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Bhismadev Taria and anr. Vs. Radhakishan Agarwalla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 73 of 1964
Judge
Reported inAIR1968Ori230
ActsMuhammadan Law; Limitation Act, 1908 - Schedule - Articles 142 and 144; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; Transfer of Property Act, 1882 - Sections 44
AppellantBhismadev Taria and anr.
RespondentRadhakishan Agarwalla and ors.
Appellant AdvocateB.K. Pal and ;R.C. Misra, Advs.
Respondent AdvocateN.V. Ramdas, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredBhupendra v. Rajeswar
Excerpt:
.....nos. 6 and 7 as well as defendants nos. 4 to 11 under the muhammadan law succeeded to the suit property on the death of habibulla in well-defined interests, they were tenants in common in respect of it. 4 and 5 not being legal guardians of the propertyof the respective minors, at best, they can be deemed to be only de facto guardians without any power to effect transfer of their property. 6 to 11 with well-defined shares. the transposition here was allowed on the application of the original plaintiff as well as defendants nos. the principle is well settled that if there is a technical objection to passing a decree, the defect could be remedied by transposing the pro forma defendants as plaintiffs and such a course should always be adopted where it is necessary for a complete..........this appeal against a confirming judgment, one habibulla khan was the admitted owner of the suit property. defendants nos. 4 to 11 are the descendants of habibulla. habibulla entered into an agreement dated 19-5-1947 (ext. d) with defendant no. 1 to sell the suit property for rs. 4,300 and received an advance of rs. 100, but before execution of the sale deed and receipt of the balance of the consideration, he died in june, 1948. defendants nos. 4 to 11, his heirs served a notice (ext. a) on defendant no. 1 on 30-9-48 offering to execute the sale deed on payment of the balance of the consideration within seven days.defendant no. 1 by his reply (ext. a/1) claimed that he had advanced rs. 1,400 to habibulla and expressed his willingness to pay the balance of the consideration on.....
Judgment:

A. Misra, J.

1. Defendants Nos. 2 and 3 have preferred this appeal against a confirming judgment, One Habibulla Khan was the admitted owner of the suit property. Defendants Nos. 4 to 11 are the descendants of Habibulla. Habibulla entered into an agreement dated 19-5-1947 (Ext. D) with defendant No. 1 to sell the suit property for Rs. 4,300 and received an advance of Rs. 100, but before execution of the sale deed and receipt of the balance of the consideration, he died in June, 1948. Defendants Nos. 4 to 11, his heirs served a notice (Ext. A) on defendant No. 1 on 30-9-48 offering to execute the sale deed on payment of the balance of the consideration within seven days.

Defendant No. 1 by his reply (Ext. A/1) claimed that he had advanced Rs. 1,400 to Habibulla and expressed his willingness to pay the balance of the consideration on execution of the sale deed. Ultimately defendant No. 4 for self and as guardian of defendants Nos. 6 and 7 and defendant No. 5 for self and as guardian of defendants Nos. 8 to 11 sold the suit property to the plaintiff by a registered sale deed (Ext. 3) on 10-11-48 for a consideration of Rs. 4,000. Defendants Nos. 2 and 3 are sons of defendant No. 1. Plaintiff filed T. S. No. 51/49 on 8-9-49 impleading defendants Nos. 1 to 3 as well as the heirs of Habibulla (defendants Nos. 4 to 11) praying for a declaration of title and recovery of possession of the suit property. Defendant No. 1 resisted the suit on the plea of part performance and defendants Nos. 2 and 3 in their written statement pleaded that plaintiff not having acquired any title is not entitled to the reliefs claimed.

During the pendency of the suit, a compromise was entered into between defenant No. 1 and the plaintiff on 3-10-50 according to the terms contained in the petition of compromise (Ext. 4), and the suit was decreed on compromise. Thereafter defendants Nos. 2 and 3 filed T. S. No. 13/ 53 for a declaration that they were not bound by the compromise decree. That suit terminated in their favour and as per the judgment dated 8-10-55 (Ext. 1) it was held that they were not bound by the aforementioned compromise.

