# MOHAN LAL v. ANANDIBAI & ORS

- **Citation:** [1971] 3 S.C.R. 929
- **Court:** Supreme Court of India
- **Decided:** 1971-03-03
- **Case number:** Civil Appeal No. 473 of 1966
- **Bench:** J. M. Shelat, I. D. Dua, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohan-lal-v-anandibai-ors-5457
- **Pages:** 13

## Headnote

Practice and Procedure-Plea not raised in pleadings or issues or
evidence-If could be allowed tp be raised in argumenrs-Amendmenl of
pleadings-When may be permitted.
The appellant, who was the mortgagee purchased under two sale deeds
dated 13th May, 1951 the mortgaged property in discharge of the mortgage.
The respondents, who were the daughters of the original owner
filed a suit claiming title to the property under gift deeds executed by
their mother with respect to a share, (which she got under a sale deed
from her husband) and by their father on 2nd May 1951, in respect of
the entire property. and alleging that the sale deeds in favour Of the
appellant were collusive. The trial court held that the gift deed executed
by the mother was valid but that the gift deed executed by the father
was fraudulent and not binding on the appellant. On appeal, the first
appellate court held that both the gift deeds were invalid. It held that the
mother had lost her right to her share, that the gift deed executed by the
father was antedated having been in fact executed after 13th May, 1951,
and that it was intended to .llefeat the sale in favour of the appellant. It also
held that a judgment in another matter inter parties, delivered during the
pendency of the appeal, operated as res judiccta. It held that the gift deed
by the father was antedated on the grounds. (i) it was belatedly registered
on 23rd August 1951 and (ii) the register of the petition-writer who
wrote the gift deed was not produced thus raising a presumption aga:nst
the respondents.
In secon,i appeal. the High Court held that the lower
courts erred in deciding the case on the grounds of fraud or antedating
when no such case was put forward in the pleadings, that on the question
of res judicata there was not enough material, and that the case should be
remanded permitting the parties to make amendments in their pleadings
but only in respect of th• plea of res judicata.
In appeal to this Court it was contended that : (I) the High Court
was not justified in setting aside the findings of the first appellate court
that the gift deed executed by the father was fraudulent and ante-dated,
(2) the appellant should have been given an opportunity to amend the
written statement so as to include pleas in respect of the fraudulent nature
and antedating; and ( 3) the High Court in fact had set aside all the find··
ings and therefore its order permitted the appellants to raise new ole"'
by amending the pleadings.
HELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'#gift deed was execut~d
by the father after May 13, 1951 and that it was ante-dated. Not only w~s
there no substance of such pleas there was not even a hint of such obje¢··
tions in the pleadings, and even the facts necessary for determining the·
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questions were not before the court.
Even the parties and the tr:al court
did not understand the pleadings as containing a plea that the gift deed
was antedated and fraudulent in the sense of having been executed to
defeat and delay the creditors of the father <)f the;;tespond•nts. No i:sue
930
SUPREME COURT REPORTS
[1971 ]3 S.C.R.
was framed on the question of fraud or antedating.
Even in the course·
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of evidence no questions were put on behalf of the appellant to the witnesses of the respondents suggesting such fraud or antedating. The question of the g:ft deed being fraudulent was raised for the first time before
the trial court in the course of arguments after the parties had already
concluded their evidence. [934 B-D; 935 B-D; 937 El
.
Therefore, there was no justification fdr the trial court to go into the
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<JUestion and record its finding. [935 DJ
Nagubai Ammal v. B. Shaina Rco, [1956] S.C.R. 451; J(unju Kesavan
·v. M. M. Phillip, [1964] 3 S.C.R. 634, Kidar Lall Seal v. Hari Liill Seal,
[1952] S.C.R. 179 and Union of India v.MI s. Khas Karanapura Colliery
~
.Ltd. (1968] 3 S.C.R. 784, referred to.
(b) The firs

## Text

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929
MOHAN LAL
v.
ANANDIBAI & ORS.
March 3, 1971
[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.]
Practice and Procedure-Plea not raised in pleadings or issues or
evidence-If could be allowed tp be raised in argumenrs-Amendmenl of
pleadings-When may be permitted.
The appellant, who was the mortgagee purchased under two sale deeds
dated 13th May, 1951 the mortgaged property in discharge of the mortgage.
