KOSHAL -
(1.)THIS is an appeal by special leave against a judgment of a learned single Judge of the High Court of Allahabad dated 19/02/1970 reversing in a second appeal the first appellate decree passed on lst June, 1966 by the District Judge, Rae Bareli in confirmation of the decree of the trial Court. The prayer made by the plaintiffs in the suit, which was dismissed by the first two Courts, was to the effect that a sale deed executed on 14/02/1964 (Exhibit A-1) by defendant No. 2 in favour of defendant No. 1 in respect of a portion of a block of houses situated in Rae Bareli, be cancelled, and that possession of that portion be delivered to the plaintiffs who should also be awarded mesne profit while accepting the second appeal the High Court decreed the suit except in regard to mesne profits.
(2.)MOST of the facts giving rise to this appeal are undisputed and may be briefly stated with reference to the following pedigree-table :
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In the years 1916 and 1918 Sheo Dularey Misra (S. D. Misra for short) who was a leading lawyer at Rae Bareli purchased a block of houses in that town by means of two sale deeds (Exhibits 2 and 3), both executed by one Shambhu Dayal. In the year 1931 S. D. Misra filed a suit against his father and brothers for a declaration that he was the absolute owner of the Rae Bareli houses above mentioned as also of 4 annas and 9 pies share in proprietary Zamindari situated in Mohal Badri Prasad of Village Tera Baraula in Pargana and district Rae Bareli. On the 29/08/1931 a decree based on a compromise (Exhibit 5) was passed in that suit to the effect that S. D. Misra was the exclusive owner of the Rae Bareli houses and also of a half of the said 4 annas and 9 pies share in the Zamindari
On the death of S. D. Misra in 1951, his entire property was mutated in the name of defendant No. 2, both in the revenue records as well as in the registers maintained by the Rae Bareli Municipal Committee. From then onwards till the date of the disputed sale deed (Exhibit A-1) defendant No. 2 was in possession of the entire property left by his father and also acted as its exclusive manager. He received compensation for some of the Zamindari property, a part of which was also sold by him on the 12th. Jan., 1959 to one Imam Ali for a consideration of Rs. 800 (vide Exhibit A-19). In the years 1960 and 1961 defendant No. 2 constructed a one-storey building on a plot of land in Khurshid Bagh. Lucknow, where he was employed as a clerk in the Department of Health of the Government of Uttar Pradesh and where he was residing with his wife and children.
The disputed sale deed (Exhibit A-1) was executed by defendant No. 2 on the 14th Feb., 1964 in respect of the western portion of the said block of houses for Rs. 6.500 in favour of K. C., Kapoor, defendant No. 1 who is the sole appellant before us. in that sale deed defendant No. 2 described himself as "exclusive and complete owner" of the Rae Bareli property and claimed that he was "in possession and occupation thereof with powers of transfer of all kinds ... " The necessity for the sale was thus described by him:
"I am constructing a house in Mohalla Khurshed Bagh, City Lucknow, the lower portion whereof has already been constructed and for the construction of the upper portion whereof funds are required."
This litigation started on the 17/09/1964 with the institution of a suit by the three plaintiffs. It was claimed therein that on the death of S. D. Misra, plaintiff No. 1 succeeded to a half share in his property, being his widow, while the other half was inherited by defendant No. 2 so, however, that his sons (plaintiffs Nos. 2 and 3) had an interest therein by birth. In other words, while half of the property left by S. D. Misra was claimed to belong exclusively to Radhika Devi, plaintiff No. 1, in respect of the other half the assertion was that it belonged to a coparcenary consisting of defendant No. 2 and his two sons. The relief of possession of the property sold by virtue of sale deed Exhibit A-1 was prayed for in consequence of the cancellation of that document which was sought to be set aside for the reason that the transaction covered by it was not for any necessity of the said family.
