A.N. Varma, J.
1. This is a defendant's second appeal arising out of a suit for cancellation of a sale deed dated 28-4-1961, executed by one Hira Lal (defendant third set in the suit) in favour of the defendant appellant (arrayed as defendant No. 1 in the suit as defendant first set) to the extent of the 4/5th share in the shop mentioned in the plaint and in respect of which the aforesaid sale deed was executed.
2. The trial court dismissed the plaintiffs' suit. The plaintiffs appealed. The lower appellate court set aside the judgment and decree of the trial court and decreed the plaintiffs-respondents' suit for cancellation of the sale deed as well as for recovery of arrears of rent.
3. Briefly stated, the plaint case was that one Madho Prasad had five sons, namely, Sheo Prasad, Sheo Sagar, Ram Sagar, Ganga Sagar and Dal Sagar. Defendant's Nos. 10 and 11 are Ganga Sagar and Dal Sagar aforesaid. The shop in dispute was the ancestral property of defendants Nos. 2 to 12. According to the pedigree mentioned above, defendant third set, namely. Hira Lal had only 1/5th share in the shop while the remaining 4/5 share belonged to the defendantsecond set, namely defendants Nos. 2 to 11 aforesaid. Defendants Nos. 2 to 12 were members of a Joint Hindu Family, There was no separation amongst them. Madho Prasad was the Karta of the Joint Hindu Family in his lifetime. After his death, Ram Sagar became the Karta. Thereafter, Ganga Sagar became the Karta. Hira Lal was junior member of the family and had no right to sell the entire shop to the defendant No. 1 (the appellant.). The sale-deed executed by defendant No. 12 in favour of defendant-appellant was thus void and illegal to the extent beyond 1/5th share of Hira Lal. The defendants Nos. 2 to 11 transferred their entire 4/5th share in the shop in dispute to the plaintiff as a result of which the plaintiff became an owner of 4/5th share in the disputed shop. The sale deed executed by Hira Lal in favour of the appellant was not binding on the plaintiffs and was liable to be cancelled to the extent of their 4/5th share.
4. The defendant No. 1 i, e. the defendant-appellant had taken possession of the disputed shop as a tenant in pursuance of an allotment order in the year 1955. He used to pay monthly rent of Rs. 50/-. After execution of the sale deed in favour of the plaintiff, they demanded from the appellant their 4/5th share in the monthly rental from the defendant-appellant. It was then that the plaintiffs came to know that the defendant No. 1 had got the sale deed executed by Hira Lal defendant No. 2 on 28-4-1961 in respect of the entire shop. On the basis of that sale deed, the appellant claimed himself to be the owner of the entire shop and asserted that he was not liable to pay any rent as he was in possession of the shop in dispute as the owner thereof.
5. On the above allegations, the plaintiffs instituted the suit for cancellation of the sale deed dated 28-4-1961 to the extent of their 4/5th share and also for recovery of rent proportionate to their share.
6. The suit was contested by the appellant on the allegations that defendant No. 12 Hira Lal was the sole owner of the disputed shop and he had full right to sell the same to defendant No. 1. The plaintiffs or their predecessor-in-interest had no right, title or interest to the shop. The defendant No. 1 was not liable to pay any arrears of rent as claimed by the plaintiffs. Defendants 2nd and third set did not constitute any Joint Hindu Family. The defendantsecond set (defendants Nos. 2 to 11) were not in possession of the disputed shop within 12 years, and hence the suit was barred by time. In the municipal records, Hira Lal defendant No. 12 alone was recorded as the owner and as such the defendant No. 1 was a bona fide purchaser for value without notice of the alleged title of others. The plaintiffs' suit was barred by estoppel and acquiescence. The suit was liable to be dismissed with costs.
