- Bookmark
- Share
- CaseIQ
Smt. Safi Devi v. Mahadeo Prasad And Others
Structured Summary of the Legal Opinion (M.P. Mehrotra, J.)
Factual and Procedural Background
The plaintiff (Mahadeo Prasad) sued five defendants for recovery of possession of House No. 77, Muthiganj, Allahabad, and claimed mesne profits and rents. Two competing sale deeds in respect of the same house are central to the dispute:
- A sale deed dated 10 June 1968 executed purportedly by defendant No.1 Kartik Prasad (for himself and as guardian of his minor son Bhanu, defendant No.2) and by Atul Roy (defendant No.3) in favour of the plaintiff for Rs. 4,000; the deed was finally registered on 25 June 1968.
- A sale deed dated 18 June 1968 executed by Kartik Prasad in favour of Smt. Safi Devi (defendant No.5), and registered on that same date.
The plaintiff alleged he did not receive physical possession and discovered the 18 June deed when applying for mutation. The defendants put forward competing allegations: that the 10 June deed was signed under coercion and was not binding; that an earlier agreement to sell dated 10 February 1967 in favour of defendant No.5 existed; and that Atul Roy was a bona fide purchaser for value without notice. The trial court dismissed the suit; the lower appellate court set aside that judgment and decreed the suit in favour of the plaintiff. Defendant No.5 (Safi Devi) appealed (second appeal) to the court before M.P. Mehrotra, J.
Legal Issues Presented
- Which of the competing instruments (sale deed dated 10 June 1968 in favour of the plaintiff or sale deed dated 18 June 1968 in favour of Smt. Safi Devi) has priority and effect?
- Whether the alleged agreement of sale dated 10 February 1967 (relied on by defendant No.5) is genuine or ante-dated (i.e., prepared after the 10 June 1968 deed)?
- Whether the plaintiff qualifies as a transferee for value without notice (for the purposes of Section 19(b) of the Specific Relief Act) and whether payment timing and notice affect his rights?
- Whether the lower appellate court erred in (a) discarding the testimony of Kartik Prasad and (b) interpreting the 10 June 1968 sale deed as transferring the entire property rather than only a half share?
- What is the correct extent of transfer effected by the 10 June 1968 deed given the contention that Atul Roy (defendant No.3) did not possess any share?
- Whether the plaintiff is entitled to mesne profits or rents claimed in the suit?
Arguments of the Parties
Appellant (Smt. Safi Devi) — summary of arguments (as advanced by Shri K.C. Saxena)
- The lower appellate court erred in its fifth factual finding that the alleged agreement dated 10 February 1967 was not genuine and ante-dated, because the plaintiff had knowledge of that agreement before instituting the suit and had not attached it to the plaint.
- The lower appellate court wrongly discarded the testimony of Kartik Prasad on the ground of his prior conviction; reliance was placed on Section 52 of the Evidence Act to challenge that approach.
- The sale deed of 18 June 1968 should have priority over the 10 June 1968 deed because it was executed pursuant to the agreement of sale dated 10 February 1967; reliance was placed on Section 19(b) of the Specific Relief Act to argue that the plaintiff was not a transferee for value without notice.
- It was contended that the plaintiff had notice of the 10 February 1967 agreement (and of the 18 June deed being presented for registration) at the time he paid consideration, and that payment to the vendor post-notice undermined his status as a protected transferee.
- Reliance was placed on various precedents to support the argument under Section 19(b) and on Laxmidas v. Nanabhai to contend the counterclaim's maintainability (or that it could be treated as a plaint in a cross-suit).
Respondent / Plaintiff (Mahadeo Prasad) — summary of arguments (as advanced by Shri Deokinandan)
- Reliance on Section 47 of the Registration Act: the sale deed dated 10 June 1968 was operative from that date even though it was registered later (argument supported by cited authorities).
- Payment timing: the fact that the sale amount was not paid at the time of execution of the 10 June deed did not invalidate the document; precedent authorities were cited in support of that proposition.
