Iqbal Hussain, J.
1. This is an appeal against the judgment and decree of the Additional District Judge, Koppal, Richer District passed in Appeal No. 4/4 of 1358 Fasli confirming the judgment and decree passed by the Munsiff, Koppal, in O. S. No. 122/1 of 1856F. Even though this is an appeal against the concurrent findings of both the Courts below, points of law have been raised in this appeal which require consideration.
According to the Civil Procedure Code of Hyderabad, greater latitude is given to the appellants in second appeal under Section 100 of the Code of Civil Procedure (Section 602 of the Hyderabad Civil Procedure Code) than it is under the Civil Procedure Code as applicable throughout India. As this suit was filed long prior to the coming into force of the latter, opportunity is given to the parties to argue both on facts as well as on law.
2. The facts of the case arc briefly as follows:
3. Plaintiff Gavisiddanna Gowda who is the respondent in the first appellate Court as well as before [his Court, filed a suit before the Munsiff's Court, Koppal, Raichur District for specific performance of a sale entered into by defendants 1 to 5 (appellants 1 to 5) in favour of the plaintiff. As the property was mortgaged with possession to the sixth defendant Venkavva, plaintiff prayed for possession of the suit property and for redemption of the mortgage in favour of the said Venkawa, the sixth defendant.
The land in question is survey No. 740 -- 8 acres 4 guntas in extent called Shemi hola situated in the village Tadkal, Velburga Taluk. This land was mortgaged by defendants 1 to 5 in favour of the 6th defendant as far back as 26th Mehr 1347F for a sum of Rs. 425/-. Defendants 1 to 5 resisted the claim of the plaintiff; but the sixth defendant joined hands with the plaintiff.
Defendant 5 Kotre Cowda was a minor at the time of the filing of the suit and hence he was represented by a Court guardian and the Court guardian has filed a separate defence contesting the claim of the plaintiff to the suit property. His contention is to the effect that 5th defendant's father Basavana Gowda did not owe any debts and hence the alleged sale is not binding on him. He further advanced the plea that his mother who has been a party to the sale had no right whatsoever to sell the property.
4. On these pleadings several issues were raised in the case of which the important ones are issues 4 and 5 which run as follows :
'Issue No. 4: Whether defendants 1 to 5 made an absolute sale of the suit land for a sum of Rupees 1000/- (I. C.) on an oral contract at the end of Azur 1350 F and whether plaintiff has paid a sum of Rs. 575/- out of the sale amount to the transferors'
'Issue No. 5: Whether defendant 6 agreed to release the suit land from the mortgage in favour of the plaintiff on payment of Rs. 425/- by him?' Additional issues were framed of which the second additional is as follows: 'whether mother of defendant 5 as his guardian sold the suit land to the plaintiff for legal necessity and whether she was competent to sell the property.'
On these issues evidence was tendered by the plaintiff as well as the defendants and after considering the pleadings and the evidence, both the Courts have decided the issues in favour of the plaintiff and decreed his suit.
5. It has been urged by Mr. Zakaulla, the learned Advocate arguing the case for the appellant's Counsel that the transaction connotes an out and out sale and not a contract to sell. In Other words, it is not an executory contract but a contract that had already been executed. He further contends that there was no legal necessity for the sale of this property and hence the sale is not binding on the 5th defendant.
Though mother is the natural guardian of the 5th defendant, it is argued by Mr. Zakaulla, that she is incompetent to sell the properly under the circumstances of this case. Lastly it is argued by him that so far as the patta of the suit land is concerned, it is an independent right. The patta stands in the. name of the 5th defendant and the Courts below have erred in giving a decree regarding the transfer of of the patta from the 5th defendant's name to the plaintiff's name.