After disposal of that suit, a miscellaneous case was started at the instance of plaintiff for restoration of T. S. 51/49 to the stage at which it was on the date of the compromise decree. This miscellaneous case was allowed on 13-3-62. Thereafter the trial Court restored T. S. No. 51/49 to the stage, as stated above, and after hearing decreed the suit against defendant No. 1 on compromise, on contest against defendant No. 2 and ex parte against defendants 3 and 4 to 11 in terms of the compromise. Plaintiff's right over the suit house as co-owner with defendants Nos. 6 to 11 was declared and he was held entitled to evict defendants Nos. 1 to 3 therefrom.

The aforesaid decree of the trial Court was passed on the findings; (1) that the sale deed (Ext. 3) executed by defendants Nos. 4 to 11 is not valid to the extent of interest of defendants Nos. 6 to 11; (2) that plaintiff as a consequence is a co-owner of the property with defendants Nos. 6 to 11; (3) that defendants Nos. 2 and 3 are mere trespassers not having been inducted into the suit house at any time by the original owner; and (4) that defendant No. 1 who had originally been inducted as a tenant became a trespasser after he denied the title of the landlord by his reply (Ext. A/1) dated 8-10-49.

2. Defendants Nos. 2 and 3 preferred an appeal against the judgment and decree of the trial Court. During the pendency of the appeal, plaintiff-respondent as well as defendants Nos. 4 to 11, the heirs of Habibulla filed applications for transposing defendants Nos. 4 to 11 as co-plaintiffs. This was opposed by defendants Nos. 2 and 3. The lower appellate Court after hearing the parties, while disposing of the appeal, allowed the prayer for transposition of defendants Nos. 6 to 11 as co-plaintiffs and directed amendment of the plaint accordingly. It dismissed the appeal and confirmed the judgment and decree of the trial Court.

3. The judgments of the Courts below are assailed by learned counsel for appellants on the following grounds; (1) that Ext. 3 being void, plaintiff No. 1 cannot claim to have acquired any right, title or interest in the suit property; (2) assuming that plaintiff No. 1 can be said to have validly acquired the interest of defendants Nos. 4 and 5 in the suit property, he will be entitled only to joint possession of the property along with defendants Nos. 1 to 3, who cannot be treated as trespassers; (3) that plaintiff No. 1 is not entitled to joint possession of the property as the suit is not so framed; and (4) that the lower appellate Court erred in allowing transposition of defendants Nos. 6 to 11 as co-plaintiff as thereby the character of the suit has been affected, and in any case when such transposition was allowed, defendants Nos. 2 and 3 should have been given an opportunity to file additional written statement and adduce additional evidence, if any, before disposal of the suit.

4. The facts which have not been challenged or are no longer available for challenge are that Habibulla Khan the common ancestor of defendants Nos. 4 to 11 was the owner of the suit house. Defendant No. 1 father of defendants Nos. 2 and 3 had been inducted by him as a tenant into the suit property. Habibulla entered into an agreement (Ext. D) to sell the suit property to defendant No. 1 on 19-5-1947, but died before execution of any sale deed. Though defendants Nos. 4 to 11, his heirs offered to execute the sale deed on payment of the balance of the consideration, the transaction did not materialise as there was a difference regarding the amount which defendant No. 1 claimed to have advanced to Habibulla. Ultimately defendants Nos. 4 and 5 for self and acting as guardians of defendants Nos. 6 to 11 executed Ext. 3 in favour of plaintiff on 10-11-48 conveying the suit property and on the basis of the title acquired under Ext. 3 plaintiff instituted the suit.

