P.S. Narayana, J.@mdashThese two Second Appeals are filed by the unsuccessful defendant Tukulapally Veera Reddy aggrieved by the decree and judgment made in A.S. No. 17 of 1994 on the file of the court of Senior Civil Judge, Siddipet, Medak District, and also the decree and judgment made in A.S. No. 1 of 1995 on the file of the Court of said Senior Civil Judge, Siddipet, Medak District, respectively. The appellant died and the legal representatives were brought on record in both these appeals. Narayana Reddy, second plaintiff in the suit O.S. No. 20 of 1986 on the file of the Court of the District Munsif, Gajwel, is the respondent. It is stated that first plaintiff Sathamma is no more. Both the plaintiffs - Sathamma and Narayana Reddy instituted the suit - O.S. No. 20 of 1986 on the file of the Court of the District Munsif, Gajwel, praying for the reliefs of cancellation of a registered sale deed dated 1-9-1993 u/s 31 of the Specific Relief Act, 1963 (the Act, for brevity) and also for consequential relief of recovery of possession of the suit lands in the event defendant being found in possession thereof and also prayed for the relief of perpetual injunction. The suit was resisted by filing a written statement in detail and the Court of first instance, after settling the issues, re corded the evidence of P.W.s. 1 to 3. D.Ws. 1 to 6, marked Exs. A-1 to A-11 and Exs. 8-1 to B 12 ''A and ultimately came to the conclusion that the registered sale deed No. 1806 dated 1 9 1983 be cancelled, which shall be communicated to the Sub-Registrar, Gajwel, for noting the cancellation on the said registered document, but however, recorded a finding that second plaintiff is not entitled to any relief since he failed to prove that he is legal heir of first plaintiff and the parties were directed to bear their own costs. Aggrieved by the same, second plaintiff car ried the matter by way of appeal - A. S. No. 17 of 1994 on the file of the Court of the Senior Civil Judge, Siddipet, Gajwel, and the defendant aggrieved by the decree relating to the cancellation also preferred A. S. No. 1 of 1995 on the file of the Court of said Senior Civil Judge, Siddipet, Medak District. The lower appellate Court by a common judgment, after recording reasons, allowed the appeal - A.S. No. 17 of 1994 and dismissed the appeal - A.S. No. 1 of 1995 and the parties were directed to bear their own costs throughout. Aggrieved by the said judgments and decrees, the present two Second Appeals had been preferred. As referred to supra, the original defendant/appellant died. The legal representatives were brought on record and at present the said legal representative* are further prosecuting the Second Appeals.
2. Sri. V.V. Narasimha Rao, the learned Counsel representing the appellants had taken this Court through, the findings recorded by the Court of first instance and also the findings recorded by the lower appellate Court and would point out that ground Nos. 4, 5, 6, 8, 10, 13, 16, 17, 18, 24, 25. 27 and 30 are the substantial questions of law to be considered In these Second Appeals. The learned Counsel also, while elaborating his submissions, would maintain that the adoption in question is not proved in accordance with law and when clear findings had been recorded by the Court of first instance, the lower appellate Court, without properly adverting to the respective contentions of the parties and without recording appropriate findings, had reversed such findings recorded by the Court of first instance and hence such findings are unsustainable. The learned Counsel also pointed out relating to the entries in the revenue records, which are left undisturbed at this stage and the appellants continuing in possession of the properties in question. The learned Counsel also would maintain that in the absence of any acceptable evidence relating to the plea of adoption and also in the absence of any other evidence to the effect that respondent/second plaintiff succeeded to the interest of first plaintiff after the death of first plaintiff, he (respondent/second plaintiff) has no locus standi at all at present to question the validity of the sale deed in question and the relief of cancellation definitely cannot be granted in favour of such person who has no locus standi to question said transaction. While further elaborating his submissions, the learned Counsel also pointed out to the relevant portions of the findings recorded by the Court of first instance and also the relevant findings recorded by the lower appellate Court". Further the learned Counsel would contend that it is not as though the said Ram Reddy, husband of first plaintiff, died even by the date of the sale deed in controversy but the death is subsequent: thereto and though acceptable evidence had been placed before the Court, this aspect had not been considered in proper perspective. At any rate, the learned Counsel would submit that when valid adoption is not proved in accordance with law irrespective of the other questions involved, the respondent in these Second Appeals i.e. second plaintiff be non suited and the suit be dismissed and the Second appeals are liable to be allowed. The learned Counsel also placed reliance on certain decisions to substantiate his contentions.
