P L D 1966 (W (PLP)

WAHIDUDDIN AHMAD, J.‑

This Letters Patent Appeal is from the judgment of a learned Single Judge, on the original side of this Court, in Suit No. 116/1957, dated 16th May, 1960. By this judgment the defendant was granted a decree for declara tion that she is the owner of undivided eight annas share of plot bearing No. 195/2,4, Garden East, Karachi, minus seventy square yards. This judgment will dispose of the appeal and the Cross objections filed by both the parties.

2. The dispute between the parties is in respect of undivided eight annas share in the plot bearing S. No. 195/2 (A), Garden East, Karachi. Formerly, this plot was a part and parcel of a bigger plot No. 195, which belonged to Sachoo Asar, who died in the year 1895. Sachoo Asar was survived by four sons, namely, Moosa, Meherally, Rajabali and Ladak. Later on Plot No. 195 was divided into two Plots Nos. 195/1 and 195/2. Plot No. 195/1 was resumed by the Karachi Municipal Corporation. In Plot No. 195/2, four brothers had four annas share each. On 18th June, 1940, Plot No. 195/2 was divided into five sub divisions, i.e., 195/2‑(A) to 195/2 (E). The dispute between the parties as stated earlier is about Plot No. 195/2 (A) which fell to the share of Moosa, appellant, and Mst. Shirinbai respondent.

3. In the above‑mentioned suit the respondent claimed that on 29th January, 1931, Meherally Sachoo orally gifted his four annas share in Plot No. 195/2 to her, his second wife, and to Ghulam. Hussain, the appellant, a son from his predeceased wife. Her case is that she got three annas share out of four annas spar: of the deceased and the remaining one annas share was gifted to the appellant by the deceased. She alleged that on 14th April, 1942, appellant mortgaged his two annas share in Plot No. 195/2 (A) and one annas share in Plot No. 195/2 (B) with her under a registered mortgage deed. She further alleged that on 22nd June, 1942, appellant sold his two annas share in Plot No. 195/2 (A) by a registered sale‑deed Exh.

10. In this way the respondent alleged that the appellant thereupon ceased to have any interest in the Plot in dispute except 70 square yards which she gifted to him for purposes of his personal residence by gift deed (Exh. 11) registered on 22nd June, 1944. In this way the respondent claimed to be the exclusive owner of four annas share of Meherally Sachoo in the above‑mentioned plot of land.

4. In this connection respondent alleged that in spite of this on 3rd June, 1953, appellant dishonestly made an application to the City Deputy Collector claiming four annas share in the eight annas undivided share in the plot in dispute, which was dismissed on 12th August, 1953. On 4th September, 1954, the Collector on appeal vide Exh. 16 allowed his claim on the basis of a partition decree in Suit No. 83/1937. This order was upheld by the Commissioner of Karachi on 28th May, 1956, and accordingly the Revenue Record was changed. The respondent challenged these orders in the above‑mentioned suit by seeking a declaration that the entire eight annas share in the undivided plot in dispute belonged to her.

5. The suit was resisted by the appellant. He denied the claim of the respondent and claimed that he was a co‑sharer in the undivided eight annas share to the extent of four annas under the oral gift of 1931. In defence he raised certain legal objections about the maintainability of the suit namely that it was barred under section 42 of the Specific Relief Act and .by Limitation and that ad valorem Court‑fee on the value of the property should have been paid. On facts, he pleaded that the deceased Meherally. Sachoo gifted his share in Plot No. 195/2 (A) in equal shares to the parties and not in the ratio of 3:

1. He did not deny the subdivision of the Plot into five plots but denied that his share in Plot No. 195/2 (A) was two annas and in 195/2 (B) was one anna. He alleged that only a fraction of his share was mortgaged by him in 1942 and the sale in the year 1944 too was only in respect of a fraction of his share in the plot in dispute. He contended that he had sold only two annas share out of four annas share in the property in dispute and the rest of the two annas share still belongs to him. He also supported the rectification made in the City Deputy Collector's record in view of the compromise decree passed in Suit No. 83/1937 by the Judicial Commissioner's Court of Sind. He further contended that Meherally Sachoo, through whom the parties claimed the property in dispute was the prime mover behind the scene and accepted the validity of the decree by acting as Commissioner to partition the entire property. He pleaded that the persons claiming through him were estopped in law from denying the validity of the said decree.

