Jharkhand High Court
Prem Kumar Mahato vs Pustam Mahato (Abated) on 5 February, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 119 of 2017
1. Prem Kumar Mahato
2. Nirmal Kumar Mahato
Both sons of late Pran Mahato and Bhutia Mahtain, residents of
village Dharjori, P.O. Bhuli Nagar, P.S. Katras, District-Dhanbad
... ... Appellants/Respondents/Plaintiffs
Versus
1. Pustam Mahato (abated)
2. Tanik Mahato
3. Manik Mahato
4. Dhanu Mahato, all sons of late Jugal Mahto
5. Buchu Mahato
6. Ram Sagar Mahato
7. Kandu Mahato
8. Nageshwar Mahato, all sons of Bhaglu Mahato, all residents of
Dharjori, P.O. Bhuli Nagar, P.S. Katras, District-Dhanbad
... ... Respondents/Appellants/Defendants
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. S.K. Sharma, Advocate
: Mr. Ramchander Sahu, Advocate
For the Respondents : Mr. Shekhar Prasad Sinha, Advocate
---
Lastly heard on 28.01.2025
15/05.02.2025 This second appeal has been filed against the judgment and
decree dated 15.12.2016 (Decree signed on 22.12.2016) passed by the
learned District Judge - XVII, Dhanbad in Title Appeal No. 108 of
2015 whereby the appeal has been allowed and the judgment and
decree passed by the learned Trial Court has been set aside. The
judgment and decree by the Trial Court dated 30.09.2015 (Decree
signed on 16.10.2015), has been passed by the learned Additional
Civil Judge (Junior Division), Dhanbad in Title Suit No.01 of 2003,
whereby the suit was partly allowed and decreed on contest.
2. This second appeal was admitted vide order dated 12.04.2018
on the following substantial questions of law:
A. Whether learned appellate court while reversing trial court
judgment committed serious error of law as it failed to construe
true purport of "Nadabi" deed no.307 and 310 dated 05.01.72
(Ext.2 & 2/1), an ab initio void documents were executed without
consideration, never acted upon & did not confer any title upon
Jugal Mahto?
B. Whether learned appellate court while reversing the trial court
judgment erred in law in holding that suit is barred by law of
limitation, estoppels, acquiescence?"
3. The suit was filed seeking a declaration that the Nadabi deeds
No.307 dated 5-1-1972 and No.310 dated 5-1-1972 are null and void,
sham transaction, never acted upon and be delivered cancelled up. A
further prayer was made to seek a decree for permanent injunction
restraining the Defendants from interfering with the peaceful
possession of the Plaintiffs and alternatively for a decree of possession
if the plaintiffs are dis-possessed during the pendency of the suit.
Arguments of the appellants (plaintiffs)
4. It has been submitted that as per the Plaint, the land was
possessed by one Prayag Mahato, who died leaving his widow Gendia
Mahatain and Prayag Mahato had earlier gifted the property in favour
of Gendia Mahatain vide Gift Deed No.7205 of 1962; Gendia Mahtain
sold a portion of the land to Bhutia Mahtain, wife of Pran Mahato on
30.08.1971 vide registered Sale Deed (Exhibit-1) and put Bhutia
Mahtain in possession; Gendia Mahtain also sold remaining land to
Pran Mahato, the father of the plaintiffs, on 30.08.1971, registered
Sale Deed (Exhibit-1/A). Thus, Bhutia Mahtain and Pran Mahato
possessed the land mentioned in the Schedule to the Plaint.
5. On 15.03.2002 the plaintiffs came to know that the defendants
had purchased the suit land from one Jugal Mahato, in whose favour
two registered Nadabi deeds (relinquishment deeds) both dated
05.01.1972 were executed by Gendia Mahtain and Pran Mahato in
favour of Jugal Mahato. The specific case of the plaintiffs was that the
Nadabi deeds were not acted upon. However, Jugal Mahto sold and
transferred these lands to the defendants vide registered sale deed
dated 27.01.1986, who got their name mutated. Further case of the
plaintiffs was that Nadabi deeds were without consideration, and
therefore Jugal Mahto, did not acquire any right, title and interest over
the lands covered by both the Nadabi deeds and a prayer was made to
declare that both the Nadabi deeds were null and void.
6. A reference was also made to large number of proceedings,
including proceeding under Section 144 Cr.P.C, being M.P. Case
No.1090 of 1986, drawn at the instance of father of the plaintiffs Pran
Mahto, which was converted into a proceeding under Section 145 and
was dropped on 08.08.1988. A reference was also made to appeal filed
by Pran Mahato under Section 89 of Chota Nagpur Tenancy Act, 1908
which was dismissed on 27.09.1999. A reference was also made to a
writ petition filed in the year 2000 by Prem Kumar Mahato, Plaintiff
No. 1.
7. The defendants appeared and stated that the suit was barred by
the law of limitation and was also against other provisions of law. The
Nadabi deeds were duly executed on 05.01.1972 and the plaintiffs had
no cause of action and the suit was filed after lapse of 30 years. It was
also their case that by virtue of Nadabi deeds, the right of Pran
Mahato and Bhutia Mahtain extinguished and the Nadabi deeds were
acted upon and they claimed to be in possession of the property and
also made a case for adverse possession stating that Jugal Mahto
continued to possess the land since 05.01.1972 and Jugal Mahto sold
and transferred the land to Pustam Mahato and others on different
dates and put them in possession over the same. The defendants were
the heirs of the purchasers, who were in peaceful possession of the suit
property.