3. Per contra, Sri Rajamalla Reddy. the learned Counsel representing the respondent, in both these appeals, would maintain that in the light of the peculiar facts and circumstances, there is no substantial question of law involved at all for the reason that the property in question belonged to first plaintiff only and the episode relating to adoption is very clear even if the adoption ceremony during the childhood to be disbelieved for any reason that first plaintiff herself executed Ex.A-3 the registered adoption deed and by virtue of the same, the presumption u/s 16 of the Hindu Adoptions and Maintenance Act, 1956 (the Maintenance Act, for brevity) would he. available. The learned Counsel also would maintain that Section 8 of the Maintenance Act deals with the capacity of a female Hindu to take in adoption and since Ex. A-3 was executed by first plaintiff after the death of her husband only, that too in relation to her own property, the adoption as such cannot be doubted in any manner whatsoever. Since the concept of adoption is more concerned with the diversion of natural course of succession, first plaintiff as a person interested in her own properties might have thought of executing Ex. A-3 and thus the original adoption made by both husband and wife had been in a way confirmed and further strengthened Ex.A-3. The learned Counsel also pointed out to the relevant portions of the findings recorded by the lower appellate Court and would maintain that in the facts and circumstances, the lower appellate Court arrived at the correct conclusion. While further elaborating the submissions, the learned Counsel also pointed out to the scope and ambit of Section 31 of the Act and further placed strong reliance on certain decisions to substantiate his submissions.
4. Heard the learned Counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the findings recorded by the lower appellate Court.
5. The following substantial questions of law would arise for consideration in these Second Appeals.
1. The lower Appellate Court erred in holding that the second plaintiff was taken in adoption as per custom even prior to A3 itself when the 2nd plaintiff was aged 2 years without any evidence whatsoever to prove either the custom or the fact of adoption when the 2nd plaintiff was two years old.
2. The lower Appellate Court erred in Invoking the presumption u/s 16 of the Hindu Adoptions and Maintenance Act in favour of the 2nd plaintiff, under the facts and circumstances of this case.
3. The lower Appellate Court ought to have seen that the plaintiffs have to stand or fall on the strength of their own case as established by the evidence led by them but not on the weakness of the defendants case.
4. The lower Appellate Court ought to have seen that it has absolutely no jurisdiction to grant relief of possession not even asked for by the plaintiffs in the year 1988 when the plaintiffs were admittedly out of possession as long back as from September, 1983.
5. The lower Courts ought to have seen that this is not a case covered by Section 31 of Specific Relief Act, and the suit is not maintainable at law.
6. The lower Court ought to have seen that Ex.A10 an original Application said to have been filed before the Superintendent of Police, Medak does not come from proper custody inasmuch as if such an Application was given to Superintendent of Police, Medak, it must be in the custody of the office of Superintendent of Police, Medak but not in the custody of the plaintiff or P.W. 2.
7. The Courts below ought to have seen that Ex.A11 is not proved as neither the original of General Diary was produced nor the person who made that entry in the General Diary was examined.
8. The finding of the lower Courts that late Ram Reddy died on 27-8-1983 is based on no evidence. Therefore the finding of lower Court that Ex. B1 could not have been executed by late Sri Ram Reddy on 1-9-1983 is equally based on no evidence.
9. Admittedly neither of the plaintiffs were the executor or party to Ex. B1 and none of them asked for any declaration of their title to suit property apart from asking for simple relief of cancellation of Registered Sale Deed dated 1-9-1983 executed by late Sri Ram Reddy in favour of the defendant (Appellant). In those circumstances the suit of the plaintiff ought to have been dismissed in toto by the both the Courts below.
