Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Prakash Krishna, J.) This appeal is against the original judgment of the court below. The facts of the case unfolds the usual story--sale of entire property of the deceased by one of the co-heirs, after getting mutated in his or her name surreptitiously and the vendor falls back on section 41 of the Transfer of Property Act to protect the sale.
Durga Datt Mahay (father of the plaintiff and of defendants no. 1 to 5) was the owner in possession of the property described as KF-94, New Kavi Nagar, Ghaziabad, U.P., a residential house having two storey building. He was perpetual lessee of the plot from Ghaziabad Development Authority. He retired as an Additional District Magistrate (Judicial) in the year 1969 from Meerut. After his retirement, he got constructed the house thereon. Sri Durga Datt Mahay constructed ground floor and and resided in the front portion with his wife Ratna Mahay (somewhere typed as Ratna Devi) and with his one of the daughters Km. Kamlakshi Mahay who was mentally and physically handicapped. Durga Datt Mahay had seven daughters. During his life time unfortunately, one of his daughters namely Smt. Vashundhara Sharma became widow on 15th of September, 1980. He permitted the widowed daughter to construct first floor under a registered instrument dated 6th of September, 1981. Sri Durga Mahay expired on July 9, 1987. He left behind him his widow Smt. Ratna Mahay, seven daughters namely Smt. Usha Sharma (plaintiff), Smt. Chanchal Sharma (defendant no.1), Smt. Nirmal Sharma (defendant no.2), Dr. Smt. Tripti Srivastava (defendant no.3), Smt. Vashundhara Sharma (defendant No.4), Smt. Malti Sharma (defendant no.5) and Km. Kamlakshi Mahay.
Km. Kamlakshi Mahay died on 10th of January, 1991 and was survived by her sisters and mother.
Smt. Ratna Mahay expired on 2nd of August, 1994.
Smt. Malti Sharma was also residing along with her family at the time of the death of the mother in the aforesaid house. The back portion of the house was tenanted. Ratna Mahay, the mother, used to realise the rent from the tenant.
Smt. Malti Sharma on 19th of September, 1995 executed a sale deed in favour of Ajai Gupta who was defendant no.6 in the suit and is appellant herein. The legality, validity and propriety of the sale deed in respect of the entire house executed by Smt. Malti Sharma in favour of the defendant no.6 (hereinafter described as appellant) is the core issue involved in the present appeal.
Smt. Usha Sharma, respondent no.1 herein, the eldest one among the sisters, instituted original suit No.830 of 1996 on the allegations inter alia that the property in dispute originally belonged to late Durga Datt Mahay who left behind him his widow and seven daughters. This house was his self acquired property and after his death all his heirs including the widow and the daughters inherited the property in question. It was further pleaded that the widow and one of the daughters have expired before the institution of the suit. It was also pleaded that one of her sisters namely Smt. Vashundhara Sharma who became the widow at a very young age, was permitted to construct and occupy the first floor of the house in question to the exclusion of all her sisters with the stipulation that she will have no right on the ground floor of the property in dispute by means of a registered deed dated 6th of June, 1981. Sri Durga Datt Mahay died intestate without executing any Will. All the married daughters of Durga Datt Mahay were living at far away places in their matrimonial houses and in the property in dispute after the death of their mother Smt. Malti Sharma was residing being one of the heirs and legal representatives of late Durga Datt Mahay. She became dishonest after the death of their mother and got the property in disute mutated in her exclusive name in the year 1993 on the strength of a forged Will of late Sri Durga Datt Mahay dated 15th of February, 1987. As a matter of fact, no such Will was executed by Durga Datt Mahay during his life time. As soon as the plaintiff came to know of the impugned sale deed dated 19th of September, 1995, she gave the notices to the defendant no.6, the purchaser (appellant) who refused to receive them. It was stated that the plaintiff, defendant nos.1 to 3 and 5 each has 1/5th share in the ground floor of the suit property. The plaintiff claimed that the sale deed dated 19th of May, 1995 executed by Smt. Malti Sharma in favour of the appellant be declared null and void. The purchaser, the defendant no.6, be directed to deliver the possession of the house in the suit, a decree for mandatory injunction directing the defendant no.6 to hand over the peaceful possession and a decree of partition of ground floor of the house in question allotting 1/5th share out of the suit property to the plaintiff, be passed. As also the possession be handed over to her. Besides the above, a decree for damages, pendente lite and future interest etc. were also claimed.
The appellant (defendant no.6) filed a written statement on the pleas inter alia that he is a bonafide purchaser for value of the property in dispute. He admits that the property in question was self acquired property of Durga Datt Mahay. He also does not dispute that the plaintiff or the defendant nos. 1 to 5 are not the daughters of late Durga Datt Mahay. What he pleads is that the property in question at the time of negotiation for sale was recorded in the exclusive name of vendor namely Smt. Malti Sharma. He, after examination of the relevant record of the Ghaziabad Development Authority, purchased the property in dispute. The sale deed was validly executed by Smt. Malti Sharma after obtaining the permission from the Ghaziabad Development Authority for sale and also requisite permission from the Income Tax Department was obtained by the vendor in her name. The vendor's name was recorded on the basis of the Will dated 15th of February, 1987 executed by late Durga Datt Mahay bequeathing the property in dispute to her. On inspection of the record it was found that the other sisters of Smt. Malti Sharma (the other daughters of late Durga Datt Mahay) and their mother had given affidavit to the effect that they have no objection if it is mutated in the name of Smt. Malti Sharma. He is a bonafide purchaser and purchased the property in question for a sum of Rs.9,80,000/-. It was also pleaded that now the plaintiff and her other sisters have become dishonest and the present suit is outcome of greed.
In the array of the parties, as stated above, the other sisters of the plaintiff were impleaded as defendant nos. 1 to 5, out of them defendant nos.2 to 4 filed pleadings supporting the case of the plaintiff. They have disputed the execution of alleged Will dated 15th February, 1987 by their father. They have admitted in para 8 that late Durga Datt Mahay relinquished all his right in the first floor in favour of defendant no.4 (Vashundhara Sharma). All other sisters claimed 1/5th share on the ground floor and the land beneath the house. It was pleaded that Durga Datt Mahay died intestate. The alleged Will dated 15th February, 1987 is a forged document on the face of record and any sale deed based on the said Will and the mutation of the suit property, are not binding and enforcible against them.
The defendant no.1 in her written statement has admitted the plaint allegations and pleaded that the sale deed in question executed by defendant no.5 is based on fraud and misrepresentation and is liable to be set aside and the property in question is liable to be partitioned. She also claimed her 1/5th share in the property in dispute.