8. The learned Trial Court framed the following issues for
consideration:
1. Whether there is any cause of action for filing the present
suit?
2. Whether the suit is maintainable?
3. Whether the suit is barred by Law of Limitation?
4. Whether the suit is barred under the principle of waiver,
acquiescence and estoppel?
5. Whether the suit land is in possession of the plaintiffs?
6. Whether the sale deed dated 30.8.1971 was executed in favour
of Pran Mahato and Bhutia Mahatain and they paid
consideration money for the purchased land to the vendor?
7. Whether the Nadabi Deeds dated 5.1.1972 are lawful
documents and whether any right, title, interest through these
two Nadabi Deeds confer any title upon the defendants or
their predecessor-in-interest?
8. Whether the sale deed executed by Jugal Mahato in favour of
Pustam Mahato and others is a proper deed of sale having
equitable right over the suit land and whether the defendants
have any right, title, interest over the suit land through this
sale deed dated 27.1.1986?
9. Whether the plaintiffs are entitled for the reliefs claimed by
them?
10. To what relief or reliefs, the plaintiffs are entitled to?
9. The learned counsel for the appellants has submitted that the
claim of adverse possession made by the defendants was rejected and
the said finding has attained finality.
The Issue Nos. 3 and 4 were taken together, and it was held that
Nadabi deeds were fictitious transactions, and they were never acted
upon, and the plaintiffs brought the suit in the year 2003, after notice
of mutation by the defendants in the year 2002 and the point of
limitation was answered in favour of the Plaintiffs.
The point in connection with sale deed dated 30.08.1971 and Nadabi
deeds dated 05.01.1972 in favour of Jugal Mahto, were Issue Nos. 6
and 7. So far as Issue No. 8 is concerned, it was in connection with the
subsequent sale deed executed by Jugal Mahato in favour of Pustam
Mahato (Defendant No.1) and Ram Sagar Mahato (Defendant No.6).
The issue Nos. 5, 6, and 7 were taken up together and the learned
Trial Court held that the Nadabi deeds did not show any consideration
amount, and the Nadabi deeds are only documents by which the
persons give up their right, but cannot transfer of his title through
these deeds, and consequently held that Jugal Mahato never acquired
any title through the Nadabi deeds [ Exhibits- 2 and 2/A]. It was held
that in spite of execution of Nadabi deeds, Jugal Mahato never
received any title. It was recorded that Benami transaction is
prohibited under law, and consequently issue Nos. 5, 6, and 7 were
decided in favour of the Plaintiffs. No separate finding was recorded
in connection with issue no.8 which was backed by Nadabi deeds and
it was observed that since the main issue was decided in favour of the
plaintiffs, no separate discussions were required.
The suit was partly allowed and decreed on contest and original
Nadabi deeds No. 307 and 310 both dated 05.01.1972 were cancelled,
declared void ab initio. It was also held that title is not transferable
under the Nadabi deeds and therefore the Nadabi deeds were always
in the safe hands of the plaintiffs and their parents and the plaintiffs
were not dispossessed during the pendency of the suit and the decree
was directed to be prepared accordingly.
10. The learned counsel has also referred to the Appellate Court
judgment and has submitted that the Appellate Court while reversing
the judgment and decree held that the suit was barred by limitation by
observing that the father of the plaintiffs had full knowledge about the
Nadabi deeds, but never challenged the same. The issue regarding
limitation was decided vide Paragraph-12 of the Appellate Court
judgment.
11. The learned counsel has submitted that the Nadabi deeds were
in fact produced by the plaintiffs and were Exhibit- 2 and 2/A
although it was the defendants who were claiming their title through
the Nadabi deeds, but original Nadabi deeds were never found in the
possession of the defendants.
12. The learned counsel for the appellants has referred to the
evidence of the Plaintiff No.1, who was examined as PW-4 to submit
that PW-4 was duly examined on the point of knowledge with regard
to the Nadabi deeds and PW-4 came to know about Nadabi deeds
only when the mutation notice was issued to him. The learned counsel
has submitted that father of the plaintiffs expired in the year 1994,
which has come in the evidence of the plaintiffs. The learned counsel
submits that the appellate court has wrongly held that the suit was
barred by limitation. The learned counsel has also submitted that
without prejudice to the aforesaid submissions on the point of
limitation, once the deed is void ab initio, it is as good as nullity, and
therefore the point of Limitation Act would not come in the way.
13. The learned counsel for the appellants has relied upon the
judgment passed by the Hon'ble Supreme Court, reported in 2006 (3)
JLJR 164: (2006) 5 SCC 353 (Prem Singh & Others -vs- Birbal &
Others), and in particular referred to paragraph 29 of the said
judgment. The learned counsel has submitted that since the Nadabi
deeds were without any consideration, therefore the same are null and
void, and consequently no right could have flown upon the defendants
on the basis of the Nadabi deeds. He has also submitted that the
Nadabi deeds were barred under the provisions of Benami Transaction
Act in view of the fact that the defendants have claimed that the
consideration amount for the purchase of the property by the parents
of the plaintiffs was paid by the Jugal Mahto and when the parents of
the plaintiffs were unable to pay the amount to Jugal Mahto, the
parents of the plaintiffs executed the Nadabi deeds in favour of Jugal
Mahto. He submitted that the Nadabi deeds by itself did not reveal any
consideration amount and Jugal Mahto was claiming the property
through Nadabi deeds.
