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Madhya Pradesh High Court · body

2011 DIGILAW 959 (MP)

Renka Bai v. Itiya Bai

2011-08-18

A.K.SHRIVASTAVA

body2011
JUDGMENT ( 1. ) THE unsuccessful defendants who have lost from both the Courts below have filed this appeal under section 100, Civil Procedure Code. ( 2. ) THE admitted position which is carved out from the record is that:- (i) Kishanlal was the father of Harilal; (ii) plaintiff No. 1 Itiya Bai was the widow of Harilal and other plaintiffs are his sons and daughters; (iii) on 30-6-1966 Harilal sold the entire suit property to one Panchamlal (predecessor of defendants); (iv) a civil suit 41-A/1973 was filed on 30-6-1966 by Harilal against his vendee Panchamlal that the transaction was mortgage and the sale deed was not an outright sale; (v) on 29-11-1977 suit was dismissed by the learned trial Court holding that transaction was not mortgage but it was an outright sale; (vi) on 15-4-1976 the first appeal filed by Harilal was dismissed affirming the judgment of the learned trial Court holding that transaction was an outright sale; (vii) second appeal filed before this Court was dismissed on 30-9-1976 summarily; (viii) the present suit (Civil Suit No. 108-A of 1991) has been filed by heirs of Harilal against Panchamlal who died during pendency of the suit and his LRs were brought on record and they are the present appellants. The instant suit has been filed by plaintiffs that Harilal was not having right and title to alienate the entire suit property vide registered sale deed dated 30-6-1966 in favour of Panchamlal (predecessor of the defendants) and therefore, the sale deed be declared null and void against the plaintiffs because the suit property was an ancestral property. ( 3. ) THE defendants filed written statement and refuted the plaint averments and pleaded that Harilal rightly sold the suit property to Panchamlal whose heirs are the present appellants and there was an earlier litigation also in which sale deed was held to be valid and therefore present suit be dismissed. ( 4. ) LEARNED trial Court on the basis of the averments made in the plaint and denial made in the written statement framed necessary issues. The learned trial Court examined witnesses of the parties who also proved certain documents. ( 4. ) LEARNED trial Court on the basis of the averments made in the plaint and denial made in the written statement framed necessary issues. The learned trial Court examined witnesses of the parties who also proved certain documents. The learned trial Court after appreciating and marshalling the evidence came to hold that suit property was an ancestral property and Harilal was not competent to sell the entire property in dispute because plaintiffs were also having joint right along with Harilal and their right could not have been sold by him. Hence, to the extent of plaintiffs' share learned trial Court held the sale deed to be void. The defendants, being dissatisfied by the impugned judgment and decree of learned trial Court filed first appeal which has been dismissed by the impugned judgment and decree. ( 5. ) IN this manner this second appeal has been filed by the defendants. ( 6. ) THIS Court on 27-1-1995 admitted the second appeal on the following substantial question of law :- "Whether the sale deed dated 30-6-1966 is void and not binding on the legal representatives?" 10. Later on this Court on 20-6-2011 framed one more substantial question of law which reads thus :- "Whether the present suit is barred under Order II, Rule 2, Civil Procedure Code because the plaintiffs have omitted to claim relief of 9/10 share in the suit property in the earlier Suit No. 80-A/1972?" In the order-sheet dated 20-6-2011 this Court directed that substantial question of law which was framed on 27-1-1995 shall be numbered as question No. 1 while substantial question of law which was framed on 20-6-2011 shall be numbered as question No. 2. ( 7. ) SHRI Mukhtar Ahmad, learned counsel for the appellants submitted that the sale deed dated 30-6-1966 (Ex.P/10) is not void and this has also been so held in the earlier suit and if that would be the position, learned two Courts below erred in substantial error of law in decreeing the suit of plaintiffs. ( 8. ( 7. ) SHRI Mukhtar Ahmad, learned counsel for the appellants submitted that the sale deed dated 30-6-1966 (Ex.P/10) is not void and this has also been so held in the earlier suit and if that would be the position, learned two Courts below erred in substantial error of law in decreeing the suit of plaintiffs. ( 8. ) BY hammering the findings of learned two Courts below it has been put forth by learned counsel for the appellants that in the present case bar of Order II, Rule 2, Civil Procedure Code is also applicable and which has been lost sight of by learned two Courts below and therefore, the judgment of learned two Courts below be set aside and the suit of plaintiffs be dismissed in toto. To bolster