- General reliance on earlier cases to support the doctrine that registration and the operative date and effect of instruments should be construed in the plaintiff's favour in the circumstances alleged.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Md. Aslam Khan v. Feroze Shah, A.I.R. 1932 P.C. 228 | Cited by appellant in support of contentions under Section 19(b) of the Specific Relief Act (priority/notice issues). | The court noted it was cited in support of the appellant's argument but stated the broader case law need not be discussed in detail in view of the lower appellate court's factual findings; reliance on Section 19 was held not justified on the facts. |
| Arunachala v. Madappa, A.I.R. 1936 Mad. 949 | Cited in support of appellant's Section 19(b) arguments. | Court recorded the citation; ultimately found that Section 19 did not apply because the alleged agreement was held not to be genuine on the facts found below. |
| Gaurishankar v. Ram Sewak, 1934 A.L.J. 871 | Cited in support of appellant's contention under Section 19(b). | Court recorded the citation; no detailed discussion required because findings of fact disposed of the contention. |
| Himmatlal Motilal v. Vasudev Ganesh, 36 Bom. 446 | Cited in support of appellant's contention under Section 19(b). | Court recorded the citation; did not treat it as altering the outcome given the appellate court's factual findings. |
| Laxmidas v. Nanabhai, A.I.R. 1964 S.C. 11 | Cited for proposition that a counter-claim could be treated as a plaint in a cross-suit. | Court recorded citation; did not need to decide the point because the result (modification of decree to divide shares) rendered that issue unnecessary. |
| K.J. Nathan v. Maruthi Rao, A.I.R. 1965 S.C. 430 | Cited by plaintiff's counsel in support of the operation of the sale deed from the date of execution under Section 47 of the Registration Act. | Court noted reliance on the authority but observed that much of the case law cited need not be discussed further in view of the lower appellate court's findings of fact. |
| Gayatri Prasad v. Board of Revenue, 1973 A.W.R. 606 | Cited in relation to arguments about the operative effect of instruments and registration. | Court recorded citation; no detailed reliance because factual findings governed the result. |
| Ramnarain Chaube v. Basdeo Misra, A.I.R. 1934 All. 70 | Cited in relation to registration/operative date arguments. | Court recorded citation; did not hinge the decision upon it because of findings of fact. |
| Union Bank Ltd. v. Ram Rati, A.I.R. 1954 All. 595 | Cited in relation to seller/transferor payment and operative effect of instruments. | Court noted the reliance but held that the factual findings rendered detailed discussion unnecessary. |
| State of Kerala v. C.C. Refineries, A.I.R. 1968 S.C. 1361 | Cited by plaintiff's counsel to support that non-payment of sale amount at execution does not invalidate the deed. | Court recorded the citation; the principle was accepted as part of plaintiff's argument, but detailed treatment was unnecessary given the findings. |
| Chandrashankar v. Abhla Mathur, A.I.R. 1952 Bom. 56 | Cited for the proposition that non-payment at execution does not vitiate the sale. | Court recorded the citation; it formed part of plaintiff's submissions but did not determine the outcome independently of factual findings. |
| Mohammad Bashir Khan v. Kulsum Bibi, 25 A.L.J. 742 | Cited in plaintiff's submissions regarding deeds and effect. | Court recorded citation; no separate substantive reliance beyond plaintiff's argument because findings of fact controlled. |
| Arunachalan v. Sivan, A.I.R. 1970 Mad. 226 | Cited by plaintiff for authority on deeds/registration issues. | Court noted the citation but did not base its decision solely on it; factual findings remained determinative. |
| Ram Chandra v. Champabai | Cited (Supreme Court) for the principle that surrounding circumstances must be considered in cases of wills. | The court used the point to explain why the alleged will in favour of Atul Roy was inherently improbable; it supported the court's view that no valid will had been proved. |
| Hari Singh v. Pakhru (unreported, First Appeal No. 378 of 1968) | Cited by appellant to support objection that a party was prejudiced where no issue was framed. | Court examined that decision and found its facts distinguishable: in the present case a specific issue was framed and parties led evidence, so Hari Singh v. Pakhru was not applicable. |
Court's Reasoning and Analysis
The court engaged in a focused analysis constrained by the nature of a second appeal and the findings of fact returned by the lower appellate court. The analysis proceeded in the following steps (as recorded in the opinion):
- Deference to findings of fact: The court emphasised that it is difficult to question the findings of fact recorded by the lower appellate court. Even if some doubts existed about genuineness of instruments, the limited scope of second appeal jurisdiction prevented interference with factual conclusions reached on evidence.
