Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1181 (PAT)

Veena Gupta v. Rajmani Devi

2013-09-26

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The Plaintiffs have filed this Second Appeal against the Judgment and Decree dated 27.01.2000 passed by the learned Ist Addl. District Judge, Khagharia in title appeal No.1 of 1987 whereby the learned lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree dated 27.09.1986 passed by the learned Subordinate Judge, Khagaria in title suit No.69 of 1983. 2. The plaintiffs-appellants filed the aforesaid suit for specific performance of contract on facts inter alia that the son and grand son of Kishori Lal were in possession of the suit property. They were in need of money of Rs.5,000/-, therefore, they approached the defendant Ist party, i.e., Kaleshwar Prasad Singh to advance loan who agreed on condition that a sale deed in favour of defendant 2nd party Smt. Indira Devi is executed in respect of suit houses and if the plaintiff pay back the loan of Rs.5,000/- before July, 1984. Accordingly, a sale deed with a condition for repurchase with respect to the house in question was executed in favour of defendant 2nd party. The defendant first party paid the loan. The sale deed was executed on 05.08.1977. Subsequent to that deed, there was a partition in the year 1978 in the family of the plaintiff and the property failed in exclusive share of plaintiff 2nd party, i.e., Kishori Lal. He executed a deed of gift deed on 17.03.1983 in favour of the plaintiff Ist party, i.e., Veena Gupta in respect of suit house who tendered the amount. It is stated that the defendant Ist party is the father of defendant 2nd party. The defendant 2nd party is only a name lender but the defendant No.1 avoided to accept the amount. 3. The further case of the plaintiff is that the defendant Ist party was month to month tenant of the plaintiff 2nd party in respect of the suit house. After execution of the conditional sale deed, he became the purchaser of the house. After tendering the amount, the plaintiff-Ist-party became the landlord and there was relationship of landlord and tenant between the plaintiff-Ist-party and the defendant-Ist-party. She also requires the suit property for her personal occupation. She tendered the amount of Rs.5,000/- to the defendant Ist party and the plaintiff Ist party was ready and willing to pay consideration amount. 4. The defendant No.1 and the defendant No.2 both filed separate contesting written statement. She also requires the suit property for her personal occupation. She tendered the amount of Rs.5,000/- to the defendant Ist party and the plaintiff Ist party was ready and willing to pay consideration amount. 4. The defendant No.1 and the defendant No.2 both filed separate contesting written statement. According to the defendant No.1 the gift deed executed in favour of plaintiff Ist party is void, therefore, title did not confer on the plaintiff Ist party. As such she has no right to obtain the decree for specific performance of contract. 5. Since no title passed to the plaintiff Ist party, there was no relationship of landlord and tenant between the parties. The plaintiff has got sufficient accommodation, therefore the requirement of the plaintiff is not bonafide. The defendant No.1 is only a tenant. The consideration amount was never tendered to her by the plaintiff No.1 nor she ever received any advocate notice. The trial Court dismissed the plaintiff’s suit recording a finding that the gift deed of the plaintiff No.1 executed by plaintiff No.2 is void document. The trial Court also recorded a finding that the plaintiff did not tender the amount to the defendant No.2, therefore, she was not ready to perform her part of the contract. On appeal, the lower appellate Court only recorded the finding that the plaintiff No.1 gift deed is voidable document. Therefore, the plaintiff No.1 had not acquired any title. On this finding alone, the lower appellate Court dismissed the plaintiff’s appeal. 6. On 23.07.2003, at the time of admission of the second appeal the following 3 substantial question of law were formulated.— (i) Whether the Courts below committed error in dismissing the suit of the plaintiff on wrong approach and on consideration of an issue which was not material for the purpose of adjudication of the suit? (ii) Whether the Courts below committed error in not considering the main issues involved in the suit regarding character and construction in respect of the deed impugned? (iii) Whether the Courts below committed error in not considering the issue of merger of tenancy to the ownership as is relevant in the deed of Sale? 7. The learned senior counsel, Mr. Sidheshwari Prasad Singh appearing on behalf of the appellant submitted that the plaintiffs never prayed for declaration of title on the basis of the registered gift deed. The suit was filed for specific performance of contract. 