). =========================================================== Kamal Yadav v. Gita Devi & Ors
Case Details
Patna High Court SA No.552 of 1993 dt.27-06-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.552 of 1993 (Against the judgment and decree dated 17.07.1993 passed by 5th Additional District Judge, Purnea in Title Appeal No.01 of 1986/T.R.2 of 1993 affirming the judgment and decree dated 11.10.1985 passed by 1st Additional Subordinate Judge, Purnea in Title Suit No.38 of 1979). =========================================================== Kamal Yadav .... .... Plaintiff-Appellant-Appellant Versus Gita Devi & Ors .... .... Defendants-Respondents-Respondents =========================================================== Appearance : For the Appellant/s : Mr. SUSHANTA KUMAR DAS Mr. Jitendra Kumar For the Respondent/s : Mr. ASHOK KUMAR SINHA Mr. Shyam Sunder Pandey =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT Date: 27-06-2013 Mungeshwar Sahoo, J. 1. This Second Appeal has been filed by the plaintiff- appellant-appellant against the judgment and decree dated 17.07.1993 passed by the learned 5th Additional District Judge, Purnea in Title Appeal No.1 of 1986/T.R.2 of 1993 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 11.10.1985 passed by the learned 1st Additional Subordinate Judge, Purnea in Title Suit No.38 of 1979. 2.
Legal Reasoning
The plaintiff-appellant filed the aforesaid suit for declaration that the sale deeds executed by defendant no.5, Shivanand Patna High Court SA No.552 of 1993 dt.27-06-2013 2 Yadav in favour of defendant nos.1 to 3 dated 10.02.1978 are not binding on the plaintiff. The plaintiff further prayed for declaration that the defendant no.4, Tetri Devi has got no right to cancel the sale deeds executed by her in favour of the plaintiff on 03.03.1978. 3. The plaintiff claimed the aforesaid relief alleging that the suit property originally belonged to Banwari Yadav which was his khas property. On his death, the daughter, Tetri Devi and two sons namely Shivanand Yadav and Bindeshwari Yadav inherited the same in equal share. Tetri Devi sold her 1/3rd share by registered sale deed dated 03.03.1978 in favour of the plaintiff. The plaintiff came in possession thereof but illegally and unilaterally, Tetri Devi cancelled the sale deed in favour of the plaintiff. The defendant no.5 on the basis of compromise decree, which was collusive, passed in Partition Suit No.80 of 1975, sold the portion of suit property in favour of the defendant nos.2 and 3 by registered sale deed dated 10.02.1978 and gifted a portion of property to defendant no.1 by gift deed dated 10.02.1978. According to the plaintiff, the plaintiff has acquired title on the basis of the sale deed by Tetri Devi. 4. According to the defendants-respondents, the suit property was not the khas property of Banwari Yadav rather it was the ancestral property of the said deceased, Banwari Yadav. Banwari Yadav died in the year 1962 and on his death, a partition suit was filed Patna High Court SA No.552 of 1993 dt.27-06-2013 3 being Partition Suit No.80 of 1975 wherein both the sons of Banwari Yadav compromised and the land of Banwari Yadav which was partitioned because Tetri Devi had relinquished her share in favour of the brothers. After compromise, the defendant no.5 came in possession of the property allotted to him in the compromise decree and subsequently, he gifted and sold his properties in favour of the defendant nos.1 to 3. The defendant nos.1 to 3 further alleged that in the year 1981, defendant no.5 died but no substitution application was filed for substitution of his legal representatives. Tetri Devi had no right to execute the sale deed and moreover, she cancelled the same. 5. After trial, the trial court at paragraph 19 recorded the finding after considering Exhibit I and I/1 that the defendants have rightly stated that the suit plots were the ancestral property of Banwari Yadav. The trial court also recorded that on the death of Banwari Yadav, Tetri will inherit 1/9th share and not 1/3rd share but she has sold more than her 1/3rd share. Therefore, the plaintiff who has purchased the same from Tetri Devi did not acquire title on the whole suit property. The trial court further held that because of non- substitution of the legal representatives of the deceased defendant no.5, the suit as a whole abated and accordingly, on these findings, the trial court dismissed the plaintiff’s suit. 6. The plaintiff filed title appeal before the Lower Patna High Court SA No.552 of 1993 dt.27-06-2013 4 Appellate Court. The Lower Appellate Court also recorded the finding that the suit property was the ancestral property of Banwari Yadav and, therefore, held that on the death of Banwari Yadav, Tetri Devi will inherit 1/9th share and not 1/3rd share. But she sold 1/3rd share which she had no right and accordingly, the Appellate Court at paragraph 18 held that the appellant cannot derive title more than that of his vendor. The Lower Appellate Court also held that for non- substitution of the legal representatives of the defendant no.5, the suit has abated as a whole and accordingly, dismissed the appeal. 7. On 27.07.1998, when this Second Appeal was admitted for hearing, the following three substantial questions of law were formulated: I. Whether the courts below erred in holding that the whole suit abated for non-substitution of the heirs of deceased defendant no.5? II. Whether the sale deeds Exts.2 and 2/A executed by the defendant no.4 in favour of the plaintiff were void? III. Whether the transfer deeds executed by the defendant no.5 in favour of defendants 1 to 3 were binding on the plaintiff? Substantial question no.I: 8.