14. The learned counsel also submits that the defendants were
claiming that the property was Benami in the name of the parents of
the plaintiffs and that the consideration was paid by Jugal Mahto. The
learned counsel submits that such Benami transaction is not
recognized under law and on the basis of such Nadabi deeds, the
defendants would not get any title of the property. The defendants
were claiming the property by virtue of subsequent sale deed backed
by Nadabi deeds.
15. The learned counsel for the appellants has also referred to the
judgment passed by the Hon'ble Supreme Court reported in (1989) 2
SCC 95 (Mithilesh Kumari and Another Vs. Prem Behari Khare)
and referred to paragraph 20 of the said judgment to submit that the
retroactivity of the Benami transaction Act has been considered and
has submitted that even the transactions prior to 1988 were affected
and therefore the Benami transaction which had taken place way back
in the year 1972 is under cloud.
16. The learned counsel has also submitted that subsequently in the
judgment passed by the Hon'ble Supreme Court reported in (2023) 3
SCC 315 (Union of India & Anr -vs- M/s Ganpati Dealcom Pvt Ltd),
certain provisions of the Benami Property Transaction Act 1988 were
declared unconstitutional, but a review petition in connection with the
same has been allowed by the Hon'ble Supreme Court vide judgment
dated 18.10.2024 passed in Review Petition (Civil) No. 359 of 2023,
which is reported in 2024 SCC OnLine SC 2981 (Union of India and
Another -vs- Ganpati Dealcom Pvt. Ltd.).
Arguments of the Respondents.
17. The learned counsel appearing on behalf of the respondents, has
opposed the prayer and has submitted that the point of limitation has
been rightly decided by the learned appellate court. He has submitted
that the appellate court has not only recorded that the father of the
plaintiffs had due knowledge about the Nadabi deeds, but even the
plaintiffs had full knowledge. The learned counsel submits that the
Nadabi deeds were executed by the parents of the plaintiffs, who were
purchasers of the property involved in this case, and it was not their
ancestral property. The learned counsel has also referred to Exhibit - B
and submits that Exhibit - B is relating to appeal filed under Section
89(2) of Chota Nagpur Tenancy Act,1908 and was numbered as 197
of 1986, filed by the Plaintiff No. 1, and it was decided on 27.09.1999,
in which there is a reference of Nadabi deeds, and therefore, the
learned appellate court has rightly held that the plaintiffs had
knowledge about the Nadabi deeds much prior to the year 2002. He
has also submitted that the plaintiffs had filed the suit seeking
cancellation of the Nadabi deeds, and therefore, it is not open to the
plaintiffs to say that the law of limitation would not apply. During the
course of arguments, a reference of judgement passed by the Hon'ble
Supreme Court reported in (1996) 7 SCC 767 (Md. Noorul Hoda -vs-
Bibi Raifunnisa & Others) to show that once the suit is filed for
setting aside an instrument, the same is to be guided by the Limitation
Act. The learned counsel submits that the substantial question of law
as in point no.(B) is fit to be decided in favour of the respondents and
against the appellants.
18. The learned counsel has also submitted that once the point of
limitation is decided in favour of the respondents, no relief can be
granted to the appellants.
19. However, with respect to the substantial questions of law no.
(A), the learned counsel has referred to discussions made by the
learned Appellate Court. The learned counsel has submitted that issue
no. 5, 6, 7 and 8 have been considered together by the learned
Appellate Court and in the Nadabi deeds it was mentioned that the
registered sale deeds were Benami and the entire consideration money
was actually paid by Jugal Mahto in whose favour Nadabi deeds were
executed and the executors of Nadabi deeds had no possession over
the land. The learned court also considered the evidence of PW4 who
in his oral evidence has stated that the disputed land was purchased by
his father and mother. It has been considered that Pran Mahto and
Bhutia Mahtain parents of plaintiffs purchased the suit land vide
Exhibit A series on 30.08.1971 and relinquished the same by Exhibit 2
series mentioning therein that the land which was purchased in their
name was benami transaction and the entire consideration money was
paid by the Jugal Mahto and Jugal Mahto also came in possession of
the suit property. The learned counsel has submitted that the
consideration in connection with the suit property has been mentioned
in the relinquishment deed itself. The property was benami in the
name of the parents of the plaintiffs as the entire consideration money
was paid by Jugal Mahto and this having been recorded in the
relinquishment deed, the property was given to Jugal Mahto by way of
Nadabi deeds.
20. The learned counsel for the respondents has also submitted that
the purchaser of the property namely the parents of the plaintiffs had
themselves relinquished the property in favour of Jugal Mahto and
therefore, it was not open to the plaintiffs to say that the transaction
was not in accordance with law and question the transactions of
relinquishment by none less than their parents, that too, after their
death.
Findings of this Court
21. The plaintiffs are the appellants before this Court and reliefs
prayed in the suit has been mentioned above. The entire dispute
revolves around legality and validity of Nadabi deeds nos. 307 and
310 both dated 05.01.1972 and as to whether the suit itself seeking
declaration of Nadabi deeds as null and void was barred by limitation.
The substantial questions of law also have been framed on the
aforesaid two points which have already been quoted above.
