating of the gift deed, should not be allowed to raised  by\namendment because, a suit based on such pleas would be\ttime\nbarred\tand it would be unfair to the respondents  to  allow\nthese pleas to be raised by amendment at such a late  stage.\nThe  pleas  of fraud and antedating in respect of  the\tgift\ndeed raise an entirely new cause of action and a case  quite\ndifferent   from  that\tpleaded\t in  the  original   written\nstatement.  It would not be merely a case of a different  or\nadditional  approach to facts already given in\tthe  written state\nment. [941 B-C]\nL.   J.\t Leach\t&  Company Ltd. v. Jardine  Skinner,  &\t Co.<\/a>\n[1957]\tS.C.R. 438 and A. K. Gupta & Sons v. Damodar  Valley\nCorporation<\/a> [1966] 1 S.C.R. 796. referred to.\n(3)  In\t directing that the findings of both courts are\t set\naside the High ,Court was only referring to the points which\nit  considered\tand  on, which it differed  from  the  lower\ncourts.\t Therefore, in permitting amendments the High  Court\nhad given only liberty to the appellant to amend his written\nstatement  by  setting\tout the\t requisite  particulars\t and\ndetails\t of  his plea of res judicata and  other  amendments\nwhich relate to the plea of res judicata,\n\t\t\t    93 1\nThe  permission to amend could not be interpreted as  giving\nliberty\t to the appellant to raise any new pleas which\twere\nnot raised at the initial stage. [939 G-H;940 A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION :’Civil Appeal No. 473 of
\n1966.\n<\/p>\n
Appeal\tby special leave from the judgment and decree  dated
\nAugust\t14, 1964 of the Bombay High Court, Nagpur Bench\t in.
\nAppeal No. 93 of 1959 from Appellate Decree.
\nM.   N. Phadke and A. G. Ratnaparkhi, for the appellant
\nR.   L. Roshan and H. K. Puri, for respondent Nos. 1 to 3.
\nThe Judgment of the Court was delivered by
\nBhargava, J.-This appeal by special leave has been filed  by
\nMohan  Lal  who purchased the property in dispute  from\t the
\noriginal  owner, Bhiwa, by means of two sale-deeds  Exhibits
\nD-1 and D-2 both dated 13th May, 1951.\tThe properties\twere
\nalready mortgaged in favour of the appellant by two  earlier
\nmortgage-deeds\texecuted on 23rd March, 1949 and 26th  June,
\n1949  respectively.  The plaintiff-respondents claimed\tthat
\nthe two sale deeds were collusive transactions between Bhiwa
\nand the appellant and that, in any case, Bhiwa had ‘no right
\nto   sell  these  properties  to  the  appellant,   as\t the
\nrespondents  had become owners of these properties prior  to
\nthe execution of the sale-deeds.  The four plaintiff-respon-
\ndents  are the daughters of Bhiwa by two wives, one  of\t the
\nbeing,\tSmt.  Hendri.  According to their case,\t Bhiwa\tsold
\ntwo  of\t his malik-makbuza fields having an  area  of  11.33
\nacres  by sale deed Ext.  D-31 to his wife Smt.\t Mendra\t and
\nto his nephew.\tBarshya, each of the vendees getting a\thalf
\nshare in those fields.\tLater, Barshya re-conveyed his share
\nto Bhiwa ion 20th July, 1921.  With regard to the share sold
\nto  Smt.   Mendra,  disputes arose between  her\t and  Bhiwa.
\nBhiwa,\tconsequently,  filed  a suit in the  year  1941\t for
\ncancellation   of  the\tsale-deed  Ext.\t  D-31\tand  for   a
\ndeclaration that he was the owner of the entire fields.\t The
\nsuit  was  compromised and a decree was passed\tgiving\tSmt.
\nMandra\tthe right of ownership to 1\/4th share in  those\t two
\nfields.\t  According to the plaintiff-respondents this  share
\nof  Smt.   Mendri  was\tgifted\tby  her\t to  the  plaintiff-
\nrespondents  by two gift deeds Exts.  P-1 and P-2 dated\t 3rd
\nOctober,  1948\tand 28th October, 1948.\t The  title  to\t the
\nproperty  to the extent covered by these two gift deeds\t was
\nclaimed\t by the plaintiff-respondents on the basis of  those
\ndeeds.\tIn addition, a deed of gift.  Ext.  P-3 was executed
\nby  Bhiwa himself in favour of the plaintiff-respondents  on
\n2nd  May,  1951,  and this covered the\tentire\tproperty  in
\nrespect of which sale-deeds were later executed by Bhiwa  in
\nfavour\tof the appellant on May 13, 1951.  On the  basis  of
\nthis gift-deed, the plaintiff-,respondents
\n93 2
\nclaimed\t title to the entire property sold to the  appellant
\nby  the two sale-deeds, so that claim in respect of part  of
\nthe  property was based on both the zift-deeds executed-  by
\nSmt.   Mendri  as well as the gift-deed executed  by  Bhiwa.
