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2003 DIGILAW 151 (ORI)

MATHURI BEWA v. PRAFULLA ROUTRAY

2003-02-21

BASUDEVA PANIGRAHI

body2003
BASUDEVA PANIGRAHI, J. ( 1 ) THE legal heirs of defendant No. 1 and defendant No. 2 in O. S. No. 95/24 of 1981/79-I of the Court of Subordinate Judge, Bhubaneswar are the appellants against a reversing judgment passed by the lower appellate Court. ( 2 ) THE respondent No. 1 is the daughter of Radhu Parida, the original plaintiff. The respondents 2 to 4 are defendants 4 to 5 in the trial Court. Similarly respondent No. 5 is defendant No. 6. The original plaintiff had filed a suit for declaration that the defendant-appellants have no right, title and interest over the suit land and for permanent injunction. It has been stated, inter alia, by the original plaintiff Radhu Parida that the 'a' Schedule property of the plaint was the ancestral property which stood recorded during the last settlement of 1962 in the names of Banamali Parida, Kelu Parida, Parasuram Parida, Sons of Uchhab Parida and Binod Parida, (father of the plaintiff) jointly. The father of the plaintiff had 8 annas interest whereas the other branch had the balance 8 annas share. Parasuram, one of the co-sharers having been dead, his interest had devolved upon Kelu and Banamali. The suit properties have been treated as the joint family properties which are in joint possession and enjoyment by all the branches. Due to family necessity 'b' Schedule property which is a part of 'a' Schedule property was sold in favour of Krushna Jena, defendant No. 6 on 25-6-1962 for Rs. 600/- and possession of the land which was sold to him was delivered following the execution of the sale deed. But defendants 1 and 2 taking advantage of the innocence and illiteracy of the original plaintiff got a 'benami' sale deed executed in their favour with the assurance that they would arrange prospective vendors at a higher price. The sale deed was not supported by consideration and the property conveyed to them was joint family properties of the family. Notwithstanding the execution of the sale deed the plaintiff and his other family members used to possess jointly. Therefore, the sale deed dated 14-2-1963 did not convey any title to defendants 1 and 2. The defendants 1 and 2 filed their written statement by taking several pleas, such as, the suit is barred by limitation. Notwithstanding the execution of the sale deed the plaintiff and his other family members used to possess jointly. Therefore, the sale deed dated 14-2-1963 did not convey any title to defendants 1 and 2. The defendants 1 and 2 filed their written statement by taking several pleas, such as, the suit is barred by limitation. There has been no cause of action for filing the suit and it is not maintainable for not impleading necessary parties. It has been further stated that the plaintiff was possessing the suit land separately as it fell to his share without any concern with the other co-sharers. The sale deed in favour of defendant No. 6 was also illegal and inoperative and possession was never delivered to him. The defendants 1 and 2 paid consideration to the original plaintiff and thereafter he executed the sale deed. With these averments the appellants prayed for dismissal of the suit. The defendant No. 6 filed a separate written statement. The defendant No. 6, however, supported the plaintiff's case so also the defendant Nos. 3 to 5. ( 3 ) THE learned Munsif after elaborately considering the documentary and oral evidence found that the sale deed under which the land conveyed to the appellants was supported by consideration. It has also been held that the plaintiff having fully understood the contents of the sale deed executed it in favour of defendants 1 and 2. P. W. 4 also made a trite admission before Sub-Registrar that he executed the sale deed. It has been further held that by unilateral deed of cancellation the title which flowed under the sale deed (Ext. 4) cannot, however, be negatived. From the contents of the sale deed there has been unequivocal recital that the properties of the joint family have been partitioned before execution of the document. The plaintiff having not filed the suit for cancellation of sale deed within the prescribed period of limitation, such deed of conveyance could not have been assailed by filing the instant suit. With these observations the plaintiff's suit was dismissed. ( 4 ) LEARNED appellate Court was, however, of the view that the property belonging to joint family having not been partitioned, the sale in favour of the appellant did not convey any title. Therefore, the impugned sale deed marked as Ext. 4 was invalid and inoperative. With these observations the plaintiff's suit was dismissed. ( 4 ) LEARNED appellate Court was, however, of the view that the property belonging to joint family having not been partitioned, the sale in favour of the appellant did not convey any title. Therefore, the impugned sale deed marked as Ext. 4 was invalid and inoperative. It has been further held that the suit land and other lands belonging to joint family was recorded jointly in the current settlement record till 1962. The presumption arising from the entry of record of right being a rebuttal one and there has been no such rebuttal evidence whatsoever placed by the defendants 1 and 2, therefore, the trial Court should have decreed the suit by setting aside the sale deed. It was further held that a sale deed executed by one of the coparceners in respect of the joint family property without the consent of other co-parceners cannot convey any title to the vendee. Therefore, the appellate Court reversed the findings of the trial Court. ( 5 ) WHILE hearing on admission of appeal this Court formulated substantial question of law as to whether the admission of the plaintiff and defendant No. 3 regarding the prior partition of the joint family property would raise a presumption that all the properties belonging to the joint family were duly partitioned. Another question was raised that in absence of evidence whether would it be lawful for the appellate Court to raise an inference that defendants 3 to 5 and the plaintiff constituted a joint family in which they were co-parceners. ( 6 ) AT the out-set it has to be considered whether the plaintiff and defendants 3 to 5 constituted a joint family and they possessed all the properties including the suit land jointly. It is no longer res integra that existence of a joint family does not raise a presumption that it owned properties jointly. The presumption of jointness in case of father and son might be stronger than that of other co-laterals. The appellate Court did not advert to the evidence placed in the record. In this regard the defendant No. 5, who was examined as P. W. 1 made a clean breast admission that there was a partition of the properties among the co-sharers. P. W. 2 in his cross-examination also admitted the partition of the ancestral properties among the co-sharers. The appellate Court did not advert to the evidence placed in the record. In this regard the defendant No. 5, who was examined as P. W. 1 made a clean breast admission that there was a partition of the properties among the co-sharers. P. W. 2 in his cross-examination also admitted the partition of the ancestral properties among the co-sharers. From the statement embodied by the defendants witnesses, such as D. Ws. 2 and 3, it has been firmly established that all the properties belonging to the plaintiff and defendants 3 to 5 were put to partition and the suit land measuring Ac. 1. 