7. The learned senior counsel, Mr. Sidheshwari Prasad Singh appearing on behalf of the appellant submitted that the plaintiffs never prayed for declaration of title on the basis of the registered gift deed. The suit was filed for specific performance of contract. The plaintiffs, i.e., the plaintiff No.2 and his sons and grand son have executed the sale deed with a condition to the purchaser in favor of defendant No.2. In such circumstances, the only question should have been decided by the Courts below, i.e., as to whether the plaintiff have the right to obtain the decree for specific performance of contract or not. The defendants never disputed the plaintiff’s title because the plaintiff No.2 is admittedly owner of the property and on his death, now his son and grand sons have also substituted. All the heirs including the plaintiff No.1 joined hands together. In such circumstances, whether there is valid gift deed or invalid gift deed is not material but both the Courts below instead of deciding the suit for specific performance of contract according to law decided the question of acquisition of title of the plaintiff No.1 by the registered gift deed. The learned counsel further submitted that admittedly the sale deed has been executed in favor of defendants. The amount has been deposited in the Court, i.e.,Rs.5000/- in the name of the defendant No.1 and defendant No.2 Although, in the pleading, it is stated that the defendant No.2 is the name lender of defendant No.1 but to avoid any complication, the amount has been deposited in the name of both the defendants, in such circumstances, the Courts below could not have dismissed the plaintiff’s suit only on the ground that the plaintiffs failed to prove that she ever tendered the amount to the defendant No.2. According to the learned counsel in the sale deed, the condition is that the amount of Rs.5000/- has to be returned within the month of July, 1984 and the suit itself has been filed in the year 1983 which clearly indicates the intention of the parties that the plaintiffs were always ready and still ready to perform their part of the contract but the defendants contested the suit by taking frivolous grounds, i.e., only technical grounds that the plaintiff No.1 has no authority or no authority to obtain the decree although the fact that the other admitted owner is also added as plaintiff. The learned counsel further submitted that the technicalities should not come in the way of administration of justice. In some places in the plaint, it is pleaded that the plaintiff No.1 is ready to deposit and in some places, it has been pleaded that the plaintiffs are entitled to obtain a decree for specific performance of contract but instead of giving emphasis to the intention of the parties, the Court gave emphasis on form of pleading. In the present case the true owner and the donee is also plaintiff and likewise both the defendants, i.e., father and the daughter are made party and now the objection is being raised that the plaintiff never tendered the amount to the defendant No.2 , particularly when the amount has already been deposited in the Court. Therefore, who is entitled to receive the same may receive the same from the Court but then they cannot resist the decree for specific performance of contract. The learned counsel on these grounds submits that the substantial question of law formulated at the time of admission be answered in favour of the appellants. 8. So far the third substantial question of law is concerned, according to the learned counsel, the defendant No.1 has purchased the property in the name of his daughter defendant No.2 and, therefore, after purchase his tenancy right merged in the ownership. Therefore, if the suit is decreed, the defendant No.1 and defendant No.2 both are liable to be evicted from the suit premises. If it is held that he is a tenant then admittedly no amount of rent has been paid to the plaintiff. Therefore, on that ground alone also a decree for eviction can be passed. Therefore, if the suit is decreed, the defendant No.1 and defendant No.2 both are liable to be evicted from the suit premises. If it is held that he is a tenant then admittedly no amount of rent has been paid to the plaintiff. Therefore, on that ground alone also a decree for eviction can be passed. On these ground, the learned counsel submitted that the substantial question of law No.3 is also liable to be answered in favour of the appellant and the plaintiff’s suit be decreed in toto. 9. On the other hand, the learned senior counsel, Mr. T. N. Maitin appearing on behalf of the defendant No.2 submitted that the document is a sale deed with a condition to repurchase, therefore during that period, the defendant No.2 was the owner of the property. In such circumstances, the plaintiff No.2 could not have gifted the property in favour of the plaintiff No.1. Moreover, in