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Salamat Ali And Others vs Hazari Lal And Others on 13 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Court No. – 21 Reserved

Case :- SECOND APPEAL No. – 577 of 1987

Appellant :- Salamat Ali And Others

Respondent :- Hazari Lal And Others

Counsel for Appellant :- H.S.Sahai,Mohammad Aslam Khan,U.S. Sahai,Uma Shankar Sahai

Counsel for Respondent :- N.K.Pandey,S.C.Misra,Vivek Raj Singh

Hon’ble Attau Rahman Masoodi,J.

This second appeal filed under Section 100 Code of Civil Procedure has arisen out of the judgment and decree dated 23.07.1987 passed by the Ist Additional District Judge, Gonda in Civil Appeal No. 104 of 1985 whereby the judgement and decree rendered by the trial court in Regular Suit No. 31 of 1980 on 10.7.1985 was set aside and the suit was partly decreed by setting aside the sale deed dated 5.8.1975 and for arrears of rent to the tune of Rs. 210/- coupled with ejectment and proportionate cost.

The trial court had dismissed the suit filed by the sole respondent whereas the first appellate court allowed the civil appeal and decreed the suit for cancellation of sale deed and recovery of arrears of rent to the tune of Rs. 210/- coupled with eviction alongwith proportionate cost.

Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan at length. Though this second appeal was admitted only on two substantial questions of law but learned counsel for the appellants argued the second appeal on many other aspects in the light of substantial questions of law formulated by order dated 08.02.2019 which read as under:-

“1. Whether the trial court had rightly exercised the jurisdiction by uniting the causes of action, which exclusively may not be within the domain of civil court.

2. Whether this Court would permit a party to raise a question on the aspect of jurisdiction once there was a failure on the part of the appellant to have filed any cross objection before the first appellate court in respect of the findings on issue no. 8.

3. Whether the Second Appeal would at all be maintainable if the objection of the appellants on the aspect of jurisdiction is tested in his favour.

4. Whether the first appellate court was right in recognizing the rights of appellants both of ownership on the basis of sale-deed simultaneous to the adjudication of tenancy rights for the period after the execution of sale deed on 5.8.1975.

5. Whether there was compliance of Order 41 Rule 31 CPC by the first appellate court below.”

Background

Before adverting to the substantial questions of law as above, it may be noted that the sole respondent brought about a regular suit against the appellants and his father praying as under:-

(a) a decree for cancellation of sale deed dated 05.08.1975 duly registered on 04.09.1975 in Bahi no.1 jild 729 Pg. 28 to 31 numbered 2780 be passed in favour of the plaintiff and against the defendants.

(b) a decree for eviction in respect of the disputed property in favour of the plaintiff and against the defendants may be passed.

(c) a decree for payment of Rs. 720 towards rent alongwith interest @ 12% p.a from the date of institution of suit until payment may be passed in favour of the plaintiff.

(d) cost of the suit and other legal expenses as the court may deem fit recoverable from the defendants may be awarded in favour of the plaintiff.

The aforesaid prayers in the suit were made in the light of facts that the suit property initially belonged to the maternal grandfather of the plaintiff who executed a registered gift deed in favour of the plaintiff on 28.04.1964 while he was a minor. It was alleged that half of the disputed property was let out to the defendant no. 1 on a monthly rent of Rs. 15/- subject to the understanding that he will reconstruct the dilapidated structure by investing the requisite cost and adjust the same towards monthly rent and on adjustment of the same the landlord shall have a right to continue or terminate the tenancy. According to the plaintiff Rs.2000/­- were spent for reconstruction and upon its completion, the rent was settled at Rs. 30/- per month. According to the plaintiff the defendant no.1 while being a tenant had defaulted from paying rent w.e.f. 01.01.1978. It was also alleged that a sale deed under some misrepresentation was got executed by the tenant in his name on 05.08.1975 alongwith his brother relating to the property in dispute and the same was registered on 04.09.1975. The sale deed which according to the plaintiff came to his knowledge for the first time on 25.12.1979 was not binding on him for several reasons indicated in the plaint particularly that the same was not executed with the prior permission of the District Judge and secondly that the sale consideration mentioned in the registered deed i.e. Rs. 5000/- was actually not made. In nutshell the sale deed executed on 5.8.1975 alleged to be voidable was repudiated. For termination of tenancy a notice dated 29.2.1980 was issued on the ground of default in the payment of rent at the rate of Rs. 30/- p.m. w.e.f. 1.1.1978 and having failed to make the payment within one month, the vacation of the premises was sought. Failure to comply with the notice repudiating the sale deed and seeking vacation of the shop for default in the payment of rent within 30 days, was alleged to be the cause giving rise to the suit.

