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TMI Blog2011 (1) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 203 of 1991 filed by Appellant No. 1 herein. The Learned Additional District Judge had allowed the Civil Appeal filed by Appellant No. 1 herein whereby he decreed Civil Suit No. 138 of 1987 filed by Appellant No. 1, which suit had been dismissed by the Sub-Judge at Pathankot by his judgment and order dated 3.10.1991. 4. Short facts leading to this appeal are as follows: The Appellant No. 1 herein purchased a house property situated at Pathankot from Sarvashri Romesh Chand and Chatar Chand sons of Shri Kartar Singh, vide registered sale deed dated 26.2.1985 for a consideration of Rs. 40,000/-. This sale deed was, however, executed in the name of her son namely Shri Kamal Chand (the Appellant No. 2 herein) and his brother-in-law Shri Jiwan Kumar (Respondent No. 2 herein). The Appellant No. 1 paid the money by two bank drafts for purchasing the house property which was actually in the possession of a tenant of the previous owner i.e. Home Guard Department and it continues to be in their possession. 5. It is the case of the Appellant No. 1 that taking advantage of her old age (presently 93 years), the above referred Kamal Chand and Jiwan Kumar stealthily removed the sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ser without notice. 9. The Appellant No. 1 laid the evidence amongst others of a clerk from a branch of State Bank of Patiala at Chaki, Pathankot, who deposed to the fact that the Appellant had made the payment for the sale consideration from her account. Defendant No. 2 had contended that he had arranged Rs. 20,000/-from friendly loans to purchase half the share of the Suit House, but he did not lead any evidence for proving the availability of such funds with him. The Trial Court therefore, held that it was obvious that the payment was not made by Defendant Nos. 1 & 2, but by the Plaintiff i.e. the Appellant No. 1 herein. 10. The Appellant No. 1 had produced before the trial court a copy of the notice dated 8.4.1987 which she had sent to Defendant No. 3, to point out to him that she was the real owner of the suit house. She produced the same alongwith the certificate of posting. The sale deed between Defendant Nos. 2 & 3 was executed on 13.4.1987. The trial court held that the delivery of the notice was not proved, and therefore, Defendant No. 3 was a bonafide purchaser for valuable consideration without notice. That apart, at the time when the Suit was decided on 3.10.1991, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Court therefore, held that the suit filed by Appellant No. 1 was not prohibited by the said Act. As far as the notice dated 8.4.1987 is concerned, the Court held that there was a presumption under the law that the letter which was proved to have been posted well in advance must have reached the addressee. The first appellate court therefore, held that the notice will have to be presumed to have been served, and yet Respondent No. 1 herein got the sale deed executed on 13.4.1987. It was therefore, held that Respondent No. 1 could not be held to be a bonafide purchaser without any notice of the rights of Appellant No. 1 in the suit property. The first appellate court therefore, decreed the suit filed by Appellant No. 1 to the effect that she was the real owner in possession of the house and the sale deed dated 13.4.1987 was null and void. It also granted an injunction against the Defendants that they shall not alienate any part of the suit house and will not interfere in her possession of the suit house. The Court awarded cost of Rs. 1,000/-. 12. Feeling aggrieved by this decision, the first Respondent herein filed a Regular Second Appeal bearing RSA No. 1367 of 1996. The Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made in the courts below, namely, that he was a bonafide purchaser without notice, and that the original Defendant No. 2 had purchased half the share of the suit house from his money, and from him the Respondent No. 1 had purchased that share, and therefore, the present appeal should be dismissed. 15. We have noted the submission of the rival parties. As far as the purchase of the suit house by the Appellant No. 1 from her own money is concerned that finding of the trial court has remained undisturbed all throughout and cannot be re-opened in this appeal. The Appellant No. 1 led cogent evidence before the trial court, and it had been held in her favour that it is out of her funds that she had purchased the suit house. The submission of the original Defendant No. 2 that he had arranged the amount of Rs. 20,000/- through friendly loans was negated by the trial court since there was no supporting evidence at all. There is no reason for us to disturb that finding. Once the High Court held that the Appellant had purchased the suit house out of her funds, it ought to have held that it follows that the Defendant No. 2 had no right to deal with it or to sell his half share mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the Defendant. Plaintiff's right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1). (Emphasis supplied) 17. In the impugned judgment, the High Court nowhere refers to the judgment in R. Rajagopal Reddy's case (supra) although the same was very much referred to and relied upon by the Appellant to counter the contrary submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly, the judgment in the case of Harihar Banerji v. Ramshashi Roy AIR 1918 PC 102, wherein the Privy Council quoted with approval the following observations in Gresham House Estate Co. v. Rossa Grande Gold Mining Co. 1870 Weekly Notes 119 to the following effect: ...if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself. 20. Secondly, we may refer to the judgment of a Full Bench of the Allahabad High Court in the case of Ganga Ram v. Smt. Phulwati AIR 1970 Allahabad 446, wherein the Court observed in paragraphs 12 and 13 as follows: 12. When a registered article or a registered letter is handed over to an accepting or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls the court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu. 22. The proposition laid down in this judgment has been followed in two subsequent cases coming before this Court in the context of Section 53(2) of the Companies Act 1956 providing for presumption of service of notice of the board meeting, sent by post. In M.S. Madhusoodhanan v. Kerala Kaumudi (P) Ltd. and Ors. 2004 (9) SCC 204, a bench of two Judges of this Court referred to the proposition in Mst. L.M.S. Ummu Saleema (supra) in para 117 of its judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, in all fairness offered to compensate the first Respondent herein by paying him the amount of Rs. 30,000/- with appropriate interest. The first Respondent did not evince any interest in this suggestion. Yet, the end of justice will be met, if this amount of Rs. 30,000/- is returned by the Appellants to him as offered by them with simple interest at the rate of 10%. 25. In the circumstances this appeal is allowed. The judgment and order dated 10.2.2009 passed by the High court in R.S.A No. 1367 of 1996 and that of the Sub-Judge, Pathankot in Civil Suit No. 138 of 1987 dated 3.10.1991 are set aside. The judgment and order dated 22.2.1996 passed by Addl. District. Judge, Gurdaspur in Civil Appeal No. 203 of 1991 is confirmed. The suit filed by the Appellant No. 1 bearing Civil Suit No. 138 of 1987 is decreed and it is declared that the Appellant No. 1 is the owner of the suit house. There shall be a permanent injunction restraining the Defendants from alienating any part of the suit house and forcibly interfering into the possession of the Plaintiff of the house in dispute. In view of the offer given by the Appellants to compensate the first Respondent, the Appellants shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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