Sonamati Devi Wife Of Binod Dhar ... vs Vijay Kant Dhar Dubey Son Of Late ...
2022 Latest Caselaw 966 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No. 182 of 2013
1. Sonamati Devi wife of Binod Dhar Dubey
2. Nawalesh Kumar Dhar Dubey
3. Shailesh Kumar Dhar Dubey
4. Pankaj Kumar Dhar Dubey
5. Vikas Kumar Dhar Dubey
   Sl. Nos. 2 to 5 sons of Shri Binod Dhar Dubey
6. Priyanka Kumari daughter of Binod Dhar Dubey,
   Appellant Nos. 1 to 6 are minor sons & daughter are represented by their
   mother Sonamati Devi, Appellant No. 1)
   All resident of village- Achala Nawadih, P.O., Soh, P.S. & Distt- Garhwa.

                                                 .....   .....      Appellants
                                 Versus
1. Vijay Kant Dhar Dubey son of late Bihari Dhar Dubey
2. Smt. Madhu Dhar Dubey wife of Vijay Kant Dhar Dubey
3. Binod Dhar Dubey son of Ramakant Dhar Dubey,
     All resident of village- Achala Nawadih, P.O. Soh, P.S. & Distt- Garhwa.
                                              .... ....             Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Niraj Kishore, Advocate For the Respondents : Mr. Santosh Kumar Tiwari, Advocate Mr. Brahmdeo Prasad Jaiswal, Advocate.

Mr. Lalan Kumar Singh, Advocate.

CAV ON 15.02.2022 PRONOUNCED ON 10 .03. 2022

1. Plaintiff has preferred the appeal against the judgment and decree dated 21.06.2013 passed by District Judge-II, Garhwa in Title Appeal No. 19/2009 reversing the judgment dated 20.05.2009 passed by Sub Judge-I Garhwa in Title Suit No. 36/2007.

2. Parties will be referred by their placement in the suit and shall include their legal representative substituted at any stage.

3. Plaintiff no. 1 Sonmati Devi is the wife of defendant no.3 and the suit has been filed for declaration of the registered sale deed no. 41146 dated 29.10.2004, registered sale deed nos. 10564 and 10565 dated 23.12.2004 executed by defendant no.3 in favour of defendants nos.1 & 2 to be ineffective and not binding for being executed by fraud. Other plaintiffs are the minor children of plaintiff no.1 and defendant no.3.

4. It is the case of the plaintiff that since defendant no. 3 had become a habitual drinker since long and he does not take care of his family

and children, therefore, plaintiff no. 1 is natural guardian of her minor children. It is averred that the defendant nos. 1 and 2 are men of means who use to reside at Hazaribag, defendant no. 1 is posted as Professor in Degree College or University there. Both defendant no. 1 and 2 used to visit the village, they took advantage of bad habit of defendant no. 3 and they usually offered wine and delicious meals to him. It is further alleged that the plaintiff protested against behaviour of defendant several times and requested them not to provide wine to her husband. It is further alleged that the sale deed is a forged and manufactured document. The plaintiff got information about the execution of sale deed when on 29.4.07 the defendants came for construction of the boundary wall.

5. The suit has been contested by both the defendants nos.1 & 2 and the allegation of the registered deed of sale being executed by fraud and undue influence has been denied. It is their positive case that defendant no. 1 was Professor in Binova Bhawe University, Hazaribag and the suit land has been transferred by defendant no.3 from the share allotted to him on partition. The sale deed had been executed for valuable consideration on the proposal made by defendant no.3.

6. A separate written statement has been filed on behalf of defendant no.3. It has been denied that he was an alcoholic, but he did take wine only occasionally. He has denied that the land was in his conscious physical possession. He has however admitted the plaintiff's case to some extent and has stated in the written statement that the land was not transferred to defendant nos.1 and 2 in conscious state of mind. It has also been denied that he had received consideration amount from the defendants.

7. On the pleadings of the parties, nine issues were framed by the learned trial court :-

I. Is the suit maintainable as framed? II. Have the plaintiffs any cause of action for the suit? III. Is the suit barred by the principal of estoppel, waiver and acquiescence?

IV. Is the suit barred by section 34 of the Specific relief Act? V. Is the court fee paid in adequate? Whether payment of ad-volerum court fee is required?

VI. Is the suit barred by mis-joinder of party?

VII. Whether the sale deed no. 41146 dated 29.10.04, 10564 and 10565 dated 23.12.04 executed by Binod Dhar Dubey in favour of defendant no. 2 confer right, title and possession to the defendant no. 2?