The defendant no.5, Smt. Malti Sharma, the vendor did not turn up to answer the suit and her whereabouts are not known. She, according to other sisters, is missing.
The defendant no.7, Ghaziabad Development Authority filed a written statement alleging that it is neither necessary nor proper party and was unnecessarily impleaded as no relief has been sought against it.
The plaintiff also filed a replication to the written statement of the defendant no.6.
The parties led voluminous documentary evidence. The plaintiff filed voluminous documentary evidence in the shape of letters written by Durga Datt Mahay to her daughters. The copy of registered deed dated 6th June, 1981 executed by late Durga Datt Mahay permitting her widowed daughter Vashundhara Sharma to raise first floor was also produced. Copies of municipal extracts and record of Ghaziabad Development Authority to show that the consent affidavit filed before the Ghaziabad Development Authority for getting mutation in the name of Smt. Malti Sharma allegedly sworn by other sisters is forged, were filed.
The details of documentary evidence filed by the plaintiff finds mention in detail in the judgment of the trial Court. Some documentary evidence was also filed by the defendant nos. 1 to 4.
The appellant-defendant no.6 filed copies of the letter dated 15th of March, 1993 written by Smt. Malti Sharma to Ghaziabad Development Authority, of freehold application, of order granting freehold, of Challan, of Income Tax clearance, permission granted by the Ghaziabad Development Authority to sell and of various other documents as detailed in the judgment of trial Court. On the basis of the pleadings of the parties, the trial Court framed as many as sixteen issues for determination. They are as follows:-
1. Whether the suit has been under valued and the court fee paid is insufficient?
2. Whether the disputed sale deed dated 19th of September, 1995 executed by the defendant no. 5 in favour of defendant no.6, on the basis of the plaint allegations is null and void? If so, its effect.
3. Whether the alleged affidavit of plaintiff and defendant nos. 1 to 4 which was produced by the defendant no.5 before the defendant no.7 is forged and void document?
4. Whether the disputed Will dated 15th of February, 1987 which was allegedly executed by late Durga Datt Mahay and has been utilized by the defendant no.5 in favour of defendant no.6 is forged and void and is liable to be cancelled.
5. Whether the plaintiff is entitled to get the possession of the House No K.F. - 94, New Kavi Nagar, Ghaziabad after getting it vacated from the defendant no.6?
6. Whether the plaintiff is entitled to get partitioned his 1/5th share and take the possession of House No. K.F.-94, New Kavi Nagar, Ghaziabad?
7. Whether the plaintiff is entitled to recover damages @ Rs.7,000/- from the defendant no.6?
8. Whether the plaintiff is entitled to get the future damages @ Rs.1000/- from the defendant no.6?
9. Whether the suit is barred by time?
10. Whether the defendant no.6 is a bonafide purchaser?
11. Whether the defendant no.7 is an unnecessary party and if so its effect?
12. Whether the suit has been under valued and the court fee paid is insufficient?
13. Whether the suit is barred by principle of estoppel and acquiescence as stated in para 41 of the written statement 54Ka?
14. Whether the plaintiff is entitled to get any relief?
15. Whether any registered agreement dated 6th of June, 1981 was arrived at in between Durga Datt Mahay and defendant no.4? And if so, its effect.
16. Whether the suit is barred by principle of estoppel as stated in para 51A of the written statement of defendant no.6?
The trial Court has decreed the suit in part against the defendant nos. 5 and 6 and declared that the will dated 15th February, 1987 allegedly executed by late Durga Datt Mahay in favour of Smt. Malti Sharma is forged and fabricated document and the sale deed executed by Smt. Malti Sharma registered on 19th September, 1995 in favour of defendant no.6, Ajai Gupta (appellant) is unauthorized, illegal and null. It directed the defendant no.6 (appellant) to hand over the possession of the disputed house to the plaintiff and the defendant nos.1 to 5, the co-owners. It also declared the plaintiff's 1/5th share in the disputed house no. K.F.-94, new Kavi Nagar, Ghaziabad and passed a preliminary decree.
Heard Sri Shashi Nandan, learned senior counsel and Sri Udyan Nandan for the appellant, Sri Manish Vashishtha and Sri Sameer Vashishtha for the respondents. Challenging the judgment and decree of the Court below, the learned counsel for the appellant submitted that it is not pleaded in the plaint that the Will in question does not contain the signature of late Durga Datt Mahay. Therefore, the Court below was not justified to go into that question in absence of proper pleading. Elaborating the argument, he submitted that a plea not set out in the plaint or written statement cannot be pressed and any finding recorded in absence of proper pleading is liable to be ignored. The further submission is that the appellant is a bonafide purchaser for value without notice. The property in dispute on the date of execution of the sale deed stood recorded in the name of vendor Smt. Malti Sharma. Smt. Malti Sharma was in possession of the property in dispute. It is she who got it converted into free-hold property. After death of Durga Datt Mahay, the other daughters did not take any step for mutation of their names over the property in dispute and as such it shall be presumed that they had no claim therein either during or after death of their mother. The appellant purchased the property after making due inquiries and on inspection of the relevant record and as such the sale deed is protected under section 41 of the Transfer of Property Act. It was also submitted that all the sisters are in collusion and they have become dishonest. The plaintiff has purposely not given the whereabouts and the present address of Smt. Malti Sharma.
In reply, refuting the appellant's contention, the learned counsel for the contesting respondents submitted that after the death of Durga Datt Mahay, the property in dispute devolved in equal shares upon all his heirs and legal representatives, on his widow and the seven daughters and thereafter on the plaintiff and defendant nos. 1 to 5. Late Durga Datt Mahay was holding a responsible position of a judicial officer and he very well knew the importance of a registered document. Unfortunately, during his life time one of his daughters namely Smt. Vashundhara Sharma became widow at her young age and to provide shelter, under the registered deed dated 6th of June, 1981, he permitted her to raise first storey at her own cost on the conditions stipulated in the said registered deed. It is not expected from a person having legal background to execute an unregistered alleged Will dated 15th of February, 1987. Elaborating the argument, the alleged Will dated 15th of February, 1987 on the face of it is a forged and fictitious document. No person of an ordinary prudence would execute such a Will bequeathing all his property to one of the daughters to the exclusion of his widow and other daughters, without assigning any reason, specially when one daughter was widow and another was physically and mentally handicapped. It was submitted that after the death of late Durga Datt Mahay, his widow Smt. Ratna Devi was residing with her handicapped daughter and Smt. Malti Sharma in the house in dispute. The other daughters who were residing at different places in their matrimonial house used to visit their mother off and on. The mother was realising the rent during her life time from the tenant in the back portion of the house. In the year 1991-1993 Smt. Ratna Mahay went to the plaintiff who was residing at Indore (M.P.), during this period rent was realized and was remitted by Sri B.R. Sharma, husband of Smt. Malti Sharma by two bank drafts for Rs.1200/- each. During the period 25th August, 1993 and 29th September, 1993, these drafts were deposited with State Bank of Indore which is evident from the copy of bank account No.R/836 (Exhibit-6). Had there been any such will dated 15th of February, 1987, Smt. Malti Sharma or her husband Sri B.R. Sharma, could have no occasion to realise and send the rent to Smt. Ratna Mahay at Indore (M.P.). Non filing of the alleged original Will dated 15th February, 1987 and the impugned sale deed by the appellant are sufficient to discard the defence of the appellant. The evidence on record do show that the appellant knowingly and willingly took a calculated risk by obtaining the impugned sale deed from Smt. Malti Sharma in respect of the entire house while he was fully aware and conscious that she had no authority to execute the impugned sale deed, submitted the learned counsel for the respondents. The further submission is that on the facts of the present case, the alleged Will dated 15.2.1987 is in fact a document of title of the appellant, and in it absence, no right will flow to him.