5. The first contention of learned counsel for appellants is that the sale under Ext. 3 being void, the original plaintiff cannot be said to have acquired any title thereunder, and as such the suit is liable to be dismissed Defendants Nos. 4, 6 and 7 are descendants of late Habibulla through his first wife, while defendant No. 5 is the second wife of Habibulla and defendants Nos. 8 to 11 are his issues through defendant No. 5. Defendants Nos. 6 and 7 as well as defendants Nos. 8 to 11 are minors. It is contended and is not disputed that defendant No. 4 is not the legal guardian of the property of his minor sisters (defendants Nos. 6 and 7) and defendant No. 5 is not the legal guardian of the property of her minor daughters and sons (defendants Nos. 8 to 11). As defendants Nos. 4 to 11 under the Muhammadan Law succeeded to the suit property on the death of Habibulla in well-defined interests, they were tenants in common in respect of it. Defendants Nos. 4 and 5 not being legal guardians of the propertyof the respective minors, at best, they can be deemed to be only de facto guardians without any power to effect transfer of their property. On this ground it is contended mat the alienation under Ext. 3 is entirely void.

I am unable to agree with this contention. Admittedly defendants Nos. 4 and 5 who are majors are co-tenants along with defendants Nos. 6 to 11 with well-defined shares. There can be no legal bar for the major co-owners to validly alienate their interest. In the present case, under Ext. 3 defendants Nos. 4 and 5 have not only alienated their interests, but also have purported to alienate the interest of defendants Nos. 6 to 11. A similar question arose in the decision reported in 45 Ind App 73 = (AIR 1918 PC 11). There the validity of an alienation by a Muhammadan widow purporting to act on behalf of herself and as guardian of her two minor children of certain shares inherited by them was questioned. Their Lordships o the Privy Council held that a de facto guardian has no power to convey the right or interest of the minors in immoveable property, and in such a case the alienation to the extent of the interest or shares of the minors will be invalid while it will convey a valid title so far as the de facto guardian's share is concerned. This being the legal position, the contention of the appellants that the sale under Ext. 3 is void and invalid in its entirety cannot be sustained. As has been held by the Courts below, under Ext. 3 the title of defendants Nos. 4 and 5 who were competent to transfer their shares has passed to the plaintiff under Ext. 3, though the sale to the extent of the shares of the minor defendants Nos. 6 to 11 is invalid.

6. The next contention of learned counsel for appellants is that even assuming that Ext. 3 conveys a valid title to the plaintiff regarding the shares of defendants Nos. 4 and 5 as defendants Nos. 1 to 3 are not trespassers, the original plaintiff will be entitled only to joint possession of the property to the extent of shares of defendants Nos. 4 and 5 with defendants Nos. 1 to 3. The findings of the Courts below which are not challenged are that before Habibulla entered into the agreement to sell, defendant No. I alone had been inducted as a tenant into the suit house. Defendants Nos. 2 and 3 are sons of defendant No. 1. The suit was decreed on compromise against defendant No. 1. So the question of plaintiff coming into joint possession with defendant No. 1 does not arise. So far as defendants Nos. 2 and 3 are concerned, they had not been inducted as tenants and they have no other legal right or title to be in possession. When the original plaintiff is found to have acquired a valid title at least to the extent of interest of defendants Nos. 4 and 5, he is entitled to joint possession with persons who have legal title to the residue of the interest, i.e. original defendants Nos. 6 to 11 who have been subsequentlytransposed as co-plaintiffs and the question of original plaintiff being entitled to joint possession with defendants Nos. 1 to 3 or any of them does not arise. This contention, therefore, fails.

7. The third contention for appellants is that a co-sharer can file a suit for ejectment of trespassers from the entirety of the suit property, but it should be for the benefit of the whole body of co-sharers or in the alternative he can maintain a suit for ejectment from his own share and for joint possession. In either case, it is contended that a co-sharer will be entitled to relief only in a properly constituted suit. It is argued that in the present case the suit as framed was not for ejectment of defendants Nos. 2 and 3 for the benefit of the entire body of co-sharers nor the suit has been framed for joint possession to the extent of interest validly acquired.

