- (1.) THIS is a second appeal by the plaintiff Mangilal in a suit for redemption.
(2.) THE plaintiff Mangilal and his father Manakchand now deceased brought a suit against the contesting defendant Gendmal and certain others on the 24th June, 1950, in the court of the Civil Judge, Pratapgarh, on the allegations that Manakchand had made a mortgage of his residential house, in the town of Pratapgarh. in favour of the defendant Gendmal for a sum of Rs. 500/- by a registered document, dated the 1st November, 1938, that the mortgage was of the pure usufructuary type, and that one of the conditions thereof was that the mortgagor would not be entitled to redeem it before eleven years from the date of the mortgage. THE plaintiffs further disclosed that the suit house was under the possession of defendant No. 2, Chandkaran who was sub-mortgagee from defendant No. 1 under a document, dated the 26th June, 1952. It was further stated that the limit of eleven years had expired on the 31st October, 1949, and that thereafter the plaintiffs gave a notice on the 25th April, 1950 to defendant No. 1 Gendmal to return the suit house on receipt of the mortgage money but the latter declined to do so by his notice, dated the 3rd May, 1950, and, therefore, the plaintiffs were compelled to institute their suit for redemption on payment of the mortgage money. It is convenient to mention here that the plaintiff Manakchand had filed a suit for redemption of this very house sometime in 1948 but that suit was dismissed as being premature in 1950. Obviously as at the time the suit was brought in 1948, the 11 years' limit for redemption had not expired. The defendant Gendmal resisted the suit on the main ground that subsequent to the mortgage in 1934, the plaintiff Manakchand had agreed to sell the suit house to the former and had executed a document, dated the 5th September, 1940, in which it had been stated that Manakchand had sold suit house to the defendant for a further sum of Rs. 257/- in addition to the mortgage money of Rs. 500/- and that henceforward the defendant would be the owner of the house and would be free to make such additions and improvements to it as he thought necessary and that his possession which was hitherto that of a mortgagee would from them onward be as that of a full-fledged owner of the house in question. The document, dated the 5th September, 1940, was an unregistered one and consequently the defendant further pleaded that he was entitled to the benefit of the doctrine of part performance and so the plaintiff had no subsisting right of redemption with respect to the suit house. The defendant also referred to the earlier suit and stated that it had been dismissed. As regards the sub mortgage, the defendant's case was that he had sub-mortgaged the house to Shah Chimanlal and not Chandkaran, defendant No. 2, that that Chandkaran had gone in adoption into another family and Chiman-lal's heirs were necessary parties to the suit. Lastly, the defendant pleaded that he had spent a sum of Rs. 1,400/- by way of improvements to the suit house and that, in any case, the plaintiff could not redeem the suit house without paying this amount in addition to the mortgage money. One Maganlal filed a written statement on behalf of Shah Chimanlal's heirs to the effect that defendant No. 1 Gendmal had made a mortgage of the suit house for Rs. 600 in favour of Chimanlal by a registered document and that thereafter defendant Gendmal had taken a further sum of Rs. 100/- and so a sum of Rs. 700/-was due to them and they were prepared to give redemption of the house on receipt of this amount. It was further contended on behalf of these defendants that they had been impleaded as defendants in the earlier suit but that no costs had been awarded to them and, therefore, they were entitled to receive the costs of the earlier suit and that of the present suit also. No contest arose between the parties with respect to this sub-mortgage. The trial court dismissed the plaintiff's suit holding that the plaintiffs had no right of redemption subsisting at the date of the suit. On appeal the learned District Judge, Pratapgarh, affirmed the decree of the trial court and dismissed the appeal. This second appeal has consequently been brought by the plaintiff Mangilal against the judgment and decree of the District Judge, Pratapgarh. Now, before I deal with the contentions raised before me, I desire to point out that this case has been grossly mishandled by the parties as well as the courts below. It appears that the most elementary rules of pleadings, proof and procedure have been disregarded. The inevitable result was that apart from the unnecessary expenditure of time and energy in the courts below, considerable time had to be spent over arguments in this case in relation to matters which had not been pleaded and which, therefore did not properly arise for decision. The plaintiffs came forward with a