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Akura Khatei Vs. Harihar Panda - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 262 of 1969
Judge
Reported inAIR1973Ori185; 39(1973)CLT213
ActsTransfer of Property Act, 1882 - Sections 118
AppellantAkura Khatei
RespondentHarihar Panda
Appellant AdvocateR.C. Patnaik and ;A.K. Misra, Advs.
Respondent AdvocateB.K. Pal, ;B. Pal and ;A. Mohanty, Advs.
DispositionAppeal dismissed
Cases ReferredHaramani v. Bauri
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the short question for consideration is as to whether the document (ext. b) can be taken as a deed of exchange so as to provide the consideration for the sale deed under ext. a. mr. patnaik for the appellant contends that the finding of the appellate court that ext. b was outcome of an arrangement of exchange and the plaintiff's wife was a name-lender for the plaintiff under ext. b are conclusions reached without evidence. he relies upon the feature that if the plaintiff's wife was a mere name-lender she would not have been present at the time of execution of the document and he also relies on the evidence of d. w. 2 --the common scribe -- who in cross-examination stated--'i scribed deed (ext. b) as per the instructions of the vendor and the vendee.'the features indicated by mr......
Judgment:

R.N. Misra, J.

1. The plaintiff is In appeal against the reversing decision of the learned Subordinate Judge of Bhuba-neswar in a suit for setting aside a registered document executed by the plaintiff in favour of the defendant on 20th of June, 1964, in regard to the disputed property: for declaration of title and recovery of possession of the suit property.

2. The disputed property is a little less than 3 decimals of land out of plot. No. 1888 in khata No. 626. According to the plaintiff being in need of money, he agreed to execute a usufructuary mortgage in favour of the defendant and on that security to incur a loan. The defendant had lands contiguous to the disputed property and he expressed the desire to purchase it. As the plaintiff did not agree it was decided that a usufructuary mortgage would be executed and a loan of Rs. 75/- would be advanced by the defendant to the plaintiff. The defendant brought the plaintiff to Bhubaneswar, got a document scribed by the deed-writer and under the impression that the plaintiff was executing a registered mortgage as agreed, the plaintiff executed the document. A few months after, the plaintiff repaid the loan of Rs. 75/- and demanded return of the security bond. The defendant did not do so and ultimately the plaintiff came to know that the document which he had executed was not a security bond but a sale deed. He filed the suit for cancellation of the document on the aforesaid allegation on 26-7-1966.

3. The defendant contended that the sale was genuine and was brought about after due negotiation. In fact parties negotiated upon an exchange and on the same day when the impugned document was taken, the defendant also executed a sale deed in the name of the wife of the plaintiff as per his desire. The exchange was the real consideration.

4. The learned trial Judge found Ext. A to he genuine document yet he decreed the suit because hp found that the two transferees under Exts. A and B were not the same persons and as such Ext. B could not be taken as a document of exchange under Section 118 of the Transfer of Property Act. He, therefore found that there was no consideration for Ext. A and accordingly title could not be conveyed under the document.

5. The learned appellate Judge on the other hand, came to find that it was a case of real exchange and the wife was a name-lender for the plaintiff under Ext. B. He accordingly upheld the transaction and reversed the decree of the trial Court. The plaintiff is in appeal against, this reversing decree.

6. The short Question for consideration is as to whether the document (Ext. B) can be taken as a deed of exchange so as to provide the consideration for the sale deed under Ext. A. Mr. Patnaik for the appellant contends that the finding of the appellate Court that Ext. B was outcome of an arrangement of exchange and the plaintiff's wife was a name-lender for the plaintiff under Ext. B are conclusions reached without evidence. He relies upon the feature that if the plaintiff's wife was a mere name-lender she would not have been present at the time of execution of the document and he also relies on the evidence of D. W. 2 --the common scribe -- who in cross-examination stated--

'I scribed deed (Ext. B) as per the Instructions of the vendor and the vendee.'

The features Indicated by Mr. Patnaik cannot justify reversal of the conclusion of the lower appellate Court. The learned appellate Judge has taken into account the features appearing in the case. He has also relied upon the evidence of witnesses. It is true the Common scribe has stated as extracted above. But he obviously made no distinction between the husband and the wife when he referred to the vendee. No clear statement has been made by D. W. 2 that it was the plaintiff's wife who instructed him to write out the document. The fact that the two documents were taken on the same day adds corroborative support to the case of the defendant that he had executed the document in favour of the plaintiff but as the plaintiff desired the name of his wife was put in the document and she worked as a name-lender only. In the case of Haramani v. Bauri, AIR 1970 Orissa 203 in a similar case, I held that where the husband the real owner of a property exchanged the property and obtained another property in the name of his wife, who was a benamidar whether the property so received was in the name of the husband or wife made no difference for the purpose of Section 118 and it must be held that it was a deed of exchange. On the facts of this case that conclusion has been reached by the lower appellate Court. I do not think in second appeal. I can take a different view of the matter and reach a different conclusion.

7. The appeal fails and is dismissed. In the facts of the case, I direct both parties to bear their own costs.


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