\n‘Since\tthe  appellant came into possession  under  the\t two
\nsale-deeds,  the  plaintiff-respondents brought a  suit\t for
\ndeclaration of their title and possession.
\n The trial Court held that the gift-deed Ext.  P-3  executed
\nby  Bhiwa was fraudulent and, consequently, not\t binding  on
\nthe  appellant.\t The gift-deeds Exts.  P-1 and P-2  executed
\nby  Smt\t Mendri\t were held to be vaild.\t  The  plea  of\t the
\nplaintiff-respondents that the sale-deeds Exts.\t D- I and D2
\nin  favour of the appellant were not genuine  was  rejected.
\nIn respect of the property gifted by Mendri, the trial Court
\nfurther\t recorded the finding that Mendri had not  lost\t her
\nright  prior  to  the execution\t of  the  sale-deeds.\tThis
\nfinding had to be given, as the appellant relied on the fact
\nthat there were proceedings under section 145 of the Code of
\nCriminal Procedure between Bhiwa and Smt.  Mendri after\t the
\ncompromise  in\tBhiwas suit recognising\t Mendri’s  right  to
\n1\/4th  share in the two fields.\t In those  proceedings,\t the
\nentire fileds were declared to be in possession of Bhiwa and
\na  direction was made by the Magistrate to Mendri to file  a
\nsuit for getting her 1\/4th share partitioned.  No such\tsuit
\nwas  filed within the period of three years as\trequired  by
\nArticle\t 47  of the Indian Limitation Act,  1908.   It\twas,
\ntherefore,  urged that Mendri lost her right to the  fields,
\nso that the two deeds ,of gifts executed by her in favour of
\nthe  plaintiff-respondents  could not convey  any  title  to
\nthem.\n<\/p>\n
Against\t this judgment the trial Court, an appeal was  filed
\nby  the plaintiff-respondents, while a\tcross-objection\t was
\nfiled by the defendant-appellant.  The appeal and the cross-
\nobjection  were\t heard\tby the\tSecond\tAdditional  District
\nJudge,\tBhandara.  The appeal by  the  plaintiff-respondents
\nrelated to the property in respect of which their claim had
\nbeen  disallowed by the trial Court. while the appellant  in
\nthe  cross-objection challenged the decree in favour of\t the
\nrespondents in respect of 1\/4th share of Smt.  Mendri.\t The
\n2nd  Additional District Judge dismissed the appeal  of\t the
\nrespondents  and allowed the cross-objection of\t the  appel-
\nlant.\tThe appellant’s cross-objection was allowed  on\t the
\nground that Mendri had lost her right to the property before
\nexecuting  the\tgift-deeds in favour of the  respondents  on accou
\nnt  of\ther failure to file a suit  for\t partition  or
\npossession  within  three  years  after\t the  order  of\t the
\nMagistrate  under S. 145 of the Code of Criminal  Procedure.
\nThe respondent’s appeal was dismisses affirming the findings
\nof  the\t trial\tCourt, but on two  additional  grounds.\t One
\nground was that the gift-deed executed by Bhiwa in favour of
\nthe  plaintiff-respondents  was in fact ante-dated  and\t bad
\nbeenexecuted after the 13th May, 1951, so that it was
\n\t\t\t    933<\/span>
\nfraudulent and was intended to defeat the sale in favour  of
\nthe  appellant.\t The second ground was that the suit of\t the
\nplaintiff-respondents  was  barred by the principle  of\t res
\njudicata in view of an inter-parties judgment in Civil\tSuit
\nNo. 42-A of 1952 which did :not exist during the pendency of
\nthe  suit  in the trial Court and was  delivered  while\t the
\nappeal was pending in the appellate Court.
