Prabhu Dayal v. Lala Ram — 1976 DIGILAW 616 (ALL)

JUDGMENT H. N. Kapoor, J. This is defendant's appeal against the decree and judgment dated 2.2.1966 of IIIrd Additional Civil Judge, Agra in Civil Appeal No. 399 of 1964 reversing the decree of the trial court (Ifnd Additional Munsif, Agra) dated 18.8.1964 in Original Suit No. 913 of 1962 by which the plaintiffs' suit for specific performance of contract for reconveyance of certain property had been dismissed. The facts giving rise to this appeal briefly stated are as follows. The property in suit was originally owned by Lala Ram and Devi Ram who were the real brothers. They sold the property to Kali Charan Gupta, defendant No. 2 by means of a sale deed dated 15.3.1953 for Rs. 2000/. On the same day a contract for reconveyance was also executed by the vendee stipulating that the property shall be reconveyed within four years. It may be stated here that in the plaint this sale deed was described as mortgage deed. Devi Ram died on 12.12.1954 leaving his widow Smt. Bhagwati and two sons, Om Prakash and Ramesh Chandra, plaintiff respondents. No steps were taken by Lala Ram or the heirs of Devi Ram for getting the property reconveyed during the period of four years. Kali Charan Gupta defendant No. 2 then sold the property to defendant No. 1 i e. Prabhu Dayal appellant. It may be stated here that Kali Charan Gupta in his deposition admitted that he had informed Prabhu Dayal about the contract of reconveyance but at the same time had told him that the stipulated period of four years was over and no attempt was made by any person to get the propsrty reconveyed. It may also be stated here that concurrent finding of facts have, been recorded by both the courts that Om Prakash had attained majority before the death of his father. The present suit was, however, brought on 10.11.1962 by Lala Ram, Smt. Bhagwati, Om Prakash and Ramesh Chand as plaintiffs. Ramesh Chand was still a minor. He had given his age as 11 years and the suit was brought under the guardianship of his elder trother Om Prakash. The suit was for redemption of alleged mortgage deed dated 15.3.1953. In the alternative it was prayed that in case it was held to be sold, the suit may be treated for specific performance of contract for reconveyance. He had given his age as 11 years and the suit was brought under the guardianship of his elder trother Om Prakash. The suit was for redemption of alleged mortgage deed dated 15.3.1953. In the alternative it was prayed that in case it was held to be sold, the suit may be treated for specific performance of contract for reconveyance. Lala Ram was said to have sold his interest in the property to Diwan Singh and Shri Chand who were subsequently impleaded as proforma defendants. The suit was contested by Prabhu Dayal and Kali Charan, defendant Nos. 1 & 2. Defendant No. 1 pleaded that he was a bona fide purchaser for considerations without knowledge of previous contract for sale and that the suit was barred by limitation. The transaction was claimed to be an outright sale and not a mortgage. Defendant No. 2 also adopted the same pleas. It was also pleaded that the suit was barred as there was no averment to the effect that the plaintiffs were willing and had been willing to perform their part of the contract as was provided in Form No. 47 Appendix A., C. P. C. It was also pleaded that the plaintiffs had no money to pay to the defendants and so they were not in a position to perform their part of the contract. On the pleadings of the parties the trial court framed several issues. It held that the deed dated 15.3.53 was a sale deed and not at mortgage deed. It further held that defendant No. 1 was a bona fide purchaser for value. It then held that the suit for reconveyance was barred by time. Lastly it held that the pleadings in the plaint were not in accordance with Order 6 Rules 3 & 4 C. P. C. and there was no averment as prescribed in Form 47 Appendix A to the effect that the plaintiffs had been and were ready and willing to perform their part of the contract. With these findings the plaintiffs' suit was dismissed. The lower appellate court concerned with the findings of the trial court on the point that the deed dated 15.3.1953 (Ex. A 1) was a sale deed and not a mortgage deed, in fact it was conceded before it by learned counsel for the plaintiffs that the defendant No. 1 was a bona fide transferred for value. The lower appellate court concerned with the findings of the trial court on the point that the deed dated 15.3.1953 (Ex. A 1) was a sale deed and not a mortgage deed, in fact it was conceded before it by learned counsel for the plaintiffs that the defendant No. 1 was a bona fide transferred for value. The lower appellate court did not consider the point as to what was the effect on account of nonaverment in the plaint in Form No. 47 of Appendix A. C.P.C. It decided the appeal mainly on the finding that the suit was not barred by limitation. Ramesh Chand was a minor at the time of bringing of the suit and he could have brought the suit for specific performance of contract till he attained the age of majority and three years thereafter. With these findings it allowed the appeal and decreed the plaintiffs' suit for specific performance of contract for reconveyance. The learned counsel for the appellant has argued that the suit was liable to be dismissed on the finding that the defendant appellant was a bona fide purchaser for value. Section 19 (b) of the Specific Relief Act of 1963 provides that such a bona fide purchase should be without notice of the original contract. Similar was the provision under the old Act. As already stated above, Kali Charan defendant No. 2 who was examined as a D. W. in this case stated that he had told Prabhu Dayal about the previous contract of reconveyance. He also told him that a period of 4 years had expired and nobody had approached him for reconveyance. It may, therefore, not be said that it is a case of no notice at all of previous contract. The learned counsel for the appellant has, however argued that all that can be said is that the appellant had only this notice of the previous contract that the time for performing the same had already expired. In any view of the matter this appeal can be decided on the basis of other contentions of the learned counsel for the appellant. In any view of the matter this appeal can be decided on the basis of other contentions of the learned counsel for the appellant. He has argued that the plaint was defective in as much as there was no averment in Form No. 47 Appendix A of the C. P. C. nor any evidence had been led on the point that the plaintiffs were always ready and willing from the date of contract to the time of the hearing to perform the contract on their part. According to him, the suit was liable to be dismissed on the failure to make such an averment. 