- Assessment of witness evidence: The lower appellate court had discarded the testimony of Kartik Prasad. The appellant argued this was improper because the witness had been convicted and Section 52 Evidence Act was relied upon. The court observed that the lower appellate court had not discarded Kartik Prasad's testimony solely on the ground of conviction; other circumstantial grounds and evidence supported the appellate court's preference to reject his testimony.
- Burden as to genuineness of the agreement dated 10 February 1967: The court held that it was not necessary for the plaintiff to have specifically attacked the said document in the plaint before being entitled to challenge its genuineness. Because the contesting defendants relied upon the document (pleaded it in the written statement) and the trial court framed a specific issue (issue No.4) on it, the defendants bore the onus of proving its genuineness by cogent evidence. The trial court's finding in favour of defendants had been returned hesitantly and with doubt, and the lower appellate court decided against the defendants on this issue; accordingly the appellant's reliance on Section 19 of the Specific Relief Act was not justified on the facts.
- Distinguishing precedent(s) and applicability: The court examined the appellant's reliance on an unreported decision (Hari Singh v. Pakhru) and found that the factual circumstances there were different (no issue had been framed and defendants were prejudiced); that distinction undermined the appellant's argument that the defendants were taken by surprise in the instant case.
- Question of extent of transfer under the 10 June 1968 deed: Although the lower appellate court had concluded that the 10 June deed transferred the entire interest in the property to the plaintiff, the presiding judge on second appeal disagreed with that interpretation as a matter of document construction. The deed expressly recited that defendant No.1 and defendant No.3 each had half share and each transferred his half share to the plaintiff. The court reasoned that, even if it was later found (as the lower appellate court did find) that Atul Roy did not actually possess the half share he purported to sell, that fact could not enlarge the estate conveyed by Kartik Prasad beyond the half share he actually sold and was paid for.
- On wills and surrounding circumstances: Regarding the alleged will said to have vested a half share in Atul Roy, the court relied on the principle (noted from Ram Chandra v. Champabai) that surrounding circumstances must be considered. The court found it improbable such a will had been executed that disinherited the son and grandson, and no will had been produced; thus the allegation of a will was treated as unproved and likely a concoction.
- Practical decree and remedies: The court held that both deeds could be given effect to the extent of one-half each: the 10 June deed was effective to transfer one-half of the property to the plaintiff, and the 18 June deed transferred the remaining half to defendant No.5. The court found it unnecessary to cancel either deed formally; it was open to the court, based on pleadings and findings, to declare each deed effective to the extent of half the property.
- Mesne profits and rents: The court declined to award mesne profits or rents to the plaintiff, noting uncertainty about which portions were actually in the possession of defendant No.5 and what portion was in the possession of the tenant; it suggested equities could be adjusted in separate proceedings if necessary.
- Costs: Given the circumstances and the outcome, the court ordered that the parties bear their own costs throughout the litigation.
Holding and Implications
Core Ruling: The appeal is partly allowed and the judgment and decree of the lower appellate court are modified: the plaintiff is entitled to one-half share of the property on the basis of the sale deed dated 10 June 1968, and defendant No.5 (Smt. Safi Devi) is entitled to the remaining one-half on the basis of the sale deed dated 18 June 1968.
