1. This is an appeal by the plaintiff from the judgment and decree of the District Judge, East Godavari given on 10-8-1963 whereby the learned Judge allowed the appeal and dismissed the plaintiff's suit. The essential facts are that the plaintiff filed the suit for recovery of possession of the suit land admeasuring 3 acres and 30 cents and for recovery of the value of the crop of Rs. 800/- alleged to have been removed by the defendant in 1959. He also claimed damages for use and occupation for two years 1959-1960 and 1960-1961 at Rs. 800/- a year and also claimed future profits. It was alleged inter alia that the defendant married Suryavathi, the sister of the plaintiff, in 1956. She unfortunately died in 1960 leaving behind her two children. The plaintiff claims that he purchased the suit land on 3-7-1955 on the basis of a sale deed. Exhibit A-2, from a third person and since then has been in possession of the land in his own right. The land is situated at the village Thotapeta, a place where the defendant lived. He therefore asked the defendant to cultivate the land through his farm-servants. Taking advantage of the marriage with the plaintiff's sister, the defendant trespassed into the suit land in January 1959 and removed paddy heaps. In spite of demands, the defendant is not parting with the land nor is interested in paying the value of the paddy which he has removed. The plaintiff ultimately sent a notice but the defendant sent false reply. The plaintiff asserted in the plaint that the suit land is not the joint family property of himself, his father and brothers and that it is his self-acquired property. He further denied the assertion of the defendant that it was given to his sister at the time of marriage towards pasupukunkumam. He also denied any knowledge about Exhibit B-1 dated 8-3-1960. He however stated that he might have attested the agreement without knowing the contents thereof. He further stated that he was divided from his father long prior to the agreement as per the partition deed. Exhibit A-3 dated 18-10-1957. Thus denying the allegations made in the reply notice Exhibit A-1 dated 14-6-1961, the plaintiff instituted the suit.
2. The principal defence set up by the defendant was that the suit land was gifted by Gan wain the father of the plaintiff, to his daughter Suryavathi at the time of her marriage with the defendant. As per the terms of the marriage settlement, Gangiraju agreed to give 5 acres of land to his daughter and the same was announced at the time of the marriage. Since no suitable land was available for purchase at that time, the plaintiff's father suggested that the suit land in the defendant's village purchased with family funds may be taken possession of by the defendant till another land 5 acres in extent was purchased. Accordingly the plaintiff and his father put this land in the possession of the defendant on behalf of his wife in 1957 and since then he has been cultivating it on behalf of his wife. He disputed the fact that the plaintiff had purchased the land with his own funds. In 1960 when the defendant and his wife demanded Gangiraju to give away the balance of land, he put in possession of the defendant 1 acre and 65 cents in Drakshramam village and permitted the defendant to continue in possession till equal extent was purchased and gift deed executed in respect of the entire extent. Gangiraju executed the agreement dated 8-3-1960 (Exhibit B-1) and the plaintiff attested the same. As the defendant declined to marry the younger sister of his deceased wife as was desired by Gangiraju, disputes arose between them and so the plaintiff has come forward with false allegations. After the death of his wife, the property has now devolved upon the defendant and his children.
3. Upon these pleadings, the Subordinate Judge, Kakinada framed issues and after recording the evidence adduced by the parties decreed the plaintiff's suit.
4. Dissatisfied with that judgment, the defendant went in appeal to the District Court, Rajahmundry. The learned District Judge by his judgment, as stated earlier, allowed the appeal and dismissed the plaintiff's suit. The learned District Judge held that the agreement set up by the defendant, Exhibit B-1, is valid and binding on the plaintiff. He found that the suit land is not the separate property of the plaintiff but is a joint family property and was purchased with the funds of the joint family. He further found that the plaintiff alone cannot sue to recover possession of the suit land. He agreed with the conclusion of the trial Court that the defendant was not a trespasser. It is this view that is now challenged in this second appeal.
5. The first question which falls for my determination is whether the plaintiff is entitled to get a decree on a cause of action which is different than what was set up by him in the plaint I have extracted the plaint above and it would have been noticed that the plaintiff came to the court on the basis that he is the exclusive owner of the property, that it was not joint family property and that the defendant is a trespasser. All these allegations have been found to be false by both the Courts below. The that court however accepted his argument, which Page: 294was not his case, that the oral gift made at the time of marriage to his sister by his father of a small portion of the joint family property was invalid because of Section 123 of the Transfer of Property Act. The District Judge did not agree with this approach. He was of the opinion that the plaintiff should not have been allowed to succeed on a case not set up by him. What was contended before me was that since the trial Court had gone into this question and assuming that all the averments made by the defendant in his written statement are true even then the gift set up by the defendant would not be valid, and the plaintiff was therefore rightly given a decree by the trial Court. It is difficult to agree with this contention.