6. The most important point for consideration is whether the contention of Law raised by Mr. Zakaulla to the effect that the transaction connotes an out and out sale and if it is for more than Rupees 100/- compulsorily it should have been registered and not having been done so, the plaintiff gets no right, title or interest in the suit property, is tenable. In support of his contention, he has drawn our attention to the allegations made in the plaint as well as the evidence in the case. Paragraph 3 of the plaint runs as follows:
'Defendants 1 to 5 for family necessity and in order to pay antecedent debts for consideration of Rs. 1000/- (I. C.) have absolutely sold (Buy Khatia) the suit land in favour of the plaintiff and have obtained a sum of Rs. 575/- from him. Before the absolute sale of the said property, it was mortgaged in favour of the 6th defendant for a sum of Rupees 425/-. Plaintiff is prepared to pay the said amount. It was agreed that on demand the defendants would execute a sale deed in favour of the plaintiff and get it registered.'
Paragraph 4 states that on the very day plaintiff demanded possession of the property from the 6th defendant and the sixth defendant has stated that after the crop is harvested, she would put the plaintiff in possession of the property on his discharge ef the mortgage debt; but at the instigation of defendants 1 to 5, she has refused to deliver possession. In the same paragraph is found a clause that the defendants refused to execute the agreement to sell and to register the same and hence the plaintiff's suit. In parasraph 7, the plaintiff prays for a decree against defendants 1 to 5 for specific performance of the agreement to sell and for execution of the sale deed and registration of the same. He has also prayed for possession of the same on his discharge of the mortgage debt, from the sixth defendant.
7. In this case whether the transaction is an absolute sale or not has to be gathered from reading the plaint as a whole and putting it in juxta position with the evidence in this case. Plaintiff himself has been examined as a witness, no doubt, on behalf of the defendant. We have, in unmistakable terms, stated in this Court previously that this practice of calling the opposite party as a witness on his side should not be countenanced as it is not in the interests of justice. A scrutiny of the plaintiff's evidence throws light as to the nature of the transaction that was entered into between him and the defendants.
8. The plaintiff is examined as D. W. 1 in the case and he states in his evidence as follows:
'Defendants 1 to 5 have sold the suit land to me and in respect of that I have brought this suit. In the plaint the date of sale is noted but I do not remember it. I have got the date of the sale noted in the plaint but not the year. After the plaint was written, it was read out to me. Two years after the sale I filed the suit. I do not remember the date of the sale.' Later on he says: 'At the date of the sale, defendants 1 to 5 were in possession of the property. Defendants have not given the possession of the same to me. At the time of the sale, defendants 1 to 5, Basavannaiah and Balaiah were present. Consideration for the suit land was not fixed per acre hut as a whole. It was agreed at the lime of the sale, that six months later the document should be written and the possession also should be given. Six months later I demanded defendants 1 to 5 for execution of the sale deed and for possession of the property. They promised to execute the same within four or five days and also to give possession. I demanded once again but the defendants failed to do so. They said why are you in such a hurry we are going to execute the sale deed. Four or five months later I demanded the sale deed as well as possession. But the defendants evaded. Four or five months later I demanded once again, the defendants refused to do so and stated we have not sold the land to you. At the time of the talk regarding the sale, there was no agreement. At the time of the sale, the defendants went and brought Venkavva, defendant 6. At the time of the sale I had taken the responsibility of paying Rs. 425/- to the Mortgagee Vcnkawa. I told her 'I will pay you the amount and you give possession of the property,' Venkawa told me that there is 'Fasal' or crop on the land. After Ugadi, I will harvest the crop and give you possession of the property. After Ugadi, I went and demanded possession of the land from the 6th defendant. She refused to give possession of the property.'
9. I have referred to the evidence of the plaintiff in a little detail because that gives a clue as to the real intention of the parties and it also gives a clue regarding the nature of the transaction itself as to whether it was a sale or only an agreement to sell. The evidence of the plaintiff, as I have referred to in unmistakable terms leads to the only conclusion that the transaction between the two parties was a sale and not an agreement to sale. Otherwise why should he insist on getting possession of the property? What was the necessity of calling the sixth defendant, the mortgagee, at the time of the transaction and taking the responsibility of discharging the mortgage debt.
