Deota Prasad v. Tribhuwan — 1981 DIGILAW 737 (ALL)

JUDGMENT :- This is plaintiffs appeal arising out of a suit filed by Deota Prasad in which a decree for possession over the house and the land in suit was claimed. By way of damages for use and occupation a decree for recovery of Rs. 720/- was also prayed for. The plaintiffs case was that the house in dispute was purchased by Kashi Pd. the father of the plaintiff under sale deed dated 24-8-1943, from one Mahadeo. The consideration for the sale was Rs. 2300/-. The plaintiff claims to be in possession over the said house since then. In regard to the land shown by letters Aa Ba Sa Da which is adjacent to the house in suit, was it was maintained that it was taken by Kashi Pd on Patta from Deara Estate in the year, 1953 and since then he became owner in possession thereof. Plaintiffs father has let out the house in suit and till his death in 1959 it remained in occupation of the tenants. Even after the death of Kashi Prasad the house remained in occupation of the tenants. The plaintiffs father died on 6-6-1959, when he was a minor and his mother is an illiterate pardahnashin lady who had no capacity to understand the legal transactions. The plaintiffs uncle defendant No. 2 Rameshwar Prasad looked after his person and property after the death of Kashi Prasad. It is further alleged that after the death of Kashi Prasad the plaintiff inherited the house and the land in dispute as his sole heir and remained in possession till the accrual of the cause of action. About three years before the institution of the suit in the year 1969 defendant No. 1 Jhurhoo encroached the land in suit shown by letters Aa Ba Sa Da in the above sketch map and also asserted his ownership and possession over the house in suit. This amounted to dispossession of the plaintiff from the property in suit, hence the necessity for filing the suit arose. 2. From a perusal of the plaint if appears that initially the plaintiff based his claim on the basis of title of the house in dispute and claimed possession 3. Respondent No. 1 Jhurhoo filed the written statement and contested the suit. 2. From a perusal of the plaint if appears that initially the plaintiff based his claim on the basis of title of the house in dispute and claimed possession 3. Respondent No. 1 Jhurhoo filed the written statement and contested the suit. According to him Triloki Nath and his sons Kashi Prasad and Rameshwar Prasad and also the plaintiff Deota prasad were members of a joint Hindu family governed by Mitakshara. The house in suit was acquired from the joint fund and Triloki Nath, Kashi Prasad and Rameshwar Prasad were co-sharers therein. Kashi Prasad was the eldest son of Triloki Nath. The house in suit was acquired in his name only as a manager of the Joint Hindu family. After the death of Kashi Prasad there was a private partition of the joint family property on 24-6-1959 between Triloki Nath, Remeshwar Prasad and Deota Prasad through his mother Smt. Ram Sumirni Devi and the house in suit was also included therein. The deed of partition was duly registered and all the co-sharers become exclusive owners in possession of the property which fell to their lot. According to the partition the house in suit was allotted to the lot of Rameshwar Prasad and he became exclusive owner and in possession thereof and the land in suit lying towards the west of the house was used as Sahan Darwaza. Rameshwar Prasad sold the house in suit for Rs. 3500/- to one Bhaiya Ram who in turn sold the house to defendant No. 1 Jhurhoo for a sum of Rs. 5000/- under a registered sale deed on 7-7-1971 and put him in possession thereof. Mutation of the house has also been effected in his name and under the said sale deed he became owner in possession of the same. In the alternative Jhurhoo claims to be a bona fide purchaser for value of the property in suit and claimed to be entitled to the benefit of Section 41 of the Transfer of Property Act. 4. Defendant No. 2 Rameshwar Prasad filed separate written statement and contested the suit in so far as it related to the house in suit and admitted the plaintiffs claim with respect to the said house. Defendant No. 2 in his written statement maintained that the plaintiff has neither any interest in the land in suit nor has he ever remained in possession. 5. Defendant No. 2 in his written statement maintained that the plaintiff has neither any interest in the land in suit nor has he ever remained in possession. 5. The plaintiff filed a replication in which it was stated that Triloki Nath and his sons did not constitute Joint Hindu family. There was no joint business and Kashi Prasad was not the Karta of the family. In paragraph 13 of the replication it was stated by the plaintiff that the house in dispute belonged exclusively to Kashi Prasad. It was maintained that the property was not liable to be partitioned. Since plaintiff was a minor at the time of his fathers death defendant No. 2 after misrepresenting the facts pursuaded the mother of the plaintiff to put her signatures on a document which is said to be a deed of partition. According to the plaintiff the so-called partition deed was obtained by practicing fraud upon the mother of the plaintiff. According to the plaintiff his mother is a pardahnashin lady and was unable to understand the implications of the deed of partition. It is also maintained that since the house in dispute belonged exclusively to