6. On the pleadings of the parties as many as 20 issues were struck. But in view of the points urged by the appellant in support of the appeal, it is unnecessary to reproduce them. It will be sufficient to state that the learned Single Judge upheld the contentions of the respondent. He held that the appellant ' was only gifted one anna share out of four annas share of Meherally Sachoo in the entire Plot No. 195/2. He further held that the remaining three annas share was gifted by the deceased to the respondent. He found that later on this plot was sub‑divided , and Plot No. 195/2 (A) fell to the share of Moosa Sachoo, appel lant and Mst. Shirinbai respondent. Moosa's share in it is eight annas and in the remaining eight annas Mst. Shirinbai held six annas share and the appellant's share was two annas. He further held that appellant had disposed of his entire two annas share in the Plot in dispute by a registered sale‑deed, dated 22nd June, 1944, and only retained out of it 70 sq. yards, which was gifted to him by the respondent, by a registered gift deed dated 22nd June, 1944. He rejected the plea of the respondent that the gift in favour of the appellant in respect of this piece of land was illegal. On legal issues the learned Single Judge held that the suit was maintainable and within time. It was properly valued and sufficient Court‑fee was paid. The plea of estoppel was also rejected. The appellant has challenged these findings in this Letters Patent Appeal. It may be noted that on behalf of the respondent certain preliminary objections were raised about the maintainability of the appeal. These objections were overruled by order dated 12th October, 1964.

7. In support of the appeal the appellant, who personally argued this matter has urged that the learned Single Judge should have dismissed the suit as (i) it is barred under section 42 of the Specific Relief Act; (ii) is barred by Limitation Act and (iii) that the plaint should have been rejected as proper court‑fee has not been paid. We propose to dispose of these legal points before passing on to the merits of the case.

8. As regards the first objection that the suit was barred by section 42 of the Specific Relief Act, the appel lant contended that the suit, is in effect for setting aside the decree passed by the Judicial Commissioner's Court, Sind, in Suit No. 83/1937, in respect of the plot in dispute. The appellant's contention is that the order of the Collector rectifying the Revenue Record was based on this decree, which cannot be set aside unless it is held that it was a collusive one and not binding on the respondent. In support of his con tention he relied on several High Court decisions, viz: Mst. Rup Rani v. Bithal Das (A I R 1938 Oudh 1), B. Ghulam Qadir v. Bulaqi Mall & Sons (P L D 1949 Lah. 461), Mst. Roop Rani v. Bithal Das ((1938) I L R 13 Luck. 628), Kalu Ram v. Babu Lal ((1932) I L R 54 All. 811) and P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957SC314). The last‑mentioned case has no bearing on the point under consideration because it deals with the question of limitation. The burden of these deci sions is that it is the duty of a Court of Justice to look to the substance of the claim by gathering it from the whole plaint, and not to allow itself to be deceived by the language of the relief used for evading the payment of proper court‑fee by concealing the real purpose of the suit. It was observed in these Cases that even though a consequential relief may not be ex pressly prayed for, yet if such a relief is implicit in the declaration and is necessary consequence of it, it must be deemed to be included within in declaration prayed for in the suit. It was held in Rup Rani v. Bithal Das that when a person who is a party to a decree asks for a declaration about the decree being illegal and void, the grant of such a declaration in his favour necessarily has the effect of setting aside the decree and relieving him of the obligations under it. This view is also propounded in other decisions referred to above. In our opinion, the decisions cited by the appellant have no bearing on the facts of this case. Admittedly, the respondent was not a party to Suit No. 83/1937 and she had nothing to do with the decree which was eventually passed in that suit. It was, therefore, not binding on her. In law it was not at all necessary for her to get a decree, to which she was not a party, set aside. In this connection reference may be made to Gobind Chandra Sardar v. Bhagabat Sardar (A I R 1915 Cal. 473). It was held by a Division Bench of the Calcutta High Court that in a partition suit the defendants who were not parties to the com promise effected between the plaintiff and the other defendants will not be bound by the terms of the compromise, and the decree based thereon would not have greater validity then the contract upon which it is based. It was further held that a partition of joint property cannot be effected by a compromise which binds only some of the co‑owners, and, therefore, a consent decree based upon such a compromise cannot bind any of the parties to the suit similarly, in Sashi Kumar Sarkhel v. Chandar Kumar Samaddal (A I R 1923 Cal. 204), it was held by a Division Bench of that Court that it is not necessary to get a fictitious decree set aside, because it is of no value and not binding on any one. It seems to us that a decree in a suit for partition in which a particular co‑sharer was not a party is not binding on him. In such circumstances, it is also not necessary or obligatory on that party to file a suit for setting aside the decree. It will be observed that in the presents case the appellant produced the above‑mentioned partition decree before the City Deputy Collector Authorities. The Collector of Karachi on appeal relying on it corrected the Revenue Records. The grievance of respondent, there fore, was in respect of the change effected in the Revenue Records. In law it would, therefore, be open to her to get such rectification set aside by a declaratory suit even though it was based on a compromise decree passed by a competent Court. It would be futile for her to file a suit for setting aside a decree with which she had nothing to do and was not binding on her. In these circumstances, the respondent could only claim the relief of declaration with a consequential relief that the change effected in the Revenue Record should be set aside. The appellant's contention that the respondent should have claimed relief for possession in respect of 70 sq.yds gifted by her needs no consideration because of the dismissal of suit for this of the property.

