Rajendra Prasad vs Smt. Malti Sinha and Others

Mungeshwar Sahoo, J.—Mungeshwar The plaintiff has filed this Second Appeal against the Sahoo, J. judgment and decree dated 28.08.1998 passed by the learned 3rd Additional District Judge, Nalanda at Biharsharif in Title Appeal No. 11 of 1994/05 of 1997 whereby the learned lower appellate court although dismissed the appeal filed by the defendants modified the trial court judgment and decree dated 30.04.1994 passed by the learned Munsif, Nalanda at Biharsharif in Title Suit No. 07 of 1989. The plaintiff filed the aforesaid suit for declaration that the sale deed dated 05.09.1988 said to have been executed by the father of the plaintiff, namely, Ganauri Mahto in favour of Malti Sinha is void, collusive and bogus and thereby no title passed to the defendant No. 1 Malti Sinha. The said relief was claimed by the plaintiff alleging that the property is the coparcenary property of the plaintiff and his father Ganauri Mahto and, therefore, without consent of the plaintiff the father could not have sold the property to the defendant No. 1. Moreover, no consideration passed to the father and the sale deed was not for legal necessity.

The defendants filed contesting written statement. The defence is that the father of the plaintiff sold the property for legal necessity and that consideration amount was paid. The father of the plaintiff also filed contesting written statement alleging that he has sold the property to the defendant No. 1 and consideration amount was paid to him.

The trial court recorded a finding that there was no partition between the father and son and the property sold was coparcenary property. The trial court also found that there was no legal necessity, therefore, the trial court ultimately held that the sale deed dated 05.09.1988 executed by defendant No. 3 in favour of defendant No. 1 is not binding on the plaintiff and is inoperative so far the share of the plaintiff is concerned.

The defendants filed Title Appeal before the lower appellate court. The plaintiff filed cross-objection against the finding recorded by the trial court that the sale deed is not void ab initio rather it is voidable. The lower appellate court dismissed the appeal and confirmed the finding of the trial court but modified the decree to the extent that the plaintiff should refund the entire amount of consideration money of Rs. 15,000.00 and also the interest incurred thereon from the date of execution of the sale deed calculated at the rate of 15% per annum within a month of the judgment. The lower appellate court allowed the cross-objection filed by the plaintiff.

At the time of admission of the Second Appeal on 14.01.2000, the following four substantial questions of law were formulated:--

(i) Whether the defendant who alleged himself to be the purchaser of the disputed land but has not claimed any relief much less for the refund of the consideration amount with interest in the Written Statement nor paid any court fees thereon is entitled for such relief and the lower Appellate Court has jurisdiction to grant such relief?

(ii) Whether a coparcener plaintiff is bound to refund the consideration amount received by the Karta of a joint Mitakshra Hindu Family in respect of an alienation of joint family property without any legal necessity which has been held to be not binding on the plaintiff?

(iii) Whether any finding regarding refund of the consideration amount to the alleged vendee by the alleged vendor can be given without giving a positive finding about passing of consideration in contravention of the endorsement of Registering Authority appearing on the impugned deed in respect of consideration amount?

(iv) Whether the plaintiff is liable to pay ad valorem court fees in respect of the valuation shown in the impugned sale deed which has been held to be wholly inoperative and not binding on the plaintiff?

The learned counsel Mr. R.K.P. Singh appearing on behalf of the appellant submitted that the lower appellate court at paragraph-16 clearly held that the sale deed as a whole is not binding on the plaintiff and it is not operative as a whole but at the same time directed the plaintiff to refund the entire amount of consideration money although the defendants never filed any counter claim for recovery of the amount nor they ever paid ad valorem court fee on the said amount for the relief which the lower appellate court has granted. According to the learned counsel, the lower appellate court has no jurisdiction to grant a relief to any party without there being any pleading or without payment of ad valorem court fee. Moreover, in the present case the lower appellate court itself has held that the sale deed is inoperative and is not binding as a whole on the plaintiff. In such circumstances, the lower appellate court has recorded contradictory findings and directed accordingly, which is unsustainable in the eye of law. On this ground, the learned counsel submitted that the impugned judgment and decree to that extent is liable to be set aside.

The learned counsel further submitted that the purchaser, who has purchased the property, cannot claim the property which she had purchased because of the fact that there was no partition between the coparceners. After purchase, the purchaser cannot also claim joint possession in the property. On the basis of purchase, the purchaser will have only a right to sue for partition and get the share of the vendor allotted in her favour. In support of his contention, the learned counsel relied upon the decision of the Hon''ble Supreme Court in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble and Others,

It appears that the appeal notice has already been validly served on the respondents but nobody has appeared on behalf of the respondents.

From perusal of the judgment of the lower appellate court, it appears that the lower appellate court has clearly recorded a finding that the sale deed in question is inoperative and not binding on the plaintiff as a whole. The purchaser never challenged this finding of the lower appellate court. Now, therefore, the position is that the judgment of the lower appellate court becomes final. In such circumstances, if the sale deed is not binding on the plaintiff then how the plaintiff can be directed to refund the amount to the defendant No. 1, the purchaser. Moreover, the purchaser never prayed for refund of the said amount nor she filed any counter claim nor any ad valorem court fee was paid and whether she was entitled for refund of the amount from the plaintiff or the amount from the father of the plaintiff, was not even decided by the appellate court. From perusal of the judgments of both the courts below, it appears that the purchaser even has not been examined as witness in the case. Therefore, without there being any relief claimed on the basis of any pleading and without payment of any required court fee, in my opinion, the lower appellate court had no jurisdiction to grant the relief in favour of the purchaser against the plaintiff, which was not the controversy between the plaintiff and the purchaser nor any issue was framed on that question.

It appears that all the substantial questions of law formulated are with regard to this part of the judgment of the lower appellate court whereby the appellant was directed to pay Rs. 15,000.00, the entire consideration amount, with interest at the rate of 15% per annum from the date of execution of the sale deed till it is paid. Since I have already held that this part of the judgment and decree passed by the lower appellate court is contradictory to the pleadings of the parties and the lower appellate court had no jurisdiction to pass such decree, that part of the judgment and decree directing the appellant to pay the above amount with interest is hereby set aside. The other part of the judgment whereby it has been held that the sale deed executed by defendant No. 3 in favour of defendant No. 1 was held to be inoperative and not binding on the plaintiff, is hereby confirmed. In the result, the substantial questions of law formulated are answered in favour of the appellant as such this Second Appeal is allowed.