http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

SUNDER DAS & ORS.

Vs.

RESPONDENT:

GAJANANRAO & ORS.

DATE OF JUDGMENT: 13/12/1996

BENCH:

N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar. J.

This appeal on the grant of special leave to appeal

under Article 136 of the Constitution of India is directed

against the judgment and order of a Division Bench of the

High Court of Madhya Pradesh in First Appeal No.2 of

1979 whereby the Division Bench dismissed the First Appeal

and confirmed with modification the decree passed by the

Trial Court against the appellants in Civil Suit No.13A of

1978 in the Court of learned District Judge, Datia. The

facts leading to this appeal shortly stated are as under.

The appellants are the original defendants against whom

respondent nos.1 to 3, original plaintiffs, filed

the aforesaid suit for a declaration that the registered

Sale Deed dated 30th May 1959 executed by their father,

respondent no.4 in this appeal who was original defendant

no.6 in the suit, in favour of the present appellants is

void and inoperative at law and for restoration of the

possession of the suit house bearing Municipal No 1153/1

situated in Rajgarh locality of Datia town in the State of

Madhya Pradesh. For the sake convenience we will refer to

the appellants as original contesting defendants and

respondents 1 to 3 as plaintiffs in the latter part of this

judgment. Respondent no.4, father of the plaintiffs was

joined as defendant no.6 in the suit. The case of the

plaintiffs is that their father original defendant no.6 had

executed registered Sale Deed dated 50th May 1955 conveying

the suit house to the contesting defendants for a sum of

Rs.l800/- and delivered possession of the said house to

them. According to the plaintiffs the suit house was their

ancestral property in which they had 90 undivided 3/4th

interest. That their father, defendant no.6, had no right to

transfer the suit house in favour of the contesting

defendants and consequently the said Sale Deed was not

binding on them.

The said suit was contested by the contesting

defendants on the ground that the house belonged exclusively

to their vendor defendant no.6 and plaintiffs had no

interest therein. lt was alternatively contended that even

assuming that the suit house was an ancestral house wherein

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

the plaintiffs, had undivided interest defendant no.6, their

vendor, had alienated the said house for family necessity

and his transaction was binding on the plaintiffs. Defendant

no.6 father of the plaintiffs on the other hand supported

the plaintiffs.

Learned Trial Judge after recording the evidence came

to the conclusion that the suit house was an ancestral

property of the parties wherein the plaintiffs had 3/4th

undivided interest while their father defendant no.6 had

1/4th interest and consequently the Sale Deed dated 30th

May 1959 was voidable to the extent of 3/4 share of the

plaintiffs. Accordingly the learned Trial Judge directed

the plaintiffs to be placed in joint possession of the suit

house along with the contesting defendants 1 to 5. Being

aggrieved by the aforesaid judgment and decree of the Trial

Judge the contesting defendants carried the matter in First

Appeal before the High Court. As stated earlier Division

Bench of the High Court was pleased to the same. However the

cross objections filed by the plaintiffs were allowed and

accordingly Trial Court's decree was modified as under :

"The suit of the plaintiffs for

possession is decreed the

contesting defendants to deliver

possession of the suit house to the

plaintiffs but the execution of the

decree in so far as it directs the

contesting defendants to deliver

possession of the suit house to the

plaintiffs shall remain stayed for

a period of six months from today

and, if before the expiry of the

period the contesting defendants

bring a suit for general partitions

then the stay should continue till

the disposal of the suit but if no

such suit is brought within the

period, the stay of execution of

the decree shall stand cancelled

on the expiry of the period of six

months and the plaintiffs shall be

entitled to obtain the possession

of the suit house."

It is the aforesaid decree in favour of the plaintiffs

as confirmed with modification by the Division Bench of the

High Court that is brought on the anvil of scrutiny of this

Court in the present proceedings by the dissatisfied

contesting defendants.

