Law Web: What are advantages of filing cross objection?

In the case of Banarasi vs. Ram Phal (supra), the Hon'ble Supreme Court has taken into consideration the amendment of the aforesaid provision in the year 1976 and it has been held as follows:-

"10. CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without fling any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:-

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent;

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent;

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to & finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. "

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 197 of 2013

Decided On: 04.04.2018

Kamlabai Narayanrao Wagh Vs. Muktabai and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 533

1. By this appeal, the unsuccessful plaintiffs have challenged judgment and order dated 02.01.2013 passed by the Court of Ad-hoc District Judge-3, Nagpur (appellate Court) in Regular Civil Appeal No. 286 of 2011, whereby their appeal was dismissed and the judgment and decree passed by the lower Court was confirmed.

2. The present appeal concerns the property at Survey No. 72, mouza Sahuli (Khandgaon), taluka Kalmeshwar, district Nagpur admeasuring 5 H and 84 R (the suit property). The appellants (plaintiffs) are daughters of one Bajirao who was the owner of the suit property. The respondent No. 1 Muktabai was the wife of said Bajirao and mother of the appellants. On 07.09.1946, the said Bajirao executed a registered gift deed (Exh. 63) in respect of the suit property. It is the interpretation of the aforesaid gift deed, which shall determine the fate of the present appeal. By the said gift deed Exh. 63, Bajirao gave the said property to the respondent No. 1 Muktabai, stipulating that she would not have any right to alienate the said property in any form, including by execution of further gift deed. The other stipulations in the gift deed at Exh. 62 would need elaborate discussion, which will be undertaken in this judgment at the relevant place. On 14.10.1946, the said Bajirao adopted one Vishwasrao as his son by registered adoption deed (Exh. 60). The respondent Nos. 2 and 3 herein are the sons of Vishwasrao.

3. Soon after execution of the aforesaid gift deed and adoption deed, the said Bajirao died on 24.10.1946. Thereafter on 19.11.1998 the said adopted son Vishwasrao died. On 21.12.2000, despite the clear stipulation in the gift deed at Exh. 63 prohibiting respondent No. 1 Muktabai from executing any gift deed for alienation of the suit property, she executed gift deed in favour of respondent Nos. 2 and 3 i.e. sons of said Vishwasrao.

4. On 13.11.2003, the appellants being daughters of Bajirao, filed a suit for declaration and permanent injunction, claiming that respondent No. 1 Muktabai had no right to deal with the suit property and that the respondent No. 1 and the said two sons of Vishwasrao, who were arrayed as defendant Nos. 2 and 3 be permanently restrained from dealing with the suit property. A mandatory injunction was also sought against respondent No. 4, Tahsildar, to cancel mutation entries made in pursuance of the gift deed dated 21.12.2000 executed by respondent No. 1. It was the case of the appellants that a correct reading of the aforesaid gift deed dated 07.09.1946 demonstrated that the respondent No. 1 had no right to execute gift deed dated 21.12.2000 in favour of the sons of Vishwasrao and that being daughters of Bajirao, they were entitled to succeed to the suit property in terms of the stipulations in the said gift deed and in any case they had a right by succession. The respondent Nos. 1 to 3 (defendant Nos. 1 to 3) filed their written statement and opposed the claims of the appellants. They contended that a proper reading of the gift deed dated 07.09.1946 (Exh. 63) and the adoption deed dated 14.10.1946 (Exh. 60) and the dates of demise of Bajirao and Vishwasrao would show the respondent Nos. 2 and 3 only were entitled to the suit property and that the suit deserved to be dismissed.

