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Brindaban Misra Adhikary v. Dhruba Charan Roy And Ors.
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This appeal arises from a suit for a declaration of title, confirmation of possession and recovery of possession. The plaintiff alleged that he purchased a parcel of land from defendant 3 by a kobala dated 16 September 1923, and that after his purchase he had been receiving rent from defendant 4, who occupied the house as his tenant; subsequently defendant 1 induced defendant 4 to pay rent to defendant 1.
Defendant 1 contested the suit, asserting that he had purchased the property from defendant 2, and that defendant 2 derived title by a deed of gift executed in his favour by defendant 3.
At trial the court held there was a valid deed of gift from defendant 3 to defendant 2 and therefore that the plaintiff, having bought from defendant 3 who at that time had no title, acquired no title; the trial court dismissed the plaintiff's suit. The plaintiff appealed to the District Court (the learned Subordinate Judge).
The Subordinate Judge found that defendant 3 had not really executed a deed of gift but believed she was executing a power-of-attorney; he concluded the document was obtained by misrepresentation, undue influence and fraud. The Subordinate Judge also found (perhaps unnecessarily, in the court's view) that there was no acceptance of the gift, rendering the gift void, and further (again arguably unnecessary) that the gift was conditional and had been revoked when defendant 3 later sold to the plaintiff.
Legal Issues Presented
- Whether the deed of gift alleged to have been executed by defendant 3 in favour of defendant 2 was valid, or whether it was obtained by misrepresentation, undue influence or fraud (and therefore void or inoperative).
- Whether the plaintiff's suit to recover possession is barred by limitation under Article 91 of the Limitation Act, on the ground that the plaintiff must first set aside the deed of gift.
- Whether the plaintiff is permitted to allege facts in the plaint that differ from the account given in the kobala relied upon by him.
- Whether the plaintiff is estopped from denying the existence or validity of the deed of gift because of references to that deed in his kobala.
- What presumption of correctness, if any, arises from entries in the Record-of-Rights under Section 103-B (Ban. Ten. Act) as to possession, and whether the Subordinate Judge erred in treating the Record-of-Rights.
- Whether the case should be remanded to the Subordinate Judge for reconsideration of possession in light of any proper presumption arising from the Record-of-Rights.
Arguments of the Parties
Plaintiff's Case
- The plaintiff purchased the land from defendant 3 by a kobala dated 16 September 1923 and, after purchase, had been receiving rent from defendant 4 who was in possession as his tenant.
- The plaintiff's narrative, as presented in the plaint, implies that defendant 3 did not have a valid gift creating title in defendant 2 and that the plaintiff's purchase was valid.
Appellant's (Mr. Pal) Arguments
- The suit is barred by limitation: Article 91 of the Limitation Act applies because the plaintiff, seeking to recover property against an instrument (the deed of gift) executed by the transferor, must first set aside the instrument and the deed was executed more than three years before institution of the suit.
- The plaintiff should not be permitted to make a case in the plaint different from the case in the kobala on which he relies.
- The plaintiff is estopped from denying that defendant 3 executed a deed of gift because the kobala refers to such a deed.
