Ram Chander and Others vs Dalip and Others

Dua, J.—The plaintiffs who are also the appellants in this Court instituted a suit for possession of agricultural land measuring 6 bighas and 11 biswas pukhta. situated in village Beri, Tehsil Jhajjar. According to their averments the land in dispute had been sold ostensibly on their behalf during their minority by their fathers as natural guardians in favour of Dalip defendant No. 1, with the object of defeating a suit for pre-emption that had been brought by one Ram Nath on the ground that he was proprietor of the land in the village. The plaintiffs had purchased the land sold from one Siri Krishan for a consideration of Rs. 5,896/- as per registered sale deed dated 13th July, 1953. On a suit for pre-emption having been brought by Ram Nath, defendants Nos. 2 and 3 (Mughal alias Mughali and Ganga Ram), father of the plaintiffs, as their natural guardians, sold the land in question in favour of defendant No. 1. The defendant vendee, according to the plaintiffs'' case, promised to retransfer this land in their favour after the dismissal of the pre-emption suit, but the vendee failed to do so. The sale made by their guardians during their minority was alleged to be collusive, fictitious, without consideration, illegal and also not for their benefit.

Defendant Dalip resisted the suit inter alia on the ground that the plaintiffs had no cause of action and a suit for possession of land in dispute was not maintainable. The allegations were also denied on merits.

The only issue which concerns this Court at the present stage relates to the maintainability of the suit in the present form, both the Courts below having held it not to be maintainable. The point which weighed with the Courts below is that the plaintiffs have not prayed for setting aside the impugned sale. The sale which purported to be on their behalf through their guardians ought, in the view of the Courts below, to be got set aside by the plaintiffs before they can claim possession because they must be considered to be parties to. the sale. Several decisions were relied upon in support of this view including a decision of the Lahore High Court in Labha Mal v. Malak Ram ILR 6 Lah 447, in which Sir Shadi Lal C.J. who prepared the judgment on behalf of the Letters Patent Bench made the following observations :

There can be no doubt that a suit by a quondam minor to set aside an alienation of his property by his guardian is governed by article 44, and that, if he cannot establish his right to possession without first setting aside the alienation, the suit for possession is also governed by that article. Indeed, it has been expressly ruled by the Bombay High Court that, if the equity of redemption is sold by the minor''s guardian to the mortgagee, the minor, on attaining majority, cannot claim redemption without first setting aside the sale within the period prescribed by article 44, vide Fakirappa Limanna Patil v. Lumanna Bin Mahadu Dhamnekar ILR 44 Bom. 742.

On second appeal before me on behalf of the appellants Shri G.C. Mittal has contended, to begin with, that it was open to his clients to ignore the sale altogether and to sue for possession treating the sale to be a nullity. In support of this contention he has placed reliance on the following decisions:

