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Judgment
This appeal is directed against impugned judgment and decree dated 12/12/1995 passed in Civil Suit No.16-A/92 by which, the suit of the appellant /
plaintiff has been dismissed. The appellant filed a suit on pleadings inter alia that Jani Bai had two daughters â€" Manorama Bai and Kalindri Bai.
Sister of Jani Bai namely Nathelin Bai had no issue and out of affection, she bequeathed by a Will dated 26/07/1989, her land admeasuring 12 acres in
favour of Manorama Bai. Later on, Kalindri Bai, sister of Manorama Bai and daughter of Jani Bai claimed that she should also get some property.
Further pleadings are that plaintiff No.1 expressed desire that she may be given by way of Will, 6 acres of land to Kalindri. However, later on,
Kalindri, taking undue advantage of the relationship and age of plaintiff - Jani Bai, got sale deed executed in her favour on 19/10/1989 in respect of the
land admeasuring 16 acres by fraudulent means. According to the plaintiff, no consideration passed as stated in the sale deed and infact, defendant
No.1 had no source of income to pay Rs.1,60,000/-. It was further pleaded that a notice was given to defendant for payment of Rs.1,60,000/- but
when it was not paid, a suit was filed. The respondent / defendant took a plea that no fraud was practiced and Jani Bai, knowing fully well that her
sister Nathelin Bai gave 12 acres by way of Will to Manorama sold to another daughter Kalindri / defendant No.1, by way of sale deed which was
duly registered. According to the defendant, an amount of Rs.1,60,000/- was duly paid to Jani Bai as consideration towards sale of 12 acres of land. It
was further pleaded that the case of the plaintiff is falsified from the fact that later on, an agreement was also executed on 04/01/1990 to which
plaintiff No.1 was a party which clearly records a settlement between the parties.
On the basis of pleadings of the parties, learned Trial Court framed as many as four issues including an issue as to whether sale deed dated
19/10/1989 is legal and valid. Learned Trial Court also framed issues as to whether Nathelin Bai had bequeathed her property on plaintiff No.2 vide
Will Deed dated 26/07/1989. An issue was framed as to whether agreement dated 04/01/1990 is illegal as an outcome of a conspiracy. Whether the
plaintiff was in possession of the suit property, was also an issue framed. Learned Trial Court also framed an issue whether plaintiff No.1 was
estopped from questioning agreement dated 04/01/1990.
Learned Trial Court held that the plaintiff No.1 - Jani Bai sold her property admeasuring 16 acres of land to defendant No.1 / Kalindri Bai by way
of registered sale deed dated 19/10/1989. Further that a settlement / agreement was also executed on 04/01/1990 and plea that sale did not take place
or she was defrauded of her rights was not found proved.
Learned counsel for the appellant would argue that the learned Trial Court erred in law and on facts both, in recording a finding that there was a
sale deed duly executed resulting in transfer of title ignoring the material evidence on record that no consideration was paid. It is submitted that the
defendant's sole witness has admitted in his evidence that no consideration passed. Therefore, it is submitted that the sale deed dated 19/10/1989 was
incapable of transferring the title in favour of Kalindri Bai and therefore, the plaintiff was entitled to appropriate declaration that the sale deed is
inoperative in law. Further submission of learned counsel for the appellant is that as far as agreement dated 04/01/1990 is concerned, the same was
executed by the plaintiff-Jani Bai upon misconception of fact and as a result of fraudulent transaction.
On the other hand, learned counsel for the respondents- Kalindri and Gangadhar Upadhyaya would submit that the plaintiff's case set up against the
registered sale deed was rightly found not tenable under the law. It is further submitted that once there is a registered sale deed, the plaintiff cannot be
heard saying that there was no intention to sell the property. As far as consideration is concerned, the sale deed clearly records satisfaction of having
received Rs.1,60,000/-. Therefore, no plea against those recitals of sale deed can be set up by the plaintiff nor any evidence could be allowed. It is
further argued that the agreement dated 04/01/1990 was executed by the plaintiff and there are no amount of plea to prove that the agreement was an
outcome of any fraud as no specific details and particulars of fraud as required under Order VI Rule 4 of CPC have been made in the plaint nor
evidence led to discharge heavy burden to prove that execution of agreement and sale deed was an outcome of fraudulent transaction. It is also
submitted that the plaintiff is not entitled to any decree because it has been found by the Trial Court that it is the defendants who are in possession of
the disputed property which was given in possession of defendant after execution of sale deed and the plaintiff having not sought any recovery of
possession, suit is liable to be dismissed.