22. The specific case of the plaintiffs was that part of the suit land
was sold by Gendia Mahatain to Bhutia Mahatain wife of Pran Mahato
vide Sale deed No. 21105 dated 30.08.1971 and remaining part was
sold by Gendia Mahatain to Pran Mahato vide sale deed no. 21106
dated 30.08.1971 and they were put in possession of the suit land.
Bhutia Mahatain and Pran Mahato were parents of the plaintiffs.
Thus, Bhutia Mahatain and Pran Mahato continued to suit land and
after their death the plaintiffs continued to possess the suit land. It is
the further case of the plaintiffs that the defendants had no right,
however, they got their name mutated which the plaintiffs came to
know on 15.03.2002 and then came to know that the defendants
purchased the land from one Jugal Mahato and Jugal Mahato had got
the suit land by virtue of two Nadabi deeds executed by Gendia
Mahatain and Pran Mahato on 05.01.1972 which was the subject
matter of the suit. It was the case of the plaintiffs that Nadabi deeds
were never acted upon. It was their further case that Nadabi deeds
were without consideration and were null and void.
23. The defendants appeared and asserted that the suit was barred
by limitation; Nadabi deeds were executed on 05.01.1972 and was
sought to be challenged after 30 years. The Nadabi deeds were
executed by Bhutia Mahatain and Pran Mahato in favour of Jugal
Mahato and therefore rights of Bhutia Mahatain and Pran Mahato
extinguished and the Nadabi deeds were also acted upon. A plea of
adverse possession was also raised stating that Jugal Mahato
continued to possess the land since 05.01.1972. It was further asserted
that Jugal Mahato sold the land to Pustam Mahato and others on
different dates put them in possession and the defendants were the
legal heirs of the purchasers who were in peaceful possession. A
reference was, interalia, made to proceeding under Section 144 Cr.
P.C. being M.P. Case No. 1090 of 1986 drawn at the instance of Pran
Mahato (father of the plaintiff) which was converted into a proceeding
under section 145 of the Cr. P.C. but the same was dropped vide order
dated 08.08.1988 by saying that a suit is pending.
24. A reference was also made to application made by Pustam
Mahato in the year 1986 which was objected by Pran Mahato who
also instituted a proceeding under Section 89 of the Chhotanagpur
Tenancy Act and he lost up till the North Chhotanagpur Division who
passed an order dismissing the appeal on 27.09.1999. Further case was
that the plaintiff no. 1 had filed a writ petition before the High Court
being CWJC No. 2278 of 2000 (R); thereafter notices were issued on
21.01.2003 and instead of proceeding with the writ application,
plaintiffs filed the present suit. By referring to the aforesaid
proceedings including proceeding under Section 144/145 Cr. P.C.,
proceedings under section 89 of Chota Nagpur Tenancy Act, 1908
and filing of the writ petition, the defendants asserted that the suit was
barred by limitation. The defendants also asserted that Nadabi deeds
were not hit by the provisions of Benami Transactions (Prohibition)
Act 1988 (hereinafter referred to as 'Benami Transaction Act'). In
the suit all the defendants filed common written statement. The issues
framed by the learned Trial Court have already been quoted above.
The findings of the learned Trial Court have also been summarized by
the learned counsel for the appellants as recorded above.
Substantial question no. (A)
25. The issue nos. 5,6 and 7 were taken up first by the learned Trial
Court. It was recorded that Nadabi deeds did not show the payment of
any consideration amount. It was held that though the Nadabi Deeds
were registered documents it did not fulfill the condition of Contract
Act and Transfer of Property Act. It was held that under the
relinquishment deed, parties can relinquish their right only, but cannot
transfer their right to anyone. It was held that the plaintiffs' parents
had purchased the suit land from Gendia Mahatain and thereby
possessed the ownership of the land and Nadabi deeds reveal that the
said property were never in possession of Gendia Mahatain and Pran
Mahato who were the executors of the Nadabi deeds in favour of
Jugal Mahato. It was also held that Jugal Mahato was neither the legal
heirs of Pran Mahato and Bhutia Mahatain nor a valid transferee. The
learned Court held that Nadabi deeds are only documents by which a
person gives up his right but cannot transfer his title through this deed
hence Jugal Mahato never acquired any Title through Nadabi deeds
and the Title of the suit land always remained in the hands of the
plaintiffs' parents and besides the plaintiffs, there are no other legal
heirs. It was also held that P.W. 1 to P.W. 4 collectively stated that the
plaintiffs and their parents always remained in possession of the suit
land while they never possessed the suit land. It was further held that
Benani transactions is prohibited under law and therefore no one can
take a plea of benami transaction especially the defendants cannot take
any advantage of benami transactions. All the issues were decided in
favour of the plaintiffs. So far as right of adverse possession is
concerned, the learned court recorded that D.W. 1 to 4 had
categorically stated that the suit land was in their possession. The
learned court further recorded that the defendants had to prove their
uninterrupted and uncontested possession in the suit land for specified
period peaceful and continuous possession and hostile to the right and
interest of the plaintiffs and their parents. The learned Trial Court
recorded that in view of dispute shown between the parties vide
exhibit B, C, D and E the defendants were not able to prove adverse
possession.