Bijoy Gopal Mukerji v. Krishna Mahishi Debi ILR 34 Cal 329 (P.C.), a case dealing with a lease granted by a Hindu widow for a term extending beyond her own life; Petherpermal Chetty v. Muniandy Servai ILR 35 Cal. 551 (P.C.), a case dealing with peculiar facts on which the deed in question having been held to be inoperative it was observed that the plaintiff need not have brought a suit for setting aside the said deed as a preliminary to his obtaining the possession of the property; Anandappa v. Totappa 33 I.C. 441, a Bench decision of the Bombay High Court in which the plaintiff had sued for a declaration that a certain deed of exchange was not binding upon him and for recovery of possession of his share in certain lands and it was held unnecessary for the plaintiff to have the documents set aside before he could recover possession and also that his suit for possession was governed by the twelve years'' rule. There, the deed of exchange purported to be between the plaintiff, a minor interested in his own right as the adopted son of a Vatandar acting through his natural father, of the one part and the natural grandfather of the plaintiff of the other part. The two issues raised in the litigation related to : (i) whether the exchange effected was in the interests or for the benefit of the plaintiff and (ii) whether the suit to recover possession of his one-fourth share was barred by time. The trial Court had opined that the instrument being voidable at the option of the plaintiff it was necessary for him to set it aside before he could recover possession, the relief by cancellation being unnecessary only in case of a document ab initio void. The learned District judge on appeal reversed this decision considering the case to be covered by the ratio of the decision in Bijoy Gopal Mukerji''s case 3. Whether or not the decision in the reported case lays down the correct rule of law does not concern me. On the facts, however, the decision was perhaps correct Unni etc. v. Kunchi Amma etc. ILR 14 Mad. 26. This too appears to me to be out of point for the facts there are not similar to those before me. Arumilli Veeraragavalu Vs. Arumilli Sreeramulu and Others, In this case the earlier decision in the case of Unni 6 was followed; it may, however, be pointed out that this was a case in which the question of court-fee was involved and from the plaint the words for "setting aside" the transaction were allowed to be expunged. Obviously, this is no precedent to be followed in the case in hand. Putrevu Kamaraju Vs. Chunduri Gunnayya and Others, . In this case a minor''s property was sold by his mother as guardian and on attaining majority he ignored the sale and conveyed the property to the plaintiff who sued for possession. The plaintiff''s suit for recovery of possession without praying for setting aside the original sale was held to be competent. This case is again distinguishable Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and Others, . This again is a case dealing with alienation by a Hindu widow and can hardly be of much assistance to the appellants on the point canvassed. In reply the appellants'' learned counsel cited two more decisions though he was not entitled to refer to any new decisions not cited in his opening address. I, however, permitted him in the interests of justice to refer to them and also gave an opportunity to the respondents to meet them. Hirday Narain etc. v. Babu Ram etc. AIR 1941 Oud 172, is a case of a document having been executed by Pardanashin lady, but even otherwise it does not deal with the question which directly concerns me in the case in hand. Sham Chandra v. Godadhar Mandal 9 I.C 377, a decision of the Calcutta High Court, is the second decision cited in reply. This decision merely lays down that in order to determine whether a plaintiff is entitled to recover possession of the property covered by a conveyance without cancellation of the instrument it is essential to determine the true character of the transaction. If it is void and inoperative in its inception it is not necessary for the plaintiff to seek the cancellation of the instrument. If the transaction is merely voidable and is operative, so long as it is not avoided, the plaintiff cannot recover possession till he has avoided the instrument. The view taken in this decision is unexceptionable and indeed in our Court also this view has been approved : Pran Nath v. Bal Krishan etc. (1959) 61 P.L.R. 394, I am, however, unable: to appreciate how the observations relied upon help the appellants'' contention. According to this view the plaintiffs, in my opinion, have to assail the alienation in question and seek its cancellation.

The second point urged on behalf of the appellants is that reading the plaint as a whole the plea of cancellation is implicit and necessarily implied in paragraphs 4 and 5 of the plaint. In support of this contention, reliance has been placed on Kalu Ram Vs. Babu Lal and Others, and Mt. Rupia Vs. Bhatu Mahton and Others, . The respondents have on the other hand cited Pran Nath''s case and have submitted that such a plea cannot be implicit but it must be explicitly raised.

Pran Nath''s case, in my opinion, is no authority for the proposition that the plea of cancellation must be explicit. Pleadings, as is well-settled, are not to be strictly construed. It is true that time has arrived when in this country also proper attention should be paid to the drawing up of pleadings, but it must never be forgotten that the object of pleadings is to give fair notice to each party of what his opponent''s case is and more importance should not be attached to form than to substance. Again, even though a plaint may be badly or inartistically drawn up, if the parties understand the real substance, of the controversy, then, if without being pedantic, it is reasonably possible to spell out the claim in substance, a suitor should not be non-suited on ultra-technical grounds. The procedure must subserve and not govern; it is a handmaid and not a mistress of law. If, therefore, reading the plaint, it is reasonably clear that the alienation in question has been sought to be assailed and the relief by way of possession could only be granted if that alienation is cancelled, then it would be permissible to read in the relief claimed cancellation of the alienation to be implict or necessarily implied.

Nothing cogent or convincing has been urged to controvert the submission based on the reading of paragraphs 5 and 6 of the plaint. It is noteworthy that in paragraph 6 of the written statement the defendant also did not put forth the objection in explicit terms that a prayer for cancellation of the alienation should have been made. All that was pleaded was that suit for possession is not tenable and "it could have been hardly a suit for declaration. Hence the suit is not maintainable in the present form."

For the foregoing reasons, in my opinion, the prayer for cancellation of the alienation must be held to be implicit in the plaint.

In the result I set aside the judgments and decrees of the two Courts below and send the case back to the trial Court for a fresh trial in accordance with law and in the light of the observations made above. The defendants would, however, be entitled to take any plea open to him on the basis that the plaint includes a prayer for cancellation of the alienation. Costs so far incurred would be costs in the cause. The parties have been directed to appear in the trial Court on 2nd December, 1953, when another short date would be given for further proceedings.