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2002 DIGILAW 335 (PAT)

Chiterdeo Singh v. Hirdayanarayan Singh

2002-03-11

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment dated 27.2.86 passed by Additional Sub Judge, 5th, Patna, in title appeal no. 44/82/34/85 confirming the judgment dated 13.4.82 passed by Munsif, 2nd, Patna, in title suit no. 95/70. The defendant 1st party of that suit is the appellant here. 2. The case of the plaintiff-respondents was that defendant no. 2, the husband of plaintiff no. 2, Smt. Sonpati Devi, was an addict of ganja and he was of low intelligence. Plaintiff no. 2, Sonpati Devi, was receiving monetary help from her paternal family and, so, she purchased several lands and the suit land was purchased by her in the name of her husband. However, defendant no. 1, the appellant, obtained a sale-deed dated 17.3.67 from defendant no. 2 without payment of any consideration money and after putting him under his undue influence. Plaintiff no. 1 was minor on the date of execution of the aforesaid sale-deed. So, when he became major, he along with his mother filed the suit for declaration that the sale-deed dated 17.3.67 was inoperative, fake and it was invalid for want of payment of consideration. 3. The case of the defendant no. 1, the appellant, was that the defendant no. 2 was the wise man and he was not addict of any intoxication. He had executed the alleged sale-deed for legal necessity on behalf of joint family and the sale-deed was perfectly valid and title validly passed to the appellant. 4. The trial court dismissed the suit holding that the evidence regarding consideration money was contradictory and it was beyond the pleading of the defendant- appellant. Moreover, the husband of plaintiff no. 2 was illiterate and on the date of execution of the sale-deed, defendant no. 1 (appellant) had also executed a deed of ladabi for the same land which was under dispute. So, the chance of the appellant obtaining a fake sale-deed from the husband of plaintiff no. 2 was very much there. The suit was filed in the year 1970 when plaintiff no. 1 became major and, therefore, the suit was not barred by limitation. The trial court also held that since the evidence of the parties established that the plaintiffs were in possession of the suit land, the suit was also not barred under Section 34 of the Specific Relief Act. The suit was filed in the year 1970 when plaintiff no. 1 became major and, therefore, the suit was not barred by limitation. The trial court also held that since the evidence of the parties established that the plaintiffs were in possession of the suit land, the suit was also not barred under Section 34 of the Specific Relief Act. The appellate court concurred with all the findings of the trial court and maintained the judgment and decree passed by the latter. 5. In this appeal, I find that the question of law formulated was "whether the suit could be decreed in view of the provision of Prohibition of Benami Transaction Act, 1988". However, the above question of law has become now otiose because the suit was filed in 1970 and the Benami Transaction Act was promulgated in the year 1988. In view of the recent law enunciated by the Supreme Court, the Prohibition of Benami Transaction Act shall not be applicable to pending suits. So, I think that the provisions of Benami Transaction Act will not hit the suit filed in the year 1970 and since the appeal is continuation of the same proceeding, the appeal was also not hit by Benami Transaction Act. So far as other legal questions are concerned, it was raised by the appellants lawyer and it was submitted that the suit was barred under the Limitation Act because the relief sought was that the sale-deed dated 17.3.67 was inoperative and invalid, but the suit was filed in the year 1970 beyond three years of the alleged execution of the sale-deed. I shall consider this aspect of the case in the following paragraphs. 6. However, before I proceed to consider the time bar applicable to the suit, I would like to consider whether the plaintiffs had any cause of action for the suit. According to the case of the plaintiffs, the suit land was purchased in the name of defendant no. 2, the husband of plaintiff no. 2. The defendant no. 2 had also filed his written statement and he had stated that no consideration was paid to him for the execution of the sale-deed in respect of the suit land. I shall consider this aspect also later, but at this stage, I am to consider whether plaintiff no. 2, the husband of plaintiff no. 2. The defendant no. 2 had also filed his written statement and he had stated that no consideration was paid to him for the execution of the sale-deed in respect of the suit land. I shall consider this aspect also later, but at this stage, I am to consider