26. So far as the learned Appellate Court is concerned, the
Appellate Court took up the same issues as framed by the learned
Trial Court and decided issue no. 5,6,7 and 8 together vide paragraph
no. 11. The learned Appellate Court recorded that Exhibit-1 and
exhibit 1/1 were sale deeds executed by Gendia Mahatain in favour of
Pran Mahato and Gendia Mahatain in favour of Bhutia Mahatain
respectively and both were dated 30.08.1971. Exhibit-2 and 2/A were
the Nadabi deeds both dated 05.01.1972 executed by Pran Mahato in
favour of Jugal Mahato and executed by Bhutia Mahatain in favour of
Jugal Mahato. So far as exhibit 2/A is concerned, by the said deed
Pran Mahato relinquished the property in favour of Jugal Mahato and
so far as Exhibit 2/A is concerned, Bhutia Mahatain relinquished the
property in favour of Jugal Mahato and Jugal Mahato accepted the
same. Both the Nadabi deeds were registered documents. The learned
court also recorded that in the Nadabi deeds itself it was mentioned
that the land was purchased by Benami and the entire consideration
money was paid by the deed acceptor and executor of Nadabi deed
had not paid a single penny and nothing was spent by him and the
executor of Nadabi deed was not in possession, rather the
relinquishment acceptor was in possession over the land. It was also
stated in the deed itself that the land was purchased due to some
family reasons in the name of executors of Nadabi deeds by benami
transactions. P.W. 4 in his oral evidence has asserted that the land was
purchased by his parents upon payment of consideration money of Rs.
4,000/- while executing the registered sale deed dated 30.08.1971. The
learned Appellate Court considered the materials on record to hold
that it was very clear from exhibit-D series that father of the plaintiffs
had knowledge about execution of Nadabi deeds but they did not take
any remedy. The learned Appellate Court recorded that exhibit-2
series are the deeds of relinquishment and they could be considered as
conveyance and relinquishment deed holder Jugal Mahato executed a
sale deed in favour of the defendants and they had right, title and
interest over the suit land on the basis of such deed and after
purchasing the land the defendants came in possession over the suit
land and they were in possession of the suit land. The learned
Appellate Court reversed the finding of the learned Trial Court on
issue nos. 5,6,7 and 8 and set them aside.
27. In the present case, the plaintiffs asserted that the two sale
deeds dated 30.08.1971 executed in the name of their parents were for
consideration paid by their parents; the allegation of the defendants
that the two sale deeds dated 30.08.1971 were benami property of
Jugal Mahto and consequently the two Nadabi deeds dated 05.01.1972
were without consideration as the Nadabi deeds mentioned that
consideration for the properties purchased vide two sale deeds dated
30.08.1971 were actually paid by Jugal Mahto to the vendors and
there was no consideration for Nadabi deeds in connection with
transfer of properties from the parents of the plaintiffs to Jugal Mahto.
The allegations made in the plaint were denied by the defendants and
it was asserted that the suit was hopelessly barred by limitation and
the defendants acquired right, title, interest and possession by virtue of
registered sale deeds executed by Jugal Mahto in whose favour the
parents of the plaintiffs executed two Nadabi deeds dated 05.01.1972.
The recitals of the Nadabi deeds reveal that the executors of Nadabi
deeds in favour of Jugal Mahto, that is, the parents of the defendants,
acknowledged that Jugal Mahto had purchased benami property in
their names and through Nadabi deeds the parents of the plaintiffs
were transferring the properties through Nadabi deeds (relinquishment
deeds) in favour of Jugal Mahto who was the vendor of the
defendants.
28. In the judgement passed by the Hon'ble Supreme Court
reported in (1989) 2 SCC 95 (supra) it has been held that if any
property is held benami by the benamidar, the real owner is barred
from raising a suit, claim or action to recover the benami property
from the benamidar and at the same time no defence based on any
right in respect of any property held benami against the person in
whose name the property is held shall be allowed in any suit , claim,
or action by or on behalf of the person claiming to be the real owner
of the property. Thus, neither any suit can be filed by the real owner to
claim benami property from benamidar nor any defence can be taken
against the person in whose name the property is held benami by or on
behalf of the person who claims to be the real owner of the property.
The Hon'ble Supreme court also held that as a result of the provisions
of the aforesaid Act of 1988, all properties held benami at the moment
of the Act coming into force may be affected irrespective of their
beginning, duration and origin and this will be so even if the
legislation is not retrospective but only retroactive.
29. This court is of the considered view that the impact of the
aforesaid judgement is that the aforesaid Act of 1988 will have impact
on all the properties which were held benami on the date of coming
into force of the Act and the Act was held to be retroactive and not
retrospective. Meaning thereby, the properties which seized to be
benami prior to coming into force of the Act were not affected merely
because at an earlier point of time it was a benami property.
30. In the present case, the Nadabi deeds executed and registered in
the year 1972 themselves acknowledge that the two sale deeds dated
30.08.1971 were held benami in the name of the parents of the
defendants and through Nadabi deeds the properties were relinquished
and registered in the name of real owner namely Jugal Mahto and the
defendants were claiming through Jugal Mahto. The transactions of
the two sale deeds dated 30.08.1971 and followed by two Nadabi
deeds dated 05.01.1972 were concluded much before coming into
force of the Act of 1988 and on the date of coming into force of the
Act of 1988 the properties cannot be said to held as benami in the
name of parents of the plaintiffs but were held by its true owner,
namely, Jugal Mahto. Thus, the property being not benami on the date
of coming into force of the Act of 1988, the transactions of two sale
deeds dated 30.08.1971 followed by two Nadabi deeds dated
05.01.1972 are not hit by the Act of 1988. It has been held that earlier
it was the benamidar in whose name the property stood and the law
only enabled the real owner to recover the property from benamidar
which right has been ceased by the Act of 1988. In the present case the
real owner has already recovered the property from the benamidar
much prior to coming into force of the Act of 1988.
