Janki Prasad vs Rambali - 2022 Supreme(MP) 373

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 373

IN THE HIGH COURT OF MADHYA PRADESH
Dwarka Dhish Bansal, J.
Janki Prasad v. Rambali and others
Second Appeal No. 839 of 1998 (Jabalpur); against the judgment and decree dated 9.3.1998 passed by III Additional District Judge, Satna in Civil Appeal No. 10-A/1989; Decided on 28.11.2022

Advocates:
R.P. Agrawal with Saransh Kulshreshtha and Rahul Gupta for appellant.

Headnote:
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¼2½ laifÙk varj.k vfèkfu;e] 1882 & èkkjk 43 & foØ; foys[k dh fofèkekU;rk & la;qDr fganw dqVqac dh vfoÒkftr laifÙk & vihykFkÊ d¢ firk y{ehçlkn }kjk n¨ foØ; foys[k fu"ikfnr & vihykFkÊ }kjk çLrqr flfoy okn d¢ yacu ds n©jku] vU; laØkfer laifÙk y{ehçlkn d¢ va'k esa lek;¨ftr & y{ehçlkn }kjk fu"ikfnr foØ; foys[k vÑr v©j 'kwU; Ä¨f"kr ugha fd, tk ldrsA ¼iSjk 14 ls 16½
¼3½ flfoy çfØ;k lafgrk] 1908 & vkŒ 41 fuŒ 1 & vihy pyus ;¨X; g¨uk & n¨ lesfdr okn¨a esa ,d gh fu.kZ; ,oa fMØh ikfjr & ,sls ,d gh fu.kZ; d¢ fo#) ,d çFke vihy rFkk çFke vihy ds fu.kZ; d¢ fo#) ,d f}rh; vihy pyus ;¨X; ugha & vihykFkÊ }kjk n¨ çFke vihysa rFkk n¨ f}rh; vihysa çLrqr dh tkuk visf{krA , vkb vkj 1966 ,l lh 1332] , vkb vkj 1990 xqokgkVh 32 rFkk , vkb vkj 1960 d¢jy 154 voyafcrA ¼iSjk 17 ,oa 18½
¼4½ flfoy çfØ;k lafgrk] 1908 & /kkjk 11 & iwoZ U;k; dk fl)kar & ykxw g¨uk & n¨ lesfdr okn¨a esa ,d gh fu.kZ; & ,sls fu.kZ; d¢ fo#) n¨ i`Fkd~ vihy¨a d¢ ctk; ,d çFke vihy çLrqr dh xÃ & og pyus ;¨X; ugha Fkh v©j [kkfjt dh xÃ & çFke vihy U;k;ky; d¢ fu.kZ; d¢ fo#) ,d f}rh; vihy pyus ;¨X; ugha & iwoZ U;k; dk fl)kar ykxw g¨xkA ¼iSjk 18½
(1) Hindu Law -- right of manager of joint Hindu family -- undivided property of joint Hindu family -- two sale deeds executed by Laxmiprasad, father of appellant -- civil suit for declaration of sale deeds as null and void -- partition effected during pendency of suit -- disputed property adjusted in share of Laxmiprasad -- sale deed not void but valid to extent of share of Laxmiprasad -- is binding upon Laxmiprasad. (2009) 7 SCC 444 followed. 1990 JLJ 569, 1974 MPLJ 629, 1963 MPLJ-SN 166 and 2001 (1) MPLJ 248 referred to. [Paras 11 & 12]
(2) Transfer of Property Act, 1882 -- S. 43 -- validity of sale deed -- undivided property of joint Hindu family -- two sale deeds executed by Laxmiprasad, father of appellant -- during pendency of civil suit filed by appellant, alienated property adjusted in share of Laxmiprasad -- sale deeds executed by Laxmiprasad cannot be declared null and void. [Paras 14 to 16]
(3) Civil P.C. 1908 -- O. 41 R. 1 -- maintainability of appeal -- common judgment and decree passed in two consolidated suits -- one first appeal against such common judgment and one second appeal against judgment of first appeal not maintainable -- appellant required to file two first appeals and two second appeals. AIR 1966 SC 1332, AIR 1990 Gau. 32 and AIR 1960 Ker. 154 relied on. [Paras 17 & 18]
(4) Civil P.C. 1908 -- S. 11 -- principle of res judicata -- applicability -- common judgment in two consolidated suits -- against such judgment, one first appeal filed instead of two separate appeals -- same not maintainable and dismissed -- against judgment of first appellate Court, one second appeal not maintainable -- principle of res judicata will apply. [Para 18]