whether plaintiff no. 2 has been able to prove that the suit land was purchased by her in the name of her husband out of the income derived by her from her parental family. In this connection, I find that the judgment of the trial court stated that the issue relating to the benami purchase was given a go-by and it was not pressed. So, the plaintiff no. 2, the mother of plaintiff no. 1, gave up the pleading of benami purchase of the suit land. Moreover, the defendants pleading was that the suit land was the family land of defendant no. 2 and in this connection the Khatian (Ext. N) filed before the court below indicated that the suit plot nos. 495 and 553 were recorded in the names of Basudeo Singh, father of defendant no. 2, along with others. Basudeo Singh had 1/3 share over the aforesaid plots. So, it is apparent from the evidence on record adduced by the defendant-appellant himself that two of the suit plot nos. 495 and 553 were the family lands of the defendant no. 2 and plaintiff no. 1. Of course, the Khatian (Ext. N) does not refer to plot no. 495 under Khata no. 189, but the case of the plaintiff-respondents in this connection was that the suit lands were purchased in the year 1944 in the name of defendant no. 2. From the facts and circumstances, it also transpired that the suit land was the ancestral land of defendant no. 2 and his son who was plaintiff no. 1. So, in the ancestral land, plaintiff no. 1 would acquire interest by virtue of his birth. So, plaintiff no. 2 would have no interest in the suit land during the life time of her hasband, but plaintiff no. 1 was very much interested and had an interest in the ancestral land of his family. So, he wouid have right to sue. 7. In view of the aforesaid finding, the fact that plaintiff no. So, plaintiff no. 2 would have no interest in the suit land during the life time of her hasband, but plaintiff no. 1 was very much interested and had an interest in the ancestral land of his family. So, he wouid have right to sue. 7. In view of the aforesaid finding, the fact that plaintiff no. 1 was minor at the time of execution of the sale-deed dated 17.3.67, he wouid be entitled to file suit on attaining majority and from the date of his majority the suit was well within the time. Both the lower courts relied on a Matriculation certificate filed by the plaintiff-respondents and held that plaintiff no. 1 was minor when the disputed sale-deed was executed. So, the suit was well within the time from the date of majority attained by plaintiff no. 1. 8. So far the question whether the disputed sale-deed was void or voidable, it is to be noted that plaintiff-respondents had pleaded that no consideration was paid to defendant no. 2. In this connection, the findings of the trial court and the appellate court are identical and these findings are findings of fact and, so, they become conclusive. So, the sale-deed dated 17.3.67 would be a void document and in that view of the matter also there was no question of suit being time barred. The plaintiff-respondents were fully within the right to file a suit seeking declaration that the disputed sale-deed was inoperative and it did not affect the title of the plaintiff- respondents. I am of the opinion that the disputed sale-deed was void by another defect attaching to the same. The aforesaid findings have shown that the plaintiff no. 1 (son of defendant no. 2) had an interest over the suit property by virtue of his birth, the same being ancestral property and, therefore, when the sale-deed was executed, the defendant no. 2 should have joined his minor son as co-vendor, otherwise the sale-deed would be void, the property belonging to the joint family. The minor could be well represented by his father in the sale-deed. Admittedly, this was not done. So, the sale-deed was void in that view of the matter also. Further there was contention of the defendant- appellant that the sale-deed was executed by defendant no. The minor could be well represented by his father in the sale-deed. Admittedly, this was not done. So, the sale-deed was void in that view of the matter also. Further there was contention of the defendant- appellant that the sale-deed was executed by defendant no. 2 for legal necessity; and in this connection, the evidence was discussed by the two courts below and it was held that it was not proved or established that defendant no. 2 had executed sale-deed for legal necessity as karta of the family. These findings also were findings of fact. I am, therefore, of the opinion that these findings cannot be interfered with by this Court. 9. As a result of the aforesaid discussions upon the judgments of the courts below, I am of the opinion that there is no good case for interference of the two courts judgment. 10. In the result, this appeal is dismissed.