9. The second objection of the appellant that the suit is barred by limitation is also without substance. The appellant's contention is that the decree in Suit No. 83/1937 was passed on 14th September, 1937, vide Exh. 7 and, therefore, the suit having been filed after nine years of the passing of the said decree was barred by limitation. As already stated the respondent did not file any suit for setting aside the decree because the decree for the first time came to her notice in the year 1953, when the appellant made an application to the City Deputy Collector office for rectification of the Revenue Records. The cause of action, therefore, if any to the plaintiff could arise after the rectification was effected by the City Deputy Collector Authorities. This order was passed on 4th September, 1954 vide Exh. 16 and, therefore, the cause of action to the respondent on the facts of l this case arose on that date. The suit on the original side of this Court was filed on 11th February, 1957, which obviously is within limitation because in such cases Article 120 of the Limita tion Act would apply. In this connection reference may be made to a decision of the Lahore High Court in Ghulam Muhammad Khan v. Samundar Khan (A I R 1936 Lah. 37). In that decision a Division Bench held that a suit for a declaration challenging an entry made in record or rights filed under section 42 of the Specific Relief Act is governed by Article 120 of the Limitation Act. The cause of action in all such cases would accrue when the plaintiff feels aggrieved and not from date of entry. The respondent, however, filed the suit within a short time of the change made in the Revenue Records and she stands in a much better position. Having regard to the fact that the respondent's suit was not for, possession of the property in dispute, the appellant's plea that the suit was barred under Article 144 of the Limitation Act has no substance and must be rejected. On this view of the matter, the learned Single Judge was perfectly justified in holding that the suit filed was within time. We would, therefore, repel the objection of the appellant in this respect.