\nAgainst\t this  decree passed by the first  appellate  Court,
\nsecond\tappeal was filed before the High Court\tof  Bombay.,
\nThe  High  Court  held\tthat  both  the\t lower\tcourts.\t had
\ncommitted  an  error in deciding the case on the  ground  of
\nfraud  or ante-dating in respect of the gift-deed  of  Bhiwa
\ndated 2nd May, 1951, because no such case was put forward in
\nthe pleadings before the trial Court.  The findings that the
\ngift-deed  was fraudulent and antedated were set  aside\t and
\nthe  gift-deed was, consequently, held to be valid.  On\t the
\nquestion  of res judicata, the High Court came to  the\tview
\nthat  the  material,  which  was  placed  before  the  first
\nappellate Court to decide this question, was not sufficient,
\nthough\t the   first  appellate\t Court\twas   justified\t  in
\nentertaining this plea, ‘because the judgment in Civil\tSuit
\nNo.  42-A  of 1952 came into existence for  the\t first\ttime
\nduring\tthe pendency of the appeal.  Consequently, the\tHigh
\nCourt,\twhile setting aside the decree passed by  the  first
\nappellate court dismissing the respondents’ suit, passed  an
\norder  of  remand permitting parties to make  amendments  in
\ntheir pleadings in respect of this plea of res judicata, and
\ndirecting  the trial Court to consider-prayer  for  allowing
\nother amendments, but added a condition that amendments with
\nrespect\t to  pleas  of fraud,  collusion  or  antedating  in
\nrespect\t of  the gift deed dated 2nd May, 1951\texecuted  by
\nBhiwa in favour of the respondents were not to be permitted.
\nIt is against this order of the High Court that the  present
\nappeal\thas been brought up to this Court by the  defendant-
\nappellant.\n<\/p>\n
The main point urged on behalf of the appellant was that the
\nHigh  Court was not justified in setting aside the  findings
\nof  the first appellate Court that the gift-deed  dated\t 2nd
\nMay,  1951  was\t fraudulent and ante-dated,  as\t there\twere
\nsufficient pleadings to justify this point being entertained
\nby  that Court.\t In support of this plea, our attention\t was
\ndrawn  to  paras 6 and 17 of the written  statement  of\t the
\nappellant.   In para. 6, the peading was that Bhiwa was\t all
\nalong  in possession of the lands and the contenting of\t the
\nplaintiffs to the contrary were denied.\t There was no  valid
\ntransfer  by  Bhiwa before 13th May, 1951 in favour  of\t the
\nplaintiffs as alleged.\tIt was denied again that  plaintiffs
\nwere  in  possession of the lands covered by  the  sale-deds
\nexecuted by Bhiwa in favour of the defendant, and a suit for
\nmere  injunction was incompetent.  The pleading in para.  17
\nwas that Bhiwa and
\n934<\/span>
\nMendri\thad  been  engaged  for\t the past  many\t years\tin
\nlitigation  and\t the present plaintiffs\t had  colluded\twith
\nBhiwa in seeking to set at naught the sale deed made by\t him
\nin favour of the defendant which gave him a discharge of his
\nliability and a release of estate from debt validly taken by
\nhim.  Plaintiffs were, thus not entitled it succeed.  In the
\npleadings  contained in these two paragraphs, we are  unable
\nto  find  any indication that the appellant  wanted  to\t put
\nforward\t the case that the gift deed executed by  Bhiwa\t was
\nantedated  and\tthat, in fact this gift\t deed  was  executed
\nafter  13th May, 1951 and subsequently to the sale deeds  in
\nfavour of the appellant.  The collusion alleged in para.  17
\ndid  not purport to have any relationship with the  deed  of
\ngift.  That collusion between the plaintiff-respondents\t and
\nBhiwa was alleged to have been for the purpose of setting at
\nnaught\tthe sale deed in favour of the appellant.  There  is
\nindication that even the parties an the trial Court did\t not
\nunderstand  these  pleadings as containing a plea  that\t the
\ngift  deed  was\t antedated and fraudulent in  the  sense  of
\nhaving been executed to defeat and I delay the creditors  of
\nBhiwa.\t No  issue was framed on the question  of  fraud  or
\nantedating.   Learned  counsel for the appellant  relied  on
\nissues 4, 12 and 13 to urge that such pleas were covered  by
\nthe issues.  These issues are as follows:-\n<\/p>\n
\t      (4)  (a)Whether  on 2-5-1951, Bhiwa  made\t the
\n\t      gift  of\t5.661 acres of land held  in  malik-
\n\t      makbuza rights and 2.8 acres of occupancy land
\n\t      in favour of the plaintiff ?\n<\/p><\/blockquote>\n
\t      (b)   Whether Bhiwa executed the gift deed  in
\n\t      favour of the plaintiff ?\n<\/p><\/blockquote>\n
\t      (c)   Whether the plaintiffs accepted the gift
\n\t      and acquired possession of the property ?
