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Bai Asmalbai W/O. Vora Mahamad Alli Vs. Esmailji Abdulali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberA.F.A.D. No. 30 of 1960
Judge
Reported inAIR1964Guj174; (1964)0GLR678
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 103 - Order 2, Rules 2(3), 3, 5 and 7 - Order 6, Rule 17 - Order 7, Rule 8; Specific Relief Act, 1877 - Sections 39; Limitation Act - Schedule - Article 91; Transfer of Property Act, 1882 - Sections 54
AppellantBai Asmalbai W/O. Vora Mahamad Alli
RespondentEsmailji Abdulali and ors.
Appellant Advocate C.G. Shastri, Adv.
Respondent Advocate S.B. Vakil, Adv.
Cases Referred and Raja Durga Singh v. Tholu
Excerpt:
property - partition - sections 100 and 103, order 2 rules 2 (3), 3, 5 and 7, order 6 rule 17 and order 7 rule 8 of code of civil procedure, 1908, section 39 of specific relief act, 1877, article 91 of schedule to limitation act and section 54 of transfer of property act, 1882 - appeal against order granting decree - by impugned order commissioner appointed to work out of partition of properties of deceased among his heirs - sale deed of house by deceased executed by deceased in favour of his wife sham transaction - therefore house available for administration - section 39 not applicable - question of fact cannot be interfered with in second appeal - no infirmity in order passed by court below - second appeal liable to be dismissed. - - the next contention is that the finding that.....v.b. raju, j. 1. the appellant who was original defendant no. 1, is the widow of one mahmadalli ibrahimji who died on 8-10-1947. after his death, 5 persons filed a suit no. 31 of 1949 against 8 persons for administration of the properties of the deceased mahmadalli ibrahimji who was the uncle of defendant nos. 1 to 5 (sic) and maternal uncle of defendant nos. 2 to 7. 2. the civil judge, j. d., balasinar, granted a decree for administration and appointed a commissioner to work out of the partition of the properties of the deceased amongst his heirs. in appeal, the learned assistant judge at nadiad dismissed the appeal with a slight variation ofthe decree passed by the lower court. the variation was that the administration should be in respect of 2/3rd of20 tolas of gold instead of 30 tolas.....
Judgment:

V.B. Raju, J.

1. The appellant who was original defendant No. 1, is the widow of one Mahmadalli Ibrahimji who died on 8-10-1947. After his death, 5 persons filed a suit No. 31 of 1949 against 8 persons for administration of the properties of the deceased Mahmadalli Ibrahimji who was the uncle of defendant Nos. 1 to 5 (Sic) and maternal uncle of defendant Nos. 2 to 7.

2. The Civil Judge, J. D., Balasinar, granted a decree for administration and appointed a commissioner to work out of the partition of the properties of the deceased amongst his heirs. In appeal, the learned Assistant Judge at Nadiad dismissed the appeal with a slight variation ofthe decree passed by the lower court. The variation was that the administration should be in respect of 2/3rd of20 tolas of gold instead of 30 tolas of gold. The learnedAssistant Judge also upheld the finding of the trial court that the sale-deed of a house by the deceased Mahamadamexecuted by the deceased in favour of his wife defendant No. 1 was a sham transaction and that the house was therefore, available for administration.

3. Aggrieved by the order of the appellate court,the defendant No. 1, widow has now come in second Appeal and the following points were urged;

(1) The suit for administration does not lie because there was also a prayer to hold that the sale deed executed by the deceased in the name of his wife was nominal and executed as a result of undue influence.

(2) It is contended that the suit is not maintainable in view of the provisions of Order 2 Rule 2 of the C. P.Code. The contention is that the earlier suit No. 51 of 1947-48 which was re-numbered as 30 of 1949 was for a declaration that the sale deed was fictitious, that the suit was dismissed on the ground that the suit for a meredeclaration does not lie whereupon another suit namely 52of 1947-48 which was re-numbered as 31 of 1949 wasfiled on the same day for administration. It is contended that the earlier suit having been dismissed, the second suit is barred by provisions of Order 2 Rule 2 of the C. P. Code. The third contention is that the suit was barred by Article 91, Schedule 1 of the Limitation Act. The contention is that the prayer regarding the sale deed in respect of a house was in fact a prayer to set aside the sale deed and therefore the suit fell under Section 39 of the Specific Relief Act. It is, therefore, contended that the suit should have been filed within 3 years as provided in Article 91, Schedule 1 of the Limitation Act. It is also contended that the prayer relating to the sale deed of a house was introduced by an amendment application and was allowed on 7-1-1952 and that on that date the suit in respect of the sale deed of the house was barred by the Limitation ACT. It is, therefore, contended that the amendment of the plaint should not have been allowed as by doing so, a claim which was barred by the limitation on the date of the amendment was made by the plaintiff.