The suit was instituted after attaining the age of majority. According to the plaintiff he became 20 years of age on 18.01.1980 and at the time of instituting the suit proceedings his age was above twenty years. The plaintiff issued a notice dated 29.02.1980 to the defendant no. 1 for payment of arrears of rent to the tune of Rs. 720/- and for vacating the premises within 30 days. Tenancy of the appellant was thus terminated treating the notice to have been issued under Section 106 of Transfer of Property Act which was served on him on 03.03.1980.

The appellants-defendants stated to have sent a reply to the notice denied the default in the payment of rent and asserted their rights on the basis of sale deed and revival of the tenancy, if the sale was bad. The defendant no.1 in his written statement filed before the trial court stated that he was the tenant of the property in dispute ever since 1952 at a monthly rent of Rs. 5/- payable to the plaintiff’s maternal grandfather viz. Sri Jagannath. The shop was in a dilapidated condition on account of which the father of the plaintiff on an undertaking being arrived at permitted the defendant to reconstruct the shop. According to the appellants-defendants a rent note dated 08.09.1967 was drawn and upon completion of the construction the rent at the rate of Rs. 15/- p.m. was settled for which a receipt dated 15.01.1968 was placed reliance upon.

The defendant alleged to have spent Rs. 4426/- towards cost of construction and the adjustment of rent towards the cost was settled at Rs. 15/- p.m. according to him. It was also averred in the written statement that the plaintiff’s father took a sum of Rs. 5000/- in the month of June, 1975 for buying some property for the minor and later on took a further sum of Rs. 5000/- at the time of executing the sale deed on 05.08.1975 and in this manner a total sum of Rs. 10,000/- was paid towards the sale consideration for transfer of title of the disputed property. The sale deed was registered on 04.09.1975. The defendant no.1 also averred in the plaint that suit for cancellation of sale deed and suit for eviction for non-payment of rent which was not due cannot go together, therefore, uniting the two independent causes of action triable severally was objected to be a subject matter of regular suit. The prayer for eviction and arrears of rent could not be made in a regular suit was precisely objected and this position is evident from paragraph 20 to 22 of the written statement.

In nutshell the appellants-defendants took a three-fold stand before the trial court. Firstly, they did not commit any default in the payment of monthly rent @ Rs. 15/- p.m. and were entitled to enjoy the property until an amount of Rs. 4426/- was adjusted fully, hence notice was bad in law. Secondly, the sale deed which was alleged to be voidable could not be cancelled unless an amount of Rs. 10,000/- was returned to them. Thirdly, the uniting of causes of action was impermissible in a regular suit which otherwise were liable to be tried separately and could not be united in a regular suit.

Rights

Having read the pleadings carefully this Court would note that the possession of the disputed premises came to the appellants as a matter of tenancy rights ever since 1952 and the same was not on account of execution of sale deed in the year 1975, therefore, the title and tenancy rights were independent and the relief prayed for is bound to be understood with a clear impression of two independent rights and the distinction thereof.

Discussion on Questions 1,2 3

Keeping in view the rights aforesaid, the Court would proceed with the substantial questions 1, 2 and 3 before delving into the other questions. Essentially the prayer made in the suit is of civil nature for which the remedy is traceable to Section 9 of the Code of Civil Procedure which for ready reference is extracted below:

“9. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.”