Implications and direct consequences:
- The court declared that both sale deeds are valid to the extent of one-half of the property each; there is no need to cancel either deed in part to give effect to this division.
- Both parties are entitled to joint possession of the house (i.e., the shares as adjudicated), and the court declined to grant the plaintiff any decree for mesne profits or rents in the present suit due to uncertainty of actual possession by each party or the tenant.
- The equities between the parties as to mesne profits, rents or partition of actual possession may be addressed in separate actions based on the respective rights now adjudicated.
- No new broad legal principle was announced; the decision rests primarily on findings of fact and on the construction of the 10 June 1968 sale deed as transferring only the half share actually vested in Kartik Prasad. Costs were shared: each party shall bear their own costs.
This summary is strictly limited to the information contained in the provided opinion and does not infer or introduce facts or legal conclusions beyond those explicitly stated by the court in the opinion.
M.P Mehrotra, J.:— This second appeal arises out of a suit which the plaintiff-respondent No. 1 filed against five defendants. Defendants Nos. 1, 2, 3 and 4 are respondents Nos. 2, 3, 4 and 5 respectively in the instant appeal. The defendant No. 5 Smt. Safi Devi, is the appellant before me. The plaintiff sought the recovery of possession of house No. 77, Muthiganj Allahabad. A decree for mesne profits Rs. 1/- per day with effect from June 10, 1968 to the date of suit amounting to Rs. 50/- and pendentelite and future means profits at the same rate until the delivery of possession were also claimed. Further, the plaintiff claimed rent from the tenant defendant No. 4 Jagannath, Rs. 12/- per month from June 10, 1968 to the date of suit amounting to Rs. 20/- & pendentelite & future rent.
2. The brief facts are these: A sale deed was executed on June 10, 1968 by the defendant No. 1, Kartik Prasad acting for himself and as the father and guardian of his minor son Bhanu, defendant No. 2 and by Atul Roy, defendant No. 3, in favour of the plaintiff, Mahadeo Prasad. The sale deed was executed in respect of house No. 77, Muthiganj, Allahabad and for a stated consideration of Rs. 4,000/-. Due to the circumstances which have been stated in the plaint, the sale deed was finally registered on 25th June, 1968, on which date the defendant No. 1, Kartik Prasad, appeared before the Sub-Registrar and admitted the execution of the sale deed on behalf of himself and his minor son, Bhanu. He also admitted the receipt of the consideration of the sale deed. However, the defendant No. 1, Kartik Prasad, on 18th June, 1968 executed another sale deed in respect of the same house in favour of Smt. Safi Devi, defendant No. 5. The deed was also registered on the same date i.e, 18th June, 1968. Jagannath Prasad, defendant No. 4, happened to be the tenant at the time when the aforesaid sale deeds were executed. The physical possession of the house was not delivered to the plaintiff, Mahadeo Prasad and he claimed that he came to know of the sale deed dated 18th June, 1968 when he applied for mutation of his name to the Nagar Mahapalika. Allahabad.
3. The defendant, in brief, was that the sale deed dated 10th June, 1968 was not a voluntary act on the part of the defendant No. 1 who had been forced to append his signature on blank papers on 13th June, 1963. It was also alleged that an F.I.R to the said effect was lodged by the defendant No. 1 on the same dated 13th June, 1958 at Police Station, Colonelganj, Allahabad. It was further alleged by the said defendant that he was given drinks etc. and was threatened before he was forced to appear before the Sub-Registrar on 25th June, 1968. Under the said circumstances the defendant No. 1 claimed that he was forced to appear before the said Sub-Registrar and admitted the execution of the said sale deed dated 10th June, 1968. Is was further alleged that after he came out of the Sub-Registrar's Office the money which had been paid to him before the Sub-Registrar was taken away from him by the plaintiff. In short, the allegation was that the said sale deed was not a binding and effective one. On the other hand, it was claimed that the defendant No. 1 had entered into an agreement with defendant No. 5, Smt. Safi Devi, on 10th February, 1967 to sell the house in question in her favour for Rs. 3500/- and in pursuance of that agreement a sum of Rs. 500/- was paid to the defendant No. 1 on the same date i.e, 10th February, 1967. The sale deed dated 18th June, 1968 was executed in pursuance of the said agreement of sale dated 10th February, 1967. The defendant No. 3 claimed to be a bona fide purchaser for value without notice. She further claimed that the plaintiff, Mahadeo Prasad, had full knowledge of the earlier agreement of sale dated 10th February, 1967 in her favour. On the said grounds a counter claim was set up for the cancellation of the sale deed dated 10th June, 1968.