In view of the above, the following points fall for determination in the present appeal:-
1. Whether there is any variance in the pleading and proof as per submission of the appellant there is no pleading with regard to the forgery of Will dated 15th February, 1987 or denial of the signature of testator thereon, allegedly executed by late Durga Datt Mahay?
2. Whether the trial Court was duty bound to issue notice to the defendant no.5 to produce the original Will and in absence of any such notice by the trial Court, the photostat copy of the Will in question is admissible in evidence?
3. Whether the execution of the Will is proved?
4. Whether the appellant is a bonafide purchaser and had purchased the property after making due inquiries and is entitled to get the benefit of Section 41 of the Transfer of Property Act?
5. Whether the trial Court is right in passing a decree for possession and mandatorily requiring the delivery of vacant possession of house to the plaintiff?
POINT NO.1.
Taking first point first, the submission of the appellant is that on a reading of the plaint as a whole, there is no pleading that the alleged will dated 15th of February, 1987 was not executed by late Durga Datt Mahay. The submission is that the plaintiff has nowhere denied that the copy of the Will on the record does not bear the signature of its executant and as such, the Will in question stands proved notwithstanding the non filing of the will in original. In support of the above contention the learned counsel for the appellant has placed reliance on Devi Das v. Shailappa, AIR 1961 SC 1277 and Gopal Krishan Kalkar v. Mohd. Haji Latif, AIR 1968 SC 1413.
The contention of the appellant is misconceived and cannot be accepted. In para 19 of the plaint, it has been stated that Smt. Malti Sharma illegally, fraudulently without knowledge and consent of other legal heirs obtained mutation of her name in the record of Ghaziabad Development Authority on the basis of certain forged and fabricated documents such as will dated 15th of February, 1987 purporting to be executed by late Durga Datt Mahay. The further allegation is that the alleged Will dated 15th of February, 1987 and execution of the sale deed in pursuance thereof dated 19th September, 1995 are not binding or enforcible on the plaintiff. On a reading of the plaint as a whole, it is crystal clear that the plaintiff has denied the very existence of any such will allegedly executed by late Durga Datt Mahay. The submission that by pleading a document illegal, fraudulent, forged or fabricated does not amount the denial of its execution, is legally not acceptable. The submission of the learned counsel for the appellant that a photostat copy of the will in question was produced, it was incumbent upon the plaintiff to deny its due execution in addition to the pleading that the document is fraudulent, forged and fabricated, is not legally correct. When the very existence of the document has been disputed, by the nature of the pleading, it is implicit that the said document was not executed by the person purporting to have been executed [See ROSSAMMAL ISSETHEE AMMAL VS. JOSSA, (2000) 7 SCC 189]. The pleadings of the parties are elaborate and if read as a whole, one will get the idea of the controversy and the points raised therein. Pleadings should not be read in a pedantic manner with an angle to find out the minor faults. The relevant enquiry should be as to whether the other side had notice of the points raised in the pleading or not. Nobody should be taken by surprise. The plaintiff and the defendants, pleaded in no uncertain terms that Durga Datt Mahay died intestate, left no will, and the property in dispute after his death devolved on all his heirs and legal representatives. These allegations unequivocable, deny the execution of any will by the deceased and places the burden on the appellant who title flows from the will of Durga Datt Mahay, to prove the existence and its due execution. This disposes of the point no.1 against the appellant.
These two points are interconnected and are taken together. At the very outset, it may be noted that the plaintiff and the other defendants filed application before the trial Court requiring the appellant to produce the original Will in question as also the sale deed in his favour. But he failed to do so. The learned counsel for the respondents submitted that the appellant was duty bound to produce the original Will in question being the document of title. In view of section 55(3) of the Transfer of Property Act, the appellant is supposed to have custody of the will. Moreover, the execution of the Will was in dispute and therefore, in view of section 68 of the Evidence Act it was incumbent to prove it by calling at least its one attesting witness. The appellant having failed to produce the Will in original or to call even one of the attesting witnesses to prove its attestation, no reliance on photostat copy of the alleged Will could be placed. In reply, the learned counsel for the appellant does not dispute the non filing of the Will in original. But he submitted that the Will in original was not handed over to him by his vendor at the time of execution of the sale deed and as such, he was not in a position to produce it. The vendor retained the will in original with her on the pretext that she would be needing it in future.
Viewed as above, it is crystal clear the will in original has not been produced by the appellant, who was supposed to possess it. The appellant also took no steps to prove the existence of any such will by calling his vendor i.e. defendant no.5 or by any other means. He felt satisfied by laying the blame on the Court that Court should have taken the steps by issuing notices to defendant no.5 for production of the will.
At this stage, it may be noted that the Apex Court in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others, (1977) 1SCC 369 has considered the question as to on whom the burden of proof of due execution of a Will lies. It has been laid down in para 8 that the burden lies upon the person who sets up the Will in answer to the plaintiff's claim in a suit for partition. The Apex Court has laid down that leaving aside the rules as to burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proof of a fact in issue lies on him who asserts it and not on whom who denies it. In other words, the burden lies upon the party which would fail in the suit if no evidence were led on the fact alleged by him. It was held that the defendant was relying upon the Will and it is for the defendant to have led satisfactory evidence to prove the due execution of the Will by the testator.
