The payment of consideration is to be presumed when the document is registered and reveals endorsement regarding payment of consideration. The registration of the document gives rise to presumption under Section 58(1)(c) of the Registration Act regarding payment of consideration. No doubt, such presumption is rebuttable. Still, however, there must be convincing evidence to rebut such presumption. In Shivdas Loknathsing v. Gayabai Shankar Surwase 1993 Mh.L.J. 1623, Division Bench of this Court held that there is presumption of the entry made under Section 58(1)(c) of the Registration Act because of the provisions of Section 16(2) of the Indian Registration Act. It is further observed that bare denial of receipt of any consideration by the plaintiffs contrary to the statutory presumption would be of no avail nor can be regarded
as sufficient to rebut statutory presumption.
Mere sweeping allegations regarding the fraud are of no avail to the plaintiffs. The fraud is an intentional perversion of truth for the purpose of inducing another person to rely upon it in order to part with some valuable thing. It is false representation of matter of fact, whether by words or by conduct, which would mislead the person, who is subjected to parting with some valuable property. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. , the Apex Court has held that fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss or in other words cheating intended to get advantage. The proof regarding alleged fraud must be of such degree that a prudent man could believe it. In Shri Krishan v. The Kurukshetra University, Kuruksheta , the Apex Court observed:
It is well settled that where the person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved.
Bombay High Court
Kisan S/O Ramji Khandare vs Kausalyabai W/O Gangaram And Ors. on 12 March, 2007
Equivalent citations: 2007 (4) MhLj 43
Bench: V Kingaonkar
1. The appellant herein is original defendant No. 2. The appellant is aggrieved by judgment rendered by the first appellate Court, confirming the trial Court's decree, with little modification, holding that Respondent Nos. l to 3 i.e. original plaintiffs are entitled to relief of declaration that the sale deeds executed by plaintiff No. l Kausalyabai are inoperative and were obtained by playing fraud and hence, the plaintiffs are entitled to recover possession of the suit properties alongwith mesne profits.
2. For sake of convenience, I shall refer to the parties by their nomenclature in the trial Court. The Respondent No. l Kausalya was plaintiff No. l. Respondent No. 2 Sarangdhar is her son and was plaintiff No. 2, whereas Respondent No. 3 Asrabai is her daughter and was plaintiff No. 3 in the trial Court. They filed suit (R.C.S. No. 40/90) for declaration to the effect that the sale deeds executed by the plaintiff No. l are not binding on them. They sought recovery of possession of the suit properties consisting of agricultural lands and share to the extent of two annas in mango trees as described in Schedule appended with the plaint.
3. Originally one Gangaram Korde held the suit properties. He was husband of plaintiff No. l Kausalya and father of plaintiff Nos. 2 and 3 - Sarangdhar and Asrabai. He died somewhere in 1979-80.
4. Briefly stated, the plaintiffs' case si that the defendant No. 2 - Kisan played fraud on the plaintiff No. 1. He took her to Parbhani, the District place, under pretext that she would be assisted in borrowing loan from a Cooperative Society. There was no legal necessity for alienation of the suit properties. The defendant No. l obtained a sale deed in respect of S. No. 45 to the extent of 2 hectares land in his favour without payment of consideration. Thereafter, the defendant Nos. 3 and 5 assured plaintiff No. l - Kausalya that they would secure restoration of her land and would incur necessary expenditure required for the purpose of litigation. They obtained a sale deed without consideration from her in respect of land S. No. 37 as well a sale deed in respect of 2 annas share in 17 mango trees. They got inducted themselves in possession of the said lands without any legal right. The sale deeds are out come of fraud played on the plaintiff No. l. The plaintiff No. l could not have transferred the suit properties which are owned by the minor plaintiff Nos. 2 and 3. Consequently, they sought recovery of possession of the suit properties and declaration to the effect that the sale deeds in question were not binding on them.
