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Monday, May 6, 2013

Panch Faisla. interpretation which contains a rider on the property not to alienate, mortgage etc., = "The house No. 512 is in Kotwali ward. Part of which shown in yellow colour on the eastern side is assigned to Phoolchand and the western part thereof shown in green colour is assigned to Dulichand. However, in view of the fact that financial condition of Phoolchand is very weak and he has a large family he can retain the portion of Dulichand also on a condition that neither he nor his descendants would be entitled to alienate the same by sale, gift, etc. and if they violate the same it would be open for Dulichand or his descendants to get the possession of their portion. Secondly for the portion assigned to Dulichand in case Phoolchand pays a sum of rupees eight thousand to Shyama Bai, he would be entitled to retain the same and subsequent thereto Phoolchand would not have any right on this part." In fact Phoolchand had purchased the said limited rights on paying the family debt to Shyama Bai.- It has been admitted by the respondents/defendants in the plaint itself that an amount of rupees eight thousand had been paid by the appellants to Shyama Bai. Therefore, in view of the above, Phoolchand could have been permitted to retain the said portion of Dulichand's share, as he had fulfilled the condition stipulated therein. Giving literal effect to the last sentence that on making the payment of rupees eight thousand to Shyama Bai, the rights of Phoolchand would be extinguished, leads to absurdity. In fact, Phoolchand had purchased the share of Dulichand with a further rider, that neither he nor his descendants would be able to alienate the suit property in future. Under no circumstance, could phoolchand be asked to make the payment of debt to Shyama Bai and get nothing in lieu thereof. In fact the said amount of rupees eight thousand was paid by Phoolchand in 1960, when money had a substantial value and a person could purchase immovable property for such a handsome amount. 10. In order to do complete justice between the parties, in the facts of this case, the appeal is allowed. The judgment and decree of the courts below are set aside.


ITEM NO.104 COURT NO.7 SECTION IV


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 2435 OF 2005

RAJESH AGRAWAL & ORS. Appellant (s)

VERSUS

KASTURIBAI & ORS. Respondent(s)

(With office report )

Date: 11/03/2013 This Appeal was called on for hearing today.

CORAM :
HON'BLE DR. JUSTICE B.S. CHAUHAN
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA


For Appellant(s) Mr. E.C.Agrawala,Adv.
Mr. S.S.Khanduja,Adv/
Mr. Yash Pal Dhingra,Adv.
Mr. Pratyush Nandan,Adv.
For Respondent(s)
Mr. Ram Swarup Sharma,Adv.

UPON hearing counsel the Court made the following
O R D E R

The appeal is allowed.
The judgment and decree of the courts below are set
aside.


[SUMAN WADHWA] [M.S. NEGI]
COURT MASTER COURT MASTER

Signed order is placed on the file.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2435 OF 2005

RAJESH AGRAWAL & ORS. .. APPELLANT (S)

vs.

KASTURIBAI & ORS. .. RESPONDENT(S)


ORDER

1. This appeal has been preferred against impugned judgment and decree
dated 11.7.2003, in Second Appeal No.889 of 1999 passed by the High Court
of Madhya Pradesh at Jabalpur affirming the judgment of the trial Court, as
well as of the First Appellate Court.

2. The contesting parties are the legal heirs of the original
plaintiff, and the defendant i.e. late Dulichand and Phoolchand who were
the real brothers. Their predecessor-in-interest had a very large
properties and business. Some properties stood partitioned by mutual
settlement, and for some, a Panchayat was called for and they effected
partition vide Panch Faisla dated 16.8.1960. The suit house was also a part
of the property which underwent partition through the aforesaid Panch
Faisla. The eastern part of the suit house was allotted to Phoolchand and
western part to Dulichand. However, Phoolchand had a big family, and
considering his inconvenience the Panch Faisla provided a condition that
Phoolchand could retain the possession of the other part also, by making
payment of Rs.8,000/- (rupees eight thousand only) to Shyama Bai which was
a family debt. However, he and his descendants would not be able to
alienate the portion of the house allotted to Dulichand. However, in case
Phoolchand failed to pay the family debt to Shyama Bai, Dulichand was
entitled to recover possession of the suit house from Phoolchand.