case to redeem the mortgage. They suppressed the fact of a sale (however imperfect it was) of which they have undoubtedly knowledge, because when the plaintiffs had brought their earlier suit in 1948, the defendant had pleaded the same and, therefore, the plaintiffs knew perfectly well what the case of the defendant was going to be. Even so when the defendant again put forward the case of the property having been sold to him, the plaintiffs did not choose to put in a further pleading which they should have certainly done, with the permission of the court and the same, to my mind, would have been granted as a matter of course in the circumstances of the case. Not only that this was not done, I have no doubt that in a case, like the present, it was the bounden duty of the trial court to have had recourse to the provi-sions of O. X, r. 1, C. P. C. and examined the parties. The trial court however, did nothing of the kind and acted more or less as an automaton with the result that no answer is to be found on the record as to what the plaintiff's case was in reply to the defendant's case of sale. The matter does not conclude there. When the stage of framing the issues arrived, three issues appear to have been raised (apart from the fourth one relating to relief ). The first issue was whether the plaintiff No. 1 had sold the suit house to defendant No. 1 during the course of the suit. The second issue related to improvements. The third issue was with respect to the costs incurred by defendant No. 2 in the earlier suit of 1948 and which did not arise at all so far as the present suit is concerned. Be that as it may, it is remarkable that no issue relating to the ground expressly taken by the defendant Gendmal in his jawabdava that he was entitled to the benefit of the doctrine of part performance was at all raised. It was the cardinal issue in the case and its absence shows that the learned trial Judge set about this trial in a most perfunctory and slip-shod manner. At the trial, however, evidence was allowed to be led on the points which had not been pleaded at all and the chief among which was that the plaintiff Manakchand had signed the agreement to sell the suit property (Ex. D. 1) under a misrepresentation that the sale-deed was a deed of mortgage. Similarly, another important question had been gone into without pleading and that the plaintiff Manakchand had no authority in law to sell away his house which was the ancestral property and both courts have found that either Manakchand being the father manager had the authority to sell it or that he had sold the suit house with the counsel of his son Mangilal the present appellant and, therefore, the latter could not object to the sale at this date. It is indeed astonishing that all these questions had been gone into without any allegation in the pleadings. Then again one of the questions on which considerable controversy entered in this court was that all that had been found by the trial court with regard to the consideration of Ex. D-l the alleged agreement to sell, was that a sum of Rs. 121/- only had been paid to the vendor Manakchand, and that that being so, one of the essential conditions of the applicability of the doctrine of part performance as laid down in sec, 53 (a) of the Transfer of Property Act had not been fulfilled. The condition relied on was that the defendant seeking to obtain the benefit of part performance should have performed his part of the contract or said that he was willing to do the same. It may be pointed out, however, that there again unnecessary complication has been caused in this case because the plaintiffs did not file any replication in which they might well have stated how the defendant was not entitled to the benefit of the rule of part performance. Yet the point was vehemently sought to be raised in this court that the finding of the trial court was that Rs. 121/- only had been paid by the defendant to the plaintiff Manakchand contrary to the recital contained in Ex. D-l itself and that this was amply proved by another document of the defendant, namely, the deed of submortgage executed in 1942, and therefore, the defendant, was not entitled to the benefit of the doctrine of part performance. It was further urged in the course of arguments in this court that the learned District Judge has completely misread the finding of the trial court on the point of payment of the additional consideration of Rs. 271/- inasmuch as the trial court had only found that a sum of Rs. 121/- had been paid by the defendant to the plaintiff Manakchand and not that the whole of the amount had been paid. The learned District Judge clearly appears to me to have fallen into error in this respect when stated that the trial Judge came to the conclusion that "though the house was originally mortgaged to respondent No. 1 - Shri Gendmal - for Rs. 500/- but it was thereafter sold away to Gendmal by Shri Manakchand with the consent of his son Shri Mangilal on 5. 