5. By filing common written statement (Exh.22) the defendant Nos. 1 and 2 resisted the suit. So also the defendant Nos. 3 and 5 resisted the suit by filing a written statement (Exh.66). They denied truth into all material averments made by the plaintiff. Assertion of the defendants was that the plea of alleged fraud is vague and untenable. They submitted that the plaintiff No. l - Kausalya was in a habit of alienating the properties of the family in order to meet domestic needs. According to them, the plaintiffs were in need of finance due to variety of reasons, including the fact that deceased Gangaram Korde had died and there was no elder member in the family to manage the cultivation of the suit lands. They averred that the plaintiff No. l was in need of money to perform 13th day post death rites of her husband, in accordance with the tradition in the rural area, and also lateron needed money to perform marriage of plaintiff No. 3 - Asrabai. They submitted that the alienations were effected on account of legal necessity and that the plaintiff No. l was acting as Manager of the family at the relevant time. They denied that the suit properties were owned by the minors. They further contended that the suit was barred by limitation. They denied truth into the allegation that the sale deeds are without consideration. They urged, therefore, to dismiss the suit.
6. The parties went to trial over issues framed below Exh.25 by the trial Court. The trial Court accepted all the material contentions of the plaintiffs and decreed the suit in toto. The first appellate Court partly confirmed the findings of the trial Court. However, the first appellate Court held that the defendants Nos. 2,3 and 5 would be entitled to receive the amount of price paid by them and that the sale deeds were not hallow.
7. Mr. Gaikwad, learned Counsel appearing for the original defendant No. 2 (appellant) pointed out that the plaintiffs sought declaration to the effect that the sale deeds are not binding on them, yet, the trial Court granted relief of cancellation of the sale deeds. He would submit that the particulars of fraud are not pleaded as required Under Order VI Rule 4 of the C.P.C. He would further submit that vague plea of fraud is accepted by the trial Court and the first appellate Court without any substratum. He further contended that the sale deeds executed by the plaintiff No. l for and on behalf of the minors are for valuable consideration and there was legal necessity for the sale. He argued that the trial Court as well as the first appellate Court committed patent error while invalidating the sale deeds for the reason that necessary permission Under Section 8 of the Hindu Minority and Guardianship Act was not obtained. He argued that such permission was not required and the sale deeds could not be cancelled due to such a reason. He contended that the plaintiffs could not be permitted to file suit as indigent persons because other properties were available to them. He relied upon various authorities in support of his contentions. On the other hand, Mr. Kendre, learned Counsel appearing for the original plaintiffs, supported the impugned judgment.
8. The substantial questions of law involved in this appeal are as follows:
(i) Whether the first appellate Court is right in decreeing the suit for recovery of possession when simple declaration regarding immunity from the sale deeds was claimed without relief for cancellation of the sale deeds in question.?
(ii) Whether in the facts and circumstances of the present case, the suit is maintainable when the plaintiff No. l is executant of the sale deeds and herself challenged legality thereof on the ground that the transactions were invalid due to lack of sale permission Under Section 8 of the Hindu Minority and Guardianship Act, 1956.?
(iii) Whether in the facts and circumstances of the present case, the first appellate Court was right in holding that the sale deeds executed in favour of defendant Nos. 2 and 3 were out come of alleged fraud, in absence of particulars of the said plea, and without specific evidence in this behalf.?
9. There is no dispute about the fact that the suit properties were inherited by the plaintiffs after death of Gangaram Korde. He died somewhere in 1979-80. The pleadings of the plaintiffs are to the effect that the defendant No. 2 misrepresented the plaintiff No. l that she will be granted loan by a Cooperative Society and hence, took her to Parbhani. According to the plaintiffs, the defendant No. 2 got executed a sale deed in respect of two (2) acres land out of S. No. 45 from her without payment of consideration. Thereafter, the defendant Nos. 3 and 5 again made representation to her that they would assist her in recovering the above referred land. They also obtained a sale deed from her in respect of land S. No. 37 as well the two annas share in mango trees situated in lands S. Nos. 17,37 and 45 without payment of any consideration. They averred that the defendants Nos. 2,3 and 5 took disadvantage of the illiteracy of the plaintiff No. l and got registered the sale deeds by deception. The pleadings contained in the plaint are too vague. The plaintiffs did not specifically plead the date of alleged misrepresentation. They did not plead as to how the plaintiff No. l was misled due to the misrepresentation of the contesting defendants. The pleadings do not show as to which cooperative society was to be approached for raising of the loan. The pleadings also do not show as to when the defendant Nos. 3 and 5 lateron assured the plaintiff No. l that they would get the land S. No. 45 restored to her from the defendant No. 2. The pleadings of the plaintiffs do not show the details of alleged fraud as required Under Order VI Rule 4 of the C.P.C.
