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Himachal Pradesh High Court · body

2018 DIGILAW 1710 (HP)

Chuni Lal Sharma v. Ashok Kumar

2018-09-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree, for declaration besides for rendition of a decree for permanent prohibitory injunction, stood dismissed by the learned trial Court. In an appeal carried there from, before the learned First Appellate Court, by the aggrieved plaintiff, the latter Court dismissed his appeal besides obviously affirmed the trial Court's judgment and decree. 2. Briefly stated the facts of the case of the plaintiff are that the suit land was owned by his father defendant No.2 Dina Nath (stands deleted vide orders of 19.4.2000 of trial court). Defendant NO.2, through Shashi Parkash, his general power of attorney sold the suit land for an ostensible consideration of Rs.37,000/-, vide sale deed of 23.3.1991 in favour of defendant No.1. The sale deed is claimed the result of mis-representation, and fraud, played on defendant No.2, who is village simpleton. The suit land is claimed to be ancestral by the plaintiff qua the defendant No.2 and that defendant No.2 had no right, title or interest to alienate the ancestral property without legal necessity. Defendant No.2 was a Brahimn, governed by agricultural custom in the matter of alienation and ancestral property could not have been alienated without legal necessity. So, the sale deed is also against the custom, result of fraud, and, mis- representation, would not affect reversionary rights of plaintiff. The defendant is liable to be prohibited to change the nature of the suit land. 3. Only defendant No.1 contested the suit, whereas, defendant No.2 was proceeded against exparte. Defendant No.1, in his written statement instituted before the learned trial Court, to the plaint, has taken preliminary objections of maintainability, cause of action, locus standi, estoppel etc. On merits, he denied the suit land to be ancestral in the hands of defendant No.2 qua the plaintiff. It was claimed that defendant No.2 validly sold the suit land, through his attorney Shashi Parkash, for, a valuable consideration. The averments on custom are also denied. 4. The plaintiff filed replication to the written statement of defendant No.1, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:- 1. Whether the sale of the suit land is invalid being result of misrepresentation and fraud as alleged? OPP. 2. 5. On the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:- 1. Whether the sale of the suit land is invalid being result of misrepresentation and fraud as alleged? OPP. 2. Whether the parties to the suit in question are governed by agriculture custom, if so, its effect? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has no cause of action against the replying defendant, as alleged? OPD 5. Whether the suit is not properly valued? OPD. 6. Whether the plaintiff is estopped by is act and conduct to file the instant suit? OPD. 6A. Whether the land in dispute is ancestral qua the plaintiff and defendant No.2 and the defendant No.2 got no right to alienate the same without legal necessity, as alleged? OPP 7. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the plaintiff's suit. In an appeal, preferred there from, by the plaintiff/appellant herein, before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 25.3.2004, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the trial Court has acted in illegal manner and committed grave procedural illegality in clubbing Issue Nos. 1, 2 and 6-A together for disposal when the findings on Issue No.1 were not dependent on findings on other issues by ignoring the ratio of the judgment laid down by this Hon'ble Court in Division Bench Judgment titled Sh. Om Parkash Vs. State of Himachal Pradesh? Has not the Lower Appellate Court also committed grave error of law in ignoring the pronouncements of this Hon'ble Court and upholding the judgment and decree of the trial Court without considering this aspect of the matter? 2. Om Parkash Vs. State of Himachal Pradesh? Has not the Lower Appellate Court also committed grave error of law in ignoring the pronouncements of this Hon'ble Court and upholding the judgment and decree of the trial Court without considering this aspect of the matter? 2. Whether both the courts below have rendered illegal, erroneous and perverse finding by holding that the Plaintiff- Appellant failed to plead and prove the custom, by ignoring the settled principles of law, when such custom finds mention in the Compilation of the Customary Law especially of L. Middleton and Sir W.H. Rattigan? Are not the findings of both the courts below illegal and perverse in holding that the plaintiff ought to have proved the custom by proving the instances of custom? 3. Whether both the courts below have misinterpreted and misread the documentary evidence specially Exhibits P-2 to P-14, which prove the fact that defendant No.2 held the property by way of inheritance for more than 3 generations? Are not the findings of both the courts below holding the property to be non-ancestral illegal, erroneous and perverse? 