In Rosammal Issetheenammal Fernandez (Dead) by Lrs. And others Vs. Joosa Mariyan Fernandez and others, (2000) 7 SCC 189, the Apex Court has held that when in pleading it is pleaded that signature on the document is forged, it amounts denial of the execution of the document. The denial cannot be more strong. Once there is a denial by a party it cannot be doubted that the proviso to section 68 of the Evidence Act will come into play. Paragraph-9 is the relevant which is reproduced below:-
"The aforesaid pleading leaves no room of doubt about denial of execution of the said documents. The pleading records that Defendants 1 and 2 forged the signature of their father after influencing the Sub-Registrar. The denial cannot be more strong than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted. The main part of Section 68 of the Indian Evidence Act puts an obligation on the party tendering any document that unless at least one attesting witness has been called for proving such execution the same shall not be used in evidence."
Ergo, the argument of the appellant that the Court was duty bound to issue notice under Section 65(a) of the Evidence Act for production of secondary evidence has no merit and cannot be accepted.
Reliance was placed by the appellant on section 65 (a) of the Evidence Act, which deals the cases in which secondary evidence relating to documents may be given.
The principle is that the best evidence ought to be produced. Original document is the best and primary evidence. The section 65 provides an alternative method of proving the contents of a document which for various reasons cannot be produced. Secondary evidence of the contents of the document cannot be admitted when non production of the original is being accounted for in such manner as to bring it within one or other of the cases provided for in section 65.
Here, the appellant has failed to lead any convincing evidence to show that his case falls in any of the clauses of section 65(a) of the Act. Under law he was supposed to have the will in original with him as per section 55(3) of the Transfer of Property Act. The failure of the appellant to produce the will in original and, or non examination of any attesting witness has made it indefensible. Further, any such will could be executed by the testator, needs consideration.
The Apex Court in Ramabai Padmakar Patil (D) through Lrs. & Ors. v. Rukminibai Vishnu Vekhande & Ors., JT 2005 (11) SC 567, has held as follows:
"5. Before we advert to the submissions made by learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a Will. Section 63 of Indian Succession Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Evidence Act, mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of Apex Court viz. H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443, Ran Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. AIR 1962 SC 567 and Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors. AIR 1964 SC 529. It will be useful to reproduce the relevant part of the observations made by this Court in the Constitution Bench decision in Shashi Kumar Banerjee (supra) which are as under:
"The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstance, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might by unnatural and might cut off wholly or in part near relations."
At this stage, it is apt to reproduce the relevant portion of the Will in question. It is as follows:-
"That the Testator has seven daughter and amongst them six have been married excepting Kumari Kamalakshi aged about 37 years. Kumari Kamalakshi was abnormal and mentally retarded unable to maintain herself by birth.
That Smt. Malti Sharma helped the Testator mentally, morally and financially and thus the Testator has special love, affection and gratitude towards Smt. Malti Sharma, which other daughter leaving and therefore for extreme devotion to serve the mentally retarded sister, the testator by way of appreciation and respect, right to own and enjoy come the same property as mentioned in the WILL and confirmed on the said Smt. Malti Sharma after my death Smt. Malti Sharma can alienate or sell the said property during her life time.
That the said Malti Sharma the sole executrix of Will will be entitled to obtain probate without being required to furnish any security.
I, accordingly, declare her as the sole beneficiary and universal legatee of my this WILL and my other legal heirs etc. shall have no right, title or interest, claim, lien in respect of above said property.
In witness whereof the said Testator Shri Durga Datt Mahay son of S. Vishwambhar Datt Mahay, resident of KF-94, New Kavi Nagar, Ghaziabad, U.P., has hereto signed this Will on 15th day of Feb., 1987."
(Reproduced as from the Paper Book of the appellant) The alleged Will recites that the testator has seven daughters. All of them except one are married. Admittedly, the testator had left behind him his widow also. It has come in evidence that one of the daughters namely Smt. Vashundhara became widow in her early age and was permitted to raise first floor in the house in question out of her own money with the stipulation that she will be exclusive owner of the said storey and will have no share in the ground floor under the registered deed dated 6.6.1981. Although a dispute was raised for the sake of dispute by the appellant about the execution of such document but he could not successfully challenge the existence or the execution of the said registered document. The appellant is stranger to the family and noticeably all other members of the family have accepted the existence of the above registered document. It has come in evidence of the plaintiff and of the other defendant nos. 1 to 4 that their father Sri Durga Datta Mahay executed the said deed giving exclusive right in the first storey to Smt. Vashundhara with the knowledge and consent of all the family members including all the daughters, wife and the husband of the plaintiff. It has come in evidence of the plaintiff that the said arrangement was accepted by all the members of the family. The point has been examined by the trial Court under the issue no.15 who after threadbare analysis of the evidence on record reached to the conclusion that the registered document dated 6th June, 1981 is a family arrangement among the family members and is binding on them. The plea that the document is not sufficiently stamped put forward by the appellant has been negated. No attempt was made by the appellant to challenge the finding recorded under issue nos.15 and 6, the finding has attained finality. To put it differently, the first storey of the house in question which is also the case of the plaintiff and her sisters, was given due to special circumstance of Vashundhara to her exclusively.
As noted here in above, Sri Durga Datt Mahay was from the judicial service. It was not expected from him not to account for the registered document dated 6th June, 1981 while executing the alleged Will subsequently. In view of the registered deed dated 6th June, 1981, by Durga Datt Mahay, it sounds strange that the testator had not whispered anything in this regard in the will.
There is no difficulty in holding that the will in question is a forged and fabricated document. At least it has not been proved in accordance with law. For that there are reasons more than one, detailed herein below.
(i) The will in original has not seen light of the day yet. The appellant could produce only a photocopy of the said will. He failed to produce the will in original although he was directed to produce it on the application filed by the plaintiff and other defendants. The non production of will in original inspite of notice to produce it, goes a long way to discredit any such will. The explanation for non production the will in original given by the appellant is totally untrustworthy and has been rightly rejected by the trial court. The appellant came out with the case that the will in original was not handed over to him by the vendor, namely, Smt. Malti Sharma under the pretext that she will be needing it in future.
Section 55(3) of the T.P. Act casts an obligation on the seller, where he has received the whole of the purchase money, to deliver to the buyer all documents of title relating to the property which are in the seller's possession. The inapplicability of the proviso to Section 55(3) was not argued. Before completion the seller is bound under Section 55(1)(b) to produce all title deeds in his possession.
The explanation that it was not handed over to him is no explanation specially in view of Section 55(3) of the Transfer of Property Act. The alleged will is only in respect of property in dispute and it does not deal with any other property. This being so, there was hardly any justification for not handing the will in original to the appellant (vendee) by the vendor at the time of execution of the sale deed. The appellant came out with the case that he was handed over the relevant document relating to title by the vendor. He could produce the documents relating to the payment of municipal taxes, bills of electricity and telephone, permission granted by the G.D.A. to the property in dispute, income tax clearance etc. etc. obtained by the vendor in favour of the appellant, none of them is document of title.