It is not in dispute that the prayer made in the suit seeks multiple reliefs for which the causes of action are distinct. For setting aside the sale deed dated 5.8.1975, it is the repudiation of document that has given rise to the relief, whereas, for eviction and arrears of rent alongwith interest, there is no repudiation of the tenancy rights rather acknowledging the same, a prayer for eviction and arrears of rent is made on the basis of notice dated 29.2.1980. The question which arises is as to whether the two causes of action could be united or not. Section 9 CPC takes aid of two significant Rules i.e. Order II Rule 2 and Order II Rule 3 which for ready reference are reproduced below:

“ORDER II : FRAME OF SUIT

Rule 2.

Suit to include the whole claim.– (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Rule 3.

Joinder of causes of action.–(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.”

It is well settled that the subject matter of a suit must be within the jurisdiction of a court. Section 9 of the CPC takes away the jurisdiction of cognizance of a suit when it is expressly or impliedly barred. Reading the mandate of Section 9 in conjunction with Order II Rule 2 and 3 CPC, it is clear that a litigant has to include whole claim arising out of a cause as per Order II Rule 2 and by virtue of Order II Rule 3 several causes can be united provided they are not otherwise barred.

Learned counsel for the appellants has argued that a suit for cancellation of sale deed by virtue of Section 31 of the Specific Relief Act, 1963 for it being set aside as void or voidable would lie before the civil court but insofar as the suit for eviction and arrears of rent is concerned, the jurisdiction of the same by virtue of Article 4 contained in Schedule-II of the Provincial Small Cause Courts Act, 1887, the jurisdiction is vested in the court of Judge, Small Causes. Article 4 of the Schedule-II as it relates to Uttar Pradesh, is thus extracted below:

“The Second Schedule

Suits excepted from the cognizance of a court of small causes

(1)……

(2)……

(3)……

“(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation.– For the purposes of this Article, the expression ‘building’ means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.”

This Court would note that Section 31 of the Specific Relief Act provides a remedy for a cause when an instrument on repudiation is to be adjudged as void or voidable. The consequential remedy of possession by ejectment may or may not arise on account of praying for a relief of setting aside an instrument as is the case at hand.

In the present case, the possession of the shop was not handed over as a result of sale deed but it stood transferred on creation of tenancy rights much before the bequeath of gift deed registered in favour of the minor in the year 1964, thus the possession by ejectment on setting aside the sale deed was not claimed nor the court fee therefor was paid.

The relief for eviction of a lessee by a lessor from a building after determination of lease and recovery from him of rent is clearly cognizable by the court of judge small causes by virtue of Section 15 of the Act read with Entry 4 of the Second Schedule appended to the Act of 1887. The cause for eviction and recovery of rent arose on the basis of notice dated 29.2.1980 whereby on repudiation of sale deed, the respondent terminated the tenancy on the grounds set out therein. Section 16 of the Provincial Small Causes Court Act provides as under:-

“16. Exclusive jurisdiction of Courts of Small Causes.- Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.”

 The causes of action and the relief emanating therefrom are two different concepts and are liable to be understood distinctly.

Order II Rule 2 lays emphasis on relief whereas Order II Rule 3 permits joinder of causes of action. A cause of action may entitle a person for more than one relief and in such a situation Order II Rule 2 provides ample guidance. The consequences of relinquishment or omission to pray for a relief without leave of the Court are specifically provided. From a plain reading of Order II Rule 2, it is clear that a relief once relinquished or omitted to be prayed without leave of the court cannot be sought in a successive suit. It is interesting to note that a person may relinquish any part of his claim in order to bring the suit within the jurisdiction of any court. The implication of this provision would arise only when a cause is within the jurisdiction of a court and not otherwise. The position becomes more clear when we look at the language of Order II Rule 3 which provides for uniting several causes of action save as otherwise provided. If a cause is not cognizable by a court and the same is barred, the position of relinquishment or omission of claim or relief is bound to be understood distinctly. Multiple suits for different causes of action can be filed by including the whole claim arising therefrom.