4. The trial Court framed the necessary issues and after trial dismissed the suit. On appeal, however, the lower appellate Court set aside the judgment and decree of the trial Court and decreed the suit.
5. The defendant No. 5, Smt. Safi Devi, has now come up in the instant appeal and in support of the same Shri K.C Saxena has made his submissions. On behalf of the plaintiff-respondent Shri Deokinandan (as he then was) was heard in detail.
6. The lower appellate Court recorded the following findings of fact:
(1) The sale deed dated 10th June, 1968 was duly executed in favour of the plaintiff by the defendant No. 1, Kartik Prasad, for self and as guardian of his minor son and by Atul Roy, the defendant No. 3 for consideration and without any undue influence or coercion or fraud such as well alleged by the contesting defendants.
(2) The aforesaid sale deed was presented before the Sub-Registrar on 17th June, 1968 and on that date the defendant No. 2, Atul Roy, had admitted the due execution of the document by him and receipt of the proportionate sale consideration. It was finally presented for registration on 25th June, 1968 when the defendant No. 1, Kartik Prasad, appeared before the Sub-Registrar and admitted the due execution by him and receipt of the proportionate amount of the sale consideration payable to him.
(3) The sale deed dated 18th June, 1968 was also executed by the defendant No. 1. Kartik Prasad, on the said date in favour of the defendant No. 5, Smt. Safi Devi. This document was presented for registration on the same date before the Sub-Registrar.
(4) The defendant No. 5, and her husband Mangal Singh had, on 18th June, 1968 when the sale deed was executed by the defendent No. 1 in favour of the defendant No. 5 notice of the earlier sale deed dated 10th June, 1968 executed by the defendant No. 1 and the defendant No. 3 in favour of the plaintiff.
(5) The alleged agreement to sell dated 10th February, 1967 said to have been executed between the defendant No. 1 and the defendant No. 5 on the said date was not genuine and was ante dated. In fact, it was prepared after the sale deed was executed by the defendant No. 1 and the defendant No. 3 in favour of the plaintiff on 10th June, 1968.
(6) There was no evidence on record except the admission of Kartik Prasad in the sale deed dated 19th June, 1968 to prove that Atul Roy, defendant No. 3, half share in the house by virtue of the alleged will said to have been executed by Dr. Mahadeo Prasad, further of the defendant No. 1.
7. Shri K.C Saxena, learned counsel for the appellant, attached the aforementioned fifth finding on the ground that in the plaint the plaintiff had not attached the agreement dated 10th February, 1967 in any manner whatsoever even though he had become aware of the said document prior to the institution of the suit. In view of the pleadings of the parties, it was not open to the lower appellate Court to hold that the said document was not a genuine one and had been ante dated. Counsel further submitted that the plaintiff in the witness-box did not allege the said document to have been ante dated.
8. It was next contended on behalf of the appellant that the lower appellate Court was not justified in discarding the statement of Kartik Prasad on the ground that he had been convicted by the criminal court and in this connection reliance was placed on Section 52 of the Evidence Act.
