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Smt. Safi Devi Vs. Mahadeo Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2312 of 1976
Judge
Reported inAIR1978All215
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Evidence Act, 1872 - Sections 52; Specific Relief Act, 1963 - Sections 19; Succession Act, 1925 - Sections 63
AppellantSmt. Safi Devi
RespondentMahadeo Prasad and ors.
Appellant AdvocateK.C. Saxena, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal partly allowed
Excerpt:
.....court even though one may be justified in having real doubts about the genuineness of the sale deed dated 10th june, 1968. even if the findings recorded by the lower appellate court, be held to be erroneous, still, on the well-known principles governing the jurisdiction of the court in a second appeal, i have no jurisdiction to interfere. i have already stated above that the lower appellate court was not satisfied that atul roy, defendant no. it was clearly recited in the document that the defendant no. even without a counter claim, it is open to the court to hold and declare that the plaintiff is entitled to half the share in the property on the basis of the said sale deed dated 10th june, 1968 and the document is good only to the extent of one half and not to the full extent...........of suit amounting to rs. 20/- and pendente lite and future rent.2. the brief facts are these : a sale deed was executed on june 10, 1968 by the defendant no. 1, kartik prasad acting for himself and as the father and guardian of his minor son, bhanu, defendant no. 2 and by atul roy, defendant no. 3, in favour of the plaintiff, mahadeo prasad. the sale deed was executed in respect of house no. 77, muthiganj, allahabad and for a stated consideration of rs. 4,000/-. due to the circumstances which have been stated in the plaint, the sale deed was finally registered on 25th june, 1968, on which date the defendant no. 1. kartik prasad, appeared before the sub-registrar and admitted the execution of the sale deed on behalf of himself and his minor son, bhanu. he also admitted the receipt of.....
Judgment:

M.P. Mehrotra, J.

1. This second appeal arises out of a suit which the plaintiff-respondent No. 1 filed against five defendants. Defendants Nos. 1, 2, 3 and 4 are respondents Nos. 2, 3, 4 and 5 respectively in the instant appeal. The defendant No. 5 Smt. Safi Devi, is the appellant before me. The plaintiff sought the recovery of possession of house No. 77, Muthiganj, Allahabad. A decree for mesne profits @ Re. 1/- per day with effect from June 10, 1968 to the date of suit amounting to Rs. 50/- and pendente lite and future mesne profits at the same rate until the delivery of possession were also claimed. Further, the plaintiff claimed rent from the tenant defendant No. 4 Jagannath, @ Rs. 12/- per month from June 10, 1968 to the date of suit amounting to Rs. 20/- and pendente lite and future rent.

2. The brief facts are these : A sale deed was executed on June 10, 1968 by the defendant No. 1, Kartik Prasad acting for himself and as the father and guardian of his minor son, Bhanu, defendant No. 2 and by Atul Roy, defendant No. 3, in favour of the plaintiff, Mahadeo Prasad. The sale deed was executed in respect of house No. 77, Muthiganj, Allahabad and for a stated consideration of Rs. 4,000/-. Due to the circumstances which have been stated in the plaint, the sale deed was finally registered on 25th June, 1968, on which date the defendant No. 1. Kartik Prasad, appeared before the Sub-Registrar and admitted the execution of the sale deed on behalf of himself and his minor son, Bhanu. He also admitted the receipt of the consideration of the sale deed.

3. However, the defendant No. 1, Kartik Prasad, on 18th June, 1968 executed another sale deed in respect of the same house in favour of Smt. Safi Devi, defendant No. 5. The deed was also registered on the same date i. e. 18th June, 1968. Jagannath Prasad, defendant No. 4, happened to be the tenant at the time when the aforesaid sale deeds were executed. The physical possession of the house was not delivered to the plaintiff, Mahadeo Prasad and he claimed that he came to know of the sale deed dated 18th June, 1968 when he applied for mutation of his name to the Nagar Mahapalika, Allahabad.