Kashi Prasad and after that his mother had no authority to agree to the partition of the house in suit. 6. It is to be noted that the allegations of fraud having been practiced on the mother of the plaintiff and that his mother was a pardahanashin lady and did not appreciate the significance and implications of partition did not find place in the plaint. On the above pleadings a number of issues were framed which are enumerated in the judgment of the trial Court. One of the issues framed was that the suit is barred by limitation. The trial Court dismissed the plaintiffs suit and the decree passed by the trial Court was upheld by the lower appellate Court. The trial Court while recording findings on issue No. 7 held that the suit was within time. However, as a result of findings on other issues the plaintiffs suit was dismissed on merits. The lower appellate Court held that the suit in regard to part of the property was within time and in regard to rest it was beyond time but ultimately on merits he maintained the decree passed by the trial Court and dismissed the plaintiffs suit. 7. The lower appellate Court held that the suit in regard to part of the property was within time and in regard to rest it was beyond time but ultimately on merits he maintained the decree passed by the trial Court and dismissed the plaintiffs suit. 7. Aggrieved by the decree passed by the lower appellate Court dated 7-3-1976 the plaintiff has come up in second appeal before this Court. In this appeal I have heard Mr. Bireshwar Nath for appellant and Mr. Umesh Chandra for respondents. 8. The main point involved in this appeal is whether the plaintiffs suit is within time or not. If the plaintiffs suit is beyond time then the suit was liable to be dismissed apart from whatever merits there may be in the plaintiffs case. For the proper appreciation of the controversy between the parties the following pedigree is reproduced below:- 9. For the proper appreciation of the question of limitation which arises in the appeal, it is necessary to mention certain dates. On 2-1-1944 Deota Prasad the plaintiff was born. On 6-6-1959, Kashi Prasad, father of Deota Prasad died. On 24-6-1959 a deed of partition was executed between Smt. Ram Sumirni Devi as the mother and guardian of Deota Prasad and Rameshwar Prasad and Triloki Nath. A perusal of the said deed indicates that the value of the property sought to be partitioned including the house in dispute was assessed at Rs. 68,400/-. A perusal of the said document would indicate that Triloki Nath was allotted property worth Rupees 16,500/-, Rameshwar Prasad was allotted property worth Rs. 39,800/- and Deota Prasad was allotted Property worth Rs. 12,100/-. It may be noted that this partition took place within eighteen days of the death of Kashi Prasad. In the plaint the plaintiff has stated that the house in question belonged exclusively to him whereas according to Rameshwar Prasad defendant No. 2 the house in question was ancestral joint family property. It may further be noted that on 2-1-1962 Deota Prasad attained majority and on 11-3-1972, the plaintiff filed the present suit in which he ignored the partition effected on 24-6-1959 and the cause of action for the suit according to the plaintiff arose sometimes in 1969 when defendant No. 1 attempted to interfere with his possession over the house. It may further be noted that on 2-1-1962 Deota Prasad attained majority and on 11-3-1972, the plaintiff filed the present suit in which he ignored the partition effected on 24-6-1959 and the cause of action for the suit according to the plaintiff arose sometimes in 1969 when defendant No. 1 attempted to interfere with his possession over the house. As stated earlier, in the replication that the plaintiff took up the plea that the partition was obtained by fraud and misrepresentation and that the plaintiffs mother who acted as his guardian was a Pardahnashin lady and unable to understand the implications that the deed of partition will have on the interests of the minor. 10. The contention of the learned counsel for the appellant is that the deed of partition dated 24-6-1959 is a void document as the deed on the face of it operates unfairly in favour of the plaintiff. If the deed of partition is a void document it can be ignored and the plaintiff is justified in filing a suit for possession against the person in unlawful possession. According to him such a suit can be filed within 12 years when the possession of the plaintiff becomes adverse to the plaintiff as provided by Art.65 of the Limitation Act, 1963. Alternatively, it is submitted that the suit is governed by Art.109, which requires the suit to be filed within 12 years. On the other hand on behalf of the respondents it is contended that unless the deed of partition dated 24-6-1959 is set aside the plaintiff cannot get a decree for possession. According to him the period of limitation for filing a suit would be Arts.59 and 60 of the Limitation Act. Articles 59 and 60 read as follows:- "59 To cancel or set aside an instrument or decree or for the rescission of a contract. According to him the period of limitation for filing a suit would be Arts.59 and 60 of the Limitation Act. Articles 59 and 60 read as follows:- "59 To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him." "60 To set aside a transfer of property made by the guardian of a Ward - Three years When the Ward attains majority (a) by the