31. In the present case the sale deeds dated 30.08.1971 and Nadabi
deeds dated 05.01.1972 are not two transactions of sale , rather sale
deeds dated 30.08.1971 are purchase of property by Jugal Mahto in
the name of two benamidar ( parents of the plaintiffs) and Nadabi
deeds dated 05.01.1972 are relinquishment of right by benamidars in
favour of the real owner , namely, Jugal Mahto after acknowledging
that the entire sale consideration with respect of the sale deeds dated
30.08.1971 were actually paid by Jugal Mahto and the parents of the
plaintiffs were benamidars. Thus, two Nadabi deeds dated 05.01.1972
were neither void -ab-initio documents nor can be said to be without
consideration and it conferred valid title upon Jugal Mahto, the real
owner of the property much before coming into force of the Act of
1988. The is a clear finding by the learned Appellate Court that Pran
Mahato and Bhutia Mahatain (parents of the plaintiffs) purchased the
suit land from exhibit A series on 30.08.1971 and relinquish the same
land by exhibit-2 (series) mentioning therein that the land which was
purchased in their name was benami transaction and entire
consideration money was paid by the relinquishment deed holder
Jugal mahto and he has also come in possession over the suit land and
he has no claim over the suit land and he has surrendered the entire
right in favour of Jugal Mahato. It has been rightly held by the learned
Appellate Court that the Nadabi deeds [Ext-2 (series)] both dated
05.01.1972 are the deeds of relinquishment and can be considered as
conveyance deeds and the relinquishment deed holders executed sale
deed in favour of the defendants and they came in possession of the
suit property.
32. This court is of the considered view that the learned Appellate
Court while reversing the Trial Court's judgment committed no error
of law as rightly construed the true purport of Nadabi deed nos. 307
and 310 both dated 05.01.1972(exhibit-2 and 2/1) and has rightly held
to be valid documents. This court is of the considered view that the
Nadabi deeds involved in the instant case cannot be said to be ab-
initio-void documents or documents executed without consideration
and it is held that they were duly acted upon and confer title upon
Jugal Mahato, the vendors of the defendants. This court also finds that
the defendants have been found in possession of the property.
Consequently, the substantial question of law no. (A) is decided
against the appellants(plaintiffs) and in favour of the
respondents(defendants).
Substantial question no. (B)
33. The learned Trial court decided issue no. 3 and 4 as under:
"3. Whether the suit is barred by Law of Limitation.
4.Whether the suit is barred under the principle of
waiver, acquiescence and estoppel.
So far as these issues are concerned, I have came to
the conclusion that the plaintiffs have sought for
declaration of the NADABI deeds No. 307 dated 05.01.72
and No. 310 dated 05.01.72 as null and void and fictitious
transaction that was never acted upon to be cancelled,
against the defendants. They brought this suit in the year
2003 after the notice of mutation by defendants in the year
2002. Prior to this, notice to the plaintiffs is neither proved
nor rebutted. Present suit is well within prescribed law of
limitation and other points are nothing but ornamental.
Thus, these issues are decided in the favour of plaintiffs."
34. The learned Appellate Court while reversing the findings on the
point of limitation held that the suit was barred by limitation. The
findings of the learned Appellate Court on the point of limitation are
as under: -
" Issue nos. (III) & (IV) :- The learned Lower Court has
come to the conclusion on these issues that the plaintiffs
have sought for declaration of the Nadabi deed nos.307 &
310 dated 5.1.1972 respectively are null and void and fake
transaction and never acted upon, is to be cancelled, hence,
the suit is well within prescribed law of limitation and these
issues were decided in favour of the plaintiffs. The
defendants have pleaded in their written statement that the
suit is barred by law of limitation, estoppel, waiver and
acquiescence. It is very much clear from Ext-C (series) that
the father of the plaintiffs have contested the criminal
proceeding before SDO and other litigation before Revenue
Court meaning thereby that the father of the plaintiffs has
knowledge about the execution of Ext-2 (series) and after his
death, the plaintiffs have also contested several cases in
revenue courts but they never challenged the Ext-2 (series).
If this deed was executed against law but no any suit was
filed and the plaintiffs have knowledge about the execution
of Ext-2 (series) much before filing of this suit. On the basis
of above discussion, I find and hold that the suit is barred by
law of limitation, estoppel and acquiescence and finding of
the learned Lower Court is against the evidence available
on record. Therefore, the finding of the learned Lower Court
on these issues nos. (III) & (IV) are not sustainable in the
facts available on the record, therefore, finding of the
learned Lower Court is hereby set aside."
35. The learned Trial Court only referred to the fact that the suit
was filed in the year 2003 after the notice of mutation by defendants in
the year 2002 and prior to this, notice to the plaintiffs was not proved.
