Shyam Kali v. Bachchoo Lal — 1977 DIGILAW 205 (ALL)

JUDGMENT H.N. Agrawal, Member. - This is a second appeal against the judgment and decree of Sri S.M. Hasan, Additional Commissioner, Faizabad Division. Faizabad, dated December 13, 1971, allowing the Appeal No. 785-1971 of Faizabad against the order dated March 17, 1971 passed by the Judicial Officer, Sadar Tanda, district Faizabad in Case No. 9/11/261 under Section 229-B, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. Respondent No. 1, Bachchoo Lal had filed a suit under Section 229-B, U.P.Z.A. and L.R. Act seeking declaration of his Bhumidhari rights in certain plots on the ground that the previous tenure-holder Dwarika had executed a sale deed in his favour on December 4, 1961. The defendant-appellants Srimati Shyam Kali and Srimati Raghuraji contested the suit by pleading that they were the daughters and heirs of Dwarika who had executed a registered will in their favour on April 25, 1957. They also challenged the sale deed dated December 4, 1961 on the ground that Dwarika was at the time of the execution of the sale deed physically and mentally unfit and the sale deed was got executed by exertion of undue influence and without payment of any consideration. The trial court dismissed the suit, but the lower appellate court, in appeal, set aside the order of the trial court and has decreed the suit. 4. The learned counsel for the appellants has contended that the learned Additional Commissioner has erred in law in holding that the sale deed dated December 4, 1961 cannot be cancelled and declared void and inoperative on account of inadequacy of consideration, that the lower appellate court has erred in law in holding that Dwarika was not mad at the time of the execution of the Farsi sale deed dated December 4, 1961 though there was ample evidence on record to the contrary, and that the lower appellate court has erred in law in ignoring the judgment and order dated April 18, 1963 passed by the Dy. Director of Consolidation between the parties in respect of this very land which operated as res judicata. Director of Consolidation between the parties in respect of this very land which operated as res judicata. In this judgment the Deputy Director of Consolidation has held the sale deed dated December 4, 1961 to be void and a Sham transaction and declared the appellants to be the true legal heirs of Dwarika and Bhumidhars in possession of the land in suit. 5. The learned counsel for the respondent does not challenge that the appellants are the daughters that the appellants are the daughters and heirs of Dwarika, deceased. The registered will executed by Dwarika in favour of the appellants on April 25, 1957 is on record and has been duly proved. The learned counsel for the respondent has, however, based his claim on the registered sale deed executed by Dwarika in favour of the respondent on December 4, 1961 and has contended that inadequacy of consideration is no ground for holding the sale deed to be void or inoperative. He has further argued that the executant Dwarika was in sound mind at the time of executing the sale deed. 6. The trial court has recorded the finding that Dwarika was of unsound at the time of the execution of the sale deed. This finding is based on the F.I.R. lodged in the Police Station of Ronahi on November 27, 1961 as also an application moved by Lakshmi Prasad and Ram Swarup before the Deputy Commissioner. Faizabad on the same day. There is also the evidence of Tej Bahadur Singh (D.W.1) who is the Pradhan of the Gaon Sabha and Jagdamba Buksh (D.W.2), ex-Zamndar of the village, the ex-Mukhiya and ex-Surpunch to the same effect. The learned Additional Commissioner has while setting aside the finding of the trial court failed to consider the above vital oral and documentary evidence. Thus, the findings of the lower appellate court are perverse and based on omission of material evidence. 7. The question whether a sale deed can be declared void and inoperative on account of inadequacy of consideration has been discussed before me at great length. The learned counsel for the respondent has referred to Section 25 and Section 53 of the Transfer of Property Act. 7. The question whether a sale deed can be declared void and inoperative on account of inadequacy of consideration has been discussed before me at great length. The learned counsel for the respondent has referred to Section 25 and Section 53 of the Transfer of Property Act. Section 25 lays down that an interest cerated on a transfer of property fails if the fulfilment of the condition is impossible or is forbidden by law, or is fraudulent or involves or implies injury to the person or property of another, or is immoral or opposed to public policy. Section 53 deals with fraudulent transfers and reads as follows: "53 (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term included a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that is has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of his sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made." 8. The learned counsel for the respondent has referred to Batasar v. Udit Narain, 1971 R.D. 90 and Smt. Kilhati v. Dy. Dir. of Consolidation, 1975 R.D. 280. In the former, Mr. K.B. Asthana, J. (now C.J.) has observed as follows: "Under Section 31 of the Specific Relief Act the plaintiff, if the circumstances mentioned in the said section are made out, is entitled to obtain the equitable relief of cancellation of the sale deed which is a very special kind of relief as it entails the cancellation of the copy of the deed in the books of the