(1) Before proceeding to deal with the merits of this Second Appeal , it will be necessary to dispose of an application which has been filed by the appellant . This application has been marked I.A. No. 11 and purports to be under S. 153, C.P.C. reads with Order 1 Rule 10 and S. 151, C.P.C. The fact, which have given occasion to this application are as follows: The present appellant was the defendant in the suit before the trial Court. That was a suit which the plaintiff had brought for recovery of possession of the suit schedule property. The plaintiff therein claimed that he had become entitled to the suit schedule property by value of Exhibit 27 which was a sale deed dated 17.4.1946 executed by the defendant. That suit having been dressed by the trial Court, the defendant had preferred an appeal which came up for beating before the second Extra Assistance Judge, Belgaum . That appeal was heard by that learned judge on 4.4.1957 and judgment was pronounced on the same day, dismissing that appeal . It is against that judgment of the Second Extra Assistant Judge, Belgaum, that the present Second Appeal has been filed by the original defendant.
In the Second Appeal so filed by the original defendant the original plaintiff had been shown as the respondent . But it appears, that the plaintiff had died on 3.3.1957 which was a even prior to that on which the Second Extra Assistant Judge, Belgaum heard the appeal before him. The appellant in this Second Appeal filed an application alleging that he had not known of the death of the plaintiff and praying for the legal representatives of the original plaintiff being brought on record to this Second Appeal , in place of the original plaintiff who had been shown as the respondent . It was stated in that application filed by the present appellant , that his appeal could have been only against the legal representatives of the decreased original plaintiff and that therefore the legal representatives of the original plaintiff May be considered to have been substituted in place of the original plaintiff who had been shown as the respondent .
While this application was pending the present appellant filed a memo stating that he had also filed another application before the lower appellate court seeking to bring the children of the deceased plaintiff on record as the legal representatives or the deceased respondent in the appeal which had been decided by the Second Extra Assistant Judge, Belgaum. Thereupon, the records of the case were sent to the lower appellate Court so that it May dispose of the application before it. The Second Extra Assistant Judge, Belgaum, did no allow that application. The lower appellate court pointed out that the Provision, of Order XXII Rule 6 C.P.C. were not applicable, as it had been alleged that the death of the respondent had taken place even before arguments were heard by that court, it also point out that the stand taken by the defendant was to the effect that the decree of the lower appellate court was a nullity, it dismissed the application which had been made by the defendant appellant . It is therefore, that in the Second Appeal itself which came up for hearing that the present application I.A. No. 11 has been filed.
(2) The short question for consideration in regard to I.A. No. 11 whether the appellant should be permitted to attend the Appeal Memo bringing on record the legal representatives of the original plaintiff, when the plaintiff was already dead by the time the present appeal was filed. After having hated arguments on this question, it appears to me that on this question, courts have taken two views. One view is that when the respondent was dead by the time the appeal is filed, the appeal must be treated as auction- purchaser nullity, the alternative view is that even though the respondent might have been dead to the time when the appeal was filed. It was still open to the Court by having recourse to S. 158 of the Code of Civil Procedure to permit the legal representatives to be brought on record and to treat as if the appeal had been filed against them. A Bench decision of the Madhya, Bharat High Court reported in Hindusthan General Insurance Society Ltd. V. Kedarnarayan, AIR 1956 Madh-B, 76 has preferred the former view. In the Full Bench division of the Madras High Court reported to Gopalakrishnayya v. Lakshmana Rao, AIR 1925 Mad 1210 the view has been taken that if an appeal is presented against a person who was dead at the date of presentation, the Court May under S. 153, C.P.C. permit the cause title to be amended or May return the Appeal Memorandum for amendment and representation.
(8) In the Madhya Bharat case, the learned judges of the Madhya Bharat High Court were not indicated to accept the view of the Madras Full Bench in the 1925 Madras case,. They raised on a decision of Chagla C.J. in Bai Patti Vankar v. Madhbhai Galabhai, : AIR1953Bom356 . In that Bombay case, his Lordship Chagla C.J. had to consider the question of the validity of an appeal which had been filed by a pleader, after his client had died. It was held by his Lordship that the appellant being dead, the pleader who preferred the appeal had no authority to prefer any appeal and the Vakalathnama signed in his favour had come to an end. It was in those circumstances that it was held that such an appeal was a nullity. It seems to, me, that the question of the validity of his appeal filed against a respondent who happened to be dead at the name of filing of that appeal , did not directly arise for determination in that case.
In the Madras Full Bench decision above referred to, the learned Judges stated as follows:
'Although the appeal May be incompetent owing to the wrong person named as the respondent , the Court which deals with it is acting in a proceeding in a suit and as such has fill power under S. 153 to direct an amendment of the Appeal Memorandum'.