9. It was next contended that the sale deed dated 18th June, 1968 executed by the defendant No. 1 in favour of the defendant No. 5 should have priority over the sale deed dated 10th June, 1968 executed by the defendant No. 1 along with the defendant No. 3 in favour of the plaintiff on the ground that the sale deed dated 18th June, 1968 was in pursuance of the agreement of sale dited 10th February, 1967. Reliance was placed on Section 19(b) of the Specific Relief Act and it was submitted that the plaintiff could not be held to be a transferee for value who had paid his money in good faith and without notice of the original contract. Shri Saxena pointed out that the two courts below have given no finding as to whether the plaintiff was or was not aware of the agreement dated 10th February, 1967. However, on the material on record it was clear that the consideration for the sale deed dated 10th June, 1968 had been paid by the plaintiff to the defendant No. 1 on 25th June, 1968 i.e, subsequent to the sale deed dated 18th June, 1968 which had been executed by the defendant No. 1 in favour of the defendant No. 5 and which had also been submitted for registration on the said date. Counsel submitted that it was not only necessary that the plaintiff should have had no notice of the said agreement dated 10th February, 1967 on the date when the sale deed was executed in his favour by the defendant No. 1 and defendant No. 3 but that the plaintiff should have also paid the sale consideration before he had notice of the said agreement dated 10th February, 1967. It was pointed out that sale consideration to the defendant No. 1 was paid by the plaintiff on 25th June, 1968 when the document was presented to the Sub-Registrar and on the said date the plaintiff was aware or should be deemed to be constructively aware of the sale deed dated 18th June, 1968 which had been presented for registration on the said date and in the said sale deed a reference was made to the earlier agreement of sale dated 10th of February, 1967. It was also contended that a reference to Ex. 6, which is the plaintiff's application dated 17th June, 1968, addressed to the Sub-Registrar, Allahabad, proved that the plaintiff was on the said date aware of the said agreement dated 10th February, 1967. Reliance was placed on the following cases in support of the contention based on Section 19(b) of the Specific Relief Act: Md. Aslam Khan v. Feroze Shah . A.I.R 1932 P.C 228., Arunachala v. Madappa . A.I.R 1936 Mad. 949., Gaurishankar v. Ram Sewak . 1934 A.L.J 871., Himmatlal Motilal v. Vasudev Ganesh . 36 Bom. 446..
10. Shri Saxena lastly contended that the lower appellate Court was not justified in holding that the counter claim made by the appellant-defendant No. 5, Smt. Safi Devi, was not maintainable. In any case, it could be treated as the plaint in a cross suit and for this proposition reliance was placed on Laxmidas v. Nanabhai . A.I.R 1964 S.C 11..
11. Shri Deokinandan (as he then was) contended that the appeal was concluded by findings of fact. He placed reliance on Section 47 of the Registration Act to contend that the sale deed dated 10th June, 1968 was operative from the said date even though its registration was effected subsequently. In this connection reliance was placed on K.J Nathan v. Maruthi Rao . A.I.R 1965 S.C 430., Gayatri Prasad v. Board of Revenue . 1973 A.W.R 606., Ramnarain Chaube v. Basdeo Misra . A.I.R 1934 All. 70., Union Bank Ltd. v. Ram Rati . A.I.R 1954 All. 595..
12. Learned Counsel also contended that the mere fact that the sale amount was not paid by the plaintiff to the defendant No. 1 on the execution of the sale deed of 10th June, 1968 did not invalidate the said document. Reliance was placed on State of Kerala v. C.C Refineries . A.I.R 1968 S.C 1361., and Chandrashankar v. Abhla Mathur . A.I.R 1952 Bom. 56.. Counsel also referred to Mohammad Bashir Khan v. Kulsum Bibi . 25 A.L.J 742. and Arunachalan v. Sivan . A.I.R 1970 Mad. 226..