4. Whether the trial Court has further taken erroneous and perverse view of law by misapplying the provisions of Sections 4 and 30 of the Hindu Succession Act by holding that custom pleaded by the plaintiff assailing the sale as contrary to law stood superseded by wrongly applying the ratio of the judgment of this Hon'ble Court reported in 1992(1) SLC 402? Has not the Lower Appellate Court committed grave error of law in not considering this legal aspect upholding the findings of the trial Court by applying principles of Hindu Law, which were not applicable to the present case? Substantial question of Law No.1: 8. Before proceeding to mete, an, answer to the other substantial question of law, this Court, would mete an answer to substantial question of law No.1, given recording, of, an affirmative decision thereon, may render redundant, the, meteing of answers, to, the other substantial questions of law. 9. Substantial question of Law No.1: 8. Before proceeding to mete, an, answer to the other substantial question of law, this Court, would mete an answer to substantial question of law No.1, given recording, of, an affirmative decision thereon, may render redundant, the, meteing of answers, to, the other substantial questions of law. 9. The plaintiff reared a contention, in the plaint that (i) the apt sale deed borne in Ex.P1, being a sequel of fraud and misrepresentation, (a) given defendant No.2, not at the relevant time, being in, a, sound disposing state of mind, (b) its execution being without consideration, (c) and, it being executed without any legal necessity, (d) and one Shashi Prakash, the purported GPA of defendant No.2, not being, the, validly constituted power of attorney, for executing with defendant No.1, Ashok Kumar, the, registered deed of conveyance, borne in Ex.P1, (e) thereupon, the apposite sale deed being stained, with, a vice of pervasive fraud and mis-representation. Even though, the learned trial Court, rendered disaffirmative findings, upon, the issue appertaining tot he aforesaid pleadings, and, the findings rendered thereon, also, stood affirmed by the learned first appellate Court. Nonetheless, the learned counsel appearing, for the aggrieved plaintiff/appellant herein, has contended (f) that, the, clubbing of issues No.1, 2 and 6A, rather comprising an apparent legal misdemeanour, on the part of both the learned courts below, (g) given, there being no interconnectivity inter se issue No.1, with, the subsequent thereto purportedly connected issues, thereupon, the returning, of, common findings, upon, each, hence rather being not renderable. Even if, the aforesaid contention is accepted, yet it would hold the most tenacious solemnity, (h) upon, the learned trial Court visibly, not, alluding to the evidence apposite thereto, and, nor its proceeding to assign any reason, for accepting or discarding the apt evidence adduced thereon, by the contesting litigants. Contrarily, a reading of the findings rendered, upon, issues Nos. 1, 2 and 6A, unfolds, that in paragraphs No.10, 11 and 12, the learned trial Court meteing reasons, vis-a-vis, the apt issue No.1. The effect thereof is qua despite lack, of, interconnectivity and inter dependence inter se issue No.1, with, the subsequent thereto purportedly connected issues, rather not befittingly equipping the learned counsel, for, the appellant, to, on the facet aforesaid hence square any clinching submission, that, thereupon, the impugned verdicts being reversable. 10. The effect thereof is qua despite lack, of, interconnectivity and inter dependence inter se issue No.1, with, the subsequent thereto purportedly connected issues, rather not befittingly equipping the learned counsel, for, the appellant, to, on the facet aforesaid hence square any clinching submission, that, thereupon, the impugned verdicts being reversable. 10. Be that as it may, yet this Court is empowered to adjudge, the, merit-worthiness of the reasons, assigned by the learned trial Judge, upon, issue No.1, (a) on anvil of his discarding, the, apt germane evidence thereto, (b) and, on anvil of his mis-appraising the evidence existing on record. Bearing in mind, the aforesaid para meters, initially this Court would allude to the reasons, assigned by the learned trial Court, for, concluding that the sale deed borne in Ex.P-1, rather embodying truthful recitals, qua, even if assumingly,(i) the suit property is ancestral coparcenary property, it, rather being alienated by defendant No.2, through, his general power of attorney, for evident legal necessity, (ii) also it is incumbent upon this Court, to determine whether the averment borne in the plaint qua the general power of attorney, not, being ably equipped to execute Ex.P-1, vis-a-vis, the suit property with defendant No.1, given his being unknown to defendant No.2, also hence, standing cogently proven. However, upon, this Court, on an incisive traversing of the evidence on record, makes