- (1.) THIS is a 2nd appeal by Smt. Sunder Bai, defendant No. 3 (since deceased), from a decree of possession over a house with damages at Rs. 15/- per month from 15th Feb. 1963 onwards till the date of possession. The defendants were three in number. The decree for possession was passed against all of them, but the decree for damages has been passed only against the defendants Nos 1 and 2. The plaintiff claimed to have purchased the house from the defendant No. 2 under a sale deed dated 15th Feb. , 1963. The Trial Court had decreed the suit for refund of the sale consideration of Rs. 8,500/- against defendant 2 alone on the finding that the sale deed was invalid. Defendant 2 did not appeal from the trial court's decree, but the plaintiff appealed and contended that sale deed was valid, and that he was entitled to the decree for possession and mesne profits as claimed by him instead of the relief for refund of Rs. 8,500/which had been claimed by him only in the alternative, on the allegation that if, for any reason, the court took the view that there was some defect in the right of defendant 2 to sell the house, then in that case he was entitled to a refund of the sale consideration of Rs. 8,500/ -.
(2.) THE relevant facts may now be stated. One Rajju had three daughters, namely, Hira, Mulla and Dhanwanti, Hira had a son Kashi Prasad and a daughter Smt. Sunder Bai. Smt. Sunder Bai is defendant 3 and her son Kishori Lal is defendant 1. Kashi Prasad had no son. He had two daughters, Smt. Girja Bai and Smt. Janak Kishori, Smt. Janak Kishori is defendant 2. It was claimed that Kashi Prasad had been adopted by his maternal grandfather Rajju, and otherwise too, by a registered gift-deed dated 28th April, 1913, he had gifted all his property to Kashi Prasad. Rajju died in 1930. Kashi Prasad made a will dated 24th October, 1948, and died subsequently on the 9th November, 1948. Under his will, he gave the property to his daughter, Janak Kishori, defendant 2. Janak Kishori was a minor when Kashi Prasad died. Sunder Bai, defendant 3, was appointed the guardian of her person, while Kishori Lal defendant 1 was appointed the guardian of his property. After marriage and attaining majority, Janak Kishori sold the house to the plaintiff. Defendants 1 and 3 had however, been living in the house it suit. According to the plaintiff's case, they were living as licensees and the licence having been terminated, the plaintiff was entitled to possession. The two basic questions, which arose in the case, were whether Kashi Prasad was the adopted son of Rajju and secondly whether the gift which he purported to make in favour of Kashi Prasad by registered deed dated 28th April, 1913, was valid. The adoption has been found by both the Courts below to be not proved, and that finding has not been questioned before me. On the question about the gift-deed, the Trial Court held that the original gift-deed was not produced and, therefore, no reliance could be placed on it. It was in view of these two findings that the Trial Court found that Kashi Prasad was not the owner of the house and Janak Kishori too did not have any right to the property, rather the succession opened in 1954 on the death of Smt. Dhanwanti. According to the Trial Court, Smt. Janak Kishori did not have, in these circumstances, any right to sell the house and passed a decree for the refund of the sale consideration.
(3.) ON appeal before the lower Appellate Court, a fresh issue was framed, namely, whether the will dated 24th October, 1948, set up by the plaintiff, was duly and validly executed by Kashi Prasad. That was remitted to the Trial Court for a finding. The finding was that the will had been duly executed, but that it was not valid because Kashi Prasad had no interest in the property. The lower Appellate Court found that the gift-deed dated 28th April, 1913, was duly registered. A certified copy of it had been filed, being Paper No. 64-C. At the death of Kashi Prasad, his daughters, Girja Bai and Janak Kishori, were minors. There was considerable trouble in the matter of the guardianship of their person and property. Ultimately, defendant 3, Smt. Sunder Bai, was appointed the guardian of the person of Janak Kishori, and Kishori Lal, defendant 1, was appointed the guardian of her property. It had come in evidence that Kishori Lal had taken away the original papers of Kashi Prasad on his death. During the trial, the plaintiff had called upon the defendants to produce the original gift-deed, but they did not do so in spite of taking time for the same. Under the circumstances, the lower Appellate Court held that the secondary evidence of the gift was admissible in the form of a certified copy, and, further, in view of the amendments made in Uttar Pradesh by insertion of sub-sec. (2) in S. 90 and the addition of S. 90a in the Evidence Act, the gift-deed was proved to have been duly executed by Rajju in favour of Kashi Pd. Further, according to the lower Appellate Court, there was evidence to show that it was acted upon inasmuch as the name of Kashi Pd. was mutated in the Municipal papers. The lower Appellate Court also referred to the admission made by Smt. Dhanwanti, daughter of Rajju, and by the defendants Smt. Sunder Bai and Kishori Lal of the fact that Kashi Prasad was the owner of the house in suit. These admissions were made in the guardianship proceedings. The relevant admission of Smt. Sunder Bai defendant 3, is contained in Ext. 17, and it was even admitted that she and her son Kishori Lal were living in the houses as licensees. In the result, the lower Appellate Court held that the gift-deed dated 28th April, 1913 was duly executed by Rajju and acted upon, and further that the will dated 24th October, 1948 was duly and validly executed by Kashi Prasad. It further held that defendants 1 and 3 were mere licensees and their licence having been terminated, they were liable to make over possession of the house to the plaintiff. The finding of the lower Appellate Court that the gift could be proved by producing a certified copy, and that the execution of the deed was duly proved was not seriously assailed before me. It was contended that there was no proof of acceptance of the gift by Kashi Prasad, and that being so, the mere execution of the deed did not bring about a gift in law. Reliance was placed on S. 122, T. P. Act, in support of this contention, Lastly, it was contended that the Trial Court having decreed the suit for an alternative relief of recovery of Rs. 8,500 claimed by the plaintiff, and the defendants not having appealed from that decree, it was not open to the plaintiff to appeal therefrom to the lower Appellate Court. That being so, the lower Appellate Court had no jurisdiction to modify the Trial Court's decree and to pass a decree for the relief of possession and mesne profits which had been refused by the Trial Court.;