Shantabai Wd/O Givindrao ... vs Indubai Wd/O Raghunath Charmore
2004 Latest Caselaw 805 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This Second Appeal has been preferred by the original Defendant/appellant herein against the original plaintiff/respondent herein, and thereby, challenged the judgment and decree dated 21-6-1991 passed in Regular Civil Appeal No. 190 of 1990, whereby appellant original defendant's appeal was allowed and the judgment and decree passed by the trial Court in Regular Civil Suit No. 656 of 1987 dated 21-8-1990 was set aside, whereby it has been further directed to deliver the possession of the suit field to the respondent immediately and permanent injunction from interfering with the possession was also granted.

2. This Second Appeal was admitted on 19-7-1991 on the following question of law : "Admit on the ground of validity of a Sale Deed executed in favour of the respondent." Learned Advocate appearing for the appellant requested to agitate an additional question of law : Whether the learned Lower Appellate Court was justified in quashing and setting aside the judgment and decree passed by the trial Court especially when the respondent/plaintiff did not enter the witness box to prove her case? The above additional question of law has been raised by Civil Application No. 4811 of 2004 under the signature of the Advocate appearing for the appellant dated 23-7-2004. This matter was heard initially on 15-7-2004 and then on 16-7-2004. The learned Advocate appearing for the appellant contended that this being the substantial question of law, based on the existing pleading and/or undisputed position, be taken as an additional substantial question of law. None appeared for the respondent. This Civil Application remained unserved. We have gone through the evidence on the record, led by the parties. There is no dispute that one Krishna led evidence on behalf of Indubai and not Indubai herself based on the General Power of Attorney. The said Krishna was cross-examined also. There was no objection raised of any sort before the Trial Judge while cross-examining and/or while allowing such General Power of Attorney holder to lead evidence on behalf of the plaintiff. Thereafter, the suit of the original plaintiff was dismissed by order dated 21-8-1990. In the said proceedings, no issues were insisted or raised to that effect. We have gone through the Memo of Appeal filed by the original plaintiff. There was no cross-Appeal of the opponent therein. The Appellate Court also, after considering the issues, as well as, grounds raised and after hearing both the parties, held that the respondent is entitled for possession of the suit and permanent injunction and accordingly, judgment and decree dismissing the suit of the respondent was set aside as observed and permanent injunction has been granted.

3. The Second Appeal was admitted only on the question, as referred above. No other ground or any question of law was raised at the relevant time. In my view, therefore, such pleading and/or alleged question of law, as not involved, cannot be allowed to be raised for the first time in the Second Appeal in the facts and circumstances of the case itself. The learned Advocate appearing for the appellant relied on , Ram Prasad v. Hari Narayan and thereby contended that in view of this judgment passed on Order III, Rule 2 of the Code of Civil Procedure, read with Section 118 of the Indian Evidence Act, the Power of Attorney holder is not entitled to appear as a witness for the party appointing him the Power of Attorney holder. Therefore, such Power of Attorney holder cannot appear as a witness on behalf of a party. In the present case, admittedly, the evidence was led by the Power of Attorney holder, Therefore, relying on this decision, the learned Advocate contended that this question needs to be considered and the matter be heard accordingly. In the case of Ram Prasad (supra), an application was filed to allow the son of the plaintiff to appear as witness on his behalf through the General Power of Attorney. The said application was contested then and there only before the Trial Judge. The Trial Judge, after considering the above position, rejected the same and, therefore, Appeal was filed and the rejection order was maintained. In the present case, admittedly, there was no such objection raised at any point of time, respondent-plaintiff was allowed to lead evidence, cross-examination by the parties and accordingly, judgment was passed. There was no insistence for framing issues on that aspect. No ground or cross-Appeal was raised so far as that part is concerned. In the Second Appeal also, there was no such ground raised initially. Therefore, I am of the view there is no such substantial question of law involved, in the facts and circumstances of the case and cannot be allowed to be agitated for the first time in this Second Appeal. Therefore, the Civil Application itself is rejected. Parties will suffer great injustice and hardship if such pleas are allowed to be raised in Second Appeal after lapse of more than 17 years. This plea itself is not sufficient to allow the Second Appeal. This Second Appeal is decided on the following facts and reassessing, even otherwise.

4. Considering the facts and circumstances of the case, the alleged substantial question of law is not involved and/or there is no further discussion required in view of the above undisputed position of facts.