\n\t      (12)  Whether the plaintiffs have brought this
\n\t      suit  in\tcollusion with Bhiwa.?\tIf  so,\t its
\n\t      effect ?\n<\/p><\/blockquote>\n
\t       (13) Whether on 13-5-1951, Bhiwa was not\t the
\n\t      owner  of the fields and he could\t not  convey
\n\t      good  title  to  the land\t in  favour  of\t the
\n\t      defendant ?\n<\/p><\/blockquote>\n
None  of  these\t issues\t appears  to  us  to-  contain\t any
\nsuggestion  that  the  gift deed by Bhiwa  was\texecuted  to
\ndefeat\tand delay the creditors or it was antedated.   Issue
\n4(a)  only challenges the execution of the gift itself;\t but
\nthere  is  no  suggestion  that\t the  execution\t was  either
\nantedated or fraudulent.  Issue No. 12, which seems to\thave
\nbeen framed on the basis of the pleadings in para. 17 of the
\nwritten statement, specifically charges them plaintiffs with
\nbringing the suit in collusion with Bhiwa.  The
\n935<\/span>
\ncollusion  mentioned  in para. 17 was  thus  interpreted  to
\nrefer  to,  collusion  in  bringing  the  suit\tand  not  in
\nexecution of the deed of gift Ext.  P. 3. Issue No. 13\tonly
\nchallenges  the title of Bhiwa at the time of  execution  of
\nthe  sale  deeds  in  favour  of  the  appellant  and\tcan,
\ntherefore,  have no relation- at all to the fraud  or  ante-
\ndating in respect of the gift deed Ext.\t P-3.  It is,  thus,
\nclear  that the pleadings were never interpreted up  to\t the
\nstage of the trial as containing any allegation of fraud  or
\nantedating in relation to the gift deed Ext.  P. 3. Even  in
\nthe  course of evidence, no questions were put on behalf  of
\nthe appellant to the witnesses of the plaintiffs  suggesting
\nsuch  fraud or antedating, though. questions were  asked  in
\nrespect of the proper and valid execcttion of the gift deed.
\nIt  appears  that, for the first time, the question  of\t the
\ngift deed being fraudulent must have been raised before\t the
\ntrial  Court in the course of arguments after  parties”\t had
\nalready\t concluded their evidence, because the trial  Court,
\nin  the\t judgment  dealing  with  issues  Nos.\t12  and\t 13,
\nproceeded to record a finding that the gift deed, Ext.\tP.-3
\nwas  executed by Bhiwa fraudulently in order to defraud\t his
\ncreditors.   On the face of it, there was  no  justification
\nfor the trial Court to go into this question and record this
\nfinding\t when there were no pleadings in respect of it\tand,
\neven  during the course of trial, evidence was not led\twith
\nthe  object  of meeting such a plea.   The  first  appellate
\nCourt  committed a similar error in affirming  this  finding
\nrecorded by the trial Court.  In fact, it proceeded to commt
\na greater error in going into the question whether the\tgift
\ndeed  was  antedating having been executed after  13th\tMay,
\n1951.  Stich a plea of antedating, it seems, was raised\t for
\nthe  first time before the appellate Court in the course  of
\narguments.  There is nothing on the record to show that\t any
\nsuch  case  was\t put  forward at  any  earlier\tstage.\t The
\nconsequence  is\t that  the  plaintiff-respondents.  had\t  no
\nwarning\t that such a case was being put forward and  had  no
\nopportunity of tendering evidence to meet these\t objections.
