R.N. Misra, J.
1. This is a plaintiff's appeal against a reversing judgment of the lower appellate Court in a suit for partition and allotment of half share and for declaration that the sale deed dated 11-7-61 by Uchhab Padhan is void and for certain other ancillary reliefs,
2. One Kela Padhan had 3 sons --Rama, Gobinda and Uchhab. The fourth wife of Uchhab is Bauri, the defendant, and the step-daughter of Bauri is Haramani, the plaintiff. Uchhab was ill and bed-ridden and 2 days before his death, according to the plaintiff, he was carried to the Sub-Registrar's Office and the impugned document was taken from him. The allegation of the plaintiff is that this document was fraudulent and without consideration and title to the Ka schedule land could not pass under the document. After Uchhab's death there was dispute which ultimately led to the filing of the present suit.
3. The defence taken in the suit was that the plaintiff was not the daughter of Uchhab and she was really the daughter of Rama, the eldest son of Kela. It was further stated that the defendant had purchased the Kha schedule land of 11 decimals as a purchase out of her Stridhan assets, and the Ka schedule land under the impugned document conveyed to her a valid title to the property and she has been in possession of both the items of property in her own right.
4. The trial Court came to find that the plaintiff was the daughter of Uchhab; the sale of Ka schedule land was not vitiated by fraud, but being without consideration was invalid; the sale deed Ext. B for the Kha schedule land dated 3-12-54 was in fact an exchange and it was Uchhab's property which had been given in exchange and Uchhab had obtained the impugned document Ext. B in the name of his fourth wife, the defendant. It was further found that Ext. E was not binding on the parties. Therefore, a decree for partition of half share, as claimed, was granted.
5. On an appeal by the defendant, the lower appellate court, took the view that the plaintiff was the daughter of Uchhab; the sale deed Ext. E was without consideration but it was not really a deed of sale, but a deed of gift. Similarly, while it found that Ext. B was not a sale deed, it came to find that it was not a deed of exchange as it did not come within the definition of Section 118 of the Transfer of Property Act. This view of the lower appellate court was based on the footing that while Uchhab parted with the property in exchange the acquisition was in the name of not Uchhab, but the defendant. Since the parties were not the same it could not amount to a deed of exchange. The lower Appellate Court, on the finding that both the documents were without consideration, came to hold that they were really deeds of gift; under these documents the defendant acquired full title to the disputed property and as such there was no scope for a decree for partition at the instance of the plaintiff. On these findings, the suit of the plaintiff was directed to be dismissed. It is against this appellate judgment that the present Second Appeal has been filed.
6. Three questions pertinently arise for determination in this Second Appeal and Mr. Pal presses all of them. They are:--
(1) It has to be found out as to whether in law evidence can be led to show that what were sale deeds prima facie were really deeds of gift and no consideration was meant to pass under such documents ?
(2) Whether in view of the specific stand taken in the written statement that these two documents were sale deeds, it was open to the defendant to contend at the trial, and to the Courts to find, that these two documents Exts. B and E were really gift deeds ?
(3) Whether in law the lower Appellate, Court was correct in holding that Ext. B was not a deed of exchange
7. Both the documents Exts. B and E specifically purport to be for consideration and have all the features of sale deeds. Once the documents have been said to be for consideration, it would be difficult at the trial to allow the parties to contend that the documents really were otherwise and the parties to the documents would not be permitted to take a different stand. There is support to this view from the case of AIR 1955 Bom 122. This very case went up to the Supreme Court in appeal and the appellate judgment is reported in AIR 1958 SC 448 (Hira Devi v. Official Assignee, Bombay). Mr. Justice Gajendragadkar, as he then was, speaking for the Court adopted the view of the Bombay High Court, but limited it to the parties of the deed and indicated that if the dispute arose between a stranger and a party to the document or one claiming through the party, parol evidence would be admissible to show that the deed is not what it purports to be.
In the present case, the defendant is a party to the documents and the plaintiff claims through her father who was either the donor or the vendor under the documents. In the circumstances, evidence cannot be led to show that the documents are what they do not purport to be. Mr. Pal's first contention, therefore must succeed. In the Courts below evidence could not have been led to show that these two documents were not sale deeds as they purport to be.
8. Coming to the second question, the point for decision is that when the defendant takes the stand in her pleading that both the documents are sale deeds and supports such a pleading at the trial by giving evidence would it be open to the Courts to say that when there is failure of consideration the documents would be treated to be the deeds of gift. If Courts are free to take a view contrary to the case made out by the parties, the result would definitely lead to uncertainty on the basis that Courts would, be free to make out a different case from what the parties contend for. I would not accept Mr. Mohanty's contention to the contrary and would accept Mr. Pal's submissions that in view of the specific pleading in the written statement it was not open to the lower Courts to take the view that the sale deeds in question were actually deeds of gift.
I would, therefore, uphold Mr. Pal's contention that it was not open to the lower appellate court to hold that the sale deeds were actually deeds of gift. The decision reported in (1938) 4 Cut LT 89 does not clearly lay down a proposition as has been adopted by the lower appellate Court. Agarwala, J., while disposing of the Second Appeal indicated in the facts of that case that on the failure of consideration it must be presumed to be a deed of gift. The donees under the document in the case before Agarwala, J., were relations and on the evidence available the Court came to hold that there must have been an intention to benefit the relations under the documents. It is not available from the judgment as to what were the specific pleadings of the parties in the case. Therefore, it would be difficult for me to follow the said decision as laying down the rule that wherever there is failure of consideration Under a sale deed it must be treated to be a deed of gift.
9. Coming to the third question as to whether Ext. B can be taken to be a deed of exchange, the view taken by the lower appellate Court seems to be peculiar. The stand taken was and has been found to be that the husband exchanged property and obtained property in exchange in the name of his wife the defendant. On the findings that the defendant was a benamidar and the husband was the real owner, there could have been no difficulty for the lower appellate Court to find that between Uchhab and the defendant there was no difference in the eye of law and, therefore, whether the property was received in the name of Uchhab or in the name of the defendant makes no difference for the purpose of Section 118 of the Transfer of Property Act. Ext. B is, therefore, held to be a deed of exchange.
10. On the aforesaid analysis, the conclusion is that the defendant did not derive any absolute title to the disputed property in Ka and Kha schedules under Exts. B and E and the property of Uchhab is available to be inherited by the widow and the daughter under the provisions of the Hindu Succession Act, 1956 on half and half basis. The suit was one for partition of half interest and, therefore, the suit is bound to be decreed. The Second Appeal is allowed and the plaintiffs suit would be decreed in full. Parties would bear their own costs throughout.