Sadhu Ram and Others vs Ranjeet Singh and Others

Rajiv Narain Raina, J.—The petitioners are the defendants in the suit for declaration challenging the registered sale deed dated 29th August, 2011 executed by defendant No. 1 in favour of the plaintiffs and defendants No. 2 to 4 of agricultural land measuring 17K-3M being 1/5th share out of the total land measuring 85K-17M comprised in land described in the suit situate in the revenue estate of village Nizampur, Hadbast No. 331, Sub-Tehsil Sadhaura, Tehsil Bilaspur, District Yamunanagar as per jamabandi for the year 2006-07 praying that the sale deed be declared illegal, null and void and induced by fraud and mis-representation, coercion and undue influence and in breach of the plaintiffs'' right to co-parcenary property which were claimed to be ancestral in nature and joint Hindu Family property. The relief of permanent injunction was claimed restraining defendants No. 2 to 4 from selling, mortgaging or alienating the suit property or to mutate it in the name of any person. The defendants contested the suit by filing a written statement where they inter alia raised a preliminary objection as to the maintainability of the suit asserting that the plaintiffs lack locus standi to sue as they were neither owners nor in possession of the suit land. It was asserted that defendant No. 1 is not of sound disposing mind and being an exclusive owner in possession of his share in property, had a right to transfer his land by way of a sale deed, release deed or any other deed of conveyance when he executed the sale deed in favour of defendants No. 2 to 5.

In order to further this moot point the defendants filed an application under Order 14 Rule 2 CPC read with Section 151 CPC to treat the issue of maintainability of the suit as a preliminary issue and to decide it accordingly without putting all the issues to trial simultaneously. This application has been dismissed by the learned Civil Judge (Junior Division), Bilaspur, Yamunanagar by his order dated 1st August, 2014 to challenge which this petition has been filed.

Learned trial Court has observed while rejecting the application that while the suit turns around the assertion of the plaintiffs that defendant No. 1 is a lunatic and a person of unsound mind and being mentally unsound he could not have transferred the suit property in favour of defendants No. 2 to 4 who are the daughters-in-law of his brother, the defendant No. 5 is a matter of evidence and proof. The Court has read the sale deed from where it has observed that sale consideration did not pass while conveying the suit property in favour of the vendees and this is the reason for challenging the sale deed as one made by a person under an incapacity to transfer a valid title or execute an instrument having legal force. On the other hand, the defendants have stoutly refuted the allegations and have asserted that defendant No. 1 Sadhu Ram is hale and hearty.

The dispute tried to be raised at the inappropriate interim stage of the suit is whether defendant No. 1 was legally capable of transferring the land while the plaintiffs assert that in order to show whether defendant No. 1 is the person of unsound mind, it is necessary that he should be produced before the Court and then the real truth will come out as though the court is a medical board or a psychiatrist. On this plea the trial court has well reasoned that the question of maintainability of the suit itself depends upon evidence and there is no reason to try it as a preliminary objection and has dismissed the application.

On a court query, the learned counsel disclosed that defendant No. 1 is a bachelor who has transferred the suit land to the daughters-in-law of his brother for which undoing the prayer is made for cancellation of the sale deed. His share in property and to the extent of his share sold is not disputed.

Learned counsel has relied on a decision of the Division Bench of this Court in Shrimati Gurmej Kaur and another v. Shrimati Tej Kaur alias Teji and others, 1977 PLJ 358 on void transactions and locus standi. He refers to para. 10 in his support where this Court held:-

"10. On principle, it looks plain that where the donor and the donee are both affirming a transaction as being valid and with the free consent of the parties it would be difficult, if not impossible, to hold that nevertheless the transaction is void owing to the exercise of undue influence by the one on the other. Indeed this is not the case of either of the two parties to the contract. This apart, there appears to be a patent legal bar provided by Section 19-A of the Contract Act which is in the following terms:-

"19A. When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely, or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may deem jut."

It is plain from the aforesaid provisions that an agreement can be avoided on the basis of undue influence at the option of the party whose consent was secured in that manner. In the present case, therefore, Smt. Tej Kaur plaintiff-respondent had virtually no locus standi to assail the second gift on the basis of undue influence when both the donor and the donee were Firmly affirming the transaction. If authority were needed for this proposition, it exists in the Division Bench judgment reported as Natha Ram and Another vs. Mt. Sohan Devi and Others,AIR 1949 277 (P & H.) . It was observed therein:

"The next question is whether the plaintiffs had locus standi to have the gift in the defendant''s favour set aside on the ground that it was obtained by fraud or undue influence. The District Judge, as I have already observed, found this point in the plaintiffs'' favour, but in view of the fact that Mehar Chand himself was alive and it was open to him, if he so liked, to have the gift set aside on the grounds taken by the plaintiffs, I do not think the plaintiffs had the right to maintain the action. The learned counsel for the respondents was not able to cite a single authority in support of the proposition that the plaintiffs could maintain the suit. If Mehar chand was really the victim of fraud and undue influence it was for him to have the alienation set aside on that ground and the plaintiff certainly had no locus standi to bring the suit."

This Court fails to understand how this precedent can be of any help to the petitioner in the present case. If the vendor-defendant No. 5 is non compos mentis as asserted by his detractors it is a matter of trial, evidence and proof and not one of maintainability of a suit. I have no reason to differ with the view taken by the court a quo in its discretion refraining from trying the issue of maintainability of the suit as a preliminary one and would dismiss the petition as being a case without any merit on the points urged.