The respondents, who were the daughters of the original owner
filed a suit claiming title to the property under gift deeds executed by
their mother with respect to a share, (which she got under a sale deed
from her husband) and by their father on 2nd May 1951, in respect of
the entire property. and alleging that the sale deeds in favour Of the
appellant were collusive. The trial court held that the gift deed executed
by the mother was valid but that the gift deed executed by the father
was fraudulent and not binding on the appellant. On appeal, the first
appellate court held that both the gift deeds were invalid. It held that the
mother had lost her right to her share, that the gift deed executed by the
father was antedated having been in fact executed after 13th May, 1951,
and that it was intended to .llefeat the sale in favour of the appellant. It also
held that a judgment in another matter inter parties, delivered during the
pendency of the appeal, operated as res judiccta. It held that the gift deed
by the father was antedated on the grounds. (i) it was belatedly registered
on 23rd August 1951 and (ii) the register of the petition-writer who
wrote the gift deed was not produced thus raising a presumption aga:nst
the respondents.
In secon,i appeal. the High Court held that the lower
courts erred in deciding the case on the grounds of fraud or antedating
when no such case was put forward in the pleadings, that on the question
of res judicata there was not enough material, and that the case should be
remanded permitting the parties to make amendments in their pleadings
but only in respect of th• plea of res judicata.
In appeal to this Court it was contended that : (I) the High Court
was not justified in setting aside the findings of the first appellate court
that the gift deed executed by the father was fraudulent and ante-dated,
(2) the appellant should have been given an opportunity to amend the
written statement so as to include pleas in respect of the fraudulent nature
and antedating; and ( 3) the High Court in fact had set aside all the find··
ings and therefore its order permitted the appellants to raise new ole"'
by amending the pleadings.
HELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'#gift deed was execut~d
by the father after May 13, 1951 and that it was ante-dated. Not only w~s
there no substance of such pleas there was not even a hint of such obje¢··
tions in the pleadings, and even the facts necessary for determining the·
H
questions were not before the court.
Even the parties and the tr:al court
did not understand the pleadings as containing a plea that the gift deed
was antedated and fraudulent in the sense of having been executed to
defeat and delay the creditors of the father <)f the;;tespond•nts. No i:sue
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SUPREME COURT REPORTS
[1971 ]3 S.C.R.
was framed on the question of fraud or antedating.
Even in the course·
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of evidence no questions were put on behalf of the appellant to the witnesses of the respondents suggesting such fraud or antedating. The question of the g:ft deed being fraudulent was raised for the first time before
the trial court in the course of arguments after the parties had already
concluded their evidence. [934 B-D; 935 B-D; 937 El
.
Therefore, there was no justification fdr the trial court to go into the
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<JUestion and record its finding. [935 DJ
Nagubai Ammal v. B. Shaina Rco, [1956] S.C.R. 451; J(unju Kesavan
·v. M. M. Phillip, [1964] 3 S.C.R. 634, Kidar Lall Seal v. Hari Liill Seal,
[1952] S.C.R. 179 and Union of India v.MI s. Khas Karanapura Colliery
~
.Ltd. (1968] 3 S.C.R. 784, referred to.
(b) The first appellate court committed a similar error in affirming
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t_his finding of the trial court and committed a greater error in going into
the question whether the gift deed was antedated, because, the plea was
raised for the fii:st time before it only in the course of arguments.
The
-delay in registration was not explained by the respondents because the
plea was not raised in the trial court and was raised for the first time at
the appellate stage.
The register of the petition-writer was not a documen! maintained by or in possession of the respondents. Its non-producD
·ti on could only affect the evidence of petition-writer, but even if his
·evidence was not relied upon no finding of ante-dating could be given
when there was no assertion and no evidence on behalf of the appellants.
[935 E-F; 936 E-H]
,.
(c) Further, the appellant was the only creditor of the respondents'
~
father and the gift in respect of the properties already mortgaged could
not in any way defeat or delay his right because the donee could only
take the prope·rties subject to the mortgage. [935 G-H]
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(d) The plea that the mother lost her right to her share of the property . and that her husband acquired the right was immaterial, because,
even if her gift deed was disregarded the title to the properties was
· acquired by the respondents through the gift deed executed by the father.
[939 D-E] ..
