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2016 DIGILAW 41 (ORI)

Sundarlal Joshi v. Devananda Joshi

2016-01-19

D.DASH

body2016
JUDGMENT : D. DASH, J. 1. The appellant in this appeal has called in question the judgment and decree passed by the learned District Judge, Kalahandi in T.A. No. 49 of 1982 reversing the judgment and decree passed by the learned Sub-ordinate Judge, Bhawanipatna in decreeing the suit filed by the present appellant as the plaintiff. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that in the year 1967 his father Debi Prasad passed away. During the life time of Debi Prasad, there was no partition of ancestral properties with his brothers although each brother was in possession of separate portions of lands for convenience. Therefore, the Settlement Authorities had recorded separate possession of each of the branches in respect of separate portion of lands. It is stated that Debi Prasad died during the minority of the plaintiff and as such, the defendant no. 4, the elder brother of the plaintiff remained under the direct influence of his uncle Gouri Sankar, the father of defendant no. 1, 2. It is stated that Gouri Sankar was helping him in supervising the cultivation of the suit lands and in managing the affairs. Next allegation remains that the defendant no. 3 with a view to grab the suit had fraudulently obtained a sale-deed dated 19.04.1977 in favour of defendant no. 1 and 2 who are none other than his sons and it is said that at that time plaintiff was a minor. Though it is shown that plaintiff and defendant no. 4 executed the sale-deed, they never received any consideration much less to say as mentioned to be Rs. 4,000/- in the said sale-deed. The sale-deed also is said to be not supported by any legal necessity. It is alleged that though the sale-deed should have been executed at Dharamgarh, it has been so done at Bhawanipatna where the executants were not residing. The sale-deed is also challenged on the ground that the properties were not partitioned in metes and bounds and that too the sale was without the knowledge of defendant no. 8, the sister of the plaintiff. It is stated that defendant no. 3 thereafter forcibly ousted the plaintiff and defendant no. The sale-deed is also challenged on the ground that the properties were not partitioned in metes and bounds and that too the sale was without the knowledge of defendant no. 8, the sister of the plaintiff. It is stated that defendant no. 3 thereafter forcibly ousted the plaintiff and defendant no. 4 from the said property and then the plaintiff could know about the execution of said sale deed with ulterior motive. So, the suit was filed for declaration of the said sale-deed executed by him and defendant no. 4 in favour of defendant no. 1 and 2 as void, as also for recovery of possession of the suit land. The defendant no. 1 to 3 in their written statement while traversing the plaint averments totally denied that at any point of time defendant no. 3 was managing properties of plaintiff and defendant no. 4 and that he was exercising any sort of control over them. It is stated that defendant no. 4 was working as a teacher and so entire family wanted to move to Bhawanipatna. For that reason, they approached defendant no. 1 and 2 for sale of the land and accordingly consideration was fixed at Rs. 4,000/-. These defendants claim that the ancestral properties in the hand of the parties were partitioned in metes and bounds among Debi Prasad and other brothers and after said partition, plaintiff’s father had got the suit land in his share. These defendants assert the year of death of Debi Prasad to be 1958 and not 1957 as stated by the plaintiff. They also stated that the plaintiff’s mother was quite intelligent and she was also looking after her sons and their properties. It is denied that defendant no. 3 had ever exercised any influence either over the plaintiff or defendant no. 4 who was quite an educated person and they aver that no such fraud has been practiced upon them as falsely alleged. It is also stated that the plaintiff is an educated person and married and had all the knowledge about the sale etc. These defendants assert the sale-deed to be valid and genuine and to have been duly executed with the full knowledge of the plaintiff and defendant no. 4 who were major then. 4. It is also stated that the plaintiff is an educated person and married and had all the knowledge about the sale etc. These defendants assert the sale-deed to be valid and genuine and to have been duly executed with the full knowledge of the plaintiff and defendant no. 4 who were major then. 4. The suit after trial was initially dismissed and an appeal being carried by the unsuccessful plaintiff, the same was remanded for decision afresh on all the issues. Upon remand as directed four additional issues were framed for determination and to be specific those concern with the allotment of suit land in favour of Debi Prasad in partition if any; the plaintiff’s minority on the date of execution of the sale-deed as claimed and defendant no. 8 if having interest over the property. After remand, the trial court took up issue no. 6 first for decision which concern with the claim of minority of the plaintiff for the transaction to declared to be void on that ground. It has been answered in favour of plaintiff. Next going to issue no. 5 as regards partition, the trial court’s view remained that there was never any partition as alleged