The next contention is that the finding that the sale deed is bogus, is bad in law. The next contention further is that the finding that Rs. 1700/- was part of the estate of the deceased was based on no evidence. The last contention is that the finding that 22 tolas of gold was also part of the estate of the deceased and was with the defendant No. 1 at the time of the death of the deceased, was based on no evidence. These are the onlycontentions urged by the learned counsel for the appellant.

4. The first contention is that the suit is not maintainable as in addition to the prayer for administration of the properties of the deceased, there was a prayer for declaring that the sale deed of the house by the deceased in the name of his wife was nominal and was the result of undue influence. The nature and scope of administration suit have been discussed in various reported cases, in the Annual Practice for 1860 at page 1489, Order 55, Rule 3 of England is quoted as follows:--

'The executors or administrators of a deceased parson or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next-of-kin, or heir-at-law or customary heir of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an originating summons returnable in the Chambers of a Judge of the Chancery Division for such relief of the nature or kind following, as may by the summons be specified and as the circumstances of the case may require (that is to say) the determination, without an administration of the estate or trust, of any of the following questions or matters.'

Sub-rule (g) of this rule provides that any question arising in the administration of the estate or trust can be determined. In Shivaprasad Singh v. Prayagkumari Debee : AIR1935Cal39 the nature of suit for administration is discussed and the following observations are made:--

' 'Administration' means the management of the estate of a deceased person who has left no executor. The object of an administration suit is to have the estate administered under a decree of the court; in such a Suit the whole administration and settlement of the estate are assumed by the Court; the suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of allothers who are entitled, and the court marshals the assets and makes such a decree (See Shashi Bhushan Bose v. Mahindra Chandra, ILR 44 Cal 890 : (AIR 1918 Cal 883(2)), Ramaswami Ayyar v. Rangaswami Ayyar, ILR 55 Mad 26 : (AIR 1931 Mad 683)). The administration consists, generally speaking, in the payment of the funeral expenses of the deceased, in the payment of debts and legacies and in the collection, realization, preservation and distribution of the assets. Forms of plaint in such suits are given in Schedule I, Appendix A, Forms Nos. 41 to 43, Order XX, Rule 13, Civil Procedure Code, provides that,in an administration suit, the court shall pass apreliminary decree, before passing the final decree, directing accounts to be taken and enquiries to be made. Forms for preliminary decree are given in Appendix D, Forms Nos. 17 and 19, and forms for finaldecree are given in Appendix D, Forms 18 and 20.'

A perusal of Order 2 Rule 4, of the C. P. C. and of FormsNos. 17, 18, 19 and 20 may raise a question whether an administration suit can include immoveable property evenin cases where the moveable property of the deceased isfound sufficient for carrying the objects of administrationbut it is not necessary to decide this question in the presentappeal, in view of what follows. It is also not necessary todecide the question as to the effect on an administrationsuit of the presence or absence of the executors orthe administrators of the persons to whom the lettersof administration should have been granted. In ManbubAlam v. Razia Begum, AIR 1950 Lah 12, it is observedthat

'the objects of an administration suit would appear to be : (a) ascertainment of debts due by the deceased (para 1); (b) ascertainment of legacies directed by we testator to be paid out of the estate (para 2); (c) payment of the deceased's funeral and testamentary expenses (para 4); (d) an inquiry as to what moveable property was leftby the deceased and which had come to the hands of the defendant or any other person by his order or for hisuse (para 5); (e) an inquiry as to what part of the moveable property of the deceased was outstanding and undisposed of (para 6); and (f) an inquiry and an account or what, if any, was the plaintiff entitled to as next-of-kin of the intestate (para 3).'

In Chand Narain v. Ghasi Ram, AIR 1940 Lah 179, it is held as follows:--

'Where a suit is one between rival claimants to theestate of the deceased each one claiming to be her sole heir, such a suit is not a suit for an account of any property and for its due administration under the decree or the Court. Hence, an administration suit cannot be filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claiming to be the heir.'

It is not necessary to decide the nature and scope ofadministration suit because it is open to the plaintiff or the plaintiffs to join two causes of actions and to pray for several reliefs provided the requirements of the C. P. Code are satisfied. Order 2 Rule 3 reads as under:--

'(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit snail depend on theamount or value of the aggregate subject-matter at the date of instituting the suit.'

Order 7 Rule 8 reads as follows:--

'Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they snail be stated as far as may be separately and distinctly.'

Order 2, Rule 5 reads as follows :--

'No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect or which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.'

Order 2, Rule 7 reads as follows :--

'All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.'

In the instant case, no objection has been taken on the ground of misjoinder of causes of action. Section 99 or the C. P. Code also reads as follows: --

'No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the ease or the jurisdiction of the Court.'