10. The Lower Courts ought to have seen that to the knowledge of plaintiffs the record of rights maintained under the provisions of A.P. Record of Rights in Land Act, 1971 were mutated in respect of the suit property and also a pattedari passbook was also issued in favour of the defendant, in spite of which no relief is sought for as provided u/s 8(2) of the A.P. Record of Rights in Land Act. When once they stand unchallenged, the entries made therein shall be presumed to be true u/s 6 as well as 6-A(3) of the said Act.
11. It is to the knowledge of the plaintiffs that the Record of Rights are in favour of the defendant with respect to suit property, in spite of which they have not perused the remedies provided under the A.P. Record of Rights in Land Act. When once those entries remain, the defendant is presumed to be the rightful possession of suit schedule property as an owner.
12. The lower Appellate Court did not apply its mind to the correctness of the finding of the trial Court on issue No. 1, though the defendant specifically filed an Appeal (A.S. 1 of 1995) against that finding and that part of the decree.
13. The lower Courts ought to have seen that but for execution of Ex.B1 by late Sri Ram Reddy, the defendant could not have come into possession of the property covered by it. The facts of not only mutation in Revenue records but also delivery of possession to the defendant by late Sri Ram Reddy of the properties covered by Ex. B1 positively proved that Ex.B1 is a genuine document executed by late Sri Ram Reddy.
6. For the purpose of convenience the parts hereinafter would be referred to as second plaintiff and the defendant as shown in O.S. No. 20 of 1986 on the file of the District Munsif, Gajwel.
7. It was pleaded in the plaint as here-under:
The plaintiff No. 1 is the adoptive mother of the plaintiff No. 2. The plaintiff No. 1 and her husband late Sri Ram Reddy had no issues. So they adopted the plaintiff No. 2 when he was a child of two years, as per the custom prevalent. The husband of plaintiff No. 1 died on 27-8-1983 at Vargal village leaving behind the plaintiffs as his only heirs. The agricultural lands and portion of residential house and the land in Sy. No. 1510 at Vargal owned and possessed by said Ram Reddy devolved on the plaintiffs and they have been in possession and enjoyment thereof. The plaintiff No. 2 is the natural born son of the 1st plaintiffs brother Raja Reddy. The husband of the plaintiff No. 1 was the Illatom son-in-law of late Narayan Reddy the father of the 1st plaintiff. The lands and a residential portion of the house were allotted to said Ram Reddy in partition among said Narayan Reddy, his two sons and Ram Reddy having been affiliated to their family as Illatom son-in-law. The defendant is the son of another younger brother of the 1st plaintiff late Sri Malla Reddy. The defendant was enimically disposed of towards the husband of the 1st plaintiff. He harassed the husband of the 1st plaintiff and also his junior paternal uncle the next friend of plaintiff No. 2 out of ill will and malice. It appears the defendant brought a bogus sale deed registered on 1st September, 1983 at Gajwel in his favour in respect of the lands as if deceased Ram Reddy executed. The said sale deed is rank forgery on the face of it as Ram Reddy was not alive on 1st September, 1983. The said sale deed is brought into being, by the defendant with dishonest intention to lay a false claim and grab the suit lands. The said sale deed is bogus, void, devoid of consideration and unaccompanied by delivery of possession. The sale deed is left outstanding, will cast cloud on plaintiff title to the suit lands, and the defendant will make use of it as mischievous weapon to create troubles, may be vexatiously and injuriously used by him against the plaintiffs. It appears that the defendant has also clandestinely and illegally got the patta of the suit lands mutated in his name in the revenue records. The plaintiff No. 1 on rumours in the village, got the enquiries made and came to know about the said sale deed and mutation about 8 months back and she also obtained a certified copy of sale deed in July, 1985 through the next friend of the 2nd plaintiff. Since she had been suffering from malignance disease of cancer and being worried of her health has been unable to attend the Court earlier. On the pretext of said forged sale deed and false entries of mutation, the defendant is trying to interfere unlawfully with plaintiff possession and usurp