unearthings, (iii) there from, qua the afore averment standing cogently proven, thereupon, it may be wholly unnecessary for this Court to proceed to either delve into or pronounce findings, vis-a-vis, the suit property, being, imbued with the traits, and, characteristics, of it, being construable to be ancestral coparcenary property, (iv) nor it would be imperative for this Court to determine the veracity, of, recitals borne in Ex.P-1, vis-a-vis, the apposite alienations, rather being made for legal necessity, (v) given hence, the factum, of, even, of, assumingly, the, suit property carries traits, characteristics, and, antecedents, if, ancestral coparcenary property, thereupon, the effects thereof being rather subsumed, upon, Ex.P-1 rather acquiring, a, vice of invalidity. 11. 11. The learned trial Court, merely on anvil of defendant No.2, being proceeded against ex-parte, and, his not instituting, a, written statement to the plaint, hence recorded a conclusion (i) qua the averments borne in the plaint, with respect to the execution of sale deed, being, a, result of fraud, and, mis-representation, and, also the averment carried therein, qua one Shashi Prakash not holding any valid general power of attorney to execute Ex.P-1 with defendant No.1, rather per se standing falsified, (ii)especially when he constituted the best person to mete succor, to, the afore averments borne in the plaint, (iii) reiteratedly qua thereupon, hence disaffirmative findings being enjoined to be rendered upon issue No.1, appertaining to the sale deed, being, a, sequel of fraud and misrepresentation. However, for the reasons assigned hereinafter, the aforesaid conclusion(s), are, harboured, upon, a gross misreading, of, the evidence, besides are not grooved, in, apt appreciation, of, the evidence germane, to, apposite issue No.1, given (a) even if defendant No.2 was proceeded against exparte, yet it was incumbent upon defendant No.1 to prove (b) qua the purported GPA, as constituted, for the relevant purpose, by defendant No.2, rather in contemporaneity, vis-a-vis, the execution of Ex.P-1, also provenly holding the apt authorisation; (c) besides defendant No.1, was, also enjoined to make bespeaking qua his transferring, the, sale consideration to defendant No.2, through, one Shashi Prakash; (d) the imperativeness, of, adduction, of, evidence in respect, to, the aforesaid facets, by co-defendant No.1, arose from, his being, a, vendee in Ex.P-1, (e) and, obviously, for, his hence befittingly ripping apart the averments, borne in the plaint, qua the purported GPA, of co-defendant No.2, not, holding the apt authorization, dehors co-defendant No.2 being proceeded against ex-parte, nor hence his instituting any written statement to the plaint. A reading of the testification of DW-1, underscores, qua his rather during the course of his examination-in-chief, not, making trite unfoldings therein (a) that at the time contemporaneous to the execution of Ex.P1 with the purported GPA of co-defendant No.2, his perusing the purported authorization, (b) nor he makes any bespeaking therein qua only after his ascertaining authenticity thereof, from defendant No.2, his, proceeding to execute Ex.P-1, with, the purported GPA, of co-defendant No.2. Furthermore, in his examination-in-chief, he makes disclosures qua his transferring a sum of Rs.37,000/- through cheque, to, the purported GPA of defendant No.2. Furthermore, in his examination-in-chief, he makes disclosures qua his transferring a sum of Rs.37,000/- through cheque, to, the purported GPA of defendant No.2. However, he has neither placed on record, a, copy of the apt cheque nor he has placed on record, the, statements of accounts, as, maintained with his bank, (c) besides he omitted to make any testification qua his ascertaining whether the amount borne, in, the cheque hence being encashed by co-defendant No.2. The effect of the aforesaid omissions, is, (d) that the sale deed borne in Ex.P-1, being inferable to be made without any transfer, of, any consideration, to, defendant No.2, even through his GPA, further concomitant effect thereof, is, qua the purported legal necessity in the making, of, the alienation, rather remaining unproven, (e) nor the purported GPA holding the apt authorization, especially when defendant No.1, did not. elicit from the records maintained with the Registrar, of, Documents, a certified copy thereof, nor he cited the purported GPA, as a witness, for his hence stepping into the witness box, to, render a testification, qua defendant No.2, hence, volitionally executing, the apt GPA, in his favour, for the relevant purpose. The further effect of the aforesaid omission, is, that the conclusion rested by the learned trial Court, vis-a-vis, non furnishing of written statement by defendant No.2 to the plaint, per se, tantamounting qua the afore averments, cast in the plaint, rather being not proven, hence, obviously suffering, from, a gross misappraisal or non appraisal, of, the afore referred germane evidence, appertaining to issue