10. The nature of the transaction as a sale is further supported by the evidence of two other witnesses examined by the plaintiff. P. W. 1 Basappa states as follows:
'Defendants 1 to 4 and the guardian of the 5th defendant sold the suit land in favour of the plaintiff. That land is situated in Thadkal and its extent is two Kurgis. It is called Semi hola. The said land has been sold to him for a consideration of Rs. 1000/- (I. C.). In order to discharge their debts, defendants 1 to 5 have sold this property in favour of the plaintiff. The sale has taken place about 4 1/2 years ago. Soon after the talk of the sale was completed, on the very day the plaintiff paid a sum of Rs. 575/- (I. C.) to Defendants 1 and 4 and regarding the balance of consideration, it was agreed that a sum of Rs. 425/- (I. C.) has to be paid to Ven-kavva, the mortgagee in possession of the said property. Venkawa should receive the said amountfrom the plaintiff himself. No document was written on trial date. But it was agreed that when demanded, the defendants should execute a sale deed and get it registered and transfer the patta as well by registered document. On that occasion the 6th defendant was called for this purpose. It was told to her as follows; We have sold the suit land in favour of the plaintiff. The amount of Rs. 475/-due to you will be paid by the plaintiff and you should hand over possession to the plaintiff.' Then the sixth defendant stated as follows: 'There is crop on the suit land. Hence after reaping this crop, 1 will hand over possession of the same.'
11. Practically to the same effect is the evidence of P. W. 2 in this case. He also states that the land was sold for a sum of Rs. 1000/- (I. C.) by defendants 1 to 5 in favour of the plaintiff, and he supports the evidence of P. W. 1 in the case.
12. The cumulative effect of all the evidence together with the allegations in the plaint that an absolute sale of the land has been made by defendants 1 to 5 in favour of the plaintiff leads to the conclusion that the transaction could not be anything other than a sale. It should he remembered that the pleadings in this case are drawn up by persons who know the Law. It is not as though a person unacquainted with legal phraseology or the connotation of the legal terms has drawn up the plaint.
If that is so, the only inference is that before using the expressions and legal terminology like 'absolute sale' the advocate concerned has known the full significance thereof and has used them. Further the evidence on behalf of the plaintiff is led by an advocate.
In the examination in chief itself of Plaintiff's witnesses 1 and 2 it has been elicited that the transaction is a sale and a sum of Rs. 575/- has been paid as part of the consideration. This has been supported by the evidence of the plaintiff himself who has been examined as D. W. 1 in the case. Reading the plaint as a whole it is evident that the transaction in respect of which the suit has been brought is a sale and not an agreement to sell.
13. If so, the sale should have been evidenced by a registered document as per the provisions of Section 54 of the Transfer of Property Act which states in unmistakable terms that such a transfer in case of tangible immoveable property of the value of Rs. 100/- and upwards or in the case of reversion or other tangible thing can be made only by a registered instrument. Oral sale of immoveable property of a value of admittedly above one hundred rupees is absolutely of no effect and does not give rise to any legal consequence or rights in favour of a plaintiff and title to the land cannot pass to the plaintiff by such an oral sale. As such, the plaintiffs suit is misconceived and has to fail on this ground alone because of the fact that no suit for specific performance could be filed in respect of such a transaction.
14. Relying on the decision reported in Jyothaiah v. Raghu, 37 Deccan LR 306, Sri Ashrit, the learned Counsel for the respondent argues that the nature of this transaction is a contract for sale and not a sale. His contention is that in some portion of the plaint the term 'Mowade buy' has been used. That indicates that the parties intended the transaction to be an agreement and not a sale itself. But this contention of Mr. Ashrit goes against the terms of the plaint read as a whole and also against the evidence in this case which, as I have stated above clearly shows that the transaction was an out and out sale as stated by the plaintiff himself.
'Buy Khatia' those are the words used meaning 'absolute sale'. The case reported in 37 Deccan LR 306 lays down the principle that sale of immoveable property above Rs. 100/- can be effected only by a registered instrument but there is no necessity for registering the agreement to sell. The distinction between the two have been brought out in the case and it was held by their Lordships of the Hyderabad High Court, and rightly too, if I should say with respect, that the transaction was an agreement to sell.
In that case ther.e was a document in writing to sell the property for Rs. 1500/- evidencing the transaction which slated as follows: That the property is to be sold for Rs. 1500/- and the vendor requests for permission to sell the property (in that case the property could not be sold without such permission of the Collector of Aval Talukdar). The expression used in the document is 'Buy Karta Hu' meaning 'will sell the property'. The future tense is used. It is not put down as 'buy kia hai' or 'kardia hai' meaning that the property has been sold.