7. On the pleadings of the parties, various issues were framed by the trial court.
8. The trial court in the first instance dismissed the plaintiffs' suit by its judgment and order dated 13-9-65. It held that the defendant No. 1 was not a bona fide purchaser for value and without notice of the title of the defendants second set. It further held that the defendant second set had 475th share in the shop which they had lawfully sold to the plaintiff. The defendant No. 1 appellant preferred an appeal which was allowed and the case was remanded to the trial court by judgment of the appellate court dated 19-10-1967 for being disposed of afresh after framing some additional issues. After the remand, when the case came up for hearing before the learned Munsif of Ballia, he framed six additional issues as issues Nos. 6 to 11. The learned Munsif aforesaid dismissed the suit by the impugned order dated 30-3-1968. He held that Hira Lal defendant No. 12 had only 1/5th share and that the share of defendants second set was 4/5th. It found all the issues in favour of plaintiffs except the issues relating to the question whether defendant No. 1 was a bona fide purchaser for value without notice of title of the defendants second set in the shop in dispute, The result was that the suit of the plaintiffs was dismissed by the trial court.
9. The plaintiffs preferred an appeal which came up for hearing before Sri Prahlad Narain, Second Additional Civil & Sessions Judge, Ballia. By his judgment dated 3-7-1969 he remanded the case for a fresh trial with certain directions mentioned in his judgment. The defendant No. 1 appealed against that order of remand to this Court. This Court (vide its judgment and order 12-2-1970) allowed the appeal, set aside the judgment and order of the lower appellate court and directed it to dispose of the appeal on merits on the pleadings as they stood. This Court observed that the parties knew the cases of each otherand they had led evidence on that basis This Court further observed that there was no need for remanding the case to the trial court, When the matter went back to the lower appellate court, the teamed Temporary Civil & Sessions Judge by his judgment and decree dated 25-5-1973 allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit of the plaintiffs-respondents in the terms mentioned above.
10. Aggrieved by the decision of the lower appellate court, defendant No. 1 has filed this second appeal.
11. Learned counsel for the appellant submitted various points for my consideration which I shall deal with one by one.
12. His first submission was that the lower appellate court has erred in law in granting a decree for cancellation of the sale deed. The argument was that the suit for cancellation of the sale deed itself was misconceived. Learned counsel argued that under Section 31 of the Specific Relief Act, a suit for cancellation of the instrument could be instituted only by a person who is a party to that instrument and not by third parties. I find no substance in this argument. Section 31 of the Specific Relief Act, 1963 reads as follows :--
'When cancellation may be ordered -- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such office shall note on the copy of the instrument contained in his books the fact of its cancellation'.
13. A plain reading of the section makes it clear that any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left unchallenged may cause serious injury, may sue to have it adjudged void or voidable and the Court may in its discretion order the instrument to be cancelled.
14. In my judgment the provisions of the aforesaid section apply in terms to the facts of the present case. Theplaintiffs as owner of 4/5th share in the shop in dispute are clearly persons against whom the sale deed in question is void to the extent of the share of the defendants second set from whom the plaintiffs have purchased the property. By the sale deed, Hira Lal has purported to transfer the entire shop as if he was full owner thereof. Indeed defendant No. 1 as well as Hira Lal have both asserted that defendant No. 1 is the full owner of the shop in dispute. That being so, the plaintiffs are clearly persons who would justifiably have reasonable apprehension that if this sale deed is allowed to go unchallenged, it is bound to cast a shadow on their title and would be a source of serious injury to their rights. The plaintiffs were, therefore, entitled to have it adjudged void and the Court was also right in exercising its discretion in view of the facts and circumstances of the present case in ordering the cancellation of the sale deed to the extent of 4/5th share belonging to the plaintiff-respondents, The lower appellate court was, therefore, clearly justified and it exercised discretion legally and properly in directing the cancellation of the sale deed after it had held the same as void to the extent of 4/5th share.
15. I find absolutely no warrant for holding that an instrument can be ordered to be cancelled by a court adjudging that instrument to be void only at the instance of a party to that instrument.
16. The language of Section 31 of the aforesaid Act is clear and unambiguous and there is nothing in it which may justify giving to it the restricted interpretation which the learned counsel for the appellant contended for. Section 31 has been expressed in the widest terms. In my judgment, an instrument can be void or voidable even against persons who are not directly parties to it. Where, as here, one of the members of a family or co-sharers of a property purports to transfer the whole of the rights in a property belonging to a family or to a body of persons, the other members and persons having a right, title or interest in that property are clearly persons against whom such a transaction would be void or voidable, even though they may not be parties to it. That being so, on the instrument being adjudged void, the Court may, in its discretion, order the instrument to be cancelled. In B. Rajgorhia v. Central Bank of India reported in (1972) 76 Cal WN 807 (858) it has been held that this section is availableto a person affected by an instrument even though he may not be a party to the instrument. To the same effect are the decisions reported in (1948) 52 Cal WN 389 (392) and AIR 1934 All 1071 (1072).