10. The question of special pleadings as required Under Order VI Rule 4 of the C.P.C. is of vital importance. In Union Bank of India v. Avinash P. Bhonsle 1991 (2) Maharashtra Law Reporter 858, this Court held that it is necessary Under Order VI Rule 4 of the C.P.C. that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items if necessary shall be stated in the pleading. The particulars of fraud are required to be stated in order to verify whether the evidence led by the concerned party is in keeping with such particulars.
11. In Bishnudeo Narain and Anr. v. Seogeni Rai and Ors. , the Apex Court has held that in case of alleged
fraud, party must set out full particulars. It is observed:
25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, & the same applies to undue influence & coercion. See Order 6, Rule 4, C.P.C.
The plaintiffs pleaded that there was misrepresentation held out by the defendant No. 2 that the plaintiff No. l would be given loan by the Cooperative Society. What kind of loan she was in need of and which cooperative society was to grant the loan is not stated at all. Moreover, the period of such misrepresentation with details of date etc. are also not given in the pleadings. In Padma Bewa v. Krupasindhu Biswal and Ors. , it is held that where particulars of fraud and misrepresentations are not set out in the plaint and no evidence is furnished to substantiate such allegations, the suit can not be decreed.
12. In the present case, the plaintiffs have made only general allegations. They alleged that the plaintiff No. l was taken to Parbhani under misrepresentation that loan would be obtained from the society and then the sale deed was got executed without payment of consideration. Another vague allegation is that the defendants took disadvantage of the illiteracy of the plaintiff No. l. Mere allegation that the plaintiff No. l is illiterate and such a situation was used to her disadvantage will be of no avail to substantiate the plea of fraud. Even after liberal construction of the pleadings, I am of the opinion that the plea of alleged misrepresentation made by the defendants Nos. 2,3 and 5 and the so-called "fraud" played by them are vaguely pleaded facts without particulars as contemplated Under Order VI Rule 4 of the C.P.C. If such a vague plea is allowed to be considered then it would be difficult to expect appropriate reply to such pleadings. It will also give freedom to the concerned party to adduce any kind of vague evidence without particulars about alleged fraud. The purport of Civil Procedure is to streamline and discipline the course of trial. A party cannot be taken by surprise during the trial. In this view of the matter, the plaintiffs could not be allowed to lead evidence on the basis of such vague plea of fraud.
13. Be that may as it is, I shall now proceed to see whether the plaintiffs' evidence is sufficient to establish the plea of fraud. The plaintiff No. l Kausalya @ Kausabai entered the witness box as P.W.1 and also got examined P.W.2 Anandrao as a witness. It is pertinent to note that P.W. Anandrao is maternal cousin of the plaintiff No. l (P.W.Kausabai). Her cross-examination reveals that P.W. Anandrao used to attend the Court with her during the trial. He is attesting witness of the sale deed (Exh.50) executed by P.W. Kausalya in favour of defendant No. 2 - Kisan in respect of the land S. No. 45/2. Thus, P.W. Kausalya was accompanied by her close relative, namely, P.W. Anandarao when she executed the sale deed in question. In his presence it was difficult for defendant No. 2 Kisan to impressively make any misrepresentation so as to obtain fraudulent sale deed (Exh.50) from her.