In the written statement the stand taken by defendant No. 1 was that defendant No. 2 was the sole owner of the entire block of houses above mentioned and had full power to alienate the same, but that even if it was proved to be coparcenary property as alleged, the sale would still be good as it was made for legal necessity. In this connection the contents of paragraph 15 of the written statement may be quoted here with advantage :-
"That defendant No. 2 sold the house in suit for the purpose of building a more profitable and advantageous house at Lucknow and with a view to dispose of a construction which was old and in perilous condition and which was of no present utility. Even if the house in suit is proved to be joint family property the transfer is for legal necessity by the Karta and is binding on the joint family and the plaintiffs"
Two other material pleas were put forward in paragraphs 14 and 16 of the written statement and are extracted below:
"14. That defendant No. 2 represented to the answering defendant No. I that. defendant No. 2 was the sole owner of the house, a portion of which is the subject-matter of dispute, and in fact he was all along been acting as sole owner of the properties left by his father. The answering defendant No, 1 also made diligent and reasonable enquiries about the right, title and interest of defendant No. 2 and his sole power to transfer it, and as such the answering defendant is a transferee in good faith for consideration and without notice."
"16. That defendant No. 2 executed the sale deed in favour of the answering defendant with the active consent and approval of plaintiff No. 1 and plaintiff No. 1 is estopped from asserting her right against it."
Statements of counsel for parties were recorded by the trial court on the 27th of April, 1965 when it framed 8 issues of which issues Nos. 1 to 3. 5 and 7 were :
"1. Whether plaintiffs and defendant No. 2 formed a joint family? If so. who was the Karta of the family?
"2. Whether plaintiffs Nos. 2 and 3 have interest in the house in suit by birth?
"3. Whether defendant No. 2 had a legal necessity to sell the house? If so, its effect?
"5. Whether defendant No. 1 is a transferee for value in good faith and is entitled to protection of Section 41 of the Transfer of Property Act?
"7. Whether the suit by plaintiff No. I is barred by estoppel?"
Statements of learned counsel for the parties were again recorded on 28/05/1965 and 3 1/05/1965. On behalf of defendant No. 1 a part of his case was stated like this :
"Defendant is a purchaser for value in good faith and without notice. In any view of the case the disputed portion is not more than the share of Parmeshwar Din and the alienation is valid and cannot be impeached by the plaintiffs. Disputed portion was sold with the active consent and approval of plaintiff No. 1 and she is estopped from challenging the transaction."
(3.)IN its judgment the trial court held that all the three plaintiffs and defendant No. 2 formed a joint Hindu family of which defendant No. 2 was the Karta and that plaintiffs Nos. 2 and 3 acquired an interest by birth in the property left by their grandfather.
IN deciding issue No. 3 the trial Court took note of the following facts :
(a) The joint Hindu family consisting of the three plaintiffs and defendant No. 2 received compensation for the Zarnindari.
(b) The family had income from the Zamindari.
(c) The family derived rent from the said block of houses.
(d) S. D. Misra was a successful lawyer, which circumstance made it probable that he had left behind some cash in addition to other property.
(e) On 12/01/1959 defendant No. 2 received Rs. 800 as consideration for the sale covered by Exhibit A-19.
(f) Sanction for the plan of the building of the Lucknow house (Exhibit A-21) was accorded by the Lucknow Municipality on 28/06/1960 and the building was completed in 1961.
(g) There is no evidence to show that defendant No. 2 had income of his own from which he could save enough money to be spent on the said building.
(h) Plaintiff No. 1, who was actively conducting the case on behalf of the plaintiffs, and defendant No. 2, had both stayed away from the witness-box.
Taking all these facts into consideration the trial court concluded that the Lucknow house was the property of the said joint Hindu family. It went on to point out that the disputed sale was an act of good management in view of the following circumstances:
(i) The portion of the block of houses sold through exhibit A-1 was in a dilapidated condition and on 14/07/1964, ie., less than 5 months after the same, the municipal authorities issued a notice to defendant No. 1 pointing out that he building purchased by him was in a dangerous condition and requiring him to demolish it within 3 days so that defendant No. 2 was under an obligation to pull down the building and either leave the site underneath un-built (which would have meant a loss of some income to the family) or to construct a new building thereon.
(ii) Construction of a building in Lucknow would have been more rewarding incomewise than erecting one at Rae Bareli.
