Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.350 of 2011 ====================================================== 1. Kanhaiya Prasad Chaudhary @ Kanhaiya Choudhary son of late Baijnath Pd. Mallah. 2. Most. Ful Kumari Kuer @ Fulwa Kuer wife of late Baijnath Choudhary @ Baijnath Mallah. 3. Ashok Prasad Choudhary @ Ashok Kumar Choudhary son of late Baijnath Prasad Mallah, all resident of village Darwan Tola Mallah Toli, P.S. Mahania District-Kaimur at Bhabua. .... .... Appellant/s Versus 1. Mohan Seth son of late Ram Prasad Seth resident of village Stuarganj Mohania P.S. Mohania, District-Kaimur at Bhabua. 2. Putar Devi wife of Shri Dinesh Prasad Singh, resident of village Ahinaura, P.O. Harnath Pur, P.S. Mohania, District-Kaimur at Bhabua. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Rajani Kant Pandey For the Respondent/s : Mr. T.N. Maitin, Sr. Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 10 09-04-2013 Heard Mr. J.K. Verma, the learned counsel appearing on behalf of the appellants. Mr. T.N. Maitin, the learned senior counsel for the respondents is also present.
Legal Reasoning
2. The plaintiffs in the suit are the appellants in this appeal against the judgment and decree of the appellate court below reversing the decree passed in favour of the plaintiffs by the trial court. 3. The factual matrix of the case would unveil that the suit was filed by the appellant no. 1 as sole plaintiff praying for setting aside the two sale deeds dated 26.11.1991 and 06.12.1991 executed by his mother Most. Ful Kumari Kuer and his brother Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 2 Ashok Pd. Choudhary in favour of Mohan Seth. Most. Ful Kumari Kuer and Ashok Pd. Choudhary were impleaded as defendant nos. 2 and 3 (defendant 2nd set) in the suit and Mohan Seth was impleaded as defendant no. 1 (defendant 1st set). Later on, by order dated 28.02.1997 the defendant 2nd set were transposed as plaintiff nos. 2 and 3 respectively in the suit. The plaintiff no. 1 claimed himself to be the Karta of the joint family consisting of himself, his mother Most Ful Kumari Kuer and his brother Ashok Pd. Choudhary. It was the case of the plaintiff no. 1 that the defendant no. 1 Mohan Seth by misrepresenting the facts got the two sale deeds in question executed in his favour by the plaintiff nos. 2 and 3. The two sale deeds in question had been assailed also on the ground that the plaintiff no. 3 was minor on the date of execution of the sale deed and further on the ground that the alienated properties were joint family properties and the plaintiff nos. 2 and 3 had no right to sell the joint family property as there was no legal necessity. The sale deeds were also assailed for want of adequate consideration. It was further the specific case of the plaintiff no. 1 that he came to know about the sale deeds in the year 1994 when he along with the plaintiff no. 2 obtained the certified copy of the sale deeds and thereafter discovered the fraud played by the defendant no. 1 on the plaintiff nos. 2 and 3. 4. In their written statement the defendant 2nd set (subsequently transposed as plaintiff nos. 2 and 3) stated that the Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 3 plaintiff no. 2 was in dire need of money and she became ready to execute Mahadnama (agreement for sale) for 5 decimal of land in favour of the defendant no. 1 but the defendant no. 1 fraudulently and by misrepresentation of facts got executed the sale deeds from her as well as the plaintiff no. 3. The joint status of the alienated properties by the sale deeds in question had also been asserted. It was further stated that the plaintiff no. 2 was ready to return back the amount of Rs. 87,000/- which she had received from the defendant no. 1 by way of consideration money before the execution of the Mahadnama. 5. The trial court after considering the pleadings and evidence of the parties, came to the finding that the plaintiff no. 3 was minor on the date of the execution of the sale deeds in question and further also came to the finding that the properties alienated by the two sale deeds were joint family properties of the plaintiffs and the consideration money was inadequate. The suit was decreed on the basis of these main findings. In appeal, the appellate court below on reappraisal of evidence, has come to the finding that the plaintiff no. 3 was not a minor on the date of the execution of the sale deeds. It has also been further found that there is no jointnes between the plaintiffs as claimed and the plaintiff no. 1 is not the karta of the joint family. The appeal has been therefore allowed and judgment and decree of the trial court has been set aside. Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 4