14. The version of P.W. Kausalyabai purports to show that her husband died somewhere in 1979 and, thereafter, she had no support of anyone. She states that she was to get loan of Rs. 380/- from a society but then defendants Pundlik, Kisan and Motiram told her that if she would go to Parbhani then more loan amount to the extent of Rs. 1,500/- could be obtained by her. She further deposed that such misrepresentation was made by them after about 3 years of the death of her husband. They took her to Parbhani at house of one person and got executed a document from her. That is her story. At this juncture, it may be noticed that this part of her version is at variance with the pleadings. In the pleadings, it is stated that only the defendant No. 2 Kisan misrepresented her regarding availability of loan from a society at Parbhani and obtained the sale deed. Nowhere she pleaded that the defendant Nos. 3 and 4 had joined the defendant No. 2 in making such representation at that time. The tenor of the pleadings would show that subsequently defendant No. 3 Rama and defendant No. 5 Maroti gave assurance to her that they would incur necessary expenditure for the purpose of facilitating the recovery of the alienated land. It is on the pretext of such assurance that they also got executed sale deeds from the plaintiff No. 1 in respect of the land S. No. 37 and the share in the mango trees situated in the three lands. The oral evidence of P.W. Kausabai is to the effect that she was not paid any consideration and was told that after returning to the village loan will be given to her by the society within 15 days. She deposed that the document was not read over to her. Nowhere she explained anything about the circumstances in which she executed the other two sale deeds in favour of defendant Nos. 3 and 5. She further deposed that defendant No. 3 Rama, under pretext of taking possession back from defendant No. 2 Kisan, got executed the sale deed from her in respect of 1 acre 30 gunthas portion of survey No. 37.
15. The evidence of P.W. Kausabai @ Kausalyabai would make it manifest that the sale deeds in question were executed by her and the purported purchasers took possession of the properties in question. The details of so called false promises, attending circumstances, which made the plaintiff No. 1-P.W. Kausabai to believe the misrepresentation and her immediate conducts are significant facts, which are not properly pleaded and proved. Her mere assertion that she was deceived is insufficient to prove the alleged fraud. The trial court appears to have given much weightage to the version of P.W.2 Anandrao. He is attesting witness of the sale deed (Exh.51). He is closely related to P.W. Kausabai. His version too is vague insofar as element of deception is concerned. The trial court and the appellate court gave much importance to the fact that P.W. Kausabai was taken to Parbhani for the purpose of execution of sale deeds. That cannot be a reason to disbelieve due execution of the sale deeds in question. The version of P.W. Kausabai would show that plaintiff No. 2 Sarangdhar was aged about five years and plaintiff No. 3 Asrabai was aged about two years when her husband died. She admits that except agricultural income, there was no other source of income available to the family. She denied execution of Isar Chitthi dated 9.8.1980. She admits, unequivocally, that she knows the Registrar's office at Hingoli. She further admits that she was made to sit at the door of Sub Registrar's Office. She did not lodge any complaint regarding alleged misrepresentation and fraud. She admitted that about 2/3 years prior i.e. somewhere in 1989-90 the marriage of plaintiff No. 3 Asrabai was performed. Her evidence purports to show that her thumb impressions were obtained outside the office of Registrar. However, P.W. Anandrao expressed ignorance about execution of the documents of sale (Exh.51) in Sub Registrar's Office. He deposed that they were taken to the place like a house and were made to sit outside. It is difficult to believe that both of them are so naive to just misunderstand the office of Sub Registrar as a private house and did not make any enquiry as to whether it was office of the Co-operative Society or not. The interested versions of both these witnesses ought not to have accepted by the trial court and the first appellate court. Their vague and elastic versions are totally inadequate to make out any case of fraud.
16. Mere sweeping allegations regarding the fraud are of no avail to the plaintiffs. The fraud is an intentional perversion of truth for the purpose of inducing another person to rely upon it in order to part with some valuable thing. It is false representation of matter of fact, whether by words or by conduct, which would mislead the person, who is subjected to parting with some valuable property. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. , the Apex Court has held that fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss or in other words cheating intended to get advantage. The proof regarding alleged fraud must be of such degree that a prudent man could believe it. In Shri Krishan v. The Kurukshetra University, Kuruksheta , the Apex Court observed:
It is well settled that where the person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved.