his submissions, learned counsel has placed heavy reliance on a judgment of Privy Council Naba Kumar Hazra and another vs. Radhashyam Mahish and others, AIR 1931 Privy Council 229 and a Single Bench decision of Delhi High Court Kamal Kishore Saboo vs. Nawabzada Hamayun Kamal Hasan Khan, 2001(4) Civil Law Journal 177. Learned counsel has also pressed two applications, LA. No. 1170/1994 under Order 41, Rule 27, Civil Procedure Code and I.A. No. 1171/1994 under Order 6, Rule 17, Civil Procedure Code which he has filed in this Court and it has been prayed that by allowing these two applications the plaintiffs be permitted to adduce additional evidence as well as the written statement be permitted to be amended. ( 9. ) ON the other hand Shri B. M. Dwivedi, learned counsel for the respondents argued in support of the impugned judgment and submitted that in the earlier suit only this much was held by all the Courts (including this Court) that the sale deed dated 30-6-1966 is an outright sale and is a genuine sale deed and nothing more. Learned counsel by inviting my attention to the judgment passed by the learned First Appellate Court passed in Civil Appeal 12-A/1975 decided on 15-4-1976 which was filed against the judgment and decree dated 29-11-1977 dismissing the suit of plaintiff of that case Harilal whose heirs are present plaintiffs has submitted that learned First Appellate Court concurred with the view of the learned trial Court holding that the sale deed executed by Harilal in favour of Panchamlal was an outright sale and was not a mortgage transaction. Learned counsel has also invited my attention to the judgment passed by this Court in S.A. No. 282/1976 dated 30-9-1976 holding that the sale deed was genuine and dismissed the appeal summarily. Learned counsel submits that the present suit has been filed on altogether different cause of action that the sale deed dated 30-6-1966 (exhibit P/10) is void against the plaintiffs because the suit property is the property of HUF and the plaintiffs are also having right in it. Learned counsel submits that the bar of Order II, Rule 2, Civil Procedure Code would also not come into play for the simple reason that cause of action of both the suits are quite distinct. In support of his contention learned counsel has placed reliance on the decision of the Supreme Court State of Maharashtra and another vs. M/s National Construction Company, Bombay and another AIR 1996 SC 2367 Para 9. ( 10. ) BY replying the contention of learned counsel for the appellants in respect to applications Order 6, Rule 17 to amend the written statement and Order 41, Rule 27, Civil Procedure Code, it has been put forth by learned counsel that the question in controversy is not that when Kishanlal had died but the matter in dispute is whether Harilal was having any authority to alienate the entire suit property which is of HUF and therefore if the application under Order 41, Rule 27 Civil Procedure Code (I.A. No. 1170/1994) is allowed it would be a futile exercise. Learned counsel further submits that in the light of the submissions put forth by him in respect to dismissal of application under Order 41, Rule 27, Civil Procedure Code, the amendment application filed by appellants to amend the written statement also deserves to be dismissed). Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No. 1:- ( 11. ) ON bare perusal of the judgment passed in first appeal of the earlier suit (Civil Appeal No. 12-A/1975) this Court finds that in para 15 it was specifically held that the sale deed executed by Harilal was an outright sale and was not a mortgage deed and the transaction between the parties was of sale and not of mortgage. ) ON bare perusal of the judgment passed in first appeal of the earlier suit (Civil Appeal No. 12-A/1975) this Court finds that in para 15 it was specifically held that the sale deed executed by Harilal was an outright sale and was not a mortgage deed and the transaction between the parties was of sale and not of mortgage. It would be apt to quote para 15 of the judgment of learned First Appellate Court in the appeal which was arisen from the judgment and decree of trial Court dismissing the earlier suit which reads thus:- "15. The plaintiff has sought to plead that the transaction entered into between Harilal (deceased) and Panchamlal (defendants) was a mortgage. Ex. P/8 sale deed does not contain any condition or period for reconveyance of the suit property. Consequently all the conditions required for any kind of mortgage do not seem to have been fulfilled. Under the circumstances it cannot be held that transaction was in a nature of mortgage of any kind. The finding of the learned trial Court to the effect that the transaction was one of out and out sale deserves to be upheld. The learned trial Court has held that the defendant was not entitled to receive Rs. 1000/- nor is he bound to reconvey the suit house in favour of the plaintiffs and execute a sale deed in