- The Subordinate Judge erred in saying that no presumption of defendant 2's possession can be based on the Record-of-Rights; the Record-of-Rights shows defendant 2 in possession of a plot and the Register should create a presumption in his favour.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harihar Ojha v. Dasarathai Misra [1905] 33 Cal. 257 | Statement that a person seeking to recover property against an instrument executed by himself or one under whom he claims must first obtain cancellation of the instrument and Article 91 (three years) applies. | The court observed this decision lends support to appellant's contention but held that the particular point in that case was not necessary to its decision and is therefore to that extent obiter; the court declined to treat it as binding against the plaintiff here. |
| Sanni Bibi v. Siddik Husain [1919] 23 C.W.N. 93 | Holds that where a person is induced by another's misrepresentation to execute a document believing it to be of a different kind, the transaction is void (not merely voidable), and Article 91 does not apply to a suit to recover the property. | The court treated this decision as directly in point and supportive of the plaintiff: since defendant 3 executed the document under misrepresentation (thinking it was a power-of-attorney), the deed is inoperative/void and limitation under Article 91 does not bar the suit. |
| Petherpermal Chetty v. Muniandy Servai [1908] 35 Cal. 551 (Privy Council) | The Judicial Committee held that an inoperative instrument does not bar a plaintiff's right to recover possession and that it is unnecessary to set aside such an instrument as a preliminary to obtaining possession. | The court relied on this authority to support the proposition that the deed, being inoperative (because executed under misapprehension), need not be set aside before the plaintiff can obtain a decree for possession. |
| Narsagounda v. Chawagounda [1918] 42 Bom. 638 (Full Bench) | Follows the Privy Council reasoning that an inoperative instrument does not bar recovery and need not be set aside. | The court cited this decision as following the Privy Council and as additional support for treating the deed as inoperative and for holding Article 91 inapplicable to the plaintiff's action to recover possession. |
Court's Reasoning and Analysis
The court proceeded by first reviewing the findings at trial and on appeal. The trial court had upheld the deed of gift and dismissed the plaintiff's suit. The Subordinate Judge, on appeal, found that defendant 3 believed she was executing a power-of-attorney and not a deed of gift and concluded the document was obtained by misrepresentation, undue influence and fraud; accordingly the Subordinate Judge held the instrument to be ineffective as conveying donor's title.
The court then considered the appellant's contention based on limitation (Article 91). It examined the authorities relied upon. While acknowledging that the Harihar Ojha decision contains language supportive of the appellant's limitation argument, the court observed that the statement in that case on the point appeared to be unnecessary to its decision and therefore to the extent relied on was obiter and not dispositive here.
The court placed decisive weight on authorities which characterized documents obtained by misrepresentation as inoperative or void rather than merely voidable. In particular it relied on Sanni Bibi v. Siddik Husain (1919) which held that when a person is induced by misrepresentation to execute a document believing it to be of a different character, the transaction is void and Article 91 does not apply. The Privy Council decision in Petherpermal Chetty v. Muniandy Servai was cited for the proposition that an inoperative instrument need not be set aside before a plaintiff obtains possession; the Bombay Full Bench decision in Narsagounda v. Chawagounda was noted as following the Privy Council. On the basis of these authorities, the court concluded that the deed before it—allegedly a deed of gift but in truth executed under the mistaken belief that it was a power-of-attorney—was inoperative, and therefore the plaintiff was not required to set it aside as a prerequisite for recovery and Article 91 did not bar the suit.
The court then addressed several procedural/contentions raised by the appellant. It held that a plaintiff is not precluded from pleading a case in the plaint that differs from the account in a supporting document (the kobala); whether the plaintiff can prove the pleaded case is a separate question for trial. The court rejected the appellant's estoppel argument founded on the kobala reference to the deed of gift, observing that there was no allegation or showing that defendants 1 or 2 had been misled by the kobala or had even seen it prior to their dealings; a mere possibility that they might have seen it was insufficient to establish estoppel.
Regarding the Record-of-Rights, the court clarified that Section 103-B (Ban. Ten. Act) creates a presumption of correctness for each specific entry, not for the whole Record-of-Rights as a single unit. The court found a limited error in the Subordinate Judge's statement that no presumption could be based on the Record-of-Rights, but concluded the error was immaterial because the Subordinate Judge had independently examined the evidence of possession and had found that defendant 3 had been in actual possession throughout. Given that independent factual finding, the appellate court saw no need to remit the matter to the Subordinate Judge to reconsider possession in light of the presumption arising from the specific entries of the Record-of-Rights.
Holding and Implications
APPEAL DISMISSED WITH COSTS
Direct effect: The appeal fails and is dismissed with costs. The appellate court affirmed that the Subordinate Judge's conclusions — notably that the deed alleged to be a gift was inoperative because defendant 3 executed it under the mistaken belief she was executing a power-of-attorney and that the instrument was obtained by misrepresentation/undue influence/fraud — should stand for the purposes of the present dispute. The court declined to remand the case on the question of possession because the Subordinate Judge had reached an independent factual conclusion on possession.
Implications for precedent and future cases: The court applied existing authorities (including Privy Council and Full Bench decisions) to hold that instruments obtained by misrepresentation and therefore inoperative need not be set aside before a plaintiff can recover possession; the opinion does not purport to establish a new legal principle beyond the authorities it cites.