\nIn  respect of the plea of fraud, evidence could  have\tbeen
\ngiven  that Bhiwa had other properties, so that no  question
\nof defrauding the creditors could arise.  Both those  courts
\nalso  lost  sight  of  the fact that,  on  the\trecord,\t the
\nappellant was shown to be the only creditor of Bhiwa;  there
\nwere  no  other creditors.  As a creditor, he could  not  be
\ndefrauded,  because his loans weren’t cured by the  mortgage
\ndeeds dated 23rd March, 1949 and 26th June, 1949.  A gift by
\nBhiwa in respect of properties alreadymortgaaed could not in
\nany  way defeat or delay the mortgagee’s right, because\t the
\ndonee  under  the gift deed could only take  the  properties
\nsubject to the mortgages.  The transfer by the deed’ of gift
\ncould  not in any way affect the mortgagee’s  rights:  under
\nthe  mortgages.\t  The finding-about fraud  recorded  by\t the
\ntrial Court as well as the appellate Court was therefore, on
\nthe-\n<\/p>\n
936<\/span><\/p>\n
-face  of  it, totally unjustified, and the High  Court\t was
\nright  in holding  that they  committed\t this  error,  and
\nsetting aside their findings.\n<\/p>\n
So far as the plea of antedating of the gift-deed Ext.\t P-3
\naccepted  by the appellate Court is concerned, the  position
\nis  still worse.  There was no suggestion at all  that\tthe
\ngift  deed was antedated either in the pleadings or  in\t the
\ncourse\tof evidence.  No such suggestion was put forward  to
\nany  witness  of  the  plaintiff-respondents,  nor  was\t any
\nstatement  made\t in  this  behalf by  ,any  witness  of\t the
\nappellant.   The point was not even argued before the  trial
\nCourt.\t It  was  not  mentioned  in  any  form\t before\t the
\nappellate  Court.   It appears to have been raised  for\t the
\nfirst time in the course of arguments in the appeal, without
\nnotice to the other party.  The point was again decided\t on
\nthe  basis of the evidence which came in incidentally  when
\nparties\t were examining witnesses in respect of\t the  issues
\nframed\tby  the trial Court.  Only two\tcircumstances  were
\nrelied\tupon by the appellate Court to record this  finding
\nof  antedating.\t One, was that the gift deed was  registered
\non  23rd  August, 1951, even though it was executed  on\t 2nd
\nMay,  1951,  and  no explanation was  forthcoming  for\tthis
\ninordinate  delay.   The second circumstance  was  that\t the
\npetition-writer, who scribed the deed of gift, did not\tpro-
\nduce his register of documents required to be maintained  by
\nhim  under the rules, which was held to raise a\t presumption
\nthat,  if that register had been produced, it  would  have
\nshown  that the gift deed was not written out on  12nd\tMay,
\n195 1. So far as the first circumstance is concerned,  since
\nno  issue was framed. no occasion arose for  the  plaintiff-
\nrespondents  to\t give  evidence to  explain  the  delay\t in
\nregistration.\tNo  question was put to any witness  of\t the
\nplaintiff-respondents  why this delay had occurred  Me\tplea
\ndepended on questions of fact in respect of which.  evidence
\ncould have been given and facts elicited.  Such a plea could
\nnot be considered for the first time at the appellate  stage
\nwhen the party concerned had no earlier warning and did\t not
\nhave any opportunity to give evidence explaining the  reason
\nfor the delay.\tThe second circumstance for holding  against
\nthe respondents appears to be based on a misunderstanding of
\nthe  position of law.  The register of\tthe  petition-writer
\nwas not a document maintained by or in the possession of the
\nrespondents.   They were  not  responsible  for\t its  non-
\nproduction.  No presumption could be raised against them for
\nfailure of its production by the petition-writer.  At best,
\nthe non-production could affect the value of the evidence of
\nthe  petition-writer.  Even if his evidence was not  relied
\nupon, no finding of antedating could be given when there was
\nno  assertion and no evidence on behalf of the appellant  to
\nshow  that  the gift deed had been ante-dated and  had\tbeen
\nexecuted after 13th May, 1951.\tThe finding
\n937<\/span>
\nrecorded  was clearly without any evidence altogether.\t The
\nHigh  Court was, therefore, quite correct in  setting  aside
\nthis finding also.\n<\/p>\n
Counsel\t for the appellant relied on four decisions of\tthis
\nCourt in respect of his argument that the High Court was not
\njustified  in  rejecting the case of fraud  and\t antedating,
\nwhich had been accepted by the first appellate Court, merely
\non the ground of want of pleadings.  The first case referred
\nto  is\tKidar Lall Seal and Another v.\tHari  Lall  Seal<\/a>(1),
\nwhere Bose, J., with whom Fazl Ali, J. agreed, said :-\n<\/p>\n
\t      ‘I  would\t be slow to throw out a claim  on  a
\n\t      mere   technicality  of  pleading\t  when
\n\t      the  substance  of the thing is there  and  no
\n\t      prejudice is caused to the other side,  howeve
\n\t      clumsily\tor inartistically the plaint may  be
\n\t      worded.  In any event, it is always open to  a
\n\t      Court  to\t give a plaintiff  such\t general  or
\n\t      other  relief  as it deems just  to  the\tsame
\n\t      extent  as if it had been asked for,  provided
\n\t      that occasions no prejudice to the other\tside
\n\t      beyond what can be compensated for in costs.”\n<\/p><\/blockquote>\n
The  principle enunciated has no applicability to the  facts
\nof  the case before us.\t As we have already  indicated,\t the
\npleadings  did\tnot  contain any reference  at\tall  to\t the
\nquestion  of  the sale deed being fraudulent  or  antedated.