6. It is trite to say that a party is expected and is bound to prove the case as alleged by him and as covered by the issues framed. This is in accordance with the main principle of practice that a party can only succeed according to what was alleged and proved: secundum allegate et probata. He should not be allowed to succeed on a case which he has failed to set up. He should not be permitted to change his case or set up a case which is inconsistent with what he had himself alleged in his pleading except by way of amendment of the plaint. It is pertinent in this connection to remember what Lord Westbury had to say in this connection, in Eshanchunder Singh v. Shamachurn Bhutto. (1868-67) 11 Moo Ind App 7 (PC).
“This case is one of considerable importance, and their Lordships desire to take advantage of it, for the purpose of pointing out the absolute necessity that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made………It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove……… They desire to have the rule observed, that the state of facts and the equities and ground of relief originally alleged and pleaded by the plaintiff shall not be departed from.”.
7. It is no doubt true that the above said general rule has an exception. The general rule that the plaintiff will not be entitled to relief on the facts and documents not stated by him nor referred to by him in his pleading would not apply where the substantial matters which constitute the title of all the parties are touched in the issues and have been fully put in evidence in the case. Relief may be granted in such cases on the basis of such matters. That is however not the case here. The plaintiff, who was aware of the defence which the defendant was going to set up, denounced the refence in the plaint itself. He denied that the suit property was joint family property, and that it was gifted by his father, the manager of the joint family, to his sister at the time of marriage as pasupukunkuma and on the other hand claimed that the defendant was a trespasser. Having found that all his averments are false, he cannot be permitted to turn round and adopt the case of the defendant and that too not fully and ask relief on that basis. No relief can be granted upon facts and documents not disclosed in the plaint. When the plaintiff has asked for a particular relief on a specific ground, he cannot be granted the same relief on a different ground which is not at all not only disclosed in the plaint but has been definitely denounced. He cannot abandon his own case and try to build up a case which he has not himself pleaded. The suit based on one cause of action cannot be obviously decreed on another cause of action. He cannot be allowed to spell out a case different from what he had pleaded in the plaint. He claimed individual title to the suit property and when it is found that it belongs to the joint family, he cannot be permitted to claim the same as one of the members of the joint family particularly when he has not been authorised by others nor he is the manager of the joint family since the father is still living. I am therefore satisfied that the lower appellate court was justified in not allowing the plaintiff a decree on a cause of action which he had himself denounced and had not made the basis of his suit.
8. The second question is whether the plaintiff, who is one of the members of the joint family, can alone bring a suit for recovery of possession of the property which is found to belong to the joint family. The plaintiff and his brothers and the father have been separated under a registered partition deed. Exhibit A-3 dated 18-10-1957. In that partition deed, the suit land does not find place obviously because it was gifted to the plaintiff's sister at the time of her marriage. The plaintiff now claims giving a go-by to his own case that since there is no registered gift deed, which is an essential thing under Section 123 of the Transfer of Property Act, the defendant would be deemed to be in unlawful possession of the suit property and the property will continue to belong to the joint family of which the plaintiff is one of the members. Since both the Courts below have not gone into the question as to whether after the partition the joint family continued or not in so far as the suit property was concerned, it is not possible to go into that question for the first time in second appeal. Assuming that the joint family continued in so far as the suit land was concerned or that the four brothers and the father were co-owners of the suit land, in either case I do not think the plaintiff alone can bring the suit for the recovery of possession of the property which was given at the time of the marriage to his sister on the ground that the gift was invalid.
