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Madhya Pradesh High Court · body

2000 DIGILAW 1105 (MP)

Bhagwandas v. State of M. P.

2000-10-11

ARUN MISHRA

body2000
JUDGMENT Arun Mishra, J. 1. This second appeal has been preferred by the Plaintiff who had filed the suit before the trial Court for declaration that the sale deed allegedly executed by Tudu is illegal on the ground that it was never executed by Tudu in favour of Defendant Kailash Narayan. The same was with respect to the 1/2 share of agricultural land comprised in khasra No. 968 area 0.696 Hectares, and Khasra No. 1077 area 0.275 Hectares total area 0.971 Hectares situated in village Diguwan and one-fourth share of the agricultural land comprised in Khasra No. 969 area 0.898 Hectares situated in village Diguwan. 2. According to the Plaintiff, the land was co-parcenary property of the Plaintiff and his father and after the death of his father, he obtained the land by survivorship as the Plaintiff was jointly living with his father who died on December 17, 1982. Parties are governed by Mitakshara Law Banaras school and admittedly in the V.P. region, a co-parcener cannot alienate the land without the consent of the other co-parcener even to the extent of his own share. 3. Defendant No. 2. on December 22, 1982 obtained a forged sale deed in his favour by putting thumb impression of some forged person in place of Tudu who was already dead. According to him, the sale-deed dated 22-12-82 in fact was not having thumb impression of the deceased Tudu but some one else's thumb impression has been obtained on the document. No consideration was received by his father. No sale-deed could have been executed in respect of the property which was co-parcenary property and it could not have been alienated for want of legal necessity. Mutation was obtained on the strength of the sale deed which was objected and challenged. Defendant No. 2 has forcibly taken possession. He was not allowing the Plaintiff to cultivate the land. The suit was for declaration and injunction and in the alternative, for restoration of possession. 4. The Defendant in his written statement took plea that the Plaintiff is not the son of Tudu s/o Maskani resident of Diguwan but is born from some other Tudu Luhar resident of Belma who was brought up by Tudu Luhar's wife, who left her husband and started living with Tudu r/o Diguwan who died on December 30,1982. 4. The Defendant in his written statement took plea that the Plaintiff is not the son of Tudu s/o Maskani resident of Diguwan but is born from some other Tudu Luhar resident of Belma who was brought up by Tudu Luhar's wife, who left her husband and started living with Tudu r/o Diguwan who died on December 30,1982. Sale deed was executed by Tudu in his lifetime and that the sale consideration was paid. It was further stated that the Plaintiff had admitted before the villagers that the sale-deed was executed by Tudu with the consent of the Plaintiff and he had not objected to mutation. Thus, the sale deed was executed with the consent of the Plaintiff and hence could not assail the sale-deed. 5. The trial Court, while decreeing the suit, came to the conclusion that the suit-property was joint family property of the Plaintiff and his father Tudu. Plaintiff's father died on 17-12-82. The sale-deed dated 22-12-82 is a forged document and does not bear the thumb impression of Tudu. Tudu was not having any right to alienate the property. The sale-deed was executed without any legal necessity and was without consideration and it also came to the conclusion that the Plaintiff is the son of Tudu. 6. In appeal, the learned first Appellate Court has affirmed the finding that the Plaintiff is the son of Tudu. However, it recorded the finding that the property is not the joint family property of Plaintiff and his father. The same has not been found to be ancestral property. It came to the conclusion that the Plaintiff has failed to prove that the document was forged he himself is not party to the execution of the sale-deed and as such he cannot challenge the sale-deed for want of consideration. The judgment and decree of trial Court have been reversed in appeal. 7. Learned Counsel for the Appellant has urged that the original sale deed has not been produced at all. Only certified copy was placed on the record. It was incumbent upon the Defendant to produce the original sale deed. No permission was granted to adduce the secondary evidence of the sale-deed and for want of production of original sale-deed adverse inference ought to have been drawn by the Courts below. It is further submitted that passing of the sale consideration is not established. It was incumbent upon the Defendant to produce the original sale deed. No permission was granted to adduce the secondary evidence of the sale-deed and for want of production of original sale-deed adverse inference ought to have been drawn by the Courts below. It is further submitted that passing of the sale consideration is not established. Evidence does not go to show that the consideration has passed. It is further submitted that the property has been admitted to be the joint property and it was not disputed that the property was of the forefathers of the Plaintiff. Learned Counsel further submits that the property in question was admitted to be the joint property by the Defendant himself. The Defendant in para 4 of his deposition, has admitted that the property of his father Kunji and that of Tudu was joint. Thus, the Learned Counsel for the Appellant submits that it was the ancestral property. Hence, the suit-property could not be alienated without the consent of the Plaintiff even to the extent of share of the deceased Tudu. Even if any alienation has been made by him, the same is void and unenforceable. 