Deorati Kuer vs Prabha Rai and Others

Mungeshwar Sahoo, J.—Originally, Sadhu Sharan Rai, the sole appellant had filed this First Appeal against the Judgment and Decree dated 23.4.1977 passed by the learned 5th Addl. Subordinate Judge, Siwan in title suit No. 311 of 1972 /34 of 1977. The plaintiff was respondent No. 1, namely, Mostt. Deorati Kuer. On the death of the defendant appellant, Shadhu Sharan Rai, the sole plaintiff-respondent Mostt. Deorati Kuer was substituted in place of the defendant-appellant Shadhu Sharan Rai. Mostt. Deorati Kuer also died subsequently. It may be mentioned here that the respondent Mostt. Deorati Kuer had filed cross objection in the First Appeal. Therefore, the First Appeal and the cross objection are heard together.

It will not be out of place to mention here that the plaintiff respondent No. 1, Deorati Kuer filed the aforesaid suit claiming partition of her half share in the suit property. The defendant Shadhu Sharan Rai who was sole appellant filed written statement claiming that the suit property are his self acquired property. The trial Court held that the plaintiff respondent has half share in the suit property and directed that after deducting the properties gifted by the appellant, Shadhu Sharan Rai to the respondent No. 13 to 15, the remaining properties be partitioned. The original appellant Shadhu Sharan filed this appeal challenging the decree whereby it was recorded that the properties are joint family properties and granted the decree to the extent of half share. He died. On his death, the plaintiff has been substituted in his place. Although, there is no transposition application filed by the plaintiff respondent for being transposed as appellant. The learned counsel submitted that he was under impression that since she has been substituted in place of the sole appellant, she became the appellant.

Now, the position is if the plaintiff, Deorati Kuer is treated as appellant then she again challenged the finding to the effect that the suit properties are joint family properties on the basis of which decree have been granted in her favour because so far the decree against her is concerned, she has filed cross objection. Further she is the appellant in the First Appeal also and is the cross objector in the First Appeal. The question will be whether a person who is the appellant in First Appeal can file a cross objection in the said First Appeal. In my opinion, there is no such provision in C.P.C. Moreover, she again challenged the decree which is in her favour and which was challenged by the defendant.

The other aspect of the matter is by the impugned Judgment and Decree, half share was given to the appellant and half share was given to the defendant appellant. On the death of the defendant-appellant, she being the only legal representative and sole appellant Shadhu Sharan Rai inherited the share of Shadhu Sharan Rai also and she became the owner of the entire property. Because of this subsequent event, how can she will be allowed to challenge the impugned Judgment and Decree. In view of the above facts and circumstances of the case, in my pinion, at the instance of Deorati Kuer, the First Appeal is not maintainable because of subsequent development that she became the owner of the entire property except the property which was gifted by Shadhu Sharan Rai, the sole appellant.

In the impugned Judgment also, the trial Court held that the gifted property be allotted in the share of defendant No. 1 and thereafter, the said property shall be allotted to the defendant No. 13 to 15 vide paragraph 15 at page 20.

So far cross objection is concerned, it may be mentioned here that the same has been filed by Deorati Kuer who was respondent in the appeal against the respondent No. 13 to 15. Therefore, the cross objection is by respondent against the respondent and in this case, this cross objection now is filed in the appeal wherein the cross objector is also appellant.

The learned counsel for the cross objector appellant submitted that on the date of filing of the cross objection, i.e., on 2.1.1978, the cross objection was maintainable. In such circumstances because subsequently, the cross objector became the appellant in the First Appeal, the cross objection cannot be held to be not maintainable. The learned counsel submitted that in view of the provision under Order 41 Rule 22 sub Rule 4 C.P.C. even if the First Appeal is dismissed then also the cross objection is to be heard on its own merit. The learned counsel submitted that the defendant No. 1 had only half share in the property but during the pendency of the suit, he gifted more than his share in favour of defendant No. 13 to 15 and these gift deeds are hit by the Principal of lis pendens as provided u/s 52 of the Transfer of Property Act. According to the learned counsel since the gift deeds are executed during the pendency of the suit, it will not affect the title of original plaintiff cross objector.

On the other hand, the learned counsel for the respondent No. 13 to 15 submitted that the cross objection by respondent against respondent is not maintainable. Moreover, the suit was filed simply for partition to the extent of half share which has been decreed in favour of the plaintiff. It is not the case of the original plaintiff that the original appellant had no share at all in the suit property. Admittedly, decree was passed for half share only with specific direction that the gifted property be allotted in the share of defendant No. 1. So far the submission of the learned counsel for the appellant, i.e., cross objector that the defendant No. 1 sold gifted property in excess of his share is concerned, there is no such pleading and the cross objector never sought any relief for the declaration of the gift deed as void. According to the learned counsel, the principle underlying Section 52 of the Transfer of Property Act is to maintain status quo unaffected by Act of any party to litigation pending its determination. The learned counsel in support of his contention relied upon Jagan Singh (Dead) through L.Rs. Vs. Dhanwanti and Another, .