At the outset it may be started that at the suggestion

of the Court the contesting parties were given time to

explore any possibility of settlement. But we were informed

that settlement was not possible. However is view of the

fact that two of the plaintiffs are minors at the time when

their father executed the impugned Sale Deed and as the

prices of the properties have naturally got escalated over

years the Court suggested to learned counsel for the

appellants, contesting defendants, that in case they succeed

in this appeal they may ex. gratia make payment of suitable

amount to the respondent-plaintiffs to avoid any possible

heart burning to them. We are happy to note that the

suggestion of the Court was accepted by the appellants,

contesting defendants. Appellant no.1 Sunder Das who was

present in the Court has filed a written undertaking on

affidavit to the effect that having consulted Laxman son of

Tehalram, appellant no.2 in this appeal he was giving

undertaking to this Court that if the appeal filed on their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

behalf is allowed and the judgment and decree are set aside

they shall pay ex gratia an amount of Rs.2,00,000/- to the

plaintiff respondents Gajanan Rao, Ravindra Kumar and Govind

Rao within three months from the date of the delivery of the

judgment. We were also informed by the learned counsel for

the appellants that similar affidavits will he filed by the

remaining appellants within one week of the delivery of the

judgment in case the appeal is ultimately allowed and the

suit of the plaintiffs is dismissed. They undertake to make

payment of Rs.2.00,000/- to the plaintiffs aforesaid ex

gratia with a view to alleviate likely heart burning of the

plaintiffs in such an eventuality. We appreciate the good

gesture made by the appellants. It is now time for us to

deal with the merits of the appeal.

We have heard the learned counsel for the contesting

defendants as well as for the respondent plaintiffs in

support of their respective cases.

Learned counsel for the contesting defendants submitted

that both the courts below had patently erred in law as well

as on facts in taking the view that the suit for challenging

the impugned Sale Deed was within limitation. According to

the learned counsel the suit was barred by Article 109 of

the Limitation Act. On merits it was contended that the suit

house belonged exclusively to the contesting defendants'

vendor original defendant no.6, father of the plaintiffs

and, therefore the plaintiffs had no right to challenge the

said Sale Deed. It was alternatively contended that even

assuming that the suit property was ancestral property as

plaintiffs father defendant no 6 was the 'karta' of the

joint Hindu family the Sale Deed executed by him was

Perfectly legal and valid and binding on the plaintiffs

unless it was shown that the Sale Deed was vitiated on the

ground of it being executed or paying off a debt incurred by

their father fol an illegal or immoral purpose. That there

was no such case pleaded by the plaintiffs. It was next

contended that the said transaction was for legal necessity

and for family requirement as mentioned in the Sale Deed

these recital were binding on defendant no.6. That there was

no cogent evidence led by the plaintiffs to rebut these

recitals in the Sale Deed. That both the courts below were

patently in error when they took the view that the

transaction was not binding on the plaintiffs. That the suit

was purely a collusive suit got filed by defendant no.6

through his sons after eleven and a half years of the

transaction. That they stood by the transaction for

all these years, allowed the contesting defendants to spend

huge sums of money for re-construction and rennovation of

the house and that suit was filed merely to knock out more

money from the contesting defendants and to harass them.

Hence it was liable to be dismissed even on merits.

On the other hand learned counsel Shri Khanduja for

the respondent-plaintiffs submitted that both the courts on

appreciation of evidence had come to a concurrent finding of

fact that there was no legal necessity for defendant no.6 to

execute the Sale Deed. That defendant no.6 was not shown to

have incurred any debts or was in such a stringent economic

condition that he was required to sell of the suit house to

the contesting defendants and, therefore on the evidence on

record the conclusion reached by both the court below that

defendant no.6, father of the plaintiffs. could not legally

alienate the undivided 3/4th interest of the plaintiffs in

the suit house, remained well justified and called for no

interference in this appeal.

Having carefully considered the aforesaid rival

contentions we find that the judgment and decree as passed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

by Trial Court and as confirmed with modification by the

Division bench of the High Court cannot be sustained.

However before we proceed to consider the merits of the case

we may in the first instance deal with the question of

limitation for filing the present suit. Article 109 in the

Schedule to the Limitation Act. 1963 provides for a period

of limitation of twelve years for a Hindu governed by

Mitakshara law who files a suit to set aside his father's

alienation of ancestral property and twelve years' period

begins from the date when alienee takes possession of the

property. In the present case the contesting alienees took

possession of the suit property on 30th May 1959 when they

got registered Sale Deed in their favour. Counting 12 years

from 30th May 1959 limitation for filing the suit or

challenging the said alienation would expire by 29th May

1971. The present suit was filed on 20th August 1970 .

Therefore it was clearly within limitation. However the said

suit underwent rough weather It was originally filed in the

court of Civil Judge Class II, Datia on the basis that the

valuation for the purpose of jurisdiction of the court would

be Rs.1800/- the consideration amount mentioned in the Sale

Deed. In the first instance the said court took the view

that the suit was within its pecuniary jurisdiction. However

the High Court took a contrary view and held that the

valuation of the suit should be equal to the market value of

the property on the date of the suit and hence ordered

return of the plaint for presentation to the proper court

and that is how the suit was filed in the District Court on

26th November 1975 after valuing the suit at Rs.42,700/-.