07 decimals fell to the plaintiff's share. It seems the appellate Court was swayed away by the entry in the record of right which took place in 1962 that the properties were joint. True it is that in 1962 the names of the predecessor-in-interest of the plaintiff as well as the defendants 3 to 5 were jointly recorded. But such entry is not conclusive. The plaintiff sold the land to the defendants 1 and 2 on 17-4-1963 vide Ext. 4. The oral evidence adduced by the parties firmly established that all the properties belonging to the joint family were put to partition notwithstanding the properties being jointly recorded. The defendants 1 and 2 would, therefore, derive an indefeasible right by virtue of the sale deed from the plaintiff. ( 7 ) IT is not the case of the plaintiff that barring the suit properties, other properties were in joint possession. Once there has been an admission with regard to the division of property no presumption of jointness shall thereafter arise. The court has to decide the case on the basis of the evidence placed in the record. It is to be next considered whether sale deed executed by the plaintiff in favour of the defendants 1 and 2 was procured by practising fraud. It is the settled position of law that the person who advances the plea of fraud usually has to discharge the burden. It has to be seen as to what extent the plaintiff has discharged his burden. It is stated in examination-in-chief that defendants 1 and 2 offered him to execute a power of attorney in their favour so that they would sell away the lands at a higher rate. But instead the defendants got the sale deed registered in their names. It has to be seen as to what extent the plaintiff has discharged his burden. It is stated in examination-in-chief that defendants 1 and 2 offered him to execute a power of attorney in their favour so that they would sell away the lands at a higher rate. But instead the defendants got the sale deed registered in their names. Therefore, as soon as he came to know about the execution of the sale deed, he cancelled the sale deed by another document of cancellation, vide Ext. 5. If the properties held by the members of the family jointly as advanced by the plaintiff, there was no occasion to execute a power of attorney in favour of the defendants 1 and 2. Assuming that a sale deed was taken in the pretext of a power of attorney, then, how could the plaintiff cancel the deed without knowing its contents. Therefore, the deed of cancellation would be suggestive of the fact that he executed a deed of conveyance in favour of defendants 1 and 2. At the time of registration of the document he must have been asked by the Sub-Registrar about the execution of the deed of conveyance. The plaintiff in course of his evidence further stated that he executed a Benami deed in favour of the defendants 1 and 2. Execution of Benami deed of conveyance also further strengthened the defendants' claim that the plaintiff executed the deed of conveyance after having fully understood the contents. ( 8 ) IT appears that the controversy centres round with regard to the execution of the document when the land in question was acquired by the State Government and payment of compensation was claimed by both the parties. Assuming the deed of conveyance was procured by fraud and undue influence, then, can such document be challenged after the prescribed period of limitation. Just like criminal charge, fraud has not only to be pleaded, but proved beyond reasonable doubt. The ground of fraud cannot be based on suspicion and conjecture. Whether passing of title would be dependent on proving passing of consideration or not is a question which should be gathered from the contents of the sale deed. ( 9 ) IF the intention of the parties for passing of title was clear, unambiguous and without any reservation, then; it shall not be dependent on proving of payment of consideration. Whether passing of title would be dependent on proving passing of consideration or not is a question which should be gathered from the contents of the sale deed. ( 9 ) IF the intention of the parties for passing of title was clear, unambiguous and without any reservation, then; it shall not be dependent on proving of payment of consideration. Article 59 of the Indian Limitation Act shall be applicable for seeking a relief of cancellation of a document which is not void ab initio. On the contrary, if a document is found to be ab initio void and an illegal document from its very inception, it is not required either to cancel or to set it aside by filing a suit because, according to law, such a document does not exist at all. Therefore, it has first of all to be considered as to whether the document of sale which has been questioned on the ground of fraud shall be treated as an ab initio void or a voidable document. Since such transaction is neither hit nor violative of any of the provisions of the statute and it has been only questioned on the ground of fraud alleged to have been practised by the defendants 1 and 2, therefore, such document shall only be treated as a voidable one, but not ab initio void. In this background it is thus imperative that a person who wants to repudiate the transaction and party to the document must file the suit under Article 59 of the Indian Limitation Act. The trial Court has correctly held that the suit was barred by limitation. ( 10 ) THE appellate Court without appreciating the evidence placed in the record in proper perspective abruptly jumped to the conclusion that the suit property was joint family property of the plaintiff and defendants 3 to 5. There has been no evidence whatsoever to arrive at such a conclusion. Since the appellate Court committed serious error on facts, therefore, in second appeal such question can be gone into failing which it would seriously amount to miscarriage of justice. ( 11 ) TAKING the facts and circumstances into consideration the findings of first appellate Court being brittle and unsustainable, therefore, are bound to be upset. Accordingly, the trial Court's judgment and decree are hereby restored and the first appellate Court's judgment is therefore set aside. ( 11 ) TAKING the facts and circumstances into consideration the findings of first appellate Court being brittle and unsustainable, therefore, are bound to be upset. Accordingly, the trial Court's judgment and decree are hereby restored and the first appellate Court's judgment is therefore set aside. The suit is accordingly dismissed, but in the circumstances, parties are directed to bear their own costs. Order accordingly.