the suit lands from them. The suit lands and the lands of the next friend of the 2nd plaintiff were being jointly cultivated and the joint cultivation is continued even after the death of the husband of 1st plaintiff. As the plaintiff No. 1 became apprehensive of the wicked motives of the defendant and in order to safeguard the interest of the 2nd plaintiff, she executed a deed of adoption on 14-2-1986 and got registered at Gajwel as there was also no record of adoption. The plaintiffs are thus constrained to bring the suit seeking cancellation of the instrument of sale dated 1st September, 1983 in respect of lands held by said Ram Reddy, with inaccurate boundaries, and also for relief of perpetual injunction. The cause of action for the suit and the cause of action for the suit arose on 1st September, 1983 at Gajwel when the defendant brought the forged sale deed into existence by impersonation and finally on 28-2-1986 when the defendant obstructed in agricultural operation of the plaintiffs at Vargal. The suit lands are situated within the limits of the Sub-Registrar Office at Gajwel and the District Registrar Office at Sangareddy. The plaintiffs value the relief of cancellation of sale deed dated 1st September, 1983 u/s 37 of the Andhra Pradesh Court-fees and Suit Valuation Act and pay ad valorem Court fee of Rs. 786/- on Rs. 10,000/- the value mentioned in the sale deed sought to be cancelled now. They also pay an ad valorem court-fee Rs. 56/- on relief injunction valued at Rs. 500/- u/s 26(c) of the said Act. Hence prays to pass a decree for cancellation of registered sale deed with document No. 1806 of 1983, dated 1st September, 1983 registered in Sub-Registrar Office at Gajwel in the name of the defendant in respect of the suit land and to pass decree for perpetual injunction restraining the defendant, his agents, servants and any other person on his behalf from interfering in plaintiffs possession and enjoyment of the suit lands Acs. 1-14 guntasin Sy. No. 1520, Acres 0-01 guntas in Sy. No. 1521, Acres 1-34 guntas in Sy. No. 1522, Acres 0-33 1/2 guntas in Sy. No. 1458 and Acres 1-15 1/2 gunas in Sy. No. 1459 situated at Vargal village, Vargal Revenue Mandal, Medak District and for costs of the suit.
8. The same was resisted by filing a written -statement by the defendant and it was pleaded in the written statement as here-under:
The averments of para No. 1 of the plaint are true and correct except the age of the plaintiff No. 1. The plaintiff No. 1 is aged 55 years at the time of her death. That father''s name of the plaintiff No. 2 is wrongly shown as Ram Reddy. The averments of para No. 3 of the plaint, it is not true that the plaintiff No. 1 is the adoptive mother of the plaintiff No. 2. It is true and correct that the plaintiff No. 1 and her husband had no issues. It is false to say that plaintiff No. 1 and her husband have adopted the plaintiff No. 2 when he was a child of 2 years as per the customs. The averments of para No. 4 of the plaint are wrong and denied. It is false to say that the husband of the plaintiff No. 1 died on 27-6-1983. In fact, the husband of the plaintiff No. 1 by name Masanreddipally Ramreddy, s/o Ram Reddy, died on 16-9-1983. The averments of para No. 5 of the plaint, it is false to say that the suit schedule agricultural lands and Sy. No. 1510 and house owned and possessed by said Ram Reddy devolved on the plaintiffs and they have been in possession and enjoyment thereof. The averments of para No. 6 of the plaint are true and correct and also para No. 7 are true and correct. The averments of para No. 9 of the plaint are utterly false and incorrect. The said Ram Reddy was very affectionate with the defendant. The defendant was helping the husband of the plaintiff No. 1, in day-to-day of his agricultural affairs. The averments of para No. 10 of the plaint are wrong and denied. It is false to say that the defendant brought a bogus sale deed dated 1 -9-1983 in his favour in respect of suit schedule lands. It is false to say that said sale deed is forged. It is false to say that Ram Reddy was not alive on the date of the sale deed. The averments of para No. 11 of the plaint are false and incorrect. It is false to say that the sale deed is brought into existence by the defendant with dishonest intention to lay a false claim and grab the suit land. It is false to say that the sale deed in bogus, void, devoid of consideration and unaccompanied by delivery of possession. It is also false to allege that the sale