The contention of learned counsel for the contesting

defendants is that the limitation for file in the suit will

have to be seen from the date of filling of the second suit

before the competent court and if 26th November 1975 being

the date of filing of that suit is taken to be the date in

the light of which limitation question is to be decided then

the period of limitation of 12 years from the date of the

Sale Deed dated 30th May 1959 must be treated to have

expired and the suit was, therefore, beyond time. This

contention was rightly not accepted by both the courts below

for the simple reason that originally the suit was filed

within limitation, but it was filed before a court which was

found to be lacking in pecuniary jurisdiction and when it

was re-filed before a competent court the plaintiffs were

entitled to the benefit of Section 14 of the Limitation Act

enabling them to get exclusion of the time from 20th August

1970 to 22nd November 1975 when the High Court took the view

that the suit should be returned for presentation to the

proper court. It is obvious that the plaintiffs were

prosecuting in good fath their suit before a court which

from defect of pecuniary jurisdiction, was unable to

entertain it and if this period gets excluded the re-filed

suit on 26th November 1975 would remain within limitation

of 12 years from the date of the impugned Sale Deed. The

plea of bar of limitation as raised by the learned counsel

for the contesting defendants, therefore stands rejected.

So far as the merits of the case are concerned certain

salient facts which are well established on record deserve

to be noted. There is ample evidence on record to show that

the suit house was the ancestral house of the plaintiff and

defendant no.6. Evidence shows that originally the suit

house was occupied by plaintiffs' grand-father Mukundrao who

had died 60 years prior to the filing of the suit. It is

also revealed from the evidence that suit house was occupied

by plaintiffs' father defendant no.6 and also by latter's

uncle. They were staying together till defendant no.6 uncle

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

died. Even the recital in the impugned sale Deed to the

effect that the Sale Deed was executed Oil account of family

necessity indicated that the suit house was treated was

joint family property wherein obviously the plaintiffs would

have interest. Both the courts below have held that the suit

house was an ancestral property in the hands of plaintiffs'

father, defendant no.6. This finding is well sustained on

the record of the case and calls for no interference in this

appeal. We, therefore, reject the contention canvassed by

learned counsel for the appellants that the suit house was

self-acquired property of defendant no.6.