Learned counsel for the appellants placing reliance upon a judgement rendered by the Calcutta High Court reported in AIR 1975 Calcutta 293 (Anil Kumar Roy v. Mansanath Shaw) has tried to make the position clear. The relevant extract of Para-6 relied upon by the appellants reads as under:

“Coming to the question of jurisdiction it is clear that the claims referred to in issue No. 6 are not excepted by Sche. II. As such if the claim is not above Rs. 500/- as laid down in Section 16 of the Act suit for such claims can only be tried by the court of small causes. To hold otherwise would be to allow a party to evade the provisions of law as has been held in Maharaja Bahadur Singh’s case referred to above. The learned Munsif was in error in thinking that since the Code of Civil Procedure allows a joinder of causes of action under Order 2, Rule 3 the plaintiff at his option can join different causes of action and if the claim exceeds the jurisdiction of the Small Cause Court it may be tried by ordinary courts. The learned Munsif overlooks the provisions of Order 2, Rule 3 which starts with the words “save as otherwise provided.” We find that the provisions in Sections 15 and 16 bring out the claims from the operation of Order 2, Rule 3 for uniting causes of action and accordingly it appears that the learned Munsif would not be in a position to try claims for wages and commission which are not excepted items under the schedule. In that view of the matter the impugned order has to be set aside.”

Per contra, Sri Vivek Raj Singh, learned counsel for the respondent placing reliance upon two judgements; one rendered by this Court reported in AIR 1976 Allahabad 42 (Akhilesh Chand Varshney v. Smt. Bhagwati Devi and others) and the other by Delhi High Court reported in AIR 1992 Delhi 338 (M/s Jay Industries v. M/s Nakson Industries), has argued that uniting the two causes of action in view of Order II Rule 3 was permissible and the Court may not discover a ground of lack of jurisdiction at this stage when no issue to that effect in the light of plea taken in the written statement, was framed or raised in the present appeal.

The submission put forth by the learned counsel is that the uniting of two different causes of action irrespect of the bar of jurisdiction is permissible in a regular suit having detailed procedure and to support the argument the two High Court judgements mentioned above, were placed reliance upon.

This Court has carefully gone through the judgements AIR 1976 Allahabad 42 and AIR 1992 Delhi 338 (supra). It is gathered from the judgement rendered by Allahabad High Court that what was observed to be permissible is the relief arising out of a cause in the light of Order II Rule 2. In a situation where from one and the same cause more than one claim arises and one of the reliefs is not within the jurisdiction of the Judge Small Causes Court, the matter may be triable by the civil court having wider jurisdiction. The court may note that it is for this reason that a party is at liberty to relinquish a relief for bringing a suit within the jurisdiction of the court but once the relief is not relinquished, the court which has wider jurisdiction to grant the entire relief would assume jurisdiction. Likewise Section 23 of the Provincial Small Cause Courts Act would confer jurisdiction on the civil courts if right of a plaintiff or the relief claimed depends upon the proof or disproof of title to immovable property. The question that arises in the present case is as to whether the two independent reliefs which arise out of two distinct causes of action are also triable before the court of wider jurisdiction or should the two causes giving rise to claim cognizable by different courts be tried separately before the competent courts.

In the present case, the cause in respect of sale deed for it being adjudged as voidable or void, the exclusive jurisdiction lies with the civil court. The civil court, in the case at hand, looking to the averments made in the Para 20 to 22 of the written statement, framed issue no. 8 as under:

“Whether the suit was bad for the misjoinder of cause of action.”

This issue is essentially an issue of jurisdiction over the subject matter, for the lack of which, a decree may be a nullity once the suit is barred. It is well settled that jurisdiction cannot be conferred upon a court by concession, therefore, the two judgements of the High Court mentioned above as relied upon by the respondent do not provide a complete answer is the argument put forth by learned counsel for the appellant.

Once the causes of action are distinct and exclusive for the purposes of grant of two independent reliefs sought in the plaint, the plain language of the Statute must operate and bind the parties. The bar of jurisdiction contemplated under Section 9 CPC as held by Calcutta High Court looking to the mandate of Section 16 of the Provincial Small Cause Courts Act, would apply, as if, the jurisdiction of civil court stood excluded, is the argument put forth in nutshell on behalf of the appellants.