deed if left outstanding will cast a cloud on the title of the plaintiff. The averments of para No. 12 of the plaint are wrong and denied. It is false to say that the defendant has clandestinely got the patta mutated. On the contrary the name of the defendant was mutated in the revenue records by following the requisite procedure envisaged under the law. The averments of para No. 13 of the plaint are wrong and denied in toto. It is false to say that the plaintiff No. 1 on rumours in the village got the enquiries made and come to know about the said sale deed. It is false that the plaintiff No. 1 has been suffering from malagnance of disease of cancer and she died by the time and date of presentation of plaint in the Court. The averments of para No. 14 of the plaint are wrong and denied. The averments of para No. 15 of the plaint are wrong and denied. It is false to say that Raja Reddy and the plaintiff No. were jointly cultivating the suit, lands even after the death of Ram Reddy. The averments of para No. 16 of plaint are wrong and denied. The so-called adoption deed dated 14-2-1986 alleged to have been executed by Plaintiff No. 1 in favour of the plaintiff No. 2 is not valid and against the law. The averments of paras No. 17 and 18 are wrong and denied and the averments of paras No. 19 and 20 of the plaint are formal. That the suit is not tenable in eye of law, because plaintiff No. 1 has not signed the plaint as she died by the time and date of presentation of the plaint. That on 16-9-1983 the husband of the plaintiff No. 1 died without leaving the suit schedule properties. Suit schedule lands are not devolved upon the plaintiff No. 1. The plaintiff No. 2 was not taken in adoption by the said Ram Reddy, therefore even if the plaintiff No. 1 executed any adoption deed in favour of the plaintiff No. 2 it does not confer any right over the suit properties. That originally Narayana Reddy was the owner of the lands and houses, he had Raja Reddy, Malla Reddy, Satyamma the sons and daughter. The suit schedule lands fell to the share of Ram Reddy husband of Satyamma in a partition effected before the Court. Said Satyamma was not given any share more over her husband was allotted the suit schedule lands. The defendant is the son of Malla Reddy, the paternal Junior uncle of the defendant by name Raja Reddy, who is the father of plaintiff No. 2 bent upon to harass the defendant, he got filed several criminal cases against the defendant through police and at last got filed a dacoity case, all were ended in acquittal. He has also filed a suit for perpetual injunction against the defendant herein in respect of lands fell to the share of Narayana Reddy. Now with a view to grab the suit land has brought the instant suit in one of such series. He further averred that said Ram Reddy was very kind and affectionate to the defendant and was having cordial relation with the defendant. The said Ram Reddy was suffering from ailment and he could suspect that he could live no more. The plaintiff No. 1 and Ram Reddy approached the defendant to sell the suit lands, accordingly the said Ram Reddy has sold the suit lands to the defendant for a consideration of Rs. 10,000/- and delivered the possession of land to the defendant, under the registered sale deed No. 1806/83, Dt. 1-9-1983 and put the defendant in possession, the said Ram Reddy died on 16-9-1983. The said transaction was done with the knowledge of the plaintiff No. 1. The defendant got his name mutated in the Revenue Records. The mutation proceedings were taken with the consent of the plaintiff No. 1. That after lapse of some time the father of the plaintiff No. 2 threatened the plaintiff No. 1 and got executed adopted deed. On that date of the said execution of said deed she was not keeping a good health and she was not capable of being understand the affairs. She was not having disposing state of mind. Hence the alleged adoption deed will have no efficacy in law. The sale deed executed by Ram Reddy in favour of the Defendant in respect of suit lands is valid, perfect and binding on the plaintiff Nos. 1 and 2. That the suit is barred by limitation. And the instant suit is false and vexatious. The defendant prays the Court to dismiss the suit with costs.
9. On the strength of the pleadings, the following issues were settled:
1. Whether the sale deed No. 1806 dated 1-9-1983 executed by Ram Reddy the husband of the plaintiff No. 1 in respect of the suit lands in favour of the defendant is liable to be cancelled?