This case is clearly distinguishable from the present case. There permission was required to sell the property and the sale transaction could be effected only after the requisite permission was obtained. There is no such impediment at all for the sale of the property in the present case. Their Lordships have quoted the very terms of the document which state that it was agreed that the vendor will obtain the requisite permission from the Aval Talukdar (corresponding to the Deputy Commissioner) and then complete the 'buy nama' or the sale deed.
15. As against this decision, the decision reported in Devadoss v. Gopala Rao 38 Deccan LR 20, is placed before us hy Mr. Zakaulla. In that case there were offer and acceptance to sell the properly. Payment of the consideration was made by the purchaser to the vendor, possession of part of the property sold was given to the purchaser and it was agreed that a registered sale deed would be executed. Under such circumstances, their Lordships of the Hyderabad High Court held that a document was not an agreement to sell and therefore must be registered compulsorily. They further held that if it is not possible to find out the intention of the parties from the document itself, it can be gathered from the surrounding circumstances. Reliance is placed by their Lordships of the Hyderabad High Court on a Privy Council case of James R. R. Skinner v. R. H. Skinner, AIR 1929 PC 269.
16. In view of my finding that the suit transaction evidences a sale, the question of legal necessity pales into insignificance. Even though both the courts below have concurrently held that there was legal necessity for the sale, stilt we do not like to go into this matter because of the fact that when the plaintiff's suit itself is not maintainable his success re: issue of legal necessity is of no consequence.
17. There is another circumstance which requires consideration. Venkayya the sixth defendant died and an application was filed on 16-1-1956 before the erstwhile Hyderabad High Court praying for striking off her name as she had left behind her no legal representatives. Notices were issued to the rspondent-plaintiff, but plaintiff filed no objections. On the transfer of this case to this High Court, the application of the plaintiff was allowed on 31-1-1958 on the ground that it was not opposed.
18. Sri Ashrit. the learned Counsel for the respondent has argued before us that as Venkavva died during the pendency of the appeal and since both the Courts below have passed a decree against her and in favour of the plaintiff, those orders have become final and the appeal has abated against her. Mr. Ashrit goes a step further and contends that since the cause of action as found in the suit is one and indivisible and when a final decree is passed against the second respondent (the sixth defendant) the cause of action being a joint one, the decree being indivisible, the appeal as a whole abates and not only abates against the second respondent sixth defendant.
19. A careful reading of the plaint discloses that two reliefs are claimed by the plaintiff (1) as against defendants 1 to 5, he has prayed for specific performance of the contract of sale; (2) as against the sixth defendant -- former second respondent Venkavva, he has prayed for recovery of possession on payment of the mortgage money. Thus it is seen that the reliefs prayed for are disjunctive and not joint or conjunctive.
If one and same relief was prayed for against allthe defendants and if due to the death of one of the defendants, the suit abated and it was not possible to separate the reliefs between the person who is dead and those who are represented and alive, then the law is clear to the effect that the suit as a whole abates. But in this case as I have stated above that contingency does not arise, as in my opinion the reliefs prayed for are disjunctive and separate. Thus, there is no possibility of a joint decree as against all the defendants.
20. It is argued with a certain amount of force by Mr. Ashrit, the learned Advocate for the respondent that in case the result of allowing of the appeal leads to conflicting decisions, then it is a well settled principle of law that Courts should avoid as far as possible such a conflict. In support of his contention Sri Ashrit has relied on quite a number of decisions. If it is a case of a joint decree and if the interests of the sixth defendant are not separable from the interests of defendants 1 to 5, the contentions of Mr. Ashrit would have had great force. But as I have stared above, taking into consideration the prayer of the plaintiff-respondent in the plaint, no joint decree can be spelled out of it.