In the present case, no doubt, a prayer against the defendant No. 1 personally has been joined in a suit for administration but the ground that there has been a misjoinder or causes of action has not been taken in the suit and therefore it is not now open to the learned counsel for the defendant No. 1 to contend that the suit is not maintainable. In Goswami Rameshpuri v. Madhukar AIR 1953 Nag 276, it is held as follows:--

'Enforcement of claims against strangers may not legitimately fall within the scope of an administration suit; but collection of the assets in the hands of persons who are properly joined as defendants in an administration suit is not outside its scope. Such persons are the heirs, legatees, creditors, executors etc., (Object, nature and scope of administration suits explained.)'

5. The learned advocate for the respondents relies upon Lohana Bulakhidas v. Lohana Shantilal, AIR 1952 Sau. 30. The headnote (a) reads as under:--

'Any legatee under a will can file a suit for administration where it is necessary to take an account of the estate of the deceased and such a suit can be filed against a party who was during the lifetime of the deceased in possession and management of the property on behalf or the deceased. The mere fact that such party refutes the claim of the plaintiff does not alter the nature of the suit. The nature of the suit is to be determined from the allegations in the plaint. Whether those allegations are substantiated or not will be a question to be decided in the case itself. The fact that the plaintiffs rely upon the will for getting their share in the property of the deceased makes little difference so far as the frame of the suit is concerned, it would be necessary in the plaintiff's case to ascertain what the, estate of the deceased was, what debts had to be paid; after the collection of the outstandings and other assets and payment of debts, the plaintiffs' share would be capable of ascertainment. Such a suit can be for an account of the administration of the estate of the deceased. Being a suit for accounts, it is open to the plaintiffs to put only valuation they please and pay ad valorem court-fees thereon.'

6. The learned counsel for the respondent has also relied on Khatija v. Adem Husenaity, ILR 39 Bom 545: (AIR 1915 Bom 59). That was a decision on the question of Court fees. The learned counsel for the respondent reliefs on Essafally Alibhai v. Abdealli Gulam Husain, ILR 45 Bom 75 : (AIR 1921 Bom 424) wherein it was held that the plaintiff is not bound to File a suit for partition even though he knows what the estate of the deceased consists of.

7. The learned counsel for the respondent has also relied on Abdul Rahim v. Lingappa Vaijappa, 45 Bom LR 534 : (AIR 1943 Bom 273). In that suit it was observed as follows:--

'An administration suit is in essence a suit for an account and application of the estate of a deceased debtor for the satisfaction of the Dues of all his creditors. The entire administration and settlement of the estate are assumed by the Court. The assets are marshalled and a decree is made for the benefit of all creditors.

It is only when the property under administration proves to be insufficient for the payment in full of the debts and liabilities that under Order XX, Rule 13(2) of the Civil Procedure Code, 1908, the rules and principles applicable to insolvency proceedings are to be observed only as regards the respective rights of secured and unsecured creditors, the debts and liabilities and the valuation of annuities and future and contingent liabilities. The sub-rule has nothing to do with the vesting of the property in the receiver.'

The learned counsel for the respondent also relies on Maganlal Chunilal v. Kanchand Manchharam, 38 Bom LR 754 : (AIR 1936 Bom 353). In that case, a will was executed by the deceased and the will appointed four executors. There was also a legacy in that will. The question decided by the High Court was a question to whom the appeal lay. The High Court did not decide other questions but the High Court made some observations on the nature of an administration suit.

8. In Amir Bi v. Abdul Rahim AIR 1928 Mad 760, it was observed as follows:--

'Administration means management of the deceased's estate. The Court is requested to assume its management, to take upon itself the functions of an executor or administrator and administer the estate. The administration or a deceased's estate consists of collection and preservation of assets, payment of debts and legacies, acts in respect of adverse claims to assets, dealing with creditors or legatees and distribution finally among the heirs or next-of-kin. These are the functions of an administrator and the object of an administration suit is to have the estate administered under a decree of Court; in other words, the court itself assumes the function of an administrator and administrates the estate.'

9. The learned counsel for the respondent relies on 38 Bom L R 754 : (AIR 1936 Bom 353). The head note reads as under:--

'In the suit brought in the Court of a subordinate Judge of the First Class for administration of estate, there was a prayer that a will made by the deceased was null and void. The claim was valued at Rs. 200/- both for purposes of Court fees and jurisdiction. The trial Judge havingordered administration and declared the will invalid, an appeal was preferred to the High Court.'It was held that the suit was one for administration in spite of the fact that the final decree might award possession of immoveable properties and that it was properly valued for the purposes of Court-fees under Section 7(iv)(f) of the Court-fees Act, 1870'.

10. The next point urged is that the suit is barred by the provisions of Order 2 Rule 2 of the C. P. Code. Order 2 Rule 2 reads as follows:--

'(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits except with the leave of the Court to sue for all such reliefs, he shall not after-wards sue for any relief so omitted.'

