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High Court Of Himachal Pradesh
P.K.PALLI,R.L.KHURANA
RAMA DOGRA - Appellant
Versus
KIMTU - Respondent
R.F.A. No. 108 of 1986, R.F.A. No 118 of 1986 and R.F.A. No. 54 of 1987
Decided On : 02/25/1997
HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 8 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 41, 43 - SALE OF PROPERTY BY UNAUTHORISED PERSON - ESTOPPEL - BONA FIDE PURCHASER - SUIT FOR POSSESSION AND MESNE PROFITS - LEGAL REPRESENTATIVE - NEXT FRIEND - VALIDITY OF SALE - JURISDICTION OF COURT.
Fact of the Case:
Charan Dass Dogra, an advocate, obtained permission from the District Judge to sell the property of Gehru, a deaf and dumb person, through his daughter Kimtu. Kimtu sold the property to Charan Dass Dogra, who later sold it to defendants No. 2, 3, and 4. Gehru's wife, Devku, filed a suit challenging the sale, claiming that the permission granted by the District Judge was obtained through fraud and undue influence. The trial court held that the sale was void and granted possession of the property to Kimtu, Gehru's daughter. The defendants appealed.
Finding of the Court:
The High Court held that the sale of the property by Kimtu to Charan Dass Dogra was void as the permission granted by the District Judge was obtained through fraud and undue influence. The court further held that the defendants No. 2, 3, and 4 were not bona fide purchasers for value and were not entitled to protection under section 41 of the Transfer of Property Act. The court also held that Devku, Gehru's wife, was not his legally wedded wife and was not entitled to maintain the suit as his next friend. However, the court held that Kimtu, Gehru's daughter, was entitled to maintain the suit as his legal representative and was entitled to the relief claimed.
Issues: 1. Whether the sale of the property by Kimtu to Charan Dass Dogra was valid? 2. Whether the defendants No. 2, 3, and 4 were bona fide purchasers for value? 3. Whether Devku, Gehru's wife, was his legally wedded wife and entitled to maintain the suit as his next friend? 4. Whether Kimtu, Gehru's daughter, was entitled to maintain the suit as his legal representative?
Ratio Decidendi: 1. The sale of the property by Kimtu to Charan Dass Dogra was void as the permission granted by the District Judge was obtained through fraud and undue influence. 2. The defendants No. 2, 3, and 4 were not bona fide purchasers for value as they had notice of the defect in the title of Charan Dass Dogra. 3. Devku, Gehru's wife, was not his legally wedded wife and was not entitled to maintain the suit as his next friend. 4. Kimtu, Gehru's daughter, was entitled to maintain the suit as his legal representative and was entitled to the relief claimed.
Final Decision: The appeals were dismissed, and the judgment and decree passed by the trial court were maintained.
P.K. Palli, J—This judgment shall dispose of three appeals, i.e. R.F.A No 108 of 1986 filed by Smt Rama Dogra and others who are heirs and successors of late Charan Dass Dogra, who was defendant No.1 in the suit ; R.F.A. No. 118 of 1986 filed by Dev Raj and others who were defendants No. 2 to 4 in the suit ; and R.F.A. No. 54 of 1987 (Devta Ganpati v Smt. Rama Dogra and others), as all these three appeals have arisen out of the same judgment passed in Civil Suit No. 31- of 1981 decided by the learned single Judge of this Court vide judgment and decree dated October 18, 1985. The parties, hereinafter in the judgment, shall be referred to as ‘plaintiff’ and defendants.
2. The suit out of which the present appeals have arisen, was filed by Gehru as deaf and dumb through his wife and next friend Smt. Devku. Gehru has died and Smt Kimtu daughter of Gehru has been substituted in his place vide order dated July 5, 1984 passed by the learned single Judge. Defendant No.1 was Charan Dass who too has died during the pendency of the suit and his legal representatives, i.e. wife, daughters and son, have been brought on record in his place as defendants No.1-A to 1-F vide order-passed, by the learned single-Judge of thin Court on June 29, 1982. In the suit, Gehru claimed a decree for possession of the suit land as well as for Rs 5K000 as mesne profits on account of use and occupation of the land and these mesne profits were calculated for three years-1976 to 1979 In the alternative, a decree for Rs 99,949 was claimed.
3. The plaintiff claimed himself to be an indigent person as defined under Order 33, Rule I of the Civil Procedure Code and pleaded that he was deaf and dumb and a person of ill intellect. He could, however, understand by signs and gestures. He was unable to file the present suit on account of the disability and the same was being filed through his wife and next friend Suit. Devku who had no adverse interest to him and was a fit person to act as next friend.
4. Defendant No 4 was stated to be minor under the guardianship of his parents, i.e. defendants No. 2 and 3, and, thus, they were pleaded to be fit persons to act as guardian ad litem for him.
5. The plaintiff claimed to be the owner in possession of the suit land and on May 22, 1975, one Kimtu representing herself to be daughter of the plaintiff, moved an application under section 8 of the Hindu Minority a and Guardianship Act, 1956 seeking permission to sell or lease the property. This application was moved through Charan Dass Dogra, Advocate of Kullu who had been impleaded as defendant No.1 The application, as per averments contained in the application, was allowed by the learned District Judge on May 31, 1975 and acting on the authority of the said permission, Smt Kimtu sold the suit property in favour of defendant No 1 in a feverish haste on June 6, 1975 for Rs. 48,000.
6. A power of attorney was also executed by Smt Kimtu in favour of one Lottan Dass authorising him to represent her before the Revenue Officer for the purpose of sanction of mutation which was sanctioned It was pleaded that all the proceedings commencing from the filing of the application till the sanction of mutation, are void and vitiated by fraud and undue influence.
7. A Revision Petition was moved by Smt Devku wife of the plaintiff through whom the present suit has been filed, laying challenge to the order dated May 31, 1975 passed by the learned District Judge and this Court vide order dated October 31, 1979, quashed the order as without jurisdiction. It is, thus, said in the plaint that all subsequent proceedings including sale in favour of defendant No 1, are void and not binding on the plaintiff. Defendant No.1 is said to be in unauthorised and illegal possession of the suit land and is liable to imburse the plaintiff for the benefits he derived out of the land and the orchard. It is said that one Smt. Sobi was the late wife of the plaintiff and in collusion with her defendant No. 1 execute
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