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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.N. Saxena
  • V. Swarup and K.S. Shukla
Judges
  • Deoki Nandan, J.
Acts
  • sub-sec. (2) in S. 90 and the addition of S. 90A in the Evidence Act,
  • S. 157, Bengal Tenancy Act,
  • S. 122, T.P Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.N. Saxena
  • V. Swarup and K.S. Shukla
Judges
  • Deoki Nandan, J.
Acts
  • sub-sec. (2) in S. 90 and the addition of S. 90A in the Evidence Act,
  • S. 157, Bengal Tenancy Act,
  • S. 122, T.P Act,
See more information ...
Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This matter is a second appeal brought by Smt. Sunder Bai (defendant No. 3, since deceased) challenging a decree for possession of a house together with damages at Rs. 15 per month from 15 February 1963 until delivery of possession. The suit involved three defendants; a decree for possession had been passed against all three, but damages were awarded only against defendants Nos. 1 and 2. The plaintiff asserted that he purchased the house from defendant No. 2 (Janak Kishori) under a sale deed dated 15 February 1963. The trial court found the sale deed invalid and decreed refund of the sale consideration of Rs. 8,500 against defendant No. 2 alone. Defendant No. 2 did not appeal the trial court's decree; the plaintiff appealed to the lower Appellate Court contending that the sale deed was valid and that he was entitled to possession and mesne profits (his primary claim), arguing the refund was sought only in the alternative.

Relevant family and title facts described in the opinion: Rajju (the elder) had three daughters (Hira, Mulla and Dhanwanti). Hira had two children: Kashi Prasad (son) and Smt. Sunder Bai (daughter). Smt. Sunder Bai is defendant No. 3; her son Kishori Lal is defendant No. 1. Kashi Prasad had two daughters, Girja Bai and Janak Kishori (defendant No. 2). It was asserted that Kashi Prasad was adopted by his maternal grandfather Rajju, and that Rajju had executed a registered gift-deed dated 28 April 1913 purportedly gifting all his property to Kashi Prasad. Rajju died in 1930. Kashi Prasad executed a will dated 24 October 1948 and died on 9 November 1948, leaving the property under the will to his daughter Janak Kishori (who was a minor at his death). Guardianship arrangements and subsequent events led to Janak Kishori selling the house to the plaintiff after attaining majority, while defendants 1 and 3 were in occupation of the house (the plaintiff treating them as licensees whose licence had been terminated).

The principal factual/legal matters identified in the record were: (1) whether Kashi Prasad was validly adopted by Rajju; and (2) whether the registered gift-deed dated 28 April 1913 was valid and effective.

Legal Issues Presented

  1. Whether adoption of Kashi Prasad by Rajju was proved.
  2. Whether the registered gift-deed dated 28 April 1913 (by which Rajju purportedly gifted property to Kashi Prasad) was valid and proved.
  3. Whether a plaintiff who has obtained an alternative relief at trial (refund of the sale consideration) can nevertheless appeal against the trial court's refusal to grant the main relief (possession and mesne profits).

Arguments of the Parties

Plaintiff's Arguments

  • The sale deed dated 15 February 1963 in his favour was valid and, on that basis, the plaintiff was entitled to the decree for possession and mesne profits (this was the primary relief claimed).
  • The claim for refund of Rs. 8,500 was pleaded only in the alternative in the event the court found some defect in defendant No. 2's right to sell.

Defence / Respondents' Arguments (as recorded)

