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2001 DIGILAW 1037 (PAT)

Mritunjay Kumar v. Srimati Pancho Devi

2001-11-19

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment and decree dated 14th December, 1987 and 2nd January 1988, respectively, passed by the 6th Additional District Judge, Munger, in M.T.A. No. 3 of 1987, affirming the judgment of the trial court dated 3rd January 1986 passed by the Munsif-II, Munger. The plaintiff of that suit is the appellant here. 2. The plaintiff had filed the aforesaid title suit seeking cancellation of certain sale-deeds executed by his father, defendant no. 5 of the suit in favour of defendant no. 1 and subsequently a sale-deed executed by defendant no. 1 in favour of defendant no. 2 and then defendant no. 2 executing a sale-deed in favour of defendant no. 3. All these sale-deeds were sought to be set aside on the ground that the defendant no. 5 was a profligate given to wine and women. The sale-deed executed by defendant no. 5 in favour of defendant no.1 was illegal, without legal necessity and without any consideration. The suit land was allotted to defendant no. 5 in partition among his brothers who had inherited the same from the plaintiffs grand father Sadho yadav. Sadho Yadav owned and possessed 1 bigha 10 kathas and 14 dhurs bf land and on his death his sons Doman Yadav, Mahadeo Yadav along with widow of Ram Sharan Yadav inherited his property (Ram Sharan Yadav died during the life time of his father Sadho Yadav). Subsequently, Doman Yadav, Mahadeo Yadav (defendant no. 5) along with widow entered into the partition and Mahadeo Yadav got 1 bigha 10 kathas 14 dhurs. Out of the aforesaid land, defendant no. 1 obtained a void sale-deed over 1 katha of land from Mahadeo Yadav, as described in Schedule-I of the plaint for Rs. 2,000/-. The land sold to the defendant no.1 was not properly identifiable and distinct because it was part of 5 plots in which the plaintiffs father was allotted 1 bigha and odd land. Thereafter the defendant no.1 sold the suit land to defendant no. 2 for Rs. 3,000/- in the year 1976 and subsequently defendant no. 2 sold this land to defendant no. 3 for Rs. 4,000/- on 1st July 1982. Thereafter the defendant no.1 sold the suit land to defendant no. 2 for Rs. 3,000/- in the year 1976 and subsequently defendant no. 2 sold this land to defendant no. 3 for Rs. 4,000/- on 1st July 1982. It was the claim of the plaintiff that his father had no authority to sell the suit land, the same being coparcenary property in which the plaintiff had his share and the sale-deed was executed without any legal necessity. 3. The defendant no. 3 had only contested the suit and her case was that the plaintiff was not in existence on 16th February 1973 when the sale-deed in favour of defendant no.1 was executed by defendant no. 5, the father of plaintiff. He filed the suit under the guardianship of his mother. Since the plaintiff was not born on 16th February 1973, he did not acquire any share and, therefore, the vendor Mahadeo Yadav was the sole coparcener and, hence, he was entitled to sell the suit-land. The sale-deed was valid and the land sold was also distinct and not vague and it was properly identifiable. The subsequent sale-deeds in favour of defendant no. 2 and then to the defendant no. 3 were also valid and for consideration and the vendees came in possession. Hence the suit was liable to be dismissed. 4. I find that the trial court held that the plaintiff was not born on 16th February 1973 and, therefore, he had no right and interest in the suit property. All the sale-deeds which the plaintiff sought cancellation, were genuine and valid and, therefore the suit was dismissed. The appellate court, on the basis of evidence, upheld the finding of the trial court regarding the fact whether the plaintiff was born on 16th February 1973 or not. Since this is a question of fact and both the lower courts are concurrent in their finding I think there is no necessity for this Court to interfere with this finding. So far the genuineness of the sale-deed is concerned, the appellate court did not agree, with the finding of the trial court that the sale-deed dated 16.2.1973 (Ext-B/2) was executed for legal necessity and on the basis of consideration money paid to Mahadeo Yadav (father of plaintiff). So far the genuineness of the sale-deed is concerned, the appellate court did not agree, with the finding of the trial court that the sale-deed dated 16.2.1973 (Ext-B/2) was executed for legal necessity and on the basis of consideration money paid to Mahadeo Yadav (father of plaintiff). But the appellate court maintained the decree of the trial court on the ground that since the plaintiff was not in existence on 16th February 1973, he had no right to challenge the sale-deed in question and, therefore, he had also no right to sue and, accordingly, he had no cause of action and, therefore, the suit was rightly dismissed by the trial court. 