Legal Reasoning
6. The learned counsel for the appellants has submitted that the finding by the appellate court below that the plaintiff no. 3 Ashok Pd. Choudhary was not a minor on the date of the execution of the sale deeds in question is not based upon proper appreciation of the evidence on record. It has been urged that the trial court has correctly taken the view, on the basis of Exts. 4 and 5 that the plaintiff no. 3 was minor on the crucial date but the appellate court below has wrongly interpreted the documentary evidence on record. It has been pointed out by the learned counsel that the Ext. F which is a temporary certificate granted by Bihar Sanskrit Shiksha Board, Patna in the name of the plaintiff no. 3 has wrongly been relied upon by the appellate court below even when the necessary documents on the basis of which Ext. F had been prepared, has not been brought on record by the defendants. Criticizing the impugned judgments further it has been canvassed that there is presumption of jointness in Hindu family but the defendant no. 1 has not been able to rebut the said presumption by adducing cogent evidence and this aspect has been completely ignored by the appellate court below. It has also been argued that the trial court has given strong reasons for granting the decree in favour of the plaintiffs but the appellate court has wrongly ignored the same and allowed the appeal. 7. It is manifest from the perusal of the judgments of both the courts below that the suit was originally filed by the Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 5 plaintiff no. 1 alone assailing the two sale deed on the ground that the plaintiff no. 1 was the karta of the joint family consisting of himself and his mother and brother, who were impleaded as defendant 2nd set. The plaintiff no. 1 has challenged the sale deeds on the ground that the defendant 2nd set had no right to sell the joint family property as there was no legal necessity and further also on the grounds of minority of the defendant no. 3 and inadequacy of the consideration money. 8. It will be pertinent to take into notice that the plaintiff nos. 2 and 3 were originally defendant nos. 2 and 3 in the suit and they had filed their written statement. The averments made in the written statement by them reveal that the defendant no. 2 was in need of money and therefore she became ready to execute the Mahadnama (agreement for sale) in favour of the defendant no. 1 for sale of 5 decimal of land of plot no. 1270. It has been accepted that the defendant no. 2 had received the amount of Rs. 87,000/- from the defendant no. 1 before execution of the Mahadnama (agreement for sale) and her readiness to return the said amount has also been averred. It has however been alleged that the defendant no. 1, by misrepresenting the facts, got executed the sale deeds in question in place of Mahadnama as agreed. Even after the defendant nos. 2 and 3 later on got themselves transposed as plaintiff nos.2 and 3 in the suit the above facts stated by them in the written statement shall have to be considered Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 6 while adjudicating the issues. 9. From the facts in the pleadings, it is apparent that the execution of the two sale deeds has not been denied. The two sale deeds in question have been executed on two different dates i.e. 24.06.1991 and 06.12.1991. It is not the case of the plaintiff nos. 2 and 3 that the plaintiff no. 2 intended to execute two Mahadnamas on two dates in favour of the defendant no. 1 for sale of her properties. It is also not the case of the plaintiff no. 1 and the transposed plaintiff no. 2 and 3 that the total amount of Rs. 87,000/-, admittedly received by the plaintiff no. 2, had been received by her for two different transactions for which she had agreed to execute two different deeds of agreement for sale. The plaintiff no. 2 has failed to explain the execution of the subsequent sale deed as it is not her case that the fraud and misrepresentation had been repeated by the defendant no. 1 at the time of the execution of the second sale deed also. There is also no explanation as to why she did not approach the plaintiff no. 1 who has claimed to be the karta of the joint family before entering into the agreement for sale of land with the defendant no. 1 after receiving substantial amount by way of consideration money from him. There is also no explanation to the effect as to why the plaintiff no. 2, who is the mother of the plaintiff no. 3 and will be assumed to be aware of the minority of the plaintiff no. 3, allowed the plaintiff no. 3 to join her as executant of the deeds even when, Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 7 according to the plaintiff nos.2 and 3,the deeds were Mahadnamas. This factual scenario pronouncedly reveals that the plaintiffs have not come before the court with true facts and clean hands. 