their favour on credit of the aforesaid amount. This conclusion was based on the main conclusion that Ex. P/8 is not a mortgage deed but is a deed of out and out sale. The learned trial Court has held that the defendant had become the outright owner of the suit house. The appellants have unsuccessfully assailed the findings of the trial Court on this point. There is little scope to disturb the finding of the learned trial Court on this point." The second appeal (S.A. No. 282/1976) was dismissed in limine on 30-9-1976. Hence merely on the basis of earlier judgment passed in the earlier suit filed by Harilal it cannot be said that sale deed (Ex.P/10) dated 30-6-1966 is not void because this much was only held by all the Courts in the earlier suit that the transaction was not a mortgage transaction but it was an outright sale. Hence merely on the basis of earlier judgment passed in the earlier suit filed by Harilal it cannot be said that sale deed (Ex.P/10) dated 30-6-1966 is not void because this much was only held by all the Courts in the earlier suit that the transaction was not a mortgage transaction but it was an outright sale. In the present case, learned two Courts below has considered the pleadings of plaintiffs and defendants vis-a-vis to each other and after marshalling the oral and documentary evidence came to hold that the property in dispute is of HUF and therefore because the entire suit property has been sold by Harilal, his action had jeopardized the rights of present plaintiffs who are his heirs and are having their valuable right in the suit property and therefore I am of the view that learned two Courts below rightly held that the sale deed dated 30-6-1966 is void to the extent of plaintiffs' share. ( 12. ) I do not find any merit in the contention of learned counsel for the appellants that indeed Kishanlal (father of Harilal who was the vendor of defendants' predecessor) had died on 7-6-1956 and the Hindu Succession Act came into force on 17-6-1956 and therefore the document of birth and death register is quite material. If the contents of the application under Order 41, Rule 27 (LA. No. 1170/1994) is tested on the touchstone and anvil of Order 41, Rule 27(aa), since no proper explanation has been given by the appellants after long drawn litigation the said application cannot be allowed and for the same reasons application under Order 6, Rule 17, Civil Procedure Code (LA. No. 1171/1994) which has been filed to amend the written statement cannot be allowed which is filed to substantiate the application under Order 41, Rule 27, Civil Procedure Code. Hence these two applications are hereby rejected. Learned two Courts below after appreciating and marshalling the evidence came to hold that Harilal had died before coming into force of Hindu Succession Act, 1956. This finding is a pure finding of fact and cannot be interfered in this second appeal. The substantial question of law No. 1 is thus answered in affirmative and it is hereby held that sale deed dated 30-6-1966 (Ex.P/10) is not void to the extent of plaintiffs. Regarding Substantial Question of Law No. 2 ( 13. This finding is a pure finding of fact and cannot be interfered in this second appeal. The substantial question of law No. 1 is thus answered in affirmative and it is hereby held that sale deed dated 30-6-1966 (Ex.P/10) is not void to the extent of plaintiffs. Regarding Substantial Question of Law No. 2 ( 13. ) ON bare perusal of the findings recorded by the learned two Courts below as well as the judgment passed in earlier suit, this Court finds that earlier suit was filed on altogether distinct cause of action. In the earlier suit the question for consideration was whether plaintiff of that suit namely Harilal sold the suit property to Panchamlal or the transaction was a mortgage transaction. However, the present suit has been filed on altogether distinct cause of action. The matter in issue in this appeal is whether the entire property of HUF in which plaintiffs are having right could have been sold by Harilal and therefore, I am of the view that bar of Order 2, Rule 2, Civil Procedure Code would also not come into play in the present case. In this context, I may profitably place reliance on the decision of Supreme Court M/s National Construction Company (supra) placed reliance by learned counsel for the respondents. The decision of Privy Council Naba Kumar Hazra (supra) placed reliance by learned counsel for the appellants is not applicable for the simple reason that cause of action of two cases are quite distinct to each other and therefore for the same reason the Single Bench decision of Delhi High Court Kamal Kishore Saboo (supra) is also not applicable. ( 14. ) THE substantial question of law No. 2 is thus answered that the present suit is not barred under Order II, Rule 2, Civil Procedure Code. Resultantly, this appeal fails and is hereby dismissed with costs. Counsel fee Rs. 3000/-, if pre-certified. Appeal dismissed.