This Court may note that the jurisdiction of the court of Judge, Small Causes in the light of Section 16 is not exclusive and this position is well settled by a Full Bench of this Court in the case reported in AIR 1970 Allahabad 604 (Manzurul Haq and another v. Hakim Mohsin Ali). Similar is the view taken by a Full Bench judgement of Madhya Pradesh High Court reported in AIR 1970 MP 237 (Bhaiyalal Girdharilal Shrivastava v. Tikaram Udaichand Jain). The view expressed by this Court to an extent has been affirmed by the apex court in the case reported in (1982) 1 SCC 4 [Gangabai w/o Rambilas Gilda (Smt.) v. Chhabubai w/o Pukharajji Gandhi (Smt.)].

Multiplicity of the proceedings between the same parties relating to the same property is against public policy, therefore, the trial court rightly chose to frame the issue as above, and the argument that the trial court failed to frame an issue directly on the aspect of jurisdiction violated the mandate of Order XIV Rule 2 CPC, is not convincing. The argument also deserves to be repelled, once it is noted that the Full bench decision of this Court has held that the Judge, Small Causes has a preferential jurisdiction but not exclusive.

Having given an anxious consideration, in my humble view, when the two causes of action are so dependent that one cannot be tried without the other, the same can be united within the scope of Order II Rule 3 CPC and the bar stipulated therein opposed to the public policy would not come in the way. Like in the present case where the determination of lease hold rights could not be exclusively tried without going into the legality of sale deed, hence the proceedings of civil suit would also be saved within the scope of Section 23 of the Provincial Small Cause Courts Act as the question of validity of sale deed was imminent.

This Court would equally note that the appellants had failed to file a cross-objection on issue no. 8 having been decided against them by the trial court in the judgement/decree rendered in their favour. The question as to whether the suit was bad for joinder of causes of action in the present case, was a mixed question of law and fact, therefore, failure on the part of the appellants to avail the remedy under Order XLI Rule 22 CPC must visit with consequences. Order XLI Rule 22 CPC for ready reference is reproduced hereunder:

22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been In his favour; and may also take any cross objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one months from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow:

Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or In part, in favour of that respondent.

(2) Form of objection and provisions applicable thereto–Such cross objection shall be in the form of the memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) Omitted

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or Is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit,

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

Learned counsel for the respondent has argued that on the aspect of uniting causes of action, issue no. 8 was decided against the appellant by the trial court which the appellants never challenged by filing a cross objection under Order XLI Rule 22, thus, the appellants stand precluded from raising such a question in view of the law laid down by the apex court reported in (2003) 9 SCC 606 (Banarsi and others v. Ram Phal). Learned counsel for the respondents also placed reliance upon the judgement of this Court reported in AIR 1992 Allahabad 115 (Devesh Chandra Gupta v. Dina Nath) to substantiate his argument.

The Court has already observed that the trial court has not committed any irregularity in the framing of issue no. 8, therefore, the substantial questions of law no. 1 and 2, as argued by learned counsel for the appellants on the aspect of jurisdiction, are not made out and deserve to be turned down. The opportunity was fully availed of by the appellants, hence this Court has no reason to construe the decree passed by the civil court to be a nullity and the second appeal fails on the above questions.

Insofar as the third substantial question of law mentioned above is concerned, the position of law in that regard has fully been dealt with in a Full Bench judgement reported in 1974 ALR 374 (Bireshwar Prasad Gautam v. Dr. R.K. Agarwal). Once an opportunity according to the detailed procedure is availed of, a party cannot turn around and frustrate the object of finality of proceedings duly contested.