\nInstead\t of  the substance of the pleas being there  was  no
\nhint at all of these objections in the pleadings.  The\tnext
\ncase relied upon is Nagubai Ammal & Others v. B. Shama Rao &
\nOthers<\/a>(2).  That case related to a plea of his pending.\t The
\nargument  was  that no plea of is pendens was taken  in\t the
\npleadings  and, consequently, the evidence bearing  on\tthat
\nquestion could not be properly looked into, and no  decision
\ncould  be  given based on the documents that  the  sale\t was
\naffected  by lis.  The plea was not accepted on\t the  ground
\nthat
\n\t      “that rule has no application to a case  where
\n\t      parties  go  to trial with  knowledge  that  a
\n\t      particular  question  is in issue,  though  no
\n\t      specific\tissue, has been framed thereon,\t and
\n\t      adduce evidence relating thereto.”\n<\/p>\n
In  the case before us, we have already shown  that  parties
\ndid not go to trial on the issue of fraud and antedating  in
\nrespect\t of  the gift deed Ext.\t P-3, nor  did\tthey  adduce
\nevidence relating to any such pleas.  The third case  relied
\nupon  by learned counsel is Kunju Kasavan v. M.\t M.  Philip,
\nI.C.S.\tand Others<\/a>(3).\tIn that case, a contention  was\t put
\nforward that a notification or deposi-\n<\/p>\n
(1) [1952] S.C.R. 179.\n<\/p>\n
(2) [1956]  S.C.R.451.\n<\/p>\n
(3)  [1964] 3S.C.R. 634.\n<\/p>\n
938<\/span><\/p>\n
tion of Witnesses could not be looked into when there was no
\nproper plea or issue about the exemption.  The question\t was
\nwhether\t  a   particular  notification\thad   exempted\t one
\nBhagavathi  Valli  from\t the provisions of Part\t IV  of\t the
\nEzhava Act.  The Court held that this question was. properly
\ngone into and expressed its views in the following words :-\n<\/p>\n
\t      “We  do  not think that the plaintiff  in\t the
\n\t      case was taken by surprise.  The\tnotification
\n\t      must   have  been\t filed\twith   the   written
\n\t      statement,  because there is no-thing to\tshow
\n\t      that   it\t was  tendered\tsubsequently   after
\n\t      obtaining\t the  orders  of  the  court.\t The
\n\t      plaintiff was also cross-examined with respect
\n\t      to  the address of Bhagavathi Valli,  and\t the
\n\t      only  witness  examined  on the  side  of\t the
\n\t      defendant\t deposed about the notification\t and
\n\t      was  not\tcross examined on this\tpoint.\t The
\n\t      plaintiff\t did not seek the permission of\t the
\n\t      court to lead evidence on this point.  Nor did
\n\t      he  object to the reception of this  evidence.