In Smt. Safi Devi v. Mahadeo Prasad and others, AIR 1978 All 215, it has been held that where the transferor of property claimed ownership of the property transferred under a will which was alleged to be executed in his favour by disinheriting the owner and the grandson and the same could not be produced by the transferor of the transferee from him, the allegation about execution of the will must be deemed to be pure concoction as such will was against natural course of things.
(ii) The relevant portion of the will has already been extracted above. Even otherwise also, the execution of will as required under Section 68 of the Evidence Act by calling at least one of the attesting witnesses has not been proved. Photostat copy of the will would show that the will purports to have been attested by two attesting witnesses but their names and particulars are not legible. Purposely, the name or designation or address of so-called attesting witnesses are lacking in the photostat copy of the will. The denial of execution of any such will by the plaintiff and her sisters is sufficient to discard the will dated 15th February, 1987 as no attempt was made by the appellant to call at least one of the attesting witnesses to prove the execution of will by testator.
(iii) Besides the above, quite a few other circumstances can be mentioned which give rise suspicion as regard making of the will in question. The testator left behind his widow and seven daughters. One of the daughters, namely, Kamlakshi Mahay was a mentally retarded person and was under care of her mother and was residing in the disputed house. The testator was very much concern about the well being of Kamlakshi Mahay as she was being looked after by wife of the testator but no provision for her has been made in the will, which is unnatural.
(iv) The other factor which weigh heavily against the due execution of will is that the testator has not made any provision for his widow. To overcome it, a cock and bull story has been set up. The explanation given by the appellant is that the will in original was handed over by the testator to his wife with the understanding that she will hand it over to Smt. Malti Sharma, if she continues to behave properly otherwise the widow would be free to destroy the will. This explanation does not inspire any confidence. The testator belonged to judicial service and it was not expected from him to leave the matter in confusion and uncertainty. He appears to be a man of perfection and foresightedness which is evident from the record that he got even family arrangement dated 6th June, 1981 whereby shelter was provided to one of his widowed daughter, registered. The other factor is that there is no plausible explanation for disinheriting the other daughters, namely, Usha Sharma, Chanchal Shama, Smt. Nirmala Sharma, Dr. Tripti Srivastava and Vashundhara Sharma specially when Chanchal Sharma became widow. It is inconceivable that a testator would execute a will bequeathing the property in dispute in favour of only one daughter without assigning any reason to disinherit his widow and other daughters. It was not expected from such a person to execute unregistered will, though not required under law to be registered one, to leave the things in uncertainty and give rise to dispute in future.
(v) Had there been any such will dated 15th February, 1987 in favour of Smt. Malti Sharma, there was no occasion for the husband of Smt. Malti Sharma to remit the rent for the months of August and September, 1993 to Smt. Ratna Mahay.
The evidence on record do show that there was complete harmony among the daughters of late Durga Dutt Mahay. In the month of December, 1992 Smt. Ratna Mahay, mother had gone to Indor to reside with the plaintiff and lived there upto June, 1994. In integrum period, there was change in the behaviour and conduct of Smt. Malti Sharma who was in possession of the property in dispute. She stopped paying rent of the first floor to Smt. Vashundhara Sharma and this gave birth to dissatisfaction among the family members. The evidence has come on record that Smt. Vashundhara protested the holding of rent of first floor by Smt. Malti Sharma, to her eldest sister, the plaintiff. The plaintiff being eldest one was managing affairs to the entire satisfaction of all. The letters written by Vashundhara Sharma showing her dissatisfaction to the plaintiff are on record. Smt. Malti Sharma with the evil design in her mind, taking undue advantage the absence of mother from the house, surreptitiously without knowledge of anyone, after about six years of death of the father, filed an application for getting her name mutated before the G.D.A. which was supported by her affidavit. For the first time, she set up the alleged will dated 15th February, 1987 before the G.D.A. and she managed to file alleged joint affidavit of all her other sisters and of her mother and managed to obtain mutation order in her favour. She was in lookout to find a buyer of the property in question. In the meantime, her mother Smt. Ratna Mahay returned to house in question at Ghaziabad in the month of June, 1994 and there she expired on 2nd August, 1994. Taking advantage of the situation and finding it that she alone is in occupation and possession of the property in dispute and all other sisters were residing at different places outside Ghaziabad, sold the property in dispute on 19th September, 1995 to the present appellant. The mutation order dated 16th March, 1993 was kept in secret from her mother and sisters. To facilitate the sale transaction, she also got perpetual lease converted into freehold by depositing freehold charges. It has come in evidence that till the execution of sale deed, Smt. Malti Sharma was residing in the house in question and there survives no dispute was surfaced among the sisters. Smt. Malti Sharma managed the entire show surreptitiously without knowledge of any of her sisters. The mutation proceedings and the proceeding for getting the property in dispute freehold, all were conducted ex parte without any notice to any of them. It is not even the case of the appellant that the G.D.A. had issued any notice to any of the sisters, with regard to mutation proceedings. There is no pleading that the citation in the newspaper as generally required in such matters was issued by the G.D.A. before effecting the mutation in favour of Smt. Malti Sharma.
All these things were in the special knowledge of Smt. Malti Sharma who could explain them but for the reason best known to her, she failed to appear in the suit. The appellant submits that he is not aware of the present whereabouts of Smt. Malti Sharma. The plaintiff submits that since the execution of sale deed, she is missing. Be that as it may, there is sufficient evidence to show that the mutation order was obtained by Smt. Malti Sharma in an ex parte manner. Learned counsel for the respondents rightly submits that the mutation order does not confer any title to the person in whose name property mutated. He has relied upon certain decisions in this regard. It is an acknowledged legal position that even if, mutation has been made in the name of one of the co-sharers by the municipal authorities, the right, title and interest of the other co-sharers in the property in dispute will not be affected in any manner. Reference can be made to Smt. Sawarni v. Smt. Inder Kaur, (1996) 6 SCALE 333 vide para-7.
Viewed as above, the irresistible conclusion is that the execution of the alleged will dated 15th February, 1987 of Durga Dutt Mahay is not proved and the same cannot be relied upon.