9. It is no doubt true that Order 1 Rule 1 says that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. Even in the case of persons jointly entitled to any relief, the language of Rule 1 says that all such persons may be joined as plaintiffs in one suit. This does not however affect the general principle of law that all such persons must be made parties to the suit either as plaintiffs or as defendants. The reason is obvious. Such persons together represent a single and indivisible right which cannot be adjudicated upon and no effective decree can be passed by the Court in the absence of any such persons. Therefore, a suit by a member of the joint Hindu family to recover property belonging to the joint family must be instituted by of on behalf of all the members of course where a number of persons are jointly entitled to the relief in respect of a transaction and one of them wishes to sue to enforce that relief, the proper course for him is to ask the other persons to join as co-plaintiffs if they refuse to join in the suit as plaintiffs, they must be joined as defendants. What is necessary is that all the persons jointly interested must be on the record as parties in order to determine the disputes effectively and finally. Thus one member of a joint Hindu family cannot sue to recover any property belonging to the joint family without impleading the other members as parties to the suit. Where, however, he sues or is sued as manager of the joint family it might not be necessary to add the other members as parties. It is also true that one of such co-owners can maintain an action against a trespasser without impleading the other co-owners as parties thereto. But this is not a case by one of several co-owners against a trespasser it has been found by both the Courts below, and in my view, very rightly that the defendant is not a trespasser but has been in possession in pursuance of the gift made to his wife at the time of her marriage by the plaintiff's father.
10. What was argued before me was that since Exhibit A-2, the sale deed stands in the name of the plaintiff in spite of the finding that the property belongs to the joint family and that the defendant is not a trespasser, the plaintiff can institute the suit although the beneficiaries would be not only the plaintiff himself but the other members of the joint family in support of this contention, the following decisions were relied on: Nand Kishore Lal v. Ahmad Ata, (1895) ILR 18 All 69 and Dagdu v. Balvant R Natu (1898) ILR 22 Bom 820.
11. Both the cases cited by the learned Advocate are not very relevant to the facts of the present case. They were cases where it was decided that a benamidar can institute a suit in his own name for the benefit of the real owners. The plaintiff cannot be said to be a benamidar in this case for the other members of the joint family nor that has been his case anywhere.
12. In K.P Kanna Pisharody v. V.M Narayanan Somayajipad, (1881) ILR 3 Mad 234, a Bench of the Madras High Court held:
“All co-owners must join in a suit to recover property unless the law otherwise provides, they may agree that property shall be managed and suits conducted by some or one of them, but they cannot invest such person or persons with a right to sue in his own name on their behalf, although, perhaps a tenant might be estopped from denying the title of his lessor in such case”.
13. In Adaikkalam Chetti v. Marimuthu. (1899) ILR 22 Mad 326, another Bench of the Madras High Court, in a case where the suit was instituted on a bond executed by the deceased father of defendants in favour of the plaintiff, the defendants while admitting the bond and the consideration for which it had been given contended that inasmuch as the plaintiff had four undivided brothers and the deed has been executed in his name for the benefit of himself and his brothers, the latter should have been joined as plaintiffs and that the plaintiff could not maintain the suit alone, held:
“The plaintiff was entitled to sue for the family debt without joining his undivided brothers, the contract on which the suit was based being in plaintiff's sole name and not purporting to have been obtained on behalf of any others but himself.”
14. This case has been followed by a Bench of this Court in Nagamma v. Basappa AIR 1961 Andh Pra 257.
15. The above said two decisions however do not help since the document was executed in favour of one or two members of the family they alone can sue. But that observation is qualified by an observation that these documents were not “purported to have been obtained on behalf of any others but himself or themselves.” The said observation brings out prominently the correctness of the earlier decision that is to say (1881) ILR 3 Mad 234. The abovesaid two decisions therefore cannot be said to be in conflict with the earlier decision.
16. In this case it has already been noticed that the finding of both the Courts below is that although the document stands in the name of the plaintiff, it was obtained with the help of the joint family funds and consequently the suit property has been found to be owned by the joint family and not exclusively by the plaintiff in these circumstances, the plaintiff alone could not have instituted the suit claiming himself to be one of the members of the joint family. No doubt if that was his stand, he could have pleaded that alternatively by way of amendment of the plaint and impleaded the other members of the family. In spite of the objection taken by the defendant at the earliest stage, not even prior to the suit, not Page: 296only the plaintiff came to the Court on wrong facts but never showed his willingness to implead the other members of the Joint family as parties to the suit either as co-plaintiffs or as defendants by suitably amending the plaint.
17. I am fortified in my view by the following decisions. In Kaliappa Nadar v. Muthu Vijaya Thambayasami, AIR 1927 Mad 984, it was observed:
“It is an elementary principle of law that persons who have got joint right should join in an action to assert that right and it is not open to one or two persons who have a joint right along with others to bring a suit for the assertion of that right on behalf for all without joining them as defendants.”
