Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 202 (MP)

MOHAMMAD NISAR v. RAJESH KUMAR

2007-02-20

ARUN MISHRA

body2007
Judgment ( 1. ) THIS appeal is at the instance of defendants calling in question judgment and decree dated 4-8-1995 passed in C. S. No. 31-A/1992 by 5th Addl. Judge to the Court of District Judge, Sagar. ( 2. ) PLAINTIFF has filed suit for declaration that the House No. 53 owned by the plaintiff, the defendants have no concern with it. Prayer was also made to restrain defendants from interfering with plaintiffs possession. Genealogical tree indicates that one Rewa Ram had four sons; Baijnath (defendant No. 1), mohanlal, Umashanker (defendant No. 2), Lakhanlal (defendant No. 3 ). Beni bai was the wife of Rewa Ram. Rewa Ram died on 25-8-1973 and Beni Bai in the year 1980. Mohanlal has left behind widow; Dayawanti; plaintiff No. 2 and rajesh Kumar; plaintiff No. 1. It is also not in dispute that the sale-deed (P-1) was executed by Baijnath (defendant No. 1) in favour of Mohd. Nisar on 18-10-1989. Uma Shanker (defendant No. 2) also sold portion of the suit house to Mohd. Nisar as per sale-deed (P-2), dated 12-9-1990. ( 3. ) PLAINTIFF averred that Rewa Ram obtained the house in question in partition with his brother Dayaram in the year 1970. It has been renumbered as house No. 53 situated at Dayanand Ward, Sagar. Defendant Nos. 1 to 3 were in the service of Railways and used to reside at Jhansi. They never remained in possession of the suit house. As Mohanlal, his wife and son looked after the deceased Rewa Ram in his life time he has given the house by way of an oral gift to them in 1972. Thereafter their possession became as owner. The factum of an oral gift was informed to the defendant Nos. 1 to 3, thus, there was an ouster. Plaintiff has remained in adverse possession as such right, title and interest of the defendants if any has been extinguished. The sale-deeds executed by Baijnath and Umashanker in favour of Mohd. Nissar were illegal and void and Mohd. Nissar was not entitled to enter into possession of a specific portion of the property on the strength of illegal and void sale-deeds. Hence, suit has been filed. ( 4. ) DEFENDANT Nos. 1 to 3 in their written statement denied the factum of oral gift and contended that the house in question was partitioned on 25-12-1987. Nissar was not entitled to enter into possession of a specific portion of the property on the strength of illegal and void sale-deeds. Hence, suit has been filed. ( 4. ) DEFENDANT Nos. 1 to 3 in their written statement denied the factum of oral gift and contended that the house in question was partitioned on 25-12-1987. Thereafter parties have remained in separate possession of the property, deed of partition was executed at Jhansi with the consent of four brothers. The plaintiff wanted that even after partition the house to be sold with their consent. Obtaining of the plaintiffs consent was not necessary. ( 5. ) THE defendant No. 4 Mohd. Nissar in his separate written statement submitted that he has purchased the portion of the house after making due enquiry and was placed in possession. He was a bonafide purchase for value. Suit was not properly valued. ( 6. ) TRIAL Court has found that there was no oral gift made by Rewa Ram in favour of Mohanlal, Dayawanti and Rajesh Kumar, plea of adverse possession set up by the plaintiff has also been negatived, specific portion of the property could not have been alienated by Baijnath and Umashanker to Mohd. Nissar as per the sale-deed (P-1 and P-2) as there was no partition as claimed by the defendant Nos. 1 to 3 in the year 1987, the sale-deeds (P-1 and P-2), dated 18-10-1989 and 12-9-1990 have been held to be illegal and void, suit has been partially decreed. This appeal has been preferred by Mohd. Nissar assailing the judgment and decree passed by the Trial Court. ( 7. ) SHRI K. N. Agrawal, learned Counsel appearing with Shri R. K. Hora, advocate on behalf of the appellant has submitted that District Sagar formed the part of erstwhile Central and Berar Provinces and in Central and Berar provinces, Bombay School of Mitakshara Law is applicable, as per the law it is permissible to a coparcener to sell his undivided share without consent of non-alienating coparcener. In the instant case possession was handed over to the purchaser by Baijnath and Umashanker and the share in possession of the purchaser is not more than the share of alienating coparcener, hence, the possession of the purchaser can be protected till partition is actually effected, he has placed reliance on the Full Bench decision of this Court in Ramdayal Vs. Manaklal, 1973 JLJ 764 = 1973 MPLJ 650 . He has further relied upon raghavachariars Commentary