5. The trial Court passed its judgment and order on 25.04.2011 granting declaration in favour of the appellants to the effect that the respondent No. 1 Muktabai had only life time interest in the suit property and further that she had no right in any away to deal with the suit property during her life time. But, the trial Court declined to grant any effective relief in favour of the appellants by holding that they did not have any subsisting right and legal interest in the suit property. The trial Court held that the appellants could have claimed right in the suit property only if the event of adoption of Vishwasrao had not taken place. According to the trial Court, the moment Vishwasrao was adopted, as per its interpretation of stipulations in the gift deed dated 07.09.1946 (Exh. 63), the daughters of Bajirao, including the appellants had no claim in the suit property. It was held that the suit property was rightfully that of the respondent Nos. 2 and 3, being the sons of Vishwasrao who died on 19.11.1998. Thus, although declaration as sought by the appellants to the effect that the respondent No. 1 Muktabai had no right to deal with the suit property during her life time was granted, the trial court did not grant any effective relief to the appellants, due to which they were constrained to file Regular Civil Appeal No. 286 of 2011, before the appellate Court. It is significant that the respondents did not file any cross-objection or any independent appeal to challenge the judgment and decree of the trial Court, although a declaration had been granted against respondent No. 1 Muktabai and in favour of the appellants insofar as her right to deal with the suit property was concerned. Yet, the appellate Court framed points for determination as if there was a challenge raised to the said declaration granted by the trial Court in the form of point Nos. 1, 2 and 4. The appellate Court did frame point No. 3 on the grievance raised by the appellants regarding the finding given by the trial Court that despite declaration granted in their favour, they did not have any subsisting rights and legal interest in the suit property.

6. The appellate Court passed impugned judgment and order dated 02.01.2013, not only upholding the finding of the trial Court that the appellants did not have any subsisting right or legal interest in the suit property on interpretation of the gift deed dated 07.09.1946 (Exh. 63), but, it went ahead to hold that the declaration granted by the trial Court to the effect that respondent No. 1 Muktabai did not have any right to deal with the suit property was unsustainable. In this regard, the appellate Court referred to and applied Section 14 of the Hindu Succession Act, 1956, to hold that the declaration granted by the trial Court was unsustainable. On this basis, the appellate Court dismissed the appeal and went ahead to dismiss the suit of the appellants in entirety.

7. Aggrieved by the impugned judgment and order, the appellants filed this appeal which was admitted on 23.07.2013 on the following substantial questions of law:-

"(i) Whether the appellate Court has committed an error in ignoring the finding recorded by the Trial Court on the point of declaration by trial Court in declaring that the defendant No. 1 had no right in any way to deal with the suit property during her lifetime?

(ii) Whether the appellate court erred in interfering with the partly allowed decree of declarations when there is no challenge to the same by the respondents?

(iii) Whether the appellate Court erred in reversing the entire judgment and decree of the Trial Court when the defendant No. 1 was not a absolute owner of the suit property however, the same was received by her for her and her daughters eminence during her lifetime and more specifically from the recitals of the Gift Deed dated 07.09.1946 she has been permanently restrained from creating any interest in the suit property?"

8. Mr. A.S. Jaiswal, learned senior counsel along with Mr. U.K. Bisen, Advocate appearing on behalf of the appellants, submitted that the appellate Court committed a grave error in setting aside the declaration granted by the trial Court in favour of the appellants, in the absence of any cross-objection filed by the respondents. It was contended that since the trial Court had passed a decree granting declaration against the respondent No. 1 Muktabai and in favour of the appellants, such a decree could not have been set aside, in the absence of a challenge on behalf of the respondents. According to the learned counsel, this was a fundamental error in exercise of jurisdiction committed by the appellate Court. On the interpretation of the gift deed dated 07.09.1946 (Exh. 63), it was submitted that the gift deed ought to have been read in a manner that would further the object of all the stipulations in the said gift deed, which indicated that the daughters of Bajirao, including the appellants herein, were entitled to the suit property and that the respondent No. 1 Muktabai had no authority to deal with and to execute gift deed in respect of the suit property in favour of respondent Nos. 2 and 3. It was contended that the trial Court had committed a grave error in holding that the appellants had no subsisting right in the suit property, only because Bajirao adopted Vishwasrao on 14.10.1946 by executing adoption deed (Exh. 60). It was contended that the impugned judgment and order was wholly erroneous as it embarked upon examining validity of the declaration granted by the trial Court, in the absence of challenge to the same by the respondents and that the appellate Court further wrongly confirmed the finding of the trial Court against the appellants. Since there are findings given by the appellate Court based on Section 14 of the Hindu Succession Act, 1956, the learned counsel appearing on behalf of the appellants referred to and relied upon judgments to claim that sub-section (2) of Section 14 of the said Act applied in the present case, but he submitted that the said judgments were required to be looked into, only if this Court found that discussion on the said issue and reversing of declaration granted by the trial court in the present case was permissible, in the absence of any challenge in the form of cross-objection or appeal by the respondents to the judgment of the trial Court. The learned counsel appearing on behalf of the appellants relied upon judgments of the Hon'ble Supreme Court in the case of Hardevinder Singh vs. Paramjit Singh and others- MANU/SC/0008/2013 : (2013) 9 SCC 261, Badri Pershad vs. Smt. Kanso Devi- MANU/SC/0293/1969 : AIR 1970 SC 1963(1), Vaddeboyina Tulasamma vs. Vaddeboyina Sesha Reddi- MANU/SC/0380/1977 : AIR 1977 SC 1944(1), Gulwant Kaur vs. Mohinder Singh -MANU/SC/0514/1987 : 1987 Mh.L.J. 878, Shivdev Kaur vs. R.S. Grewal- MANU/SC/0260/2013 : (2013) 4 Supreme Court Cases 636 and judgment of this Court in the case of Indrakumar vs. Atmaram - MANU/MH/2879/2014 : 2015 (3) Mh.L.J. 613.