In Savithramma, v. Nanjundappa, 25 Mys LJ 113 the High Court of the former state of Mysore had occasion to decide the question as to whether a suit age sole defendant who was dead before the institution of that suit, was a nullity. In considering the question as to the applicability of S. 153 C.P. C. to a suit of that kind, the learned judges pointed out the difference between such a suit and an appeal in which at the time of the institution of that appeal the respondent was dead. This is what the learned judges stated:
'There is a difference between the two classes of cases because, in the case of an appeal presented against a person who is dead at the date of presentation, it is auction- purchaser continuation of that suit validly filed by a living plaintiff against a living defendant at the time of the institution to the suit and an appeal being auction- purchaser continuation of such validly filed suit is a proceeding in the suit' within the meaning of that phrase in S. 153 of the Code of Civil Procedure and therefore that section could be applied to all such cases, whereas, as already mentioned, a suit filed against a person who was dead at the date of presentation of the plaint others a nullity from its conception of 'a proceeding in the suit' arises in such a case to attract the provision of S. 153 of the Code of Civil Procedure'.
The reason for taking the view that S. 153 C.P.C. would be applicable to an appeal filed against a person who was dead at the time of the institution person of that appeal, is thus clearly stated in the above Mysore decision. I would prefer to follow the above Full Bench decision of the Madras High Court ; though the reason underlying that view has not been explained in detail in the Full Bench decision, it has been made clear in the above said Mysore decision.
(4) At one stage of his argument Sri Dayanand appearing for the appellant, suggested that the judgment and decree of the lower appellate Court may be treated as a nullity and the appeal remanded to the lower appellate Court for a fresh hearing and disposal. I do not think that this should be done. The defendant, who was the appellant before the lower appellate Court, had a duty to bring to the notice of the Court that the respondent had died. Not having been informed of the death of the respondent, the lower appellate Court proceed to hear the argument and disposed of the appeal. The defendant was in no way prejudiced; because, he had the opportunity to represent his case before the lower appellate Court ; if at all, it is the legal representatives of the deceased plaintiff that should have a grievance on the ground that when the arguments were heard by the lower appellate Court , the plaintiff was not alive. But, they are not aggrieved by the decision given by the lower appellate Court and they do not seek of a rehearing by the lower appellate Court, of the appeal. In these circumstances, it appears to me that the defendant who had committed a default in not bringing to the notice of the Court the death follow the opposite party, ought not be permitted now to take advantage of his own default when he finds that the decision of the lower appellate Court, has gone against him.
(5) Having reached the conclusion that in the circumstances of this case, it is open to the Court to permit an amendment of the Appeal Memo, by having recourse to the provisions of S. 153 of the Civil Procedure Code, I order that the Appeal Memo be amended by bringing the legal representatives of the deceased plaintiff on record.
(6) So far as the appeal on merits is concerned, the relevant facts are as follows. In defence to the plaintiff 's suit for possession founded on Exhibit 27 the sale deed which had been executed by the defendant, the latter had put forth two contentions. The first was, a consideration of Rs. 2000/-, the defendant had received only a consideration of Rs. 1800/- and that the balance of Rs. 200/- has not been paid; towards the consideration for the sale.
As regards the second contention, it has been held by the courts below that the same barred by S. 91 of the Indian Evidence Act. So far as the first point is concerned, Sri Dayanand appearing for the appellant, frankly conceded that the finding the courts below that the defendant had not established that only Rs. 1800/- had been paid as consideration, is a finding of fact and that the same cannot be questioned in Second Appeal. The only question of law is , whether the Court below were right in their view in regard to the effect of S. 91 of the Evidence Act, it will not be open to the defendant who is a party to this registered document, to let in oral evidence to show that the terms of contract between the parties were different or were at variance with the terms contained in this registered instrument.
Therefore, the Courts below were quite correct in taking the view that the defendant was precluded from letting in any oral evidence in support of his case that there was an oral agreement to the effect that on payment of Rs. 1800/- the plaintiff should reconvey the property. It may also be stated that by virtue of the proviso to sub-section (c) of S. 58 of the Transfer of Property Act, a transaction such as is alleged by the defendant, cannot be deemed to be a mortgage unless the condition of retransfer is embodied in the document which effects or purports to effect the sale. Under these circumstances, the Courts below were right in having rejected the defendant's contention.
(7) Sri Dayanand in the course of his arguments pointed out that the plaintiff had admitted in the course of his evidence that the defendant was a tenant and Sri Dayanand sought to contend that by virtue of the provisions of the Bombay Tenancy and Agricultural Lands Act, the possession of the defendant was not liable to be disturbed in execution of a decree of a civil court. No plea has been taken by the defendant in his written statement that he was a tenant; that being so , he cannot now be permitted to raise the contention for the first time, in Second Appeal, that he is a tenant.
(8) This Second Appeal fails and the same is dismissed with costs.
(9)JE/M/K.S.B.
(10) Appeal dismissed.