Registrar. In its terminology Section 31 of the Specific Relief Act will also apply to instruments in writing which are void. In its application it is not limited only to instruments in writing which are voidable. Thus it is always open to a plaintiff to ask for cancellation of even a void instrument when he apprehends real danger or injury to his rights in case the impugned instrument is left outstanding and its copy is not cancelled in the books of the Registrar. It was conceded by the learned counsel for the defendants opposite parties that no such relief can ever be given by a Revenue Court and it is only a Civil Court which could grant a relief under Section 31 of the Specific Relief Act. If that be so, then no question will ever arise, in my way of thinking, doubting the jurisdiction of the Civil Court when a plaint is presented before it showing a cause of action on the basis of which an instrument in writing can be cancelled. It will not make any difference even if the subject matter of the impugned instrument be the transfer of rights and interest in agricultural holdings. There is nothing in Section 31 of the Specific Relief Act which excludes out of its purview an instrument evidencing a transaction relating to agricultural land. At the same time there is nothing in the U.P. Zamindari Abolition and Land Reforms Act compelling the plaintiff to seek a declaration of rights under the provisions of the Act without taking recourse to the provisions of Section 31 of the Specific Relief Act is a sale transaction relating to agricultural lands is void. It is for the plaintiff to decide whether for better protection of his interest he would prefer to have an instrument in writing void against him cancelled or to ignore it and proceed to seek reliefs to secure his interests." In the latter, Mr. N.D. Ojha, J., has observed as follows: "From a perusal of the order of the Deputy Director of Consolidation it, however, appears that respondent No. 2 had denied the execution of the sale deed. On behalf of the petitioner it was stated that the sale deed could not be upheld because it had been executed for inadequate consideration. N.D. Ojha, J., has observed as follows: "From a perusal of the order of the Deputy Director of Consolidation it, however, appears that respondent No. 2 had denied the execution of the sale deed. On behalf of the petitioner it was stated that the sale deed could not be upheld because it had been executed for inadequate consideration. The sale deed cannot be treated as invalid only on the plea raised by the petitioner that it was for inadequate consideration. Insofar as the plea of respondent No. 2 that she did not execute the sale deed at all, the Deputy Director of Consolidation did not record any finding." 9. The learned counsel for the appellants has, on the other hand, referred to a large number of decisions of various Courts on this question. The first decision cited is Prabhu Nath Prasad v. Sarju Prasad, AIR 1940 Allahabad 407, in which Collister and Braund JJ, have held as follows: "Where a creditor pleads that the deed of sale by judgment debtor was a sham and bogus transaction and that the property which purported to be conveyed under the instrument of sale was never conveyed at all and remained the property which purported to be conveyed under the instrument of sale was never conveyed at all and remained the property of the vendor, there is no necessity to institute a suit under Section 53 of the Act, as there is in fact no transfer and there is nothing which can be avoided. The next decision is Indar Singh v. Parmeshwardhari Singh, AIR 1957 Pat. 491 in which it has been held that a sale deed executed by a person who was incapable of understanding business and forming a rational judgment as to its effect upon his interest at the relevant time does not confer any title on the vendee and is a void document. The third decision referred to is M/s. Anand Parkash v. Oswal Trading Agency, AIR 1976 Delhi 24 at 28, in which the following observations have been made: "It has been recognised in India that section 23 was inspired by the common Law of England and should be construed in that light. Per Subba Rao, J., in Gherulal Parakh v. Mahadeo Das, AIR 1959 SC 781 , and has in fact been construed in the light of the principles and precedents that have prevailed in England. Per Subba Rao, J., in Gherulal Parakh v. Mahadeo Das, AIR 1959 SC 781 , and has in fact been construed in the light of the principles and precedents that have prevailed in England. It is, therefore, beyond controversy that where the consideration or the object of an agreement is opposed to public policy such an agreement would be void and could not be enforced in any Court of law. As regards the concept of public policy the cautious approach of Courts in England that new heads of public policy should not be propounded has been adopted in India and it has been pointed out that the Courts should ordinarily 'expound' and not 'expand' the frontiers of public policy. It has, however, at the same time been recognised, as in England, that the existing heads are not closed and theoretically it may be permissible to evolve new heads in the circumstances of a changing world, it was admissible in the interest of stability of a society not to make any attempt to discover new heads in these days, Gherulal Parakh v. Mahadeo Das, AIR 1959 SC 781 . The maxim ex dolo malo non oritur actio has also been applied to India and so have the principles of severability and the various exceptions to the rule that the Court will not lend its aid in a cause founded on illegal contract. The maxim as applied in India was thous stated by Hidayatullah, J., while speaking for the Court in Kedar Nath Motani v. Prahlad Rai, (1960) 1 SCR 861 : AIR 1960 SC 213 ." 