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  • Prakash Krishna, J.
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Smart Summary

Structured Summary of the Opinion (Prakash Krishna, J.)

Factual and Procedural Background

The present appeal arises from a suit filed for cancellation of a sale deed dated 18.1.1966 executed by Ram Nath (defendant No.2) in favour of the appellant (defendant No.1). The sale deed concerned a house described in the plaint. The plaintiffs alleged that the property was ancestral and that Ram Nath could not lawfully alienate it without the consent of co-parceners. The plaintiffs also alleged that the sale was procured by fraud (attributed to Sharda, the appellant), no sale consideration was paid, the deed described the house as a "Khandhar", the deed was neither read nor explained to the illiterate Ram Nath, and the vendee never entered into possession.

The defendants denied fraud, asserted that consideration was paid and that Ram Nath was the absolute owner and competent to sell, and asserted that the plaintiffs had knowledge of the sale (raising a limitation defence). The trial court framed five issues and found that the sale deed was executed for consideration, that Ram Nath understood the deed and executed it with knowledge, but held the sale invalid because the transfer was not for legal necessity and Ram Nath alone was not competent to alienate ancestral property. The trial court decree dated 31.7.1974 (Suit No. 95 of 1971) was affirmed by the first appellate court by judgment dated 23.5.1975 (Civil Appeal No. 281 of 1974). The appellant then filed the present appeal against the concurrent judgments of the two courts below.

Legal Issues Presented

  1. Whether Ram Nath was competent to alienate the disputed property because there had been an earlier partition among family members.
  2. Whether the sale deed should be held valid at least to the extent of the share of Ram Nath (i.e., whether alienation could pass the alienator's own share).
  3. Whether, if cancellation of the sale deed is decreed, a conditional decree requiring refund of the sale consideration (Rs. 1,000) should have been passed to adjudge equities between the parties.

Arguments of the Parties

Appellant's Arguments

  • The appellant argued that partition in the family had already occurred, so Ram Nath was competent to alienate his exclusive share.
  • The appellant contended that, even if the sale could not be upheld in full, it should be validated at least insofar as it affected the share of Ram Nath.
  • The appellant submitted that the trial court should have passed a decree requiring refund of the sale consideration (Rs. 1,000) as an equitable condition when setting aside the sale deed, relying on Section 33 of the Specific Relief Act and the decision in Mst. Hameedan Bibi v. Nanhumal (AIR 1933 All 372).
  • In defence, the respondents (defendants below) also pleaded that consideration was paid and Ram Nath understood the transaction, and that the sale was for the family's benefit and later improvements were made.

Respondent's Arguments

  • The plaintiffs/respondents relied on the claim that the property was ancestral and that Ram Nath could not alienate it without consent of co-parceners unless there was legal necessity.
  • The respondents also replied that the appellant had not raised the partition plea below and thus could not advance that new contention on appeal.
  • The respondents maintained that the evidence did not establish partition and that the burden was on the appellant to plead and prove partition with particulars (including the date).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mst. Hameedan Bibi v. Nanhumal, AIR 1933 All 372 Authority cited by appellant to support an equitable requirement that a plaintiff who retains property should return any sale price received by co-executants (i.e., to justify an order for refund as a condition of cancellation). The court distinguished this decision on its facts (there the plaintiff had not received her share of partition price) and concluded it did not control the present case; the court did not apply this precedent to require a refund here.
Madan Gopal v. Sati Prasad, 1917 ALJ 425 Division Bench authority holding that where a father of a Joint Hindu family alienates family property without legal necessity, a conditional decree requiring sons to refund purchase money should be struck down because the cash paid at the time of sale is not an antecedent debt binding the sons. The court regarded this decision as nearer in point of fact to the present case and relied on it to reject the appellant's submission that refund should be ordered as a condition of cancellation.
Manbahal v. Gopal Misir, 1901 AWN 57 Earlier decision relied upon in support of the view that refunds should not be imposed on sons when a sale by the father (without legal necessity) is set aside. The court noted that Madan Gopal had placed reliance upon Manbahal; Manbahal was cited to support the proposition that conditional refunding orders are inappropriate in such circumstances.
Hashmat Rai v. Sunder Das, 1885 ILR (II) Cal 396 A Calcutta High Court decision from which the Court in Manbahal had dissented; part of the jurisprudential background on whether refunds/conditions are appropriate. The opinion records that Manbahal dissented from Hashmat Rai; Hashmat Rai was not applied to the present case but referenced in the chain of authorities.

Court's Reasoning and Analysis

The court proceeded through the appeal by addressing the three points urged by the appellant.