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(2) The pleas regardin~ the fraudulent nature and ante-dating of the
gift deed, should not be allowed to oe raised by amendment because, a
·suit based on such pleas would be time barred and it would be unfair to
the respondents to allow these pleas to be raised by amendment at such
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a late stage. The pleas of fraud and antedating i11 respect of the gift deed
raise an entirely_ new cause of action and a case quite different from that
pleaded in the original written stateDjent. It would not be merely a case
of a different or additional approach to facts already given in the written
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siatement. [941 B-C]
L. J. Leach & Co'iJ'a11y Ltd. v. Jardine Skinner & Co. (1957] S.C.R.
438 and A. K. Gupta & Sons v. Damodar Valley Corporation (1966] 1
S.C.R. 796. referred to.
( 3) Jn directing that the findings of both courts are set aside lhe High
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Court was only referring to the points which it considered and on which
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it differed· from the lower courts.
Therefore, in permitting amendments,
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the High Court had given only liberty to the. appellant to amend his written
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stat~ment bv setting .... out the requisite particulars and details of his plea of
res judicata· and other amendments which relate to the plea of res judicata.
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MOIM.N LAL v. ANANDIBAI (Bhargava, /.)
931
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The permission to amend could not be interpreted as giviilg liberty to the
appellant to raise any new pleas which were not raised at the initial stage.
(939 G-H;940 A-CJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 473 of
1966.
Appeal by specfal leave from the judgment and decree dated
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August 14, 1964 of the Bombay High Court, Nagpur Bench in
Appeal No. 93 of 1959 from Appellate Decree.
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M. N. Phadke a.nd A. G. Ratnaparkhi, for the appelian:.
It L. Roshan and H. K. Puri, for respondent Nos. 1 to 3.
The Judgment of the Court was delivered by
Bhargava, J.-This appeal by special leave has been filed by
Mohan Lal who purchased the property dn dispute from the
original owner, Bhiwa, by means of two
sale-deeds
Exhibits
D-1 and D-2 both dated 13th May,
1951.
The
properties
were already mortgaged in favour of the appellant by two earlier
mortgage-deeds exP...cuted on 23rd March, 1949 and 26th June,
1949
respectively.
The
plaintiff-respondents
claimed
that
the two sale
deeds
were
collusive
transactions
between
Bhiwa and the appellant and that, in auy case, Bhiwa
had
no
right to sell these
properties to
the appellant,
as the respondents had become owners of these prcperties
prior to the execution of the sale-deeds.
The four plaintiff-respondents are the daughters of Bhiwa by two wives, one of th·~m being
Smt. Hendri.
According to their case. Bhiwa sold two of his
malik-makbuza fields having an area of 11.33 acres by sal.~-d·~ed
Ext. D-31 to his wife Smt. Mendra and to his nephew.
Barshya,
each of the vendees getting a half share in those fields.
Later,
Barshya re-conveyed his share to Bhiwa on
20th
Ju:y, 1921.
With regard to the share sold to Smt. Mendra, disputes
arose
between her and Bhiwa.
Bhiwa. consequently. filed a sui: in the
year 1941 for cancellation of the sale-deed Ext. D-31 and for
a declaration that he was the owner of the entire fields.
The
suit ~as compromise~ and a decree was passed giving Smt. Mendra
the nght of ownership to !th share in those two fields. Acco1ding
to the plaintiff-respondents this share of Smt. Mendri was 2iftcd
by her to the plaintiff-respondents by two g;ft deeds Exts. P-l and
P-2 dated 3rd October, 1948 and 28th October, 1948. The title
to the property to the extent covered by these two gift deeds was
claimed by the plaintiff-respondents on the basis of those deeds.
In addition, a deed of 2ift Ext. P-3 was executed by Bhiwa himself
in favour of the plaintiff-respondents on 2nd May, 1951. and this
covered the entire property in respect of which sale-deeds were
later executed by Bhiwa in favour of the appellant on May 13.
1951.
On the basis of this gift-deed, the plaintiff-respondents
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SUPREME COURT REPORTS
[ 1971] 3 S.C.R.
claimc:d title to the entire property sold to the appellant by the
two sale-deeds, so that claim in respect of part of the property was
based on both the gift-deeds executed by Smt. Mendri, as well as
the gift-deed executed qy Bhiwa.
Since the appellant came into
possession under the two sale-deeds, the plaintiff-respondents
brought a suit for declaration of thei! title and pos~ession.
The trial Court held that the gift-cLeed Ext. P-3 executed by
Bhiwa was fraudulent and, consequently, not binding on the appellant.