13. I have considered these rival contentions. In my opinion, it is difficult to question the findings of fact which have been recorded by the lower appellate Court even though one may be justified in having real doubts about the genuineness of the sale deed dated 10th June, 1968. Even if the findings recorded by the lower appellate Court be held to be erroneous, still, on the well-known principles governing the jurisdiction of the Court in a second appeal. I have no jurisdiction to interfere. It was open to the lower appellate Court to assess the evidence on record and to discard the testimony of Kartik Prasad, the defendant No. 1. Even if Shri Saxena be held to be justified in taking exception to the lower appellate Court discarding the testimony of Kartik Prasad on the ground that the latter happened to have been convicted by the Court of Session as evidenced by the Criminal Court's judgment on record, still, it has to be emphasised that the lower appellate Court did not discard the evidence of the said witness on the said ground alone. There are other grounds, including circumstantial evidence, on which the lower appellate Court has preferred not to rely on the statement of the said witness. Therefore, it cannot be held that the lower appellate Court committed any legal error in discarding the testimony of the said witness. Again, it is difficult to accept Shri Saxena's contention that the lower appellate Court was not justified in holding that the alleged agreement dated 10th February, 1967 was not a genuine one and had been ante dated and prepared after 10th February, 1968 when the sale deed was executed in favour of the plaintiff by the defendant Nos. 1 and 3. It was not necessary for the plaintiff to specifically attack the said document in the plaint before he could be held entitled to attack the same. The contesting defendants were relying on the said document and it was for them to prove the genuineness of the same. They had placed reliance on the said document in their written statement and the trial Court framed a specific issue being issue No. 4 in regard to the factum and the effect of the said alleged agreement dated 10th February, 1967. The plaintiff could not be expected to have any personal knowledge about the said document and the particular date on which it was executed. All these matters were in the special knowledge of the contesting defendants and, therefore, it was for them to satisfy the Court by cogent evidence. The trial Court also dealt with the said issue and the finding in favour of the contesting defendants was returned with the utmost hesitancy and doubt. The lower appellate Court, however, decided the issue against the said defendant. In these circumstances, it cannot be said that the defendants were in any manner prejudiced or taken by surprise by the trial of the said question by the courts below. Shri Saxena placed reliance on an unreported decision of a Division Bench in First Appeal No. 378 of 1968, Hari Singh v. Pakhru. I have looked into the said judgment and it is obvious that the facts and circumstances of that cases were different. No issue had been framed in the said case and the defendants were prejudiced inasmuch as they did not lead any evidence in the absence of such an issue. In the facts of the instant case, the situation is entirely different. A specific issue was framed in the trial Court and the parties led evidence and both the courts below dealt with the said controversy. Therefore, it follows that the reliance on Section 19 of the Specific Relief Act on the part of Shri Saxena is not justified. The said section could have come into play when the agreement dated 10th February, 1967 were held to be genuine document.
14. I have, therefore, felt that much of the aforesaid case law which has been cited at the Bar does not call for any comment or detailed discussion in view of the findings of fact recorded by the lower appellate Court.