  • It was contended for the opposing side that there was no proof of acceptance of the gift by Kashi Prasad and that, in the absence of acceptance, mere execution of the gift instrument would not effect a valid gift; reliance was placed on Section 122 of the Transfer of Property Act (referred to in the opinion as S. 122, T.P. Act).
  • It was also contended that because the trial court had granted the plaintiff the alternative relief of refund and the defendants had not appealed that specific decree, the plaintiff could not appeal to obtain the main relief (possession/mesne profits) and, consequently, the lower Appellate Court lacked jurisdiction to modify the trial court's decree and grant possession and mesne profits instead of the refund.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Reajuddin Patwari v. Abdul Jobbar, AIR 1924 Cal 445 Principle that a plaintiff who accepted an alternative relief granted by the trial court could not afterwards reject that relief and seek the main relief on appeal (illustration cited from Calcutta High Court). The Court summarized the Calcutta decision and explicitly rejected its broad application in the facts of this case, declining to adopt the view that the plaintiff was automatically precluded from appealing for the primary relief after receiving the alternative relief.
Sakku Bai v. R.B. Reddiar, AIR 1977 Mad 223 Similar principle from the Madras High Court that a plaintiff who is given an alternative relief cannot later appeal for the main relief — based on the dominance of the plaintiff's choice and the doctrine against approbation and reprobation. The Court discussed this decision and also declined to follow its reasoning as an absolute rule, finding it inapposite to the facts where the plaint showed the main relief to be the primary claim and the alternative relief to be subordinate.
Union of India v. Garbhu Sao, AIR 1972 Pat 341 Principle that whether a plaintiff who obtained an alternative relief can appeal for the main relief depends on whether the plaint as a whole shows the main relief to be the plaintiff's real claim; focuses on whether the plaintiff remains a "person aggrieved". The Court endorsed the Patna High Court's reasoning and applied it: because the plaint disclosed that possession was the primary claim and refund only an alternative, the plaintiff was a person aggrieved by the refusal of the main relief and was entitled to appeal.
Gopalan Nair v. Madhavan, AIR 1964 Ker 153 Used as support for the proposition that a plaintiff may appeal against refusal of the principal relief even if an alternative relief was granted at trial. The Court cited this Kerala High Court authority as additional support for its conclusion that the plaintiff could appeal the refusal of the main relief.

Court's Reasoning and Analysis

The Court proceeded by recounting the findings of the courts below and analyzing the key legal questions strictly on the basis of the record and authorities cited.

  1. Adoption: The courts below had found that the adoption of Kashi Prasad by Rajju was not proved. That finding was not challenged before the Court and therefore stood as a fact in the record; the present opinion does not revisit or disturb that finding.
  2. Validity and proof of the gift-deed: The trial court had refused to rely on the gift-deed because the original was not produced. The lower Appellate Court, however, accepted a certified copy filed as Paper No. 64-C as secondary evidence and held (with reference to statutory amendments in Uttar Pradesh — insertion of sub-sec. (2) in Section 90 and addition of Section 90A to the Evidence Act) that the registered gift-deed was duly executed and had been acted upon (noting municipal mutation of Kashi Prasad's name and admissions in guardianship proceedings). The High Court noted that the lower Appellate Court's finding on this point was not seriously challenged before it.
  3. On the specific contention that there was no proof of acceptance of the gift (relying on Section 122, Transfer of Property Act), the Court examined the registered instrument and the factual context. The gift-deed itself described Kashi Prasad as a minor (about eight and a half years old) living under the donor's care, with the donor having brought him up. The Court reasoned that where the donee is a minor living in the donor's house and brought up by him, the conventional question of acceptance does not arise: the factual language of the deed and the circumstances demonstrated that the gift had been given and acted upon. The opinion quotes the deed's terms showing care and transfer language and treats those facts as determinative for acceptance in the present context.
  4. Maintainability of appeal by a plaintiff who obtained alternative relief at trial: The Court addressed authorities (Calcutta and Madras decisions) which had held that a plaintiff who is granted an alternative relief at trial could not thereafter appeal seeking the main relief. After reviewing those decisions, the Court rejected their absolute application. Relying on the Patna decision in Union of India v. Garbhu Sao, the Court adopted the finer rule that the crucial question is whether the plaint read as a whole shows that one of the alternative reliefs was the main relief and the other merely subsidiary; if so, the plaintiff remains a "person aggrieved" by the refusal of the primary relief and may appeal.
  5. Application to the present facts: On the pleadings the Court found that possession with mesne profits was the plaintiff's principal claim while refund of the sale consideration was pleaded only in the alternative in case the sale was found invalid. The Court concluded that the plaintiff was not satisfied with the alternative monetary relief and was aggrieved by the trial court's decision refusing possession. Therefore, on this principle, an appeal by the plaintiff against refusal of the main relief was permissible. The Court cited the Kerala authority Gopalan Nair v. Madhavan as supportive of this approach.
  6. Despite these legal positions, the ultimate disposition of the particular appeal before the Court is to dismiss the second appeal (see Holding below).

Holding and Implications

Final Disposition: APPEAL DISMISSED — the appeal fails and is dismissed with costs (as recorded in the opinion: "In the result, the appeal fails and is dismissed with costs. Appeal dismissed.").

