Heard Shri R.K. Ojha, learned counsel for the appellant assisted by Shri Akhilesh Kumar Singh, Advocate and Shri Vineet Kumar Singh learned counsel appearing for respondent.
The present Second Appeal has been filed by plaintiff against judgement and decree passed by Civil Judge (Senior Division) Gorakhpur in Civil Appeal No.118 of 1991 (Keshav Singh vs. Ramratti Devi & another) and connected Appeal No.123 of 1991 (Ramratti & another vs. Keshav Singh) by which allowing Civil Appeal No.118 of 1991, and dismissing Civil Appeal No.123 of 1991, the judgement and decree dated 2.8.1991 passed by Trial Court was set aside (by which Civil Suit No.333 of 1991 filed by plaintiffs/appellants for cancellation of sale deed was partly decreed in respect of ½ share and partly dismissed in respect of rest half share in the house in suit) and suit of plaintiffs was dismissed with costs. Feeling aggrieved, the plaintiffs have preferred this Second Appeal.
The brief facts relating to the case are that the appellants Ram Ratti Devi and Smt. Bechani filed Civil Suit no.333 of 1980 in the Court of Additional Munsiff, Gorakhpur for obtaining a decree for cancellation of sale deed dated 1.11.1973, allegedly executed by plaintiff no.1 in favour of defendant, in respect of house in suit with the allegation that the house in suit belonged to Shyam Lal who was husband of plaintiff no.1 Ram Ratti and father of plaintiff no.2 and, after death of Shyam Lal on 18.8.1972, the plaintiffs became the owners in possession of house in suit; that the defendant was tenant over a portion of the house in suit since the lifetime of husband of plaintiff no.1 and after death of her husband the defendant developed illicit relations with plaintiff no.1; that defendant taking undue advantage of illicit and fiduciary relationship persuaded plaintiff no.1 for execution of will of house in suit in favour of her daughter plaintiff no.2 and took the plaintiff no.1 to the office of Sub-Registrar on 1.11.1973 and obtained the impugned registered sale deed of the house in suit in his favour on the pretext of execution of will in favour of her daughter, plaintiff no.2; that when the behaviour of defendant became rude towards plaintiff no.1 she asked him to vacate the rented portion of house, on which, for the first time in the month of January, 1980, the defendant disclosed about the sale deed having been got executed by him; that upon inquiry it was found that sale deed has been obtained by defendant from the plaintiff no.1 by playing fraud on her in the garb of and on the pretext of getting the will deed executed in favour of her daughter plaintiff no.2; that the plaintiff no.1 is an illiterate, ganwar and dehati woman and was under fiduciary relationship with defendant; that while the house in suit was worth Rs.40,000/- at the time of execution of sale deed he got the sale deed executed for a sum of Rs.6,000/-, only even without payment of any amount to her towards sale consideration; that the plaintiff no.1 had only half share in the house in question and the rest half share belonged to plaintiff no.2 and so she was not competent to execute the sale deed in respect of entire house.
The defendant in his written statement, denied the averments made in plaint and stated that the plaintiff had complete knowledge of execution of sale deed from the very date of its execution; that no fraud was played on her and the sale deed was not obtained from her on the pretext of execution of will deed in favour of plaintiff no.2; that the defendant had no illicit relationship with plaintiff no.1 and there was no fiduciary relationship between them; that the defendant is living with his wife, 2 sons and 4 daughters and never took plaintiffs to his home; that it is wrong to say that plaintiff no.1 illiterate or ganwar lady rather she is cunning and clever; that plaintiff no.2 is not daughter of plaintiff no.1; that the suit is barred by limitation and is liable to be dismissed.
After framing of issues and recording the evidence of both the parties, the Additional Munsiff, Gorakhpur vide judgement and decree dated 2.8.1991 partly decreed the suit and cancelled the sale deed dated 1.11.1973 in respect of half share of plaintiff no.1 in the house in suit and dismissed for rest half share of plaintiff no.1. Feeling aggrieved the defendant filed Civil Appeal No.118 of 1991 for getting the suit dismissed as a whole while plaintiffs filed Civil Appeal No.23 of 1991 for getting the suit decreed in toto.
The present Second Appeal has been admitted on following three substantial questions of law :-
(1) Whether the view of lower Appellate Court that the suit is time barred is erroneous?
(2) Whether sale deed executed by Ram Ratti in favour of Keshav Singh for the entire property exceeding half share is valid?
(3) Whether appellant no.1 is entitled to protection of Pardanashin lady?