9. 40 after obtaining Rs. 271/- and wrote an agreement of sale (Ex. D-l) in favour of Shri Gendmal. " It is greatly to be deplored that the trial of this case has been so highly unsatisfactory. Be that as it may, I now proceed with the contentions raised before me on behalf of the plaintiff appellant one by one. The first contention which was vehemently pressed in this Court was that the suit house was worth Rs, 10,000/- and that the alleged agreement to sell, Ex. D-l, had been got signed by Manakchand the deceased plaintiff on a fraudulent misrepresentation to him that it was only a deed of further mortgage for a sum of Rs. 271/ -. I may point out at once that both courts below have negatived this plea on the merits. So far as I am concerned, I feel bound to say that this plea was never raised by the plaintiffs in their plaint and that if they wished to rely on the plea of fraud or misrepresentation, it was incumbent upon them to have raised a clear, definite and specific plea in their plaint and to have given the necessary particulars thereof, and that having not been done, the courts below were, in my opinion, entirely wrong in embarking upon an enquiry into and a decision of this issue. I cannot do better in this connection than to quote the famous dictum of Lord Selbourne in Wallingford v. Mutval Society (1) that with regard to fraud, if there is any principle which is perfectly wellsettled, it is that general allegations, however strong the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court can take notice. A case like the present which is devoid of even an allegation of the plaintiff-in respect of fraud, not to speak of the particulars thereof, must indeed stand on a far weaker footing. It is no use saying that the plaintiffs need not or could not have raised the issue of fraud or misrepresentation on which they seek to rely even after the defendant had pleaded the extinguishment of the mortgage on account of sale and there can be no excuse or explanation for that. I am, therefore, definitely of the opinion that the plaintiff appellant is not entitled to succeed on the plea of fraud under the circumstances. I may incidentally point out that there is no evidence on this record to show that the plaintiff's house was worth Rs. 10,000-/or anywhere near that amount. Even the plaintiff appellant has not cared to say in his deposition what the value of his house was. When the question of fraud or misrepresentation is ruled out of consideration, there is nothing to lead one to question the concurrent finding of fact of the courts below that the agreement for sale (Ex. D-l) was proved to have been executed by the plaintiff Manakchand. That finding is based on legal evidence. (See the statements of the scribe P. W. , Amrital and of P. Ws. , Kishenlal and Mangilal attesting witnesses) and the signature of Manakchand on Ex. D-l is indeed proved by the testimony of the other plaintiff Mangilal himself. In these circumstances the execution of Ex. D-l by Manakchand is proved beyond any legitimate challenge in this second appeal and I accept it as unquestionably correct. The next point urged on behalf of the appellant was that the suit house was joint ancestral property of Manakchand and Mangilal and, therefore, Manakchand by himself had no authority to alienate it in the manner in which he did. The finding of the courts below on this aspect of the case is that Manakchand was the manager of the joint Hindu family consisting of himself and his son Mangilal and that Manakchand was within his rights to alienate the suit property as manager of it. It has also been found by both the courts below that the sale in the present case has been made with the consent of the plaintiff appellant Mangilal (see Ex. D-7) in this connection ). I am constrained to observe once again that no issue was struck by the trial court on this aspect of the case and this was because there was no allegation in the plaint that the alienation was voidable for want of legal necessity or any other sufficient reason. As there was no issue, naturally the defendant had no occasion to lead any evidence to establish legal necessity or that there was an antecedent debt, the burden of proving these undoubtedly being upon the defendant. It was also urged on behalf of the appellant that an application had been made in the trial court on the 28th July, 1951, that an issue on the question of the ancestral nature of the property be raised. I have perused this application. It was made in connection with an application to answer certain interrogatories raised by the defendant. While the plaintiff Mangilal was objecting to give his answers to the interrogatories put to him, he merely stated in the last paragraph of his application that his house was ancestral and that a further issue be raised regarding that matter. This was scarcely a proper method on the part