1. This appeal arises out of a suit for a declaration of title and confirmation of possession and in the alert native for recovery of possession. The plaintiff's case briefly was that he had purchased this land from defendant 3 by a kobala dated 16th September 1923 and after his purchase he had been receiving rent from defendant 4 who was actually in possession of the house and was his tenant. But since then defendant 1 had induced defendant 4 to pay rent to him. Defendant 1 who contested the suit contended that he had purchased the property from defendant 2 and that defendant 2 derived his title under a deed of gift of the property executed in his favour by defendant 3. The trial Court held that there had been a valid deed of gift by defendant 3 to defendant 2 and therefore as defendant 3 had at the time of the plaintiff's purchase no title to the property the plaintiff had acquired no title to the property by his purchase from her; so he dismissed the plaintiff's suit. The plaintiff appealed to the District Court. The learned Subordinate Judge who heard the appeal would seem to have come to the finding that defendant 3 never really executed a deed of gift in favour of defendant 2. He would seem to find that defendant 3 when she executed this document was under the impression that she was executing a power-of-attorney and that she did not realize that what she was executing was a deed of gift, He held that the document was taken by misrepresentation and undue influence and that defendant 2 had practically practised fraud, misrepresentation and undue influence on defendant 3 in getting the deed of gift executed whereas she intended to execute a general power-of-attorney. One would perhaps think that these findings were sufficient to dispose of the case even though perhaps the findings of undue influence, fraud and misrepresentation were somewhat contradictory. The learned Subordinate Judge, however, goes on further to find that as there was no acceptance of the gift the gift was void. This finding is perhaps unnecessary in view of what he has already found. He goes on further to find somewhat unnecessarily that the gift being a conditional one and the donee not having performed the condition when defendant 3 has subsequently sold the land to the plaintiff she has evidently revoked the gift.
2. Mr. Pal who appears for the appellant has first of all contended that the suit was barred by limitation. He contends that the period of limitation applicable to the present suit is as provided in Article 91, Lim. Act. The plaintiff, he contends, cannot succeed in his suit unless he first of all sets aside the deed of gift and as the deed was executed more than three years before the institution of the suit. The suit was out of time. In support of his contention the learned vakil relies upon the case of Harihar Ojha v. Dasarathai Misra [1905] 33 Cal. 257 with special reference to the remark of Woodroffe, J., at pp. 265 and 266 where the learned Judge states as follows:
There can be no doubt that when a person seeks to recover property against an instrument executed by himself or one under whom he claims he must first obtain the cancellation of the instrument, and that the three years' rule enacted by Article 91 applies to any suit brought by such person. The reason why a party seeking to recover property against his own instrument must show that it is voidable or void, as for instance for fraud, is that, as long as an instrument creating a later title is valid his former title cannot prevail.
3. Mr. Pal argues on the strength of this decision that the plaintiff's suit must fail. No doubt this decision lends considerable support to the contention of the learned vakil. As a matter of fact, however, the decision of that particular point which I have just referred to was not necessary, as far as can be seen, for the decision of that particular case ; and therefore to that extent the decision must be considered as obiter. On the other hand the case of Sanni Bibi v. Siddik Husain [1919] 23 C.W.N. 93 a decision directly in point, it has been held that when it is established that the plaintiff by defendant's misrepresentation was induced to execute a deed of sale believing the same to have been a deed of a different kind the transaction is void and not voidable only, and Article 91, Lim. Act has no application to his suit to recover the property. It will be seen that that decision is directly in point, because in this case the plaintiff sues as the transferee of defendant 3 and stands in her shoes. Defendant 3 was induced by the misrepresentation of defendant 2 to execute a deed of a different kind to what she thought she was executing. It has been found that she thought that she was executing a power-of-at tourney when she was really executing a deed of gift. A further support to the case of the respondent would be found in the case Petherpermal Chetty v. Muniandy Servai [1908] 35 Cal. 551 a decision of the Privy Council. On p 659 of the report Lord Atkinson in delivering the judgment of the Judicial Committee remarks:
As to the point raised on the limitation act 1877, their Lordships are of opinion that the conveyance of 11th June 1895, being an inoperative instrument, as in effect, it has been found to be, does not bar the plaintiff's right to recover possession of his land and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims.