The genuineness and correctness of the alleged joint affidavit dated 9th February, 1993 filed in connection with mutation proceedings was disputed by all the others sisters (i.e. plaintiff & defendants no. 1 to 4). The plaintiff PW-1, her husband PW-2 and defendants no. 1 to 4 as DW-1 to DW-4 appeared in the witness box and have denied swearing of any such affidavit. They have denied their signatures on the alleged affidavit dated 9th February, 1993 unequivocally. Interestingly, the appellant could not dare to put any question in the cross-examination in this regard as to whether the joint affidavit was sworn by them or not. They not only denied their signatures but also came out with the case that they were not present at Ghaziabad on 9th February, 1993 nor their mother Smt. Ratna Mahay was there at Ghaziabad on that date. They have filed papers no. 122-C, 123-C and 124-C as exhibits no. 2 and 3. Letter dated 25th August, 1993 has been written by Sri B.R. Sharma, husband of defendant no. 5 enclosing bank draft dated 24th August, 1993 towards rent of the back portion of house in favour of Bigi (Smt. Ratna Mahay). Similar is the letter dated 29th September, 1993 exhibit-3 enclosing rent for the next month. To corroborate, copies of passbook of the bank account has also been filed. Had there been any bequeathing in favour of defendant no. 5, there was absolutely no reason for the remittance of rent to the mother, who had no share under the alleged will in respect of the house in question. The trial court has rightly concluded that these documents belie the filing of any such affidavit dated 9th February, 1993 or existence of will in question. The appellant could not place any material to doubt genuineness of these documents. It was not argued nor any attempt was made to challenge this part of the judgment.
The photocopy of the affidavit allegedly on behalf of the plaintiff and defendants no. 1 to 4 and on behalf of mother Smt. Ratna Mahay has been filed by the appellant, being papers no. 169-C. Its bare perusal would show that the said document is forged and fabricated document. There appears to be no identification of the deponents.
Learned counsel for the plaintiff submits that Tripti after her marriage used to write as Tripti Srivastava but in the affidavit it is mentioned as Tripti Sharma. To this effect, the oral evidence has also been led by the plaintiff and defendants no. 1 to 4. The signatures of Smt. Malti Sharma, defendant no. 5 is also there on the affidavit while she is not one of the deponents. Taking into consideration alibi pleaded by the plaintiff and defendants no. 1 to 4 regarding their absence from Ghaziabad on 9th February, 1993 and the facts as pointed out by the plaintiff and defendants no. 1 to 4 with regard to the said affidavit, leads to the conclusion that the said affidavit was not signed by the persons and the signatures purporting of those persons are forged and fictitious. The trial court has noticed that in the list of witnesses, the appellant earlier proposed to examine the Notary, who verified the affidavit but later on dropped it for the reasons best known to him, is also a factor which goes to support the plaintiff's version. On consideration of the almost clinching evidence led by the plaintiff and defendants no. 1 to 4 by denying their signatures on the alleged affidavit together with the attending facts and circumstances of the case as is also evident from letters written by Shri B.P. Sharma, husband of defendant no. 5 enclosing rents for the month of August and September, 1993 the inference drawn by the trial court that the affidavit is forged and fictitious document is unquestionable and the finding recorded thereon calls for no interference by this Court.
The observation made by the trial court that the affidavit being unregistered document cannot be pressed into service is not legally correct. The affidavit in question is neither a relinquishment deed nor it assigns any right in immovable property in favour of any person. The affidavit dated 9th February, 1993 did not require registration under the Registration Act.
The argument of the appellant that the defendants in deposition have accepted that they have not seen the affidavit dated 9th February, 1993 themselves on the file of G.D.A. and therefore, could not depose anything about the said affidavit, deserves rejection. The said argument has no force. The persons who allege that the document was not signed by them and somebody wants to rely upon the document, the burden is upon the person relying upon the document to prove that the purported signatures on the document are of those persons by calling handwriting expert report or otherwise. No such attempt was made by the appellant. We therefore find that the affidavit dated 9th February, 1993 was prepared by defendant no. 5 for the purposes of obtaining mutation in her favour and it was not sworn by her other sisters and the mother.
POINT NO.4 Now, we take up the question as to whether the appellant can be treated as a bonafide purchaser, having purchased the property in dispute after making due inquiry from an ostensible owner for a sum of Rs.9,80,000/- and is entitled to protect the sale deed by invoking of Section 41 of the T.P. Act.
The contention of the appellant is that when he entered into negotiation for purchase of the house in dispute with Smt. Malti Sharma, she was found residing therein. Her name was found recorded in the revenue record. He made inquiry from the neighbours with regard to title of Smt. Malti Sharma. The inquiry revealed that she is the sole owner of the property in question. Submission is that due and proper care was taken by him before entering into transaction in question. To prove the same, he has examined himself as also the property dealer Krishna Agrawal, who was the middleman in the transaction. Before coming to the evidence, it is apt to scrutinize the written statement first.
In the original written statement, the fact that the house in dispute was exclusive property of Durga Dutt Mahay is admitted. In para-20 it has been pleaded that he made the necessary inquiry in the office of G.D.A., Nagar Palika and office of Registrar before the transaction. In his affidavit filed as examination-in-chief, he reiterates in para-18 that he made the necessary inquiry himself as also done by his property dealer, with the G.D.A. etc. In para-19 of the affidavit, he has deposed that when the talk of sale was going on, he also met Usha Sharma and Vashundhara Sharma along with Smt. Malti Sharma twice or thrice. He was informed by the two sisters of Smt. Malti Sharma that the house was got constructed by their father and because of the will dated 15th February, 1987 they along with their mother have given the house to Smt. Malti Sharma and got the name of Smt. Malti Sharma recorded in the government record. They expressed their desire to sell the house.
Now, in the light of above, it is clear that the appellant came to know at least before sale transaction that Durga Dutt Mahay had left seven daughters and a widow. One of the daughters and widow had expired by that time. He also came to know of the details of other daughters of Durga Dutt Mahay on the examination of the alleged joint affidavit filed in connection with the mutation proceedings. In his cross examination, he accepts the position that he never made any inquiry with regard to share of other heirs in the house from any of the sisters of the vendor. Name of the sisters find mentioned even in the alleged affidavit dated 9th February, 1993 which has found to be forged and fabricated document. It is a case where there is absolutely no dispute with regard to the natural heirs and legal representatives of the deceased Durga Dutt Mahay. There was absolutely no reason for non making any inquiry from even anyone of them. The appellant solely relies upon the mutation order which was obtained by Smt. Malti Sharma, fraudulently. It has been found by us that she obtained the mutation order in her favour surreptitiously. The telephone and electricity connection in favour of Smt. Malti Sharma are documents of possession and they have nothing to do with the title to the property in question. Therefore, it cannot be said that the appellant unwittingly purchased the property in dispute. He took a calculated risk and knowingly that there are other co-sharers purchased the property in dispute with his wide open eyes from one of the co-shares.