21. Again in most of the cases cited from the Bar, the question of abatement has arisen on account of the laches on the part of the appellant. There are eases where no application for bringing the legal representatives on record has been filed or if at all filed, it is filed beyond the time and hence rejected by the Court. But the circumstances of this case show that the appellants have, as far back as 1956 filed an application before the erstwhile Hyderabad High Court to the effect that the sixth respondent is dead; she has left no legal representatives and therefore, her name should be struck off. What is more, when the case was transferred to this Court, no objections were filed on behalf of the respondent and hence an order to the following effect was pass-ed.
'The application is not opposed and hence it is allowed.'
This is another distinguishing feature of this case which takes it away from the purview of cases cited by Sri Ashrit in support of his contention.
22. Mr. Ashrit argues and justifiably too, that in a case of this kind, the provisions of Order 41, Rule 4 of the Code of Civil Procedure do not apply. Order 41 Rule 4 runs as follows:
'Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be.'
23. Order 41 Rule 4 of the Code of Civil Procedure applies only when all the plaintiffs or defendants are alive at the time when the decree of the appellate Court is passed. To this extent I accept the argument of Sri Ashrit. This provision should not run counter to the provisions of Order 22 Rule 3 of the Code of Civil Procedure as rightly held in the Full Bench decision of the Patna High Court report-ed in Ramphal Sahu v. Sat Deo Jah, AIR 1940 Pat 346, wherein their Lordships of the Patna High Court have held as follows:
'By reason of the provisions of Rr. 3 and 11 of Order 22, the appeal in so far as it concerns the deceased appellant abates and as the abatement if not set aside has the force of a decree, the matter becomes final as against the deceased appellant. There is nothing in Order 41 Rule 4 which permits the Court to disturb that finality of the decree as against the deceased appellant. The words 'and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be' in Order 41 Rule 4 suggest that all the plaintiffs or defendants are alive at the time when the decree of the appellate Court is passed. The wording is not appropriate to a case where one of the plaintiff or defendant appellant has died during the pendency of the appeal. Hence the appellate Court has no power to proceed with the hearing of the appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4. If all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and the application for setting aside the abatement so far as the deceased appellant is concerned has been refused assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants.'
As I have stated the reliefs prayed for are disjunctive and therefore, if one of the defendants dies who is not represented, still the appeal as a whole does not abate. Moreover, no conflict of decisions arises by granting the relief to defendants 1 to 5. If the transaction is considered to be of no legal consequence whatsoever, if it is held that it is an out and out sale and therefore, the oral sale is of no value whatsoever as per the provisions of Section 54 of the Transfer of Property Act and if it is held that contravening the provisions of that Section, the plaintiff in this case gets no rights whatsoever in respect of the property sold, then where can there be any kind of conflict between his interest and the interest that he might have obtained by the two decrees passed by the Courts below in his favour as against the sixth defendant.
24. In support of his contention Mr. Ashrit relied upon a few cases to which a reference is called for. In Mrs. Gladys Courts v. Dharkhan Singh : AIR1956Pat373 , it stated that:
'Where during the pendency of the first appeal one of the respondent dies and the case cannot proceed by reason of the death of one of the parties, the whole appeal abates. The decree passed without impleading his legal representative is a nullity.'
25. Lilawalhi Bai v. Gangadhar, AIR 1953 Nag 12, is also to the same effect. In that case one of the defendants died. An application to substitute his legal representative was dismissed as being out of time. The appeal was held to abate in its entirety and the other defendants could not continue it by resorting to the provisions of Order 41, Rule 4, C. P. C.
Their Lordships of the Nagpur High Court heldthat.
'Order 41, Rule 4 of the Code of Civil Procedurewas not meant to negative the provisions of Order 22. It cannot be said that the failure to make an application under Order 22 can be made good by resorting to Order 41, Rule 4 because to say that is to make the provisions of Order 22 otiose in some cases if not all in which an appellant dies and no application for substituting his legal representative has been made within time or an application for setting aside the abatement has been rejected.'
26. Sheochand Misra v. Seethram Misra : AIR1927All331 , lays down the test to determine whether or not the failure to bring upon record the heirs of one of several respondents who has died has the effect of causing the abatement of the entire appeal or qua that particular respondent alone is as to whether or not the appeal can be decided without as a result of that decision bringing into existence two decrees contrary to each other. Jf the result of hearing and deciding the appeal would bo to bring into existence two decrees of Courts of competent jurisdiction contrary to each other the appeal must abate as a whole. Their Lordships also held further that:
'Where a respondent died during the pendency and the legal representatives arc not brought on record within time, the appeal automatically abates as against him even where the appellant is not aware of his death.'