17. In A.L.N. Narayanana Chettyar and Anr. v. Official Assignee, High Court, Rangoon and Anr. A.I.R. 1941 Pivy Council 93 It is held that fraud must be established beyond reasonable doubt. It is held by the Privy council that fraud cannot be inferred and cannot be based on suspicion and conjecture.
18. The plaintiffs' evidence, in relation to so called misrepresentation and deception, is of generalized allegations and statements. The mere fact that P.W. Kausabai is a widow and illiterate person, cannot give rise to inference of her being gullible to deception. She admits that previously she was wife of the Police Patil of village Kesapur. She further admits that she remarried Gangaram after death of her previous husband. She also admits that after death of Gangaram, the suit lands had remained fallow. It does not stand to reason that when she was accompanied by P.W. Anandrao, her close relative and attesting witness of the sale deed (Exh.51), both of them, together, were subjected to misrepresentation and fraud. They vaguely stated that no consideration amount was paid at the time of execution of the sale deed (Exh.51).
19. The payment of consideration is to be presumed when the document is registered and reveals endorsement regarding payment of consideration. The registration of the document gives rise to presumption under Section 58(1)(c) of the Registration Act regarding payment of consideration. No doubt, such presumption is rebuttable. Still, however, there must be convincing evidence to rebut such presumption. In Shivdas Loknathsing v. Gayabai Shankar Surwase 1993 Mh.L.J. 1623, Division Bench of this Court held that there is presumption of the entry made under Section 58(1)(c) of the Registration Act because of the provisions of Section 16(2) of the Indian Registration Act. It is further observed that bare denial of receipt of any consideration by the plaintiffs contrary to the statutory presumption would be of no avail nor can be regarded as sufficient to rebut statutory presumption.
20. D.W.5 Moreshwar, who was Sub Registrar and got registered the document in question, corroborated the contention of the defendants that on 16.8.1988 the plaintiff No. 1-P.W. Kausabai executed the sale deed after obtaining amount of Rs. 2000/- from the defendant No. 2. He is an independent witness. Nothing of significance could be gathered from his cross examination. He states that the sale deed was executed in the name of defendant No. 2 but the payment was made by defendant No. 1 Kundlik. He admitted that permission was required for sale in respect of the property of minors. The trial court as well as the first appellate court held that sale deeds (Exh.51, 52 and 92) were vitiated as they were not executed after due permission of the District Court under Section 8(2) of the Hindu Guardian and Wards Act. The trial court held that the three sale deeds were illegal and would not bind rights of the plaintiffs. The trial court declared that the sale deeds are null and void.
21. Now, it is significant to note that sale transactions were not challenged by the minors after attaining majority. It appears that age of plaintiff No. 2 Sarangdhar was wrongly shown as 20 years while filing of the suit. As stated earlier, version of P.W. Kausabai reveals that plaintiff No. 2 Sarangdhar was aged about 5 years when her husband died. He died somewhere in 1979-80. The suit was filed in 1990. Age of plaintiff No. 2 Sarangdhar could be approximately 15/16 years at that time. The plaintiff No. 3 Asrabai was admittedly minor at the relevant time when the suit was filed. The trial court as well the first appellate court committed patent error while assuming that the suit properties were properties of the minor plaintiff Nos. 2 and 3. That is not the fact situation. The properties in question were jointly owned by the plaintiffs as members of Hindu undivided family inasmuch as they inherited the same from deceased Gangaram Korde. The sale permission under Section 8(2) of the Hindu Guardianship and Wards Act is required only when next friend or guardian of minor seeks to alienate the separate property of such a minor. The plaintiff No. 1 Kausabai @ Kausalyabai is mother of the plaintiff Nos. 2 and 3 and alienated the suit properties under the above referred three sale deeds. She cannot impeach the alienation for and on behalf of the minors, independent of the plea of fraud. In Indernath Modi Inder v. Nandrao and Ors. , a Division Bench held that the mortgaged transaction entered into by the Karta of joint Hindu family, can be challenged on the ground that it was either not meant for legal necessity or in lieu of antecedent deeds only by other than the alienating coparcener and that executant of the mortgage deed could not challenge the alienation on such ground. This view is based on the principle that the grantor cannot derogate from his grant. Needless to say, the plaintiff No. 1 Kausabai is incompetent to challenge the sale deeds executed by her, for and on behalf of plaintiff Nos. 2 and 3, on any other plea except that of alleged fraud, misrepresentation and deception. Once it is found that the plea of fraud is imaginary and without substance then it follows that the plaintiffs will be non suited.