No.1. Consequently, substantial question of law No.1, is, answered in favour of the appellant, and, against the respondent. Substantial question of Law No.2, 3 and 4 12. In view, of, an affirmative answer being meted by this Court, to, substantial question of law No.1, hence, the meteing, of, any answer, vis-a-vis, other substantial questions of law, may be rendered redundant. Consequently, substantial question of law No.1, is, answered in favour of the appellant, and, against the respondent. Substantial question of Law No.2, 3 and 4 12. In view, of, an affirmative answer being meted by this Court, to, substantial question of law No.1, hence, the meteing, of, any answer, vis-a-vis, other substantial questions of law, may be rendered redundant. Nonetheless, this Court in the larger interest of justice, (I) upon, a, perusal of pedegree table, borne in Ex.P-1, where under defendant No.2, is, shown to derive his lineage, from his immediately two preceding ancestors, namely, Lahanu (his father) and Bhagirath (his grand father), (ii) and with Ex.P4, P-5, P-6, P-7, P-11, P-13 also making candid underscorings qua the suit property rather standing transmitted into the hands of defendant No.2, from his prior thereto direct two predecessors-in-interest, (i) is hence thereupon, constrained to conclude, qua the suit property hence acquiring, the, traits and characteristics, of, ancestral coparcenary property, (ii) whereupon, this Court, concludes that the recitals borne in Ex.P-1, qua the suit property being sold for legal necessity, were enjoined to cogently proven, whereas, given the afore assigned reasons, the recital qua therewith rather being concluded, to, stand ingrained with a vice of falsity, thereupon, it is inevitable to conclude that the even if, assumingly Ex.P-1 was executed by the purported GPA of defendant No.2, (iii) rather hence when defendant No.2 was, for afore assigned reasons, unless for proven legal necessity, proof qua wherewith has not emerged, hence, encumbered, with, a disability to alienate, it, through any deed of alienation, thereupon, upon, the, afore score Ex.P-1, is, rendered construable to be vitiated or legally flawed. 13. The learned counsel appearing for the appellant has also contended with much vigour qua since the plaintiff, and, defendant No.2, are, Brahmin(s) by caste, and, they are governed by agriculture custom, in the matter, of, alienation, hence, the ancestral property, being unamenable for alienation, unless, for proven legal necessity, and, he further contends that, if, a custom has been repeatedly recognised, by Courts, it becomes law of the land, and, Courts can take judicial notice, qua it without formal proof. In support of the aforesaid submission, he places reliance, upon, a judgment of this Court rendered in a case titled as Ratesh Kumar v. Basudev Singh Pathania, reported in 1994 (Suppl.) Sim. L. C. 422, the relevant paragraph No. 9 whereof stands extracted hereinafter:- “9. In support of the aforesaid submission, he places reliance, upon, a judgment of this Court rendered in a case titled as Ratesh Kumar v. Basudev Singh Pathania, reported in 1994 (Suppl.) Sim. L. C. 422, the relevant paragraph No. 9 whereof stands extracted hereinafter:- “9. It is correct that ordinary rule is that all customs, general or otherwise have to be proved as envisaged under Section 57 of the Evidence Act. But if a custom has been repeatedly recognized by Courts, it becomes law of the land and Court can take judicial notice of it without formal proof. (Please see Sri Rao Venkata Mahipati Gangadara Rama Rao Bahadur v. Raja of Pittapur, AIR 1918 PC 81 and Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041 ). Applying this principle, the court can take judicial notice that Brahmins of district Kangra are governed by agricultural custom as held in Mr. Chinto and others v. Thebu and others, AIR 1934 Lah 985 and Tara Mani and others v. Mt. Kishen Devi, AIR 1940 Lah 33.” Consequently, in consonance therewith, any insistence made by the learned first Appellate Court, upon, plaintiff to prove the apt custom, propounded, in the Compilation of Customary Law of L. Middleton, and, in the Digest complied by Sir W.H. Rattigan, to adduce, proof qua therewith, and, in consonance with Section 57 of the Indian Evidence Act, was grossly improper, (a) rather it was incumbent upon the learned First Appellate Court, to mete credence to the afore custom borne in the afore compilation, (b) emphatically when it is uncontroverted qua the plaintiff, and, defendant No.2 being Brahamins by caste, and, theirs residing in District Kangra, whereat the apt customary laws, borne in the afore compilations, is, judicially pronounced, to be, squarely applicable. 