the gift deed, a condition has been given that the plaintiff No.1 will pay the amount of Rs.5,000/- to the defendant No.2 which is nothing but a consideration. In such view of the mater, the deed of gift itself is a void document. Therefore, both the Courts below have rightly held that the gift deed is void document. If gift deed is void document, then plaintiff No.1 did not acquire any title. If she did not acquire any title, she cannot maintain the suit for specific performance of contract. In support of his contention, the learned counsel relied upon AIR 1961 Madras 405 Kulasekaraperumal Vs. Pathakutty Thalevanar (ii) AIR 1991 Patna 183 Mostt. Sai Munissa Vs. Sk. Mohiuddin (iii) AIR 1981 SC 1274 . Ku. Sonia Bhatia Vs. State of U.P. and others. 10. The learned counsel, therefore, submitted that the Courts below have rightly dismissed the plaintiff’s suit. 11. The learned counsel further submitted that in the plaint itself, the plaintiff prayed for a relief that decree for specific performance of contract be passed in favour of plaintiff Ist party and the defendant Ist party be directed to take Rs.5,000/- from the plaintiffs Ist party, therefore, unless the plaintiff Ist party proves her title to the property, no decree for specific performance of contract can be passed in her favour and moreover, nowhere there is averment that she ever tendered the amount to the defendant No.2. For obtaining a decree for specific performance of contract, there must not be pleading only but also from the conduct of the party, it should be reflected in fact that the plaintiff were ever ready and still ready to perform their part of the contract. The plaintiff never tendered amount to the defendant No.2, therefore, it cannot said that the plaintiff No.1 or the plaintiffs were ready and are still ready to perform their part of the contract. In such circumstances, the plaintiff’s suit has rightly been dismissed by both the Courts below. 12. The learned senior counsel, Mr. Rajendra Naraian appearing on behalf of the defendant No.1 submitted that because of the purchase by the defendant No.2 by the admitted sale deed with a condition to repurchase, the defendant No.2 became the owner so the plaintiff has no right to get him evicted from the suit premises, moreover the trial Court has recorded the finding that the plaintiff failed to prove personal necessity. In such circumstances, the finding of the Courts below cannot be interfered within in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 13. Since, the substantial question of law No.1 and 2, both are inter-related both are decided together. According to the plaint, the defendant No.2 is a mere name lender of the defendant No.1 who was temporary purchaser under registered deed of conditional sale. Defendant No.1 was the month to month tenant in the suit house. At paragraph 6, there is averment to the effect that the plaintiff Ist party was always willing and ready to pay Rs.5000/- to the defendant Ist party or to the defendant 2nd party. The plaintiff is still ready and willing to pay back Rs.5000/-. In view of the aforesaid, the plaintiffs are entitled to a decree for specific performance of contract. Therefore, there is a pleading in terms of Section 16 (C) of the Specific Relief Act. According to the plaintiff No.1, she was ready to pay the amount either to the defendant No.1 or to the defendant No.2 whoever is entitled for the same. From perusal of the plaint itself, it appears that the admitted owner Kishori Lal is the plaintiff No.2. The case of the plaintiff No.1 is that Kishori Lal executed the gift deed in favour of plaintiff No.1 Smt. Veena Gupta. From perusal of the plaint itself, it appears that the admitted owner Kishori Lal is the plaintiff No.2. The case of the plaintiff No.1 is that Kishori Lal executed the gift deed in favour of plaintiff No.1 Smt. Veena Gupta. Now, therefore, whether title passed to Smt. Veena Gupta or it remained with Sri Kishori Lal, it is immaterial in the present case because of the fact that Kishori Lal is also plaintiff. So far the submission of the learned counsel for the respondent that there is no readiness and willingness to perform the contract because the amount was never tendered to the defendant No.2 is concerned, it may be mentioned here that the amount has already been deposited in the Court, prior to the month of July, 1984 and in the name of both the defendants. In such circumstances, the objection raised by the respondent defendant No.2 that the amount was never tendered to the defendant No.2 is concerned, it is only a technical objection. According to the conditions of the sale deed, the amount was to be paid within July, 1984, the suit itself has been filed in the year 1983. The plaintiffs also adduced evidence in support of the pleading that the plaintiffs were ready and are ready to return the amount of Rs.5000/-. 