22. The defendants adduced evidence of D.W.1 Kundlik. He deposed that the plaintiff No. 1 incurred heavy expenditure to perform 13th day of post death rites after demise of her husband. He deposed that the plaintiff No. 1 agreed to sale the land survey No. 45/5, admeasuring 6 acres 10 gunthas in his favour. His version purports to show that lateron she sold only 2 hectares of land in favour of the defendant Nos. 2 Kisan. He relied upon an Isar Chitthi, but the trial court did not admit it in the evidence because the same is not eligible. The version of D.W. Kundlik purports to show that he and plaintiff No. 1 Kausalyabai had gone to Parbhani in order to consult advocate Shri. Manwatkar regarding requirement of sale permission. However, advocate Manwatkar opined that there was no impediment in the execution of sale deeds. It is the version of D.W. Kundlik that he paid consideration of Rs. 2000/-, which was balance amount to be paid to the plaintiff No. 1 Kausabai @ Kausalyabai, and got registered the sale deed. As stated before, D.W. Moreshwar has supported the fact that such payment was made in his presence while he was working as Sub Registrar at Parbhani. The evidence on record would show that the sale deeds were executed after the payment of consideration to plaintiff No. 1 Kausabai @ Kausalyabai.
23. There is evidence of D.W.2 Kisan, D.W.3 Motiram and that of D.W.4 Laxman in support of the transactions entered into by the plaintiff No. 1 with the defendants. The testimony of D.W. Rama (defendant No. 3) would show that he purchased the land survey No. 37/2 from plaintiff No. 1 Kausabai @ Kausalyabai under the registered sale deed for consideration of Rs. 7000/-. His version purports to show that he had paid an amount of Rs. 6000/- to the plaintiff No. 1 prior to the execution of sale deed and had paid amount of Rs. 1000/-at the time of registration of the sale deed. Similarly D.W. Maroti corroborated the sale deed (Exh.92) regarding sale of two anas share in the mango trees situated in the agricultural lands. All these sale deeds are duly proved by the defendants.
24. Indeed, the first appellate court seems to have misdirected itself. There appears confusion in the mind of the learned Additional District Judge while dealing with the points raised by him. The first three points raised by the first appellate court are thus:
1. Whether plaintiff proved in lower court defendant Nos. 1 and 2 got executed sale deed from her on 16th June, 1980 by misrepresentation, fraud and without consideration?
2. Whether sale deed dated 16th June, 1980 executed by plaintiffs in favour of defendant Nos. 2 is legal, valid?
3. Whether plaintiff proved in lower court defendant No. 5 got executed sale deed dated 11.5.1982 from the plaintiffs by misrepresentation fraud?
25. The first appellate court gave affirmative findings on the point No. 1 and negative finding on the point Nos. 2 and 3. The reasoning of the first appellate court while recording findings on the point No. 3 is thus:
The evidence on record goes to show that at the relevant time the plaintiff No. 1 was in penniless condition. She was in need of money to maintain her and her kids. She received Rs. 500/ towards sale deed (Exh.92) executed in favour of defendant No. 5 Maroti. Circumstances on the record show that plaintiffs were benefitted by some consideration by these transactions. The plaintiffs got benefit and they are required to restore that benefit to defendant No. 5. So in my view, the defendant No. 5 is entitled to get recovery of Rs. 500/- from plaintiffs.