2. Whether the plaintiffs are entitled for the injunction sought for?
3. Whether the Court Fee paid is correct and sufficient?
4. To what relief the parties are entitled to?
10. No doubt there is some discussion relating to the amendment of issues or recasting of issues by the Court of first instance. This aspect to doubt does not seriously alter the situation. The principal stand taken by the plaintiffs is that the registered sale deed dated 1-9-1983 said to have been executed by Ram Reddy, husband of first plaintiff, in respect of the suit lands is a fabricated document, which was brought into existence by impersonation and the specific stand is that the said Ram Reddy actually died on 27-8-1983, but the contention of the defendant is that the said Ram Reddy died on 16-9-1983. In support of the contention of the plaintiffs, Ex. A-2 -- death certificate dated 12-12-1983 issued by the Mandal Revenue Officer, Vargal, had been produced which shows that Ram Reddy died on 27-8-1983. The defendant produced Ex. B-8 - death certificate dated 23-7-1984 issued by the Mandal Revenue Inspector, Vargal, in which it is shown that Ram Reddy died on 16-9-1983. Thus there are two death certificates filed by both the parties in relation to the death of said Ram Reddy. The Court of first instance recorded certain reasons and apart from Ex. A-2 and Ex. B-8, the oral evidence and other documentary evidence also had been appreciated and came to the conclusion that Ex. A-2 is the authenticated document and Ex.B-8 cannot be said to be authenticated document and thus a finding had been recorded that death of Ram Reddy was on 27-8-1983. However, on the aspect of adoption, the Court of first instance recorded certain reasons but came to the conclusion that second plaintiff was unable to establish that he was the legal heir of first plaintiff and hence negatived the relief. Aggrieved by the same as already aforesaid two appeals had been preferred - A.S. No. 17 of 1994 and A.S. No. 1 of 1995 on the file of the Court of Senior Civil Judge, Siddipet, Medak District, and the lower appellate Court allowed A.S. No. 17 of 1994 and dismissed A.S. No. 1 of 1995. This as aforesaid the factum of death of Ram Reddy is concerned, concurrent findings had been recorded by both the Court of first instance and also the lower appellate Court. It is also pertinent to note that these findings had been recorded on appreciation of the oral and documentary evidence - P.Ws. 1 to 3, D.Ws. 1 to 6, Exs. A-1 to A-11 and Exs. B-1 to B-12''A''. Hence in these Second Appeals, this Court is not inclined to disturb the said findings relating to the date of the death of Ram Reddy. It is needless to say that when the finding relating to the date of the death of Ram Reddy is not to be disturbed equally the finding relating to the cancellation of the sale deed cannot be disturbed and the same were hereby confirmed.
11. Section 31 of the Specific Relief Act, 1963, reads as under:
31. When cancellation may be ordered:- (1) Any person against whom a written instrument if void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
12. In Vellayya Konar v. Ramaswami Kdnar AIR 1939 Madras 894, it was held that there is a difference between a suit for the cancellation of an instrument and a suit for a declaration that the instrument is not binding upon the plaintiff. When plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for a declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore, in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed.
13. In
14. While explaining requisite conditions be satisfied for cancellation of an instrument u/s 31 of the Act, in
Section 31(1) of the Specific Relief Act is in these terms:
31(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
It is clear from a reading of Section 31(1) that a suit for cancellation of a written document can lie only at the instance of a person against whom the instrument is void or voidable and secondly who has a reasonable apprehension that such instrument, if left outstanding, will cause him serious injury. I am of opinion that this is not a case in which it can be said that the sale deed impugned by the respondents was void or voidable against them. The question whether an instrument can be said to be void or voidable against a person claiming relief under the aforesaid provision came to be considered by a Full Bench of the Madras High Court in the case of the
...It stands to reason that the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasizes that principle. For there can be no apprehension if a mere third party, asserting a hostile title creates a document. Thus relief u/s 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.