10. Taking into account the provisions of Sections 23 and 25 of the Transfer of Property Act and the effect of the pronouncements of the different High Courts referred to above, one is led to the conclusion that a transfer of immovable property cannot be considered void or inoperative merely on the ground of inadequacy of consideration. It can, however, be declared to be void if it is without consideration or is fraudulent or is opposed to public policy or if it is purported to defeat the provisions of law. Further, a transfer is void if it is made by a person who is not in sound mind a the time of making such transfer. It can, however, be declared to be void if it is without consideration or is fraudulent or is opposed to public policy or if it is purported to defeat the provisions of law. Further, a transfer is void if it is made by a person who is not in sound mind a the time of making such transfer. Thus, in the present case, if the sale deed was challenged merely on the ground of inadequacy of consideration and on no other ground, the view of the learned Additional Commissioner upholding the sale deed would have to be accepted. 11. However, as seen above, the sale deed has been challenged not merely on the ground of inadequacy of consideration but on other grounds as well. The main ground is that the executant Dwarika was of unsound mind while executing the sale deed. This finding has been recorded by the trial court after a proper appreciation of the entire evidence. Unfortunately, the learned Additional Commissioner has failed to consider the evidence while reversing the finding of the trial court. The learned counsel for the appellants has in this connection referred to Annapurna Dei v. Akbar Patel, AIR 1974 Ori. 162 , in which the following principle has been laid down: "It is a well known principle that if the finding of the trial Court on a question of fact is reasonable and reflects a possible view on the evidence on record, the appellate Court should not lightly reverse it merely because a different view is equally possible on the basis of the printed record, specially when the trial court had the advantage of witnessing the demeanour of the witnesses. Apart from failing to analyse the evidence of possession adduced by the plaintiffs fully and giving some inconsistent findings by adopting a wrong approach to the case, he has not kept in mind the aforesaid principle. The learned counsel has also referred to Prem Chand v. Krishna Chand, AIR 1974 SC 702 in this connection. Another decision referred to by him is Trailakyanath v. Provabati, AIR 1974 Calcutta 261, in which it has been that the First Appellate Court, though a final Court of facts will not normally set aside the finding of facts made by the trial court on consideration of evidence unless there are compelling circumstances to do so." 12. Another decision referred to by him is Trailakyanath v. Provabati, AIR 1974 Calcutta 261, in which it has been that the First Appellate Court, though a final Court of facts will not normally set aside the finding of facts made by the trial court on consideration of evidence unless there are compelling circumstances to do so." 12. In the present case, the learned Additional Commissioner has erred in law in reversing the finding of the trial court on the question whether Dwarika was of unsound mind while executing the sale deed. The finding recorded by the trial court on this question is the right one being based on the entire material oral and documentary evidence, and must be upheld by this court. In view of this finding, the sale deed becomes void and cannot be acted upon. In accordance with the principle laid down in 1971 R.D. 90 by Mr. K.B. Asthana C.J., the revenue court where the plaintiff-respondent had sought his relief basing his claim on the sale deed was quite competent to record this finding. 13. Another very important aspect of the matter is that there has been litigation between the parties in respect of this very land before the Deputy Director of Consolidation, who by his order dated April 18, 1963 has held the sale deed dated December 4, 1961 to be void and a sham transaction and has also declared the appellants to be the legal heirs of Dwarika, deceased, and Bhumidhar in possession of the land in dispute. The order of the Deputy Director of-Consolidation has been relied upon by the trial court in its judgment. The learned Additional Commissioner has erred in law in not considering the order of the Deputy Director of Consolidation at all. The learned counsel for the appellant has in this connection referred to Prahlad v. Bhabi Chandra, AWR 1974 H.C. 209 in which it has been held that where a plaintiff filed an application u/s. 12. C.H. Act claiming that he was the adopted son of the deceased tenure-holder and the claim stood rejected by the Deputy Director of Consolidation, subsequent suit by the plaintiff before the civil court for declaring that he was the adopted son was not maintainable and was barred by Section 49. On this principle, the trial court has rightly held the suit of the plaintiff-respondent to be not maintainable and dismissed it. 14. On this principle, the trial court has rightly held the suit of the plaintiff-respondent to be not maintainable and dismissed it. 14. The result is that I hereby allow the appeal, set aside the order of the lower appellate court, and restored the order of the trial court.