10. It would be apposite to take into notice that the plaintiff nos. 2 and 3 initially did not join the plaintiff no. 1 in filing the suit. Even after accepting the case of the plaintiff no. 2 as made out in the written statement that she intended to execute Mahadnama in favour of the defendant no. 1 in the year 1991 and had received the consideration money also, there is no statement regarding the steps taken by the plaintiff no. 2 for executing the sale deed as agreed and making any inquiry in that regard from the defendant no. 1. The acceptance of the intention to execute Mahadnama in order to raise money for meeting her needs also demolishes the case of the existence of a joint family of which the plaintiff no. 1 has claimed himself to be the karta as no member of a joint family normally enters into sale transaction with regard to joint family property in presence of the karta. The appellate court below has taken into notice the execution of sale deed jointly by the plaintiff nos. 1, 2 and 3 in favour of Putar Devi (subsequently impleaded as respondent no. 4) during the pendency of the appeal. This transaction also militates against the case of the plaintiffs that the plaintiff no. 1 is the karta of the joint family. Further, it is also evincible from the testimony of the plaintiff no. 1 examined as P.W.-6 that he has expressed no concern with the sale deeds Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 8 executed by his mother and Ashok Pd. Choudhary. As such the ration card (Ext. 3) cannot be sufficient to hold jointness between the plaintiffs. The appellate court below has considered the evidence on record and has rightly reached to the finding that the case of the plaintiffs of existence of the joint family with plaintiff no. 1 as the karta thereof is not sustainable, I do not find any perversity in this finding by the appellate court. 11. The sale deeds in question have also been assailed by the plaintiffs on the ground that the plaintiff no. 3 was a minor on the date of execution of the sale deeds which fact has been denied by the defendant no. 1. In order to establish the minority of the plaintiff no. 3, the plaintiffs have adduced Ext. 4 and 5 as documentary evidence alongwith oral evidence. Ext. 4 is the admit card of Bihar School Examination Board in which the date of birth of the plaintiff no. 3 has been mentioned as 05.01.1975. However, the appellate court below has found that the signature of the examinee is not there on the admit card and there is also cutting on the admit card but no initial of any authority is there on the cuttings. The plaintiffs have not produced the certificate of the matriculation examination for which the admit card (Ext. 4) had been issued to the plaintiff no. 3 or the admission register of the school which could have shown the correct date of birth of the plaintiff no.3. Ext. 5 is a photocopy of Tabulation Register attested by the head master of the school but the same cannot be Patna High Court SA No.350 of 2011 (10) dt.09-04-2013 9 accepted as cogent evidence for establishing the date of birth in absence of necessary corroborating evidence. On scrutiny of the oral and documentary evidence, the appellate court below has reached to the finding that the plaintiffs have failed to prove that the plaintiff no. 3 was minor on the date of execution of the sale deeds. It is well settled by now that the appellate court is a final court of fact. The finding regarding the claim of the minority of the plaintiff no. 3 has been recorded on the basis of appreciation of evidence and the same cannot be held to be perverse being based on no evidence or contrary to the material evidence on record or based on evidence on record from which the said conclusion could not have been reasonably arrived at. The submission on behalf of the appellants in this regard centers around reappreciation of evidence which is not permissible in the second appellate jurisdiction unless the finding is established to be perverse on the ground as mentioned above or in any other manner. 12. As such, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)