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2008 DIGILAW 1554 (ALL)

BABBAN @ B. K. BANERJEE v. RADHIKA DEVI

2008-08-07

PANKAJ MITHAL

body2008
JUDGMENT Hon’ble Pankaj Mithal, J.—This second appeal is by only one of the two defendants i.e. defendant No. 2 arising from original suit No. 126 of 1974 between Radhika Devi and others v. Laxmi Shanker Sharma (now dead) and another. The suit was for declaration that the plaintiffs be declared owner of the property in dispute i.e. house No. B-21/89 Kamachha, Varanasi as mentioned in schedule ‘A’ of the plaint and for recovery of possession of a part thereof with a further relief that the defendants be restrained by a decree of permanent injunction from dispossessing the plaintiffs from some portion of the property described in schedule ‘B’ of the plaint. The suit was decreed by Court of first instance and the said decree has been upheld by the lower appellate Court. Thus the defendant No. 2/appellant has preferred this second appeal. 2. The suit was instituted on 1.5.74 on the allegation that the plaintiff No. 1 Radhika Devi is the legally wedded wife of one Ganga Sahu alias Ganga Raman Sharma and the plaintiffs No. 2 and 3 are her daughter and son respectively. The said Ganga Raman Sharma had purchased the house in dispute vide registered sale deed dated 26.4.66 and, therefore, on his death on 29.1.1974 the property devolved upon the plaintiffs as his natural successors. The defendants have no concern with the said property. The suit was resisted on the ground that the aforesaid Ganga Sahu alias Ganga Raman Sharma was a “Dashnami Sanyasi” and disciple of Swami Yoganand Giri and had adopted the name of Swami Viraktanand Giri. The property was actually purchased by defendant No. 1 out of his own funds but the deed was not executed in the name of aforesaid Ganga Raman Sharma as `Benamidar’ even though he had not contributed anything towards the sale consideration. 3. At the first preliminary hearing of the appeal on 21.7.08 the hearing was adjourned for 29.7.08, as the parties agreed for final disposal of the appeal at the admission stage itself. 3. At the first preliminary hearing of the appeal on 21.7.08 the hearing was adjourned for 29.7.08, as the parties agreed for final disposal of the appeal at the admission stage itself. However, on hearing the parties, a short point which prima facie appeared to be involved was formulated with regard to the interpretation of the sale deed dated 26.4.66 to the effect as to whether by the sale deed in question the property was purchased by late Ganga Raman Sharma in his personal capacity or for the benefit of Akhara/Religious Sampradaya (hereinafter called as ‘religious sect’) represented by him. 4. On the next hearing, a counter affidavit was filed on behalf of the respondents No. 1 to 3. It was taken on record. An amendment application proposing to add some more grounds to the memo of appeal was also filed on behalf of the appellant. Since, the application was of formal nature the parties were permitted to advance arguments on merit assuming the amendment proposed to have been allowed. 5. I have heard Sri R.N. Singh, Senior Advocate assisted by Sri A.K. Rai, learned counsel for the appellant and Sri A.K. Singh, learned Counsel for the respondents No. 1 to 3. 6. Sri Singh has very fairly conceded that apart from the above point with regard to consideration of the sale deed dated 26.4.1966 all other points which may be said to be arising in this appeal stand concluded by findings of fact and, as such, need not be impressed upon as none of them would be involving any substantial question of law. The interpretation of the above sale deed, which is a document of title in itself is a substantial question of law and, therefore, the appeal has to be examined in the light of the aforesaid sale deed only. He has given up the issue of the property having been purchased Benami in the name of the aforesaid Ganga Raman Sharma. 7. He has given up the issue of the property having been purchased Benami in the name of the aforesaid Ganga Raman Sharma. 7. In reply to the submissions advanced by the learned Counsel for the appellant Sri A.K. Singh, learned counsel who appears for plaintiff/respondents No. 1 to 3, the main contesting respondents, submits that it was never the case of the defendants/appellants in the courts below that the property was purchased by Ganga Raman Sharma in the capacity of an office bearer or the head or the incharge of the religious sect represented by him or for its benefit. They have all through pleaded that the sale deed was in the name of aforesaid Ganga Raman Sharma as Benamidar. Therefore, it is not open for the defendants/appellant to take a new stance in the second appeal, different from the pleadings in the written statement. Besides, the recitals of the sale deed are clear enough that the property was purchased by late Ganga Raman Sharma in his personal and individual capacity. 