Residual Questions

Having answered the substantial questions of law l, 2 and 3 as above, this Court would note that by order dated 6.1.1988 passed at the initial stage, the appeal was admitted on the following two questions:

(1) Whether the lower appellate court erred in appreciating the true implication of the admission of respondent no. 1 that a sum of Rs. 4500/- or 5000/- had been spent on the reconstruction of the house and rested his finding only on the amount admitted in the plaint; and

(2) Whether the lower appellate court failed to appreciate the legal implications of the fact that despite the execution of the alleged gift deed dated 28.4.64, the father of respondent no. 1 continued to deal with the property including the tranfer thereof by a registered sale deed in favour of the appellants.

At the time of hearing the second appeal, the Court by order dated 8.2.2019 proceeded to frame five more substantial questions out of which 1 to 3 have already been dealt with and the remaining two read as under:

“4. Whether the first appellate court was right in recognizing the rights of appellants both of ownership on the basis of sale-deed simultaneous to the adjudication of tenancy rights for the period after the execution of sale deed on 5.8.1975.

5. Whether there was compliance of Order 41 Rule 31 CPC by the first appellate court below.”

The Court has already noticed that the appellants had raised a two-fold defence against the prayer made in the suit. Firstly, that the sale deed which was alleged to be voidable cannot be set aside as long as the sale consideration of Rs. 10,000/- was not returned to the defendants no. 1 and 2. Secondly, the notice terminating the tenancy rights was invalid as the amount spent in the reconstruction to the tune of Rs. 4426/- had yet not been adjusted as against rent @ Rs. 15/- p.m. from the date of completion of construction. The two grievances according to the appellants were liable to be dealt with by framing appropriate issues. Failure to do so by the first appellate court in particular, gives rise to the violation of Order XLI Rule 31 CPC hence the reversal of judgement rendered by the trial court without setting out the point of determination by the first appellate court vitiates the impugned judgement dated 30.7.1987 is precisely the submission put forth on behalf of the appellant.

On the aspect of protection available to a minor under the Hindu Minority and Guardianship Act, 1956, Section 8 being relevant, hence the same is reproduced as under:

“8. Powers of natural guardian.–(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court-

(a) mortgage or charge, or transfer by the sale, gift, exchange or otherwise, any part of the immovable property of the minor;or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular-

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.

(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and

(c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.”

In the present case, it is undisputed that the property belonging to the minor was managed by his father. The plaintiff nevertheless questioned the validity of the sale deed dated 5.8.1975 on the ground that permission of the court was not sought before execution of the same. As per the mandate of Section 8(3) of the Act, any transaction by the natural guardian in violation of Section 8(1) or 8(2) is voidable. It is well settled that a voidable transaction is binding until its repudiation. It is to be noted that that as per the disjunctive phrase used in Section 8(3), the two situations under the statute have to be construed carefully. The sale deed executed on 5.8.1975 was repudiated by notice dated 29.2.1980. The receipt of notice is acknowledged by the appellants who in defence sought protection of their tenancy rights by replying to the notice. The question that arises is as to whether a voidable document which mentions payment of sale consideration of a sum of Rs. 5000/- was liable to be set aside without return of the sale consideration by the respondent on whose behalf the property was managed by his father. It is to be noticed that the payment of sale consideration was duly acknowledged by the father of the respondent at the time of registration of sale deed on 4.9.1975 but payment of any such amount has been denied by the respondent in the suit filed by him. In the light of pleadings on record, two issues became relevant on the repudiation of sale deed dated 5.8.1975. Firstly, as to whether the sale consideration was not paid of which the burden of proof rested upon the plaintiff and secondly, whether the appellants-defendants were entitled to the return of the sale consideration which according to them was Rs. 10,000/-.

The trial court framed the following issue in relation to the sale deed dated 5.8.1975 i.e. issue no. 4.

“Whether the disputed sale deed dated 5.8.1975 is liable to be set aside as per averments in the plaint”.

The above issue was decided alongwith issue no. 1 which was framed to the effect, as to whether the plaintiff was the owner of the property in dispute.