4. The defence, in brief, was that the sale deed dated 10th June, 1968 was not a voluntary act on the part of the defendant No. 1 who had been forced to append his signature on blank papers on 13th June, 1968. It was also alleged that an F. I. R. to the said effect was lodged by the defendant No. 1 on the same date 13th June, 1968 at police station, Colonelganj, Allahabad. It was further alleged by the said defendant that he was given drinks etc. and was threatened before he was forced to appear before the Sub-Registrar on 25th June, 1968. Under the said circumstances the defendant No. 1 claimed that he was forced to appear before the said Sub-Registrar and admitted the execution of the said sale deed dated 10th June, 1968. It was further alleged that after he came out of the Sub-Registrar's office the money which had been paid to him before the Sub-Registrar was taken away from him by the plaintiff. In short, the allegation was that the said sale deed was not a binding and effective one. On the other hand, it was claimed that the defendant No. 1 had entered into an agreement with the defendant No. 5, Smt. Safi Devi, on 10th Feb. 1967 to sell the house in question in her favour for Rs. 3500/- and in pursuance of that agreement a sum of Rs. 500/- was paid to the defendant No. 1 on the same date i.e. 10th Feb. 1967. The sale deed dated 18th June 1968 was executed in pursuance of the said agreement of sale dated 10th Feb., 1967. The defendant No. 5, claimed to be a bona fide purchaser for value without notice. She further claimed that the plaintiff, Mahadeo Prasad, had full knowledge of the earlier agreement of sale dated 10th Feb., 1967, in her favour. On the said grounds a counterclaim was set up for the cancellation of the sale deed dated 10th June, 1968.

5. The trial court framed the necessary issues and after trial dismissed the suit. On appeal, however, the lower appellate court set aside the judgment and decree of the trial court and decreed the suit.

6. The defendant No. 5, Smt. Safi Devi, has now come up in the instant appeal and in support of the same Shri K. C. Saxena has made his submissions. On behalf of the plaintiff respondent Shri Deokinandan (as he then was) was heard in detail.

7. The lower appellate court recorded the following findings of fact:

(1) The sale deed dated 10th June, 1968 was duly executed in favour of the defendant No. 1, Kartik Prasad, for self and as guardian of his minor son and by Atul Roy, the defendant No. 3 for consideration and without any undue influence or coercion or fraud such as was alleged by the contesting defendants.

(2) The aforesaid sale deed was presented before the Sub-Registrar on 17th June, 1968 and on that date the defendant No. 2, Atul Roy, had admitted the due execution of the document by him and receipt of the proportionate sale consideration. It was finally presented for registration on 25th June, 1968 when the defendant No. 1, Kartik Prasad, appeared before the Sub-Registrar and admitted the due execution by him and receipt of the proportionate amount of the sale consideration payable to him.

(3) The sale deed dated 18th June, 1968 was also executed by the defendant No. 1, Kartik Prasad, on the said date in favour of the defendant No. 5, Smt. Safi Devi. This document was presented for registration on the same date before the Sub-Registrar.

(4) The defendant No. 5, and her husband Mangal Singh had, on 18th June, 1968 when the sale deed was executed by the defendant No. 1 in favour of the defendant No. 5 notice of the earlier sale deed dated 10th June, 1968 executed by the defendant No. 1 and the defendant No. 3 in favour of the plaintiff.

(5) The alleged agreement to sell dated 10th Feb., 1967 said to have been executed between the defendant No. 1 and the defendant No. 5 on the said date was not genuine and was antedated. In fact, it was prepared after the sale deed was executed by the defendant No. 1 and the defendant No. 3 in favour of the plaintiff on 10th June, 1968.

(6) There was no evidence on record except the admission of Kartik Prasad in the sale deed dated 10th June, 1968 to prove that Atul Roy, defendant No. 3 has half share in the house by virtue of the alleged will said to have been executed by Dr. Mahadeo Prasad, father of the defendant No. 1.

8. Shri K. C. Saxena, learned counsel for the appellant, attacked the aforementioned fifth finding on the ground that in the plaint the plaintiff had not attacked the agreement D/-10-2-1967 in any manner whatsoever even though he had become aware of the said document prior to the institution of the suit. In view of the pleadings of the parties, it was not open to the lower appellate court to hold that the said document was not a genuine one and had been antedated. Counsel further submitted that the plaintiff in the witness box did not allege the said document to have been antedated.

