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High Court Of Madhya Pradesh
G. P. Singh and M. L. Malik, JJ.
SHANKAR SINGH THAKUR KISHANSINGH
Versus
SANSTHA SONABAI
Decided On : Aug 12,1975
If there is any enactment which provides for the management and control over affairs of a public trust, the public trust would come within the exemption irrespective of the fact that the same enactment covers management and control of other public trusts of the same nature. Having regard to the provisions of the Madhya Pradesh Societies Registrikaran Adhiniyam, 1973, it is quite clear that the properties of a registered society are administered under that Act and, therefore, a registered society will fall within the exemption contained in section 36 (1) (b) of the Public Trusts Act. [Para 7
As the plaintiff society is registered society and administered under the provisions of the Madhya Pradesh Society Registrikaran Adhiniyam, 1973, the Madhya Pradesh Public Trusts Act, 1959, is not applicable to it and the suit is not barred under section 32 of the said Act. [Para 9
(2) Societies Registrikaran Adhiniyam, 1973 (MP) - S. 3 (e) - General Clauses Act, 1957 (M.P.) - S. 13 - reference to repealed Societies Registration Act - to be read as reference to new Act - registration under the repealed Act - deemed to be under the new Act. AIR 1964 SC 173 relied on. AIR 1962 Bom. 12 distinguished. [Para 8
(3) Public Trusts Act, 1951 (M.P.) - S. 32 - nature of the bar on suits.
Section 32 of the Public Trusts Act does not bar the institution of a suit but only its hearing and decision. The usual practice is to stay the hearing of the suit until the trust gets registered. [Para 11
(4) Deed - Construction of - conflict between boundaries of the land transferred and its area given in the deed - area is exactly similar on spot as in the deed - area may be preferred.
In construing a grant of land a description fixed by boundaries is to be preferred to a conflicting description given by area. This rule, however, is not of universal application. Where the boundaries given are vague and the area is exactly specified, the property conveyed will be taken as that described by the area and not by the boundaries. 1919 AC 533 and AIR 1948 PC 207 referred to.
The ‘area in acres’ is clearly specified and the manner of separating that area is also specified by fixing the southern and the western boundaries. This is a case where the description of the boundaries was not complete and, therefore, the area mentioned in acres must prevail. [Para 16
(5) Specific Relief Act, 1963 - S. 26 - rectification of document - when permitted - oral evidence in respect of mistake or fraud in document - when permissible - Evidence Act, 1872 - S. 92.
Section 26 of the Specific Relief Act, 1963, permits rectification when through fraud or mutual mistake of the parties a contract or other instrument in writing does not express the real intention. In order to get rectification it has to be shown that the parties were in complete agreement on terms of their contract, but by some error the terms were wrongly recorded. Oral evidence is admissible under proviso (1) to section 92 of the Evidence Act to prove the mistake. [Para 17
(6) Limitation Act, 1963 - S. 17 and Art, 113 - rectification of document - limitation - suit based on fraud or mistake - starting point of limitation.
There is no specific provision in the Limitation Act, 1963 dealing with the relief of rectification and the matter would be governed by the residuary Article 113. The period of limitation starts running under this Article from the date when the right to sue accrues. But in case of rectification, which is a relief founded on fraud or mistake, section 17 of the Act has to be taken into account and the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it. [Para 18
(7) Civil P.C., 1908 - O. 20, R. 12 - defendant admitting the amount earned as mesne profits - decree for such mesne profits should be made and should not be left to be determined under O. 20, R. 12. [Para 19
( 1. ) THIS is an appeal by the defendants in a suit for rectification, possession and mesne profits. The trial Court has passed a preliminary decree accepting the plaintiffs claim and it is against the said decree that the present appeal has been filed.
( 2. ) THE material facts are that the plaintiff, Sanstha Sonabai Sarvakshram, khurai, is a registered society formed for religious and charitable purposes. The society, apart from other properties, owns agricultural lands in village korasa, tahsil Khurai. On 14th June 1960 the Society (acting through its sarvarakara Seth Rishavkumar and Sethani Sukhrani Bahu) and some other persons entered into a contract (Ex. P-4) with defendants 1 to 4, Shankar Singh, khet Singh, Bhagwan Singh and Gopal Singh who are sons of defendant No. 5 thakur Kishan Singh, and with some other persons for sale of certain lands including Khasra No. 55 of village Korasa. In pursuance of this agreement, eleven sale-deeds were executed by the vendors in favour of the vendees. We are concerned in this suit only with four sale-deeds, Exs. P-5, P-6, P-9 and P-10, which relate to Khasra No. 55. These sale-deeds were all executed on 11th august 1961. The plaintiffs case is that Khasra No. 55 comprises of more than 200 acres of land out of which only 33. 50 acres were agreed to be sold under the contract of 14th June 1960 and the location of this area and the manner in which it was to be carved out was also indicated in the contract. The sale-deeds mention the area of Khasra No. 55 included in each. In Ex. P-5 the area of Khasra No. 55 is mentioned as 3. 50 acres and in Exs. P. 6, P-9 and p-10 the area mentioned is 10 acres in each. Thus, the sale-deeds also cover an area of 33. 50 acres out of which No. 55 which was agreed to be sold, but the defendants taking the benefit of some mistake in the boundaries mentioned in the sale-deeds, have taken possession of a larger area out of Khasra No. 55. On these allegations the plaintiff initially sued only for possession and mesne profits of the excess area shown in the plaint map. On defendants objection in the written statement the plaint was amended and a relief by way of rectification of the sale-deeds was also claimed. The defendants case is that there was inaccuracy in the contract as also in the sale-deeds in mentioning the area of that part of Khasra No. 55 which was agreed to be sold. According to them, the boundaries given in the sale-deeds correctly covered the area which was agreed to be sold. Thus, the defendants plea is that the whole of the area which is in their possession was agreed to be sold under Ex. P-4 and the same was conveyed to them by the four sale-deeds. The defendants have also pleaded that there was to fraud or mistake and that the suit is barred by limitation. They have further pleaded that as the plaintiff society was not registered under the Madhya Pradesh Public Trusts Act, 1952, the suit was not maintainable under section 62 of the Act. As already stated, the trial Court substantially accepted the plaintiffs case and passed a preliminary decree on the following terms:
"1. (A) Land in possession of defendants be demarcated to the extent of 33. 50 acres as shown in Ex. P-4, sale-deeds, Ex. P-29-A and Ex. P-30, starting from south from Bina river up to Chanda and on west from Khasra No. 56 and on east Khasra Nos. 321 and 320 to the North up to which area 33. 50 acres may go in Khasra No. 55. (B) After this demarcation, the sale-deeds be suitably amended about the boundaries and defendants Nos. 1 to 4 shall retain possession according to demarcation of only 33. 50 acres and shall deliver possession of remaining land in their possession to plaintiff from Khasra No. 55. (C) Mesne profits shall be calculated after it is found out as to in what extra area the defendants are in possession as a grass land and cultivation as per evidence that may be produced by the parties.
2. And it is further ordered and decreed that the Revenue Inspector
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