Chain Singh vs Ramchand and Others

The Defendant has come up in second appeal aggrieved by the judgments and decrees of the Courts below directing a suit for declaration of title and issuance of permanent preventive injunction filed by the Plaintiff/Respondents No. 1 to 4 to be decreed against him.

Late Jagannath Khati was a party to the proceedings impleaded as Defendant No, 2 before the trial Court. During the pendency of the appeal before the lower appellate Court he expired. His legal representatives are none else than the four Plaintiff/Respondents and hence on his death his name has been deleted from record before the lower appellate Court.

The four Plaintiff/Respondents No. 1 to 4 are the sons of late Jagannath The suit property consists of certain pieces of agricultural land and right to take water from a well. In the revenue papers, it was late Jagannath who was recorded as Bhumiswami. The sale-deed recites receipt of consideration and delivery of possession to the purchaser Chainsingh, the Defendant No. 1 and the Appellant before this Court.

The Plaintiff/Respondents filed a suit for declaration of title and issuance of permanent preventive in junction alleging that the suit property was a coparcenary property of the Plaintiffs and their father Jagannath, the Defendant No. 2 Jagannath could not have alienated the property except for legal necessity and/or benefit of estate. The sale-deed dated 24-6-1971 was also alleged to be not a genuine one inasmuch is neither (be recited consideration was paid to vendor nor possession was delivered to the purchaser. It was further alleged that the Defendant/Appellant bad attempted at dispossesing the Plaintiff/Respondents. Hence, the suit.

As could be expected, Jagannath the Defendant No 1, admitted the claim filed by the Plaintiffs. The purchaser contested the suit denying all the material plaint-averments and further alleging that Jagannath was entitled to alienate the land in the manner in which he did. The sale was alleged to be genuine whereunder the recited consideration was paid and possession was delivered to the purchaser. It was further alleged that the Plaintiff/Respondents having obtained an interim injunction from the Courts, had dispossessed the Defendant/Appellant during the pendency of the suit by taking shelter behind the interim injunction.

As already noticed, the Courts below have decreed the suit holding that the suit property was a co-parcenary property incapable of being alienated by late Jagannath alone beyond his own interest. The sale has been held to be genuine though the possession there under was not found to be delivered to the purchaser. In short the Courts below have held that the sale would have the effect of transferring the title of Jagannath alone to the purchaser but not the right, title and interest of the Plaintiffs claimed by them by virtue of the suit property being a coparcenary property.

Vide order dated 31-8-1978, this appeal was admitted for hearing parties on several substantial questions of law. However, during the course of hearing, this Court has formed an opinion that it would suffice for the disposal of the appeal if questions No. 3 and 6 alone are answered. These two questions are as under;

(3) Whether Jagannath alone was the Bhumiswami of the suit lands according to the M. P. Land Revenue Code and he was fully competent to sell the suit lands to the Appellant even in the absence of legal necessity or other justifying cause as is required to support an alienation of joint family property by a Hindu father ?

(6) Whether in the facts and circumstances of this case, it is erroneously held that the sale-deed executed by Jagannath in favour of the Appellant was only a paper transaction was delivered under it to the Appellant ?

The execution and registration of the sale-deed is not disputed, The Courts below have held that late Jagannath received the consideration of Rs. 1200/-and sold the land. The sale-deed recites delivery of possession by Jagannath to the purchaser. The Plaintiffs are all sons of Jagannath. It is not the case of the Plaintiffs that they were residing separately from late Jagannath or that they were residing separately from late Jagannath or that they were cultivating the land independently in their own rights and separately from Jagannath.

The Courts below have held that the Defendant/Appellant did not examine any witnesses in whose presence possession might have been delivered by late Jagannath to him and because he admitted on the date of his statement recorded by the trial Court that he was not in possession, it should also be held that the sale was a paper transaction merely not accompanied by delivery of possession. In the opinion of this Court, such an approach adopted by the Courts, below is wholly unsustainable in law.