Heard Learned counsel for the parties and perused the record.
Learned counsel for plaintiff-appellant contended that the findings of first Appellate Court about the suit being barred by time are wrong and incorrect; that the appellant no.1 is an illiterate and ganwar lady of village and is entitled to protection which are available to a Pardanashin lady; that the defendant himself had persuaded the plaintiff no.1 to execute a will deed in respect of the house in suit in favour of her daughter Smt. Bechani and took her to the office of Sub-Registrar for the purpose; that taking undue advantage of the fiduciary relationship, on account of illicit relationship which he had developed with plaintiff no.1 after death of her husband, and taking undue advantage of the illiteracy of plaintiff no.1, the defendant played fraud on her and instead of getting the will deed executed in favour of her daughter, got executed the registered sale deed of the house in suit in his favour, without making payment of any sale consideration to her; that the plaintiff came to know of the fraud for the first time, in the month of January, 1980 when the defendant made a disclosure, upon which she got the inspection made in Sub-Registrar office and obtained copy of sale deed; that in the circumstances the limitation for filing Civil Suit No.330 of 1980 for cancellation of sale deed will commence to run from the date of knowledge i.e., January, 1980, and according to the provisions of Article 59 of Limitation Act, was well within the prescribed period of limitation from the date of knowledge; that there is nothing on record to show that the plaintiffs had any knowledge of sale deed in question from the date of execution of the sale deed or since any time prior to January, 1980; that it is proved from the evidence on record that plaintiff no.2 is daughter of Shyam Lal and after death of Shyam Lal on 18.8.1972 each of the plaintiffs equally inherited ownership of half share each in the house in suit, being widow and daughter, the legal heirs of Shyam Lal deceased; that the concurrent findings of fact with regard to the relationship of mother & daughter between the two plaintiffs, given by the two Courts below has not been questioned in this appeal by filing cross objections under Order XLI Rule 22 C.P.C. or otherwise; that since the plaintiff no.1 had only half share in the house in question she had no right, title or authority to execute sale deed in respect of entire house and was not competent to transfer the entire house including the half share of plaintiff no.2 Smt. Bechani in the house in suit; that in any case the execution of sale deed by plaintiff no.1 exceeding her half share is void ab-initio; that since cancellation of a document which is void ab-initio is not required and the same can be ignored by Court of law, the decree for cancellation of sale deed in respect of half share of Smt. Bechani plaintiff no.2 cannot be refused even if the suit filed by Ram Ratti Devi is held to be barred by time.
The learned counsel for the appellants contended that the first Appellate Court has wrongly relied on the case law laid down by the Apex Court in the case of 1996 ALR 75 or JT 1995 (1) SC 223, Smt. Ramti Devi vs. Union of India the facts of which case are totally different from the facts of this case; that in above case suit for declaration filed; that neither the execution of sale deed in dispute is finding on plaintiff no.2 nor any knowledge of its execution can be imputed on her and though the suit is within time from the date of knowledge but even if it is found to be barred by time, the defendant cannot be benefitted by getting the rights of ownership of entire house or in respect of more than ½ share in house in suit; that the sale deed in respect of ½ share of plaintiff no.2 in the house in suit being void ab-initio, may not be held valid due to law of limitation or otherwise; that under any imagination the plaintiff no.1 was not competent to transfer and the defendant cannot be held to have got more than ½ share in the house in suit.
The learned counsel for appellants has placed reliance on the case law laid down by this Court in the case of Ram Vriksha Son Of Rajbali vs. Assistant Director of Consolidation reported in AWC 2005 (4) 3872 wherein sale deed executed by de-facto guardian of minor without permission of the competent authority was held void ab-initio and the claim filed by minor after attaining the age of majority, was held within time.
Per contra learned counsel for defendant-respondent contended that it is proved from the evidence on record, as has been admitted by P.W.-2 in his statement on oath, that after six months of the execution of the deed, plaintiff no.1 had told her that she had gone to execute the will deed but sale deed was obtained by playing fraud on her; that from the above evidence on record it is proved that the plaintiff no.1 had full knowledge of the sale deed since 1974 and allegations of getting knowledge in the month of January, 1980 are wrong and incorrect; that the sale deed in question is a registered sale deed and it is proved from the evidence on record that the plaintiff no.1 had full knowledge of the sale deed from the date of execution i.e., 1.11.1973 and the prescribed period of three years would commence to run from 1.11.1973 itself; that moreover, plaintiff no.1 as P.W.-1 has stated in her statement on oath that "वसीयत के बजाय बैनामा लिखा लिया इसकी जानकारी ३ -४ साल बाद हुयी" which also shows that the plaintiff no.1 had full knowledge of the sale deed latest within 1976, more than three years prior to filing of suit in April 1980; that the limitation for filing suit for cancellation of sale deed is prescribed to be three years from the date of execution of sale deed under Article 59 of the Limitation Act; that inspite of the undisputed fact that plaintiff no.1 and 2 each had ½ share in the property in suit and plaintiff no.1 was not competent to transfer by executing sale deed in respect of any share exceeding half, in the house in suit since the suit is barred by time, no relief even in respect of half share of plaintiff no.2 can be granted on the ground of sale deed being void ab-initio in respect of her half share.
