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2014 DIGILAW 178 (PAT)

Vijay Kumar Sinha v. Alata Devi @ Aastha Devi

2014-02-05

MUNGESHWAR SAHOO

body2014
JUDGMENT : MUNGESHWAR SAHOO, J.:–This second appeal has been filed by defendant no.1 against the judgment and decree dated 17.06.2011 passed by the learned 1st Additional District Judge, East Champaran, Motihari in Title Appeal No.31 of 2001/06 of 2010 whereby the learned lower appellate court dismissed the appeal and confirmed the judgment and decree dated 30.01.2001 passed by the learned Subordinate Judge-IV, Motihari in Title Suit No.24 of 1989. 2. The plaintiff-respondent filed the aforesaid suit alleging that the partition suit between the family members was compromised and final decree was passed wherein Schedule-II land was allotted in the share of defendant 2nd set. Out of the said allotted land, the defendant 2nd set transferred some portion of plot no.319 to different persons, who are in possession. On 29.03.1988 the defendant 2nd set intended to gift the property, in suit, in favour of the plaintiff to which the plaintiff accepted, as such a registered gift deed was executed on 29.03.1988 by defendant 2nd set for 7 katha of land in plot no.319. Because of mistake, plot number was mentioned 319/318. In the deed of gift in place of 4 katha 1 dhoor wrongly it has been mentioned as 7 katha. The plaintiff came in possession over 4 katha 1 dhoor land, which was gifted by the registered gift deed. 1½ feet wide land was kept by defendant 2nd set for using it as nala by different vendees. Out of the said gifted land, plaintiff sold 10 dhoors land to one Raj Kumar Singh for Rs.5,000/- and the purchaser came in possession. The plaintiff continued in possession of remaining 3 katha 11 dhoors land. Sketch map was filed with the plaint. The defendant no.1 wanted to grab the land, therefore, he requested the plaintiff to transfer this land in his name but the plaintiff refused. Subsequently the defendant no.1 disclosed that he has obtained a registered sale deed from defendant no.2 in respect of 4 katha of land. After obtaining the certified copy of the sale deed, the plaintiff found that a collusive sale deed was executed on 02.09.1988. Because on the date of execution of the sale deed the defendant no.2 was not the owner of the property rather the plaintiff was the owner on the basis of the registered gift deed, therefore, the sale deed in favour of defendant no.1 is void document. Because on the date of execution of the sale deed the defendant no.2 was not the owner of the property rather the plaintiff was the owner on the basis of the registered gift deed, therefore, the sale deed in favour of defendant no.1 is void document. Subsequently the defendant no.1 forcefully dispossessed the plaintiff from the suit land on 30.12.1988. 3. The defendant no.1 filed contesting written statement. The defendant no.2 did not file written statement nor he was examined as witness. The defence of the defendant no.1 is that the suit land is unidentifiable at the spot. The main defence is that the gift deed dated 29.03.1988 is fraudulent, collusive, void and invalid and the same was never acted upon. This deed of gift was obtained by playing fraud on defendant no.2, therefore, mutation on the basis of the gift deed is illegal. Prior to sale deed dated 02.09.1988 in favour of the defendant no.1, the defendant no.2 entered into an agreement to sell with the defendant no.1 and it was agreed that the suit land measuring 5 katha 8 dhoors will be sold for Rs.12,000/-. Out of the said 12,000/-, Rs.9,000/- was advanced as earnest money. With these terms and conditions, an agreement was executed on 30.03.1987 by the defendant no.2 in favour of defendant no.1. This agreement was executed in presence of the plaintiff. Pursuant to the said agreement defendant no.2 executed a registered sale deed dated 02.09.1988 receiving the balance consideration amount. Since then the defendant no.1 is coming in possession of the property. 4. The trial court held that the sale deed dated 02.09.1988 (Ext.A/1) is without consideration and on the basis of this sale deed no title and possession passed to the defendant no.1. The deed of gift is valid document. Accordingly, the trial court decreed the plaintiff’s suit. 5. On appeal, the lower appellate court held that the agreement is without consideration and that the sale deed is also without consideration, invalid and not genuine document. Accordingly, the finding of the trial court was confirmed and the lower appellate court dismissed the appeal. 6. Accordingly, the trial court decreed the plaintiff’s suit. 5. On appeal, the lower appellate court held that the agreement is without consideration and that the sale deed is also without consideration, invalid and not genuine document. Accordingly, the finding of the trial court was confirmed and the lower appellate court dismissed the appeal. 6. On 07.02.2013 the following two substantial questions of law were formulated:— (i) Whether both the courts below have rightly disbelieved the agreement for sale (Ext.C) on the ground of averments made in the deed of cancellation (Ext.3) which has been executed later on by the vendor making statements in indefinite terms with regard to the fraudulent nature of the agreement for sale? (ii) Whether the plaintiff’s right, title and interest acquired on the basis of the gift deed (Ext.2) would be affected by the agreement for sale i.e. Mahadnama (Ext.C) unless the further fact is established that the plaintiff had the knowledge of the same? 7. The learned counsel Mr. Binod Kumar Singh appearing on behalf of the appellant submitted that after the agreement, the defendant no.2 executed a cancellation deed which has been marked as Ext.3 wherein he stated about the fraudulent nature of the agreement (Ext.C) and both the courts below relied upon the statements of the defendant no.2 made in Ext.3, which is not admissible at all. 8. According to the learned counsel, in view of Section 40 of the Transfer of Property Act the gift deed (Ext.2) will not affect the right of the defendant which is based on the deed of agreement prior to the gift deed. Admittedly the deed of agreement (Ext.C) is between the defendant no.2 and defendant no.1 which is prior to the gift deed. The learned counsel relied upon A.I.R. (35) 1948 Patna 426 (Khudiram Ojha Vs. Sm. Amodebala Debi and others). The learned counsel further submitted that unilaterally the defendant no.2 could not have cancelled the agreement by executing Ext.3 and, therefore, the statements made in Ext.3 by defendant no.2 cannot be read against the defendant no.1. Both the courts below have relied upon the statements made in Ext.3 and held that the agreement (Ext.C) is not a genuine document. Thus, both the courts below have approached the case illegally. Hence, the findings of both the courts below are vitiated. 