14. The decision relied upon by the respondent No.2, i.e, 1961 Madras 405 is concerned, the decision relates to Hindu Law Madras School and it has been held that a Hindu coparcener governed by the Mitakshra as administered in Madras may dispose of his undivided share in the ancestral estate by contract and conveyance. He may mortgage, sell or otherwise alienate for value his undivided share of the joint Hindu family property. The other decisions, i.e., AIR 1991 Patna 183 (Mosst. Saimusissa Vs. Mohinuddin) is concerned, it appears that in that case, the gift deed was in lieu of dower debt, therefore, it is held that the gift deed is void document. So far AIR 1981 SC 1274 is concerned in the said Judgment itself the Hon’ble Supreme Court has held that a gift has aptly been described as a gratuity and an act of generosity and stress is on the fact that if there is any consideration then the transaction ceases to be a gift. Therefore, it is not decided that in that case, the gift deed will be a void document. Therefore, it is not decided that in that case, the gift deed will be a void document. The only question is when if there is consideration then it will not be a gift deed. The Hon’ble Supreme Court further held that a gift deed is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. Therefore, the finding of the Courts below that the gift deed is a void document because there is a consideration is a wrong finding and in fact both the Courts below approached the case in wrong angle. Now, therefore, if there is consideration in the gift deed then it will not be a gift deed then the question is that the property has been transferred to the plaintiff No.1 by that document. 15. Section 15 of the Specific Relief Act provides that the specific performance of a contract may be obtained by the representative in interest or the principal or any party thereto. Now, therefore, even if the gift deed is considered, in the present case, not to be a gift deed then also the plaintiff No.1 will be assignee of the interest by the other plaintiff, i.e., plaintiff No.2. The plaintiff No.1 will be representative in interest of the plaintiff No.2. Moreover in the present case, from perusal of the gift deed, it is clear that the property has been gifted to the plaintiff No.1 and a right has been given to the plaintiff No.1 to obtain the possession of the property by giving Rs.5000/- to the defendants as the conditions recited in the sale deed. It is settled principle of law that in order that a gift deed of immovable property is valid under Section 123, it is not necessary that there should be a physical delivery of property to donee. If the doner have done or that he could put the property within the power of the donee to obtain possession that gift deed would be valid. In the present case, it is admitted fact that the sale deed was executed with a condition to repurchase within month of July, 1984. If the doner have done or that he could put the property within the power of the donee to obtain possession that gift deed would be valid. In the present case, it is admitted fact that the sale deed was executed with a condition to repurchase within month of July, 1984. In the sale deed, there is condition to the effect that the purchaser will get his name mutated and will become absolute owner, if the amount is not returned within that period, i.e., July, 1984, therefore, the right title of the purchaser has been kept in abeyance till that period. Now, therefore, according to the terms of the contract recited in the sale deed itself, if within that period, the amount is paid to the purchaser or deposited in the Court, the defendant No.2 is bound to transfer the property in favour of the plaintiff or the plaintiffs. It may be mentioned here that after death of Kishori Lal, his son and grand son are all on record. 16. So far the submission of the learned counsel for the respondent No.2 that there is no averment in the plaint that the plaintiff tendered the amount to the defendant No.2 or that the decree should be granted in favour of all the plaintiffs is concerned, it may be mentioned here hat all the plaintiff including the so called donee or the owner of the property are before the Courts. The amount has been deposited in the Court in the name of both the defendants. 17. In the case of Ram Swaroop Gupt Vs. Bishar Narayan AIR 1987 SC 1242 the Hon’ble Supreme Court has held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. This decision of the Hon’ble Supreme Court has been followed by this Court in the case of Ganesh Sahu Vs. Dwarika Sao AIR 1991 Patna 1, paragraph 32. 