8. Admittedly, no issue with regard to the interpretation of the sale deed dated 26.4.1966, as suggested on behalf of the appellant, was framed in the courts below. The only issue in this connection is issue No. 1 to the effect as to whether Ganga Raman Sharma was the owner in possession of the property described in schedule ‘A’ of the plaint. In fact the written statement filed by the defendant No. 2/appellant as well as that of defendant No. 1 demonstrates that there are no specific pleadings to the effect that late Ganga Raman Sharma had purchased the property in dispute for the purposes of religious sect represented by him or that it was purchased by him in the capacity of a head, disciple or incharge of the religious sect. 9. The sale deed which is on record before me as Annexure-1 to the affidavit filed in support of the stay application only states that the Panchayati Akhara Mahanirwani through Mahant Onkarpuri disciple of Sri Kapil Muni Ji Maharaj is the owner of the house in dispute. It is in dilapidated condition for the repair of which necessary funds are not available with the said Panchayati Akhara and, therefore, it is of no utility to the said Panchayati Akhara. It is in dilapidated condition for the repair of which necessary funds are not available with the said Panchayati Akhara and, therefore, it is of no utility to the said Panchayati Akhara. Accordingly, it is in the best interest to transfer it to Sri Ganga Raman Sharma alias Swami Viraktanand Giri son and disciple of Swami Yoganand Giri for a sum of Rs. 5000/- only as he also happens to be a Mahatma of a religious sect. The sale deed further recites that the possession of the property under transfer has been handed over to the purchaser. It nowhere states that the purchaser is any Akhara or a religious sect or that it is being purchased for use and benefit of any such Akhara or religious sect. The complete and full reading of the sale deed amply and unambiguously demonstrates that the sale of the property in dispute has been made in the name of late Ganga Raman Sharma alias Viraktanand Giri, a disciple of Swami Yoganand Giri, who was considered to be a Mahatma of a religious sect. Therefore, undoubtedly, Ganga Raman Sharma is the purchaser. Law presumes only the purchaser to be the owner of the property purchased. 10. Thus, in my opinion, there is neither any misinterpretation or mis-consideration or even misreading of the aforesaid sale-deed. The courts below have rightly come to a conclusion that the property in question was the personal property of late Ganga Raman Sharma and, as such, the plaintiffs/respondents No. 1 to 3, who are widow, daughter and son of late Ganga Raman Sharma are now the owners of the same by succession. 11. Apart from the above, the submission that under the sale deed in question the property was acquired for the benefit of a religious sect is only an inference of fact drawn from the contents of the sale deed and, as such, is a question of fact only. Its interpretation does not involve any application of any principle of law. Therefore, in effect no substantial question of law as suggested earlier arises in this appeal. 12. Its interpretation does not involve any application of any principle of law. Therefore, in effect no substantial question of law as suggested earlier arises in this appeal. 12. In view of aforesaid facts and circumstances, even if it is assumed that there exists a substantial question of law with regard to misinterpretation or misconstruction or even misreading of the sale deed it is misconceived as from the plain language of the contents of the document no such misconstruction or misreading can be found. Therefore, the ultimate conclusion drawn by the courts below cannot be faulted with or said to be perverse. 13. Sri R.N. Singh, learned counsel for the appellant, in the last submitted that in view of provisions of Section 91 of the Indian Evidence Act the oral evidence adduced by the plaintiff/respondents No. 1 to 3 on this point would not override the documentary evidence, i.e. the sale deed dated 26.4.66. This is not the situation in the instant appeal. The sale deed itself establishes that the property was purchased by late Ganga Raman Sharma in his personal capacity irrespective of being disciple of a Swami or a member of the religious sect. Therefore, the oral evidence in support of the above conclusion, if any, is superfluous and is not material when such an interpretation is clearly culled out from the plain reading of the documents itself without the aid of any other evidence. 14. In the end, a faint attempt was made by appellant to dislodge the decree of the court below on the ground that late Ganga Raman Sharma having described himself as a disciple and Mahant of a religious sect in getting the sale made in his favour, his heirs and legal representatives are estopped from alleging that he was not a Sanyasi. Shri R.N. Singh Senior Advocate in this connection placed reliance upon AIR 1935 All 529, Mohd. Taki Khan v. Jang Singh where the plaintiff was not allowed to go back from the terms/words of the contract on the ground that they were fraudulently entered by him. The submission is devoid of any merit. Shri R.N. Singh Senior Advocate in this connection placed reliance upon AIR 1935 All 529, Mohd. Taki Khan v. Jang Singh where the plaintiff was not allowed to go back from the terms/words of the contract on the ground that they were fraudulently entered by him. The submission is devoid of any merit. The sale deed in favour of late Ganga Raman Sharma was not made merely for the reason that he happened to be a disciple of a Swami or a Mahant of a religious sect, though this may have swayed the mind of the vendor to some extent in making the sale in his favour. 15. In view of what has been stated above, there appears to be no force in the submission made on behalf of the appellant. 16. No other point has been raised and pressed before me. 17. The appeal is devoid of any substance and is accordingly dismissed. No order as to costs. ———