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1979 Supreme(All) 588
IN THE HIGH COURT OF ALLAHABAD
A. N. Varma, J.
KEDAR PRASAD - Appellant
Versus
GANGA PRASAD - Respondents
Second Appeal 1513 Of 1973
Decided On : 10/17/1979
RAMA SHANKER PRASAD, Sankatha Rai, V.K.S.Choudhary
Any person affected by a void or voidable instrument can seek its cancellation under Section 31 of the Specific Relief Act, regardless of whether they are a party to the instrument.
Headnote:Cancellation of Sale Deed - Property Dispute - Specific Relief Act, Section 31 - The court discussed the provisions of Section 31 of the Specific Relief Act, which allows any person against whom a written instrument is void or voidable to sue for its cancellation. The court held that the plaintiffs, who owned 4/5th share in the disputed property, had the right to seek cancellation of the sale deed to the extent of their share. The court also cited precedents that supported this interpretation of the law. Ownership and Rent Dispute - Transfer of Property Act, Section 51 - The court examined the applicability of Section 51 of the Transfer of Property Act, which deals with the rights of a person making improvements on a property. The court held that Section 51 did not apply in this case as the defendant was not being evicted from the property. The court also noted that the defendant still owned 1/5th share in the property. Validity of Sale Deed and Evidence - The court rejected the argument that the sale deed could only be cancelled by a party to the instrument, stating that Section 31 of the Specific Relief Act applies to any person affected by a void or voidable instrument. The court also found no misreading of evidence by the lower appellate court and upheld its findings on the evidence presented. Rent Amount - The court agreed with the appellant's argument that the lower appellate court had not properly considered the evidence regarding the rent amount. The court held that the rent for the disputed property was Rs. 25 per month, not Rs. 50 as claimed by the plaintiffs. The court reduced the decree for arrears of rent from Rs. 160 to Rs. 80.
( 1 ) THIS is a defendants second appeal arising out of a suit for cancellation of a sale deed dated 28-4-1961, executed by one Hira Lal (defendant third set in the suit) in favour of the defendant appellant (arrayed as defendant No. 1 in the suit as defendant first set) to the extent of the 4/5th share in the shop mentioned in the plaint and in respect of which the aforesaid sale deed was executed.
( 2 ) THE trial court dismissed the plaintiffs suit. The plaintiffs appealed. The lower appellate court set aside the judgment and decree of the trial court and decreed the plaintiffs-respondents suit for cancellation of the sale deed as well as for recovery of arrears of rent.
( 3 ) BRIEFLY stated, the plaint case was that one Madho Prasad had five sons, namely, Sheo Prasad, sheo Sagar, Ram Sagar, Ganga Sagar and Dal Sagar. Defendants Nos. 10 and 11 are Ganga sagar and Dal Sagar aforesaid. The shop in dispute was the ancestral property of defendants nos. 2 to 12. According to the pedigree mentioned above, defendant third set, namely. Hira Lal had only 1/5th share in the shop while the remaining 4/5 share belonged to the defendant second set, namely defendants Nos. 2 to 11 aforesaid. Defendants Nos. 2 to 12 were members of a Joint hindu Family, There was no separation amongst them. Madho Prasad was the Karta of the Joint hindu Family in his lifetime. After his death, Ram Sagar became the Karta. Thereafter, Ganga sagar became the Karta. Hira Lal was junior member of the family and had no right to sell the entire shop to the defendant No. 1 (the appellant. ). The sale-deed executed by defendant No. 12 in favour of defendant-appellant was thus void and illegal to the extent beyond 1/5th share of hira Lal. The defendants Nos. 2 to 11 transferred their entire 4/5th share in the shop in dispute to the plaintiff as a result of which the plaintiff became an owner of 4/5th share in the disputed shop. The sale deed executed by Hira Lal in favour of the appellant was not binding on the plaintiffs and was liable to be cancelled to the extent of their 4/5th share.
( 4 ) THE defendant No. 1 i, e. the defendant-appellant had taken possession of the disputed shop as a tenant in pursuance of an allotment order in the year 1955. He used to pay monthly rent of Rs. 50/ -. After execution of the sale deed in favour of the plaintiff, they demanded from the appellant their 4/5th share in the monthly rental from the defendant-appellant. It was then that the plaintiffs came to know that the defendant No. 1 had got the sale deed executed by Hira Lal defendant No. 2 on 28-4-1961 in respect of the entire shop. On the basis of that sale deed, the appellant claimed himself to be the owner of the entire shop and asserted that he was not liable to pay any rent as he was in possession of the shop in dispute as the owner thereof.
( 5 ) ON the above allegations, the plaintiffs instituted the suit for cancellation of the sale deed dated 28-4-1961 to the extent of their 4/5th share and also for recovery of rent proportionate to their share.
( 6 ) THE suit was contested by the appellant on the allegations that defendant No. 12 Hira Lal was the sole owner of the disputed shop and he had full right to sell the same to defendant No. 1. The plaintiffs or their predecessor-in-interest had no right, title or interest to the shop. The defendant no. 1 was not liable to pay any arrears of rent as claimed by the plaintiffs. Defendants 2nd and third set did not constitute any Joint Hindu Family. The defendant second set (defendants Nos. 2 to 11) were not in possession of the disputed shop within 12 years, and hence the suit was barred by time. In the municipal records, Hira Lal defendant No. 12 alone was recorded as the owner and as such the defendant No. 1 was a bona fide purchaser for value without notice of the alleged title of others. The plaintiffs suit was barred by estoppel and acquiescence. The suit was liable to be dismissed with costs.
( 7 ) ON the plead