18. To the same effect is Rama v. Tupoo Rama, AIR 1956 Bom 264.
19. The plaintiff had no authority to institute the present suit on behalf of the members of the joint family nor was he the manager or the kartha of the family.
20. That apart, the co-owner, plaintiff, cannot alone bring the suit when he denounced the rights of other co-owners. See Thimmayya v. Siddappa, AIR 1925 Mad 63. That was a case where a suit was brought by a co-owner against a trespasser. But it was held:
“One co-owner can sue to eject a trespasser and the suit is not bad for non-joinder provided the plaintiff does not deny the other co-owner's right.”
21. Since the plaintiff in this case has been found to be one of the several co-owners and since he has denied the title of all other co-owners and claimed exclusively title to himself in the plaint and moreover when the suit is not against the trespasser but against a person who has been in possession in puruance of a gift made to his wife at the time of marriage, the plaintiff alone cannot bring the suit for recovery of possession. The learned District Judge was, in my view, right in dismissing the plaintiff's suit on that ground also.
22. There is yet another ground on the basis of which the plaintiff can be non-suited. It has already been noticed that the gift at the time of marriage was oral. Possession was however given to the donee. That was the consideration for marriage as is found by the lower appellate court. Exhibit B-1 was subsequently executed by the father in which all the terms of the oral gift were brought out. The question is whether Exhibit B-1 can fall within the ambit of Section 53-A of the Transfer of Property Act. It is not in dispute that Exhibit B-1 brings out all the terms of the oral gift made at the time of the marriage, and the fact that the plaintiff's sister was put in possession of the land. While the trial Court rejected the contention of the part performance raised by the defendant an the ground that the gift was a gratuitous transfer and had no consideration, the learnel District Judge on the other hand found that the gift was not gratuitous and it had consideration. He however rejected the contention on the ground that since Exhibit B-1 did not come into existence at the time of the contract that is to say, when the gift was made by way of pasupukunkuma at the time of the marriage it cannot be relied upon for the purpose of section 53-A.
23. What is required under section 53-A is that there should be a contract in writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and secondly that the transferee has in part performance of the contract taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and had done something in furtherance of the contract. The section nowhere says that the contract in writing must have been brought into existence at the time of the original contract. Even where originally a contract was oral but was subsequently reduced to writing signed by the transferor in which all terms have been brought out, it can certainly be used for the purpose of section 53-A provided of course it satisfies the other requirements of that section. It is to be seen that in this case there was an oral gift at the time of the marriage. After wards Exhibit B-1 was brought into existence. What has to be seen is whether Exhibit B-1 merely refers back to the oral agreement or brings out all the necessary terms of transfer in the document itself A distinction has to be drawn between an agreement which refers merely to previous oral agreement and a document which not only refers to the previous oral agreement but brings out all the terms of the oral agreement and incorporates them in the document. While the former may not be of any assistance in so far as the question of part performance is concerned but certainly the second one can be used for the purpose of Section 53-A.
24. In Maung Ohn v. Maung Po Kwe, AIR 1938 Rang 356, a Bench of the Rangoon High Court held:
“Section 53-A clearly contemplates that the contract itself shall be in writing, and not that there shall be a writing referring to some part or parts of a contract which may previously have been oral. A distinction must be drawn between a writing which is a reduction into writing of a previous oral agreement, which would fall within the provisions of Sec. 53-A and a writing in which there is a mere reference to a previous oral agreement.”.
25. To a similar effect is Mutyalu v. Veerayya, AIR 1946 Mad 452. In that case, the plaintiff was the appellant Both the lower courts had dismissed the suit on the ground that he gave the letter Exhibit D-1 on 5th December 1938 to the 1st defendant stating that he had no connection whatever Page: 297with the said property thereafter and that the 1st defendant can himself enjoy the property which had been given to his wife, the sister or 1st defendant, by the father under a deed of gift in the year 1933. After this letter, 1st defendant has been in possession of the property all along. Both the Courts have found that this letter was preceded by a mediation as the result of which 1st defendant gave up a claim to recover a sum of Rs. 350/- from the plaintiff, who in his turn agreed to give up his interest in this property which belonged to his wife, she having got it from her father. The lower court applied the doctrine of part-performance against the plaintiff. It was argued for the appellant that the doctrine did not apply because Section 53-A of the Transfer of Property Act, requires two things, namely, (a) a contract to transfer for consideration and (b) a writing evidencing the contract indicating with reasonable certainty the terms necessary to constitute the transfer. Rejecting both these contentions. Chandrasekhara Aiyar, J., observed:
“I am happy to find that the Law as I understand it is against this plaintiff. Otherwise, we shall be conniving at, if not actively encouraging, the perpetration of gross dishonesty.”.