18. In the present case the simple case of the plaintiff is that a sale deed with a condition to repurchase was made between the plaintiff and the defendant. The condition was that the plaintiff should return the amount of Rs.5000/- within July, 1984. When the defendants avoided, the plaintiff deposited the amount in the Court in the name of both the defendant. The suit is of the year 1983, i.e., prior to the fixed period, i.e., July, 1984 within which the amount was required to be returned as stipulated in the sale deed. Now can it be said that the plaintiffs were not ready to return the amount or that the plaintiff were never ready to return the amount either to the defendant No.1 or to the defendant No.2. Whether the amount will be taken back by the defendant No.1 or the defendant No.2, it is the intersee dispute between the defendant No.1 and defendant No.2. The matter is not required to be decided in the present case because the plaintiffs have already deposited the amount in the Court in favour of both the defendants. Whether the amount will be taken back by the defendant No.1 or the defendant No.2, it is the intersee dispute between the defendant No.1 and defendant No.2. The matter is not required to be decided in the present case because the plaintiffs have already deposited the amount in the Court in favour of both the defendants. Likewise the plaintiffs have also, i.e., plaintiff No.1 the so called donee and the other plaintiff who had executed sale deed in favor of defenantNo.2 have also joined together now, therefore, can it be said that because the plaintiff No.1 is not entitled to obtain the decree, the other plaintiffs are also not entitled to obtain the specific performance of contract. In my opinion, this will be hyper technicalities and in fact in this case, in my opinion, the defence of the defendants are frivolous defence and with a view to defeat the rights of the plaintiffs, they have dragged the plaintiffs to the Court. 19. So far defendant No.1 is concerned, admittedly, he is a tenant in the suit premises. The specific case of the plaintiff is that the amount has already been deposited in the Court, therefore, the tenant has also knowledge about the deposit of the amount but in spite of that he is continuing in the property as trespassers without payment of any rent. It is admitted fact that the defendant has not paid rent for the suit premises. The trial Court at paragraph 28 recorded a finding on Issue No.8 that the defendant No.1 is not defaulter because the defendant No.2 is the real purchaser and the defenantNo.1 is paying rent to her. The trial Court also recorded the finding that the plaintiff No.1 is not entitled for recovery of rent. 20. Since admitted fact is that the defendant No.1 has not paid the rent to the plaintiffs and the recovery of possession has been prayed for on the ground of personal necessity as well as on the ground of default also, the defendant No.1 is a defaulter because in the conditional sale deed, there is no condition that the defendant No.1 will not pay the rent during this period from the year 1977 to the month of July, 1984. Moreover, the defendant No.1 knew the fact that the amount has already been deposited in the Court by the plaintiff then also the defendant No.1 admittedly has not paid the rent, therefore, he is a defaulter within the meaning of Section 11(1) (d) of Bihar Building (Lease, Rent and Eviction) Control Act. 21. In the case of Salem Advocate Bar Association Vs. Union of India 2005(6) SCC 344 , the Hon’ble Supreme Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 sub-section 2 C.P.C. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35 sub section (2) provides for costs to follow the event, the it is implicit that the costs have to be those which are reasonable incurred by a successful party except in those cases where the Courts in its discretion may direct otherwise by recording reasons therefore. 22. In the present case in view of my above discussion, the substantial question of law No.1 and 2 are answered in favor of the plaintiff-appellant and so far substantial question No.3 is concerned, it is left because even if it is held that the tenancy right is not merged in the ownership then also he has been found to be defaulter, therefore, it is not necessary for this Court to answer this question. In my opinion, this question of law is not involved in this case for decision in view of the finding of the Courts that the defendant No.2 is the real purchaser. 23. In view of the above discussion, the substantial question No.1, 2 are answered in favour of the plaintiff. 24. In the result, this Second Appeal is allowed. The impugned Judgment and Decree of both the Courts below are hereby set aside. 23. In view of the above discussion, the substantial question No.1, 2 are answered in favour of the plaintiff. 24. In the result, this Second Appeal is allowed. The impugned Judgment and Decree of both the Courts below are hereby set aside. The plaintiff’s suit is decreed in favour of both the respondents with cost of Rs.25,000/- to be paid by the respondents to the plaintiff within two months from today failing which the cost may be realised though the process of the Court.