JUDGMENT

1. This second appeal has been filed by the plaintiff-Janki Prasad challenging the judgment & decree dated 9.3.1998 passed by learned 3rd Additional District Judge, Satna in Civil Appeal No. 10-A/89 confirming the judgment & decree dated 11.7.1989 passed by learned 2nd Civil Judge Class-I, Satna in Civil Suit No. 9A/82 (old No.97-A/73) and 9A/1/82 dismissing both the civil suits.

2. In short the facts are that the plaintiff/appellant instituted civil suit No. 9A/82 for declaration that the sale deed dated 18.5.1972 (Ex.P/11-c) executed by his father Laxmiprasad in favour of defendant 1-Rambali to be null & void. Another civil suit No. 9A/1/82 was also filed by plaintiff/appellant for declaring the sale deed dated 3.7.1970 (Ex.P/11) null & void executed by his father Laxmiprasad in favour of Gayaprasad, who is father of Rambali. Both these civil suits were consolidated by learned trial Court and by passing the impugned judgment & decree dated 11.7.1989 were disposed off and dismissed.

3. The said civil suits were filed for declaring the sale deeds dated 3.7.1970 and 18.5.1972 as null and void on the ground that plaintiff-Janki Prasad’s father Laxmiprasad did not possess any legal right to alienate undivided joint Hindu family property to the purchasers Rambali and Gayaprasad and there was no legal necessity to alienate undivided joint Hindu family property. With these allegations the suits were filed.

4. The respondent/defendant 1 appeared and filed written statement denying the plaint allegations and contended that the sale deeds were executed for legal necessity and for repayment of government dues and possession was also handed over to the defendant 1, which was executed by him as Karta Khandan after receipt of an amount of Rs.11,500/-. In the mutation proceedings, Laxmiprasad raised objection but the Tahsildar ordered mutation of the name of the defendant 1-Rambali. The suit has been filed under the instructions of Laxmiprasad in the name of his son and he himself is contesting the suit and father of the plaintiff-Laxmiprasad was having right to alienate the suit property, in pursuance of which, the defendant is in cultivating possession. On inter alia contentions, the suit was prayed to be dismissed.

5. The defendants 2-6 also appeared and filed written statement admitting the plaint allegations and prayed that decree be passed in favour of the plaintiff.

6. On the basis of pleadings, learned trial Court framed issues and recorded evidence of the parties and after due consideration of the same, dismissed both the suits vide common judgment & decree dated 11.7.1989 and held that the property in question was the joint Hindu family property, which was sold during the minority of plaintiff vide registered sale deeds dated 3.7.1970 and 18.5.1972 and defendant has failed to prove that the alienation was for legal necessity but dismissed the suit on the ground that alienation in question is not void but voidable, which has been challenged only by the plaintiff, who has only 1/6 share in the property and other cosharers have not challenged the same. Further, during pendency of suit there was partition of joint Hindu family property in which the disputed property was adjusted in the share of Laxmiprasad, therefore, the disputed sale deed is binding on Laxmiprasad.

7. Aggrieved thereby, the plaintiff/appellant preferred only one and single civil appeal, which was also dismissed vide judgment & decree dated 9.3.1998 affirming the judgement and decree of learned trial Court.

8. This Court vide order dated 29.3.2012 admitted the second appeal on the following substantial question of law:-

“Whether in view of the fact that property in question is situate in Vindhya Pradesh region, one co-owner could have alienated the suit property without the consent of other co-owner in view of decisions reported in 1963 MPLJ Note 116 and 1990 JLJ 569 ?”

9. Learned senior counsel appearing for the appellant submits that despite recording all the requi