On the partition point, the court observed that the trial court's framed issues did not include partition and that the appellant had not adequately pressed a partition plea below. Although paragraph 22 of the written statement contained a broad assertion that family members were separate and had become owners of respective shares, the court found this pleading insufficient to establish a formal partition. The court examined the evidence relied upon by the appellant, particularly the testimony of P.W.3 Manohar, and noted that Manohar expressly described the property as ancestral and stated that no partition had occurred between him and Ram Nath. The court reiterated the legal principle that the burden lay on the appellant (defendant) to plead and prove partition with particulars (including the date) and to produce supporting witnesses; the appellant failed to do so. The court held that whether partition occurred is essentially a question of fact and that the courts below correctly found that partition had not been proved.

On the contention that the sale should be upheld to the extent of Ram Nath's share, the court applied the rule governing Mitakshara joint-family property (as cited from Mulla on the Principles of Hindu Law, Section 269): where a member of a joint Hindu family (under Mitakshara law as administered in Bengal, Bihar and U.P.) alienates joint family property without consent of co-parceners, such alienation is liable to be set aside unless it is for legal necessity or for payment of antecedent debt, and such alienation does not pass even the alienating coparcener's share. The trial court had recorded a factual finding that the sale was not executed for legal necessity. That finding of fact was not challenged in the second appeal and therefore could not be disturbed. Applying this legal principle to the unchallenged factual finding, the court concluded that the sale could not be sustained even insofar as it purported to affect Ram Nath's individual share.

On the equitable refund question, the court considered the appellant's reliance on Section 33 of the Specific Relief Act and on Mst. Hameedan Bibi v. Nanhumal. The court distinguished Hameedan Bibi on its facts and turned to controlling authority from this Court, notably the Division Bench decision in Madan Gopal v. Sati Prasad (1917 ALJ 425). Madan Gopal held that where a father of a joint family sells family property without legal necessity and sons set aside the sale, it is improper to condition the decree on the sons refunding the purchase money paid to the father; the amount paid in cash at the time of sale is not an antecedent debt binding on the sons at that time. The opinion noted reliance in Madan Gopal upon Manbahal v. Gopal Misir and referred to a historical divergence from Hashmat Rai v. Sunder Das. Having regard to these authorities and the facts (sale not for legal necessity, sons seeking to set aside the alienation), the court rejected the appellant's submission that a refund decree should have been imposed as a condition of cancellation.

On procedural points, the court also observed it could not permit the appellant to raise a partition point on appeal when it had not been properly pleaded or pressed in the trial court and where the evidence did not establish partition.

Holding and Implications

Holding: Appeal dismissed.

The court dismissed the appeal and upheld the concurrent findings and decrees of the trial court and the first appellate court which decreed cancellation of the sale deed dated 18.1.1966 executed by Ram Nath in favour of the appellant. The court refused to uphold the sale even insofar as it purported to affect Ram Nath's individual share (because the sale was not for legal necessity), and it declined to require refund of the sale consideration as a condition for cancellation, relying on the cited precedents (notably Madan Gopal v. Sati Prasad). There was no order as to costs.

Implications:

  • The cancellation of the impugned sale deed as decreed by the courts below stands affirmed.
  • The appellant's arguments that partition had vested exclusive title in Ram Nath, or that the sale should be sustained as to his share, were rejected for lack of pleaded and proved partition and because the sale was not for legal necessity.
  • The appellant's request for a conditional decree requiring refund of the Rs. 1,000 sale consideration was rejected in light of binding precedents; the court held that such a refund condition was inappropriate in the circumstances.
  • No new legal principle or precedent was announced; the court applied established authorities and factual findings and dismissed the appeal. (The opinion specifically notes that factual findings on legal necessity and absence of fraud were not challenged and therefore remain undisturbed.)

Order: Appeal fails and is dismissed; there will be no order as to costs.

Show full summary ...

