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2020 Supreme(Chh) 492
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
SANJAY K. AGRAWAL, J.
Rohit Kumar – Appellant
Versus
Krishna Bai W/o Adhar Sahu (Died) – Respondent
Second Appeal No. 320 of 2008
Decided on : 27-10-2020
Advocate Appeared:
For the Appellant :Mr. Siddharth Dubey, Advocate
For the State : Mr. Ravi Bhagat, Dy. G.A.
Headnote:
Hindu Minority and Guardianship Act, 1956 - Section 8(2), (3) – Code of Civil Procedure, 1908 - Section 100 - Property - Declaration of title, possession and permanent injunction - Whether both Courts were justified in dismissing suit of plaintiff and granting counterclaim of defendant No. 1 by recording a perverse finding ignoring fact that property owned by appellant/plaintiff was sold by his natural guardian without previous permission of Court - Held, Plaintiff has failed in seeking relief of cancellation of sale deed (Ex. P/1) and he has simply sought declaration that said sale deed is a nominal sale deed executed by defendant No. 3 for purpose of security of loan and therefore, sale deed (Ex. P/1) is not binding on plaintiff – Suit as framed and filed by plaintiff, is not duly constituted on account of non-seeking of relief of cancellation of sale deed (Ex. P/1) - He ought to have sought for cancellation of transaction of sale (Ex. P/1) as sale, if any, made by guardian of a minor's property is voidable at instance of minor under Section 8(3) of Act of 1956, after attaining age of majority within period of limitation prescribed under Section 60(a) of Limitation Act, which can be challenged by seeking cancellation of sale deed - Courts have rightly dismissed suit by recording findings which are neither perverse nor contrary to record - Court do not find any merit in instant appeal warranting interference of this Court under Section 100 of CPC – Appeal dismissed.
JUDGMENT :
1. This second appeal preferred by the appellant/plaintiff was admitted for hearing on 25/09/2019 on the following substantial question of law :
“Whether both the Courts below were justified in dismissing the suit of the plaintiff and granting the counterclaim of defendant No. 1 by recording a perverse finding ignoring the fact that the suit property owned by the appellant/plaintiff (minor on the date of sale) was sold by his natural guardian i.e. defendant No. 3 on 14/06/1996 (Ex. P/1) without the previous permission of the Court in violation of Section 8(2) of the Hindu Minority and Guardianship Act, 1956 making the sale voidable under Section 8(3) of the Act of 1956 ?”
(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)
2. The suit property situated at Village Piparchhedi, Tahsil Rajim, Distt. Raipur was originally owned by the plaintiff during his minority but the said suit property was sold by his father i.e. defendant No. 3 in favour of defendant No. 1 by registered sale deed dated 14/06/1996 (Ex. P/1) and he is said to have delivered the peaceful possession thereof to defendant No. 1.
3. Plaintiff filed a suit on 29/06/2001 for declaration of title, possession and permanent injunction stating inter alia that when his father was in need of money, he contacted defendant No. 2 and obtained a sum of Rs. 10,000/as loan and subsequently, executed sale deed dated 14/06/1996 (Ex. P/1) in favour of defendant No. 1 for security of loan, as such, defendant No. 1 has no right title over the suit property by virtue of that nominal sale deed (Ex. P/1) executed by his father defendant No. 3 for the purpose of security of loan and defendants No. 1 and 2 have also never been in possession of the suit property. It was also pleaded that the suit property was held by him while he was a minor and his father i.e. defendant No. 3 had no right or title to alienate the suit property in favour of defendant No. 1 by sale deed dated 14/06/1996 (Ex. P/1), therefore, plaintiff is entitled for declaration that sale deed dated 14/06/1996 (Ex. P/1) is a nominal sale deed executed merely for the purpose of security of loan and it has not conferred any right, title upon defendant No. 1 and 2 and he is further entitled for decree for possession and permanent injunction also.
4. Resisting the suit, defendants No. 1 and 2 filed their written statement stating that plaintiff's father i.e. defendant No. 3 executed registered sale deed dated 14/06/1996 (Ex. P/1) in favour of defendant No. 1 and sold the suit property to her for a cash consideration of Rs. 12,000/and thereafter, defendants No. 1 and 2 came into possession of the suit property. They also filed a counterclaim for permanent injunction stating that the sale deed (Ex. P/1) was never intended for the purpose of security of loan and it is a real and outright sale and has conferred full title over the suit property upon defendants No. 1 and 2, therefore, plaintiff's suit deserves to be dismissed. Defendant No. 3 filed his written statement supporting the plaintiff thereby.
5. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit of the plaintiff and allowed the counterclaim of defendants No. 1 and 2 vide its judgment and decree dated 20/02/2007, and held that the sale deed dated 14/06/1996 (Ex. P/1) is a real sale deed and not a nominal sale deed. The trial Court also held that plaintiff has not questioned the sale deed and has also not sought its cancellation.
6. On appeal being preferred by the plaintiff, learned first appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal vide its impugned judgment and decree dated 04/04/2008 against which this second appeal has been preferred by the appellant/plaintiff under Section 100 of the CPC wherein one substantial question of law has been framed and set out in the opening paragrap