17. Learned counsel also submitted that, the plaintiffs were bound to seek a relief for possession also. There is no force in this argument. The shop is in tenancy of the appellant. The plaintiffs asked for their share of rent, which in my opinion, completely obviates the necessity for asking for possession.
18. Learned counsel for the appellant cited two decisions, (1) in the case of M. Pillai v. K. Pillai reported in AIR 1960 Mad 1 (FB) and (2) in the case of Niasha Ghose v. Kari Siddek Ali reported in AIR 1963 Assam 4, in support of his submission that a suit under S. 31 of the aforesaid Act could lie only at the instance of a person who is a party to the instrument which is sought to be adjudged void and cancelled. I have perused the two decisions and in my view neither of these two decisions supports the broad proposition which the learned counsel for the appellant has contended for. These cases have clearly held that the relief under Section 31 of the aforesaid Act could be granted only in respect of an instrument which was likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title. On the facts of these cases, the two High Courts held that title of the plaintiff was not in any way affected by the impugned instrument. These cases are, therefore, of no assistance to the appellant. Section 31 of the Specific Relief Act speaks both of void and voidable instrument, and in my judgment, on the facts of the present case, the plaintiffs were clearly entitled to urged that the sale deed in question was void to the extent of their 4/5th share and was liable to be declared void to the extent of their share. As the sale deed had been executed by one of the co-sharers purporting to transfer the entire shop in favour of the appellants, the plaintiffs could justifiably entertain an apprehension it would cause serious injury to their rights. I, therefore find no illegality in the decree passed by the lower appellate court adjudging the sale deed as void and in ordering its cancellation to the extent of the share of the plaintiffs.
19. Learned counsel for the appellant next submitted that the defendant-appellant was entitled to the benefit of Section 51 of T. P. Act. The lower appellate court as held that Section 51 of T. P. Act can have no application to the facts of the present case inasmuch as it is not a case where the defendant-appellant is being evicted from the shop in dispute. The lower appellate court has observed that appellant still is an owner of 1/5th share in the shop. I am in agreement with the view expressed by the lower appellate court on this aspect of the case. Assuming that the appellant has made some improvement in the property, in order to take the benefit of Section 51 of the aforesaid Act, various fact's pointed out by the lower appellate court have to be established before the appellant could claim the benefit of the alleged improvements. The lower appellate Court has rightly observed that inasmuch as the appellant is not being sought to be evicted from the shop in dispute, the question of his being paid the amount said to have been spent by him over the improvement did not arise. There is therefore no substance in this argument raised on behalf of the appellant.
20. The next argument of the learned counsel for the appellant was that the lower appellate court has misread the written statement of the appellant. The argument was that the lower appellate Court has wrongly assumed that the defendant-appellant had not denied the averment's made in the plaint.
21. Having heard learned counsel for the appellant I find no substance in this argument as well. The lower appellate court has observed under point No. 1 that the plaintiffs have made specific averments in paragraph 3 of the plaint as regards the disputed Kothri giving particulars of the plot numbers as well as block numbers and in reply there was a bald denial. The lower appellate court has observed that mere general denial of specific particulars given in the plaint was not sufficient. However nothing has turned on this stray observation of the lower appellate court inasmuch as the lower appellate court has considered the question on merits and has not disposed of the issues on the basis of merely a failure of the appellant to meet specific allegations made in the plaint. The lower appellate court has referred to the oral testimony of Ganga Sagar on this aspect of the matter, namely, that the shop in dispute was a portion of the three Kothris which had been sold to the three ladies by the sale deed of 1954. The lower appellate court has, therefore, decided this issue not on the basis of admission made by the defendant in the written statement, but onthe basis of the evidence on record. It has taken note of the fact that the evidence adduced by the plaintiff on the question whether the shop in dispute formed part of the three Kothris sold to the three ladies by the sale deeds of 1954 had not been rebutted by the defendant-appellant himself in evidence. It has observed that there was no documentary evidence on record to show that the disputed Kothri was acquired by Hira Lal and that it belonged to him exclusively. There is, therefore no substance in this point also urged on behalf of the defendant-appellant.