Legal Reasoning
The learned counsel, Mr. Das submitted that the defendant no.5 had already parted with his interest by executing the Patna High Court SA No.552 of 1993 dt.27-06-2013 5 gift deeds as well as the sale deeds in favour of defendant nos.1 to 3, therefore, he had no right, title and interest in the subject matter of the suit. Further, he did not appear in the suit nor filed written statement. Further, his interest was sufficiently represented by the defendant nos.1 to 3. Moreover, the defendant nos.1 to 3 are the legal representatives of the deceased defendant no.5 who were already on record. According to the learned counsel, it is not necessary that the legal representatives should be the heirs of the deceased. According to the definition of the term “legal representatives” as defined in Section 2 Sub Section 11 C.P.C. means a person who in law represents the estate of a deceased person, and included any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. 9. The learned counsel for the respondents submitted that prior to appearance, the defendant no.5 died, therefore, the plaintiff should have substituted the legal representatives. 10. Admittedly, the plaintiff’s case is also that defendant no.5 gifted the portion of property to defendant no.1 and sold portion of property to defendant nos.2 and 3 by registered documents. The defendants-respondent nos.1 to 3 are not disputing this fact. Therefore, they are the legal representatives within the Patna High Court SA No.552 of 1993 dt.27-06-2013 6 meaning of the term as defined under Section 2 Sub Section 11 of the C.P.C. In such circumstances, when the contesting defendants were the legal representatives who were already on record, the courts below could not have held that the suit abated as a whole without considering the legal provision i.e. the definition of legal representatives. The estate of the deceased defendant no.5 was and is being sufficiently represented by the contesting defendants. Moreover, after parting his interest, the defendant no.5 had no right, title or interest. In my opinion, therefore, the courts below have wrongly recorded the finding that the whole suit is abated because of non-substitution which is contrary to the settled principles of law. Accordingly, this substantial question of law is answered in favour of the appellant. Substantial question no.II: 11. The learned counsel, Mr. Das in support of this substantial question of law submitted that Tetri Devi was the daughter of Banwari Yadav and it is admitted fact and the defendants have purchased the property from Tetri Devi by Exhibit 2 and 2/A in the year 1978. When Tetri Devi was rightful owner, there is no question of recording a finding that the sale deed was void and, therefore, the suit filed by the plaintiff is not maintainable. According to the learned counsel, the reasons assigned by the courts below to the effect that on Patna High Court SA No.552 of 1993 dt.27-06-2013 7 the death of Banwari Yadav, Tetri Devi inherited only 1/9th share is wrong because she in fact, inherited 1/3rd share. 12. On the other hand, the learned counsel appearing on behalf of the respondents submitted that this is not a substantial question of law. The plaintiff has prayed for declaration of the sale deed and gift deed in favour of the defendant are not binding on the plaintiff. Therefore, it was for the plaintiff to have proved that how Tetri Devi inherited 1/3rd share. 13. It is admitted fact that Banwari Yadav died leaving behind one daughter, Tetri Devi and two sons i.e. defendant nos.5 and 6. Defendant no.5 as stated above died in the year 1981. Defendant no.6 neither appeared nor filed written statement nor contested the suit. According to the plaintiff himself, there was a compromise decree passed in Title Suit No.80 of 1975 which was between two brothers i.e. defendant nos.5 and 6. A compromise decree was passed which is Exhibit 5. The learned counsel for the appellant submitted that since Tetri Devi was not party to this suit, the compromise decree will not be binding on the vendor of the plaintiff i.e. Tetri Devi and the interest of Tetri Devi could not have been divided by the two brothers only on mere statement that she had relinquished her share. 14. It may be mentioned here that this decree, Exhibit 5 dated 13.10.1977 was passed much prior to the execution of the sale Patna High Court SA No.552 of 1993 dt.27-06-2013 8 deed by Tetri Devi in favour of the plaintiff. Admittedly, this compromise decree was not challenged by either Tetri Devi or by the purchaser plaintiff even after the execution of the sale deed by Tetri Devi in favour of the plaintiff. 15. In the case of Md. Noorul Hoda vs. Bibi Raifunnisa and others, (1996) 7 Supreme Court Cases 767, the Hon’ble Supreme Court has held that “when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. 16. In view of this settled proposition of law although, the plaintiff or the vendor of the plaintiff was not party to the said title suit No.80 of 1975, the vendor of the plaintiff or the defendant should have approached appropriate forum as provided under Section 31 of Patna High Court SA No.552 of 1993 dt.27-06-2013 9 the Specific Relief Act for adjudging the compromise decree as void or voidable. Admittedly, the same has not been done. It is not their case that Tetri had no knowledge or they have no knowledge. 