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IN THE HIGH COURT OF MADHYA PRADESH
Sushil Kumar Palo, J.
Babulal Tiwari v. Jabbar Singh
First Appeal No. 399 of 1995 (J); Decided on 5.1.2018.*
(2) Court -- Nyay Panchayat had no authority to decide a suit valued more than Rs.100/-- -- order of Nyay Panchayat was void ab initio. [Paras 10 & 14
(3) Deed -- registered document which is otherwise void ab initio -- need not be set aside -- such deed does not strip the right of party who is real owner. [Para 16
(4) Agreement -- original owner/plaintiff entered into compromise before Nyay Panchayat -- respondents failed to honour this compromise -- respondents now cannot claim that original owner/plaintiff waived his rights while entering into compromise. [Para 10
(5) Civil P.C., 1908 -- O.22 Rr.1 and 3 -- condition precedent of transfer of property -- breached -- after death of original owner/plaintiff, present appellants brought on record as LRs on basis of Will -- contention that after death of original owner/plaintiff, suit does not survive -- does not hold good -- appellants have right to pursue proceeding. [Paras 7 & 10
(6) Transfer of Property Act, 1882 -- S.54 -- sale -- transfer not made in exchange for money consideration -- made in pursuance of compromise of family dispute -- would not be sale -- might be altogether outside the provisions of Act -- no price paid or promised -- transaction was not sale. [Paras 12 & 13
(7) Sale -- release of one's right -- does not amount to sale -- there can be no "sale" of immovable property by transaction known as "razinama". [Para 14
(8) Words and phrases -- price -- has a definite meaning -- it means money but not necessarily money handed over in current coins at the time -- includes money which might be already due or might be payable in future. [Para 12
(9) Sale -- real intention of parties has to be considered -- though registered sale deed recites payment of sale price but in fact, it was not paid -- Court has to examine intention of parties on basis of evidence produced. [Paras 14 & 15
¼1½ foØ; & ewy Lokeh@oknh }kjk okn laifÙk bl 'krZ ij foØ; dh xbZ fd Øsrkx.k mldk Hkj.kiks"k.k djsaxs & izfrQy lanÙk ugha & Hkj.kiks"k.k ugha fd;k & mldh lgefr ds fcuk] foØ; foys[k fnukad 30-10-1967 }kjk okn laifÙk dk vU; laØke.k fd;k tcfd laifÙk esa mldk fufgr fgr Fkk D;ksafd ;g l'krZ foØ; Fkk & ewy oknh foØ; foys[k fnukad 30-10-1967 dks vÑr vkSj 'kwU; ?kksf"kr djkus rFkk dCtk izkIr djus dk gdnkj gSA ¼iSjk 9 ,oa 17½ ¼2½ U;k;ky; & U;k; iapk;r dks #i;s 100@& ls vf/kd ewY; dk okn fofu'p; djus dk izkf/kdkj ugha & U;k; iapk;r dk vkns'k vkjaHk ls 'kwU; FkkA ¼iSjk 10 ,oa 14½ ¼3½ foys[k & jftLVMZ foys[k tks vkjaHk ls 'kwU; gS & vikLr djus dh vko';drk ugha & ,sls foys[k ls i{kdkj] tks okLrfod Lokeh Fkk] vius vf/kdkj ls oafpr ugha gksrkA ¼iSjk 16½ ¼4½ djkj & ewy Lokeh@oknh us U;k; iapk;r ds le{k le>kSrk fd;k & izR;FkhZx.k bl le>kSrs dk vknj djus esa foQy & izR;FkhZx.k vc nkok ugha dj ldrs fd ewy Lokeh@oknh us le>kSrk djrs le; vius vf/kdkjksa dk vf/kR;tu dj fn;k FkkA ¼iSjk 10½ ¼5½ flfoy izfØ;k lafgrk] 1908 & vkŒ 22 fuŒ 1 rFkk 3 & laifÙk ds varj.k dh iqjksHkkO; 'krZ & dks Hkax fd;k x;k & ewy Lokeh@oknh dh e`R;q ds i'pkr~ foy ds vkèkkj ij orZeku vihykFkhZx.k fof/kd izfrfuf/kx.k ds :i esa vfHkys[k ij yk, x, & ladFku fd ewy Lokeh@oknh dh e`R;q ds i'pkr okn cpk ugha jgrk & mfpr ugha Bgjk;k tk ldrk & vihykFkhZx.k dks dk;Zokgh tkjh j[kus dk vf/kdkj gSA ¼iSjk 7 ,oa 10½ ¼6½ laifÙk varj.k vf/kfu;e] 1882 & /kkjk 54 & foØ; & varj.k /ku ds izfrQy ds fofue; esa ugha & dkSVqafcd fookn ds le>kSrs ds vuqlj.k esa fd;k x;k & foØ; ugha gksxk & vf/kfu;e ds mica/kksa ds iw.kZr% ckgj gks ldrk gS & dher dk lank; ;k opu ugha & laO;ogkj foØ; ugha FkkA ¼iSjk 12 ,oa 13½ ¼7½ foØ; & vf/kdkj dk NksM+k tkuk & foØ; dh dksfV esa ugha vkrk & ^^jkthukek** ds :i esa Kkr laO;ogkj }kjk LFkkoj laifÙk dk ^^foØ;** ugha gks ldrkA ¼iSjk 14½ ¼8½ ’kCn rFkk okD; & dher & fuf'pr vFkZ gS & bldk vFkZ /ku gS ysfdu vko';d :i ls mlh le;] pkyw flDdksa esa fn;k x;k /ku ugha & mlesa og /ku lfEefyr gS tks igys ls gh 'kks/; gks ;k Hkfo"; esa ns; gksA ¼iSjk 12½ ¼9½ foØ; & i{kdkjksa ds okLrfod vk'k; ij fopkj fd;k tkuk gksrk gS & ;|fi jftLVMZ foØ; foys[k esa foØ; dher ds lank; dk dFku gS ysfdu okLro esa og lanÙk ugha dh xbZ & U;k;ky; dks is'k fd, x, lk{; ds vk/kkj ij i{kdkjksa ds vk'k; dh tk¡p djuk gksrh gSA ¼iSjk 14 ,oa 15½