Direct consequences for the parties (as discernible from the opinion):

  • The dismissal of the second appeal leaves in place the findings and relief(s) determined by the lower Appellate Court (which had held the gift-deed dated 28 April 1913 to be proved, treated the will dated 24 October 1948 as duly executed, and concluded that defendants 1 and 3 were mere licensees whose licence had been terminated, rendering them liable to deliver possession to the plaintiff).
  • The Court awarded costs against the appellant (as noted in the brief final order).

Broader legal implications: The Court expressly rejected a categorical reading of the Calcutta and Madras decisions that would bar a plaintiff from appealing for a primary relief after obtaining an alternative relief at trial. Instead, it accepted and applied the more nuanced test articulated by the Patna High Court (Union of India v. Garbhu Sao) and supported by the Kerala High Court decision cited, namely that the plaint must be read as a whole to determine whether the plaintiff remains a "person aggrieved" and therefore entitled to appeal. The opinion does not purport to lay down a novel precedent beyond applying those authorities to the facts.

Show full summary ...

    Smt. Sunder Bai Died By L.R Kishorilal v. Anandi Lal Died And After Him Smt. Mohaniwali And Others

    1. This is a 2nd appeal by Smt. Sunder Bai, defendant No. 3 (since deceased), from a decree of possession over a house with damages at Rs. 15/- per month from 15th Feb. 1963 onwards till the date of possession. The defendants were three in number. The decree for possession was passed against all of them, but the decree for damages has been passed only against the defendants Nos. 1 and 2. The plaintiff claimed to have purchased the house from the defendant No. 2 under a sale deed dated 15th Feb., 1963. The trial court had decreed the suit for refund of the sale consideration of Rs. 8,500/- against defendant 2 alone on the finding that the sale deed was invalid. Defendant 2 did not appeal from the trial court's decree, but the plaintiff appealed and contended that sale deed was valid, and that he was entitled to the decree for possession and mesne profits as claimed by him instead of the relief for refund of Rs. 8,500/- which had been claimed by him only in the alternative, on the allegation that if, for any reason, the court took the view that there was some defect in the right of defendant 2 to sell the house, then in that case he was entitled to a refund of the sale consideration of Rs. 8,500/-.

    2. The relevant facts may now be stated. One Rajju had three daughters, namely, Hira, Mulla and Dhanwanti, Hira had a son Kashi Prasad and a daughter Smt. Sunder Bai. Smt. Sunder Bai is defendant 3 and her son Kishori Lal is defendant 1. Kashi Prasad had no son. He had two daughters, Smt. Girja Bai and Smt. Janak Kishori. Smt. Janak Kishori is defendant 2. It was claimed that Kashi Prasad had been adopted by his maternal grandfather Rajju, and otherwise too, by a registered gift-deed dated 28th April, 1913, he had gifted all his property to Kashi Prasad. Rajju died in 1930. Kashi Prasad made a will dated 24th October, 1948, and died subsequently on the 9th November, 1948. Under his will, he gave the property to his daughter, Janak Kishori, defendant 2. Janak Kishori was a minor when Kashi Prasad died. Sunder Bai, defendant 3, was appointed the guardian of her person, while Kishori Lal defendant 1 was appointed the guardian of his property. After marriage and attaining majority, Janak Kishori sold the house to the plaintiff. Defendants 1 and 3 had, however, been living in the house in suit. According to the plaintiff's case, they were living as licensees and the licence having been terminated, the plaintiff was entitled to possession. The two basic questions, which arose in the case, were whether Kashi Prasad was the adopted son of Rajju and secondly whether the gift, which he purported to make in favour of Kashi Prasad by registered deed dated 28th April, 1913, was valid.

    3. The adoption has been found by both the courts below to be not proved, and that finding has not been questioned before me. On the question about the gift-deed, the trial court held that the original gift-deed was not produced and, therefore, no reliance could be placed on it. It was in view of these two findings that the trial court found that Kashi Prasad was not the owner of the house and Janak Kishori too did not have any right to the property, rather the succession opened in 1954 on the death of Smt. Dhanwanti. According to the trial court, Smt. Janak Kishori did not have, in these circumstances, any right to sell the house and passed a decree for the refund of the sale consideration.