Once it is held that the suit house was an ancestral

property in the hands of palintiffs' father, defendant no.6,

the plaintiffs could naturally have right by birth in the

suit house. However the moot question is whether the

alienation of the suit house by the impugned Sale Deed by

the plaintiffs' father, defendant no.6 to the contesting

defendants was binding on the plaintiffs. So far as this

question is concerned it Must be kept in view that

plaintiffs' father was the 'karta' of the joint Hindu

family., The evidence shows that at the relevant time he was

working as Upper Division Clerk in the civil court at

Chhatarpur. His monthly income was Rs.150/- in 1958-59 when

the sale Deed was executed as seen from his deposition as

D.W.1. He has clearly recited in the impugned sale Deed in

favour of the contesting defendants that he was selling the

suit house for Rs.1800/- on account of family necessity. He

revealed in his deposition before the court that he had a

family of seven persons to be maintained out of his income

of Rs.150/- per months as he had got his wife three sons

namely tile present plaintiffs and two young daughters It is

also revealed from his evidence that he was staying at

Chhatarpur as he was serving as Upper Division Clerk in the

Chhatarpur court. The suit house was situated at village

Datia. According to defendant no.6 he occasionally came to

Datia to look after the house. No attempt was made in his

evidence to get out of the clear recitals in the Sale Deed

that he had entered into the transaction for family

necessity. It is also pertinent to note that our of the

three plaintiffs plaintiffs no.1 was major at the time of

the Sale Deed. Me his conspicuously remained absent from the

witness box and avoided inconvenient cross examination which

is might have faced, In support of the plaintiffs only

plaintiff no.3 P.M.1 Govind Rao who was admittedly aged 8

years at the time of the Sale Deed has been examined. He

naturally could not have any personal knowledge about what

transpired in 1959 when his father who was serving in a

Civil Court as Upper Division Clark thought it fit to sell

the ancestral house in village Datia to the defendants and

whether the recital made by him in the Sale Deed that the

transaction was being executed for family necessity was

right of not. Nor defendant no.6 vendor father of the

plaintiffs; had even whispered about the necessity for

inserting the recital in the Sale Deed that he was executing

the same for family necessity. It has to be kept in view

that defendant no.6 being the father of the plaintiffs and

'karta' of the joint Hindu family was legally entitled to

alienate the suit house also the interest of the minor

plaintiffs in the said house even for his won requirements

unless it was shown that the transaction was tainted by any

immoral or illegal propose. That is not the plaintiffs. Nor

have they suggested that their father was addicted to any

immoral conduct. Their only case is that their father had no

right to alienate their undivided interest in the suit

house. We must keep in view the fact that defendant no.6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

father of the plaintiffs was a worldly person who was

presumed to know the ways of the world as he was attached to

the Civil Court as Upper Division Clerk at the relevant

time. His evidence shows that upto 1954 he had worked in the

Civil Court as a Lower Division Clerk. Then he was promoted

by the High Court to the post of Upper Division Clerk in the

year 1954 and he was transferred to Panna and from Panna he

was transferred to Chhatarpur. He also deposed that he used

to visit Datia in connection with supervision of the suit

house. Therefore, defendant no.6, father of the plaintiffs

apart form being the 'karta' of the joint Hindu family was

well versad in the ways of the world and was not a novice or

a layman. With his open eyes he disposed of the suit house

which appeared to be almost a ruin for Rs.1800/-. It is easy

to visualize that when defendant no.6 the vendor, was

staying with his family at Chhatarpur and when the ancestral

house at Datia Village was in a ruinous condition and which

would almost be a burden to them he thought it fit in his

wisdom to dispose it of for Rs.1800/- in favour of the

defendants and made an express recital in the Sale Deed that

it was for family necessity that he was disposing it of. As

a Hindu father and 'karta' of the family he had every right

to do so and in the process could have legally disposed of

the interest of his minor sons in the said property also for

the benefit of the family and necessity of the family. The

plaintiffs have not been able to lead any cogent evidence to

rebut the clear recitals found in the Sale Deed to that

effect. We may usefully remind ourselves of what Mulla's

Hindu law 16th Edition by S.T. Desai has to state in

connection with alienation by father' at paragraph 256 of

the said volume. It reads as under "

"256. Alienation by father- A

Hindu father as such has special

powers of alienating coparcanary

property which no other coparcener

has. In the exercise of these

powers-

(1) he may make a gift of

ancestral movable property to

the extent mentioned in

paragraph 225. and even of

ancestral immovable property

to the extent mentioned in

paragraph 226.

(2) he may, sell or mortgage

ancestral property, whether

movable or immovable,

including the interest of his

sons, grandsons and grandsons

therein, for the payment of

his own debt, provided the

debt was an antecedent debt

and was not incurred for

immoral or illegal purposes

[Paragraph 295].

Except as aforesaid, a father has

no greater power over coparcenary

property than any other manager

(o), that is to say, he cannot

alienate coparcenary property

except for legal necessity or for

the benefit of the family

[paragraph 242]. This section must

be read with what is stated under

paragraphs 213-215 ante".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

Shri Khanduja, learned counsel appearing for the

respondent plaintiffs in this connection submitted that the

defendants as alienees should have properly enquired as to

why the transaction was being entered into by the father of

the minor plaintiffs in their favour. It is difficult to

appreciate this submission. The evidence on record clearly

shows that contesting defendants before entering into the

suit transaction had taken all permissible processions and

made enquires in this connection. contesting defendants

witness no.1 Tehalram stated in this evidence that he was

informed by defendant no.6, that his uncle had expired. His

debt has to be paid off. Money lenders had also to be paid.