5. The substantial question of law which was framed for decision of this appeal was whether the court of appeal below was justified in holding that the plaintiff had no right to challenge the sale-deed, as he was not born on the date of transfer, especially when the appellate court had come to the conclusion that the sale-deed in question was without legal necessity and without consideration. 6. It is to be noted that the defendant no. 5 had allegedly made sale deed in favour of defendant no.1 on 16th February 1973 and this sale-deed was on the record of the case as Ext-B/2. The appellate court has held on perusal of the sale-deed that the sale-deed did not indicate that the consideration money was paid to the vendor and that the vendor had executed the sale-deed for legal necessity. So the appellate court held the sale-deed to be invalid. Once the sale-deed was declared to be invalid, the vendee shall acquire no title under the deed and, therefore, the subsequent sale-deed executed by defendant no. 1 Pancha Devi in favour of defendant no. 2 and the sale-deed executed by defendant no. 2 in favour of defendant no. 3, all will become invalid, the vendors of the aforesaid sale-deeds acquiring no title. So the question whether the first sale-deed executed (Ext-B/2) was invalid was a question which was raised before me and it was submitted by the respondents lawyer that the sale-deed was valid. In the first place, its validity was founded on premise that Mahadeo Yadav was the sole surviving coparcener and, therefore, it was not necessary for him to state in the sale-deed that he was selling the suit land for legal necessity. In the first place, its validity was founded on premise that Mahadeo Yadav was the sole surviving coparcener and, therefore, it was not necessary for him to state in the sale-deed that he was selling the suit land for legal necessity. If this argument is accepted, even then, passing on consideration money will remain an open question. The appellate court has held on the basis of recitals of sale-deed that this did not indicate that Rs. 2,000/- which was the consideration money was paid to Mahadeo Yadav and, if at all, in what manner. The contents of the safe-deed did not indicate that the consideration money was paid to the vendor, Mahadeo Yadav, prior to the execution of the sale-deed or at the time of execution or before the Registrar. The execution portion also does not show that Mahadeo Yadav had received consideration money. The learned appellate court has quoted endorsement containing the execution of the deed and had come to a conclusion that the endorsement in Hindi did not indicate that Rs. 2,000/- was received by the vendor. It is worthwhile to refer to this endorsement made in Hindi: "SAHI MAHADEO YADAV KEWALA MOGLIG Rs. 2,000/- (DO HAZAR) RUPAYA KA LIKHA WO DASTABEJ PARHWAKAR SUN WO SAMAJH LIYA". This endorsement does not indicate at all that Mahadeo Yadav received Rs. 2000/-. This simply indicates that the sale-deed was for a consideration of Rs. 2000/-. It was submitted before me by the respondents lawyer that payment of consideration money is a matter between the vendor and the vendee and the 3rd party to the deed has no right to challenge passing of consideration money. In this connection, I am of the firm opinion that, of course, the 3rd party to the deed are not entitled to challenge the passing of consideration. But nevertheless, a person who has interest in the vended property wilt be fully entitled to challenge the passing of consideration money and the validity of the sale-deed. In the instant case, the plaintiff is the son of vendor, Mahadeo Yadav, and he was claiming interest in the suit property. Hence, he was entitled to challenge the passing of the consideration. It was next submitted by the respondents lawyer before me that a sale-deed even without passing of consideration is valid, if the vendor does not challenge the passing of consideration money. Hence, he was entitled to challenge the passing of the consideration. It was next submitted by the respondents lawyer before me that a sale-deed even without passing of consideration is valid, if the vendor does not challenge the passing of consideration money. In the instant case Mahadeo Yadav was made defendant and he neither appeared nor contested the suit nor he was examined by the respondents. I am next of the considered opinion that when passing of the consideration money is challenged by the person interested in the land in question, the vendee has to prove it by positive evidence. The appellate court has disbelieved the evidence on behalf of respondent in this