Patna High Court
Case Details
Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.407 of 2009 ====================================================== Khub Lal Chaudhary Versus .... .... Appellant/s Arun Kuamr Chaudhary & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Taj Narayan Singh Mr. Narendra Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 7 20-08-2013
Legal Reasoning
(1) Heard the learned counsel, Mr. Gopal Pandey appearing on behalf of the appellant under Order XLI Rule 11 C.P.C. (2) The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 21.07.2009 passed by the learned Additional District Judge, F.T.C. V, Aurangabad in Title Appeal No.63 of 2000/62 of 2005 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 14.11.2000 passed by the learned Subordinate Judge III, Aurangabad in Title Suit No.13 of 1977/16 of 1999. (3) The plaintiff-appellant filed the aforesaid suit praying for declaration that the two sale deeds dated 01.02.1977 executed by defendant no.4 in favour of defendant nos.1 and 3 are Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 2 illegal, void, inoperative and not binding on the plaintiff. The plaintiff claimed the aforesaid relief alleging that the property was purchased by defendant no.4, Raghunath Chaudhary, the father of the plaintiff by registered sale deed dated 09.07.1952, Exhibit 3/A out of the joint family fund, therefore, the property is joint family property. The plaintiff made reconstruction on the said land after he joined service in the year 1960. However, subsequently the defendant no.4 sold the property in favour of defendant no.1 and defendant no.3 by two registered sale deeds dated 01.02.1977. At the time of execution of these sale deeds, the mental and physical condition of the defendant no.4 was not fit. In other words, he was mentally incapable of understanding the affairs and also no consideration amount was paid to him, therefore, the sale deeds are void documents. (4) The defendants filed contesting written statement alleging that the defendant no.4 was mentally and physically competent to execute the sale deed. The property was self-acquired property of defendant no.4 because there was no other family property and no joint family fund was there. The sale deeds executed by him are valid, genuine and for consideration. (5) On the basis of the evidences available on record oral and documentary, the trial court recorded the finding that the Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 3 property is the self-acquired property of defendant no.4, Raghunath Chaudhary. The trial court also found that he was mentally fit and, therefore, the sale deeds dated 01.02.1977 are genuine and valid registered sale deeds. So far passing of consideration, the trial court held that the plaintiff being the stranger to the sale deed cannot be allowed to challenge the passing of consideration during the lifetime of the vendor and the vendee. Accordingly, the trial court dismissed the plaintiff’s suit. On appeal, the Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal. (6) The learned counsel for the appellant raised 3 points. Firstly, that the property was purchased in the name of the karta i.e. defendant no.4 in the year 1952 and, therefore, there is a presumption that the property was purchased out of joint family fund as such, it was a joint family property but this aspect of the matter has not been considered by both the courts below. Secondly, the learned counsel submitted that the Lower Appellate Court has not considered the mental and physical condition of the defendant no.4, Raghunath Chaudhary, therefore, the judgment is vitiated. Thirdly, the learned counsel submitted that even a third person who is stranger to the sale deed can also challenge the passing of consideration but the courts below have wrongly dismissed the plaintiff’s suit. Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 4 (7) From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has considered the evidences produced by the parties regarding the acquisition of the property. It is admitted fact that the defendant no.4 had no other property and the property was acquired by him in the year 1952, when the plaintiff himself was unemployed. He got the employment in the Postal Department in the year 1960. Considering these evidences and this aspect, the courts below concurrently found that the property is not the joint family property rather it is the self-acquired property. So far the submission of the learned counsel that there is presumption is concerned, it may be mentioned here that admittedly, the sale deeds stand in the name of defendant no.4, therefore, it was for the plaintiff to have adduced reliable evidence to show that there was joint family nucleus out of which the property could have been purchased by the karta but here, it is admitted fact that neither there was any joint family nucleus nor there was any landed property of the defendant no.4. In such circumstances, the question as to whether the property is a joint family property or self-acquired property is not a substantial question of law rather it is purely finding of fact as has been held by the Hon’ble Supreme Court in the case of Narendra Gopal Vidyarthi vs. Rajat Vidyarthi, (2009)3 Supreme Court Cases Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 5 287. (8) So far the second question raised by the learned counsel for the appellant, it may be mentioned here that from perusal of the judgment of the Lower Appellate Court, it appears that Raghunath Chaudhary had purchased 15 dhurs land and house by registered sale deed dated 06.04.1977 and even the plaintiff himself has purchased the property measuring 11 dhurs land from his father, Raghunath Chaudhary by registered sale deed dated 06.04.1977. The sale deeds in question are dated 1st of February, 1977. The question is, if he was mentally not fit for executing the sale deeds, how can it be said that he purchased the property just after two months and also the plaintiff purchased the property from his father in April, 1977. In other words, the plaintiff is not challenging this mental condition, so far the sale deed obtained by him just after two months of the sale deed executed by defendant no.4 in favour of defendant nos.1 and 3. It may be mentioned here that this aspect of the matter has been considered by the Lower Appellate Court in connection with mental condition of the defendant no.4. Therefore, I find no force in the submission of the learned counsel for the appellant. So far this finding that he was mentally fit is concerned, is also a finding of fact. (9) So far passing of consideration is concerned, it may Patna High Court SA No.407 of 2009 (7) dt.20-08-2013 6 be mentioned here that the defendant no.4 was alive on the date of institution of the suit. Admittedly, he died in the year 1982 i.e. five years after the execution of the sale deed. According to Article 58/59 of the Limitation Act, three years limitation is there to set aside the sale deed. This right was available to the defendant no.4. He was the best person to have denied the passing of consideration and for non-payment of consideration either he would have opted for cancellation of the sale deed or would have filed suit for recovery of the balance consideration amount but within the limitation period, the defendant no.4 did not take any action. From perusal of the judgment of the Lower Appellate Court, it appears that this aspect of the matter has also been considered by the Lower Appellate Court. After expiry of period of limitation, the plaintiff who is claiming title through the defendant no.4, therefore, cannot be allowed to say that consideration amount did not pass. (10) In view of the above facts and circumstances of the case, in my opinion, none of the points raised by the learned counsel for the appellant are substantial questions of law. Accordingly, no substantial question of law is involved in this Second Appeal and thus, this Second Appeal is dismissed at the admission stage itself. Saurabh/- (Mungeshwar Sahoo, J)