Upon hearing the counsel for the parties and perusal of record, I find that there is sufficient evidence on record, as has been analyzed by the first Appellate Court which shows that the plaintiff no.1 had knowledge of the execution of impugned sale deed dated 1.11.1973, since before January 1980 execution and the plaintiff no.1 has failed to establish that she acquired the knowledge of the sale deed in dispute in the month of January, 1980. The finding recorded by first Appellate Court that plaintiff no.1 has failed to prove that sale deed was obtained from her on the pretext of will deed in favour of her daughter is also a finding of fact.
The evidence on record shows that according to the P.W.-2 the plaintiff no.1 gained knowledge of impugned sale deed after six months of its execution i.e., in mid 1974 and according to her own statement of plaintiff as P.W.-1 she gained knowledge of execution of impugned sale deed having been obtained by playing fraud on her, three years after the sale deed i.e., some time in 1976, and more than 3 years prior to institution of the suit. It is noteworthy that in view of above evidence on record the averments made in plaint with regard to making of disclosure about the impugned sale deed by defendant respondent in the month of January, 1980 and getting knowledge by obtaining its copy are not correct and appears to have been concocted for bringing the suit for cancellation of sale deed within prescribed period of limitation while she had knowledge of execution of sale deed much prior to January, 1980, if not from the date of execution of sale deed, but certainly since some point of time in 1974 or in 1976 and suit has been filed after a period of more than three years from the date of above knowledge. It is also pertinent to mention that plaintiff appellant no.1 has sought shelter available to pardanasheen lady on account of her being illiterate and ganwar. In this respect I find force in the arguments of respondent that while the plaintiff no.1 herself pleads that she had developed illicit relationship with the defendant, she may not claim benefit of being pardanasheen lady, particularly when she has not pleaded herself to be a pardanasheen lady. It is also pertinent to mention that merely because of being illiterate or ganwar the plaintiff no.1 cannot be considered to be having no knowledge of execution of sale deed at the time of its execution. Apart from the fact that there is presumption of correctness of endorsement made by the Sub Registrar, the evidence on record as well as statement of plaintiff no.2 as P.W.-4, shows that the plaintiff no.1 had earlier executed will in her favour much before the impugned sale deed has also executed warisnama in respect of her agriculture land in her favour after 1 - 1½ years execution of impugned sale deed. In view of above evidence on record the plaintiff no.1 may not be considered to be not conversant with the proceedings of execution of a registered deeds of sale or will. It is also pertinent to mention that in her statement on oath the plaintiff no.1 as P.W.-1 has also stated that at the time of presentation of sale deed before the Sub Registrar some money was kept on her hand which was taken back by defendant, after coming out from the Sub Registrar office, which also strengthens the presumption of correctness of endorsement of registration made by the Sub Registrar.
In view of the discussions made above, I have come to the conclusion that the appellate Court has not committed any mistake or illegality in finding that the suit was barred by time and substantial question nos.1 and 3 are accordingly decided in negative.
The defendant respondent has denied that the plaintiff no.2 is daughter of Shyam Lal and plaintiff no.1 but the above denial appears to have been made by defendant in order to protect his right over half share of plaintiff no.2 in the house in suit in respect of which the sale deed is null and void ab-initio.
There is a concurrent finding of fact by two Courts below and it is fully established from the evidence on record that plaintiff no.2 is daughter of plaintiff no.1 and Shyam Lal deceased and that the house in suit belonged to Shyam Lal which on his death was inherited by plaintiff no.1 being his widow and plaintiff no.2 being his daughter and they became owners to the extent of equal share each, in the house in suit.