The gift-deeds Exts. P-1 and P-2 executed by
Smt.
Menc'ri were held to be vaild.
The plea of the plaintiff-respondents that the sale-deeds Exts. D-1 and D2 in favour of the
appellant were not genuine was rejected. In respect of the property gifted by Mendri, the trial Court further recorded the finding that Mendri had not lost her right prior to
the execu-
;iop of the sale-deeds.
This finding had to be given, as the
appellant relied on the fact that there were proceedings under
section 145 of the Code of Criminal Procedure between Bhiwa
and Smt. Mendri after the compromise in Bhiwas suit recognising
Mendri's right to 1/4th share in the two fields. In those proceedings, the entire fileds were declared to be in possession of Bhiwa
and a direction was made by the Magistrate to Mendri to file
a suit for getting her 1/ 4th share partitioned. No such suit was
filed within the period of three years as required by Article 47
of the India.n Limitation Act, 1908. It was,
therefore,
urged
that Mendri lost her right to the fields, so that the two deeds
of gifts executed by her in favour of the plaintiff-respondents
could not convey any title to them.
Against this judgment tho~ trial Court, an appeal was filed hy
the plaintiff-respondents, while a cross-objection was filed by the
defendant-appellant.
The appeal and the cross-objection were
heard by the Second Additional District Judge, Bhandara. The
appeal by the plaintiff-respendents related to the property in respect of which their claim had been disallowed by the trial ·Court.
while the appellant in the cross-objection challenged the decree
in· favour of the respondents in respect of 1/4 th share of Smt.
Mendri. The 2nd Additional District Judge dismissed the appeal
of the respondents and allowed the cross-ob.iection of the appellant. The appellant's cross-objection was allowed on the ground
that Mendri had lost her right to the property before executing
t'i~ gift-deeds in favour of the respondents on account of her
failure to file a suit for partition or possession within three years
after the order of the Magistrate under s. 145 of the Code of
Criminal Procedure.
The respondent's appeal
was
dismissed
affirming the findings of the trial Court, but on two additional
grounds.
One ground was that the gift-deed executed by Bhiwa
in favour of the plaintiff-respondents was in fact ante-dated and
had been executed after the
13th May, 1951, so that it was
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MOHAN LAL v. ANANDIBAI (Bhargava, /.)
933
fraudulent and was intended to defeat the sale in favour of the
appellant. The second ground was that the suit of the plaintiffrespondents was barred by the principle of res judicata in view
of an inter-parties judgment in Civil Suit No. 42-A of 1952 which
did not exist during the pendency of the suit in the trial Court
and was delivered while the appeal was pending in the appellate
Court.
Against this decree passed by the first appellate Court, second
appeal was filed before the High Court of Bombay. The High
Court held that both the lower courts had committed an error
in deciding the case on the .. ground of fraud or ante-dating in
respect of the gift-deed of Bh1wa dated 2nd May, 195 I, becirnso
no 1uch cue was p,ut forward In the pleadinp before the
tri11l
Court. The ftndlnp that the gift-deed wu fraudulent and ante·
dated w. ere 1et 1ulde ed the 1ltt·deed wH, conHquently, held
to be valid. On the quDAtlon ot "' Judlcata, the Hllh Court
came to the view that the m11terl1l, which w111 placed before tho
first appellate Court to decide thl1 qu111lon, wu not 1umclent,
thou.ih the llrst appellate Court was justified in entertaining this
plea, because the judgment in Civil Suit No. 42-A of 19~2 came
mto existence for the first time during the pendency of the appeal.
Consequently, the High Court, while setting aside the decree
passed by the first appellate court dismissing the respondents'
suit, passed an order of remand permitting parties to make
amendments in thefr. pleadings in respect of this plea of res judicata, and directing the trial Court to .consider-prayer for allowh1g" other amendments, but added a condition that amendments
with respect to pleas of fraud, collusion or antedating in respect
.of the gift deed dated 2nd May, 1951 executed by Bhiwa in
favour of the respondents were not to be permitted. It is against
this order of the High Court that the present appeal has been
brought up to this Court by th~ defendant-appellant.