Ward who has attained majority; (b) by the Wards legal representative - (l) When the Ward dies within three years from the date of attaining majority; Three years When the Ward attains majority (ii) When the Ward dies before attaining majority. Three years When the Ward dies. In these circumstances the question that arises is as to which Article of Limitation Act will be applicable for the institution of the suit in question. The answer to this question can be furnished only when it is determined whether the plaintiff in order to obtain a decree in respect of the house in question has to cross the hurdle created by the deed of partition whereby the house was alloted to the share at defendant No. 2 or whether the plaintiff can just ignore the deed of partition. It may be appreciated that the deed of partition appears to be an agreement between the members of the family the plaintiff being represented by his natural guardian, his mother. Partition of this nature may also be classed in the category of family settlement whereby the disputes are adjusted by compromise. If the partition deed is the result of an agreement between the parties and under that agreement the property in question was allotted to defendant No. 2 Rameshwar Prasad, the plaintiff can cross the hurdle only if the plaintiff is able to avoid the partition. The proposition of law is well established that a contract or agreement between the parties can be avoided on the grounds on which contract may be avoided under the Contract Act. Unless the partition deed is held to be procured by fraud, misrepresentation or coercion the said deed will hold and will govern the rights of the parties. The proposition of law is well established that a contract or agreement between the parties can be avoided on the grounds on which contract may be avoided under the Contract Act. Unless the partition deed is held to be procured by fraud, misrepresentation or coercion the said deed will hold and will govern the rights of the parties. In the replication the plaintiff has clearly set up the plea that the agreement was obtained by fraud practised on his mother. In this background the conclusion is inescapable that unless the plaintiff gets over the obligation created by the partition deed he cannot get a decree for possession over the house in question. The proposition of law is well established that a contract induced or tainted by fraud is not void, but only voidable, at the option of the party defrauded and Until it is avoided, the transaction is valid. Reference in this connection was made to the decision in Ningawwa v.Byrappa Shiddappa ( AIR 1968 SC 956 ). The fact that the contract has been induced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a right on discovering the fraud to elect whether he shall continue to treat the contract as binding or disaffirm the contract and claim the property. If it can be shown that the party defrauded has at any time after knowledge of the fraud either by express or by unequivocal acts affirmed the contract, his election is determined forever. Since the rights of the parties in regard to the house in dispute have already been determined by the partition deed dated 24-6-1959 it will hold good unless it is set aside on the ground of fraud. In this background it is obvious that the plaintiff cannot be permitted to avoid the partition deed and treat it as nullity. To the same effect are the decisions of the Privy Council reported in Ramchandra Jivaji Kango v. Laxman Shrinivas Naik (AIR 1945 PC 54) and Parikh Atmaram Maneklal v. Bai Hira (AIR 1948 PC 111). Learned counsel for the appellant placed reliance on Dip Chand v. Munni Lal (AIR 1929 All 879.). To the same effect are the decisions of the Privy Council reported in Ramchandra Jivaji Kango v. Laxman Shrinivas Naik (AIR 1945 PC 54) and Parikh Atmaram Maneklal v. Bai Hira (AIR 1948 PC 111). Learned counsel for the appellant placed reliance on Dip Chand v. Munni Lal (AIR 1929 All 879.). By reference to this decision he submitted that where the property of a minor has been transferred by wholly unauthorised person, the transaction is void ad initio and it is not necessary for the minor in order to recover possession of property transferred to have the transfer set aside. In such cases according to the learned counsel a suit can be filed for recovering of possession without setting aside the transfer. This case is distinguishable from the facts of the instant case. In this case the minor has not transferred the property. A family settlement has been arrived at between the members of the family whereby family properties have been divided in a particular manner. A family settlement is not transfer of property, it is arrived at as a result of contract wherein each parry accepts right of other party having some interest in the properties sought to be partitioned. In the instant case by agreement of parties the division of property was effected. The plaintiff was a minor represented by his mother Smt. Sumirni Devi. If under a family settlement each party has agreed that the properties be divided then unless the agreement so arrived at is set aside on any of the grounds upon which a contract may be set aside the document shall stand in the way of the plaintiff and unless and until it is set aside relief for possession cannot be obtained. In the decision cited by the learned counsel for the plaintiff it is pleaded that guardian has no