connection and so it is a finding of fact which does not deserve any reversal by this Court. The contention that a sale-deed, even without consideration, is valid is nothing, short of preposterous plea. Of course, the amount of consideration is a matter between the vendor and the vendee and even a token consideration money wilt validate the sale-deed; but total want of consideration cannot validate a sale-deed. When passing of consideration money is not proved, on the basis of evidence on the record, the sale-deed is bound to be declared as illegal. A sale-deed for no consideration at all is ab initio void. So I am of the opinion that the sale-deed (Ext-B/2) executed by Mahadeo Yadav in favour of defendant no.1 was invalid and void. Hence, the subsequent sale-deeds executed by other defendants in favour of defendant nos. 2 and 3 were also invalid. 7. Now the question is whether the plaintiff appellant had right to sue and whether he had any cause of action. In this connection, once, the initial sale-deed (Ext-B/2) is declared to be invalid, the title of the vendor, Mahadeo Yadav, will remain intact and shall subsist. In such a circumstance, the plaintiff who was not born on 16th February 1973, was very much in existence later and as per the evidence led by the defendant no. 3, he was born in the year 1975. Therefore, he had acquired interest in the suit property, the same coming to the hands of Mahadeo Yadav on inheritance from his father and through family partition. So from all practical purposes, the said land was the ancestral land of the plaintiff and, therefore, he will acquire interest in the same by his birth. Therefore, he had acquired interest in the suit property, the same coming to the hands of Mahadeo Yadav on inheritance from his father and through family partition. So from all practical purposes, the said land was the ancestral land of the plaintiff and, therefore, he will acquire interest in the same by his birth. So he had every right to file the suit and seek relief as claimed for by him. The appellate court committed a legal error by holding that he had no right to file a suit and he had no cause of action. In this connection, the respondents lawyer referred to me Article 257 of the Hindu Law to submit that alienation by father even without legal necessity is valid. I have already held above that the sale-deed executed by respondent no. 5 Mahadeo Yadav was invalid for want of consideration money and, therefore, Article 257 of the Hindu Law is not applicable to the facts of the case. U/s 54 of the T. P. Act, the sale has been defined and transfer of any immovable property or movable property is an exchange of ownership for a price paid or promised or part paid and part promised. I need not refer to other parts of Section 54 of the T.P.Act. In the instant case, the appellate court held that Ext-B/2 was not effected after payment of consideration money. So the sale-deed dated 16th February 1973 was apparently invalid. In this connection, decisions cited by the respondents lawyer, as reported in AIR 1928 Patna page 44 and AIR 1990 Patna page 26, are not at all applicable to the facts of the case, nor it has been held in those decisions that sale without consideration money is valid. So far Articles 268 & 269 of the Hindu Law are concerned, I find that Article 268 has reference to sale in the State of Maharashtra and Madras where Mitakshara Hindu Law has different annotation and connotation. Section 269 refers to sales in the State of Bihar and Uttar Pradesh and Bengal where a sale-deed can be challenged by coparceners, if effected by Karta of the family or the father, without legal necessity. This article has also no relevance to the facts of the case. Section 269 refers to sales in the State of Bihar and Uttar Pradesh and Bengal where a sale-deed can be challenged by coparceners, if effected by Karta of the family or the father, without legal necessity. This article has also no relevance to the facts of the case. Article 270 also has no reference to this case, because the sale-deed in question is being challenged for want of payment of consideration money and, as I have stated above, the sale-deed (Ext-B/2) being void, the plaintiff who was at feast born in the year 1975 had acquired share in the suit property, the title of his father remaining unaffected in view of the void sale-deed (Ext-B/2). So the entire sale-deed was invalid and not only with reference to share of vendor, Mahadeo Yadav. 8. In the result, I am of the opinion that the appellate court, while maintaining the decree of the trial court was apparently in legal error. Hence, this appeal is allowed and the judgments and decrees of the two lower courts are set aside. The suit stands decreed for the relief which the plaintiff-appellant sought.