Section 41 of the Transfer of Property Act deals with a situation where the property is transferred by an ostensible owner for consideration. It provides that the the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. In a very old decision of Our Court in Muhammad Sulaiman v Sakina Bibi, AIR 1922 All 392, it has been held that the possession of a manager cannot be treated as ostensible ownership with the consent of the real owner, even if, the name of manager is recorded in the Municipal House Register as the real owner. A professed agent or manager cannot of course be an ostensible owner as held in Dambar Singh v. Jawitri, (1907) ILR 29 All 292.
Contention of the appellant that Smt. Malti Sharma was an ostensible owner as her name was recorded with the G.D.A. in the property register is not legally correct. She being only a co-owner of the property in dispute was managing it on behalf of other co-owners. There is no explanation as to why the appellant took no step to find out the real state of affair by making inquiry from the other co-owners of the property in question. Similar view has been taken by the Apex Court in Suraj Ratan Thirani and others v. The Azamabad Tea Co. and others, AIR 1965 SC 295 wherein it has been held that conduct of the co-sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The relevant paras 14 and 15 are reproduced below:-
"14. The first of them was that by reason of the renewal of the lease in 1928 in the name of Ismail and the entry of his name as sole lessee in the revenue records, the leasehold became his sole property. Apart from the arguments about Ismail being the ostensible owner of the entire 16 as. share in the lease-hold under the lease of 1898-which we shall consider a little later-Mr. Sen did not dispute that Ismail's co-heirs were entitled to their fractional shares in the property under the original lease. The acceptability of this argument regarding the renewed lease has to be determined on -the basis of two factors-first the intention of the parties, and here primarily of the grantor, as to the nature and quantum of the title intended to be conferred on or obtained by Ismail and, second, the provisions of the Crown, Grants Act which governed the grant on which reliance was placed as leading to that result. First, as to the intention of the parties. The original lease of 1898 was due to expire on March 31, 1928. On July 20, 1928 Mohd. Ismail made a petition to the Deputy Commissioner, Darjeeling by which after drawing the latter's attention to the date on which the lease was to expire, he "respectfully solicited the favour of' kindly granting a further lease of the said Estate for a further period of 30 years." The Deputy Commissioner replied by letter dated August 10, 1928 sending Ismail the draft of the renewed lease for his approval and return adding "in the record of rights the following names have been recorded:
1. Kazi Mohammed Ismail 2 as.
2. Kazi Isahaque 2 as.
3. Kazi Yakub 2 as.
4. Kazi Samoddoha 2 as.
5. Kazi Nurul Huda 2 as.
6. Kazi Badarudduza 2 as.
7. Kazi Insaf Ali 2 as.
8. Kazi Asfaque 2 as.
Please mention the name in whose favour the lease will have to be issued." Ismail returned the draft lease with his approval but desired that the lease should be issued according to the name in the land register. We are unable to read this request as meaning that Ismail, contradicting what the Government said, wanted that the leasehold interest should be his sole property in which his co-heirs who had interest in the earlier lease were to be denied all beneficial interest. It was thereafter that the lease was executed on February 1, 1929 in the name of Ismail to be operative from April 1, 1928 and was in terms in renewal of the previous lease. In the circumstance, we are satisfied that the Government intended to grant a lease in favour of his co- sharers as well, though the lease deed was in the name of Ismail alone. If Ismail intended to benefit himself at the expense of his co-sharers and as we have said, we do not read his reply to the Deputy Commissioner as disclosing such an intention, the same was not made known to the Government. We are therefore unable to accept Mr. Sen's submission based on the intention of the parties. He, however, submitted that whatever be the intention of the parties, by reason of s. 3 of the Crown Grants Act Ismail's title to the full 16 as. share in the leasehold could not be disputed. This section reads:
"3. All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to (their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding." If, as we have held. it was the intention of the Government in granting the renewal that the co-heirs too should have the benefit of the lease we do not see how these provisions affect their beneficial interest in the lease. Nor are there any clauses in the lease which preclude the existence of a beneficial interest in persons other than the lessee named. This point is therefore without substance and is rejected.
15. The next point urged was based on s. 41 of the Transfer of Property Act. It was said that Ismail was by reason of the entry in the revenue registers, which the co-heirs did nothing to correct, ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in court auction in execution of the decree by the National Agency Co. Ltd. passed the full title to the Tea Estate and that the co-heirs were consequently estopped from disputing the defendant's right to the full 16 as. share in the property."
The plaintiff and the defendants no. 1 to 4 claimed their title by inheritance from their father and it was incumbent on the appellant to have adopted all precautionary measures and care to know as to whether the defendant no. 5 was the only person on whom inheritance would devolve or there were some other co-sharers. There is definite evidence to show that the appellant had come to know that besides Smt. Malti Sharma, plaintiff and defendants no. 1 to 4 were the surviving heirs of deceased Durga Dutt Mahay. On the date of the sale deed, he as a man of ordinary prudence must have asked them or to his vendor Smt. Malti Sharma to join them, for execution of sale deed as vendors. He could also obtain some kind of document such as relinquishment deed etc. to show that other co-sharers have consented to the transaction in question. In the absence of any such thing, we hold that neither the plaintiff nor the defendants no. 1 to 4 ever consented express or implied to Smt. Malti Sharma to sell the entire property nor Smt. Malti Sharma was an ostensible owner of the property in dispute within the meaning of section 41 of the Transfer of Property Act.
It is now established that the municipal record is not an evidence of title but shows a person in possession and liable to pay tax. (R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. JT 2005 (11) SC 574.) The upshot of the above discussion is that the appellant is not entitled to get any benefit of Section 41 of the Act and it is difficult to hold that he is a bonafide purchaser from an ostensible owner.
The sale deed has been executed for a sum of Rs.9,80,000/-. The consideration has been passed through bank transaction. The trial court unnecessarily doubted the passing of consideration in view of the fact that the payment and receipt of the consideration finds mention in the sale deed. The document in question is a registered document and as such a presumption, though rebuttal, is available to show that the appellant has parted with sum of Rs.9,80,000/-. Contrary observations made by the trial judge is not legally correct.
In alternative, it was argued by learned counsel for the appellant that the appellant would be entitled to succeed to the extent of share of Smt. Malti Sharma who on the own showing of the plaintiff and other defendants has 1/5th share in the property in dispute. The said argument of the learned counsel for the appellant is well founded on the principle of feeding the grant by estoppel. He invoked Section 44 of the Transfer of Property Act. The above proposition could not be disputed seriously by the learned counsel for the respondents. Even otherwise also, we find that in para-28 of the plaint, it is mentioned that the defendants no. 1 to 3 and 5 have 1/5th share in the suit property. It will be a case of transfer by one of the co-owners to the extent of his undivided share at least.