The learned Trial Court while holding that the suit was not barred by
limitation has not referred to the various litigations before the
Revenue Courts between the parties which were placed on record by
the defendants. The learned Appellate Court considered the materials
and held that it was clear from Ext-C (series) that the father of the
plaintiffs had contested the criminal proceeding before SDO and other
litigation before Revenue Court meaning thereby that the father of the
plaintiffs had knowledge about the execution of Nadabi deeds [Ext-2
(series)] and after his death, the plaintiffs had also contested several
cases in revenue courts but they never challenged the Nadabi deeds
[Ext-2 (series)].
36. The documents produced by the defendants in connection with
the litigation before the Revenue Court were exhibit B to E/1 as
mentioned in the appellate court judgement as under:
Ext. A & Ext. A/1-Rent receipts
Ext. B- Certified copy of the order dated 27.02.1999 passed
by the Commissioner Chota Nagpur Division, Hazaribag in
Appeal No. 1997/96, (District Dhanbad being CNT Appeal
under section 89(2) of CNT Act namely Prem Kumar
Mahato vs. Pustam Mahato
Ext. C- Certified copy of the order dated 17.9.1986 passed
by SDO, Chas in M.P. Case No. 10190/1986 under section
144 of the Cr. P.C. namely Pran Mahato Vs. Pustam
Mahato and Others
Ext. C/1-Certified copy of the order dated 18.8.1988 passed
under section 145 of the Cr. P.C. in M.P. Case No.
1090/1986 Pran Mahato Vs. Pustam Mahato Vs. and
Others.
Ext. D- Certified copy of the order dated 27.1.1988 passed
by Additional Collector Dhanbad in Misc. Revenue No.
54/1987 namely Bhutia Mahatain Vs. Ram Sagar Mahato
and Others
Ext. D/1-Certified copy of the order dated 27.1.1988 passed
by Addl. Collector, Dhanbad in Misc. Revenue Case No.
53/87 namely Pran Mahato Vs. Pustam Mahato and Others
Ext. E-Certified copy of the order dated 30.7.1987/1.7.1987
passed by Land Reforms Deputy Collector, Chas in
Mutation Appeal No. 3/86-87 namely Purshotam Mahato
and Others Vs. Pran Mahato
Ext. E/1-Certified copy of order dated 30.06.1987/1.7.1987
passed by Land Reforms Deputy Collector, Chas in
Mutation Appeal No. 4/86-87 namely Ram Sagar Mahato
and 3 others Vs. Mrs. Bhuita Mahatain."
37. This court finds that admittedly the Nadabi deeds executed by
the parents of the plaintiffs were produced by the plaintiffs but there
was no explanation from the side of the plaintiffs as to why their
parents who had admittedly executed the Nadabi deeds never
challenged the same for long years during their life time and the
learned Appellate Court recorded that it was clear from Ext-C (series)
that the father of the plaintiffs had contested the criminal proceeding
before SDO and other litigations before Revenue Court meaning
thereby that the father of the plaintiffs had knowledge about the
execution of Nadabi deeds [Ext-2 (series)] but did not challenge the
same. Further the learned appellate court also recorded that after the
death of their parents, the plaintiffs also had knowledge about the
Nadabi deeds but they did not challenge the same within three years
from the date of knowledge and the suit was barred by limitation.
38. This court also finds that Nadabi deeds [Ext-2 (series)] both
dated 05.01.1972 are registered documents and were admittedly
executed by the parents of the plaintiffs but they never challenged the
same during their life time and father of the plaintiffs died in 1994.
Ext. B, which is Certified copy of the order dated 27.02.1999 passed
by the Commissioner Chota Nagpur Division, Hazaribag in Appeal
No. 1997/96, [District Dhanbad being CNT Appeal under section
89(2) of CNT Act, namely Prem Kumar Mahato vs. Pustam Mahato]
clearly shows that the plaintiffs were aware of the Nadabi deeds at
least in the said proceedings in which final order was passed on
27.02.1999 but the suit was filed after expiry of three years even if the
best scenario for the plaintiffs, that is, date of knowledge of the
plaintiffs, is taken as 27.02.1999. This court finds that the learned
Trial Court did not discuss the exhibits which could have revealed the
date of knowledge of the plaintiffs with respect to execution of Nadabi
deeds. However, the Appellate Court has discussed the materials and
has come to a finding that the suit seeking to cancel Nadabi deeds was
barred by limitation.
39. So far as the argument of the appellants on the point of void-
ab-initio and nullity with regards to Nadabi deeds [Ext-2 (series)] both
dated 05.01.1972 is concerned, in the judgment passed by the Hon'ble
Supreme Court passed in the case of Md. Noorul Hoda (supra), the
Hon'ble Supreme Court has held that when the Plaintiff seeks to
establish his title to property which cannot be established without
avoiding the decree or an instrument that stands as insurmountable
obstacle in his way which otherwise binds him, though not a party, the
Plaintiff necessarily has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or rescinded. Paragraph 6
of the aforesaid judgment is quoted as under:
"6. The question, therefore, is as to whether Article 59 or Article 113 of
the Schedule to the Act is applicable to the facts in this case. Article 59
of the Schedule to the Limitation Act, 1908 had provided inter alia for
suits to set aside decree obtained by fraud. There was no specific article
to set aside a decree on any other ground. In such a case, the residuary
Article 120 in Schedule III was attracted. The present Article 59 of the
Schedule to the Act will govern any suit to set aside a decree either on
fraud or any other ground. Therefore, Article 59 would be applicable to
any suit to set aside a decree either on fraud or any other ground. It is
true that Article 59 would be applicable if a person affected is a party
to a decree or an instrument or a contract. There is no dispute that
Article 59 would apply to set aside the instrument, decree or contract
between the inter se parties. The question is whether in case of person
claiming title through the party to the decree or instrument or having
knowledge of the instrument or decree or contract and seeking to avoid
the decree by a specific declaration, whether Article 59 gets attracted?
