1. This is a plaintiffs' appeal against the dismissal of their suit for recovery of 22.80 acres of land in dispute with mesne profits from defendants 1 to 8. The scope of the appeal has been very much narrowed down due to the developments after filing of the suit and therefore only the facts necessary for disposal of the appeal are stated hereinbelow. The genealogy of the plaintiffs' family and of the defendants' family which is not disputed is as follows:--
SEVAK NAYAK (Plff. No.1)
| | | | |
Prahiad (D.9) Dhruba (D.10) Akura (D.11) Udhaba (D.12) Pratap (plff. 2)
| | Chandramaleswar
Srikanta Srimanta @ Budha (minor)
| | | Dilli
Madhusudan Dilli Lokanath ___________|_________
(D.5) (adopted) D.6 | |
| (away) Ramkrishna Nilamadhab
Ramanuja D.3 D.1 D.2
Originally, there were two plaintiffs, namely, Sebak (plaintiff No. 1) and his son Pratap (plaintiff No. 2). This Sebak had 5 sons of whom plaintiff No. 2 was the youngest. His other four sons were arraigned as defendants 9, 10, 11 and 12 respectively. Plaintiffs 3, 4 and 5 are the grandsons of plaintiff No. 1 through his first two sons. Plaintiff No. 1 alleged that his first two sons (defendants 9 and 10) acted against the interest of their minor sons (plaintiffs 3, 4 and 5). By now, plaintiffs Nos. 3, 4 and 5, sons of defendants 9 and 10 have become major and they have backed out. Defendants Nos. 11 and 12, the third and the fourth sons of the plaintiff respectively supported the defence case. Now the plaintiff No. 1 is dead. So the sole plaintiff left in thefield is plaintiff No. 2, the last and the fifth son of plaintiff No. 1.
2. In short, the plaint case was that the plaintiff No. 1, to meet certain legal necessity of the family, borrowed different sums of money from defendant No. 8 who is a close relation of his. There were some differences over settlement of accounts and finally on 29-4-1963 it was agreed that the plaintiffs' family would sell their lands to the creditor measuring 22.80 acres for a sum of Rs. 50,000. Accordingly, a sale deed (Ext. N) was registered on 29-4-1963 in favour of defendants 1, 2, 3 and 4 but in that plaintiffs Nos. 1 and 2 did not join. But the next day, that is, 30-4-1963 these two plaintiffs executed a registered Swikar Patra (Ext. 4) acknowledging the sale.
The plaintiffs' case is that Ext. 4 is a fraudulent deed as they were persuaded to execute the same by defendants 6 and 7 (sons-in-law of plaintiff No. 1) on promise to pay him Rs. 10,000 within 10 days hence; but this is denied by the defendants. But as the promised amount was not paid, plaintiff No. 1 sent a registered letter on 7-6-1963 (Ext. 5) to defendants 6 and 7 demanding payment of the amount within one week of receipt of the letter failing which he would goto the Court for getting the sale deed as well as the acknowledgment deed cancelled. Defendant No. 8 filed a complaint case under Section 500, I.P.C. for that but plaintiff No. 1 was acquitted therein on 9-3-1965.
3. The contentions on behalf of the plaintiffs were that the sale deed dated 29-4-1963 ,(Ext. N) is invalid and not binding on them as the same was not supported by legal necessity and that the Swikar Patra dated 30-4-1963 (Ext. 4} is fraudulent, illegal and void andtherefore no title passed thereunder tothe defendants.
4. The defendants, inter alia, asserted that the sale deed and the Swikar Patra were genuine, for valid consideration and the suit is barred under Section 53A of the Transfer of Property Act. They also asserted that the suit has not been properly valued and proper court fee has not been paid.
5. The learned lower Court framed as many as 18 issues and held the material issues against the plaintiff and hence dismissed the suit in toto.
6. Mr. Mohanti, learned counsel for the sole plaintiff No. 2 -- appellant raised the following points:
(1) Under Ext. N the sale deed dated 29-4-1963, the title of plaintiffs Nos. 1 and 2 over the suit lands does not pass to the defendants and as such their share is not affected;
(2) The Swikar Patra (Ext. 4) is merely an acknowledgment and therefore cannot convey title and create interest in favour of the defendants nor the shares of plaintiffs 1 and 2;
(3) That he is at least entitled to one-fifth as his own share as well as 1/25th share of his deceased father under Section 44 of the Transfer of Property Act; and
(4) That the finding of the learned lower Court that the suit is barred under Section 53A of the Transfer of Property Act is not sustainable.
7. Points 1 and 2:-- Ext. N is styled as a sale deed and the value of the property has been mentioned as fifty thousand rupees. The extent of lands has been described to be 22,80 acres. Ext. 4 is styled as Swikar Patra executed by plaintiffs 1 and 2 in favour of defendants Nos. 1, 2 and 3 and another the next day. This unmistakably refers to theprior sale deed executed the day before. The valuation of the document, and the property are identical. The grounds for executing Ext. 4 are that they were absent and so they could not execute the sale deed for which they were going to 'agree and ratify the previous sale deed'. Question arises whether this acknowledgment deed can be viewed to convey the interest of plaintiffs 1 and 2 over the suit properties. It has been held in the case of Thayyil Mammo v. Kottiath Ramunni (AIR 1966 SC 337) that (at pp. 339, 340) :--
'The nomenclature of a deed and the amount of stamp paid on it, though relevant, are not conclusive on the question of construction.
A registered instrument though styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration, may operate as a conveyance, if it clearly discloses an intention to effect a transfer.'
Thus the crux of the question is the intention of the parties. The proximity of time within which the acknowledgment deed was executed, the clear reference in the acknowledgment deed to the sale deed with identical terms regarding the amount and the extent of the lands conveyed together with the fact of registration -- all indicate that the intention of the parties was that they were going to convey their interest in the suit properties in favour of the defendants and not that it was a fake document. The alleged promise of defendants 6 and 7 to pay Rs. 10,000 is conspicuously absent in it. Thus whatever interest the plaintiffs 1 and 2 had in the disputed lands, that had passed on to the defendants and what is more they are in possession thereof all through. These two points are, therefore, decided against the appellants.
8. Points 3 and 4:-- Section 44 of the T. P. Act postulates-
'where one of two or more co-owners of immovable property legally competent in that behalf, transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting,at the date of the transfer, the share or interest so transferred. XX XX xx
But since we have already held that the interest of plaintiffs 1 and 2 had already passed to the defendants who were in possession of the lands, Section 44 of the T. P. Act has no application. This point is accordingly answered against the appellants.
Section 53 of the T. P. Act lays down the law regarding part-performance of contract. In this case, there is no part-performance of the contract but a full performance thereof and the entire right, title and interest of the plaintiffs had passed to the defendants by virtue of the sale and the subsequently acknowledged registered Swikar Patra. There is no averment either in the sale deed or in the acknowledgment deed that the plaintiffs will get Rs. 10,000 from any of the defendants. Law is well settled that Section 53A of the T. P. Act can, be used as a shield but not as a sword. So when the plaintiffs are not in possession, their claim can be successfully resisted by invoking the provisions of Section 53A which the defendants have done.
As such, this is also decided against the applicant.
9. No other point having been raised and all the questions raised having been answered against the appellants, the appeal fails and is hereby dismissed with costs.
R.N. Misra, J.