    Sharda (D) Through L.Rs v. Manohar (D) Through L.Rs And Others

    Prakash Krishna, J.:— The suit out of which present appeal has arisen was brought by the plaintiff respondent for cancellation of sale deed dated 18.1.1966 executed by the defendant No. 2, in favour of defendant No. 1 (appellant). The said sale deed is in respect of a house described in the plaint. The suit was filed on the allegations that the property in dispute is ancestral property. The impugned sale deed dated 18.1.1966 was executed by Ram Nath. The plaintiff Nos. 1, 2 and 3 are sons of Shiv Govind having half share in the disputed property and the plaintiff Nos. 4, 5 and 6 are the sons of Ram Nath and they along with their father Ram Nath have remaining half share in the disputed property. The pedigree has been given in the plaint, which is not in dispute. The cancellation of the sale deed was sought on number of grounds including that the sale deed was got executed by Sharda, the appellant, in his favour by playing fraud and no sale consideration was passed. The property in dispute being ancestral property. Ram Nath was not entitled to execute the sale deed in respect of ancestral property without the consent of other co-parceners. The property in question though is a house, but has been described as “Khandhar” in the sale deed. The sale deed was neither read over nor was explained to Ram Nath who was illiterate and simple person. The transfer was never acted upon and the vendee never entered into possession of the disputed property.

    2. The suit was contested on the pleas, inter alia, by denying the allegations of fraud and that sale consideration was paid at the time of execution of the sale deed and Ram Nath executed it after fully understanding the nature of deed. It was further pleaded that the defendant No. 2 Ram Nath was the absolute owner of the property sold and it was sold for the benefit of the members of his family, as the property was in the form of ‘Khandhar’ at the time of sale and the house was subsequently raised at its place by the defendant. The plaintiffs had full knowledge of the sale deed and, as such, the suit is barred by limitation. The trial court framed necessary issues on the basis of pleading of the parties and found that the sale deed was for consideration and Ram Nath executed it with full knowledge and after understanding its contents and import. It was further found by the trial court that the property in question being ancestral property it could be transferred with the consent of all co-parceners or in the case of legal necessity by Ram Nath alone. The sale deed was found to be invalid by the trial court on the ground that it was not executed for legal necessity and, as such Ram Nath alone was not competent to execute the sale deed. The judgment and decree of the trial court in the aforesaid Suit No. 95 of 1971, dated 31.7.1974 has been confirmed by the first appellate Court in Civil Appeal No. 281 of 1974, vide its judgment and decree dated 23.5.1975 Aggrieved against the concurrent judgments of both the Courts below decreeing the suit for cancellation of the sale deed dated 18.1.1966 executed by defendant No. 2 Ram Nath in favour of the present appellant, present appeal has been filed. The finding of the trial court that the sale deed, was executed for consideration and no fraud was played upon Ram Nath was neither challenged before the first appellate court nor before me in this appeal. The main point, which was pressed before the appellate court, was that Ram Nath was competent to alienate the property in question without the consent of other members of the family. The first appellate court decided this point, against the appellant.

    3. Heard learned counsel for the parties.

    4. Learned counsel for the appellant has pressed the present appeal on the following three questions:

    (i) Ram Nath was competent to alienate the property in question as there was earlier partition amongst the family members.

    (ii) The sale deed should be held valid at least to the extent of share of Ram Nath.

    (iii) At least decree for refund of sale consideration should have been passed by the Courts below as a condition for the cancellation of the sale deed.

    5. On the first point learned counsel for the appellant submitted that from the evidence on record partition in the family of Ram Nath is fully established. Elaborating his argument reliance has been placed upon the statement of P.W 3 Manohar. In reply learned counsel for the respondent submitted that no such plea was raised by the defendant appellant before the Courts below and, as such, it is not open to urge a new point in this appeal. The trial court framed the following five issues:

    (1) Whether the sale deed dated 18.1.1966 is invalid as alleged in para 12 of the plaint?

    (2) Whether the suit is undervalued and Court fee paid is insufficient?

    (3) Whether the suit is barred by time?

    (4) Whether the suit is bad for non joinder of necessary parties?

    (5) To what relief, if any, the plaintiff is entitled?”

    6. A bare perusal of the above issues clearly show that no plea of partition was raised before the trial court. However, the learned counsel for the appellant has invited my attention towards paragraph 22 of the written statement. In the said written statement it has been stated that from a considerable period of time members of the family of the plaintiffs are separate and they have become the owner of their respective shares and have indulged in transferring various properties and none of them has any share in the property in question. Ram Nath has got filed the present suit in collusion with the plaintiffs.