9. It was next contended on behalf of the appellant that the lower appellate court was not justified in discarding the statement of Kartik Prasad on the ground that he had been convicted by the criminal court and in this connection reliance was placed on Section 52 of the Evidence Act.

10. It was next contended that the sale deed dated 18th June, 1968 executed by the defendant No. 1 in favour of the defendant No. 5 should have priority over the sale deed dated 10th June, 1968 executed by the defendant No. 1 along with the defendant No. 3 in favour of the plaintiff on the ground that the sale deed dated 18th June, 1968 was in pursuance of the agreement of sale dated 10th Feb., 1967. Reliance was placed on Section 19(b) of the Specific Relief Act and it was submitted that the plaintiff could not be held to be a transferee for value who had paid his money in good faith and without notice of the original contract. Shri Saxena pointed out that the two courts below have given no finding as to whether the plaintiff was or was not aware of the agreement dated 10th Feb., 1967. However, on the material on record it was clear that the consideration for the sale deed dated 10th June, 1968 had been paid by the plaintiff to the defendant No. 1 on 25th June, 1968 i. e. subsequent to the sale deed dated 18th June, 1968 which had been executed by the defendant No. 1 in favour of the defendant No. 5 and which had also been submitted for registration on the said date.

Counsel submitted that it was not only necessary that the plaintiff should have had no notice of the said agreement dated 10th Feb., 1967 on the date when the sale deed was executed in his favour by the defendant No. 1 and defendant No. 3 but that the plaintiff should have also paid the sale consideration before he had notice of the said agreement dated 10th Feb., 1967. It was pointed out that sale consideration to the defendant No. 1 was paid by the plaintiff on 25th June, 1968 when the document was presented to the Sub-Registrar and on the said date the plaintiff was aware or should be deemed to be constructively aware of the sale deed dated 18th June, 1968 which had been presented for registration on the said date and in the said sale deed a reference was made to the earlier agreement of sale dated 10th of Feb., 1967. It was also contended that a reference to Ex. 6, which is the plaintiffs application dated 17th June, 1968, addressed to the Sub-Registrar, Allahabad, proved that the plaintiff was on the said date aware of the said agreement dated 10th Feb., 1967. Reliance was placed on the following cases in support of the contention based on Section 19(b) of the Specific Relief Act: Md. Aslam Khan v. Feroze Shah (AIR 1932 PC 228); Arunachala v. Madappa : AIR1936Mad949 ; Gaurishankar v. Ram Sewak : AIR1934All1045 ; Himatial Motilal v. Vasudeo Ganesh ((1912) ILR 36 Bom 446).

11. Shri Saxena lastly contended that the lower appellate Court was not justified in holding that the counter claim made by the appellant-defend ant No. 5, Smt Safi Devi, was not maintainable. In any case, it could be treated as the plaint in a cross suit and for this proposition reliance was placed on Laxmidas v. Nanabhai : [1964]2SCR567 .

12. Shri Deokinandan (as he then was) contended that the appeal was concluded by findings of fact. He placed reliance on Section 47 of the Registration Act to contend that the sale deed dated 10th June, 1968 was operative from the said date even though its registration was effected subsequently. In this connection reliance was placed on, K. J. Nathan v. Maruthi Rao : [1964]6SCR727 ; Gayatri Prasad v. Board of Revenue (1973 All WR (HC) 606): Ramnarain v. Basdeo Misra : AIR1934All70 ; Union Bank Ltd. v. Ram Rati : AIR1954All595 .

13. Learned counsel also contended that the mere fact that the sale amount was not paid by the plaintiff to the defendant No. 1 on the execution of the sale deed of 10th June, 1968 did not invalidate the said document. Reliance was placed on State of Kerala v. C. C. Refineries : [1968]3SCR556 and Chandrashankar v. Abhla Mathur : AIR1952Bom56 . Counsel also referred to Mohammad Bashir Khan v. Kulsum Bibi : AIR1927All545 and Arunachalan v. Sivan : AIR1970Mad226 .