27. Rani Dhandei Kuer v. Fatrna Zubra : AIR1939All698 , deals with the case of joint causes of action. Their Lordships of the Allahabad High Court held as follows:
'If the absence of the legal representative of the deceased party from the record will result in the possibility of two inconsistent and contradictory decrees or make it impossible effectually to execute a decree that may be passed in appeal, the appeal must fail. Where a joint act of the defendants is the cause of action for the suit and a joint relief is claimed against all the defendants and if one of the defendants dies during the pendency of the appeal from the dismissal of the suit and his legal representative is not brought on record, the appeal abates as a whole and must be dismissed as there will be two inconsistent decrees if the appeal were allowed.'
As I have already stated the principles enunciated in the above cases are inapplicable to the facts of the present case.
28. Mr. Zakaulla, the learned Counsel who hasargued the case for the appellant's counsel has citedbefore us the decision reported in Lachmi Narain v.Musaddilal AIR 1942 Oudh 155, wherein considering the scope and the applicability of Order 22,Rule 4, C. P. C., their Lordships of the Oudh HighCourt have held as follows:
'The mere fact that the absence of the legal representatives of a deceased party from record will result in two inconsistent decrees is not sufficient for holding that the appeal abates in toto. Law Courts as far as possible avoid inconsistency but it is their business to do justice between the parties and if by pedantic adherence to consistency injustice will be done, they will prefer justice to consistency and therefore, inconsistency is not an absolute test. If a decree is made jointly in favour of all the defendants and their interests inter se are neither separate nor separable, it may lead to conflicting decrees, if art appeal is allowed in the absence of some of the defendants in whose favour the original decree stands. In such cases, therefore the non-inclusion of some of the defendants as respondents mustnaturally result in the failure of the whole appeal but where this is not the case and there is no danger of coming into conflict with any other recognised principle of law, there is no bar against an appeal proceeding against some of the defendants who are impleaded as respondents'.
29. In the decision reported in Kanhaiyalal v. Balaram, AIR 1954 Nag 274, it was held by the Lordships of the Nagpur High Court as follows: In the Second Appeal the only matter for controversy related to that part of the decree whereby the plaintiff-respondents were granted reliefs by way of recovery of possession. Two of the sharers died during the pendency of the appeal but their interest was wholly distinct and separate from that of the plaintiff-respondents.
Hence their Lordships held that that was an illustration of that class of raises where several persons having separate and definite interest in the property sue for possession and obtain a decree for possession. It is, therefore possible for the Court to determine the controversy as between the parties before it without affecting the interests of the plaintiff not represented before the Court. They further held that the case was outside the class of cases covered by the leading judgment in Ghanaram v. Balbhadra Sai, AIR 1938 Nag 42. Consequently the appeal abated not as a whole but against the heirs of the deceased respondent.
30. In our view taking into consideration the nature of the reliefs claimed and the circumstances of this case, no question of abatement of the suit arises.
31. In conclusion I hold that this appeal should succeed subject to the following conditions: It is in evidence that the plaintiff has paid a sum of Rs. 575/- to defendants 1 to 5 as part of the consideration for the sale. There is concurrent finding of both the courts below regarding that matter. Hence it is but just that plaintiff should not be deprived of the money that he has paid as part of the consideration for the purchase of the suit property.
While, therefore, allowing the appeal it is ordered that defendants 2 to 5 (as the first defendant is since dead) should pay the sum of Rs. 575/-together with interest thereon at three per cent. per annum from the last day of Azur 1350F, till the date of realisation. The amount shall be paid within three months from this date, failing which, the respondent will be entitled to recover the said amount by means of execution. A decree in terms thereof is accordingly passed.
32. As regards costs, it is ordered that each party will bear his own costs in this appeal as well as of the Courts below.
33. AHMED ALI KHAN J. : I agree.
34. Order accordingly.