1. This appeal under section 96 of the CPC has been filed to challenge the judgment dated 26.8.1995 passed by III ADJ, Chhindwara in Civil Suit No. 31A/88 wherein the suit for declaration, possession and mesne profit has been dismissed.
2. The respondents failed to mark appearance despite service as mentioned in the order dated 13.9.2017 and despite warning on 18.9.2017, none appeared on behalf of the respondents.
3. It is not disputed that the respondents/defendants No. 1 and 2 are the nephews (sons of brother Shankar) of the original plaintiff (father of the appellants). Respondents No. 3 and 4 are the daughter and son of late Sabooti Bai who was the sister of the original plaintiff- late Tara. Hence, are the nephew and niece of original plaintiff- Tara. The sole owner of the disputed property agricultural land and house belonged to plaintiff- Tara. Tara executed a sale/gift deed on 25.3.1957 in favour of defendant No. 1 and his father Shankar and transferred the properties with the condition that they will maintain Tara till his death. A condition was also imposed that if Shankar and defendant/respondent No. 1 failed to maintain Tara, he will have the right to re-possess and regain the property. On the basis of allegations that Shankar and defendant/respondent No. 1 failed to maintain Tara, Civil Suit No. 9/60 was filed before the civil Court, Chhindwara wherein the decree was passed in favour of Tara. Subsequent thereto, the said property was again transferred to Sabooti Bai, the ancestor of respondents/defendants No. 3 and 4 wherein same conditions were imposed. An agreement Ex.P-4 was also executed and the possession was given to her. Sabooti Bai passed away on 3.10.1966. The appellant was then mutated in the name of respondents/defendants No. 3 and 4. Respondents No. 3 and 4 transferred the said property to respondents No. 1 and 2 on 31.10.1967 and handed over the possession of the disputed property. Respondents No. 1 and 2 continued their possession. Respondents No. 1 and 2 executed an agreement on 31.10.1967 with undertaking to maintain Tara till his life.
4. Tara alleging that he has not been maintained by respondents No. 1 and 2 filed a complaint before the Nyay Panchayat, Chaniyakala, which was registered as Complaint No. 6/75. On the basis of an agreement dated 15.5.1975 marked as Ex.P-6, award was pronounced in which the Nyay Panchayat directed the respondents No. 1 and 2 to maintain Tara in future and also ordered to provide the agricultural yield and a definite amount, every year till Tara remains alive. It was also ordered to perform the after death rituals etc and bear the expenses of the cremation and after death rituals. After this award, respondents No. 1 and 2 provided some of the portion of the agricultural yield and the maintenance amount for some time.
5. During the life time of Tara, he filed civil suit alleging that the respondents No. 1 and 2 failed to maintain him. Respondents No. 3 and 4 without any consideration transferred the suit property in favour of the respondents No. 1 and 2. Therefore, he sought the relief of declaring the sale deed dated 31.10.1967 executed by respondents No. 3 and 4 in favour of respondents No. 1 and 2 as null and void, for possession of the suit property and for mesne profit. This civil suit was decreed by 1st ADJ, Chhindwara in favour of Tara, the original plaintiff on the ground that the suit property belong to Tara and respondents No. 3 and 4 had no right to execute the sale deed. The sale deed dated 11.8.1965 and 31.10.1967 were declared null and void. Subsequent thereto, the respondents No. 1 and 2 filed First Appeal No. 181/1981 before the High Court wherein it was held that the judgment impugned was set aside and the case was remitted back to the Court below to decide it afresh after permitting the parties all opportunities to file documents and to adduce evidence in support of the agreement respectively pleaded by them. The document filed there in the
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