14. I have considered these rival contentions. In my opinion, it is difficult to question the findings of fact which have been recorded by the lower appellate court even though one may be justified in having real doubts about the genuineness of the sale deed dated 10th June, 1968. Even if the findings recorded by the lower appellate court, be held to be erroneous, still, on the well-known principles governing the jurisdiction of the court in a second appeal, I have no jurisdiction to interfere. It was open to the lower appellate court to assess the evidence on record and to discard the testimony of Kartik Prasad, the defendant No. 1. Even if Shri Saxena be held to be justified in taking exception to the lower appellate court discarding the testimony of Kartik Pd. on the ground that the latter happened to have been convicted by the Court of Session as evidenced by the Criminal Court's judgment on record, still, it has to be emphasised that the lower appellate court did not discard the evidence of the said witness on the said ground alone. There are other grounds, including circumstantial evidence, on which the lower appellate court has preferred not to rely on the statement of the said witness. Therefore, it cannot be held that the lower appellate court committed any legal error in discarding the testimony of the said witness.

Again, it is difficult to accept Shri Saxena's contention that the lower appellate court was not justified in holding that the alleged agreement dated 10th Feb., 1967 was not a genuine one and had been antedated and prepared after 10th Feb., 1968 when the sale deed was executed in favour of the plaintiff by the defendants Nos. 1 and 3. It was not necessary for the plaintiff to specifically attack the said document in the plaint before he could be held entitled to attack the same. The contesting defendants were relying on the said document and it was for them to prove the genuineness of the same. They had placed reliance on the said document in their written statement and the trial court framed a specific issue being issue No. 4 in regard to the factum and the effect of the said alleged agreement dated 10th February, 1967. The plaintiff could not be expected to have any personal knowledge about the said document and the particular date on which it was executed. All these matters were in the special knowledge of the contesting defendants and, therefore, it was for them to satisfy the court by cogent evidence. The trial court also dealt with the said issue and the finding in favour of the contesting defendants was returned with the utmost hesitancy and doubt. The lower appellate court, however, decided the issue against the said defendant. In these circumstances, it cannot be said that the defendants were in any manner prejudiced or taken by surprise by the trial of the said question by the courts below. Shri Saxena placed reliance on an un-reported decision of a Division Bench in First Appeal No. 378 of 1968 (All), Hari Singh v. Fakhru. I have looked into the said judgment and it is obvious that the facts and circumstances of that case were different. No issue had been framed in the said case and the defendants were prejudiced inasmuch as they did not lead any evidence in the absence of such an issue. In the facts of the instant case, the situation is entirely different. A specific issue was framed in the trial court and the parties led evidence and both the courts below dealt with the said controversy. Therefore, it follows that the reliance on Section 19 of the Specific Relief Act on the part of Shri Saxena is not justified. The said section could have come into play when the agreement dated 10th Feb., 1967 were held to be genuine document.

15. I have, therefore, felt that much of the aforesaid case law which has been cited at the Bar does not call for any comment or detailed discussion in view of the findings of fact recorded by the lower appellate court.

16. However, in my opinion, the lower appellate court was not justified in interpreting the sale deed dated 10th June, 1968 in the manner as it did. I have already stated above that the lower appellate court was not satisfied that Atul Roy, defendant No. 3, really had half share in the house in question on the basis of the alleged will said to have been executed by Dr. Mahadeo Prasad, father of the defendant No. 1. In my opinion, as the evidence stands, it must categorically be held that there was no such will as was alleged to have been executed by Dr. Mahadeo Prasad bequeathing half share in the house in question in favour of Atul Roy and the allegation about the will is a pure concoction. One would have expected the will to have been in the custody of either Atul Roy or, after the sale deed dated 10th June, 1968, in the custody and possession of the plaintiff. However, no such will has been produced from the custody of either of them.