4. If I understand this decision the Judicial Committee held that where the instrument was inoperative it was not necessary to set it aside as a preliminary to his obtaining a decree for possession. The document before us is obviously an inoperative instrument. It purports to be a deed of gift whereas it is really nothing of the sort, because the person who executed it was under the impression that she was executing not a deed of gift but a power-of-attorney. The same principle has been laid down by the Bombay High Court in the case of Narsagounda v. Chawagounda [1918] 42 Bom. 638 with special reference to p. 657 a decision of the Full Bench which follows the Privy Council case already referred to reported in [1905] 33 Cal. 257. This point, therefore, seems to be concluded by authorities, and must be decided against the appellant.
5. The next point argued on behalf of the appellant is that the plaintiff should not be allowed to make a case different from the case set out in his kobala. In the kobala under which the plaintiff claims certain references were made to the deed of gift and the plaintiff or rather his vendor there apparently gave a different version about this deed of gift. The appellant contends that it is not open to the plaintiff to make out any different case whatever in the plaint. Whether the case made in the plaint differs materially from the case made in the kobala is not necessary to be determined. It is obviously open to the plaintiff to make out any case that he chooses in the plaint. The fact that the case made in the plaint does or does not differ from the case as would appear in the document on which he relies would obviously be a point to be taken into consideration by the Court in considering the truth or falsity of the plaintiff's case. But there is nothing to prevent him from making out any case he wishes to make. Whether he could substantiate it is quite another question.
6. The next point urged by Mr. Pal is that the plaintiff is now estopped from saying that there is no legally valid gift and that defendant 3 did not execute a deed of gift, because, he states, that the plaintiff in his kobala referred to the deed of gift and therefore it is not open to him now to say that defendant 3 never executed any deed of gift. I entirely fail to understand how this statement in the plaintiff's kobala that defendant 3 executed a deed of gift can in any way stop the plaintiff from saying that there is no deed of gift. It has not been shown to us, nor was it ever alleged before the case came up here in second appeal that defendants 1 and 2 were in any way influenced or misled by the statement in the kobala. In fact there is no suggestion defendants 1 and 2 ever saw the statement in the kobala before defendant 1 purchased the property from defendant 2. The only suggestion made by the learned vakil for the appellant is that they might have seen it. Clearly that is not sufficient to create an estoppel.
7. The appellant has lastly contended that the learned Judge in the Court of appeal below was wrong in saying that:
under the circumstances no presumption of defendant 2's possession can be based upon it (the Record-of-Rights).
8. Now it appears that in the Record-of-Rights one plot is shown in the possession of defendant 2 and the other plot is shown in the possession, of the landlord. It was no doubt the case of defendant 1 that defendant 2 was in possession of both the plots. There is no doubt that the Record-of-Rights raises a presumption in favour of defendant 2 so far as regards the one plot which has been recorded as in the possession of defendant 2. Defendant 1 no doubt has challenged the correctness of the Record-of-Rights so far as regards the other plot recorded in the name of the landlord, but for that reason it cannot be said that no presumption arises in favour of defendant 2 in respect of the other plot which has been recorded in his name the correctness of which has not been challenged by defendant 1. It is not the whole Re-cord-of-Rights but each entry of the Record-of-Rights with respect to which the presumption of correctness arises. The words used in Section 103-B, Ban. Ten. Act are:
Every entry in a Record-of-Rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct.
9. What is presumed to be correct is each entry and not the whole Record-of-Rights. In this respect no doubt the learned Subordinate Judge has fallen into an error. I do not think, however, that for this reason alone we should send back the case to him for a consideration of the question of possession after taking a. proper view of the presumption as regards the entry in the Record-of-Rights, for the learned Subordinate Judge seems to have gone into this question of possession of defendant 2 independently of the Record-of-Rights and have found on the evidence that defendant 3 had been in possession all along. He has found that:
the evidence leaves no room for doubt that defendant 3 was all along living in the house and also admittedly was in possession after the execution of the deed.
10. I do not therefore think that it is necessary to send the case back to the learned Subordinate Judge for abiding on the question of possession.
11. The result is the appeal must fail and is dismissed with costs.
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