1 his provision is now included under sec. 16 (c) of the Specific Relief Act of 1963. Even prior to it pleadings were required to be under Order 6 Rules 3 and 4 and in accordance with Form No. 47 of Appendix A. It was so held by the Privy Council in the case of Ardeshir H. Mama v. Elora Sasson A.I.R. 1928 P. C. 208. The observations made by the Privy Council in the decision at page 216 were approved by Hon'ble Supreme Court in the case of (jonathinavagan Pillai and others v. Painiswami Nadar A.I.R. 1967 Supreme Court 686. The trial court recorded a definite finding on this point and held the suit to be bad on this account. But the lower appellate court did not consider this aspect at all. I have, however, given my full consideration to the ground which was the basis for the decision of the lower appellate court i.e. whether the suit could be treated to be within limitation on account of the provision of sec. 7 of the Limitation Act. The lower appellate court has taken the view that there was nothing to show that Om Prakash and Ramesh Chand formed a joint Hindu family along with Lala Ram. According to the learned Civil Judge the evidence was that Lala Ram and Devi Ram held the property in suit not as members of a joint Hindu family but in the capacity of having acquired the same jointly. It also held that the property could not be joint Hindu family unless there was nucleus. It may be so yisavis Lala Ram. The lower appellate court, however, failed to consider the nature of the assets left by Devi Ram in the hands of Om Prakash and Ramesh Chand. It also held that the property could not be joint Hindu family unless there was nucleus. It may be so yisavis Lala Ram. The lower appellate court, however, failed to consider the nature of the assets left by Devi Ram in the hands of Om Prakash and Ramesh Chand. The property left by Devi Ram, obyiously, became joint family property in the hands of Om Prakash and Ramesh Chand. Om Prakash was the elder brother and had attained the majority even during the lifetime of his father Devi Ram. The natural presumption was that he would be managing the property as Karta unless that presumption is rebutted. It is significant thet even in the plaint Ramesh Chand was shown to be under the guardianship of Om Prakash. It was held in the case of Jagdish Narain v. Bislmit Dutt and others A.I.R. 1941 Oudh 165 that the eldest member of the family (eldest brother in that case) would be presumed to be Karta or manager of Joint Hindu family unless contrary could be proved. Similar view was taken by Andhra Pradesh High Court reported in the case of Jandhyala Sreeram Sharma and others v. Nimmagadda Krishna Venamma A.I.R. 1957 A.P. 434 and by Madras High Court in the case of Varada Bhaktavatsalvdy and another v. Damoji Purapuvenkatanarasimha Rao and others A.I.R. 1940 Madras 530, Madras and Oudh High Courts took notice of a case of our High Court reported in the case of Ganga Dayal v. Mani Ram and others I.L.R. 1931 Allahabad 156 = 6 A LJ. 62. That decision was approved by the Privy Council in the case of Jawaliir Singh v. Udai Prokash. I.L.R. 48 Allahabad 152 = A.LR. 1926 Privy Council 16 Madras High Court and Oudh Chief Court have distinguished that case. I have perused the decision of our High Court in that case. The facts were that the District Judge had appointed a certificated guardian of the minors but had not given sanction to sell certain property. That suit was then brought by the youngest minor son after he attained majority for setting aside the sale as not binding on him. In the present case, the case related to the acquisition of the property by the Joint Hindu family consisting of Om Prakash, Ramesh Chandra and by their uncle Lala Ram. That suit was then brought by the youngest minor son after he attained majority for setting aside the sale as not binding on him. In the present case, the case related to the acquisition of the property by the Joint Hindu family consisting of Om Prakash, Ramesh Chandra and by their uncle Lala Ram. That acquisition could have been easily made by Lala Ram and Om Prakash provided the funds were available for performing their part of the contract of repurchase. In such a case there would have been no question of challenging that sale by Ramesh when he attained the majority. It can, therefore, be said that under the circumstances of the present case it was possible for Om Prakash to give a valid discharge on behalf of Ramesh Chandra of sale within the meaning of section 7 of the Limitation Act. Under the circumstances of the case, in my opinion, the view taken by the trial court was correct and the view taken by the lower appellate court cannot be sustained in law. The period of four years stipulated under the contract expired on 14.3.1957. The suit on the basis of that contract could have been brought till 14th March, 1960. The present suit which was brought on 10.11.1962 was clearly barred by limitation. In the result the appeal is allowed. The decree and judgment of the lower appellate court are set aside and those of trial court are restored with the result that the plaintiffs' suit for specific performance stands dismissed with costs throughout.