The issues no. 1 and 4 framed by the trial court are of vital importance. It does seem as if, the trial court has failed to frame the appropriate issues but on a careful consideration of the dispute, the Court is convinced that the trial court, in its wisdom on the aspect of sale deed dated 5.8.1975, was not obliged to consider anything beyond the legality of sale deed. The transaction on payment of sale consideration acknowledged by the father would not bind the respondent for repayment while he was a minor, hence the appellants for the relief of restitution, had to bring about a fresh suit against the father of the respondent and upon his death, the obligation would shift upon the respondent only to the extent of estate inherited from his father which would require independent determination and cannot be charged on the disputed property in question. A voidable transaction would not bind the minor for restitution of the sale consideration, is well settled ever since the Privy Council judgement reported in 1903 SCCOnline PC 4: (1902-03) 30IA 114.

It is to be noted that the sale deed was executed by the father on behalf of the respondent who at the relevant point of time was a minor. Any stipulation in the sale deed to compensate for any defect in title was at the sole risk of the father. What the minor could not freely consent himself, was equally not permissible for his father to bind the minor. The promise to compensate for any defect in the sale deed on behalf of the minor was incapable of being expressed, inasmuch as, any such consent on behalf of the minor would not be free. There is no dispute on the age of minor as on 5.8.1975. The Court would thus come to an irresistible conclusion that no authority would legally vest in the father to sell the disputed property for the lack of necessary permission by the court and also on account of the fact that the father could not express free consent on behalf of the minor for creating any charge on the gifted property owned by the respondent. For restitution of sale consideration, the appellants may have a remedy against the father of respondent or his property which might have devolved upon the respondent. In the light of what has been observed above, the Court would not enter into a detailed reference of the legal provisions which have carefully been considered in the judgement (supra) and the position of law remains unaltered and nothing has been brought to my notice for taking a contrary view. Thus, on the aspect of cancellation of sale deed, the relief granted by the appellate court below, in view of what has been observed above, did not call for framing any more issues and the verdict rendered for setting aside the sale deed deserves to be affirmed. It is ordered accordingly.

Now coming to the tenancy rights of the appellants, it may be noticed that the tenancy rights were allegedly created much before the registration of gift deed in the year 1964. The tenancy right has duly been acknowledged and ratified in the notice dated 29.02.1980. The claim for arrears of rent is clearly indicative of the ratification of tenancy rights, as such, the protection of the Section 8 (3) of the Hindu Minority and Guardianship Act is not open to be argued on the aspect of lease. Going by the version of pleadings, arrears of rent @ Rs. 30/- p.m. was claimed with effect from January, 1978 and due to failure on the part of the appellants to pay within the period of notice, the monthly tenancy was terminated. This notice also alleged the adjustment of cost incurred by the appellant on reconstruction of rented shop. There was a dispute on the aspect of tenancy, rate of rent and adjustment of the cost of reconstruction incurred by the appellants towards monthly rent.

The right of tenancy was already created in the property, therefore, to say that the creation of tenancy rights was equally hit by the mandate of Section 8(2) of the Hindu Minority and Guardianship Act, 1956 would be a far fetched proposition. The question is whether the father in the capacity of natural guardian could deal with the property by creating a charge. The agreement to compensate the cost of reconstruction out of rental proceeds was essentially not creation of lease hold rights but management of the property for realisation of a higher benefit out of the existing relationship. Such a measure appears to be an act which, in my humble opinion, was permissible within the scope of Section 8(1) of the Hindu Minority and Guardianship Act and to this extent the submission put forth by learned counsel for the respondent that lease hold rights were equally hit by the mandate of Section 8(2) is misconceived and bereft of any merit. It is for this reason that the respondent did not repudiate the tenancy rights but having acknowledged the same, demanded the arrears of rent fallen due and for non-payment of the same within 30 days, the tenancy was terminated. The appellants-defendants disputed that adjustment had not fully been made, therefore, the notice was bad.

The respondent in fact, accepted the month to month tenancy until the adjustment of the cost of reconstruction which according to the appellants-defendants was Rs. 4426/-, whereas, the respondent-plaintiff merely admitted the same to the tune of Rs. 2000/-. For this purpose, the rate of rent was also one of the dimensions of controversy between the parties. The trial court had framed the following issues to adjudicate the tenancy rights:

Issue no. 2 : What is the monthly rent of the disputed property?