11. The contention is that Suit No. 30/49 which was filed for declaration that the sale deed of a house in question was fictitious and was the result of undue influence was dismissed on the ground that the suit was merely for a declaration. It is contended that in that suit a prayer for administration could have been made and was not made. This contention cannot be accented because Sub-rule (3) of Rule 2 requires that the reliefs must be in respect of the same cause of action. The cause of action for administration is different from the cause of action for a declaration that the sale deed is sham. It is therefore, not necessary to decide the contention whether Order 2 Rule 2 applies to a case where the suit was dismissed merely on the ground that it was a suit for declaration.

12. The third contention is that the suit was barred by Article 91, Schedule 1 of the Limitation Act. Under Article 91, limitation runs from the time

'when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.'

In fact, the contention is put in different form. It is contended that the Court was wrong in allowing a prayer on 7-1-52 whereby an additional relief was claimed in the suit regarding declaration that the sale of a house was nominal and was the result of undue influence, and that the original suit which was instituted on 14-2-49 was purely a suit praying for administration on the ground that the deceased Mahamadalli died on 8-10-1947. By the amendment to the plaint which was allowed on 7-1-52, a prayer was added whereby a declaration was sought that the sale deed dated 14-8-1947 in respect of a suit house by the deceased in favour of his wife -- defendant No. 1 was nominal and was the result of undue influence. It is said that on 7-1-1952 the date on which the amendment was allowed to the plaint the claim regarding the relief was barred by Article 91, Schedule 1 of the Limitation ACT. It is contended that such a suit would be governed by Section 39 of the Specific Relief Act. The leaned counsel for the respondent contends that Section 39 of the Specific Relief Act can have no application to such cases because the sale deed can be treated as void and in such a case it is not necessary for the parties to have the sale deed adjudged void or voidable. But he further contendsthat although it may be necessary to have it set aside, Section 39 of the Specific Relief Act does not apply. For this, reliance is placed on Petherperman Chetty v. Muniandi Servai, ILR 35 Cal 551 (PC) and Mancharam Pranjivandas v. Panubai Lallubhai, ILR 40 Bom 51 : (AIR 1915 Bom 242) and Moti Lal v. Karrabuidin, ILR 25 Cal 179 (PC). Section 39 of the Specific Relief Act reads as under:--

'Any person against whom a written instrument is void or voidable, 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.

If the instrument has been registered under the Indian Registration Act, the Court shall also send a copy or its decree to the officer in whose office the instrument has beer so registered; and such officer shall note on the copy of the instrument contained In his books the fact of its cancellation.'

Section 39 refers to suits to have adjudged void or voidable any written instrument which is void or voidable. It refers not merely to void instruments but also to voidable ones. It refers to a suit to have it adjudged void or voidable, any written instrument which is void or voidable, therefore, it a suit is to have the written instrument adjudged void or voidable, it falls under Section 39 although it may not be a suit, strictly speaking, to have the sale deed set aside as void or voidable. The second paragraph of Section 39 says that if the instrument has been registered under the Indian Registration Act the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his boohs the fact of its cancellation.

In ILR 35 Cal 551 (PC) it was held as follows:--

'the deed being inoperative, it was unnecessary for the plaintiff to have it set aside as a preliminary to his obtaining possession of the property. The suit was therefore governed, not by Article 91, but by Article 144 or Schedule 11 of the Limitation Act (XV of 1877) and consequently was not barred by lapse of time.'

The distinction is that a plaintiff, according to whom, a particular sale deed is void or inoperative need not the a suit to have it set aside. He may file a suit for possession and in the course of the suit, he may contend that a safe deed was void and inoperative. To such a suit, Article 91 of Schedule 1 to the Limitation Act would not apply. But, if he does actually file a suit to have the sale deed adjudged as void and therefore to have the said sale deed cancelled the suit would be governed by Article 91, Schedule 1 of the Limitation Act.

13. In ILR 40 Bom 51 at p. 53: (AIR 1915 Bom 242 at P. 243) the following observations are made:--

'As to the question of limitation, the argument for he appellant is that the suit is governed by Article 91 of the Indian Limitation Act, which prescribes for the institution of the suit a period of three years from the date when the facts entitling the plaintiff to have an instrument cancelled or set aside become known to him. The contention is that though in form the present suit is a suit for possession yet it must be regarded as essentially a suit to set aside the widow's mortgage, because until that mortgage is set aside, the plaintiffs cannot obtain possession of the property. As to this point the authorities we think, are in accord, and are to the effect that where the deed orinstrument winch seems to stand between a plaintiff and the realization of his claim in the suit is an actual nullity, the plaintiff is entitled to bring his suit for possession within twelve years, and is not hindered by the narrower period laid down by Article 91, and that, if one may say so, seems to be good sense. For the only object of Article 91, is to compel a plaintiff to remove out of his way some real existing obstacle; but where there is no real obstacle, the article has no scope for operation.'

ILR 25 Cal 179 (PC) is relied upon by the learned counsel for the respondent in support of the same proposition which has been laid down in : AIR1935Cal39 and it is, therefore, not necessary to refer to the case.