9. On the other hand, Mr. S.V. Sohoni, learned counsel appearing on behalf of the respondents 2(a) and 2(b) submitted that the appellate Court did not commit any error in interfering with the declaration granted by the trial Court in the absence of cross-objection or independent appeal on behalf of the respondents, because the Court was empowered under Order 41 Rule 33 of the CPC to pass appropriate orders in the interest of justice. The learned counsel heavily relied upon Section 14(1) of the Hindu Succession Act, 1956 and claimed that Section 14(2) thereof did not apply to the facts of the present case. According to him, since the respondent No. 1 Muktabai had acquired the suit property before 1956, upon the said Act come into force, she had become absolute owner of the suit property and that notwithstanding the stipulation in the gift deed dated 07.09.1946 (Exh. 63), she was entitled to deal with the suit property and consequently the gift deed dated 21.12.2000 executed by her was valid. It was contended that a proper reading of the said gift deed at Exh. 63 demonstrated that both the Courts below were justified in holding that the appellants had no subsisting right in the suit property. The learned counsel relied upon judgments passed by the Hon'ble Supreme Court in the case of Jupudy Pardha Sarathy vs. Pentapati Rama Krishna - MANU/SC/1292/2015 : 2016 (1) All. MR 434 (S.C.) and judgment of this court in the case of Sattarsha Dibarsha vs. Ajizabi Dilbarsha- MANU/MH/1519/2017 : 2017(6) ALL. MR 283.

10. Mrs. H.N. Prabhu, learned counsel appearing on behalf of respondent No. 3 supported the contentions raised on behalf of the respondent No. 2(a) and 2(b). She further relied upon judgment of the Hon'ble Supreme Court in the case of Banarsi vs. Ram Phal -MANU/SC/0147/2003 : (2003) 9 Supreme Court Cases 606 to claim that on a proper reading of Order 41 Rule 22 and Order 41 Rule 33 of the CPC, it was clear that the appellate Court had committed no error in interfering with the declaration granted by the trial court, in the absence of a cross-objection or independent appeal by the respondents.

11. The submissions made by the counsel appearing on behalf of the respective parties and the substantial questions of law framed by this Court, show that first and foremost question that needs to be addressed in the present appeal is, as to whether the appellate Court could have at all gone into the validity of the declaration granted by the trial Court that the respondent No. 1 Muktabai had no right to deal with the suit property, in the absence of cross-objection or independent appeal by the respondents. There is no dispute that the respondents did not challenge the judgment and decree passed by the trial Court by either fling a cross-objection or an independent appeal.

12. The operative portion of the order of the trial Court on the suit filed by the appellants, is as follows:-

"1. The suit is partly decreed with costs.

2. It is hereby declared that defendant No. 1 only had lifetime interest to enjoy the fruits of the suit property for the purpose of maintenance of herself and her daughters.

3. It is hereby declared that defendant No. 1 had no right in any way to deal with the suit property during her lifetime.

4. Decree be drawn accordingly."

13. Thus, the trial Court partly decreed the suit in favour of the appellants and granted a decree of declaration to the effect that the respondent No. 1 Muktabai had no right in any way to deal with the suit property during her life time. The trial Court not just rendered finding in this context in favour of the appellants and against the respondents, but, it granted a positive declaratory decree against the respondents.