Issue no. 3 : On reconstruction of the disputed property what was the cost incurred by defendants no. 1 and 2?

Issue no. 5 : Whether defendant no. 1 is the tenant and whether he is not paying the rent?

Issue no. 6 : Whether there was any agreement arrived at on 8.9.1967 between the parties as has been averred by defendants no. 1 and 2 in their written statement?

Issue no. 7 : Whether the defendants no. 1 and 2 were tenants of the half share of the shop or the whole shop?

The above issues fell for consideration before the trial court. On the aspect of cost of construction, the trial court valued the same at a sum of Rs. 4426/-. On the rate of rent, the trial court determined the same at Rs. 15/- p.m. The adjustment of rent, looking to the rent receipts, was reckoned from the month of January, 1968. On the findings and treating the rent at the rate of Rs. 15/- p.m., the tenancy rights would last beyond the date, on which tenancy was terminated by issuing notice dated 29.2.1980.

As per the pleadings on record, the notice apparently was conditional and the termination of tenancy was dependent upon the adjustment of cost of reconstruction. The trial court seems to have lost sight of the real question as to whether the notice terminating tenancy was within the scope of Section 106 of the Transfer of Property Act.

The first appellate court below on the aspect of monthly rent, has affirmed the findings of trial court. The rent at the rate of Rs. 15/- p.m. of the whole shop is a concurrent finding of fact returned by both the courts below. Once this position was settled, the computation of the period for adjustment of the cost of construction on month to month basis @ Rs. 15/- p.m. was merely a mathematical exercise. The period of tenancy was liable to be understood clearly when it would ripe for termination of tenancy by notice. The notice terminating the tenancy was premature as on 29.2.1980. It was upon the exhaustion of the time period corresponding to the cost of reconstruction at the monthly rate of Rs. 15/-, that would have entitled to terminate tenancy by notice. Thus, the competence of the respondent to determine tenancy was circumscribed by time factor and such a notice could not be enforced against the appellants prior to the adjustment of cost of reconstruction.

On the aspect of the cost of reconstruction, the trial court on appreciation of the evidence on record, has clearly returned a finding for value of Rs. 4426/-. The first appellate court has reversed the finding recorded by the trial court even without framing a point of determination. The aspect of cost of reconstruction was not such which the court below could not verify. The appellate court below ought to have called for a valuer’s report. The finding recorded by the appellate court below that the cost of reconstruction in absence of valid receipts cannot be assessed more than what was admitted in the plaint is unconvincing once there is no basis for the same, as such, the finding recorded by the appellate court is perverse. A pragmatic approach ought to have been adopted, hence the Court is satisfied that the finding recorded by the first appellate court on the valuation of cost of reconstruction deserves to be set aside and the assessment of cost at Rs. 4426/- ascertained by the trial court is confirmed.

At this stage the Court may note that the appellants have occupied the shop for a much longer period than what they were entitled to, hence during pendency of the proceedings, the claim, if any, seems to have been satisfied. Therefore, the termination of tenancy would only relate to the point of time when the whole cost incurred for reconstruction stood accounted for and for this purpose, relegating the matter back to the appellate court would be a futile exercise. Learned counsel for the respondents has also conceded to own the liability for repayment of Rs. 5000/- as mentioned towards sale consideration in the transfer deed and the same is allowed to be adjusted towards monthly rent @ Rs. 15/-. This concession is owned to buy peace. The decree of eviction, therefore, has been prayed to be given effect to in the light of observations recorded hereinabove.

Taking note of the submissions and concession recorded as above, this Court is satisfied that the impugned judgement passed by the first appellate court below for the purposes of passing the decree of cancellation of sale deed and eviction deserves to be affirmed subject to the adjustment of entire cost of Rs. 4426+50009426. The execution court while executing the decree shall bear in mind the observations made hereinabove. The second appeal on the substantial question of laws except for settlement hereinabove is bereft of any merit.

The second appeal is accordingly dismissed. Cost made easy.

Order Date :- March 13, 2019

Fahim

 

 

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