of the plaintiff for raising an issue on the question of the alienation being bad for want of legal necessity. It further appears that his application was never pressed and so no issue was framed. In these circumstances I am not at all prepared to frame a fresh issue on this question and allow the parties to lead evidence on it, for that would be putting a premium on the gross mismanagement of the case, on behalf of the party concerned. Learned counsel for the appellant argued, however, that in any case the burden of proving legal necessity was on the alienee and that this burden had not been discharged. The simple answer to that question, in my opinion, is that this proposition is all right so far as it goes but before the question of burden of proof arises, there must be a question for proof, and it clearly appears to me that that question was not raised, and, therefore, nothing turns on the matter of burden of proof. It must be remembered in this connection that an alienation by a father manager of the joint family property is by itself not void but is only voidable. I would refer in this connection to Mulla's Hindu Law, paragraph 256, where the learned author has said that a Hindu father has special power of alienating co-parcenary property which no other co-parcener has, and that in exercise of those powers he may make a gift of ancestral movable property within reasonable limits and he may also make a gift of immovable property by an act inter vivos within similar limits and that he may sell or mortgage ancestral property whether movable or immovable including the interest of his sons, grandsons and great-grandsons for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. What 1 wish to point out is that such an alienation is by itself not void ab initio and that before such alienation can be set aside, it must be impeached and where a case of impeachment has not been properly raised by a plaintiff, he cannot by merely relying on the abstract doctrine of burden of proof be heard to say that, because the defendant has not proved legal necessity or a case of antecedent debt, he is entitled to question the alienation and get back the alienated property. This point must also, therefore, fail. I next turn to the question of the eligibility of the contesting defendant to the benefit of sec. 53 (a) of the Transfer of Property Act. The defendant had clearly made a point in his written statement that he was entitled to the benefit of that section. Unfortunately, this plea was not controverted by any further pleading on the part of the plaintiff nor put in issue. The plaintiff's allegation, however, is that from the evidence led on the record it clearly appears that a sum of Rs. 121/- only was paid by the defendant to the plaintiff Manakchand at the time of the execution of the agreement to sell Ex. D-l and that the entire sum of Rs. 271/- (apart from the mortgage of Rs. 500/-) had not been paid at all as alleged in that agreement as would be clearly evidenced by the document of sub-mortgage executed by the defendant Gendmal himself in favour of the sub-mortgagees. This is undoubtedly so, and I have no hesitation in saying that the recital in Ex. D-l that the entire sum of Rs. 271/- had been paid by the defendant to the plaintiff Manakchand is not borne out by what the defendant himself said in the deed of sub mortgage. The question in these circumstances is whether the conditions of section 53 (a) can be held to have been fulfilled in the present case. The matter is not free from difficulty, and this difficulty has been created because both parties have indulged in falsehoods or at any rate suppressed the whole truth. The plaintiff on his part did not at ail plead to the point of sale either in his plaint or in any further pleading which he never cared to file and the defendant also merely pleaded in his written statement a matter of law, namely, that he was entitled to the benefit of sec. 53 (a) of the Transfer of Property Act instead of mentioning the facts which would entitle him to get the benefit of that doctrine. Even so, I feel that it was very difficult for the defendant to know that the point of failure to pay the consideration would be sought to be taken advantage of by the plaintiff in the manner in which he now seeks to take advantage of it. At no stage of the case, he came out with the plea that the benefit of the doctrine of part performance would not be available to the contesting defendant because he had not paid the entire consideration. If such a plea had been raised, two courses would have been open to the defendant : (1) either that he would have adhered to his original statement that he had paid the entire amount and then it would have been his duty positively to prove it or lost his suit, or (2) he would have been within his rights either to amend his written statement or by a supplementary pleading filed with the permission of the court, he