10. The last objection of the appellant about the court‑fee paid by the respondent may now be considered. He contended that the suit was in substance for setting aside the decree and the respondent should have paid ad valorem court‑fee. In support of his contention he relied on Hakim Rai v. Firm Ishar Das (A I R 1927 Lah. 499), Sureshchandra Jamietram v. Bai Ishwari (A I R 1938 Bom. 206), Kanmamal v. Sauka Kaishuoururthi (33 Mad. L J 676), Dwarka Das v. Krishan Krishore (A I R 1924 Lah. 34) and Govindrai v. Rajabi ((1930‑31) 35 Cal. WN 438). None of these decisions are of any help in the present case. As stated earlier the respondent did not file any suit for setting aside any decree. Her only grievance is about the change of entry in the Revenue Records and filed the suit for setting aside. It is unnecessary to mention that ordinarily a decree only binds the parties and privies and if a party is not bound by it, is not necessary for him to get it set aside to protect his interest. Even if he chooses by abundant caution to challenge ; it on the ground of collusiveness or fictitiousness; he can file a simple suit for declaration that it is not binding on him and such declaration would be sufficient to safeguard his interest. In our view such suit would fall under Article 17 (iii) of Schedule II. In this connection reference may be made to Zainatun Nissa v. Girinndra Nath Mukerjee (30 Cal. 788), Bagala Sundari Debi v. Prosanna Nath Mookerjee (21 Cal. W N 375) and Arunachalam Chetty v. Rangaswamy Pillai (38 Mad. 922 at p. 924), but in the present case no such question arises because the respondent has not claimed any relief for setting aside the decree. Her suit was for simple declaration in respect of her right, title and interest in the property in dispute which in the circumstances of the present case was properly valued and sufficient court‑fee has been paid on it. This contention is also repelled.

11. Coming to the merits of the case the main contention of the appellant is that Meherally Sachoo made an oral gift on 29th January, 1931 of his four annas share in the entire Plot No. 195/2 in favour of the appellant and the respondent in equal share. This plot later on was sub‑divided into five sub divisions. In this sub‑division half of the Plot No. 195/2 (A) fell to the share of the appellant and the respondent in the equal shares. The appellant's case is that out of his share he has only disposed of two annas share to the respondent and the remaining two annas share still belongs to him. In support of this contention the appellant relied on an oral gift, which was com municated to the City Survey Officer; Karachi, by a letter (Exh. 5) dated 29th January, 1931. He contended that as the deceased did not specify the share of the parties in it, the presumption would be that the deceased gifted the property in equal shares to the parties. The appellant further referred us to Suit No. 83/1937 for showing that in that suit the appellant alone joined the other co‑sharers for partition of plot No. 195/2 and respondent was not impleaded as a party to it. His explanation is that deceased Meherally Sachoo had revoked the gift in her favour as he wanted to provide for her by purchasing some other property in her name by selling his other properties. He submitted that the above mentioned suit was filed at the instance of his father. He was also responsible for the compromise decree and for this reason also accepted to act as Commissioner along with one Peru. In order to prove the knowledge of his father we were referred to a Diary of the above suit, in which it is mentioned that at pages 18‑22 of the record there existed affidavits of Meherally Sachoo and Peru.

12. We have carefully considered the appellant's contention and have found them without any substance. In the first place his contentions are self‑contradictory and much weight cannot be given to them. In law, however, a party is entitled to raise alternative pleas. So far as the compromise decree is concerned, it cannot affect the right of the respondent because she was not a party to it. In law such a decree cannot bind the respondent. Beside except the bare statement of the appellant, there is no reliable evidence on the record to establish that deceased Meherally Sachoo was instrumental for filing the suit or getting the suit compromised. The terms of the decree were never implemented. There is not a shred of evidence td show that it was ever acted upon. It is not disputed that Plot No. 195/2 was not sub‑divided in accordance with the above‑mentioned decree. Under it the plot was to be divided into six sub‑plots, but it was later on divided in five sub‑plots. There is nothing to show that Meherally Sachoo ever acted as Commissioner under the said decree or the above‑mentioned decree was implemented in any way. The so‑called affidavit of Meherally Sachoo is not forthcoming. It may be that the appellant might have filed an affidavit and by mistake Meherally Sachoo's name was mentioned. In any case unless and until the alleged affidavit is produced, it cannot be said that deceased Meherally Sachoo had knowledge of the suit and was responsible for the compromise of the suit. The appellant is a shrewd person and the possibility that he was creating evidence against his step mother in collusion with his cousins cannot be ruled out: It, therefore, appears to us that the above‑mentioned decree was a collusive affair and has no material bearing on the title of the respondent.