9. Both the courts below have relied upon the statements made in Ext.3 and held that the agreement (Ext.C) is not a genuine document. Thus, both the courts below have approached the case illegally. Hence, the findings of both the courts below are vitiated. 9. On the other hand, learned senior counsel appearing on behalf of the respondents submitted that even if Ext.3 cannot be looked into then also the defendant no.1 has no title to the property conferred on him on the basis of the sale deed because agreement for sale do not create any title on the party in favour of whom the agreement is executed. It is only a right conferred on him to obtain registered sale deed in future. Till registered sale deed is executed, no title will be conferred on the defendant no.1. It is admitted fact that the gift deed in favour of the plaintiff is dated 29.03.1988 (Ext.2). As soon as this gift deed is registered and possession delivered, the plaintiff became the owner from the date of said gift deed. In such circumstances, on the date of execution of the sale deed in favour of defendant no.1 on 02.09.1988, the defendant no.2 was not the owner of the property. Therefore, he could not have validly transferred the property in favour of defendant no.1. In other words, on the date of execution and registration of the sale deed in favour of defendant no.1 the plaintiff was the owner and not the defendant no.2. On this ground alone the impugned judgments of the courts below cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 10. In the present case, the facts of the case are admitted. According to the plaintiff, a registered deed of gift was executed on 29.03.1988 and possession was delivered. According to defendant no.1, there was prior agreement dated 30.03.1987 and pursuant to that agreement subsequently the sale deed was executed in favour of defendant no.1 on 02.09.1988 by defendant no.2. 11. In the present case, the facts of the case are admitted. According to the plaintiff, a registered deed of gift was executed on 29.03.1988 and possession was delivered. According to defendant no.1, there was prior agreement dated 30.03.1987 and pursuant to that agreement subsequently the sale deed was executed in favour of defendant no.1 on 02.09.1988 by defendant no.2. 11. So far the submission of the learned counsel for the appellant that on the basis of the statements made in cancellation deed (Ext.3), the agreement could not have been held to be not genuine document and that unilaterally agreement could not have been cancelled is concerned, there is no dispute about the settled principles of law which is not disputed by the respondents. In such view of the matter, I am not required to decide this question. In view of Section 31 of the Specific Performance of Contract the defendant no.2 was required to institute a proper proceeding for cancellation of the alleged mahadanama and unilaterally he could not have cancelled the same. 12. Now let us proceed assuming that Ext.C is the legal and valid document then also admittedly on the date of execution of the sale deed in favour of defendant no.1, the defendant no.2 was not the owner of the property. Section 40 of the Transfer of Property Act including illustrations reads as follows:— 40. Burden of obligation imposing restriction on use of land.—Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment (in a particular manner of the latter property), or or of obligation annexed to ownership but not amounting to interest or easement.—Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, Such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, not against such property in his hands. Illustration A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. Illustration A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A. 13. Here, in the present case, the defendant no.1 did not enforce the contract against the defendant no.2 rather he obtained the sale deed directly. It is settled principles of law that a contract for sale does not create an interest in the land but creates a personal obligation of fiduciary character which can be enforced by a suit for specific performance not only against the vendor but also against volunteers and their purchaser for consideration with notice. In view of Section 40 read with illustration, it was incumbent upon the defendant no.1 to have enforced the contract against the defendant no.2 including the plaintiff but he could not have bypassed the defendant no.1 while obtaining the sale deed from defendant no.2, particularly when on the date of execution and registration of the sale deed the defendant no.2 was not the owner. The defendant no.1 could have prayed for joining the plaintiff as co-transferor on the basis of agreement on the ground that the agreement is enforceable against the plaintiff because he had the knowledge of the agreement and that he is a gratuitous transferee but instead of doing so the registered sale deed has been obtained. Therefore, both the courts below have rightly held that by this registered sale deed dated 02.09.1988 no valid title has been transferred in favour of the defendant no.1 by the defendant no.2. It is also settled principles of law that possession follows title. Both the courts below have recorded the finding that neither title nor possession was transferred to the defendant no.1. 14. In view of the above settled principles of law the substantial question of law no.(ii) is answered in favour of the plaintiff and against the appellant and it is held that the plaintiff’s title on the basis of gift deed (Ext.2) was not affected by the agreement (Ext.C) and this question as to whether the plaintiff had the knowledge of the agreement (Ext.C) or no knowledge cannot be decided in this suit for declaration of title particularly when the defendant no.1 has not filed any suit for specific performance of contract. Had the defendant no.1 filed the suit for specific performance of contract, this question would have been relevant in that case. 15. So far the substantial question of law no.(i) is concerned, it is not necessary for deciding this substantial question of law in the present case because it will not affect the merit of the case. It relates to the appreciation of evidence. Since the substantial question of law no.(ii) has been decided in favour of the plaintiff and against the appellant, the second appeal is liable to be dismissed. 16. In the result, this Second Appeal is dismissed.