17. In the case of Sultan Sadik v. Sanjay Raj Subba and others, AIR 2004 Supreme Court 1377, (2006) 7 Supreme Court Cases 470(M. Meenakshi vs. Metadin Agrawal), the Hon’ble Supreme Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court. The void order is necessarily not non est. An order cannot be declared to be void in collateral proceedings. Admittedly, in this suit filed by the plaintiff, there is no prayer for adjudging the compromise decree as void or voidable. 18. In view of the above facts, the question is as to whether without avoiding the decree passed by the competent court of jurisdiction in Title Suit No.80 of 1975 can be held to be void or voidable. Admittedly, it is not the case of the plaintiff that his vendor had no knowledge. It is the case that she was not made party. On the contrary, according to the defendants and the compromise decree, Exhibit 5, she relinquished her share. Therefore, she was the best person to have challenged the compromise decree but as stated above, there was no challenge. Now, therefore, there was a family settlement between the sons and daughters of Banwari Yadav vide this Patna High Court SA No.552 of 1993 dt.27-06-2013 10 compromise decree which was never challenged. 19. In the case of Kale and others v. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807, the Hon’ble Supreme Court has held that the object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. The Hon’ble Supreme Court opined that the family is to be understood in a wider sense so as to include within its fold not only close relations or legal lins but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and litigation are avoided. The Hon’ble Supreme Court further held that the family settlement must be a bonafide one so as to resolve family dispute and rival claims by a fair and equitable division or allotment of properties. 20. Here, admittedly, the plaintiff never challenged the compromise decree alleging that the settlement i.e. the contract between two brothers is not bonafide or that the division was not fair and equitable division and, therefore, it should be set aside. 21. In view of my above discussion, I find that till the compromise decree, Exhibit 5 stands in the way of the plaintiff, it Patna High Court SA No.552 of 1993 dt.27-06-2013 11 cannot be said that Tetri Devi had right, title and interest in the property which she had already relinquished in favour of the brothers and thereafter there was partition between two brothers. This fact alleged by the two brothers is never controverted by the vendor of the plaintiff and on that ground, the compromise decree was never challenged and still it is not challenged. Therefore, whether there was registered sale deed executed by Tetri Devi, Exhibit 2 or 2/A, the sale deeds cannot be termed as valid and legal sale deed. 22. The other aspect of the matter is that both the courts below recorded the finding that the property was the ancestral property of Banwari Yadav. Therefore, on the death of Banwari Yadav, the share of Banwari Yadav will be divided into three parts because the daughter, Tetri Devi will inherit the share from the father. When the property was ancestral property, the two sons had acquired right by their birth because they were the coparcener. The father had got 1/3rd and the two sons got 1/3rd each. On the death of father, his 1/3rd share will be divided equally between daughter and two sons. Therefore, both the courts below had rightly held that Tetri would have acquired only 1/9th and not 1/3rd share. 23. The present suit has been filed by the plaintiff for declaration of title over 4 acres and odd land i.e. 1/3rd share. Therefore, in my opinion, both the courts below have rightly held that Patna High Court SA No.552 of 1993 dt.27-06-2013 12 since Tetri had only 1/9th share, the plaintiff had not acquired title over 1/3rd share. Therefore, the suit was not maintainable for declaration of title over 1/3rd share. In view of my above discussion, substantial question no.II is answered against the appellant and in favour of the respondent. Substantial question no.III: 24. So far this question is concerned, it is consequential to the result of substantial question no.II. As discussed above, the compromise decree was never challenged. Therefore, on the basis of compromise, the suit property fell in the share of Shivanand Yadav i.e. defendant no.5. In the above paragraphs, it has been found that the sale deed executed by Tetri Devi will not confer title on the plaintiff because of the fact that still the compromise decree is in the way, therefore, she has no locus standi to challenge the transfer made by defendant no.5 in favour of defendant nos.1 to 3. Moreover, the defendant no.5 has got title through the compromise decree passed in Title Suit No.80 of 1975, Exhibit 5. Unless the same is set aside it will be binding on the plaintiff. Therefore, this substantial question of law is also answered against the appellant and in favour of the respondent. 25. Now, therefore, even if it is held that the suit had not abated but in view of the finding in the substantial question nos.II Patna High Court SA No.552 of 1993 dt.27-06-2013 13 and III which have been decided against the plaintiff, in my opinion, the plaintiff’s suit cannot be decreed. 26.
Decision
In the result, this Second Appeal is dismissed. Saurabh/- (Mungeshwar Sahoo, J)