14. The learned counsel for the respondent contends that a suit for a declaration that a sale deed was nominal and was the result of undue influence and was barred by Article 91, Schedule 1 of the Limitation Act. He relies on Waman Vinayak v. Narayan Hari, 48 Bom LR 193: (AIR 1946 Bom 363). The case decided in 48 Bom LR 193: (AIR 1946 Bom 363) was concerned with the question of court-fees.

15. The learned counsel for the respondent next contends that in fact, in the instant case, there is no prayer for declaration and what is prayed for is merely the Court should decide or hold that the sale deed, in question, was the result of undue influence and the Court should administer the property of the deceased on such basis. The Court should also decide and hold that the sale deed of the house in question was nominal, fictitious and result of the undue influence and that the Court should administer the properties of the deceased including the suit house. The word 'tharavi' can be translated as to hold or decide or declare. If it was not the intention that there should be a declaration it should not have been included in the relief clause. If it was the intention to pray for a declaration, the relief clause should have prayed that this Court should administer all the properties of the deceased including the suit house because the sale deed by the deceased in favour of his wife is nominal one. The word actually used is 'tharavi' in the plaint and therefore, it should be treated as a suit for a declaration that the sale deed is adjudged as void in view of Section 39 of the Specific Relief Act. I, therefore, hold that to such a suit, Article 91, Schedule 1 of the Limitation Act would apply. If a suit had been filed on that date, the suit would have been barred by limitation, the sale deed having been executed on 14-8-1947.

16. The learned counsel for the respondent contends that even in such cases, the amendment application to amend the plaint can be granted and he relies on the judgments of the High Courts reported in Pirgonda Hongonda v. Kalgonda Shidgonda : [1957]1SCR595 and Kisandas Rupchand v. Rachappa Vithoba, 11 Bom LR 1042 and Civil Revn. Appln. NO. 222 of 1950 (Bom). There is the judgment of their Lordships of the Supreme Court on this point and it is not necessary, therefore, to refer to the other cases, in : [1957]1SCR595 , their Lordships have observed as under:

'All amendments to a plaint ought to be allowed which satisfy the two conditions: (a) of not wording injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rulethat where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test, therefore, still remains the same; can the amendment be allowed without injustice to the other side, or can it not?'

Their Lordships have also referred to their observations in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. : [1957]1SCR438 and the following observations are made at page 404 (of Bom LR): (at p. 365 of AIR);

'It is no doubt true that Courts would, as a rule, decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation on, the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.'

17. Their Lordships have also observed and accepted as correct the decision in Charan Das v. Amir Khan, (AIR 1921 PC 50) which laid down as under:

'. . . . .(though) there was full power to make the amendment ..... such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time, yet there are cases ...... where such considerations are outweighed by the special circumstances of the case. . . . .'

18. Their Lordships observed as correct the principles laid down in 11 Bom LR 1042 wherein it was observed as follows:

'......all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties .... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test, therefore, still remains the same can the amendment be allowed without injustice to the other side, or can it not?'

The provisions regarding amendment of plaints are contained in Order 6 Rule 17 of the C.P. Code and therefore the tests laid down in that provision must be applied. The other tests, if any, are to see whether the two tests stated in Order 6 Rule 17 are applicable or not. The test is not whether the claim made in the amendment application would be barred by limitation on the date of the amendment or not. But the test is whether it was necessary for the parties to amend or alter for the purpose of determining the real question in controversy between the parties and whether the result would be to work out injustice to other side. Therefore, the question is, really speaking, not one of limitation but a question whether the claim made in the amendment application was a new claim or not. If it was an old claim made in the original plaint in a different form and if it was a part of the question in controversy between the parties the amendment should be allowed, if the claim is a new one which has nothing to do with the claim made in the original plaint then it would not be a question in controversy between the parties. But, it would be entirely a new question different from the question in controversy between the parties as contained in the original plaint, in : [1957]1SCR595 , their Lordships of the Supreme Court held that the claim made in we amendment application was not a new claim. In the original plaint in the case before their Lordships, there was a claim regarding goods worth Rs. 400/-. The claim in the amendment application was with regard to Rs. 400/-. Their Lordships, therefore, held that the claim sought to be made in the amendment application, was not a new claim although the claim was then barred by limitation and that the amendment application was rightly allowed. Therefore the question is whether the claim sought to be made in the plaint was a new claim which was not part of the question in controversy between the parties in the original plaint. We find that there is an averment in paragraph second that the sale deed by the deceased in favour of his wife was included in the estate as the sale of the suit house is not binding on the plaintiff. The claim that the sale deed of the suit house was nominal and was the result of undue influence was, therefore, in controversy between the parties. By me amendment to the plaint a declaration was sought in respect of the sale deed of the suit house which they had not asked in the original plaint but which was already in controversy between the parties. I, therefore, hold that the claim made in the amendment application, was not a new claim and that the claim was one of the real questions in controversy between the parties as stated in Order 6 Rule 17. I, therefore, hold that although the claim was barred by limitation, the amendment application was rightly allowed.