The above findings of fact are based on detailed analysis of evidence on record and neither any perversity or manifest error in the above findings has been alleged nor has been shown by the defendant/respondent. I do not find any incorrectness, perversity or manifest error in above findings and in absence of any perversity or manifest error, the above concurrent findings do not require & may not be interfered with by this Court. Moreover the above findings on issue no.3 by trial Court as well as by appellate Court, have not been challenged by the defendant respondent, by filing any objections under Order XLI Rule 22 of the Code of Civil Procedure.
It is settled principle of law that the vendor cannot transfer a title better than himself. From the evidence on record it may not be disputed that the plaintiff no.1 was owner of only half share in the house in suit, so by any imagination she may not be competent to transfer any share exceeding her half share in the house in suit, by way of sale deed or otherwise. Even if she had to execute will in favour of plaintiff no.2, the will could have been valid and effective only in respect of her half share as the rest half share already belonged to plaintiff no.2 herself being daughter of Shyam Lal.
Undisputedly, the sale deed/transfer deed in excess to the share of plaintiff no.1 in the house in suit is null and void ab-inito. Need not to say that if a deed is null and void ab-initio, it is void or zero from the very beginning, does not require cancellation and remain so zero despite not having been cancelled or declared null and void. When a sale deed is null and void ab-initio, the vendee cannot claim any rights and title under such sale deed and no Court of law may recognize transfer of title of the rights and interests to the vender on the basis of such null and void ab-initio sale deed while the vendor was not owner of property sold. A deed void-ab-initio is null and void i.e., zero from the beginning and may not became valid even in absence of its cancellation, as the zero remains zero for ever and even upon multiplying it with largest figure not only it remains zero but also makes & converts such multiplicand into zero.
It is also noteworthy that the disputed sale deed is registered one and so the presumption of correctness of endorsement of Sub-Registrar as well as its knowledge from the date of execution is available only against plaintiff no.1 and the knowledge of impugned sale deed dated 1.11.1973 may not be imputed on plaintiff no.2. In any case even upon dismissal of suit for cancellation of sale deed, being barred by time, the rights and interests of plaintiff no.2 to the extent of her half share in the house in suit may not be denied or adversely affected and cannot be considered to have been acquired by the defendant under the disputed sale deed as well as she may not be deprived of her rights and interests in the house in suit having been inherited from her father.
Since the suit for cancellation of sale deed has been found to be barred by limitation due to prior knowledge of sale deed to plaintiff no.1 and in despite the fact that no knowledge of sale deed can be imputed on plaintiff no.2, it may not be correct to dismiss the suit partly, being time barred in respect of half share of plaintiff no.1 and decree it partly by cancelling the sale deed to the extent of half share of plaintiff no.2 in the house in suit, treating it to be within time. Such piecemeal partition of suit may not be permissible under law.
In view of the settled principles of law and discussions made above, since the plaintiff no.1 was co-sharer only to the extent of ½ share in the house in suit the plaintiff no.2 Smt. Bechani is co-sharer of rest half share by way of inheritance from her father, the plaintiff no.2 may not be deprived of the same on account of execution of impugned sale deed dated 1.11.1973 by her mother plaintiff no.1 and the sale deed in excess of her half share of plaintiff no.1 in the house in suit is null and void-ab-initio. As discussed above the plaintiff no.1 had only half share in the house in suit and was not competent to execute the sale deed in respect of entire house. Legally speaking in case the plaintiff no.2 Smt. Bechani sets up her claim of being co-sharer to the extent of her half share in the house in suit, her rights and title in respect of her half share in the house in suit remains intact and may not be disputed or denied on the basis of impugned sale deed dated 1.11.1973, which is ab-initio i.e., null and void from the very beginning and can be ignored by any Court of law.
I am of the considered view that the sale deed executed by Ramratti in favour of Keshav Singh for the entire house, exceeding her half share, is neither legal nor valid, rather is null and void ab-initio. The substantial question no.2 is therefore decided in negative.
In view of the discussions made above, despite finding the impugned sale deed dated 1.11.1973 to be valid only in respect of ½ share in the house in suit of plaintiff no.1 and void ab-initio in respect of the rest 1/2 share of plaintiff no.2 since the suit is barred by limitation, there is no sufficient ground for setting aside the impugned judgment and decree passed by first Appellate Court in Civil Appeal No.118 of 1991 and connected with Civil Appeal No. 123 of 1991. The appeal is therefore liable to be dismissed.
The second appeal is dismissed accordingly.
The parties shall bear their own costs of all the Courts.
Interim orders, if any, stands discharged.
Let record be sent back to trial court and consigned to record room.
Dated : 25.04.2016 vs