The main point urged on behalf of the appellant was that the
High Court was not justified in setting aside the findings of the
first appellate Court that the gift-deed dated 2nd May, 1951 was
fraudulent and ante-dated, as there were sufficient pleadings to
ju~tify this point b~ing entertained by that Court. In support of
this plea, our attention was drawn to paras 6 and 17 of th~ written
statement of the appellant. In para. 6, the peading was
that
Bhiwa was all along in possession of the lands and the contentions of the plaintiffs to the contrary were denied. There was
no valid transfer by Bhiwa before 13th May, 1951 in favour pf
the plaintiffs as alleged. It w_as denied again that plaintiffs were
in possession of the lands covered by the sale~eds executed b,y
Bhiwa in favour of the defendant, and a suit for mere injunction
was incompetent. The pleading in para. 17 was that Bhiwa and
934
SUPREME COURT REPORTS
[1971] 3 S.C.R.
Mendri had been engaged for the past many years in litigation
and the present plaintiffs had colluded With Bhiwa in seeking
to set at naught the sale deed made by him in favour of the defendant which gave him a discharge of. his liability and a release
of estate from debt validly taken by him.
Plaintiffs were thu:;
not entiiled ito succeed. In the pleadings contained in these two
paragraphs, we are unable to find any indication that the appellant
wanted tG put forward the case that the gi.ft deed executed by
Bhiwa was antedated and that, in fact this gift deed was executed
after 13th May, 1951 and subsequently to the sale deeds in favOlff
of the appellant. The collusion alleged in para. 17 did not purport
to have any relationship with the de.e..d of gift.
That collusion
between the plaintiff-respondents and Bhiwa was alleged to h~ve
been for the purpose of setting at naught the sale deed in favour
of the appellant.
There is indication that even the parties . and
the trial Court did not understand these pleadings as containing
a plea that the gift deed was antedated and fraudulent in the sense
of having been executed to defeat and delay the creditors of Bhiwa.
No issue was framed on the question of fraud
or antedating.
Learned counsel for the
appellant relied on issues 4, 12 and
13 to urge that such pleas were covered by the issues.
These
\ssues are as follows:-
( 4) (a) Whether on 2-5-1951, Bhiwa made the
gift of 5.66t acres of land held in malikA
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makbuza rights and 2.8 acres of occupancy
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land in favour of the plaintiff ?
(b) Whether Bhiwa executed the gift deed in
favour of the plaintiff ?
( c) Whether the plaintiffs
accepted
the
gift
and acquired possession of the property '?
( J 2) Whether the 'plaintiffs have brought this suit
in collusion with Bhiwa ? If so, its effect ?
(13) Whether on 13-5-1951, Bhiwa was not the owner of the fields and he could not convey good
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title to the land in favour of the defendant ?
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None of these issues appears to us to contain any suggestion that
the gift deed by Bhiwa was executed to defeat and delay the
creditors, or it was antedated.
Issue 4(!J.) only challenges the
execution of the gift itself; but there is no suggestion
that the
execution was either antedated or fraudulent.
Issue
No.
12,
which seems to have been framed on the basis of the pleadings
in para. 17 of the written statement, specifically
charges
the
plaintiffs with bringing the suit in collusion with Bhiwa.
The
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MOHAN LAL v. ANANDIBAI (Bhargava, J.)
935
collusion mentioned in para. 17 was thus interpreted to refer to.
collusion in bringing the suit and not in execution of the deed of
gift Ext. P. 3. Issue No. 13 only challenges the title of Bhiwa
at the time of execution of the sale deeds in favour of the appellant
and can, therefore, have no relation at all to the fraud or antedating in respect of the gift deed Ext. P-3.
It is, tfius, clear
that the pleadinj!s were never interpreted up to the stage of the
trial as containing any allegation of fraud or antedating in relation to the gift deed Ext. P. 3.
Even in the course of evidence,
no questions were put on behalf of the appellant to the witnesses
of the plaintiffs suggesting such fraud or antedating, though
questions,were asked in respect of the proper and valid execu"
tion of me. gift deed.
It appears that, for the first
time,
thll
question of the gift deed being fraudulent must have been raised
before the trial Court in the course of arguments after parties
had already concluded their evidence, because the trial Court,
in the judgment dealing with issues Nos. 12 and 13, proceeded
to record a finding that the gift deed Ext. P .-3 was executed by
Bhiwa fraudulently in order to defraud his creditors.