on Hind Law 8th Edition Paragraph No. 272 to submit that the Bombay School of Mitakshara Law is applicable not the Banaras School. In Banaras School consent of coparcener is necessitated to sell undivided share not in Bombay School of Mitakshara Law as administered in district Sagar, he has also referred to decision in Thakur Rewasingh Vs. Hardayal and another, 3 NLR 160, decided on 22nd March, 1907, he has further submitted that as there was partition in 1987 the property was rightly sold by baijnath and Umashanker to Mohd. Nissar. ( 8. ) SHRI R. P. Agrawal, learned Sr. Counsel with Shri Lalit Pandey, Advocate on behalf of the respondent Nos. 1 and 2 has submitted that a specific portion has been alienated by Baijnath and Umashanker, sale-deeds have been rightly held to be illegal and void, no case for interference in this appeal is made out, he has further submitted that the plea of partition has been rightly discarded, even otherwise so-called partition-deed being unregistered document is not admissible in evidence to prove the factum of partition, the finding of possession has been recorded against Mohd. Nissar and plaintiffs have been found to be in possession, but, not in-adverse possession. ( 9. ) WITH respect to an oral gift and adverse possession the findings of the Trial Court have not been assailed, plea of an oral gift and adverse possession based thereupon has rightly been reached in view of the facts and circumstances enumerated by the Trial Court. ( 10. ) THE main question for consideration is whether the sale-deed (P-1 and P-2) could have been adjudged illegal and void. It has not been disputed that sagar previously formed part of erstwhile Central and Berar Provinces and observation of Raghavachariar in his commentary on Hindu Law in Paragraph no. 272 indicate that Mitakshara Law administered by Bombay School was applicable in the Central Provinces. There is distinction as to the rights of alienating coparcener in Bombay School and Banaras School of Hindu Law, consent of non-alienating coparcener is not necessary in Bombay School whereas in case of Banaras School to sell even to the extent to the coparceners share an alienating coparcener has to obtain consent of non-alienating coparcener, without obtaining the consent, alienation is void. As the case is governed by Mitakshara Law as administered in Bombay School obtaining of the consent of the plaintiff was not necessary. A Full Bench of this Court has considered this difference in Diwan Singh Vs. Bhaiya Lal, AIR 1997 MP 210 , it was noted that in Mullas Hindu Law the general discussion as noted under articles 259 and 261 as to applicability of Bombay School of Mitakshara Law in madhya Pradesh does not hold good with respect to certain area of Madhya bharat which has come in Madhya Pradesh in 1956 on reorganization of the state and other areas as mentioned in the aforesaid Full Bench decision in which earlier Full Bench decision of this Court in Ramdayal Vs. Manaklal (supra) was taken into consideration and explained. ( 11. ) THE Trial Court appears to have adjudged the sale- deeds to be void on the basis that alienation of specific portion by a coparcener was illegal. However, to the extent of share of alienating coparcener such an alienation has to be valid as in Sagar the Bombay School applies, as opined by Full Bench of this Court in Ramdayal Vs. Manaklal (supra), thus:- "3. According to the Mitakshara Law as administered in Bombay, madras and Madhya Pradesh a coparcener may sell mortgage or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. But he has no right to alienate as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; and if he does alienate the alienation is valid to the extent only of his own interest in the alienated property. The question that arises for our consideration is as to what are the rights of the purchaser from a coparcener of a specific property when he has been put in the possession thereof. It is now well-settled that if the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the property for the benefit of the joint family, including the vendor. It is now well-settled that if the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the property for the benefit of the joint family, including the vendor. It is also further held in some of the cases that the purchaser is not entitled in such a suit to an order for partition either of the specific property sold to him or of the joint family properties in general, and his remedy is to file a suit for general partition. It has, however, been held by the Madras High Court and the Bombay High Court that to protests the purchaser a further direction should be added that the execution of the decree so far as