That he tried to verify these facts. That he went to the

shop of Chetandes in the area. He also enquired from grocer

Meghamal and out that defendant no.6 was in debts and,

therefore, he came to the conclusion that defendant no.6 was

in need of money and accordingly he had sold his house to

him. Shri Khanduja learned counsel appearing for the

plaintiffs submitted that defendant no.1 in his cross

examination has stated that defendant no.6 Hanumantrao had

no title to the property and in order to help him he had

purchased the house from him. It is difficult to appreciate

this contention. The evidence of defendant no.1 when read in

its correct perspective showed that he was informed by one

Ganpati that the property belonged to King and the King of

Datia had given it to the ancestor of the plaintiffs

Mukundrao to stay therein and accordingly he thought that

defendant no.6 would not be having title to the property. It

must be kept in view that plaintiffs' ancestor Mukundrao had

died 60 years prior the suit. Therefore, even if originally

the property have belonged to the King it was being,

occupied by plaintiffs' ancestor Mukundrao and his

descendants since generations as owners thereof and even by

doctrine of adverse possession they would have perfected

their title. It may also he kept in view that there was

nothing Oil the record to suggest. that the King of Datia

had ever attempted to Put forward any claim of ownership

over the suit property. Even that apart it was not the case

of the plaintiffs themselves that the suit property did not

belong to their father or their ancestors. On the contrary

their case is that the suit house did belong to their father

jointly with them. Therefore it is too date in the day for

the learned counsel for the plaintiffs to submit that suit

house did not belong to the plaintiff and their father or

that at the time of the sale plaintiffs' father had or

right. title or interest in the suit house. In our view the

evidence on record clearly establishes that the defendants

made all permissible efforts to find out the legal necessity

which prompted defendant no.6 to enter into the said

transaction in their favour. It is of course true, as

contended by Shri Khanduja for the plaintiffs that the

efforts made by the contesting defendants by relying upon

the evidence of Meghamal D.W.2 who is said to have

sold grocery on credit to defendant no.6 at the relevant

time remained unsuccessful as there would have been also

occasion for defendant no.6 who was staying with his family

at Chhatarpur to purchase at Datia grocery items on a

continuous basis on credit from witness Meghamal. But even

leaving aside the evidence of witness Meghamal which was not

accepted by courts below we find that the evidence of the

evidence, of the plaintiffs and defendant no.6 clearly

establishes that the suit house which was in a dilapidated

and ruinous condition at Datia was found to be a dead

burden to the family and. therefore. for family necessity it

was disposed of by defendant no.6, father of the plaintiffs

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

in 1959. The said transaction, therefore, as the recitals in

the Sale Deed themselves rightly showed, in the light of

surrounding circumstances was a transaction for the benefit

of the family. The said conclusion of ours gets further

fortified from the well established facts on record that

after purchasing the suit house the contesting defendants

re-constructed it to a substantial extent by spending an

amount of Rs.33,000/- as held by a Division Bench of the

High Court especially when the suit house

was purchased for an amount of Rs.1800/-. That shows that it

must be in a totally dilapidated condition and the

defendants appear to have purchased only the site on

which they put a substantially new construction at a huge

cost of Rs. 33,000/ as compared to the original purchase

price of Rs. 1800/. They very fact that defendant no.6 who

was presumed to be well acclimatised with the court

proceedings as he was an Upper Division clerk in the in the

Civil Court at Chhatarpur at the relevant time stood by the

transaction and the recitals in the sale Deed for eleven and

a half years and the further fact that he saw to it that his

sons challenged the transaction after such a long period of

time when defendants in the meantime went on spending huge

amounts on the property and ultimately came forward in the

suit to support the plaintiffs, leave no rood for doubt that

the suit was got filed by defendant no.6 only with a view to

knock out more money from the contesting defendants and was

clearly a collusive suit. On an overall consideration of

evidence on record, therefore, we find ourselves unable to

endorse the conslusions reeached by both the courts below

that the suit transaction was not binding on the plaintiffs.

The said finding is against the weight of evidence and

cannot be sustained. We, therefore, hold that the plaintiffs

had made out no case for getting any relief from the court

in the present proceedings and their suit was, therefore,

liable to be dismissed. Accordingly this appeal succeeds and

is allowed. The judgment and decree passed by the Trial

Court and as confirmed with modification by the High Court

are quashed and set aside. Plaintiffs' suit will stand

dismissed. However in the facts and circumstances of the

case there will be no order as to costs all throughout.

Before parting with the present proceedings, however,

we may mention that, as noted earlier, appellant no.1 on his

own behalf and on behalf of appellant no.2 has given a

written undertaking to this Court to pay ex gratia

Rs.2,00,000/- to the plaintiff respondents. We also permit

the remaining contesting defendants to file similar written

undertaking will stand accepted and accordingly while

allowing the appeal of the contesting defendants, we direct

the appellant-defendants to ex gratia pay sum of Rs.

2,00,000/- to the respondent - plaintiffs within three

months from today. The said amount be deposited by the

appellants in the Trial Court within that time. The

deposited amount of Rs.. 2,00,000/- will be permitted to be

withdrawn by the plaintiffs from the Trial Court on due

identification. Orders accordingly.