The plaintiff's case, as pleaded by Jani Bai is that the sale deed dated 19/10/1989 was got executed by fraudulent transaction. Pleadings of the
plaintiff as contained in Para 3 of the plaint are -
^^rc okfnuh dzekad&1 ds o`)koLFkk] foo'krk ,oa vUrjax fj'rsnkjh dk uktk;t ykHk mBkrs gq, izfroknh dzekad&1 ,oa 2 us mlds uke ij fLFkr 16 ,dM+
d`f""k Hkwfe ftldk foLr`r fooj.k vuqlwph ^^v^^ esa fn;k x;k gS] dks vius uke ij djk ysus dk ""kM;a= jpk rFkk okfnuh dzekad&1 dks nqxZ ds iath;u
dk;kZy; esa tkdj olh;r dhs jftLVªh djkus gsrq rS;kj djk fy;kA^^ In para 4, following pleadings are made -
^^;g c;ukek izfrQy jfgr ,oa okfnuh dzekad&1 dks /kks[kk nsdj Ny iwoZd fu""ikfnr djk;k x;kA D;ksafd izfroknh dzekad&1 ,oa 2 ds ikl mDr fnol bruh
cM~h jde vnk djus dk dksbZ L=ksr ugha Fkk vkSj uk gh mUgksaus okfnuh dzekad&1 dks mDr jkf'k vnk fd;sA ,slh fLFkfr esa ;g c;ukek dsoy okfnuh
dzekad&1 ,oa 2 ds LokfeRo dks fouLV djus dks ""kM;a= ek= gSA^^
In the evidence led by the plaintiff, Jani Bai (PW1) as deposed in para 1 of her evidence as below -
^^;g jftLVªh 1]60]000@& dh xbZ gS fdarq eq>s ,d iSlk Hkh ugha fn;k gSA ^^
Except this, no other evidence of this witness regarding alleged fraudulent act. The other three witnesses of the plaintiff namely Mehattar Ram
(PW2), Behla Prasad Chandrakar (PW3), Hanuman Prasad (PW4) have not deposed with regard to alleged fraudulent act. Manorama (PW5), who is
the daughter of plaintiff-Jani Bai and sister of defendant No.1/Kalindri Bai states in her evidence that she was informed by her mother that Kalindri
Bai, by playing fraud, got a sale deed in respect of 16 acres of land registered in her favour. It would, thus, be seen that the plaintiff's case of fraud is
neither based on any specific plea of fraud with regard to partition of property nor is there any evidence as to how the fraud was played. Merely
saying that transaction was a result of fraud is not enough to discharge the heavy burden of proof of fraud. It has to be seen that present suit was filed
three years after the said transaction in dispute. The transaction of sale was between Jani Bai (Plaintiff No.1) and Kalindri Bai (defendant No.1), who
was Jani Bai's another daughter. There is no evidence to show that Jani Bai, because of illness or old age, was unable to understand and in
circumstances, extremely doubtful, her signatures or thumb impressions were obtained. Therefore, in the considered opinion of this Court, no case of
fraud is made out.
However, there is considerable force in the submission that in the absence of proof of passing of consideration, sale is not complete and no valid
title would be passed in favour of defendant No.1 - Kalindri Bai. The case of the plaintiff in her plaint has been that no consideration was paid. In the
notice (Ex.P/2) also, the plaintiff has stated that the amount of Rs.1,60,000/- was not paid to her. In the evidence of Jani Bai (PW1), she has clearly
deposed that she was not paid Rs.1,60,000/- as stated in the registered sale deed. The sole defendant witness - Gangadhar Upadhyaya has clearly
admitted in his evidence that sale consideration did not pass in following words -
^^tehu dh dksbZ dher ugha fn;s D;ksafd tkuh ckbZ us viuh jtkeanh ls tehu csph FkhA^^
The defendant No.1 has also failed to prove that the amount of Rs.1,60,000/- was actually paid to the plaintiff-Jani Bai as consideration towards
sale of the property. Therefore, it has to be held that even though in the sale deed, it was recorded that earlier amount was paid, the sale consideration
never passed on to the seller i.e. Jani Bai (PW1). If that be so, one of the essential ingredients of sale as defined under Section 54 of the Transfer of
Property Act are not made out. Section 54 reads as under -
'54. “Sale - “Sale†is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.' One of the essential
ingredients is payment of consideration. The law does not require that the entire consideration needs to be paid at the time of execution of deed, but
the requirement of law is transfer of ownership in exchange for a price paid or promised or part paid or part promised. Present is not a case where
sale was executed on promise for payment of Rs.1,60,000/-. In the deed, it is stated that the parties have already received, but on appreciation of
evidence on records, this Court finds that the sale consideration was never paid to the seller. Therefore, the sale was not a valid deed of transfer of
title and no title and ownership in respect of the property under sale passed in favour of Kalindri Bai (defendant No.1).
