Smt. Veero Devi vs Chanan Singh and Others

Alok Singh, J.—The present second appeal has been filed by the defendant No. 1/appellant challenging the judgment and decree dated 27.5.1987 passed by the learned first Appellate Court/Addl. District Judge, Amritsar, thereby allowing the first appeal and decreeing the suit of the plaintiff.

The brief facts of the present case are that plaintiff filed a suit for declaration that the sale deed executed by his father Gurbux Singh, defendant No. 2, on 29.7.1978 in respect of property in dispute be declared null and void without consideration, legal necessity and benefit to the Hindu Undivided Family (HUF) and relief of possession and mesne profits was also sought.

The allegations of the plaintiff are that his father Gurbux Singh, defendant No. 2, and his uncle Gurdit Singh, defendant No. 8, constituted Joint Hindu Family; Sh. Sobha Singh, grand-father of the plaintiff, was having HUF with defendant No. 2 (father of the plaintiff) and defendant No. 8 (uncle of the plaintiff); after the death of Sh. Sobha Singh, more than 60 years back, defendant Nos. 2 and 8 partitioned the property vide registered instrument dated 15.4.1969 and property in dispute (shop) fell in the share of plaintiff''s father and its branch which continued to hold it as property of HUF consisting of Gurbux Singh, defendant No. 2, and his sons, the plaintiff and defendants No. 3 to 5; defendant No. 2 was the ''Karta'' of the family and was not authorized to disposed of HUF property; defendant No. 2 executed the impugned sale deed on 19.7.1978 for an ostensible consideration of Rs. 35,000/- in favour of Smt. Veero, defendant No. 1/appellant; sale being of Hindu Undivided Family, hence, the shop in dispute can easily fetch a rent of Rs. 500/- per mensem and the plaintiff is entitled to mesne profits as well as for possession.

Defendant No. 2, father of the plaintiff, died during the pendency of the suit; defendants No. 1, Smt. Veero Devi, refuted all the allegations of the plaintiff and denied that property in dispute was HUF; it was further denied that plaintiff was the son of Gurbux Singh; it was further stated that defendant No. 1 is a bona fide purchaser; purpose of alienating the property is very well mentioned in the sale deed.

On the pleadings of the parties, learned trial Court framed following issues:

Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP.

Whether the plaintiff is the son of Gurbux Singh? OPP.

Whether the property in dispute was part of Hindu Joint Family property of the plaintiff and qua his father and defendants No. 3 to 5 at the time of its sale? If so, its effect? OPP.

Whether there was any valid partition between defendants No. 2 and 8? If so, to what effect? OPP.

Whether the plaintiff is entitled to claim the mesne profits? If so, to what effect? OPP.

Whether Gurbux Singh was a man of immoral character and the sale was for any immoral and illegal purposes? OPP.

Whether suit for declaration and injunction is not legally maintainable, when plaintiff is out of possession? OPD.

Whether plaintiff has no locus standi to file the suit? OPD.

Whether the sale of the property in dispute by Gurbux Singh was for consideration? OPD.

Whether the sale by Gurbux Singh was for legal necessity and was an act of good management and for benefit of the estate? OPD.

What improvement and of what value has been effected by defendant No. 1? If so, its effect? OPD.

Whether plaintiff is bound by the sale of the property in question and cannot question it? OPD.

Whether the suit does not disclose any cause of action against defendant No. 1? OPD.

Relief.

Learned trial Court dismissed the suit of the plaintiff having recorded that sale deed was for consideration of Rs. 35,000/- which was fair price for such a property anticipating acquisition by the improvement trust. It was further observed by the learned trial Court that recital in the sale deed proves that Gurbux Singh alienated the same keeping in mind that shop was not giving proper income, part of sale consideration would be kept in Bank to earn more income by interest and part of consideration would be utilized in repayment of debt and to bear medical expenses.

On appeal being filed by the plaintiff, learned first Appellate Court reversed the finding of fact recorded by the learned trial Court on issue No. 10 and decreed the suit. Hence, the present second appeal.

I have heard learned Counsel for the parties and perused the record.

In the present second appeal, one substantial question of law arises which is being formulated as under:

As to whether the first Appellate Court can reverse the well reasoned finding of fact recorded by the learned trial Court even if two views are possible in the matter.

Reply to substantial question of law:

Undisputedly, sale deed contains following recital:

I have no sufficient income from the shop in question. I have become old. Due to old age, I am not in a position to look after this shop. I will deposit the sale consideration after alienating the shop in question in the bank to earn more profit from the income of interest. Moreover, I need money to repay the loan and to maintain myself and to bear the medical expenses for my treatment. For the reasons mentioned hereinbefore, I am executing the present sale deed with my free will.

Undisputedly, plaintiff is not in possession of the property in dispute. Plaintiff has not challenged anywhere recital of the sale deed that income from the shop was less and due to old age Gurbux Singh was facing difficulty to manage the shop. Intention of Gurbux Singh to keep the sale consideration in the Bank was to get more income from the interest thereon and he needed money to bear day to day medical expenses.

It is a settled position of law that first Appellate Court should not substitute its finding of fact and should not disturb the finding of fact recorded by the Court below even if two views are possible. The first Appellate Court can disturb the finding of fact recorded by the learned trial Court only when first Appellate Court comes to the conclusion that finding recorded by the learned trial Court is perverse, based upon no evidence, misconstruction and misreading of the document, or any important evidence available on the record escaped from the notice of the Court below. In the present case, first Appellate Court did not record that finding of fact recorded by the learned trial Court is incorrect or perverse or based upon inadmissible evidence or any important evidence available on the record escaped from the notice of the Court below.

In view of the fact that plaintiff had never been in possession and his father Gurbux Singh because of his ill health and old age needed money to maintain himself and further to repay the loan amount. It is not disputed by the plaintiff that father has not kept part of the sale consideration in the Bank to increase the income by way of interest derived there from. Plaintiff failed to prove that he has not received any amount of sale consideration which was kept by father in the Bank. In view of this, I find that first Appellate Court ought not to have disturbed the finding of fact recorded by the learned trial Court.

Section 103 of the CPC provides that this Court, while hearing the second appeal, can decide any issue when this Court finds that it has wrongly been determined by the Court below. Invoking Section 103 C.P.C., I have perused the entire evidence, pleadings and material available on the record. I find no illegality in the judgment of the learned trial Court.

In view of the above, appeal is allowed. Judgment dated 27.5.1987 passed by the learned first Appellate Court is set aside. Judgment passed by the learned trial Court is restored.

In view of the dismissal of the suit, cross-objection filed by respondents No. 3, 4 and 5 also stands disposed of.