As stated earlier, Article 59 is a general provision. In a suit to set aside
or cancel an instrument, a contract or a decree on the ground of fraud,
Article 59 is attracted. The starting point of limitation is the date of
knowledge of the alleged fraud. When the plaintiff seeks to establish his
title to the property which cannot be established without avoiding the
decree or an instrument that stands as an insurmountable obstacle in
his way which otherwise binds him, though not a party, the plaintiff
necessarily has to seek a declaration and have that decree, instrument
or contract cancelled or set aside or rescinded. Section 31 of the
Specific Relief Act, 1963 regulates suits for cancellation of an
instrument which lays down that any person against whom a written
instrument is void or voidable and who has a reasonable apprehension
that such instrument, if left outstanding, may cause him serious injury,
can sue to have it adjudged void or voidable and the court may in its
discretion so adjudge it and order it to be delivered or cancelled. It
would thus be clear that the word 'person' in Section 31 of the Specific
Relief Act is wide enough to encompass a person seeking derivative title
from his seller. It would, therefore, be clear that if he seeks avoidance
of the instrument, decree or contract and seeks a declaration to have
the decrees set aside or cancelled he is necessarily bound to lay the suit
within three years from the date when the facts entitling the plaintiff to
have the decree set aside, first became known to him."
40. In the judgment passed by the Hon'ble Supreme Court reported
in the case of Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC
353, it has been held in paragraph 16 that when a document is valid,
no question arises for its cancellation and when a document is void ab
initio, the decree for setting aside the same would not be necessary as
the same is nonest in the eyes of law, as it would be a nullity. It has
been held that once a suit is filed by the Plaintiff for cancellation of a
transaction, it would be governed by Article 59 and even if Article 59
is not attracted, the residuary article would be attracted. It has been
held in paragraph 18 of the judgement that Article 59 would be
attracted when coercion, undue influence, misappropriation or fraud
which the Plaintiff asserts is required to be proved. Article 59 would
apply to the case of such instruments. It would, therefore, apply where
the document is prima facie valid. It would not apply only to
instruments which are presumptively invalid. It has also been held that
there is presumption that a registered document is validly executed
and therefore prima-facie would be valid in law and the onus to prove
would be on a person who leads the evidence to rebut the
presumption. In the said judgement even challenge to a deed executed
by the minor was held to be barred by limitation. Paragraph 27 and 28
of the aforesaid judgement is quoted as under :-
27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be
valid in law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption. In the instant case, Respondent 1
has not been able to rebut the said presumption.
28. If a deed was executed by the plaintiff when he was a minor and it
was void, he had two options to file a suit to get the property
purportedly conveyed thereunder. He could either file the suit within
12 years of the deed or within 3 years of attaining majority. Here, the
plaintiff did not either sue within 12 years of the deed or within 3
years of attaining majority. Therefore, the suit was rightly held to be
barred by limitation by the trial court.
41. This court is of the view that in order to hold that the Nadabi
deeds [Ext-2 (series)] were without consideration as alleged by the
plaintiffs, the same was required to be proved by challenging the
Nadabi deeds [Ext-2 (series)] which was certainly required to be done
within the period of limitation and once the same was challenged by
the plaintiffs the point of limitation cannot be avoided. Moreover, in
the instant case the deeds were said to have been purchased as benami
in the name of parents of the plaintiffs and the property was
transferred to the real owner by the parents themselves vide Nadabi
deeds [Ext-2 (series)] dated 05.01.1972, that is much prior to coming
into force of the Benami Transactions (Prohibition) Act 1988 by
stating that the consideration amount was already paid by the real
owner. This court is of the considered view that the transaction cannot
be said to be void-ab-initio or a nullity in the eyes of law so as to
avoid the rigors of the Indian Limitation Act,1963. The learned
Appellate Court has also held while deciding issue nos. (v), (vi), (vii)
and (viii) that the Nadabi deeds [Ext-2 (series)] dated 05.01.1972 are
the deeds of relinquishment and it could be considered as conveyance
and the relinquishment deed holder Jugal Mahato executed a sale deed
in favour of defendants and the defendants have right, title, interest
over the suit land on the basis of the sale deed and after purchasing the
land the defendants came in possession over the suit land they are in
possession over the suit land.
42. This court finds that the learned appellate court has rightly
appreciated the materials on record to come to a finding that the suit
was barred by limitation. The substantial question of law no. (B) is
accordingly decided against the appellants (plaintiffs) and in favour of
the respondents (defendants).
43. As a cumulative effect of the aforesaid findings and both the
substantial questions of law having been decided against the
appellants (plaintiffs) and in favour of the respondents (defendants),
this second appeal is dismissed.
44. Let the original court records be sent to the concerned court.
45. Pending I.A.s, if any, dismissed as not pressed.
(Anubha Rawat Choudhary, J.)
Binit/AFR