VIII. Are the plaintiffs entitled for the reliefs as prayed?

IX. To what other relief or reliefs, the plaintiffs are entitled?

8. The trial court decreed the suit for cancellation of the deed on the following grounds.

Firstly, under section 8 of Hindu minority and guardianship act 1956 the natural guardian of a Hindu minor has power, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal liability. He cannot without the previous permission of the court dispose of immovable property in contravention of sub-section (1) of Section 8. Under section 381 of Mayen's Hindu law except in the matter of gifts through affection and for alienations of antecedent debts and in the matter of his power to effect a partition amongst his son's, there is under the Mitakshara law no distinction between a father and his sons. They are simply coparceners. Where the property is ancestral, each son by birth acquires an interest equal to that of his father.

Secondly, a sale or mortgage of family property by the managing member is valid on the ground of justifying family necessity where it is for the payment of debts binding on the family and other dues. The suit land was ancestral property as stated in the recital of the sale deeds and as per section 6 of the Hindu succession act 1956 the property being ancestral devolved on partition on all the members of the joint family, namely plaintiff nos. 2 to 6 and defendant no.3. Defendant no.3 had no right to transfer the ancestral land of his minor children.

Thirdly, defendant no.3 had the right to transfer only his share which he acquired by partition and therefore the transfer of shares of his minor children (Plaintiffs nos. 2 to 6) were to that extent void ab-initio.

9. The appellate court reversed the judgement of the trial court and decreed the suit on the following grounds.

Firstly, there was neither pleading nor any issue as framed regarding the nature of the suit property and without it the trial court has held that the suit

property was coparcenary property. The finding was beyond the pleadings and the trial court had in effect made out a third case not pleaded by either of the side. There is no pleading that the subject matter of the sale deed was joint family coparcenary property and, therefore, the court could not have assumed such a fact.

Secondly, none of the plaintiffs witness where present at the time of the execution of the sale deed and therefore there is no evidence of non-payment of consideration amount or the sale deed being obtained by fraud or undue influence.

Thirdly, from the bare perusal of the pleadings of defendant number three it will be evident that he had supported the case of the plaintiff and was colluding with the plaintiffs. Ext A/4 goes to show that father of defendant no.3 Rama Kant Dhar Dubey had transferred 0.67 ¾ acres of land by way of registered deed of gift in favour of his son Binod Dhar Dubey (D3) the recital of this gift deed shows that the land transferred was acquired by the donor in a family partition held between him and his sons including the donee. It also mentions that the donee D3 used to serve him and out of love and affection he had gifted the property. Ext A/5 shows that defendant 3 had acquired 11 decimal land by way of purchase through registered sale deed after making payment of cash consideration of Rs 16,000/-. These positive evidences, rebut the plaintiff's case that defendant no.3 was an alcoholic and was destroying the family property. The appellate Court allowed the appeal mainly on the ground that it was a collusive suit between plaintiff and D3 to avoid the registered deed of sale.

10. The appeal has been preferred on the ground that the appellate Court has grossly erred by taking a technical view of the matter and discarding the evidence on record merely because there were no pleadings on the point. The defendant no.1 had disposed of ancestral property which indisputably he had no right to sell and thereby it did not transfer right, title and interest in the property to the defendants.

11. The plea that land was ancestral and father had no right to alienate the same in which his minor children had a coparcenary interest is a question of law which can be raised at any stage even if any pleading has not been made in this regard. Pleadings of fact are essentially assertions of facts which are necessary to be pleaded and proved. But the same does not apply to

legal pleas which can be raised at any stage without such plea having been taken. Here the plea whether the father had a right to dispose of ancestral property in which the sons had a coparcenary interest can be disposed or not is a legal plea and can be raised at any stage unsupported by pleading. But, it was necessary to plead and prove that subject matter of property was ancestral.