by the defendants. Proceeding to decide the interest of defendant no. 8, the trial court held that the said transaction is not binding on her. On other issues concerning fraud being practiced upon the plaintiff and defendant no. 4, the answer has been recorded in favour of the plaintiff and against the defendants. It has also been held that the consideration under the sale-deed has not been paid to the plaintiff. All these findings having been recorded in favour of the plaintiff, the suit stood decreed granting the reliefs as prayed for. 5. The unsuccessful defendants who were contesting the suit in trial court then preferred appeal. The lower appellate court on analysis of evidence has gone to reverse the finding of the trial court that the plaintiff was a minor at the time of execution of the sale-deed. On consideration of the evidence on record as also looking to the conduct of the parties, it has given a finding that the suit is collusive one filed by the plaintiff in collusion with that the defendant no. 4, the elder brother of the plaintiff. On consideration of the evidence on record as also looking to the conduct of the parties, it has given a finding that the suit is collusive one filed by the plaintiff in collusion with that the defendant no. 4, the elder brother of the plaintiff. The sale-deed has been held to have been for legal necessity and to have been so executed to benefit the family and that it has so benefited. The findings on fraud etc as recorded by the trial court have been set aside. Therefore, in the ultimate, the suit has been dismissed which is now impugned in this appeal. 6. The appeal is admitted on the following substantial questions of law:- (a) Whether for non-substitution of respondent no. 6, the appeal stood abated in the lower appellate court? (b) Whether the sale-deed in question is valid, sale having been executed during the minority of the plaintiff? 7. Coming to the first substantial question of law, it may be stated that under issue no.7, the trial court had dealt as to whether the sale deed impugned in the suit is binding on defendant no.8 (respondent no.6 in the lower appellate court) and as to whether she has got interest in the property. The issue had been answered by the trial court to the effect that she had her interest in the suit property and she being not a party to the sale deed, is not bound by the transaction. During pendency of the appeal upon her death when it is stated that her legal representatives were not brought on record being substituted, yet the fact remains that her both the brothers were very much there as parties before the lower appellate court. The younger brother was the main contesting respondent being the successful plaintiff; the elder brother did not choose to contest and he had also not contested the suit in the trial court. As plaintiff, the younger brother had taken the specific plea to avoid the sale deed on that count and for that reason though initially defendant no.8 was not the party to the suit, she had been later on impleaded. Nonetheless, she had not contested the suit by filing any written statement. As plaintiff, the younger brother had taken the specific plea to avoid the sale deed on that count and for that reason though initially defendant no.8 was not the party to the suit, she had been later on impleaded. Nonetheless, she had not contested the suit by filing any written statement. The lower appellate court has found the challenge to the sale deed levied by the plaintiff on the ground of his minority on the date of sale as untenable in specifically holding the plaintiff to be major at the time of sale. Next it has been held on evaluation of evidence that the defendant no.4 being the eldest male member of the family was the Karta and was representing as such and the sale was also for the benefit of defendant no.8 with the finding that the consideration money was received towards the sale was so utilized. Be that as it may, this defendant no.8 if at all has the share in the property; the same can be well worked out in a partition of all their joint family property amongst the members of the family with all other equitable consideration coming to play. However in the present suit which is mainly concerned with the validity of the sale deed on the ground of minority of the plaintiff and other ground of non passing of consideration, fraud, misrepresentation etc, the lower appellate court having recorded the finding against the plaintiff and more particularly when this defendant no.8 was also not contesting the suit by filing the written statement staking her claim in any manner, non-substitution of her legal representatives upon her death, in my considered view, is of no fatal consequence upon the final result of the appeal. During hearing of this appeal, learned counsel for the appellant has not been able to raise any such contention for being considered so as to persuade this Court to take a different view than the above. 