13. We are, therefore, left to consider the appellant's case on the basis of the oral gift made in 1931. As stated earlier the appellant's case is that the deceased gifted her entire share to the parties in equal share. For this purpose he has relied on the circumstances that in the letter (Exh. 5) sent to the City Survey Officer, the shares of the parties were not specified and in such cases the presumption in law is that the gift was made in equal share. Had this been the only document for conside ration, the appellant's contention might have had some force. But as would presently appear, the subsequent dealing of the property by the parties and the various documents executed by the appellant are fatal to the appellant's case. On 18th June, 1940, Plot No. 195/2 was divided into five sub‑divisions under a private partition. This fact is established by letter (Annexure `B') of the City Deputy Collector, Karachi dated 18th June, 1940. It shows that Plot No. 195/2, Garden East (vide Annexure `C') was sub‑divided from 1940‑41 as under: Plot No. 195/2(A). Plot No. 195/2(B). Plot No. 195/2(C). Plot No. 195/2(D). Plot No. 195/2(E). Exhibit 19 (D/1) further proves that Plot No. 195/2(A) fell to the share of Moosa, appellant and the respondent. It is not disputed that Moosa Sachoo's share in this plot is eight annas. The dispute is only in respect of the remaining eight annas share. The appellant mortgaged his 1/8th share in this plot for Rs. 2,000 (Rupees two thousand) along with his 1/16th share in Plot No. 195/2(B) by a registered mortgage deed (Exh. 9) dated 14th April, 1942 to the respondent. It is not borne out from this docu ment that besides 1 /8th share, he had any more share in the plot in dispute. No such mention or reservation was made in the mort gage deed. It will be further interesting to note that later on the appellant sold all his right, title and interest consisting of 1/8th undivided share in the said plot of land with building thereon to the respondent for Rs. 2,000 (Rupees two thousand) by a registered sale deed (Exh. 10). It is significant to note that the appellant had already recited in that document that the appellant had sold "All the vendor's right, title and interest consisting of 1/8th share in all that piece or plot of land, etc." The appellant is an educated, intelligent and shrewd person and if he had any further share in the plot in dispute he would have clearly recited that fact in the aforesaid sale- deed. What is more significant to note is the fact that on 22nd July, 1944, the date on which the appellant executed the above mentioned sale‑deed, the respondent gifted 70 sq. yards piece of land out of 794 sq. yards which in measurement is half of the plot in dispute, to the appellant vide (Exh. 11). This solemn document is signed by the appellant as donee. This is a very important document. In the first place it clearly proves that the entire plot consists of about 1,589 sq. yards and out of it the respondent is possessed of 7941 sq. yards (privately divided portion) and it is solely owned by her. Secondly it shows that on 70 sq. yards out of this portion the appellant with his family is residing, which the respondent out of love and affection had gifted to him. Lastly it establishes that the appellant has accept ed this gift and admitted its execution before the Registering Authority. It is noteworthy that both these documents were put to the appellant in cross‑examination and he admitted their exe cution and his explanation is that he executed them out of respect of his father. But the fact remains that the appellant still resides on this portion and has never repudiated the validity of these documents. In the face of such .clear recitals in these documents it is difficult for us to accept the contention of the appellant that he had any other or more share left in the plot in dispute. His case that he bad redeemed the mort gage deed or these were fictitious documents has no basis and not in the least impressed us. His explanation that his father did not allow the appellant to be joined as party in the parti tion suit as he wanted to give some other property to the respondent or that he had not parted with his entire interest in the property in dispute is completely belied by the Will (Exh. 12‑A) dated 27th January, 1946, executed by his father. In this docu ment the deceased made the following solemn declaration? "I declare that I owned, undivided half share in immovable property bearing Survey No. 195/2A sheet G‑East, whole measuring 1,589 sq. yards, situated in Garden Quarter, Karachi, within the Registration District, Sub‑District and Town of Karachi which I have already got transferred in the Property Register to the name of my wife Shirinbai, daughter of Lalji who shall have life‑interest in the said property and after her demise the same shall devolve upon my sons namely Chhotu, Sher Muhammad, Anwarali and Sheraz and those that may be born hereafter in equal shares." This recital leaves no doubt that by January, 1946, the appellant was left with no right or title in the property in dispute except 70 sq. yards, which was gifted to him by the respondent in the year 1944. The appellant has not disputed the genuineness of the Will. His only explanation that it was executed under the undue influence of his step‑mother cannot be accepted as good one because not only the appellant was appointed an executor under this Will but he further obtained probate and admittedly imple mented it in respect of movable property. In these circumstances, it would not be wrong to assume that the appellant had full knowledge of its contents. The fact that he discharged duties of an executor under the aforesaid Will and did not, repudiate its contents clearly shows that the appellant's defence claiming the property in dispute is without any substance and foundation. In view of this reliable documentary evidence on the record, the learned Single Judge was perfectly justified in holding that the appellant's contention that he had any further share in the property in dispute was absolutely false and not substantiated.