5. Facts :-- The respondent-plaintiffs Regular Civil Suit No. 656 of 1987 has a foundation of the dispute relating to 82 R. land out of field Survey No. 18, admeasuring 6 acres 20 gunthas of village Kajana, Taluka Nandgaon, Khandeshwar, District Amravati. The suit field was owned by one Govindrao Ghorpade, the husband of the original defendant No. 1 and father of the original defendant Nos. 2 and 3. Govindrao Ghorpade had sold the suit field to his grandsons Ramhari Bhimrao Ghorpade and Suresh Bhimrao Ghorpade under the registered Sale Deed dated 25-2-1983. The said Ramhari and Suresh had sold the said property to the respondent-plaintiff under a registered Sale Deed dated 25-5-1984 for a consideration and the respondent has been in possession since then. The suit was filed by the original defendants' interfering with the peaceful possession of the suit field. The original defendants resisted the said Suit by Written Statement and thereby contended that on 25-5-1982, the said Govindrao Ghorpade had executed a Will in respect of the suit field in favour of the defendant No. 2 Lilabai and, therefore, the Sale Deed executed in favour of Ramhari and Suresh was null and void. They alleged that Ramhari and Suresh deceived Govindrao Ghorpade and obtained his signature on the Sale Deed by practicing fraud and coercion and, therefore, Ramhari and Suresh had no right to execute the Sale Deed in favour of the plaintiff. The original defendant No. 2 claimed to be in possession since the date of execution of the Will. She denied the possession of the plaintiff. She, therefore, prayed for dismissal of the Suit. The learned Judge, after considering the material, as well as, the evidence led by the parties, which includes the evidence of Indubai-original plaintiff through Power of Attorney holder Krishna. The Trial Judge held that the plaintiff is not entitled for perpetual injunction and/or possession of the suit field based on a registered Will dated 25-5-1983 and thereby observed that the execution of the Sale Deed by the said Govindrao in favour of Ramhari and Suresh of the year 1983 through the registered Sale Deed, was silent about the Will and as there was no revocation of such Will, Govindrao had no right to transfer such property, without revoking the will under the Indian Succession Act, 1925. There cannot be implied revocation. The Trial Judge, therefore, relied in AIR 1925 Patna 729. The relevant portion is reproduced as under :

"After having made a will, the testator executed a deed of sale in which he wrote "I have cancelled the said Will and rendered it null and void" and he conveyed only two of the properties devised by the Will. Held that the general scope and intent of the deed of sale was not revoked the previous Will in its entirety.

Based on this principle, the learned Trial Judge held that the execution of the Sale Deed by Govindrao in favour of Ramhari and Suresh was not valid without invoking the Will and, therefore, the said Will remained in force and so the title also remained with the original defendant No. 2 by the said Will and, therefore, the Sale Deed executed in favour of Ramhari and Suresh and further by Ramhari and Suresh in favour of the plaintiff be treated as null and void. The title could not be passed to the respondent-original plaintiff by way of such Sale Deed and, therefore, plaintiff was not entitled for the possession and/or perpetual injunction.

6. The original plaintiff, therefore, preferred Regular Civil Appeal No. 190 of 1990. The learned Appellate Judge, after considering the merits, as well as, legal submissions, held that the respondent-plaintiff is entitled for possession of the suit property and for permanent injunction and accordingly, the trial Court judgment and decree was set aside. Therefore, this Second Appeal by the original defendants-appellants herein.

7. Reasoning : In my view, the Appellate Court is correct. The trial Judge was wrong. The suit had been rightly decreed. Plaintiffs are entitled for possession and entitled for injunction as claimed and as awarded by the Appellate Court by its judgment dated 21st June 1991. The order needs no interference. In the Second Appeal, no submission has been raised on any other count by the appellants. According to me, the Sale Deed executed in favour of the original plaintiff-respondent by Ramhari and Suresh is legal and valid. Govindrao being the owner of the property, has right to transfer his property to any person including in favour of Ramhari and Suresh. The Sale Deed executed by Govindrao in favour of Ramhari and Suresh is valid.

8. The Will and its law is very well settled. The Will takes effect only after the death of the testator and not before that Govindrao, being the owner of the property, even though by registered Will dated 25-5-1983 bequeathed the property in favour of the defendants, even without invoking the same and if the same Govindrao disposed of and/or sold the property to any third person, in the present case in favour of Ramhari and Suresh, such transfer cannot be said to be illegal or contrary to law. The revocation of the registered Will and/or related issue, in the present case, cannot be made applicable. This is not a case of "Will versus Will". The testator Govindrao has full right to transfer the right or interest in the property, which was bequeathed, as contended. The reliance on AIR 1925 Patna 729 by the learned Trial Judge, as rightly observed by the Appellate Court, is totally inapplicable. That was also not a case where there is any observation that there should be revocation of the Will by the maker in order to execute the Sale Deed and same property and/or there should be specific mention about the said revocation in the Sale Deed. According to me also, the judgment passed by the trial Judge was totally perverse and contrary to law and was unsustainable. Govindrao had a right to transfer the property even though the same property was under a registered Will. In that case, the Sale Deed which was executed by the said Govindrao and thereafter by the said Ramhari and Suresh in favour of the plaintiff cannot be said to be void or bad in law. All these transactions are within the framework of law. According to me, therefore, the Sale Deed executed in favour of the respondent is valid. I answer the issue accordingly.

9. In view of this, I see there is no reason to interfere with the reasoning and finding given by the First Appellate Court while allowing the Appeal of the respondent-plaintiff and, therefore, the possession of the defendant was illegal. The plaintiff-respondent Indubai has established her title. In view of this and in addition to the statement placed on the record, including the mutation entries also reflect as observed, the name of the plaintiff-respondent. The evidence of the plaintiff through Krishna also supports the same. The title of Indubai has, therefore, duly been proved. Merely because there is no name of Indubai in some statement, that itself cannot be reason to declare that she was not in possession. The Appellate Court also observed, and rightly so, that the trial Court should not have granted injunction and the respondent-plaintiff is entitled to get possession of the suit field. The above reasoning, according to me, given by the Appellate Court based on the material, as well as, on the evidence, needs no interference.

Conclusion :

10. The Second Appeal filed by the appellant, therefore is dismissed. No order as to costs. The interim order, as granted, is also vacated accordingly.