In view of the above facts and circumstances of the case and the subsequent development, the question to be decided is whether the cross objection in the present case is maintainable and the cross objector is entitled to any relief.

In view of the peculiar facts of the present case, it is not necessary to go in details about the pleadings of the parties because of the subsequent development. It will suffice to state here that plaintiff claimed half share in the suit property which was decreed. The Court below recorded that the sale deed executed by defendant No. 1 in favour of defendant No. 6 to 9 are genuine document and, therefore, ordered that the same be excluded from partition. According to the plaintiffs the sale deeds are Farzi. However, it appears that D.W. 1 clearly in his deposition stated that he had sold some property to defendant No. 6 to 9 because of legal necessity. In the evidence, the plaintiff examined as P.W. 1 has not stated that the sale deeds are Farzi. The settled principle of law is that a registered deed is presumed to have been validly executed and once it is proved the onus is on the person who challenge the genuineness of the sale deed to show that in fact the sale deed is Farzi transaction as has been held by the Apex Court in the case Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jajoo, and by this Court in the case of Sita Sharan Prasad Vs. Manorama Devi 2012 (2) BLJ

Here, the only statement of the plaintiff is to the effect the sale made by defendant No. 1 in favour of defendant No. 6 to 9 is Farzi transaction. Except these pleadings and statements, no specific evidence has been produced to rebut the presumption. So far the gift deeds are concerned, no doubt the same have been executed during the pendency of the suit but it is settled principle of law that the registered document will not be held to be nonest in the eye of law on the ground of lis pendency.

In the case of Jagan Singh (Supra), the Apex Court has held that the principle underlying Section 52 of the Transfer of Property Act is to maintain status quo unaffected by act of any party to litigation pending its determination. Therefore, the right of the plaintiff will not be affected by the gift deed and the gift deed will be subject to the result of the lis. As stated above, admittedly the defendant No. 1 had half share in the property. The learned counsel for the appellant submitted that admittedly the total area of Schedule II and III land is 25 bigghas 10 katha 19 dhurs whereas the defendant No. 1 gifted 16 bigghas 13 kattha 18 dhurs, i.e., more than his half share. So far this submission is concerned, only on the ground of area, it cannot be said that the gift is void deed. It is settled law that for affecting partition, the valuation of the land is required to be considered by the Pleader Commissioner. One may be allotted less area if good qualities of land is allotted in his favour and the other may be allotted larger area if the quality is not so good keeping the settled principle of law of partition i.e., convenience of the parties and possession of the parties. It will not be out of place to mention here that the plaintiff/ cross objection has not claimed any relief in the plaint regarding the gift deeds.

The learned counsel for the cross objector further submitted that the best quality of lands have been gifted to defendant No. 14 to 15. So far this submission is concerned, there is nothing on record in support of this contention on the basis of which, it can be recorded that the gift deed land are the best quality land. These matters cannot be examined by the appellate Court without their being any pleading and evidence.

The other aspect of the matter is that because of subsequent event, in my opinion, the appellant cannot file a cross objection in his own appeal and likewise the cross objection by respondent against respondent is also not maintainable. The learned counsel for the appellant submitted that by virtue of the substitution of Deorati Kuer in place of the sole appellant, now the position has changed. So far this submission is concerned, I do not find any force because I have already held above that one person cannot maintain appeal against decree in his favour. Therefore, the First Appeal itself is not maintainable at the instance of Deorati Kuer.

In the case of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , the Hon''ble Supreme Court at paragraph 4 has held as follows:-

We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-�-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decreetal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.

This decision of the Apex Court has again been also referred to in the case of Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, . Therefore, the Court can take into consideration the subsequent events and developments in the facts and law in the case. In view of this position of law, the First Appeal is not maintainable and accordingly, the First Appeal is dismissed.

In the case of Mahant Dhangir and Another Vs. Madan Mohan and Others, , the Apex Court has held that generally the cross objection could be urged against the appellant. It is by way of exception of this general rule that one respondent may urge objection as against the other respondents. The type of such exceptional are also very much limited. In the facts and circumstances of the present case, in my opinion, here there is no such exceptional case. Therefore, also the cross objection is not maintainable. I have already held that the First Appeal is not maintainable at the instance of Deorati Kuer, therefore, there is no First Appeal in the eye of law. In such circumstances also, the cross objection is not maintainable because if there is no First Appeal, then there is no question of cross objection arises.

In view of my above discussion, I find that the cross objection has got no merit and is not maintainable also.

From perusal of the cross objection, it appears that it is not in the form of cross objection as required under Order 41 Rule 22 C.P.C. The party position is not clear. No substitution has been made in the cross objection. The provision as contained in Order 41 Rule 1 C.P.C., had not been followed. In the result, this First Appeal is dismissed and the cross objection is also dismissed. No order as to cost.