Proceeding with the discussion their Lordships pointed out the example of a trespasser purporting to convey the property in his own right and not in the right of the owner. In such a case to my mind agreeing with respect with their Lordships of the Madras High Court, the remedy of cancellation of such an instrument cannot be granted because such a relief would not remove the cloud upon his title by the instrument and the proper remedy to seek is a declaration of his own title or a declaration that the sale deed is not binding or valid against him. It is only in the case of instruments which are either executed by a party or which purport to have been executed by a party or by a person who can bind him that the relief u/s 31(1) can be claimed in law because in such cases only can it be said, as observed by the Madras High Court also in the said case, "that there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger". They went on further to illustrate the point by observing that such cases may arise in the following circumstances : "A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of a limited estate, in respect of a document executed by the benamidar etc." Courts have also recognised in this respect the right to challenge and to pray for cancellation of a forged document which is purported to have been executed on his behalf. In all these cases there is no question of a document by a stranger to the title as in the present case and it can further be found that in all such cases a reasonable apprehension can be entertained that if such an instrument is left outstanding the same may cause the plaintiff serious injury. In the present case it cannot be successfully maintained that a reasonable apprehension can be entertained by the plaintiffs that if the sale deed is left outstanding it may cast a cloud upon their title or cause them serious injury because the cloud upon their title will not be removed merely by a decree for cancellation of the instrument. The cloud will continue to hang over the plaintiffs by the hostile assertion of title by the executant of the sale deed and those who claim a title to it. Therefore, the proper relief for the plaintiffs to seek in a case of this kind is a declaration of their own title or a declaration that the executant of the sale deed in dispute has no title to the property.
The lower appellate Court appears to have awarded a decree for cancellation of the sale deed on the sole ground that the respondents had an interest in the property. In the first place, the mere fact that they were in possession of property as found by the two Courts below, did not amount in law to their having an interest in the property in the sense of some title or right in the property. Possessory title may avail a person for securing a decree for possession against a rank trespasser on the principle that he is in the eyes of the Court at least in possession of the property when the trespasser had no right to dispossess him and to deprive him of possession. A decree for possession on the basis of possessory title is, therefore, awarded on the principle that even the right of a person in possession of the property irrespective of whether he has any legal right or interest also must be safeguarded against a rank trespasser or intruder. But possession in itself or for that matter a possessory title does not, to my mind, entitle a person to a decree for cancellation of a written instrument u/s 31(1) unless all the three ingredients of Section 31 are established, namely (1) that the plaintiff was such a person against whom the instrument was void or voidable.; (2) that the plaintiff could entertain a reasonable apprehension that if such instrument is left outstanding, it may cause him serious injury, and (3) that the Court must adjudge the instrument void or voidable.
In the present case the lower appellate Court did not adjudge the sale deed to be either void or voidable against the plaintiffs. Without such an adjudication against the plaintiff-respondents a decree was not possible quite apart from the consideration that this was for reasons above stated not a case where a reasonable apprehension could be entertained by the plaintiffs that if the instrument was left outstanding, it may cause him serious injury. It is for these reasons in the main that, the decree for cancellation could not be given to the respondents u/s 31 of the Specific Relief Act on the basis merely of their possession over the property despite the finding of the Courts below that they are in possession of the property. The case of the Calcutta High Court, on which the lower appellate Court placed reliance, did not apply. The sale deed sought to be cancelled in that case was a certain Kobala. The sale deed was challenged on the ground that it was a forgery. The plaintiffs suit in that case for cancellation of the instrument was not by stranger to the title as here. Secondly, it was found by the Court as a fact that even after the execution of the deed the plaintiff had still some interest left in the land. It is in this sense that their Lordships of the Calcutta High Court observed that he had a cause of action. It will be noticed that no question arose in that case as to whether a decree for cancellation of an instrument could be granted on mere possessory title. I am, therefore, of opinion for the aforesaid reasons that the lower appellate Court was in error in affirming the judgment and decree of the trial Court. The respondents having failed to establish their title to the disputed land a decree for cancellation of the sale deed dated 12-9-1963 could not be granted to them.
15. Reliance was also placed on the decision of a Division Bench in
16. In relation to the conditions to be satisfied in a suit u/s 31 of the Act, in
The relief as to delivery and cancellation of an instrument is founded upon the administration of the protective justice for fear that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff or it may throw a cloud or suspicion over his title or interest. A plaintiff in a suit u/s 31 of the Act has to establish three conditions:
(1) that the plaintiff is such a person against whom the instrument is void or voidable.
