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Mashkoor Alam v/s Amir Bano


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Second Appeal No. 1036 of 2014

    Decided On, 17 September 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ANIL KUMAR

    For the Appellant: H.M. Srivastava, Neeraj Srivastava, Advocates. For the Respondent: ---------



Judgment Text

1. Heard learned Counsel for the appellants and perused the record. Present appeal has been filed against the judgment and decree dated 7.8.2014 passed by District Judge, Etah allowing the Civil Appeal No. 20 of 2008 filed by defendant-respondent arising out of judgment and decree dated 20.2.2008 passed by Additional Civil Judge (Jr. Div.), Court No. 23, Etah in O.S. No. 515 of 2003 decreeing the suit filed by plaintiffs/appellants.

2. Facts of the present case as taken by the plaintiffs in the plaint are that plot Nos. 544 Ka area 0.498 hectare, 546 Ka area 0.097 hectare and 520 area 0.028 hectare situated in village Ahdad-pur, Pargana Azam Nagar Tehsil Patiyali. District Etah recorded in the name of Manjoor Alam, father of appellants and after death of Sri Manjoor Alam in the year 1989 the aforesaid plots were recorded in the name of applicants who were minor at that time and opposite parties got executed a sale-deed dated 25.11.1987 with respect to two plots No. 544 ka and 546 ka from applicant Nos. 1, 2 and 3 by way of fraud, when the said fact came to their knowledge, they filed a suit being O.S. No. 515 of 2003 for cancellation of sale-deed dated 25.11.1987.

3. The Trial Court after considering oral and documentary evidence available on records vide order dated 20.2.2008 decreed the suit and cancelled the sale-deed dated 25.11.1987, challenged by defendants-respondents by filing Civil Appeal No. 20 of 2008, by order dated 7.8.2014 the Appellate Court had allowed the appeal. Aggrieved by the same, present appeal has been filed on the following substantial question of law.

"Whether in Mohammadan law lady can act as guardian of minor children?

Whether suit filed by explaining the delay which was accepted by Trial Court, Lower Appellate Court without considering the explanation of delay is correct in holding that the suit is barred by time?

Whether a suit for cancellation of void deed there is any limitation?"

4. Learned Counsel for appellants while pressing the matter submits that after the death of father of the appellants Sri Manjoor Alam, a sale-deed dated 25,11.1987 has been executed in favour of the respondents by way of fraud thereby putting signature on blank sheet of papers which were used by defendants/respondents for execution of sale-deed dated 25.11.1987 and when the said fact came to knowledge of appellants-plaintiffs they file suit and after taking into consideration oral and documentary evidence the Trial Court has rightly decreed the suit.

5. He further submits that as per Mohammadan Law mother/lady cannot act as guardian of minor children, so the sale-deed executed by Mst. Lahika Begum being guardian of plaintiffs/appellant Nos. 2 and 3 is wholly illegal and void and the Appellate Court has wrongly allowed the appeal without considering the explanation given in para No. 12 of the plaint on the ground of limitation after taking additional evidence being paper No. 68-C1/8 which is Akarparta 2-K and Akarpatra 41 and without allowing plaintiffs/appellants to file documents in rebuttal relied on them and allowed the appeal, so the same is liable to be set aside.

6. After hearing learned Counsel for appellants and going through the record, the question which is to be considered is whether the suit filed by the plaintiff-appellants for cancellation of the sale-deed dated 25.11.1987 on the ground that the same is forged document executed by their mother who has got no authority is within the period of limitation. Moreover, in this regard, the Trial Court had framed issue No. 6 which is as under:--

7. While deciding and adjudicating the said issue, the Trial Court had given a finding that as the mother of the plaintiffs has got no authority to execute the sale-deed on behalf of the plaintiffs under Mohammadan Law as well as U.P.Z.A. & L.R. Act, so the same is a void document and the limitation for challenging the same is not a legal impediment in the way of the appellants.

8. However, while considering and deciding the said point in issue, Appellate Court reversed the said finding on the basis of material on record as well as evidence given by Mashkor Alam, plaintiff No. 1 that he has knowledge in respect to execution of the said sale-deed, in the month of July, 1988. In spite of the same fact, they did not take any step for cancellation of the same and on 10.9.2003 filed a suit for cancellation, so keeping in view the said fact, the suit for cancellation of sale-deed dated 25.11.1987 is barred by period of limitation. While giving the said finding, the Appellate Court had placed reliance on the judgment given by Apex Court in the case of Prem Singh and Others Vs. Birbal and Others, , as well as in the case of Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale and Others, , in which after placing reliance on the earliest judgment in the rase of Prem Singh (supra), it has been held as under.--

"20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.

21. Respondent 1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.

22. In Ningawwa v. Byrappa this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating: (SCR p. 801 C- D) "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."

In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the appellant therein came to know of the fraud practised on her, the same was void. It was, however, held: (SCR p. 803 B-E) "Article 91 of the Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years' limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the Trial Court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ext. 45 the appellant knew that her husband prevailed upon her to convey Surveys Plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the Trial Court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the Trial Court it is manifest that the suit of the appellant is barred under Article 91 of the Limitation Act so far as Plots No. 407/1 and 409/1 of Tadavalga village are concerned."

