KAMLABAI Vs. MOTIRAM

JUDGEMENT

(1.) THE suit out of which this Second Appeal has arisen was instituted by Mst. Gopibai on 21 -4 -1962 against the respondents. She had executed a registered sale -deed dated 28 -10 -1961, which purported to be for a consideration of Rs. 3500, in favour of the respondent -defendant No. 1 Motiram in respect of a house situated in Gwalior town. That sale -deed was signed by the respondents 3 and 4 (defendants 3 and 4, respectively) as attesting witnesses. It was alleged that the sale -deed was without consideration and the defendants got it executed by practising fraud and misrepresentation upon the plaintiff. It was also pleaded that, afterwards, the plaintiff came to know from her brother's son Chandmal that, on the same date, the respondent No. 3 (defendant No. 3) had also executed a document whereby he guaranteed that the house belonged to the vendor Mst. Gopibai, the plaintiff, that the respondent No. 2 (defendant No. 2) had also executed a rent -deed whereby she purported to take the house on lease from the respondent No. 1 (defendant No. 1) after execution of the sale -deed and that an agreement to reconvey the house was also executed by the respondent No. 1 (defendant No. 1) in her (plaintiff's) favour. The plaintiff pleaded that documents were all fraudulent and sham. On these allegations, she claimed a declaration that the sale -deed dated 28 -10 -1961 and those documents were void and inoperative. In the alternative, she prayed that, if she was found to be liable to make any payment, she may be declared to be the owner of the house on payment thereof. To be more exact, it appears to be proper to reproduce the relief clause, contained in the last paragraph of the plaint. It reads as follows. The suit was resisted by the respondents 1, 3 and 4 (defendants 1, 3 and 4, respectively). They denied the plaint allegation that the sale -deed was got executed without consideration by practising fraud and misrepresentation . It was also denied that the agreement of reconveyance executed by the respondent No. 1 (defendant No. 1), the document of guarantee executed by the respondent No. 3 (defendant No. 3) and the rent -deed executed by the respondent No. 2 (defendant No. 2) were fraudulent and sham. According to them, the transactions were all genuine and the plaintiff's case was false and vexatious. The respondent No. 2 (defendant No. 2) did not put in appearance and the suit was proceeded with ex parte against her.

(2.) THE original plaintiff Mst. Gopibai having died during pendency of the suit, the present appellant Kamalabai, who claimed under a will, was substituted as her legal representative. 4 The trial Court negatived the plaint allegations and dismissed the suit with costs. First appeal preferred by the appellant was dismissed. The first appellate Court concurred with the views taken by the trial Court. Being aggrieved, the appellant preferred this second appeal. The learned counsel for the appellant has contended that the alternative relief claimed in the last paragraph of the plaint, already reproduced above, amounts to claim for specific performance of the agreement dated 28 -10 -1961. This contention of the learned counsel is fallacious and ill conceived. Even the existence or validity of the agreement was not admitted in the plaint. That being so, there could be no question of making an alternative claim for specific performance thereof and, in my opinion, there is nothing in the plaint or, in the alternative relief claimed therein to show or suggest that the appellants were, in the alternative, making a claim for specific performance of the agreement. The learned counsel for the appellant has drawn my attention to the facts that, during pendency of the suit, an application dated 2 -1 -1963 for granting that relief was filed on behalf of the plaintiff and a notice dated 18 -10 -1963 (Ex. P -38) was also given on her behalf to the respondent No. 1 demanding specific performance of the agreement dated 28 -10 -1961 and argued that, in view thereof and also in view of the fact that the agreement to reconvey the house was admitted by the respondent No. 1 (defendant No. 1) in his written statement, the appellant is entitled to get a decree against the respondent No. 1 for specific performance thereof. He has placed reliance on decision of their Lordships of the Supreme Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad and others : AIR 1951 SC 177. I have carefully perused the application dated 2 -1 -1963. The relevant portion thereof reads as follows:

(3.) IT is significant that the plaintiff was not admitting her liability to pay Rs. 3500/ - as consideration for obtaining reconveyance of the house and she was not prepared to give up the pleas raised by her in the plaint. She wanted to fight out the suit and, on failure of her pleas, to obtain reconveyance of the house on payment of Rs. 3500/ -. According to the contents of paragraph No. 5 of the application, she expressed her willingness to deposit the amount in Court only if the other party (i. e., the defendant No. 1) expressed his Razamandi but not otherwise. The offer made by her in the application was dearly a conditional one and the conditions advanced by her were not justified. Notice dated 18 -10 -1963 (Ex. P -38) has also been perused by me. That was also conditional, as is dear from the last sentence, which reads as follows. - That is to say, the plaintiff was not prepared to admit the validity of the sale deed, the agreement to reconvey and other documents executed on 28 -10 -1961. The application and the notice could not, in any case, take the place or assume the character of plaint and, despite the application and the notice, the fact remained that specific performance of the agreement was not claimed in the plaint. In the case of Messrs Trojan and Co. v. R. M. N. N. Nagappa Chettiar : AIR 1953 SC 235, no prayer was made to amend the plaint so as to incorporate in it an alternative case, which the plaintiff could have made. Their Lordships of the Supreme Court observed as follows. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." The same principle was stated by their Lordships of the Supreme Court in the case of Firm Shrinivas Ram Kumar (supra) also in the following words.