The sale has been held to be genuine. It contains a recital as to delivery of possession. It has consistently been the view of this Court that a recital as to the delivery of possession contained is a deed of sale binds the maker thereof unless explained away satisfactorily (see Kalibai v. Ayodhya Singh 1984 MPWN 197. Koushalbai v. Nathutal 1978 (1) MPWN 12, Jagannath Singh v. Shivnarayan 1978 (2) MPWN 185, The recitals would bind also the persons claiming under the maker of the recital The Plaintiffs being the sons of the executant of the sale-deed containing the recitals of otherwsie also being the junior members of the joint family headed by the father (on their own showing), would be bound by the recitals. It was for the Plaintiffs to have adduced evidence to dislodge the effect of the declaration made in the registered deed of sale which having not been done there is no reason why the statement of the Defendant/Appellant consistent with the sale deed should not have been accepted. In the opinion of this Court there is a ring of truth in the statement of the Defendant / Appellant possession under the sale deed was delivered to him but be was dispossessed under the garb of the injunction order issued by the trial Court. The findings to the contrary based on wrong application of the legal principles cases to be binding on this Court and are hereby set aside.

The plaint contains a bald assertion that the property alienated by Jagannath was coparcenary property. Not a word has been stated in the plaint to show how the property had come to acquire such character whether it was a property inherited from the ancestors property or was an accretion to the existing corparcenary property or was a self-acquired property but thrown into common hotch pot and c. At the stage of trial, looseness in the plaint-averments allowed the Plaintiffs to lead shifting evidence. The witnesses examined for the Plaintiffs gave different versions to suit their convenience without particularising anything. Some said that the land was inherited by Jagannath from his late father. Someone stated that it was purchased by Jagannath with the aid of joint family funds. Someone stated that part of the property was secured by Jagannath on lease from the proprietor before the abolition of proprietary rights. No inference as to the property being coparcenary property could have been drawn from the evidence adduced by the Plaintiffs except by adopting an approach of treating the statement made by the Plaintiffs'' witnesses as gospel truth without an attempt at scrutinising their work; a process adopted by the Courts below but wholly impermissible and unsustainable in law. In the opinion of this Court in the back drop of the facts of the case the burden lay heavily on the Plaintiffs to allege and prove the character of the property with factors branding the property coparcenary character. That having not been done, the issue should have been decided against the Plaintiffs.

Not only the Plaintiffs have utterly failed in proving that the property was coparcenary property assuming that such an averment was capable of being made and accepted, this Court has to discard the case of the Plaintiffs for yet another and stronger reason.

The suit property consists of tenancy rights in agricultural holding the devolution whereof is governed by the tenancy laws which have been in force from time to time in this part of the country. It is not disputed that between 1951 and 1959 M.P. Land Revenue and Tenancy Act, 1950 was in force. Thereafter, came into force the M.P. Land Revenue Code, 1959. Earlier, the Kanoon Mal operated in the field. Each of these provided a specific schedule governing the devolution of tenancy rights in agricultural holdings. In view of that law can it be said that the tenancy rights inherited by Jagannath from his late father or the rights acquired by him under a lease given by an ex-proprietor (assuming it was so) were not his personal rights but were co-parcenary properties governed by the principles of Hindu Law ?

In Yudhishter Vs. Ashok Kumar, a question arose whether the property inherited by a Hindu male from his father u/s 8 of Hindu Succession Act, 1956 would be H.U.F. property vis-a-vis his own sons. Following the earlier Apex Court decision in Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, heir Lordships held:

... it would be difficult to hold that property which devolved on a Hindu u/s 8 of the Hindu Succession Act, 1956 would be HUP in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the Respondent in the instant case on the demise of his grandfather could not be said to be HUF property.

The same principles would be applicable if the rights were inherited by Jagannath from his father in accordance with the schedule of succession provided for by tenancy law in force for the time being.

This Court was posed with a similar question in similar set of facts in (Gyansingh and Ors. v. Ghanshyam and Others) S.A. No. 297/62 (1) decided on 24-2-1965. One Matadin recorded Bhumiswami of the land had alienated his rights in the holding through a registered deed of sale dated 25-1 1963. He had inherited the rights from his father at a time when MB Land Revenue and Tenancy Act, 1950 was in force. His wife and sons brought the suit challenging the alienation alleging the rights of Matadin to be joint Hindu Family property of the Plaintiffs with Matadin. This Court having referred to the provisions contained in Sections 82 and 70 of M.B Land Revenue and Tenancy Act, 1950 respectively providing for the devolution of rights on the death of a male pucca tenant and voluntary sale of holdings, as also the pari materis provisions contained in Sections 164 and 165 (both unamended) of M.P, Land Revenue Code, 1959 held:

The above said provision clearly indicates that in the matter of rights of a pakka tenant under the M.B. Act, and the rights of a Bhumiswami under the M P. Code, there have been special provisions governing the devolution of the rights and the rights of transfer. Section 164 of the M.P. Code clearly stated that the provisions had to take effect notwithstanding any law, custom or usage to the countrary. Such specific words were not to be found expressly contained in Section 82 of M.B. Act, but the result would be the same inasmuch as a special provision governing the devolution of rights of a male pakka tenant contained in a special local law would necessarily exclude the applicability of the general law.