8. Now coming to the next substantial question of law which concerns with the challenge to the sale deed said to have been executed by the plaintiff and defendant no. 4 in favour of defendant nos. 8. Now coming to the next substantial question of law which concerns with the challenge to the sale deed said to have been executed by the plaintiff and defendant no. 4 in favour of defendant nos. 1 and 2, it is the submission of the learned counsel for the appellant that the trial court on thread bare analysis of the evidence had recorded the finding with regard to the minority of the plaintiff at the time of execution of the sale deed and the lower appellate court should not have lightly disturbed it. He further contends that the circumstances emanating from the evidence, which have been noted go to show that such sale deed had been executed at the instance of the defendant no.3 in favour of the defendant nos. 1 and 2 only to grab the property. He also supported the finding rendered by the trial court on other issues. 9. Learned counsel for the respondents countering the above, submits that the lower appellate court has made the right approach and having made detail examination of evidence, viewing the conduct of the parties as those emanate from evidence on record, has rightly set aside the findings of the trial court on that score in finally saying that plaintiff was then major. In this connection, he has placed the discussion of the evidence as made by the lower appellate court in showing as to how rightly the conclusion has been arrived at that the plaintiff was major at the time of sale. Thus, he contends that said finding is unassailable. It is also his submission that in so far as the challenge to sale deed on the ground of fraud, misrepresentation and non-passing of consideration are concerned, there is no such specific pleading as also evidence. According to him, the lower appellate court has rightly hinted that the suit has been filed by the plaintiff in collusion with the defendant no.4 only to avoid the sale on the some ground or other by changing their mind at later stage and out of greed developed later. 10. The suit when has been filed by the plaintiff challenging the sale said to have been made by him and also his elder brother defendant no.4 claiming that the plaintiff was then shown to be major though he was in fact a minor. 10. The suit when has been filed by the plaintiff challenging the sale said to have been made by him and also his elder brother defendant no.4 claiming that the plaintiff was then shown to be major though he was in fact a minor. The defendant no.4 who is the other executant has not come forward have any say in the courts below and has maintained total silence suit. It stood admitted that the defendant no.4 being the elder brother of the plaintiff was then major and being the eldest member of the family was the Karta which is otherwise available in the pleading of the plaint that he after the death of Debi Prasad was managing the show though it is said to be under the control and supervision of Gouri Shankar, defendant no.3 who is the father of defendant nos. 1 and 2. The sale deed is dated 19.04.1967 and the suit has been instituted by the plaintiff challenging it on the ground that he was then a minor on 19.02.1977. As per plaintiff’s own showing, he was aged about 26 years then. The suit is for declaration that the sale deed is void as also for recovery of possession stating that on the next year of the execution of the sale deed the defendant nos. 1 and 2 have forcibly dispossessed the plaintiff and defendant no.4. It is not a case that the sale deed was executed by the plaintiff alone. But his elder brother who was then the eldest member of the family also stands as one of the executants. It has been stated in the sale deed that for meeting the necessity of the family, the sale had to be made. The property admittedly was the ancestral property in the hands of the parties. Even accepting for a moment the case of the plaintiff that he was minor and was falsely shown as major in the sale deed at the instance of the defendant no.3, the father of the defendant nos. 1 and 2, it can be said that the sale was by the Karta of the family. Even accepting for a moment the case of the plaintiff that he was minor and was falsely shown as major in the sale deed at the instance of the defendant no.3, the father of the defendant nos. 1 and 2, it can be said that the sale was by the Karta of the family. In that view of the matter, the position is that a minor member of the family on attaining majority can well avoid the sale deed either by filing the suit for getting a declaration to that effect that it is not for legal necessity and as such he is not bound by it at least so far his interest is concerned or it can be so avoided by conduct. As per the residuary article 113 of the Limitation Act, the period of filing of the suit is three years from the date of attainment of the majority in case, possession of the property has gone to the hands of the vendee. Here admittedly, the defendant nos. 1 and 2 have been in possession as per the case of the plaintiff since the year 1968. The plaintiff in this case was aged about 26 years in the year 1977, when he filed the suit. Thus it becomes crystal clear that the suit has been filed much beyond the expiry of the period of three years from the time of attainment of the majority by the plaintiff. Therefore, in my considered view, the suit as laid ought to be held to be clearly barred by limitation. This aspect appears to have lost the sight of the courts below although it ought to have been dealt and decided at the outset. In that view of the matter, on this score alone the plaintiff is to be non-suited. The appeal is accordingly held to be devoid of merit. 11. In the result, the appeal stands dismissed and the plaintiff therefore is non-suited. In the facts and circumstances, there shall however, be no order as to cost.