3. Dulichand instituted a suit for possession and injunction against
Phoolchand on the ground that rupees eight thousand had been paid by
Phoolchand to Shyama Bai, and hence, the right of Phoolchand to retain
possession of the suit property stood extinguished. However, it was
admitted in the plaint that Phoolchand had paid the said debt amount of
rupees eight thousand to Shyama Bai. Learned Civil Judge vide judgment and
decree dated January 21, 1999 accepted the Panch Faisla but decreed the
suit no. 356 of 1998. Phoolchand was thus directed to deliver possession of
the suit property to Dulichand.
4. The said judgment and decree stood affirmed by the judgment and
decree of the First Appellate Court dated 5.7.1999 in C.A. No. 17-A of
1999, as well as by the High Court dated 11.7.2003 in Second Appeal No. 889
of 1999.
Hence, this appeal.

5. The appeal has been pending for the last eight years. The case has
been adjourned several times, only to give opportunities to the
respondents' counsel to make an appearance but none of their lawyers
appeared as is evident from last order sheets.

6. Mr. E.C.Aggarwala, learned counsel appearing for the appellants,
has produced a certified copy of the original Panch Faisla. According to
this, clause 5 thereof is relevant for our purpose. English translation
thereof reads as under:

"The house No. 512 is in Kotwali ward. 
Part of which shown in yellow
colour on the eastern side is assigned to Phoolchand 

and the 
western part thereof shown in green colour is assigned to Dulichand. 
However,
in view of the fact that financial condition of Phoolchand is very
weak and he has a large family he can retain the portion of Dulichand also on a condition that

 neither he nor his descendants would be
entitled to alienate the same by sale, gift, etc. 

and if they violate
the same it would be open for Dulichand or his descendants to get the possession of their portion. 

Secondly for the portion assigned to Dulichand 
in case Phoolchand pays a sum of rupees eight thousand to Shyama Bai, he would be entitled to retain the same and subsequent thereto Phoolchand would not have any right on this part."
(Emphasis added)
7. The intention of the Panchas as per the Panch Faisla has to be
inferred reading the entire Panch Faisla. 
It is evident from the same that
considering the fact that Phoolchand had a very large family and his
financial condition was weak, the Panchas thought it fit that the portion
assigned to Dulichand may also be given to Phoolchand in case he paid a sum
of rupees eight thousand, a family debt to Shyama Bai. 
With such an intention, the further stipulation that on making the payment to Shyama
Bai, the rights/entitlement of Phoolchand would be extinguished, would make
the entire contract unconscionable.


8. The Courts below have erred in interpreting the last sentence of
the said clause literally, and did not make an attempt to infer the
intention of the Panchas. 
In fact Phoolchand had purchased the said limited
rights on paying the family debt to Shyama Bai.


9. It has been admitted by the respondents/defendants in the plaint
itself that an amount of rupees eight thousand had been paid by the
appellants to Shyama Bai. Therefore, in view of the above, Phoolchand
could have been permitted to retain the said portion of Dulichand's share,
as he had fulfilled the condition stipulated therein. Giving literal effect
to the last sentence that on making the payment of rupees eight thousand to
Shyama Bai, the rights of Phoolchand would be extinguished, leads to
absurdity. 
In fact, Phoolchand had purchased the share of Dulichand with a further rider, that neither he nor his descendants would be able to alienate the suit property in future. 
Under no circumstance, could
phoolchand be asked to make the payment of debt to Shyama Bai and get
nothing in lieu thereof. 
In fact the said amount of rupees eight thousand
was paid by Phoolchand in 1960, when money had a substantial value and a
person could purchase immovable property for such a handsome amount.

10. In order to do complete justice between the parties, in the facts
of this case, the appeal is allowed. The judgment and decree of the courts
below are set aside.
.
............................................ . J.
(Dr. B. S. CHAUHAN)





................................................................. J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,
March 11, 2013.
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