15. However, in my opinion, the lower appellate Court was not justified in interpreting the sale deed dated 10th June, 1968 in the manner as it did. I have already stated above that the lower appellate Court was not satisfied that Atul Roy, defendant No. 3, really had half share in the house in question on the basis of the alleged will said to have been executed by Dr. Mahadeo Prasad, father of the defendant No. 1. In my opinion, as the evidence stands, it must categorically be held that there was no such will as was alleged to have been executed by Dr. Mahadeo Prasad bequeathing half share in the house in question in favour of Atul Roy and the allegation about the will is a pure concoction. One would have expected the will to have been in the custody of either Atul Roy or, after the sale deed dated 10th June, 1968, in the custody and possession of the plaintiff. However, no such will has been produced from the custody of either of them. The Supreme Court in Ram Chandra v. Champabai, 14 emphasised that in the case of wills the surrounding circumstances have also to be looked into. Here Dr. Mohadeo Prasad had a son alive and a grandson alive and in these circumstances it would be wholly against natural course of things that he would have executed a will disinheriting his own child and grand-child. To say the least, the role of Atul Roy seems to me absolutely mystifying and it has seemed to me that his role was such as to make the entire transaction dated 10th June, 1968 to be a big question mark. However, as I have felt that I am bound by the findings recorded by the lower appellate Court, it is not necessary for me to discuss the said matter in further. The lower appellate Court felt that on an interpretation of the sale deed dated 10th June, 1968 it had to be held that the defendant No. 1, Kartik Prasad, transferred the entire interest in the property in favour of the plaintiff. In my opinion, this interpretation of the document is not correct. It was clearly recited in the document that the defendant No. 1 and the defendant No. 3 had half share each and each of them transferred his half share in favour of the plaintiff. The fact that it has been subsequently found that the defendant No. 3 did not have any share in the property such as was alleged in the document cannot be taken advantage of by the vendee in so far as the extent of the sold share of Kartik Prasad was concerned. It has also to be emphasised that on the own admission of the plaintiff, a sum of Rs. 2,000/- was paid to Atul Roy and a sum of Rs. 2,000/- was paid to the defendant No. 1 separately. In other words, half the consideration of the sale deed was paid by the plaintiff to the defendant No. 1 and the other half to the defendant No. 3. It seems to me that in such a situation it cannot be contended that even though on the language of the document the defendant No. 1 purported to sell his half share in the property and even though he was paid only half the sale consideration on the basis of the purported sale of his half share, still, the defendant No. 1's transferred estate should be so enlarged as to include the entire property. I do not think that on any principle of law or equity the plaintiff can be allowed to take advantage of certain statements occurring in the body of the sale deed which imply that the vendors had ceased to have any right or interest in the property. The said statements have to be read subject to the earlier recital in the sale deed that each of the vendor had half share in the property and the occasion of the rights and interests of the vendors has to be construed in reference to the aforesaid recital about the share of each being one-half in the property. In my view, therefore, by the sale deed dated 10th June, 1968 only the half share in the house in question was transferred to the plaintiff by the defendant No. 1. There was no transfer of the other half inasmuch as Atul Roy did not have any right or interest in the property. Therefore, on 18th June, 1968 it was open to the defendant No. 1 to execute the sale deed in favour of the defendant No. 5 in respect of his remaining half share in the property. When I have talked of the share of defendant No. 1, I have meant the interest of the defendant No. 2, his minor son, to be also included in the former's share. In this view of the matter, the appeal has to be partly allowed. It is not necessary to go into the controversy whether the counter claim can be treated as the claim in a cross suit inasmuch as it is not necessary that the document in question i.e, the deed dated 10th June, 1968 should be cancelled as was sought for in the said counter-claim. Even without a counter-claim, it is open to the Court to hold and declare that the plaintiff is entitled to half the share in the property on the basis of the said sale deed dated 10th June, 1968 and the document is good only to the extent of one-half and not to the full extent. There is no necessity that either the sale deed dated 10th June, 1968 or the sale deed dated 18th June, 1968 should be cancelled to the extent of half each. However, even without such cancellation and on the pleadings of the parties, it is open to the Court to come to such a finding that the said two documents are good to the extent of half of the property each and not to the extent of full property and I have so held accordingly in the foregoing discussion.
16. The judgment and decree of the lower appellate Court is accordingly modified. It is held that the plaintiff is entitled to half the property in question on the basis of the sale deed dated 10th June, 1968. The defendant No. 5 is entitled to the remaining half of the said property on the basis of the sale dated 18th June, 1968. Both the parties are entitled to the joint possession over the said house. I do not think that the plaintiff should have any decree for mesne profits or for rents in this suit. It is not known as to what is the extent of the property in actual possession of the defendent No. 5 and what is the extent of the portion in the possession of the tenant. The equities between the parties in these matters can be better adjusted in any separate action which may be taken by the parties on the basis of the respective rights of the parties as have been adjudicated above. In the circumstances of the case, the parties shall bear their own costs throughout the litigation.
Alert