On the
face of it, there! was no justification for the trial Court to go into
this question and record this finding wfien there were no pleadings
in respect of it and, even during the course of trial, evidence was
not led with the object of meeting such a plea. The first appellate Court committed a similar error in affirming this finding recorded by the trial Court. In fact, it proceeded to commit a
greater error in going into the question whether the gift deed was
antedating having been executed after 13th May, 1951.
Such a.
plea of antedating, it seems, was raised for the first time before
the appellate Court in the course of arguments. There is nothing on the record to. show that any such case was put forward at
any earlier stage. The consequence is that the plaintiff-respondents
had no warning that such a case was being, put forward and had
no opportunity of tendering evidence to meet these objections.
In respect of the plea of fraud, evidence could have beeJI given
that Bhiwa had oG,er properties, so that no question of defrauding the creditors could arise.
Both those "ourts also lost sight
of the fact that, on the record, the appellant was shown to be
the only creditor of Bhiwa; there were no other creditors.
As
a creditor, he could not be defrauded, because his loans were·
secured by the mortgage deeds dated 23rd March, 1949 and 26th
June, 1949. A gift by Bhiwa in respect of properties already
mortgaged could not in any way defeat or delay the mortgagee's
right, because the donee under the gift deed could only take
the properties subject to the mortgages. The transfer by the deed
of gift could not in any way affect the mortgagee's rights
under the mortgages.
The finding about fraud recorded by· the
trial Court as well as the appellate Court was therefore, on the ·
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SUPREME C'OURT REPORTS
[1971] 3 S.C.R.
-face of it, totally unjustified, and the High Court was right in
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holding that they committed this error, and setting aside their
Jindings.
So far as the plea of antedating of the gift-deed Ext. P-3
accepted by the appellate Court is concerned, the position is still
worse. There was no suggestion at all that the gift deed was
antedated either in the pleadings or in the course of evidence.
No such suggestion was put forward to any witness of the plaintiff-respondents, nor was any statement made in this behalf by
any witness of the appellant.
The point was not even argued
before the trial Court. It was not mentioned in any form before the appellate Court. It appears to have been raised £or the
lint time In the course of 11r.gument1 In the 11ppelll, without notice
to the other p11rty.
Th11 point w1111 111111ln decided on the b111l1
of the evidence which enme In lneldent11lly wlwn p11rtle1 w@re
ex11mlnlnA wltnel!e* In re1peet of the !HUH fr11med by thll 1rl11!
Court. Only two clrcum1hmee1 were relied upon by the 11ppell11:e
Court to record this finding of antedating,
One was th11t the
gift deed was registered on 23rd August, 19S 1, even thoug)l it
was executed on 2nd May, 1951, and no explanation was forth·
coming for this inordinate delay.
The second circumstance was
that the petition-writer, who scribed the deed of gift, did not produce his register of documents required to be maintained by him
under the rules, which was held to raise a presumption that, if
that register had been produced, it would have shown that the
gift deed was not written out on 2nd May, 1951.
So far as
the first circumstance is concerned, since no issue w~~ framed.
no occasion arose for the plaintiff-respondents to give evidence
to explain the delay in registration. No question was put to any
witness of the plaintiff-respondents why this delay had occurred
The plea depended on questions of fact in respect
of
which
evidence could have been given and facts elicited.
Such a plea
could not be considered for the first time at the appellate stage
when the party concerned had no earlier warning and did not
have any opportunity to give evidence explaining the reason for
the delay.
The second circumstance for holding against the respondents appears to be based on a misunderstanding of the position of law.
The register of the petition-writer was not a document maintained by or in the possession of the respondents. Tpey
were not tesponsible for its non-production.
No presumption
.could be raised against them for failure of its production by the
petition-writer. At best, the non-production could affect the value
of the evidence of the petition-writer. Even if his evidence was
not relied upon, no finding of antedating could be given when
there was no assertion and no evidence on
behalf of the
appellant to show that the
gift
deed
had
been
ante-dated
and had been executed after 13th May, 1951.
The finding
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MOHAN LAL v. ANANDIBAI (Bhargava, J.)
931
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recorded was clearly without any evidence altogether. The High
Court was, therefore, quite correct in setting aside this finding
also.