right to transfer the property; in such an eventuality any transfer made by unauthorised person will be void which could be ignored. In my opinion no assistance can be derived by the appellant from the said decision. The next case on which reliance has been placed by the learned counsel for the appellant is Mt. Izhar Fatma Bibi v. Mt. Ansar Fatma Bibi (AIR 1939 All 348). In my opinion no assistance can be derived by the appellant from the said decision. The next case on which reliance has been placed by the learned counsel for the appellant is Mt. Izhar Fatma Bibi v. Mt. Ansar Fatma Bibi (AIR 1939 All 348). A perusal of the said decision would indicate that the Honble Judges were dealing with a case in which the document was not a valid document and the transaction evidenced by the document was a void transaction. The case again is of no assistance to the appellant as it has been definitely held by the Privy Council and the Supreme Court that a family settlement to which the parties have agreed is valid unless it is cancelled on the ground on which a contract may be cancelled under the Contract Act. Reliance was also placed on Kamta Prasad Singh v. Kumar Rani Sayeeda Khatoon ( AIR 1953 Pat 368 ). This decision is again inapplicable to the facts of the present case as the question whether a document is void or voidable was not under consideration. On the same ground the decision reported in Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty ( AIR 1976 Cal 55 ) is again distinguishable. It was next contended by the learned counsel for the appellant that the transaction in question is on the face of it unconscionable. He submits that the value of the property in question was fixed at Rs. 68,400/-in which each of the party was entitled to property worth Rs. 22,800/- instead of that Deota Prasad received property worth Rupees 12,100/- Triloki Nath received property worth Rs. 16,500/- and Rameshwar Prasad received property worth Rupees 39,800/-. Thus the property allotted to Rameshwar Prasad is more than half. On these facts it was strenuously contended that the transaction is unconscionable and has to be completely ignored. This argument is not open to the appellant. In considering whether the bargain is unconscionable or not reference has to be made to Sec.16 of the Contract Act. Unless a case under Section 16 of the Contract Act of undue influence is made out, it is not possible to strike down the transaction merely because it appears to be unconscionable. Even in paragraph 13 of the replication the plaintiff-appellant has not set up the plea that the deed in question was obtained by exercising undue influence on Smt. Sumirni Devi. Even in paragraph 13 of the replication the plaintiff-appellant has not set up the plea that the deed in question was obtained by exercising undue influence on Smt. Sumirni Devi. Even the facts necessary to constitute to prove undue influence have not been pleaded in the replication. In Aziz Khan v. Duni Chand (AIR 1918 PC 48) it was observed as follows:- "The transaction was undoubtedly improvident but in the absence of any evidence to show that the money-lender had unduly taken advantage of his position, it is difficult for a court of Justice to give relief on grounds of simple hardship." The above observations apply to the facts of the case. The foundation of the claim has been laid on the ground that the transaction was brought about by the undue influence practised upon Smt. Sumirni Devi". 11. A perusal of the replication would indicate that the plaintiff-appellant did not give any particulars of fraud and did not specifically mention a case of undue influence. Since the partition deed is a document voidable in nature the plaintiff-appellant can succeed only if the said document is said to be induced by fraud or undue influence. 12. Since no particulars of undue influence or fraud have been set up in pleadings the deed in question stands unchallenged. It was next contended by the learned counsel for the plaintiff appellant that even though fraud, misrepresentation or undue influence has neither been pleaded nor established the partition deed was liable to be set aside on the ground that the mother of the plaintiff-appellant was a Pardahnashin lady she had no authority to enter into any arrangement. In this respect he has placed reliance on Parasnath Rai v. Tilleshra Kaur (1965 All LJ 1080). It is not possible for the plaintiff-appellant to derive any assistance from this decision as it is on record that the plaintiff-appellant did not produce his mother in the witness box who was admittedly alive during the pendency of the suit. Smt. Sumirni Devi, the mother of the plaintiff-appellant would have been the best person to depose as to how and in what circumstances she was prevailed upon to agree to the transaction in question. 13. Since I am of the view that the claim of the plaintiff-appellant fails on the question of limitation it is unnecessary to go on other questions which have been discussed by the courts below. 13. Since I am of the view that the claim of the plaintiff-appellant fails on the question of limitation it is unnecessary to go on other questions which have been discussed by the courts below. 14. For the reasons stated above, the appeal fails and is dismissed. However, in the circumstances of the case I direct that the costs of this Court and of the Courts below shall be borne by the parties. Appeal dismissed.