it directs the purchaser to deliver possession to the plaintiff, be stayed for a specific period, and if before the expiry of that period the purchaser brings a suit for a general partition against the plaintiffs, then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled. (See Kandaswami Vs. Velayatha, ilr 50 Mad 320 and Hanmandas Vs. Valabhdas, ILR 43 Bomb 17 = AIR 1918 Bom 101 ). In Shriram and others Vs. Baboo and others (supra), Their Lordships have not given any reasons while giving the direction in terms of the decisions of the Madras and Bombay high Courts, presumably because no decision taking a contrary view has been noted by Mulla in his Commentary on Hindu Law, 12th Edn. , Section 261, where the views of the Bombay and Madras high Courts have been considered and quoted, and also because the law as to the right of the coparcener of transferring his share without the consent of the other coparceners is the same in Madhya pradesh as was applicable in the erstwhile Madras and Bombay presidencies. 5. Under the circumstances, we are of the opinion that the direction of staying the execution proceedings for a certain period enabling the purchaser from a coparcener to file a partition suit and, if the suit is filed within that period, to stay the execution till the decree in the partition suit, can be legally given where the property in possession of the purchaser from a coparcener is not in excess of the share of the coparcener. In other cases, such a direction may be said to be inequitable. " Thus, considering the applicability of the Bombay School in the area in question the alienation to the extent of share of Baijnath and Umashanker is held to be valid, each of them had l/4th share, however, purchasers right to possession and equity has to be worked out in the case of partition. For reasons to be discussed hereinafter, the plea of partition set up by the defendants has not been found to be established. Thus, the decision of the Trial Court adjudging the sale-deeds to be illegal and void is liable to be set aside. ( 12. ) COMING to the plea of partition: the plea of partition was taken on the strength of a partition deed (Exh. D-1), dated 25-12-1987, a bare reading of partition-deed makes it clear that it was an instrument effecting the partition preasenti, thus, being an un-registered document it could not have been admitted in evidence so as to prove the factum of partition. Even otherwise its execution has not been established in case partition deed was executed it ought to have been acted upon, the wall was not raised in terms of the condition in the partition-deed, with respect to purchase of stamp, there is discrepancy when it was purchased 15 days or 3 days before execution of the deed, stamp was purchased before 3 days whereas Umashanker has stated in Paragraph No. 15 of his deposition that it was purchased 15 days before partition deed. It is also doubtful in whose possession stamp was on the date of execution of deed. Signatures of Mohanlal have also not been proved as rightly found by the Trial court for elaborate reasons given in Paragraph Nos. 21 to 25 of the judgment. Plea of partition has been rightly negatived, I am in the agreement with the finding recorded by the Court-below. ( 13. ) WITH respect to possession as there was no partition and purchaser could not have entered into joint possession with the plaintiff nor Mohd. Nissar was in fact placed in possession of property, the finding of Trial Court is proper that Mohd. Nissar was not placed in possession of the property. Coparcener were not enjoying separate possession as on the date of execution of the sale-deeds, thus, it was not possible to place Mohd. Nissar was in fact placed in possession of property, the finding of Trial Court is proper that Mohd. Nissar was not placed in possession of the property. Coparcener were not enjoying separate possession as on the date of execution of the sale-deeds, thus, it was not possible to place Mohd. Nissar in actual physical possession of the property. Actual possession was with plaintiff. ( 14. ) CONSEQUENTLY, the judgment and decree passed by the Trial Court is liable to be set aside. Sale-deeds are held to be valid to the extent of share of alienating coparceners. However, equity of the purchaser lies in filing the suit for partition to obtain possession as purchaser has not been found to be in possession, injunction cannot be granted in his favour protecting his possession till the equities are worked out in a suit for partition. It is open to the purchaser to file a suit for partition and then to obtain the possession of the property. Accordingly, the appeal is partly allowed. No order as to costs. First Appeal partly allowed.