14. Be that as it may, the learned counsel appearing for the respondent, has contended with much vigour, while placing reliance, upon, a judgment of this Court, rendered in a cast titled as Kartari Devi and others vs. Tota Ram, reported in 1992(1) Sim. L. C. 402, to, in consonance therewith espouse (i) that the afore custom being contrary to law, hence, it holding no clout or sway, vis-a-vis, the suit property nor defendant No.2 being disempowered, to, even with respect to the ancestral coparcenary property, to, make any alienation, in respect thereof. L. C. 402, to, in consonance therewith espouse (i) that the afore custom being contrary to law, hence, it holding no clout or sway, vis-a-vis, the suit property nor defendant No.2 being disempowered, to, even with respect to the ancestral coparcenary property, to, make any alienation, in respect thereof. However, the aforesaid submission is grossly misplaced (ii) as, in the judgment aforesaid, this Court was dealing, with the provisions borne in Section 4 of the Hindu Succession Act, provisions whereof stand extracted hereinafter:- “4. Over-riding effect of Act.—(1) Save as otherwise expressly provided in this Act,— (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” (iii) wherein unless provided to the contrary, the play of any text rule or interpretation of Hindu Law or custom or usage, is, subsumed, by the trite thereto applicable statutory provisions, and, on making an interpretation thereof, this Court had proceeded to allude, vis-a-vis, Section 30, of the Hindu Succession Act, provisions whereof stand extracted hereinafter:- “30 Testamentary succession. — Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so 7 [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. — Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so 7 [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.” (iv) provisions whereof appertain, to, the empowerment of a male Hindu, to make a testamentary disposition, of his property, and, the explanation existing there underneath also bestows the apt empowerment, in, a male Hindu, to, even with respect to his share, in, the Mitakshara coparcenary property, hence make a testamentary disposition, dehors any custom to the contrary. 15. The afore mentioned factual matrix, does, obviously underscore (i) qua it appertaining to empowerment, of, a male Hindu, to make, a, testamentary disposition, dehors custom or usage to the contrary, and, it being also permissible, to, the apposite executant, to, there under, hence, alienate, his, apt interest or share in the Mitakshara coparcenary property, (ii) and, obviously in Kartari Devi's case (supra), an interpretation stood meted, vis-a-vis, the statutory provisions, appertaining, to, an empowerment or ability of a male Hindu, to, make a bequest, even with respect to his interest/share, in the Mitakshara coparcenary property, dehors custom or usage making any contrary therewith preception, (iii) yet here at the factual matrix is squarely distinct there from, given the extant lis rather appertaining to the validity, of an alienation, made through a sale. Consequently, the judgment rendered in Ratesh Kumar's case (supra), reported in 1994 (Suppl.) Sim. Consequently, the judgment rendered in Ratesh Kumar's case (supra), reported in 1994 (Suppl.) Sim. L. C. 422, paragraph No.9 whereof stands extracted hereinabove, rather vindicating, the applicability of the Kangra agricultural custom, as appertaining to Brahamins, and, with the factual matrix borne therein, pin pointedly, holding analogity, vis-a-vis, the factual matrix prevailing here at, (iv) given alike therein, the extant alienation occurring through a sale, and, also comprising, the, apt res controversia, (v) thereupon, the mandate thereof, is squarely applicable here at, rather than the mandate borne in Kartari Devi's case supra reported in 1992 (1) Sim. L. C. 402. Furthermore, in consonance with the mandate, borne in Ratesh Kumar's case (supra), the apt validating ingredients, vis-a-vis, the sale made through Ex.P-1 to defendant No.1, is rather comprised, in, evident proof, of it, being for legally necessity, and, when for all reasons aforestated, it stands concluded, that, proof in respect thereof being grossly amiss here at, also hence invalidates Ex.P-1. 16. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court being not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have excluded germane and apposite material from consideration. Substantial questions of law No.2 to 4 are answered in favour of the appellant and against the respondent. 17. In view of above discussion, the instant appeal is allowed. Consequently, the impugned judgments and decrees rendered by both the learned Courts below are set aside. In sequel, the plaintiff's suit is decreed and the sale deed of 23.3.1991 in respect of the suit land as referred in the heading of the plaint is declared to be invalid, incompetent, against agricultural custom, and, the result of misrepresentation and fraud, without consideration and without legal necessity. Furthermore, defendant No.1 is restrained from changing the nature of the suit land comprising Khata No.173 min, Khatauni No.496 min, Khasra No.1334, measuring 0-08-29 hectares, situated at Mohal Rodi, Mauza Khalet, Tehsil Palamp[ur, District Kangra, H.P. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.