In support of this contention, reliance has been placed on a decision reported in AIR 1951 Ori 359. No doubt, originally the suit as framed was on the basis of title to the entire property acquired under Ext, 3. Subsequently, however, during the pendency of the litigation, defendants Nos. 6 to 11 have been allowed to be transposed as co-plaintiffs on the application of the original plaintiff and these defendants, because it was found that the original plaintiff validly acquired only the interest of defendants Nos. 4 and 5, while the title of defendants Nos. 6 to 11 continued to remain unaffected. After this transposition and amendment of the plaint, the question of any further defect in the frame of the suit sought to be relied upon does not exist. The Courts below have decreed the suit allowing joint possession of the original plaintiff to the extent of shares validly acquired by him with the transposed plaintiffs (original defendants Nos. 6 to 11) who own the balance of the shares. Thus, after allowing of transposition of defendants Nos. 6 to 11, the relief of ejectment was for the benefit of the entire body of co-sharers. In this view of the matter, this contention of appellants cannot prevail.

8. Finally, it is urged that the lower appellate Court erred in allowing transposition of defendants Nos. 6 to 11 as plaintiffs which had the effect of changing the character of the suit and secondly when such transposition was allowed, an opportunity should have been given to defendants Nos. 2 and 3 to file an additional written statement and adduce additional evidence, if any, in support of the defences available to them. It is not disputed that under Order 1, Rule 10 Civil P. C. the Court has ample power to transfer a defendant to the category of plaintiff to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. The transposition here was allowed on the application of the original plaintiff as well as defendants Nos. 6 to 11 after overruling the objections raised by defendants Nos. 2and 3. The point is whether by allowing this transposition, the character or the suit has materially changed or defendants Nos. 2 and 3 deprived of any accrued right.

The nature of the suit mainly is one for ejectment of defendants Nos. 1 to 3 on the basis of a title which originally belonged to Habibulla, and thereafter devolved on his heirs defendants Nos. 4 to 11. The original, plaintiff was a purchaser from defendants Nos. 4 to 11. It is found that the sale to the extent of shares of defendants Nos. 4 and 5 was valid and the sale to the extent of shares of defendants Nos. 6 to 11 was not valid as the de facto guardian had no right to transfer the rights of the minors. Thus, the original plaintiff was competent to eject defendants Nos. 1 to 3 even as a co-sharer provided it was for the benefit of the entire body of co-sharers.

By this transposition, instead of seeking ejectment by the original plaintiff alone, the ejectment was sought on behalf of the entire body of co-sharers. The character of the suit, that is, one for ejectment of defendants Nos. 1 to 3 was not in any way altered as a result of this transposition, the only effect being that instead of the relief being sought in favour of one the relief was converted to one on behalf of the entire body of co-sharers. Therefore the contention that the character of the suit changed has no merit. The principle is well settled that if there is a technical objection to passing a decree, the defect could be remedied by transposing the pro forma defendants as plaintiffs and such a course should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of the proceedings, vide 58 Ind App 228 = (AIR 1931 PC 162) in Bhupendra v. Rajeswar. The Supreme Court in the decision reported in AIR 1965 SC 1812, Maddanappa v. Chandramma, reaffirmed this principle and observed as follows :

'The power under this provision (Order 1, Rule 10(2), Civil P. C.) is exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupendra v. Rajeswar, 58 Ind App 228, the power ought to be exercised by a Court for doing complete justice between the parties'.

The title on the basis of which ejectment is sought is referable to the admitted title of defendants Nos. 4 to 11, out of which, the original plaintiff acquired the interest of defendants Nos. 4 and 5, and therefore, to do complete justice and prevent multiplicity of proceedings it was open to the Court to allow the prayer for transposition and grant relief as has been done. Thus I also do not find any, merit in this contention.

9. In the result, the appeal fails and isdismissed with costs.


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