(2) that the plaintiff can entertain a reasonable apprehension that if such an instrument is left outstanding it may cause him serious injury.
(3) that the Court must adjudge the instrument void or voidable.
17. Reliance also was placed on the decisions in Simon Christopher v. Alfred Christy AIR 1939 PC 138,
18. There cannot be any doubt or controversy that in the facts and circumstances of the case when the rights of first plaintiff and second plaintiff are affected by virtue of the alleged sale transaction and when the husband of first plaintiff was no more on the date of the alleged execution of the registered sale deed, such document definitely can be avoided and inasmuch as the conditions specified u/s 31 of the Act had been satisfied the decree for cancellation made in this regard be confirmed.
19. The crucial question which had been argued in elaboration is in relation to the validity of adoption and the locus standi of the person i.e., second plaintiff to continue the litigation.
20. Ex. A-3 is the original registered adoption deed dated 11-2-1986. It is needless to say that this document was executed long after the death of Ram Reddy. It is also not in serious controversy that the subject-matter of the suit i.e., the properties in controversy belonged to the family of first plain-tiff-Sathamma. Had it been the case of the defendant that these properties belonged to the family of Ram Reddy, may be that certain further questions may have to be answered. Here is a case where first plaintiff, the wife of deceased Ram Reddy, after the death of Ram Reddy, executed Ex. A-3. It is also brought to the notice of this Court that in the written statement of the defendant also the specific plea had been taken that by coercion Ex. A-3 was brought into existence. It is a registered document. When a plea of coercion is raised, the burden is on such party to establish the same. Even otherwise the presumption is available in favour of adoption in view of Section 16 of the Maintenance Act. Further by virtue of Section 8 of the Maintenance Act, a female Hindu has capacity to take in adoption provided the conditions specified thereunder are satisfied. There is evidence of P.Ws. 1 to 3. Apart from Ex. A-3, Exs. A-4 to A-l 1 also had been relied upon. There appears to be some serious controversy between the parties and there appears to be some scramble for possession as well. May be that the defendant was not much interested in this adoption episode. However, taking into consideration the fact that these properties in controversy belonged to the family of first plaintiff, when first plaintiff confirmed the adoption by executing Ex. A-3, the said adoption cannot be doubted on the ground that the adoption ceremonies etc. when the adoption was taken by both the husband and wife had not been established. This Court is of the opinion that it would be a futile exercise in the light of Ex. A-3 and also in the light of the fact that these properties belonged to the family of first plaintiff and not that of the family of her deceased husband Ram Reddy. The lower appellate Court appreciated the oral and documentary evidence in elaboration, recorded findings and arrived at a conclusion that since the adoption also had been established, second plaintiff is bound to succeed. When that being so, it cannot be said that second plaintiff has no locus standi to further prosecute the litigation since an adopted son of the deceased mother - first plaintiff is entitled to continue the litigation.
21. Reliance was also placed on the decision in
The second circumstance is found to be true. The plaintiff performed the last rites and obsequies of the deceased. Defendant No. 1 admitted this, but explained it as a forcible act of plaintiff. Such an explanation is found to be lacking in probability. The wife or a lady in the family doing such religious rights in a Hindu family is never known either in custom or practice. The plaintiff being the son of the uterine brother of the deceased has rightly performed such duties both in fact and as per such well known practices. Ex. A-2 photo which is not disputed bears testimony to such a circumstance. P.W. 3 who officiated as a Priest for such last rites admits that if a man has no issues, his brother''s son can perform such obsequies and death ceremonies. The law is settled by the Supreme Court in
22. Further reliance was also placed on the decision in
23. There cannot be any quarrel relating to The propositions laid down in the decisions relied on supra, but when the evidence is clear relating to the factum of adoption, the same cannot be negatived on the grounds raised by the appellants. Accordingly the findings recorded by first appellate Court are hereby confirmed and the Second Appeals are hereby dismissed. No doubt the parties have been fighting this litigation for sufficiently long time, but in view of the fact that the defendant is no more and the legal representatives are prosecuting the litigation, the parties to bear their own costs.