Learned counsel for the respondent in all fairness has invited attention of the Court in this regard to a decision of Apex Court in Ramdas v. Sitabai and others, (2009) 7 SCC 444 wherein a co-sharer had sold his undivided share in joint property. It has been held that such co-sharer could not have sold by registered sale deed more than his share nor he could deliver possession till the said property is partitioned by the parties amicably or through the intervention of the court according to their share. The sale to the extent of the share of Smt. Malti Sharma (i.e. 1/5 of the ground floor) is valid; but, it also true that he has purchased undivided share. To this extent, decree of court below declaring the sale-deed null and void in its entirety needs modification by making the sale deed valid for 1/5 share in the property (ground floor).
Section 44 of the Transfer of Property Act deals with transfer by one co- owner. Second para of Section 44 provides that where the transferee of a share of a dwelling- house belonging to an undivided family is not a member of the family, nothing in this section 44 shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. The object of this section is to keep off strangers who may purchase the undivided share of a co-sharer of an immovable property, so far as dwelling houses are concerned to make it possible for a co-sharer who has not sold his share to buy off the stranger purchaser. Noticeably, this section uses the word " belonging to an undivided family". It does not talk about joint Hindu family.
The property in dispute is a dwelling house and as found above, belong to the plaintiff and defendants no. 1 to 5 who are sisters. Their case is that they used to come off and on to reside in the said house. Meaning thereby, the house is unpartitioned and they are in joint possession thereof. The courts have gone to the extent by issuing temporary injunction in mandatory form directing the purchaser who is stranger to vacate dwelling house notwithstanding the final outcome of the suit. Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden and others, AIR 1990 SC 867, had an occasion to say that on the facts when a co-sharer has transferred the dwelling house, not only a refusal to grant an interim mandatory injunction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant there for the grant of such injunction. It has interpreted the word "family and undivided family" keeping in view the object and purpose of Section 44 of the Transfer of Property Act. It has been laid down, even if, the suit is for the injunction, decree for ejectment of the transferee can be passed. The paras 19 to 23 are reproduced below:
"19. In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family. Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling-house and it belonged to an undivided family. In other words, on the facts before the Court there is a strong probability of the plaintiff getting the relief prayed for by him in the suit. On the second and third ingredients having regard to the restriction on the rights of a transferee for joint possession and the dominant purpose of the second paragraph of section 44 of the Act, there is danger of an injury or violation of the corresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Court's interference is necessary to protect the interest of the plaintiff. Since the relief of an interim injunction is all the same an equitable relief the Court shall also consider whether the comparative mis- chief or inconvenience which is likely to issue from with- holding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff.
20. The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a 'dwelling house belonging to an undivided family' within the meaning of section 44 of the Act. As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and Ors. v. Debi Prasad, [1908] ILR 30 All. 324. That was concerned with the meaning of the phrase "dwelling house belonging to an undivided family" in section 4 of the Partnership Act, 1832. That section provides that where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family, being a share- holder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the' sale of such share to such shareholder. The argument was that the words 'undivided family' as used in the section mean a joint family and are confined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property. The counter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc. possessed of a dwelling house which has not been divided or partitioned among the members of the family. The case itself related to a Muslim family to whom the house belonged. The full Bench observed:
"........... in it (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words 'undivided family' as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words 'undivided family' as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words 'undivided family' the expression 'undivided Hindu family' or 'joint family' might have been used.
With reference to the object and purpose of such a provision the Full Bench further observed:
"as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad v. Bankey Lall, [1906] 9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'."
21. Again in construing the word "family" and 'undivided family' a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal & Anr. v. Saroda Prosad Mitra, [1910] 7 IC 436 observed:
"The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor."
22. The decision in Nil Kamal Bhattacharjya & Anr. v. Kamak- shya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539 related to a case of a group of persons who were not the male descendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ancestor and the sons of a daughter of a son of the said common ancestor. The learned Judge applied the principle enunciated in Sultan Begam v. Debi Prasad, (supra) to this family and held that it was an undivided family since the house had not been divided by metes and bounds among themselves. The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya v. Venkata Subbamma & Ors., AIR 1930 Madras 561. The next decision to be noted is the one reported in Bhim Singh v. Ratnkar., AIR 1971 Orissa 198. In that case the undivided family consisted of the plaintiff and the defendants 1 and 2 therein. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plaintiff and defendant 2. The facts as found by the courts were that by an amicable arrangement among plaintiff and defendants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession. After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held:
"If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out."
On the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139 with approval:
"If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for in- junction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act." The learned Judge further held:
23. The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession."
Viewed as above, the plaintiff is entitled to actual physical possession by evicting the appellant is well founded.
After close of the argument on suggestion given by the court to find out some workable solution, learned counsel for the appellant after getting instructions from the appellant stated that he is prepared to pay a sum of Rs.10,000,00/- each to the plaintiff and the defendants no. 1 to 4 i.e. total a sum of Rs.50,000,00/- (for 4/5th share of the plaintiff and other defendants). Learned counsel for the respondent submits that the property is more than 2,50,000,00/- and the appellant being purchaser, the plaintiff and other defendants would like to exercise their right to purchase the share of the appellant. Admittedly, the sold property is a residential house, meant for the residence of the family members of daughters of the deceased as and when the occasion so arises.
Before saying omega to the case, it may be noted that this Court on 9th May, 2005 passed a conditional stay order while admitting the appeal, staying the operation of the decree of court below on the condition of depositing of Rs.15,000/- per month with effect from June, 2005. The money so deposited was required to be invested in an interest bearing security of a Nationalized Bank. It was provided that the final order shall be passed at the time of final disposal of the appeal. In view of the order proposed to be passed in the appeal, it would be appropriate that the plaintiff-respondent no. 1 shall be entitled to withdraw the entire amount along with accrued interest on her own behalf and on behalf of the respondents no. 2 to 4. She will distribute the amount in equal share among all the five persons (namely, herself and the defendants no. 1 to 4) towards damages suffered by them on account of the stay order passed by the court.
Viewed as above, the judgment and decree passed by the court below is modified by providing that the appellant will have undivided 1/5 share on the ground floor of the property in dispute in lieu of share of Smt. Malti Sharma had and to this extent, the sale-deed dated 19th September, 1995 remains valid and for the rest, it is void and illegal. Rest of the decree is confirmed.
The appeal is allowed in part. No order as to costs.