14. In this context, reference to Order 41 Rule 22 is necessary. It provides that a respondent who has not appealed from any part of the decree may take a cross-objection to the decree, provided he files such objection in the appellate Court within one month from the date of service on him of notice of the day fixed for hearing of the appeal. In the case of Banarasi vs. Ram Phal (supra), the Hon'ble Supreme Court has taken into consideration the amendment of the aforesaid provision in the year 1976 and it has been held as follows:-

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent;

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent;

Further, in the case of Hardevinder Singh (supra), the Hon'ble Supreme Court has held as follows:-

"21. After the 1976 amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi and Others v. Ram Phal (supra), it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code."

15. The aforesaid position of law shows that a respondent may defend himself without taking recourse to fling a cross-objection to the extent that a decree stands in his favour, but, if he intends to assail any part of the decree, it is obligatory on his part to file a cross-objection. In the instant case, a perusal of the above quoted operative portion of the judgment and order of the trial Court shows that a specific decree was passed against the respondents when the trial Court held that the respondent No. 1 Muktabai had no right in any way to deal with the suit property. As a consequence, the said order and decree was clearly against the respondent Nos. 2 and 3 as well, because they were claiming their right in the suit property on the basis of gift deed dated 21.12.2000, executed by respondent No. 1 Muktabai in respect of the suit property. This was clearly a decree which they ought to have assailed by fling a cross-objection on the basis of which the appellate court could have gone into the validity of such a decree. In the absence of a cross-objection or an independent appeal on behalf of the respondents assailing the decree granted against them by the trial Court, the appellate Court certainly committed a grave error by framing the following points while passing the impugned judgment and order :-

"1. Do plaintiffs prove that by Gift Deed/Will Deed dated 07.09.1946 only limited interest to usufruct the suit land was created in favour of defendant No. 1?

2. Do plaintiffs prove that Gift Deeds executed by defendant No. 1 on 21.12.2000 are void ab-initio and without having right to transfer?

4. Are the plaintiffs entitled to declaration as prayed for?"

16. The framing of the aforesaid points and going into the validity of declaratory decree granted by the trial Court, in the absence of cross-objection on behalf of the respondents, demonstrates a serious jurisdictional error committed by the appellate Court. The reliance placed by the respondents on Order 41 Rule 33 of the CPC to justify the said approach of the appellate Court, is also unsustainable. The said provision, if interpreted in the manner as contended by the respondents, would render Order 41 Rule 22 of the CPC meaningless. The power vested in the court under Order 41 Rule 33 of the CPC cannot be exercised merely for the asking. In fact, if in the facts of the present case, it is held that the appellate Court could have framed the aforesaid points and rendered findings thereon in the absence of cross-objection by the respondents, it would be against the ratio of the judgments of the Hon'ble Supreme Court rendered on the interpretation of Order 41 Rule 22 of the CPC in the case of Banarasi (supra) and Hardevinder Singh (supra).

17. The reliance placed by the learned counsel appearing on behalf of the respondents on the judgment of this Court in the case of Sattarsha Dibarsha (supra) is also misplaced. In the said judgment, this Court has held that under Order 41 Rule 33 of the CPC, the appellate Court can pass such decree or order so as to enable it to do complete justice between the parties. It is held therein that exercise of power under the said provision is circumscribed, for being exercised only in rare cases and when facts of such case demand its exercise. It is further held by this Court that power could be exercised under the said provision to do complete justice by granting relief that may not have been prayed for in the plaint. The ratio of the aforesaid judgment would not assist the respondents in the facts of the present case, because there is no question of the appellate Court in the present case considering the contentions of the respondents on the validity of the decree passed by the trial court, in order to do complete justice, when there is no express challenge at all raised by the respondents in the form of cross-objection. In the present case, the appellants and respondents have been at complete loggerheads with each other and both parties adduced evidence before the trial Court, whereupon declaration was granted in favour of the appellants and against the respondents. It was only because effective relief was denied to the appellants, despite such declaratory decree granted in their favour that they had filed appeal before the appellate Court. In the absence of any cross-objection or independent challenge on behalf of the respondents to the aforesaid declaration granted against them, the appellate Court in the present case certainly erred in framing the aforesaid points, discussing claims of rival parties and rendering findings thereon. Therefore, the question Nos. 1 and 2 are answered in favour of the appellants and against the respondents.

18. As the very approach of the appellate Court in framing the aforesaid points and rendering findings in respect of the declaratory decree granted in favour of the appellants is found to be unsustainable, the submissions and arguments made in respect thereof are not required to be considered. The discussion on Section 14 of the Hindu Succession Act, 1956 and the arguments made by the counsel for the parties on whether sub-section (1) or sub-section (2) of the said provision applies, therefore, do not require any consideration, in view of the answers to question Nos. 1 and 2.