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Counsel for the appellant relied on four decisions of this
Court in resoect of his argument that the High Court was not
justified in rejecting the case of fraud and antedating, which had
been accepted by the first appellate Court, merely on the ground
of want of pleadings. The first case referred to is Kidar Lall Seal
and Another v. Hari Lall Sea/(1), where Bose, J., with whom
Fazl Ali, J. agreed, said :-
'I would be slow to throw out a claim on a mere
technicality of pleading when the substance of the thing
is there and no prejudice is caused to the other side,
howev~r clumsily or inartisticaUy the plaint may be
worded. In any event, it is always open to a Court to
give a plaintiff such general or other relief as it deems
just to the same extent as if it had been asked for,
provided that occasions no prejudice to the other side
beyond what can be compensated for in costs."
The principle enunciated has no applicability to the facts of the
case before us.
As we have already indicated, the pleadings did
not contain any reference at all to the question of the sale deed
being frauduient or antedated.
Instead of the substance of the
pleas being there, there was no hint at all of these objections in
the pleadings.
The next case relied upon is Nagubai Ammal &
Others v. B. Shama Rao & Others( 2 ). That case related to a
plea of Us pendens.
The argument was that no plea of lis pendens was taken in the pleadings and, consequently, the evidence
bearing on that question could not be properly looked into, and
no decision could be given based on the documents that the sale
was affected by Us.
The plea was not accepted on the ground
that:
"that rule has no application to a case where parties
go to tnal with knowledge that a particular question is
in issue, though no specific issue has been framed
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thereon, and adduce evidence relating thereto."
In the case before us, we have already shown that parties did not
go to trial on the issue of fraud and antedating in respect of the
gift deed Ext. P-3, nor did they adduce evidence relating to any
such pleas.
The third case relied upon by learned counsel is
Kunju Ka&avan v. M. M. Philip, l.C.S. and Others('). In that
H
case, a contention was put forward that a notification or depzy;i-
(1) [19521 S.C.R. 179.
(2) [1956] S.C.R.451.
(3) [1964] 3 S.C.R. 634.
938
SUPREME COURT REPORTS
[1971] 3 $.C.R.
tiort of witnesses could not be jooked into when there was no
proper plea or issue about the exemption.
The question was
whether a particular notification had exempted one Bhagavathi
Valli from the provisions of Part IV of the Ezhava Acl. The
<:;ourt held that this question was properly gone into and expressed,its views in the following words :-
"We do not think that. the plaintiff in the case was
taken by surprise.
The notification must have been
filed with the written statement, because there is nothing
to show that it w_as tendered subsequently after obtaining the orders of the court.
The plaintiff was also
cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side
of the defendant deposed about the notification and was
not cross-examined on this point.
The plaintiff did
not seek the permission of the court to leaJ evidence on
this point.
Nor did he object to the reception of this
evidence. Even before the Oistrict Judge, the contention was not that the evidence was wrongly received
without a proper plea and issue but that the notification
was not clear and there was doubt whether this Bhagavathi Valli was exempted or not.
The parties went to
ttial fully understanding the central fact whether the
succession as laid down in the Ezhava Act applied to
Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the
decision."
Again, it is manffe$t that, in that case, parties had gone to trial
consciously on that question and had given evidence, while the
only omission was in the pleadings.
In the case before us, we
have alrt:ady held that there was noi merely omission in the pleadings, but, in fact, the question of fraud and antedating was never
the subject-matter of· any evidence aild no party was ever conscious in the trial that such questions are going to be decided by
the Court. The last case relied upon is Union of .India v, M/s.
Khas Karanapura Colliery Ltd.('). In that case, this Court held
that certain processes ancillary to the getting, dressing or prep!lfa·
tion for sale of coal obtained as a result of the mining operations
were being carried on.
This conclusion was resisted on the. plea
that, in the writ petition, no specific case was pleaded under the
second part of sub-s. ( 4) of section 4 and, therefore, it was not
open for the Court to consider that aspect of the case.
The
Court said :-
"We are unable to accept this contention. It is true
that the pleadings on this point are rather vague; but
{I) [1968] 3 S.C.R.784.
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B
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F
G
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,
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B
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,
E
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G
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MOHAN LAL .V,.ANANDJBAI, (BharglJVll; /,)
all the facts neice$sary for determining that question are
before the court. That aspect of the case appears te>
have been fully argued before the High Court without
any objection. The High Court has considered and decided that question. Hence the appellant cannot now
be permitted to contend that for want of necessary
pleadings that question cannot be gone into."
939
The circumstances of that case are again quite different from
those in the case before us. In that case, all the facts necessary
for determining the question were before the Court, while, in the
present case, such facts could not come in, becaljse the parties,
at the time of trial, were not aware that these pleas of fraud and
antedating are going to be considered by the courts.