(iii) Defendant No. 2 was employed at Lucknow and it was in the interest of the family to put on a second storey in the house there.
The trial court concluded that the sale was, in the circumstances above mentioned, for the benefit of the family and, therefore, for legal necessity.
Issue No. 5 was decided by the trial court against defendant No. 1 for the following reasons :
(a) Defendant No. 1 knew that the property sold to him had descended from S. D. Misra who had left behind a widow and a son, so that defendant No. 1 could not be regarded as a purchaser without notice of the fact that the plaintiffs had an interest in the house.
(b) Defendant No. 1 did not consult any lawyer to make sure that defendant No. 2 was the sole owner of the property sold as asserted by the latter.
The trial court, therefore, held that defendant No. 1 was not entitled to any protection under Section 41 of the Transter of Property Act.
IN relation to issue No. 7 the trial court remarked that it was the duty of defendant No. 1 to give the details of the misrepresentation constituting estoppel in the written statement, which was not done so that the evidence on the point could not be looked into. Issue No. 7 was thus decided against defendant No. 1.
Legal necessity for the disputed sale having been found by the trial court to be established, it dismissed the suit with costs.
It is also necessary to recount at some length the findings arrived at by the learned District judge in appeal. The conclusions reached by the trial court that the plaintiffs and defendant No. 2 formed a joint Hindu family and that the said block of houses belonged to that family were not challenged before him and the main contest in the course of the first appeal embraced points of legal necessity and estoppel as also the applicability of Section 41 of the Transfer of Property Act to the facts of the case. Taking up the last point first, the learned District Judge decided it against defendant No. 1 for the following two reasons:
(a) Defendant No. 1 had had notice that the building in dispute originally belonged to S. D. Misra and that the latter died leaving behind a widow, a son and a grandson. Thus defendant No. 2 was posted with the knowledge that at the time of the sale in his favour persons other than defendant No. 2 had interest in the property in dispute.
(b) Plaintiffs Nos. 2 and 3 were minors on the date of the sale and even at the time of the institution of the suit and could not. by reason of their minority, be deemed to have consented to the ostensible ownership of the property vesting in their father.
On the question of estoppel, the learned District Judge discussed in detail the evidence produced before the trial court and concluded that on 22/01/1964, when a sum of Rs. 1,000 was paid by defendant No. 1 to defendant No. 2 as earnest money through receipt Exhibit A-26, plaintiff No. 1 gave her consent to the transaction of sale in the presence of defendant No. 1 as well as that of Radha Krishan D.W. 5 and Gopal Nath Chopra, D.W. 6, both of whom were attesting witnesses to that receipt. He went on to hold that the trial court was in error when it refused to look into the evidence on the point with the observation that the particulars of the consent of plaintiff No. 1 were not given in the pleadings. The learned District Judge was firmly of the opinion that the statement in Para 16 of the written statement to the effect that the sale had taken place with the active consent and approval of plaintiff No. 1 was enough to raise the question of estoppel and that it was not necessary for defendant No. 1 to further mention in his pleadings the particulars of such consent or the details of the evidence by which the same was to be proved. The learned District Judge concluded that by reason of the consent given by plaintiff No 1 to the sale, she was estopped from attacking disputed sale deed.
On the question of legal necessity, the District Judge took note of all those facts which the trial court had taken into consideration, as also of the following additional circumstances:
(a) Defendant No. 2 was the only adult male member of the family at the time of the sale. He had throughout been managing the property of his father and was the Karta of the joint Hindu family aforesaid.
(b) The sale had come about with the consent of plaintiff No. 1 who was the only other adult member of the family.
In the result, the learned District Judge upheld the finding of the trial court that the Lucknow house belonged to the joint Hindu family. He further held, for more or less the same reasons as had weighed with the trial court in that behalf, that the sale was an act of prudence on the part of defendant No. 2 who had wisely sold a dilapidated building, and instead of pulling it down and incurring expense over its re-construction, had raised money for the purpose of building the first floor of the new house at Lucknow which was a big city as compared to the "small and sleepy town" of Rae Bareli.
On the above findings, the first appeal was dismissed with costs.