could have said that even if the court came to the conclusion that the defendant had not paid the entire additional consideration of Rs 271/- he was prepared to pay him balance which remained unpaid. In fact, an application was filed before me during the course of the arguments on behalf of the defendant respondent Gendmal in which he has sought permission to amend his written statement by saying that the sum of Rs. 271/-had been paid to the plaintiff Manakchand and that if the court came to the conclusion that only Rs. 121/-had been paid, the defendant was prepared to pay the remaining Rs. 150/ -. This shows that the defendant is willing to perform his entire contract within the meaning of sec. 53 (a) of the Transfer of Property Act. It may be pointed out in this connection that ordinarily it should have been proper for the defendant to have made out this plea in his original written statement but this obviously was not done because no specific challenge was offered to the case set up by the defendant in the trial court. In the special circumstances of the case I am of opinion that the controversy between the parties can be justly and satisfactorily put an end to by giving effect to the prayer made before me on behalf of the defendant respondent. As from the evidence on the record it appears that a sum of Rs. 121/-only was paid to the plaintiff Manakchand by the defendant at the time this agreement Ex. D-1 was executed ; and as the defendant has expressed his willingness to pay the remaining amount in any event, the question of the failure of the defendant to pay the entire consideration should not be allowed in these circumstances to affect the substantial rights of the parties. I may add that this is the utmost extent to which it is possible to go adjudging the equities between the parties, inasmuch as even in his grounds of appeal filed in this Court, the plaintiff appellant has not raised any ground that the finding of the courts below that the defendant was entitled to the benefit of sec. 53 (a) was at all erroneous. Learned counsel on behalf of the plaintiff appellant yet raised another point in this connection and that was that a transferee who desires to take advantage of the doctrine of part performance of the contract and where he is already in possession must not only show that he continues in possession in part performance of the contract but further that he has done some act in furtherance of the contract, and the argument is that the mere payment of money in pursuance of a contract of this character whether whole or in part should not be held to amount to some act done in furtherance of the contract. I have carefully considered this contention and find no force in it. I am fortified in this view by a decision of our own court in Ratanlal vs. Kishenlal (2 ). Indeed, I see no sufficient reason on authority or commonsense as to why where an alienee is already in possession of the property, a payment by him in part performance of contract of sale should not amount to some act in furtherance of the contract. I have no hesitation in saying that if the supervening contract of sale had not taken place, the further payment would not have been made and this is sufficient to bring the act within the scope of some act in furtherance of the contract. Before taking leave of this case, I should like to say that courts below should remember that the duty of framing issues rests on the court under our Code of Civil Procedure and that the fair trial of a case basically depends upon the proper framing of issues therein and further, when issues are framed, it must be remembered that they must relate to all material propositions of fact or law affirmed by the one party and denied by the other, that is matters which the plaintiff must allege in order to succeed in his suit or the defendant must allege in order to establish his defence. I should further like to draw the attention of the courts below to the well-established rule laid down by their Lordships of the Privy Council in Siddik Mahomed Shah vs. Mr. Saran (3) that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. It is very much to be hoped that the courts below as well as parties and their counsel do not neglect the observance of these rules, and I further desire to say that it is not too late in the day to insist on their observance, otherwise trials in our courts are bound to fall of their supreme effect and purpose, namely, the administration of justice. The result is that I modify the decree of the courts below to this extent that the plaintiff's suit be dismissed but that the defendant Gendmal shall pay a sum of Rs. 150/- to the former. As this money has been deposited in court, the plaintiff appellant will be entitled to draw it. So far as costs are concerned, I am of opinion that as both parties did not come out with the whole truth, they should bear their respective costs in all the courts. . ;