12. The trial court was in error to hold that defendant no.3 being the father of the Plaintiff nos.2 to 3 could not have alienated the coparcenary property in view of Section 8 of the Hindu Minority and Adoption Act. Even if it is assumed that the suit property was ancestral property, the father being the Karta of the joint Hindu family, his right to alienate the property is well recognized. He is not a natural guardian in terms of Hindu Minority and Guardianship Act, 1956 (hereinafter called HMG Act) but being the father has right to alienate the property. Position of law is emphatically laid down by Hon'ble the Apex Court in 2021 SCC Online 1258 M.R. Vinod Vs M.S. Susheelamma "The position in Hindu Law is well settled. In Sri Narayan Bal v. Sridhar Sutar, this Court interpreting Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 ("HMG Act", for short), has held that these two Sections are not to be viewed in isolation, albeit in harmony and conjunction, and when read together the intent is manifest that HMG Act does not envisage a natural guardian of an undivided interest of a Hindu minor in a joint Hindu family property. A natural guardian of a Hindu minor in respect of the individual property alone is contemplated under Section 8, whereunder the powers and duties of a natural guardian are defined. The provisions of the HMG Act with the object of saving the minor's separate individual interest from being misappropriated require a natural guardian to seek permission from the Court before alienating any part of the minor's estate, do not affect the right of the Karta or the head of the branch to manage and from dealing with the joint Hindu family property. In terms of Section 12, ordinarily no guardian shall be appointed for minor's interest in joint Hindu family. Only when there is no adult member in the management of the joint family property in which the minor has an undivided interest - and then alone

- a guardian may be appointed. Further, the adult family member in the management of the joint family property may be a male or female, not necessarily the Karta. Therefore, Section 8 of the HMG Act that requires a

guardian of a Hindu minor to seek the permission of the Court before he disposes of any immovable property of the minor will have no application when a Karta or adult head of the family alienates joint Hindu property even if one or more coparceners are minor. The reason is that Section 8, in view of the express terms of Sections 6 and 12, would not apply where a joint Hindu family property is sold/disposed of by the Karta or head of the family even when a minor has an undivided interest in the said joint Hindu family property"

From the above exposition of law, it follows that requirement of a natural guardian to seek permission of the Court for alienation of the property applies to case where it is individual property of the minor and not of undivided interest in the joint Hindu property. Right of a Karta of a joint Hindu family to dispose of joint family property involving the undivided interest of the minor of the family is beyond any dispute. It has been further held that the minor has a right to challenge the alienation if the same is not per law.

13. The matter for consideration in the instant case is whether the registered sale deed was vitiated on the ground of fraud or it was executed without any legal necessity or benefit of the family?

14. At the outset it must be noted that the suit has been filed for a declaratory relief of declaring the registered sale deed executed by the defendant no. 3 and husband of the plaintiff, in favour of defendant nos.1 & 2 as null and void, being vitiated by fraud. The learned Appellate Court has rightly noted that defendant no.3 had clearly colluded with the plaintiff in as much, he had admitted that he was not in conscious state of mind while executing the sale deed and pleaded in the written statement that he had also not received the consideration amount for the sale. On the other hand, from documentary evidence as discussed by the appellate Court it is evident that he was during the same period purchasing land in other transactions. Thus, selectively losing conscious state of mind to avoid a registered deed of sale raises serious suspicion over the conduct of the defendant no.3. I find substance and merit in the finding of the Appellate Court that defendant no.3 had been set up as a drunkard to avoid the registered deed of sale.

15. Declaratory relief claimed under Specific Relief Act, is discretionary in nature unlike suits like money suits, where the relief is

claimed as a matter of right. It has been held in Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575 "Section 20 of the Specific Relief Act lays down that the jurisdiction to decree a suit for specific performance is a discretionary jurisdiction and the court is not bound to grant such relief merely because it is lawful". The conduct of the plaintiff and defendant no.3 does not inspire confidence, rather it appears to be a ploy to resile from the registered deed of sale after taking full consideration money. There is a presumption of due execution in favour of a registered sale deed and a heavy burden lies on a party who assails it. It has been held in Bellachi v. Pakeeran, (2009) 12 SCC 95 "Order 6 Rule 4 and Order 6 Rule 2 of the Civil Procedure Code, makes it clear that there shall be specific pleading with sufficient particulars regarding the fraud or undue influence, misrepresentation, etc." In the instant case as discussed above there is no credible evidence worth the salt that the deed was vitiated by fraud or undue influence or the consideration amount was not paid. The sale deed was executed in the year 2004 and suit has been filed in the year 2007 but defendant no.3 never complained about the non-payment of the consideration amount till he took the plea in the written statement. There is presumption in favour of due execution of a registered deed of sale which has not been rebutted by any credible evidence that the deed was obtained by fraud or/and undue influence of liquor.

Under the circumstance, I do not find any infirmity in the impugned Judgment and decree passed by the appellate Court which is accordingly affirmed. The appellant has failed to raise any substantial question of law to admit the appeal.

The appeal is dismissed with cost at the admission stage itself. Cost assessed at Rs 25,000/- through out.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 10th March, 2022 AFR / Anit