    4. On appeal before the lower Appellate Court, a fresh issue was framed, namely, whether the will dated 24th October, 1948, set up by the plaintiff, was duly and validly executed by Kashi Prasad. That was remitted to the trial court for a finding. The finding was that the will had been duly executed, but that it was not valid because Kashi Prasad had no interest in the property. The lower Appellate Court found that the gift-deed dated 28th April, 1913, was duly registered. A certified copy of it had been filed, being Paper No. 64-C. At the death of Kashi Prasad, his daughters, Girja Bai and Janak Kishori, were minors. There was considerable trouble in the matter of the guardianship of their person and property. Ultimately, defendant 3, Smt. Sunder Bai, was appointed the guardian of the person of Janak Kishori, and Kishori Lal, defendant 1, was appointed the guardian of her property. It had come in evidence that Kishori Lal had taken away the original papers of Kashi Prasad on his death. During the trial, the plaintiff had called upon the defendants to produce the original gift-deed, but they did not do so in spite of taking time for the same. Under the circumstances, the lower Appellate Court held that the secondary evidence of the gift was admissible in the form of a certified copy, and, further, in view of the amendments made in Uttar Pradesh by insertion of sub-sec. (2) in S. 90 and the addition of S. 90A in the Evidence Act, the gift-deed was proved to have been duly executed by Rajju in favour of Kashi Pd. Further, according to the lower Appellate Court, there was evidence to show that it was acted upon inasmuch as the name of Kashi Pd. was mutated in the Municipal papers. The lower Appellate Court also referred to the admission made by Smt. Dhanwanti, daughter of Rajju, and by the defendants Smt. Sunder Bai and Kishori Lal of the fact that. Kashi Prasad was the owner of the house in suit. These admissions were made in the guardianship proceedings. The relevant admission of Smt. Sunder Bai, defendant 3, is contained in Ext. 17, and it was even admitted that she and her son Kishori Lal were living in the houses as licensees. In the result, the lower Appellate Court held that the gift-deed dated 28th April, 1913 was duly executed by Rajju and acted upon, and further that the will dated 24th October, 1948 was duly and validly executed by Kashi Prasad. It further held that defendants 1 and 3 were mere licensees and their licence having been terminated, they were liable to make over possession of the house to the plaintiff.

    5. The finding of the lower Appellate Court that the gift could be proved by producing a certified copy, and that the execution of the deed was duly proved was not seriously assailed before me. It was contended that there was no proof of acceptance of the gift by Kashi Prasad, and that being so, the mere execution of the deed did not bring about a gift in law. Reliance was placed on S. 122, T.P Act, in support of this contention. Lastly, it was contended that the trial court having decreed the suit for an alternative relief of recovery of Rs. 8,500 claimed by the plaintiff, and the defendants not having appealed from that decree, it was not open to the plaintiff to appeal therefrom to the lower Appellate Court. That being so, the lower Appellate Court had no jurisdiction to modify the trial court's decree and to pass a decree for the relief of possession and mesne profits which had been refused by the trial court.

    6. As to the first point raised by the learned counsel, a perusal of the gift-deed shows that Kashi Prasad was a minor aged about eight and a half years, and, according to Rajju, the donor, he had brought up Kashi Prasad, and Kashi Prasad was living under his care. There was no such question of acceptance as the minor was under the care of the donor himself. The exact terminology used in the gift-deed is:—

    “Musammat Hiriya meri bari larki hai. Uska larka umri sarhe aath saal musammi Kashi Prasad vald Boche…… ko maine chhote se misl larka ke parvarish kiya aur kanchhedan yaghaira hasb rawaj biradari maine Kashi Prasad ka kiya aur kul rasumat anjam din ……… Lihaza ab aaj ke roz minmukir ne……… do qita makanat……… banam Kashi Prasad mazkur basarbarahi khud Keba kardiya aur bakhsh diya aur qabza dakhal makanat mahboobelah mazkur ka shai mahuba per karadiya. Ab aaj ki tarikh se jo istehoaq mujhko hasil tha vah jumla banam mahboobelah mazkur ko hasil huva………”

    7. In support of his contention that the appeal before the lower Appellate Court by the appellant, who had been granted the alternative relief that was claimed by him was not maintainable, learned counsel cited two decisions: one of the Calcutta High Court in Reajuddin Patwari v. Abdul Jobbar, AIR 1924 Cal 445 and Sakku Bai v. R.B Reddiar, AIR 1977 Mad 223. In the Calcutta case, it was observed after dismissing the defendants' appeal that:

    “The plaintiff has preferred cross-objections and he claims that he is entitled to khas possession on the ground that the defendants were trespassers. But he made an alternative claim under S. 157, Bengal Tenancy Act, for assessment of a fair and equitable rent and the learned Judge in the Court below has given him relief under that section. It seems to me that he is not entitled to say that he does not want that alternative relief which has been granted to him, and that he desires to have the other relief which he claimed by way of ejectment. In effect, the plaintiff expressed that he would be satisfied with either of the two prayers which he made in his plaint and he succeeded in getting one and, therefore, he has no real cause for complaint. The cross-objections also fail and they are, therefore, dismissed.”

    8. In the Madras case (supra), it was observed in para 15 that:

    “It is, therefore, clear to us that as the choice of the reliefs is always with the plaintiff, who is the dominus litis in a litigation, he could seek for more than one relief, seek for more than one independent relief or ask for alternative reliefs. If he asks for the last of such reliefs, then he is placing the reliefs so sought for by him on a par with each other and if the Court trying the subject-matter grants him one relief, then it follows that he has the benefit of the relief and he cannot throw overboard such a benefit with a design or motive or to further his own cause by seeking umbrage in an Appellate Court and ask for the relief not granted to him, which, as already stated, be only asked for in the alternative. ‘Alternative’ is an expression, which indicates a choice oil the person and if that choice is exercised by him, then he cannot afterwards blow hot and cold and seek for reliefs as he desires by throwing overboard the benefits which he has secured on a full trial in the trial Court. This would be encouraging, as we said, the whims and fancies of a litigant. We are, therefore, of the view that having regard to the trend of decisions here and elsewhere and on the basic reasonable principle that a man cannot approbate and reprobate, this appeal is not maintainable.”

    9. I find myself unable to subscribe to the view expressed in either of these two decisions. The effect of the decisions is that in a case, where a plaintiff seeks a relief in the alternative, and the trial court grants the relief claimed in the alternative, the plaintiff is precluded from saying before the Appellate Court that he is entitled to the main relief claimed by him. Their could be no such estoppel. The true principle would seem to be that enunciated by the Patna High Court in Union of India v. Garbhu Sao, AIR 1972 Pat 341. The right to appeal is allowed to a person aggrieved from a decree or appealable order. The question, whether a plaintiff, who claimed alternative reliefs and is granted one of them, can appeal for getting the other reliefs, would, therefore, depend on the answer to the question whether the plaintiff could be said to be a person aggrieved in spite of the grant of a relief to him by the trial court. In the words of the learned Judges of the Patna High Court (at p. 343):—

    “If the plaint read as a whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal, if one of the reliefs is granted. One who gets what he wants cannot be said to be a “person aggrieved”. On the other hand, if the plaint read as a whole gives an impression that of the alternative reliefs claimed one is the main relief and the other one is claimed only if it is found that the main relief cannot possibly be granted and the main relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in law he is entitled to the main relief and should have been granted that. In such circumstances claiming alternative reliefs is no bar to appeal by the plaintiff.”

    10. The case in hand is one where the relief for possession with mesne profits was the main relief claimed by the plaintiff. The relief for refund of consideration was claimed in the alternative only in case the court found that the sale, on the basis of which the plaintiff was claiming to be entitled to possession, was invalid. The primary case of the plaintiff was that the sale was valid, and he was entitled to possession. When the trial Court found against him on that point, although it granted him the alternative relief of the refund of the sale consideration, he was aggrieved by the decision because he wanted the property which he had purchased and not his money back.

    11. The question of a refund of the sale consideration could arise only if the court found that the sale-deed was invalid. There was no question of the plaintiff being satisfied with the refund of the sale consideration which was decreed in his favour, for he contended, and successfully so, before the lower Appellate Court that the sale in his favour was valid. The wrong decision of the trial court on this point could not deprive the plaintiff of his right of appeal therefrom. I am also supported, in my view, by the judgment of the Kerala High Court in Gopalan Nair v. Madhavan, AIR 1964 Ker 153.

    12. In the result, the appeal fails and is dismissed with costs.

    13. Appeal dismissed.

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    Smt. Sunder Bai Died By L.R Kishorilal v. Anandi Lal Died And After Him Smt. Mohaniwali And Others
    (Jul 19, 1982)