22. Learned counsel for the appellant next submitted that the lower appellate court has misread the evidence on record. However, learned counsel for the appellant was unable to point out even a single instance of any misreading. He referred to evidence of Ganga Sagar (P.W. 1) an extract of which has been quoted in the judgment of the lower appellate court but instead of being able to demonstrate any misreading by the lower appellate court of the testimony of Ganga Sagar learned counsel for the appellant made an attempt to argue that the lower appellate court has not drawn a correct inference from the testimony of Ganga Sagar. He failed in that also. However, it is not permissible for this Court to reappreciate the evidence. The finding of the lower appellate court could not be interfered with merely because this Court might be persuaded to come to a different conclusion on the evidence on record.
23. Learned counsel then submittedthat in the judgment dated 3-7-1969 SriPrahlad Narain, Additional Civil andSessions Judge, Ballia had made observations to the effect that the evidence ledby the plaintiff-respondents was inconsistent with the pleading contained in theplaint and that evidence led by the plaintiffs could not be taken into consideration without an amendment ofthe pleadings. Learned counsel contended that even after this, theplaintiffs did not get their plaintamended. The argument is clearly fallacious. Against the decision of SriPrahlad Narain the appellant himselfcame to this Court in a First AppealFrom Order. This Court while allowing the First Appeal From Order observed as follows :--
'I am however, of the opinion that a second amendment is not necessary. The parties fully knew what the disptes between them were and they led evidence. In the order under appeal, thelearned Civil Judge had directed that the pleadings of the parties should now be amended again. I do not think that this is called for. I, therefore, allow this appeal, set aside the order of remand and send back the case to the learned Additional Civil Judge, Ballia for decision of the appeal on merits on the material already on the record. Cost of this appeal shall abide the result'.
24. The above observations are a complete answer to the submission of the learned counsel for the appellant. Moreover, the judgment of Sri Prahlad Narain having been set aside by this Court, any observations made therein are of no avail.
25. Learned counsel for the appellant, lastly urged that the decree of the lower appellate court for arrears of rent is clearly unsustainable. He urged that the defendant-appellant had filed receipt's showing that the rent of the shop was only Rs. 25/- per month, whereas the lower appellate court has granted a decree to the plaintiff-respondent at the rate of Rs. 50/-. Learned counsel contended that the lower appellate court has granted a decree to the plaintiffs-respondents at the rate of Rs. 50/-without applying its mind to the question whether the rate of rent was Rupees 50/- or Rs. 25/-. Learned counsel invited my attention to the findings of the trial court on this aspect of the matter. The question has been considered under issue No. 3. The trial court placed reliance on receipts on the record which showed the rate as Rs. 25/- per mensem. The trial court went into this question specifically and arrived at the conclusion that the rate of rent was Rs. 25/- and not Rs. 50/- as alleged by the plaintiffs. The lower appellate court does not appear to have applied its mind at all to this question. The grievance of the learned counsel for the appellant appears to be justified on this score. In my judgment, the findings of the trial court that the rate of rent was Rs. 25A-per month was correct and fully justified by the evidence on record. To this extent this appeal is entitled to succeed.
26. I may add that the learned counsel for the appellant did not challenge the findings of the lower appellate court on the question whether the appellant was entitled to the protection of Section 41 of T. P. Act. Besides, I have found no error of law in that findings. The finding of the lower appellate court that the appellant is not entitled to the benefit of Section 41 of T. P. Act is affirmed.
27. The result of the aforesaid discussion is that the findings recorded by the lower appellate court on all the points are affirmed except that I hold the rate of the rent for the shop in dispute was Rs. 25/- and not Rs. 50/- per month.
28. In the result, the appeal partly succeeds. The judgment and decree of the lower appellate court are affirmed in all respects except that the decree for recovery of arrears of rent granted by the lower appellate court is reduced from Rs. 160/- to Rs. 80/-. In view of the divided success and failure of the parties they will bear their own costs.