19. The next question whether the finding of the lower court that the sale deed, in question, dated 14-8-47 was, in fact, sham and was vitiated in law. The learned counsel for the respondent contends that this question of fact cannot be canvassed in second appeal under Section 100 of the C. P. Code. Section 100, C. P. Code reads as follows:--

'(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:--

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

(2) An appeal may lie under this section from an appellate decree passed ex parte.'

In this connection, Section 103 is also relevant and that Section reads as follows:--

'In any second appeal, the High court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such Court by reason of anyillegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.'

20. It is, therefore, clear that the questions of facts cannot be interfered with in second appeal unless there was no evidence to support the evidence of fact or unless the fact in issue has been wrongly determined by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.

21. A finding of fact is a finding of fact notwithstanding the fact that the finding is based on the appreciation of oral evidence or documentary evidence or of both or that the finding is based on inferences from other facts which are not inferences from mixed questions of facts, and law. These principles are clearly laid down in Sree Meenakshi Mills Ltd., Madurai v. Commr. of Income-tax, Madras 0044/1956 : [1956]1SCR691 Deity Pattabhiramaswamy v. Hanymayya AIR 1959 SC 57; Paras Nath v. Mohani Dasi AIR 1959 SC 1204; Raruha Singh v. Achal Singh, AIR 1961 SC 1097 and Raja Durga Singh v. Tholu : [1963]2SCR693 .

22. There is also no doubt that the finding that the particular sale deed is sham or fictitious is a finding of fact. Sale is defined in Section 54 of the transfer of Property Act. Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The document would not be a sale deed if there was no transfer of ownership or if no price was paid or promised or part-paid or part-promised. But, it is open to Court to say that notwithstanding execution and registration a sale deed does not affect transfer of ownership and that therefore it is not a sale within the meaning of the T. P. Act. It is also open to a Court to say that the factor of a price paid or promised or part-paid and part-promised is absent and that therefore the document is not a sale. It is, therefore, open to hold that notwithstanding the execution and registration of a particular document purporting to be a sale deed, there is, in fact, no sale, in view of the definition of sale in Section 54 of the T. P. Act. The consideration can be fully paid or partly paid or partly promised or fully promised. The idea that there can he no sale unless the consideration is fully paid, is therefore, contrary to the provisions of Section 54 of the T. P. Act. The learned appellate Judge has observed in his judgment that it has to be seen in the light of the surrounding circumstances whether the transaction is supported by consideration or whether it is a sham transaction, in other words, the learned Judge is of the view that if the document is not supported by consideration, it would be a sham transaction.

23. The learned appellate Judge has observed as follows:--

'In this connection, it is to be noted that Mahmadan had no child and that he was desirous of providing for his wife and that he would have preferred the property to go to her rather than to his sister's sons. It is also to be borne in mind that prior to this sale, he has already willed away the entire property in favour of his wife, the defendant No. 1, What seems to have exercised the old man was the feeling that he may not be able to pass the property to his wife under the Will in view of the Mahomedan Law which prohibits any disposition beyond the third (sic) of the property. It is admitted by the defendant No. 1 that it was she who had taken the sale and it was she- who had suggested the idea to Mahamadali of selling the property to her. It is also admitted that the old man was ailing for a long time and that she was attending on him and that he died soon after the sale deed. The evidence has, therefore, to beviewed in this light and it has to be seen whether the attendant No. 1 paid any consideration for the document.'

In this connection, it is to be noted that Manamadali had no child and that he was desirous of providing for his wife and that he would have preferred the property to go to her rather than to his sister's sons. In other words, it was the intention of the deceased that the property should go to defendant No. 1 in preference to his sister's sons. In other words, the deceased had an intention to transfer the property to his wife. Therefore, apart from the question of consideration, the learned appellate court was of the view that it was the intention of the deceased Mahmadan to transfer the ownership of the house to his wife in preference to his sister's sons. If there was an intention to transfer the ownership to the transferee, we cannot call the transfer sham and bogus. But, the learned Judge was in error as to what he thought regarding consideration. The deed recites the payment of consideration. On this point, the learned Judge has observed as follows:--

'Now the lady has stated that she had Rs. 5000/- from her first husband out of which Rs. 2000/- were given to her son from her first husband and that she was keeping the balance of Rs. 3000/- in the house of her former husband which she paid as consideration to Mahmadali. There is no other evidence on the point of consideration. No attempt is made to examine any attesting witness of the sale deed to prove the payment of consideration affirmatively. It is not likely that the lady would have a sum of Rs. 3000/- cash and that she was keeping the said amount in the house of her previous husband. It also does not appear that her former husband was in such affluent circumstances as to give her a sum of Rs. 5000/-. It is admitted that he was running a small shop and he had to maintain 5 or 6 children. On the other hand, it has been also admitted that the deceased Mahmadali was in affluent circumstances and that he had, prior to the sale deed, already disposed of shop goods some six months previously and received Rs. 1500/-. He would therefore not be in need of such large sum so as to be forced to sell the house. The lady has taken care to take a rent note exhibit 111 by which after having purchased the property from her husband Mohmadali she had rented it to the son from her previous husband. It is noteworthy that though the rent note was in respect of the whole house, Mahmadan continued to be in possession and died in that very house. The learned Civil Judge has considered the case on this point and the evidence led by both the parties, examined the surrounding circumstances and found that the sale deed was bogus and I have no hesitation in upholding that finding.'