27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent 1 has not been able to rebut the said presumption."

9. Reverting to the facts of the present case, it is not in dispute that the sale-deed dated 25.11.1987 has been executed by the mother of the plaintiffs-appellants as well as settled position of law that if any sale-deed has been executed on behalf of a minor then in that circumstances the cancellation of the same shall be filed by the minor within three years after he attains the age of majority or within 12 years from the date of execution of the sale-deed.

10. In the present case, from the material on record, it clearly established that the appellants although were minor at the time of execution of the sale-deed but they have got knowledge in respect to the same in July, 1988, thereafter, they filed a suit for cancellation of the sale-deed on 10.9.2003 that is to say that they have not filed the suit for cancellation of the sale-deed within a period of three years when they have attained the age of majority or within a period of 12 years from the execution of the sale-deed, so the suit file by the plaintiffs-appellants for cancellation of the sale-deed is barred by period of limitation as held by Hon'ble the Supreme Court in the case of Prem Singh (supra), which reads as under:--

"28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the Trial Court."

11. Accordingly, once the sale-deed executed on 25.11.1987 has not been challenged within a period of limitation by the plaintiffs-appellants then in that circumstances the argument advanced by learned Counsel for appellants that their mother Mst. Lahika Begum has got not authority for execution of the sale-deed in view of the Mohammadan Lal U.P.Z.A. & L.R. Act has got no force because the suit is itself barred by the period of limitation and the appellants cannot derive any benefit from the said plea.

12. Thus keeping in view the said facts as well as the arguments which advanced by learned Counsel for the appellant that the substantial question of law as mentioned herein above are to be adjudicated and decided in the present case, has got no force rather they are not substantial question of law in the instant case in view of the law as laid down in the case of Gurdev Kaur and Others Vs. Kaki and Others, , the Hon'ble Apex Court has held as under:--

(1889) ILR 16 753 (Privy Council), observed that a second appeal can lie only, on one or the other grounds specified in the present section.

The Privy Council, in another case Pratap Chunder v. Mohandranath (1890) ILR 17 Calcutta 291 (PC), the limitation as to the power of the Court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an Appellant ought not to be allowed to question the finding of the first Appellate Court upon a matter of fact.

In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of (1891) L.R. 19 I.A. 1 (Privy Council). The Court observed:

"It has now been conclusively settled that the third Court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second Court, if there is evidence to be considered, the decision of the second Court, however unsatisfactory it might be if examined, must stand final."

In the case of Ram Gopal v. Shakshaton (1893) ILR 20 Cal. 93 (PC), the Court emphasized that a Court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the Courts below.

The same principle has been reiterated in Rudra Prasad v. Baij Nath (1893) ILR 15 Allahabad 367. The Court observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily.

Similarly, before amendment in 1976, this Court also had an occasion to examine the scope of section 100 C.P.C. In Deity Pattabhiramaswamy Vs. S. Hanymayya and Others, , the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. This Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under section 100, Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under section 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the First Appellate Court based upon an appreciation of the relevant evidence.

In M. Ratnappa v. M. Bojjappa (1963) SCR 673, the Andhra Pradesh High Court interfered with the finding recorded by the Appellate Court which, in turn, had itself reversed the Trial Court's finding on the same question of fact. While setting aside the decree of the Second Appellate Court, this Court observed:

"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact, but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

It may be pertinent to mention that as early as in 1890 the Judicial Committee of the Privy Council stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add, or enlarge, the grounds specified in section 100 of the Code of Civil Procedure.

The findings reached by the First Appellate Court cannot be interfered with, in second appeal, as no substantial question of law would have flowed out of such a finding. As Lord Hastings observed that "The facility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper decision of all suits, but the Utopian idea, in its attempt to prevent individual injury from a wrong decision, has been productive of general injustice by withholding redress, and general inconvenience, by perpetuating litigation".

13. In Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , the Hon'ble Apex Court for the purposes of determining the issue has held:

"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties."

14. Further in Rajeshwari Vs. Puran Indoria, , it was held:

"The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-qua non for the exercise of jurisdiction under the provisions of section 100 C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence."

15. In AIR 1947 19 (Privy Council), it has been held:

"The Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing.... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."

16. In Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, , it has been held:

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the fac

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ts and circumstances of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 17. In the case of Union of India v. Ibrahim and another in Civil Appeal No. 1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held: "There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the Court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the Court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal." In facts and circumstances and after a careful consideration of arguments of the learned Counsel for appellants, I do not find any error of law in the finding and conclusions recorded by the Appellate Court while passing the judgment and decree dated 7.8.2014 in Civil Appeal No. 20 of 2008 reversing the judgment and decree dated 20.2.2008 passed by Additional Civil Judge (Jr. Div.) Court, No. 23, Etah in O.S. No. 515 of 2003. No substantial question of law arises in the instant appeal. The judgments under challenge cannot be interfered in this appeal in exercise of jurisdiction under section 100 CPC. The second appeal fails and is dismissed.
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