8. After hearing the Learned Counsel for the Appellant, I am of the opinion that this second appeal deserves to be allowed. This second appeal was admitted by this Court on the following substantial questions of law: 1. Whether on failure of the Defendant to produce the original sale deed the Courts below were right in holding that the sale-deed was executed by Tudu even it was pleaded by Plaintiff that Tudu had not executed the sale deed? 2. Whether in the absence of original sale deed the Court ought to have drawn adverse inference against the Defendant? The following additional substantial questions of law, on the submissions made by the Learned Counsel for the Appellant, are also framed: 3. Whether the property is ancestral and could be alienated by Tudu without the consent of the Plaintiff even to the extent of his own share? 4. Whether, finding about the passing of consideration under the sale deed recorded by the trial Court has been reversed by the Appellate Court, illegally? 9. The sale-deed in question is said to be executed on 22-12-82. 4. Whether, finding about the passing of consideration under the sale deed recorded by the trial Court has been reversed by the Appellate Court, illegally? 9. The sale-deed in question is said to be executed on 22-12-82. The case of the Plaintiff is that Tudu died on December, 17, 1982 and the case of the Defendant as set up in the written statement is that Tudu died on December 30,1982. 10. I find substance in the submissions made by the Learned Counsel for the Appellant that the property in question is ancestral property, as pleaded in the plaint that the property in question was co-parcenary property of Tudu. It was not denied in the written Statement. What was denied was that the Plaintiff is not the son of Tudu and had come to the house of Tudu with the wife of the deceased Tudu. The concurrent findings recorded by the two Courts below on the question that the Plaintiff is the son of the deceased Tudu call for no interference in the second appeal . In view of the concurrent finding recorded by the Courts below that the Plaintiff is the son of deceased Tudu and also non denial of the Defendant himself in the written statement that the property in question was a joint family property of his father Kunji and Tudu, it is held that the trial Court's finding that the property is ancestral property has been illegally reversed by the lower Appellate Court. The trial Court also came to the conclusion that for want of consent of the Plaintiff, the alienation made by Tudu was void even to the extent of his share and there was no consent of the Plaintiff in the execution of the sale-deed. Under Banaras School of Mitakshari Law, it is necessary that the consent of the coparcener should be obtained in order to sell to the extent of co-parcener's share. It is not in dispute that Banaras School of Mitakshara Hindu Law is applicable in the area in question. Full Bench decision in the case of Diwan Singh v. Bhaiyalal, 1997 (2) MPLJ 202 paragraphs 7 to 10 runs thus: 7. It is not in dispute that Banaras School of Mitakshara Hindu Law is applicable in the area in question. Full Bench decision in the case of Diwan Singh v. Bhaiyalal, 1997 (2) MPLJ 202 paragraphs 7 to 10 runs thus: 7. It is argued on behalf of the Appellant that Bombay School of Mitakshara Hindu Law can be said to have been held applicable only to a section of a population or Hindus in erstwhile Central provinces and Berar but the said Bombay School was not applicable to other integrating units of Madhya Pradesh such as Vindhya Pradesh and Madhya Bharat including regions of Gwalior and Indore. To the regions other than Central Provinces, Banaras School of Hindu Law was applicable and that has been settled by a long series of decisions in cases emanating from those regions. 8. The Full Bench decision of this Court in Ramdayal's case (supra) came up for consideration before two Division Benches of this Court. In F. A. No. 31/68, decided on 14.12.1976 (at Gwalior Bench of this Court) Hon'ble Shri Justice J. S. Verma (as to then was) was a party so was he to the Full Bench case of Ramdayal (supra). In F. A. No. 31/68 decided on 14-12-1976 the Full Bench decision in the case of Ramdayal (supra) was explained as under: Shri Gupta relied on some observations in the Full Bench decision in Ramdayal's case (supra) to contend that according to the Mitakshara law, as administered in whole of the State of Madhya Pradesh, a coparcener may alienate for value his undivided interest in the coparcenary so that the sale is not void and the purchaser gets the share of his vendor. This is not a point decided by the Full Bench and observations to that effect in para 3 of the judgment are merely a general statement of the law applicable to formation of the new State on Re-organisation of States. There can no doubt that to some part of the new State of Madhya Pradesh the Banaras School of Mitakshara law applies and the general statement made in the Full Bench decision does not refer to those parts. There can no doubt that to some part of the new State of Madhya Pradesh the Banaras School of Mitakshara law applies and the general statement made in the Full Bench decision does not refer to those parts. In the present case, itself, in the earlier suit there was no dispute between the parties that the Banaras School of Mitakshara law applied to them and it was on that basis that the suit was decided and the alienation by an undivided coparcener was held to be void. Those observations in the Full Bench decision have, therefore, to be read confined only to that part of Madhya Pradesh where the Bombay School of Mitakshara Law is applicable and not to those portions of the new State of Madhya Pradesh where the Banaras School applies. 