It is true that the learned Judge has referred to the fact that Mahmadali continued in possession and died in that very house. But he died in that very house about two months after the sale deed and we must remember that the sale deed was in favour of his wife. It is difficult to imagine that the wife would ask her husband, to get out of the house because he had sold the house. Merely because the wife had allowed a sickly husband to continue to stay in the house, it cannot be said that there was no intention to transfer the ownership of the house. The learned Judge has himself observed that it was the intention of Mahmadali that the house should go to his wife and not to his sister's sons.

24. The learned Judge has observed that apart from the evidence of defendant No. 1 there is no evidence on, the point of consideration. He has also observed that no attempt is made to examine any attesting witness on the point of consideration. The learned Judge has also observed that it was not for defendant No. 1 to prove affirmatively that the transaction was genuine and it was a duty of the plaintiff to prove that the transaction was bogus. The learned Judge has also observed that it cannot be said that there was no duty cast on the person taking the property under the sale deed to show that the transaction was with consideration. In my opinion, the learned judge was wrong in making such observations. There is no burden on defendant No. 1 to prove affirmatively that the transaction was with consideration, the learned Judge has not referred to any legal evidence to show that there was no consideration. The learned counsel for the respondent, however, says that there is evidence to show non-payment of consideration and he relies on the evidence of plaintiff No. 2, Ex-96. According to this witness, the Registrar had come to the house of deceased Mahmadali and the witness denied the suggestion which was put in cross-examination that he did not visit the house of his uncle before his death. The witness has himself not stated in his chief-examination that he was present at the time of payment of consideration. The evidence of this witness is, therefore, useless on the question of consideration. There is also no other evidence on the point of consideration on the part of the witness of the plaintiff. The learned Judge, however, referred to the evidence of defendant No. 1 that he had Rs. 5000/ and that she paid Rs. 2000/- to her son out of that money as consideration. However, her evidence has been rejected. Even if her evidence is rejected, that does not mean that there is any evidence to show that the sale deed was without consideration. Moreover, the deceased himself has made a recital in the document which he executed that he received the consideration, it is not necessary that the consideration should be paid in cash to the executant of the sale deed. The reference is also made above that deceased Mahmadali was in affluent circumstances and that therefore he was not in need of RS. 1500/- to sell his shop. All these points are irrelevant on the question of payment of consideration. They will not be relevant even under Section 11 of the Evidence Act Because such facts would not make highly probable or improbable the payment of consideration and the non-payment of consideration.

25. What has to be proved that there was no intention to transfer the ownership and that there was no transfer of ownership. Section 54 of the T. P. Act says that there can be a transfer of ownership without payment of consideration. In order to decide whether a document is a sale deed or not, we have to look to the document to see whether there is transfer of ownership in the document, whether the price is paid or promised or part-paid or part-promised. If both these considerations exist then we call the document, a document of sale, a sale is only one kind of transfer of ownership. There can be a transfer of ownership even if there is no consideration. A gift is a transfer of ownership made voluntarily and without consideration. Therefore, the question of presence or absence of consideration is immaterial on the question of transfer of ownership.

26. Before we can transfer the ownership, there must, however, be a registered document as per Section 17 of the Indian Registration Act. If there is an intention to transfer the ownership and if there is a registered document expressing their intention to constitute a transfer of ownership and it is immaterial whether the document is called a sale deed or gift deed or something else. Therefore, strictly speaking, the burden was on the plaintiff to prove that there was no transfer and that there was no intention to transfer the ownership. On both these points, the question of consideration is immaterial. As alreadyobserved above, the lower Court took a wrong view of the law. The lower appellate court thought that if the transaction was not supported by consideration, it was a sham transaction because the lower appellate court has observed that it has to be seen in the light of the surrounding circumstances whether the transaction is supported by consideration or whether it is a sham transaction. It is also open to the transferor to treat consideration as paid when there is no payment. He may also treat a promise to pay as an actual payment. There can be transfer of ownership without consideration. There can be, in fact, a sale area without payment of consideration. The finding of fact of both the lower Courts is, therefore, vitiated in law within the meaning of Sections 103 and 100 of the Civil Procedure Code. In second appeal, the Court is entitled to determine the question of fact if the evidence on record is sufficient. The question of bogus transaction was before the parties and both the parties had led evidence on the point. The executant of the document is dead and he has stated in the sale deed that he had received the consideration. The transferee also says to evidence that she had paid consideration, the fact that it is not likely that she had, money or it is not likely that she had received money, the fact that the executant of the document was not in need of money are irrelevant under the Evidence Act. There is no section in the Evidence Act whereby such facts are relevant. Section 11 of the Evidence Act has no application because Section 11 requires high degree of probability or improbability. What the plaintiff has to prove is that there was no transfer of ownership of that there was no intention to transfer the ownership. There is no finding of the Courts below that there was no intention to transfer the ownership, on the contrary, the finding of the appellate court is that there was an intention to transfer the ownership. I, therefore, hold that the document is a transfer of ownership to defendant No. 1 and that the suit house can no longer be treated as a part of the estate of the deceased on the date of the death of the deceased, the ownership of the house having been transferred by him to his wife before he died.

