MOHAN LAL Vs. ANANDIBAI

JUDGEMENT

(1.) This appeal by special leave has been filed by Mohan Lal who purchased the property in dispute from the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951. The properties were already mortgaged in favour of the appellant by two earlier mortgage-deeds executed on 23rd March, 1949 and 26th June, 1949 respectively. The plaintiff respondents claimed that the two sale deeds were collusive transactions between Bhiwa and the appellant and that, in any case, Bhiwa had no right to sell these properties to the appellant, as the respondents had become owners of these properties prior to the execution of the sale-deeds. The four plaintiff-respondents are the daughters of Bhiwa by two wives, one of them being Smt. Mendri. According to their case, Bhiwa sold two of his malikmakbuza fields having an area of 11.33 acres by sale-deed Ext. D-31 to his wife Smt. Mendra and to his nephew, Barshya, each of the vendees getting a half share in those fields. Later, Barshya re-conveyed his share to Bhiwa on 20th July, 1921. With regard to the share sold to Smt. Mendra, disputes arose between her and Bhiwa. Bhiwa, consequently, filed a suit in the year 1941 for cancellation of the sale-deed Ext. D-31 and for a declaration that he was the owner of the entire fields. The suit was compromised and a decree was passed giving Smt. Mendra the right of ownership to 1/4th share in those two fields. According to the plaintiff-respondents, this share of Smt. Mendri was gifted by her to the plaintiff-respondents by two gift deeds Exts. P-1 and P-2 dated 3rd October, 1948 and 28th October, 1948. The title to the property to the extent covered by these two gift deeds was claimed by the plaintiff respondents on the basis of those deeds. In addition, a deed of gift Ext. P-3 was executed by Bhiwa himself in favour of the plaintiff-respondents on 2nd May, 1951, and this covered the entire property in respect of which saledeeds were later executed by Bhiwa in favour of the appellant on May 13, 1951. On the basis of this gift-deed, the plaintiff-respondents claimed title to the entire property sold to the appellant by the two sale-deeds, so that claim in respect of part of the property was based on both the gift-deeds executed by Smt. Mendri, as well as the gift-deed, executed by Bhiwa. Since the appellant came into possession under the two sale-deeds, the plaintiff-respondents brought a suit for declaration of their title and possession.

(2.) The trial Court held that the gift-deed Ext. P-3 executed by Bhiwa was fraudulent and, consequently, not binding on the appellant. The gift-deeds Exts. P-1 and P-2 executed by Smt. Mendri were held to be valid. The plea of the plaintiff-respondents that the sale-deeds Exts. D-1 and D-2 in favour of the appellant were not genuine was rejected. In respect of the property gifted by Mendri, the trial Court further recorded the finding that Mendri had not lost her right prior to the execution of the sale-deeds. This finding had to be given, as the appellant relied on the fact that there were proceedings under section 145 of the Code of Criminal Procedure between Bhiwa and Smt. Mendri after the compromise in Bhiwa's suit recognising Mendri's right to 1/4th share in the two fields. In those proceedings, the entire fields were declared to be in possession of Bhiwa and a direction was made by the Magistrate to Mendri to file a suit for getting her 1/4th share partitioned. No such suit was filed within the period of three years as required by Article 47 of the Indian Limitation Act 1908. It was, therefore, urged that Mendri lost her right to the fields, so that the two deeds of gifts executed by her in favour of the plaintiff-respondents could not convey any title to them.

(3.) Against this judgment of the trial Court, an appeal was filed by the plaintiff-respondents, while a cross-objection was filed by the defendant-appellant. The appeal and the cross-objection were heard by the Second Additional District Judge, Bhandara. The appeal by the plaintiff-respondents related to the property in respect of which their claim had been disallowed by the trial Court, while the appellant in the cross-objection challenged the decree in favour of the respondents in respect of 1/4th share of Smt. Mendri. The 2nd Additional District Judge dismissed the appeal of the respondents and allowed the cross-objection of the appellant. The appellant's cross-objection was allowed on the ground that Mendri had lost her right to the property before executing the gift-deeds in favour of the respondents on account of her failure to file a suit for partition or possession within three years after the order of the Magistrate under S. 145 of the Code of Criminal Procedure. The respondent's appeal was dismissed affirming the findings of the trial Court, but on two additional grounds. One ground was that the gift-deed executed by Bhiwa in favour of the plaintiff-respondents was in fact antedated and had been executed after the 13th May, 1951, so that it was fraudulent and was intended to defeat the sale in favour of the appellant. The second ground was that the suit of the plaintiff-respondents was barred by the principle of res judicata in view of an inter-parts judgment in Civil Suit No. 42-A of 1952 which did not exist during the pendency of the suit in the trial Court and was delivered while the appeal was pending in the appellate Court.