\n\t      Even before the District Judge, the contention
\n\t      was not that the evidence was wrongly received
\n\t      without  a proper plea and issue but that\t the
\n\t      notification was not clear and there was doubt
\n\t      whether this Bhagavathi Valli was exempted  or
\n\t      not.    The  parties  went  to   trial   fully
\n\t      understanding  the  central fact\twhether\t the
\n\t      succession  as  laid down in  the\t Ezhava\t Act
\n\t      applied  to  Bhagavathi  Valli  or  not.\t The
\n\t      absence  of an issue, therefore, did not\tlead
\n\t      to  a  mis-trial\tsufficient  to\tvitiate\t the
\n\t      decision.”\n<\/p><\/blockquote>\n
Again,\tit is manifest that, in that case, parties had\tgone
\nto  trial  consciously\ton  that  question  and\t had   given
\nevidence, while the only omission was in the pleadings.\t  In
\nthe case before us, we have already held that there was\t not
\nmerely omission in the pleadings, but, in fact, the question
\nof fraud and antedating was never the subject-matter of\t any
\nevidence  and no party was ever conscious in the trial\tthat
\nsuch  questions are going to be decided by the\tCourt.\t The
\nlast  case  relied  upon  is Union  of.India  v.  M\/s.\tKhas
\nKaranapura  Colliery Ltd.(1). In that case, this Court\theld
\nthat certain processes ancillary to the getting, dressing or
\npreparation for sale of coal obtained as a result of the  in
\nme  operations were being carried on.  This  conclusion\t was
\nresisted on the plea that, in the writ petition, no specific
\ncase  was  pleaded under the second part of  sub-s.  (4)  of
\nsection\t 4 and, therefore, it was not open for the Court  to
\nconsider that aspect of the case.  The Court said
\n\t      “We are unable to accept this contention.\t  It
\n\t      is  true that the pleadings on this point\t are
\n\t      rather vague; but
\n\t      (1)   [1968] 3 S.C.R.784.\n<\/p>\n
\t\t\t\t   939<\/span><\/p>\n
\t      all  the\tfacts nessary for  determining\tthat
\n\t      question are before the court.  That aspect of
\n\t      the  case\t appears to have been  fully  argued
\n\t      before  the High Court without any  objection.
\n\t      The  High\t Court, has considered\tand  decided
\n\t      that question.  Hence the appellant cannot now
\n\t      be  permitted  to\t contend that  for  want  of
\n\t      necessary\t pleadings that question  cannot  be
\n\t      gone into.”\n<\/p>\n
The  circumstances  of that case are again  quite  different
\nfrom  those  in the case before us.  In that  case  all\t the
\nfacts necessary for determining the question were before the
\nCourt, while, in the present case, such facts could not come
\nin,  because  the parties, at the time of  trial,  were\t not
\naware that these pleas of fraud and antedating are going  to
\nbe considered by the courts.  None of the cases relied\tupon
\nby learned counsel affects the view taken by us that, in the
\npresent case, the High Court was fully justified in  setting
\naside the findings of the appellate Court on the question of
\nfraud and antedating.\n<\/p>\n
Learned counsel for the appellant also referred to the Plea,
\nof  limitation\tin  respect of the  right  of  Smt.   Mendri
\nthrough\t whom’\talso  title was claimed\t by  the  plaintiff-
\nrespondents  in respect of some of the properties  in  suit. That
\n plea  becomes immaterial because, even\t if  the  gift
\ndeeds executed by Smt.\tMendri are disregarded, the title to
\nthose properties was acquired by the respondents through the
\ngift-deed  Ext.\t  P-3  executed by Bhiwa  himself  and\tthe,
\nearlier title claimed need not, therefore, be gone into.
\nLastly,\t counsel  urged\t that now that\tthe  suit  has\tbeen
\nremanded  to the trial Court for reconsidering the  plea  of
\nres-judicata  the  appellant  should  have  been  given\t  an
\nopportunity to amend the written statement so as to  include
\npleadings in respect of the fraudulent nature and antedating
\nof  the\t gift deed Ext.\t P-3.  These questions\thaving\tbeen
\ndecided\t by the High Court could not appropriately  be\tmade
\nthe  subject-matter of a fresh trial.  Further,\t as  pointed
\nout  by\t the High Court, any suit on such pleas\t is  already
\ntime-barred  and  it  would  be\t unfair\t to  the  plaintiff-
\nrespondents  to allow these pleas to be raised by  amendment
\nof the written statement at this late stage.  In the  order,
\nthe,  High Court has stated that the judgments\tand  decrees
\nand  findings of both the lower courts were being set  aside
\nand  the  case was being remanded to the trial Court  for  a
\nfresh decision on merits with advertence to the, remarks  in
\nthe  judgment of the High Court.  It was argued\t by  learned
\ncounsel\t that, in making this order, the High Court has\t set
\naside all findings recorded on all issues by the trial Court
\nand  the,  first  appellate Court.  This is  not  a  correct
\ninterpretation\tof the order Obviously, in  directing  ‘that
\nfindings of
\n940<\/span>
\nboth  courts are set aside, the High Court was referring  to
\nthe points which the High Court considered and on which\t the
\nHigh  Court  differed from the lower  courts.\tFindings  on
\nother  issues, which the High Court was not called  upon  to
\nconsider,  cannot be deemed to be set aside by\tthis  order.