26. The first appellate court partly accepted the case of plaintiffs in respect of the sale deeds, which were executed in favour of defendant Nos. 2 and 3. Whereas the plaintiffs' case is rejected as regards the sale deed executed in favour of defendant No. 5 vide Exh.92. In spite of findings that the sale deed executed in favour of defendant No. 2 Kisan is outcome of fraud, yet the first appellate court directed the plaintiffs to repay the amount of Rs. 2000/-to the defendant No. 1. There is inconsistency in the evidence of defendants regarding the initial transaction entered into between the plaintiff No. 1 and the defendant No. 1. As a matter of fact, before adverting to the evidence of defendants the first appellate Court ought to have seen whether there is any tangible reason to confirm the finding of alleged misrepresentation and fraud in respect of the sale deeds executed in favour of the defendant Nos. 2 and 3. The first appellate court did not consider these aspects and thereby rendered perverse findings on the relevant issues. Needless to say, the findings of the first appellate Court are unsustainable.
27. It appears that the trial court as well as the first appellate court invalidated the sale deeds on the ground that permission under Section 8 of the Hindu Minority and Guardian Act, 1956 was not obtained prior to the sale transactions. It need not be reiterated that the plaintiffs were unable to cultivate the entire land. The first appellate court came to the conclusion that the plaintiffs had no money to meet out domestic expenditure. The evidence of P.W. Kausabai reveals that the lands were lying fallow. There was pressure on the properties of the plaintiffs. The plaintiff No. 1 - Kausabai required money for maintenance and education of minors. In Narayan Laxman Gilankar v. Udaykumar Kashinath Kaushik , this Court held that the interest of minor in the joint family property is kept outside the reach of the provision of Sections 6 and 12 of Hindu Minority and Guardianship Act, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. The undisputed fact situation in the given case was that the property was the joint family property owned by widow mother and her two children. The mother was the natural guardian. The property was not divided by metes and bounds and minors had only undivided and unspecified shares in the same. This Court observed:
Section 8 with which this matter is concerned will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to "immovable property of minor" which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in Section 8 seems to be in pari materia with Section 29 of the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of Section 8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share.
28. In Sunamani Dei v. Babaji Das and Ors. , it is
held that natural guardian can alienate even the minors' share under the personal law. The mother as a guardian can alienate undivided share of minor and permission under Section 8 of the Hindu Minority and Guardianship Act is not the requirement of law. In Sri. Narayan Bal and Ors. v. Sri Sridhar Sutar and Ors. 1996 (1) Supreme 638, the Apex Court held that the natural guardian of minor has power to alienate undivided interest of the minor in the joint Hindu family property and the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 are not applicable to such transaction in view of the express terms of Sections 6 and 12 of the said Act. So also, in "Re Krishnakant Maganlal" (), it is held that Section 8 of Hindu
Minority and Guardianship Act, does not affect the power of manager or karta to alienate the undivided share of the minor. It is held that application under Section 8 for permission to alienate undivided share of the minor by the manager of guardian of the minor is not maintainable. The Karnataka High Court in Gangoji Rao and Anr. v. H.K. Channappa and Ors. , held that the mother is not a de facto guardian in the sense used in Section 11 of the Hindu Minority and Guardianship Act and can alienate the property for family necessity or in the interest of the family. It is held that in absence of the father, the mother can act as manager of the joint family property, including the interest of the minors in such property, and is therefore, empowered to alienate the property for family necessity.
29. As against this, learned advocate Mr. Kendre seeks to rely on Smt. Kamala Kumari Bohara v. Harekrishna Ghadei and Ors. . The Single Bench of Orissa High Court took the view that the widow mother has no powers available like that of karta. It is held that the sale deed in respect of share of minor would be voidable in absence of permission from court as envisaged in Section 8(2). I find it difficult to persuade myself by the view taken by the learned Single Bench of Orissa High Court. For, there is contrary judgment of this Court and there is also declaration of law by the Apex Court in this behalf, which runs contrary to the above view. Mr. Kendre further sought to rely on Amar Krishna Mukherjee v. Sm. Asha Rani Ghosh and Ors. . In the given case there was finding of fact that the sale deed relating to house property was executed by the owner under the belief that he was executing the mortgage deed. It was for such reason that the document was held as bad and liable to be cancelled. The facts obtained in the present case are quite different and hence, the case law cited by Mr. Kendre is of no avail to the case of plaintiffs. He also relied on Amirtham Kadumbah v. Sarnam Kudumban AIR 1991 SC 1256. The Apex Court held that when the property of the minor was sold by his father, as his natural guardian, to a person without the permission of the Court as required by Section 8 of Hindu Minority and Guardianship Act, and that the sale was not for legal necessity, the minor can file the suit to set aside the sale within three years after attaining the majority. With due respect, this authority also is of no assistance to the plaintiffs' herein. The permission under Section 8 is necessary only when the property is separate property of the minor. In such a case the minor can challenge the sale transaction within three years of attaining majority. In the present case, as on the date of the suit, the plaintiff Nos. 2 and 3 were minors and the property was not separate/individual property of either of them. As stated earlier, the plaintiff No. 1 herself being alienator, could not have impeached the transaction on any other ground except that of fraud, coercion or undue influence, if any, and that too after giving all particulars in the plaint and furnishing necessary degree of proof in support of such plea.