14. In this appeal the appellant made two applications under Order XLI, rule 27, Civil Procedure Code, for additional evidence in order to bring certain documents on record. It is quite correct that this Court is competent to admit additional evidence but only under certain conditions, The documents which the appellant wants to bring on the record were not rejected by the trial Court. The only ground on which these could be allowed would, therefore, be whether they are required by us for pronouncing the judgment After looking into these documents we don't consider that these documents would help us in pro nouncing our judgment. We are satisfied that these documents are not at all helpful for this purpose. On the other hand, if admitted, they would create further confusion. We have, there fore, rejected these applications.

15. It may be noted that the appellant also urged in support of the appeal that the respondent is estopped to challenge his share in the property in dispute in view of the compromise decree in Suit No. 83/1937. He contended that respondent has derived title through Meherally Sachoo and since he was respon sible for the compromise decree, she was estopped in law to challenge its validity. In support of his contention he has relied on a decision of the Judicial Committee in Rajkumar Jagannath Prashad Singh v. S. Abdullah (20 Dom. L R 851). In that case it was held that estoppel applies not only in favour of the person induced to change his position, but of a transferee from such person, and it binds not only the person whose representations or settings have created it, but all persons claiming under or through him by gratuitous titles. This decision has no application to the facts of this case. We have held earlier that it has not been established that Meherally Sachoo was responsible for the com promise decree. Even if he was, it would not in the least estop the respondent to assert her right, title and interest in the pro perty in dispute. It must have been noticed that the property in dispute was gifted to her in 1931 and any conduct of donor in 1937 or later on would not adversely affect the title of the respondent. This contention is also without substance and re pelled.

16. The respondent has also filed cross‑objections to challenge the validity of the gift made by her in respect of 70 sq. yards, piece of land out of the plot in dispute, Mr. K. A. Ghani, the learned counsel for the respondent contended that the gift being conditional is void and not binding on her. In this connection it will be observed that a reference to Exh. 11 would show that the respondent made the gift for the, purpose of the residence only of the donee and his heirs from generation to generation but imposed a condition that they will have no right to sell, mortgage, or alienate it in any way. The respon dents counsel contended that this condition militates against the G absolute transfer of the property. In our opinion this conten tion has no force because the second portion of the property in dispute was gifted in perpetuity. In such circumstances, the condition imposed has no validity in the eye of law. The appellant has referred us to sections 10 and 11 of the Transfer of Property Act. It is provided in these provisions of law that any condition which is derogatory to the title of the party are void and inoperative in law. The learned Single Judge was, there fore, perfectly justified in holding that such conditions are invalid and that the gift was valid. We would, therefore repel the contention of the respondent in this respect.

17. After carefully considering the arguments advanced on behalf of the parties we are satisfied that there is no force in the appeal and the cross‑objections. We would, therefore, dismiss both the appeal and cross‑objections with costs. S.Q. Appeal dismissed.