    7. The aforesaid pleading is hardly sufficient to say that partition had taken place in the family of the plaintiffs. The appellant before the trial court did not press the plea of partition. However, there is some discussion in the judgment of the first appellate court. The first appellate court has considered the statement of Manohar, P.W 3. From the statement of Manohar it cannot be said that there was partition in the family members of the plaintiffs. Manohar has stated in his cross-examination that the property in dispute is ancestral property. He has further stated that presently the family members are residing separately and they are bearing their household expenses respectively. He has further reiterated in his deposition that no partition has taken place in between him and Sri Ram Nath. The parties are cultivating their respective fields for the last eight nine years separately. Therefore, there is no convincing evidence on record to show that partition had taken place and the disputed property falls in the exclusive share of Ram Nath. Learned counsel for the respondent is right in his submission that burden lay upon the defendant appellant to prove that the partition had taken place. He has failed to give the particulars of the partition. He has not pleaded the date on which partition took place. The parties are villagers of the same village. He could have produced some witnesses of the village in support of the plea of partition. In absence of specific plea of partition or the issue, the finding of the Court below recorded by it after appreciating the oral evidence of P.W 3 that the appellant has failed to prove partition, is correct. The Court below has given cogent reasons to hold that the partition of the dispute property has not been proved by any evidence in this case. In a joint family the parties may be separate in lodging and messing but that would not give a fact that ancestral property also have been partitioned between them. Moreover, as to whether any partition had taken place or not is basically a question of fact.

    8. The learned counsel for the appellant argued that at least to the extent of share of Ram Nath the sale deed should have been upheld. Where members of Joint Hindu Family the property governed by “Mitakshra Law” as administered in Bengal, Bihar and U.P, sells or mortgaged Joint family property or any portion thereof without the consent of co-parceners, alienation is liable to be set aside unless it is for legal necessity or for payment by the father of antecedent debt and it does not pass the share even of alienating coparcener. The result is that if alienation is not for legal necessity nor for payment of antecedent debt, other co-parceners are entitled to declaration that alienation is void in its entirety. (See Mulla on the Principles of Hindu Law, Section 269, 13th Edition). In the case in hand a finding has been recorded by the trial court that the sale deed was not executed for any legal necessity. This finding has not been and could not have been challenged in the Second Appeal being a question of fact. In view of the above principles of law the second argument of the learned counsel for the appellant has no merit and is liable to be rejected.

    9. Lastly it was argued that the trial court has found that the defendant appellant gave a sum of Rs. 1,000 as sale consideration to Ram Nath. It was submitted that at least decree for refund of the said amount should be passed to adjudge the equities between the parties. Learned counsel has placed reliance upon Section 33 of the Specific Relief Act. The said section gives power to a Court requiring the benefit to be restored or compensation to be made when instrument is cancelled or his successor resisted as being void or voidable. In support of his argument reliance has been placed upon a Division Bench judgment in Mst. Hameedan Bibi v. Nanhumal, AIR 1933 All 372. The said judgment is distinguishable on the facts of the case. In the said judgment the co-executants of sale deed filed a suit for its cancellation so far as her interest was concerned. In that case it was found that the plaintiff did not receive her share of partition price. In the circumstances it was held that there is no reason why she should not return the money, she has got and compensate other side, when she is being allowed to retain her property. This controversy so far as our Court is concerned has been set at rest by a Division Bench judgment in Madan Gopal v. Sati Prasad, 1917 ALJ 425. A father of Joint Hindu family sold the property belonging to the family without legal necessity. The sons brought suit to set aside the sale and to recover possession of the property. A decree was passed conditionally on their refunding portion of purchase money, which was proved to have been received by the father. It was held by this Court that condition should be struck down inasmuch as until the sale was set aside, the consideration paid in cash at the time of sale to the father cannot be regarded as an antecedent debt or as a debt of the father binding on the sons. This Court has placed reliance upon its earlier judgment and has held that the amount so paid at the time of execution of sale deed by the vendee may at some subsequent time become debt of the father but until this event arises it cannot be deemed to be the debt for which the son at that time when they got sale deed set aside can be held liable. It has been further noticed that there are other case decided by this Court in which same view was taken. The aforesaid judgment given in the case of Madan Gopal (supra), is nearer to the facts of the case in hand. The present suit was also brought by the sons of Ram Nath and other family members, therefore where alienation by the father is set aside at the instance of the son on the ground that it is neither for legal necessity nor for antecedent debt, sons are entitled to have set aside without its being made a condition that they should refund by the consideration paid by allienee to the father. In the case of Madan Gopal (supra), this Court has placed reliance upon its earlier decision given in the case of Manbahal v. Gopal Misir, 1901 AWN 57.

    10. In that case this Court has dissented from a decision of the Calcutta High Court in Hashmat Rai v. Sunder Das, 1885 ILR (II) Cal 396.

    11. In view of the above discussion said point has also got no merit and is rejected.

    12. In the result appeal fails and is accordingly dismissed. There will be however no order as to costs.

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    Comments

    Sharda (D) Through L.Rs v. Manohar (D) Through L.Rs And Others
    (Jan 20, 2004)