30. Mr. Kendre, learned Counsel appearing for plaintiffs further contended that finding facts recorded by two courts below should not be interfered with by this Court. He seeks to rely on Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. . The Apex Court
held, in the given case, that the second appeal cannot be decided merely on equitable ground. It is further held that concurrent findings of facts, howsoever, erroneous cannot be disturbed by the High Court in exercise of powers under Section 100 of Civil Procedure Code. However, further rider to the observation is that the substantial question of law has to be distinguished from substantial question of fact. Similarly, Mr. Kendre seeks to rely on Ramaswamy Kalingaryar v. Mathayan Padanachi . The Apex Court held that the
findings in favour of certain party as to his being in sole possession of land is a finding of fact and cannot be questioned in second appeal. I am of the opinion that the reliance placed by Mr. Kendre on these authorities is quite misplaced. For, in the present fact situation, the first appellate court as well as the trial court committed patent error while holding that the alienations are illegal and invalid in view of non compliance of Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Moreover, inspite of vague plea of fraud and poor quality of evidence in this behalf, it was held that fraud was played on the plaintiff No. 1 at the time of execution of sale deeds in favour of the defendant Nos. 2 and 3. The perverse findings of facts cannot be stamped by this Court as correct one only because they are concurrent findings. The jurisdiction of the High Court is not ousted under Section 100 of Civil Procedure Code only because there are concurrent findings of facts, though, they are found to be patently erroneous and perverse. In this view of the matter, the argument of learned advocate Mr. Kendre is unacceptable and hence rejected.
31. The plaintiffs have not claimed relief of cancellation of the sale deeds. They only claimed declaration that the sale deeds are not binding on them. The claim for immunity is distinct from claim for cancellation of the sale deeds or for setting aside of the sale deeds. The suit for possession without a specific claim for setting aside the sale deeds is not maintainable. In Nagappan v. Ammasai Gounder and Ors. (2004) 13 Supreme Court Cases 480, the Apex Court held that sale effected without taking permission of the Court Under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 is voidable at the instance of the minor plaintiffs and the plaintiffs are required to get the alienation set aside if they want to avoid the transfer and recover property from purchasers. It is held that if a prayer for setting aside the alienation is not made, then the suit seeking possession would not be maintainable. In this view of the matter, the suit filed on behalf of the minor plaintiff Nos. 2 and 3 was not maintainable and should have been dismissed by the first appellate Court. The impugned judgment and decree is therefore, not maintainable.
32. It appears that during pendency of the appeal the plaintiff No. 3 Asrabai is married. On account of subsequent development, she is not entitled to claim any share in the joint family properties. She is not coparcener or co-sharer, The plaintiff No. 2 has not independently challenged the alienation for want of legal necessity. The first appellate court rendered findings of fact that there was legal necessity in existence at the material time, when the alienations were made. Consequently, the alienations could not be invalidated by the trial court as well as the first appellant court for reasons recorded by them. Under these circumstances, the suit must fail. However, having regard to the facts and circumstances of the present case, I deem it proper to leave the parties to bear their own costs throughout.
33. In the result, the appeal is allowed. The impugned judgments are set aside. The Suit (R.C.S. No. 40 of 1990) stands dismissed. The parties shall bear their own costs throughout.
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