9. In applying the Banaras School of Hindu Law to the parties residing in erstwhile Madhya Bharat region, in another division Bench decision rendered by this Court at Gwalior Bench in F.A. No. 19/74 decided on 15-9-1981 the Full Bench decision in Ramdayal's case (supra) was distinguished on the same ground by quoting the above observations made in the earlier Division Bench's case of Gwalior Bench. 10. The above mentioned two Division Bench decisions, followed by the Full Bench decision of this Court ought to have been regarded as constituting sufficient ground for the learned single Judge for proceedings to decide the case on merits instead of making a reference to a Larger Bench of this Court. 11. The Plaintiff has also stated that the property is ancestral property and he was not cross examined on that aspect of the matter and he had pleaded and deposed that he has not consented to the sale by his father. Thus it is held rightly by trial Court that Plaintiff had not consented to sale by father. The same is held to be void and inoperative for want of consent de hors of question whether it was as a matter of fact executed by deceased Tudu. 12. Substantial questions of law Nos. 1 and 2 have been framed by this Court in respect of the failure of the Defendant to produce the original sale-deed. The sale deed was shown to be bearing the Thumb impression of the deceased Tudu. Thus, it was incumbent on the Defendant to have produced the original sale-deed. 12. Substantial questions of law Nos. 1 and 2 have been framed by this Court in respect of the failure of the Defendant to produce the original sale-deed. The sale deed was shown to be bearing the Thumb impression of the deceased Tudu. Thus, it was incumbent on the Defendant to have produced the original sale-deed. No reasons have been shown by the Defendant for non-production of the original sale deed. The sale deed is said to be executed on a close date prior to the death of Tudu. It was incumbent upon the Defendant to have proved due execution of sale deed. Bhogiram has been examined as DW 2 to show him as attesting witness to the sale deed. He has stated that he, Nathuram Shrivastava and one other person of Seondha have signed as attesting witnesses and the consideration was not paid in the presence of Nathuram. Nathuram's signatures are not there on the sale-deed. Other attesting witness has not been produced. With respect to the payment of consideration, the witness D.W.2 says that the consideration was not paid before the Court but before the Registrar. Later on he turned his version by saying that the consideration was paid before the Registrar could reach the sale consideration was paid at the earlier point of time by him but has not stated what consideration was as a matter of fact paid. In the cross-examination, he stated that he had paid the consideration of Rs. 5,000/- before the Registrar and in the presence of the Registrar. He denied the suggestion that the consideration was not paid in the presence of Registrar. Reading of the sale deed in question shows that the amount was not paid before the Registrar. It was paid at earlier point of time. Thus the Defendant's own statement goes to show that he had not paid the consideration and had only stated that it was paid before the sub Registrar. Thus, not only the due execution of the sale deed is not established but passing of the consideration also is not established by the Defendant. The evidence of the Defendant himself and that of Bhogiram is contradictory. 13. The first Appellate Court has thus committed an error while reversing the well reasoned findings recorded by the trial Court. Thus, not only the due execution of the sale deed is not established but passing of the consideration also is not established by the Defendant. The evidence of the Defendant himself and that of Bhogiram is contradictory. 13. The first Appellate Court has thus committed an error while reversing the well reasoned findings recorded by the trial Court. In the findings recorded by the first Appellate Court, it is clear that the Court has ignored the pleadings in respect of the nature of the property and the other evidence on the record and the evidence regarding passing of the consideration was not adverted to, particularly when the deceased Tudu was an illiterate person who used to put thumb mark and bona fide nature of the transaction was not established by the Defendant. 14. The judgment and decree passed by the first Appellate Court are set aside and that passed by the trial Court are restored. Appeal is allowed. Parties shall bear their own cost in this appeal.