\nSimilarly,  in\tpermitting amendments, the  High  Court\t has
\ngiven liberty to the present appellant to amend his written
\nstatement  by setting out all the requisite particulars\t and
\ndetails of his plea of res judicata, and has added that\t the
\ntrial  Court may also consider his prayer for  allowing\t any
\nother\tamendments.   On  the  face  of\t it,   those   other
\namendments, which could be allowed, must relate to this very
\nplea  of res judicata.\tIt cannot be interpreted  as  giving
\nliberty\t to the appellant to raise any new pleas  altogether
\nwhich  were  not  raised at the initial\t stage.\t  The  other
\namendments  have to be those which are consequential to\t the
\namendment in respect of the plea of res judicata.
\nIn  support  of the argument that the appellant should\tbe
\nallowed\t to  amend  his pleadings in  respect  of  fund\t and
\nantedating also, reliance was placed on the decision of this
\nCourt in L. J. Leach and Company Ltd. v. Jardine Skinner and
\nCo.<\/a>(1), where an amendment was allowed at a very late  stage
\nby this Court.\tThe Court held :\n<\/p>\n
\t      “The  plaintiffs seek by their amendment\tonly
\n\t      to   claim   damages  in\trespect\t  of   those
\n\t      consignments.   The  prayer in the  plaint  is
\n\t      itself  general  and  merely  claims  damages.
\n\t      Thus, all the allegations which are  necessary
\n\t      for sustaining a claim for damages for  breach
\n\t      of  contract are already in the plaint.\tWhat
\n\t      is  lacking  is only the allegation  that\t the
\n\t      plaintiffs  are, in the alternative,  entitled
\n\t      to claim damages for breach of contract by the
\n\t      defendants in not delivering the goods.”\n<\/p><\/blockquote>\n
The  dictum  in\t that case has no application  to  the\tcase
\nbefore us in which there are no allegations or pleadings  in
\nthe written statement in respect of the now pleas sought  to
\nbe  raised  by amendment.  Reference was also  made  to\t the
\ndecision  of this Court in A. K. Gupta and Sons\t v.  Damodar
\nValley\tCorporation<\/a>  (2) where the principle laid  down\t was
\nthat :\n<\/p>\n
\t      “the  general rule, no doubt, is that a  party
\n\t      is  not allowed by amendment to set up  a\t new
\n\t      case  or\ta new cause of\taction\tparticularly
\n\t      when a suit on the new case or cause of action
\n\t      is barred.  But it is also we recognised\tthat
\n\t      where  the amendment does not  constitute\t the
\n\t      addition of a new cause of action, or raises a
\n\t      different case, but amounts to no more than  a
\n\t      different
\n\t      (1) [1957] S.C.R. 438.\n<\/p><\/blockquote>\n
\t      (2) [1966] 1 S.C.R. 796.\n<\/p><\/blockquote>\n
\t      941<\/span><\/p>\n
\t      or additional approach to the same facts,\t the
\n\t      amendment\t will  be  allowed  even  after\t the
\n\t      expiry of the statutory period of limitation.”\n<\/p><\/blockquote>\n
In  the case before us, this principle, instead\t of  helping
\nthe appellant, goes against him.  In this case, the pleas of
\nfraud  and ante-. dating in respect of, the gift  deed\tExt.
\nP-3  raise  entirely new causes of action and a\t case  quite
\ndifferent   from  that\tpleaded\t in  the  original   written
\nstatement.   It\t is not a case of a  different\toradditional
\napproach  to facts already given in the\t written  statement.
\nThese cases do not, therefore, help the appellant and  would
\nnot   justify  our  permitting\tamendment  of  the   written
\nstatement  at  this late stage by varying the order  of\t the
\nHigh Court.\n<\/p>\n
The appeal fails and is dismissed with costs in this Court.\n<\/p>\n
V.P.S.\t\t\t  Appeal dismissed..\n942<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Moman Lal vs Anandi Bai & Ors on 3 March, 1971 Equivalent citations: 1971 AIR 2177, 1971 SCR (3) 929 Author: V Bhargava Bench: Bhargava, Vishishtha PETITIONER: MOMAN LAL Vs. RESPONDENT: ANANDI BAI & ORS, DATE OF JUDGMENT03\/03\/1971 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHELAT, J.M. DUA, I.D. CITATION: 1971 AIR […]<\/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-81956","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMoman Lal vs Anandi Bai & Ors on 3 March, 1971 - 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\/moman-lal-vs-anandi-bai-ors-on-3-march-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moman Lal vs Anandi Bai & Ors on 3 March, 1971 - 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