27. In view of my findings it is not necessary to decide the contention of the appellant as to the share of defendant No. 1 that she would be entitled to at least 1/3rd of the suit house under the provisions of the will executed by the deceased before his death.

28. The next contention is relating to cash Rs. 1700/-. The appellate Court held that the deceased had left at the time of his death Rs. 1700/-. Defendant No. 1 admitted in her evidence that the deceased had left Rs. 1700/- at the time of his death. The contention regarding cash RS. 1700/- is, therefore, rejected.

29. The last contention is regarding gold. The trial Court held that the deceased had left 30 tolas of gold at the time of his death. The appellate Court, however, reduced the figure from 30 to 20 tolas and has observed ii his judgment on this point as follows:--

'The only dispute is with respect to the existence of ornaments. The learned Civil Judge has ordered administration in respect of 30 tolas of gold worth Rs. 3,000/-. It was the case of the plaintiffs that the deceased had left 30 to 35 tolas of gold ornaments. The plaintiffs could have no knowledge about it because they were staying outside. The learned Civil Judge therefore considered the witness Kamarali to be reliable but Kamarali merely stated that the deceased might have had 25 to 30 tolas of goto in ornaments. It would seem that this is no evidence whichthe learned Civil Judge could consider reliable. It seems however that the defendant No. 1 has admitted that her former husband had given her 20 tolas of gold. The attendant No. 1 however has stated that Manmadali had takenback the gold ornaments from her. This is not likely, it would also appear from the will exhibit 122 that there issome mention of ornaments though the quantity is not given. Considering all these facts and circumstances I think that the proper finding would be that the defendant No. 1 had ornament weighing 20 tolas of gold in her possession as estate of the deceased, which required to be administered. It seems that the value of Rs. 100/- per tola put by the lower court is reasonable and I accordingly find that 20 tolas of gold worth Rs. 2000/- should be considered as the value of the ornaments to be administered as the estate of the deceased.'

The learned Judge is right when he observes that the evidence of Kamarali that the deceased might have had 25 to 30 tolas of gold in ornaments, cannot be considered reliable. Defendant No. 1 had admitted in her deposition that her former husband had given her 20 tolas of gold and that deceased Mahamadali had taken back the gold ornaments from her. This would not be sufficient to come to a finding that on the date of the death of the deceasedMahamadali had 20 tolas of gold with him. The learned appellate judge also observed that there is some mentionof ornaments in the will executed in Ex. 122 although the quantity is not given. Merely because the ornaments arementioned in the will that is not evidence of existence of gold on the date of the death of the deceased. The will was executed on 7-5-1946 and Manamadali died on 8th October, 1947. Although the reasons of the learned Judge are wrong when he came to the finding that the deceased had left 20 tolas of gold at the time of his death, there is other evidence which has not been discussed by the learned appellate Judge to support that finding, namely, the evidence of Taherali Ex.-97 and the evidence or Fiddali Ex-96. Taherali who is plaintiff No. 4, has deposed that he had seen box of gold ornaments with the deceased. He has given detailed description of the ornaments. According to Fidaali, his uncle deceased Manmadali had 40 tolas of gold before his death. The witness faherali was staying in a different 'Mohlla' in the same town. It cannot, therefore, be said that the evidence of witness Taneran has been disbelieved on good grounds. There is also other evidence by which the finding could have been arrived at. I will not interfere with the finding of the learned appellate Judge that the deceased had left 20 tolas of gold at the time of his death as part of the estate and that the gold was a part of the estate of the deceased. I, therefore, confirm the finding of the lower appellate court that the deceased had 20 tolas of gold in his possession when he died. It is also contended that the finding of the lower court that the gold of the deceased was in the possession of defendant No. 1, is wrong. But, this contention was not urged before the first appellate court. I, therefore, modify the decree of the first appellate Court by omitting any reference to the house of deceased Mahmadali in decree. No order as to costs. I also declare that the case is fit for appeal under Clause 15 of the Letters Patent Act.


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