This Court concluded by holding:

The validity or otherwise of the alienation made by a pakka tenant/Bhumiswami shall have to be judged by reference to the provisions contained in such local enactments and not by the principles of personal law. The lower appellate Court was, therefore, right in holding that the right acquired by Matadin in the holding from his father was capable of being alienated by him if the alienation did not infringe any provision of the tenancy laws. The question of judging validity of the sale by applying touch-stone of legal necessity, offered by the personal law, did not arise.

This Court upheld the dismissal of the suit seeking declaration of title and recovery of possession as against transferee.

In (Dagdibai v. Shyamrao and others) S.A. No. 203/80 (G) decided on 15-11-1991 an alienation made by a female pucca tenant was challenged by the reversioner as having been made without legal necessity. P.K. Tare, J. as his Lordship then was, turned down the challenge holding that the rights acquired by a famale pucca tenant under the tenancy law did not permit nature and scope of the female tenant''s right being determined by reference to the principles of Hindu Law. It was held:

Her personal law would have no place in the scheme of succession provided by the Act. Therefore, the concept of a reversionary interest of a reversioner being in a position to challenge the alienation by a limited owner cannot be made applicable to such a case.

In Jhabersingh v. Soudansingh S.A. No. 409/61 (I) decided on 16-4-1964 the rights in agricultural holding were inherited under the provisions of the Indore Land Revenue and Tenancy Act which provided a special schedule of inheritance by its own for alienation made by the holder was challenged by taking resort to the principles of Hindu Law. The Court noticed the definition of pucca tenant as given in Section 54 of M.B. Land Revenue and Tenancy Act. 1950 which refers to the person entered as such on the date of coming into force of that Act. V.R. Nivaskar, J. held:

In my opinion the definition of pucca tenant in Madhya Bharat Land Revenue and Tenancy Act indicates that the person who is or whose predecessor-in-interest has been recorded as a Pattedar tenant in the erstwhile Holkar State territory is such a tenant. In this case, Defendant No. 2, 3 and the father of Defendant No. 4 were the recorded tenants at the commencement of the Madhya Bharat Land Revenue and Tenancy Act. They, therefore, became pucca tenants with rights to alienate the property with the permission of the Collector Succession to them is provided for as indicated in Section 82 of the Act. Thus, there is basic change in the Scheme of the Act and whatever rights existed before on the principle of survivorship or reversion were no longer to remain in force. To this extent, the vested rights, as claimed by the Plaintiffs were, intended to be affected.

The decision in AIR 1926 Privy Council 100 (supra) and 1949 Madhya Madhya Bharat Law Reporter III (supra) will have no application because under the Madhya Bharat Land Revenue and Tenancy Act the record at the time of coming into force of the Act as a pucca tenant determined the title.

It follows that in so far as the rights in agricultural holdings are concerned, they are governed by the provisions of the tenancy law governing them. The nature of the right acquired by a Bhumiswami by inheritance is to be determined by reference to the provisions contained in the relevant tenancy law governing devolution of such rights. Having inherited the right, the Bhumiswami holds the land as full owner thereof and not in any capacity determinable by reference to the provisions of personal law. His right to alienate the land is also governed by the tenancy law and not by reference to the provisions of the personal law applicable to him.

On the principles stated hereinabove, it has to be held that Jagannath alone was the Bhumiswami of the suit land, as defined in Section 158 of M.P. Land Revenue Code, 1959, inasmuch as he was a pucca tenant as defined in M.P. Land Revenue and Tenancy Act, 1950 on the date of coming into force of the Code and his right to alienate the land was governed by Section 16.5 of the Code which empowers a Bhumiswami to transfer any interest in his land subject to other provisions of that section and the provisions of Section 168 of the Code and not by the personal law. The finding to the contrary recorded by the Courts below is wholly unsustainable in law and liable to be set aside.

For the foregoing reasons, the appeal is allowed. The judgments and decrees of the Courts below are set aside. The suit filed by the Plaintiff/ Respondents No. 1 to 4 is directed to be dismissed with costs through out. Counsel''s fee as per schedule, if pre-certified.