None of
the cases r.elioo upon by learned counsel affects the view taken by
us that, in the present case, the High Court was fully justified
in setting aside the findings of the appellate Court on the question
of fraud and antedating.
I
Learned counsel for the appellant also referred to the plea
of limitation in respect of the right of Smt. Mendri through whom
also title was claimed by the plaintiff-respondents in respect of
some of the properties in suit.
That plea becomes immaterial
because, even if the gift deeds executed by Smt. Mendri are disregarded, the title to those properties was acquired by the respondents through the gift-deed Ext. P-3
executed by Bhiwa
himself and the; oorlier title claimed need not, ,therefore, be gone
into.
·"-
Lastly, counsel urged that now that the suit has been remanded to the trial Court foil. reconsidering the plea of res-judicata
the appellant should ha~been given an opportunity to amend
the wr1tten statement so
to include pleadings in respect of the
fraudulent nature and an
ting of the gift deed Ext. P-3. These
questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as
pointed out by the High Court, any suit on such pleas is already
time-barred and it would be unfair to the "plaintiff-respondents
to allow these pleas to be raised by amendment of the written
statement at this late stage.
In the order, the High Court has
stated that the juc1gments and decrees and findings of both the
lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was
argue.cl by learned counsel that, in making this order, the
Hi~h
Court has set aside all findings recorded on all issues by the trial
Court and the first appeJlate Court. This is not a correct int"1"-
pretation of the order. Obviously, in directing that findings of
940
SUPll.JlME COUJ.T 11.EPORTS
[ 1971] 3 S.C.R.
both courts are set aside, the High Court was referring to the
points which the High Court considered and on which the High
Court differed from the lower courts. Findings on other issues,
which the High Court was not called upon to consider, cannot
be deemed to be set aside by this order. Similarly, in permitting
amendments, the High Court has given liberty to the present
appellant to amend his written statement by setting out all the
requisite particulars and details of_ his plea of res judicata, and
has added that the trial Court may also consider his prayer for
allo•ving any other amendments. On the face of it, those other
amer.dments, which could be allowed, must relate to this very
plea of res judicata.
It cannot be interpreted as giving liberty
to the appellant to raise any new pleas altogether which were not
raised at the initial stage. · The other amend1nents have to be
those which are consequential to the amendment in respect of
the plea of res judicala.
·
In support of the argument that the
appellant should . be
allowed to amend his pleadings in respect of froud and antedating
also, reliance was placed on the decision of this Court in L. I.
Leach and Compa~ Ltd. v. Jardine Skinner and Co.( 1), where
an amendment was allowed at a very late stage by this Court.
The Court held :-
A
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"The plaintiffs seek by their amendment only to
claim damages in respect of those consignments. The
prayer in the plaint is itself general and merely claims
E
damages.
Thus, all the allegations which are necessary for sustaining a claim for damages for breach of
contract are already in the plaint. What is lacking is
only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract
by the defendants in not delivering the goods."
F
The dictum in that case has no application to the case before us
in which there are no allegations or pleadings in the written statement in respect of the new pleas sought to be raised by amendment. Reference was also made to the decision of this Court in
A. K. Gupta and Sons v. Damodar Valley Corporation(') where
the principle laid down was that :
G
"the general rule, no doubt, is that a party is not
allowed by amendment t<> set up a new case or a new
cause of action particularly when a suit on the new
case or cause of action is barred.
But it is also well
recognised that where the amendment does not consti;
tute the addition of a new cause of action, or raises a
H
different case, but amounts to no more than a different
(I) [1957] S.C.R. 438.
(2) [1966] I S.C.R. 796.
•
•
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MOHAN LAL v. ANANDIBAI (Bhargav,,a, J.)
941
or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation."
In the case before us, this principle, instead of helping the appellant, goes against him. In this case, the pleas of fraud and anteB
dating in respect of the gift deeld Ext. P-3 raise entirely new
causes pf action and a case quitci different from that pleaded in
the original written statement. It is not a case of a different or
additional approach to facts already given in the written statement. These cases do not, therefore, help the appellant and would
not justify our permitting amendment of the written statement
C
at this late stage by varying the order of the High Court.
The appeal fails and is dismissed with costs in this Court ..
V.P.S.
Appeal dismissed.