The Supreme Court in Ram Chandra v. Champabai : [1964]6SCR814 emphasised that in the case of wills the surrounding circumstances have also to be looked into. Here Dr. Mahadeo Prasad had a son alive and grandson alive and in these circumstances it would be wholly against natural course of things that he would have executed a will disinheriting his own child and grandchild. To say the least, the role of Atul Roy seems to me absolutely mystifying and it has seemed to me that his role was such as to make the entire transaction dated 10th June, 1968 to be a big question mark. However, as I have felt that I am bound by the findings recorded by the lower appellate court, it is not necessary for me to discuss the said matter further. The lower appellate court felt that on an interpretation of the sale deed dated 10th June, 1968 it had to be held that the defendant No. 1, Kartik Prasad, transferred the entire interest in the property in favour of the plaintiff. In my opinion, this interpretation of the document is not correct. It was clearly recited in the document that the defendant No. 1 and the defendant No. 3 had half share each and each of them transferred his half share in favour of the plaintiff. The fact that it has been subsequently found that the defendant No. 3 did not have any share in the property such as was alleged in the document cannot be taken advantage of by the vendee in so far as the extent of the sold share of Kartik Prasad was concerned. It has also to be emphasised that on the own admission of the plaintiff, a sum of Rs. 2,000/-was paid to Atul Roy and a sum of Rs. 2,000/- was paid to the defendant No. 1 separately. In other words, half the consideration of the sale deed was paid by the plaintiff to the defendant No. 1 and the other half to the defendant No. 3.

It seems to me that in such a situation it cannot be contended that even though on the language of the document the defendant No. 1 purported to sell his half share in the property and even though he was paid only half the sale consideration on the basis of the purported sale of his half share, still, the defendant No. 1's transferred estate should be so enlarged as to include the entire property. I do not think that on any principle of law or equity the plaintiff can be allowed to take advantage of certain statements occurring in the body of the sale deed which imply that the vendors had ceased to have any right or interest in the property. The said statements have to be read subject to The earlier recital in the sale deed that each of the vendor had half share in the property and the cessation of the rights and interests of the vendors has to be construed in reference to the aforesaid recital about the share of each being one-half in the property. In my view, therefore, by the sale deed dated 10th June, 1968 only the half share in the house in question was transferred to the plaintiff by the defendant No. 1. There was no transfer of the other half inasmuch as Atul Roy did not have any right or interest in the property. Therefore on 18th June, 1968 it was open to the defendant No. 1 to execute the sale deed in favour of the defendant No. 5 in respect of his remaining half share in the property. When I have talked of the share of defendant No. 1. I have meant the interest of the defendant No. 2, his minor son, to be also included in the former's share.

17. In this view of the matter, the appeal has to be partly allowed. It is not necessary to go into the controversy whether the counter claim can be treated as the claim in a cross suit inasmuch as it is not necessary that the document in question i. e. the deed dated 10th June, 1968 should be cancelled as was sought for in the said counter-claim. Even without a counter claim, it is open to the court to hold and declare that the plaintiff is entitled to half the share in the property on the basis of the said sale deed dated 10th June, 1968 and the document is good only to the extent of one half and not to the full extent. There is no necessity that either the sale deed dated 10th June, 1968 or the sale deed dated 18th June, 1968 should be cancelled to the extent of half each. However, even without such cancellation and on the pleadings of the parties, it is open to the court to come to such a finding that the said two documents are good to the extent of half of the property each and not to the extent of full property and I have so held accordingly in the foregoing discussion.

18. The judgment and decree of the lower appellate court is accordingly modified. It is held that the plaintiff is entitled to half the property in question on the basis of the sale deed dated 10th June, 1968. The defendant No. 5 is entitled to the remaining half of the said property on the basis of the sale deed dated 18th June, 1968. Both the parties are entitled to the joint possession over the said house. I do not think that the plaintiff should have any decree for mesne profits or for rents in this suit. It is not known as to what is the extent of the property in actual possession of the defendant No. 5 and what is the extent of the portion in the possession of the tenant. The equities between the parties in these matters can be better adjusted in any separate action which may be taken by the parties on the basis of the respective rights of the parties as have been adjudicated above. In the circumstances of the case, the parties shall bear their own costs throughout the litigation.


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