26. I am therefore satisfied that Exhibit B-1 satisfies all the requirements of section 53-A. It can therefore form the basis for defence under section 53-A. In any case, the plaintiff, who has attested the document with full knowledge of its contents as was found by the lower courts is estopped from contending the validity of the gift and cannot dispute the nature of the possession of the defendant.
27. An argument was advanced by Mr. P. Venkatadir Sastry, the learned counsel for the defendant, that no writing is necessary in case of a gift by way of pasupukunkuma which is usually given at the time of marriage. He referred to me Section 9 of the Transfer of Property Act and Serandaya Pillai v. Sankaralingam Pillai, (1959) 2 Mad LJ 502. It is difficult to accept this contention.
28. It is no doubt true that 1959-2 Mad LJ 502 is a case where the contract entered into by the plaintiffs with the 1st defendant was that in consideration of the 1st defendant marrying their sister some properties would be settled upon him. The marriage took place and the defendants were put in possession of the property. The plaintiffs asked for declaration and injunction or in the alternative for recovery of possession on the ground that the gift was invalid being hit by Section 123 of the Transfer of Property Act and Section 17 of the Registration Act it was held:
“The transaction entered into by the parties was neither a sale, nor a lease nor an exchange, nor a gift. This transaction fell within the scope of Section 9 of the Transfer of Property Act and required no writing and no registration.”
29. With due respect, I am unable to subscribe to that view. Section 9 is in the following terms:
“A Transfer of Property may be made without writing in every case in which a writing is not expressly required by law.”
30. It is difficult to accept the contention that a gift made at the time of marriage is not required to be in writing by any law. Any such contention would be flying in the face of Section 123 of the Transfer of Property Act. It may be that under the traditional Hindu law no writing for the validity of transfer of property made at the time of marriage was necessary. There was no transaction under Hindu Law which absoutely required a writing. But after the Transfer of Property Act came into force, to say that the oral gift can be made at the time of marriage by way of pasupukunkuma would be inconsistent with Section 123 of the Transfer of Property Act. That is a provision applicable to all gifts which transfer immovable property. It is therefore necessary in order to constitute a valid gift that not only it should be in writing but it must also be registered. That this view is correct is supported by the following decisions.
31. In Ramachandrayya v. Satyanarayana, 1964-1 Andh WR (SC) 46 at p. 49 : (AIR 1964 SC 877 at p. 880), their Lordships of the Supreme Court observed:
“There can, in our opinion, be no doubt that after section 53-A was enacted the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of section 53-A are satisfied. Quite clearly, section 53-A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument.”
32. The facts of that case were: C had brought N into his family, under an agreement that N would marry C's wife's sister's daughter and help him in cultivation and management of the properties in consideration of which N would inherit the entire property after C's death A suit by the alienees from the reversioners of G was resisted by the sons of N who were then in possession of the properties. It was contended that the contract itself between C and N would have the effect of transferring interest in the property to N on C's death. The said contention was rejected to the same effect is Kamla Devi v. Bachulal Gupta, 1957 SCJ 321 at p. 334 : (AIR 1959 SC 434 at p. 443).
33. In Hira Mani Singh…Plaintiff Appelt.; v. Anmol Singh…Defendant Respdt., AIR 1928 All 699, a Bench of the Alahabaa High Court held
“A gift of immovable property by a Hindu by way of sankalpa cannot operate as a valid gift it cannot divest the donor of his proprietary rights or clothe the donee Page: 298with any title, unless a registered instrument is passed and the mere fact of the gift of property having been made directly or constructively and been accepted by the donee at the time of the nuptials cannot pass an absolute title. The provision of the statute is mandatory and imperative.”.
34. I am therefore of opinion that Section 9 of the Transfer of Property Act is not applicable to a case of transfer of immovable property made at the time of marriage by a Hindu. Every such gift in order to be valid must be in writing and ought to be registered. In spite of this finding, I have, however, come to the conclusion that Exhibit B-1 fulfils all the requirements of Section 53-A of the Transfer of Property Act and it can therefore be validly set up as a defence under Section 53-A of the Transfer of Property Act. For the aforesaid reasons, I dismiss the appeal with costs throughout. No leave.
VGW/D.V.C
35. Appeal dismissed.