The other part which is, however, required to be seen is that if after having found that the sale was not a valid deed, the plaintiffs are entitled to
decree in their favour. The suit was filed by the plaintiffs for declaration and grant of permanent injunction on the plea that the plaintiffs, despite
execution of alleged sale deed, have continuously remained in possession of the disputed property. Learned Trial Court, however, has recorded a
finding in favour of the defendants that after execution of sale deed, the entire property was handed over to the defendant.
In the evidence led by the plaintiff, Jani Bai (PW1) has stated that the possession of property in dispute was registered by her and she had given it
for cultivation firstly to Mehattar Rawat in the year after registration and in the next year, it was given to Bala Prasad. Mehattar has been examined
as PW2. He has stated that in the year 1990, he had taken 16 acres of land for cultivation from Jani Bai but thereafter, he has not taken agricultural
lands for growing crops but it was taken by Bala Dau. Behla Prasad Chandrakar (PW3) states in his evidence that Jani Bai used to give her
agricultural lands for cultivation and in the year 1991-92, he had taken 19 acres of land out of 50 acres from Jani Bai and he had given 114 khandi
crops to Jani Bai but at the same time, it has to be seen that thereafter, Kalindri Bai took possession of the property stating that she has purchased the
said lands by way of Registry. In para 4 of his cross -examination, this witness states that in January 1992, Kalindri Bai informed him that the land
belongs to her and therefore, he should give crops to Kalindri and though he denied, but later on, he gave the crops only to Kalindri Bai. The said
document under which it was given to Kalindri is dated 20/06/1991. Hanuman Prasad (PW4) has stated that 4 to 5 years before, Jani Bai used to
cultivate land along with her daughter - Kalindri Bai and Gangadhar Upadhyaya (husband of Kalindri Bai) and thereafter, Jani Bai had given land for
cultivation. Thereafter, about three years before, Gangadhar and Kalindri disclosed the sale deed and the partition deed claiming that these lands in
dispute have been partitioned and they fell to the share of Kalindri Bai. In paragraph 2, this witness states that the lands are being cultivated by
Shivprasad, who has been given those lands by Kalindri Bai for cultivation.
The aforesaid evidence, therefore, would unmistakably show that on the date, suit was filed, the plaintiff was not in possession of the land and
Kalindri, on the basis of sale deed and batwaranama, had started giving the land to different people for cultivation. Thus, the finding recorded by the
Trial Court does not require any interference.
The plaintiffs have not sought possession is found with defendants, their favour. alternative relief that in the event a decree of possession be
granted in
Once it is found that on the date of filing of suit, plaintiffs were not in possession of the property in dispute, the plaintiffs ought to have been prayed
for consequential relief of recovery of possession, which has not been done. Section 34 of the Specific Relief Act,1963, therefore, bars relief of
declaration in favour of the plaintiffs even though they may by entitled to decree of declaration sought for. Proviso to Section 34 reads as under -
 “34. Discretion of Court as to declaration of status or right â€" Any person entitled to any legal character, or to any right as to any property, may
institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a
declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanationâ€"A trustee of property is a
“person interested to deny†a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.â€
In view of above, even though the finding with regard to sale deed dated 19/10/1989 recorded by the Trial Court are not correct, for want of
prayer for consequential relief, no decree can be granted in favour of the appellant and therefore, the appeal has to be dismissed and is accordingly
dismissed.