19. As regards the issue concerning whether the appellants had a subsisting right in the suit property, which is held against them by both the Courts below, interpretation of the gift deed dated 07.09.1946 (Exh. 63) assumes significance. The trial Court has interpreted the stipulations in the said gift deed dated 07.09.1946 to hold that once adoption of Vishwasrao took place, the daughters of Bajirao, including the appellants, lost any right to claim interest in the suit property. According to the trial Court, if either Bajirao or respondent No. 1 Muktabai, as per authority given to her in the aforesaid gift deed, had not adopted a son, the appellants could have claimed the right in the suit property. But, as per the trial Court, the moment Vishwasrao was adopted on 14.10.1946, the appellants and their sisters lost their right to make a claim in the suit property.

20. The appellate Court has not discussed the said aspect as to whether the appellants had a subsisting right in the suit property on the basis of interpretation of the gift deed dated 07.09.1946, because on point Nos. 1, 2 and 4 wrongly framed by it, it had already gone ahead to set aside the declaration granted by the trial Court and it was held that respondent No. 1 Muktabai was the absolute owner. Thus, it needs to be examined as to whether the appellants were justified in claiming right in the suit property on the basis of interpretation of the aforesaid gift deed.

21. A perusal of the gift deed shows that Bajirao was very much concerned about his wife and daughters, including the appellants herein, when he executed the said gift deed dated 07.09.1946. In the said document, Bajirao has specifically stated that upon execution of the gift deed he stood completely divested of any interest in the suit property. It was further stipulated that the expenses of marriages of the daughters, including the appellants, would be taken care of from the suit property and that the respondent No. 1 Muktabai had no right to alienate the suit property in any manner, including by execution of gift deed. It was also stated in the said gift deed that if Bajirao intended to adopt a son for his property, other than the suit property which was subject matter of the aforesaid gift deed, he could in his life time adopt a son and if he failed to do so, the respondent No. 1 Muktabai was authorised to adopt a son. There is a specific stipulation in the gift deed that after the death of Bajirao if a son was adopted or if there was no adoption, his four daughters would inherit the suit property, which was subject matter of the aforesaid gift deed. The learned counsel appearing on behalf of the respondents contended that the aforesaid stipulation wherein the word "or" has been used twice, appears to be misplaced and that it goes against the intention of Bajirao as reflected in other stipulations in the gift deed.

22. But, reading the aforesaid gift deed dated 07.09.1946 (Exh. 63) as a whole, the intention of Bajirao comes through as his concern for his wife and four daughters, including the appellants herein, towards their welfare and that he specifically intended to segregate the suit property from his other properties, which would concern a son who could be adopted by him or after his death by his wife, respondent No. 1 Muktabai. Although, the gift deed Exh. 63 does not seem to have contemplated the fact that the adopted son Vishwasrao could die during the life time of respondent No. 1 Muktabai, that in itself would not lead to the conclusion, as drawn by the trial Court erroneously, that once Vishwasrao was adopted on 14.10.1946, as per the said gift deed dated 07.09.1946, the daughters of Bajirao could lay no claim on the suit property. The said gift deed dated 07.09.1946 and its stipulations clearly point towards rights of the daughters of Bajirao in the suit property specifically recognised and sought to be protected. In this situation, it becomes evident that the trial Court erred in holding that even on an interpretation of the aforesaid gift deed dated 07.09.1946, due to adoption of Vishwasrao, the daughters of Bajirao, including the appellants herein, had lost all their rights in the suit property. The finding rendered by the trial Court and confirmed by the appellate Court that the appellants did not have any subsisting right in the suit property, is perverse and hence unsustainable. Having granted a declaration in favour of the appellants, the trial Court clearly erred in denying effective relief to the appellants. In the light of the above, the third question of law framed by this Court is answered in favour of the appellants and against the respondents.

23. Accordingly, this appeal is allowed, the judgment of the appellate Court is set aside and the judgment of the trial Court is modified to the extent that the suit filed by the appellants is decreed in its entirety. There shall be no order as to costs.

Pages

Sunday, 16 December 2018

What are advantages of filing cross objection?

No comments:

Post a Comment