TMI Blog1967 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... t A-2, from a third person and since then has been in possession of the land in his own right. The land is situated at the village Thotapeta, a place where the defendant lived. He therefore asked the defendant to cultivate the land through his farm-servants. Taking advantage of the marriage with the plaintiff's sister, the defendant trespassed into the suit land in January 1959 and removed paddy heaps. In spite of demands, the defendant is not parting with the land nor is interested in paying the value of the paddy which he has removed. The plaintiff ultimately sent a notice but the defendant sent false reply. The plaintiff asserted in the plaint that the suit land is not the joint family property of himself, his father and brothers and that it is his self-acquired property. He further denied the assertion of the defendant that it was given to his sister at the time of marriage towards pasupukunkumam . He also denied any knowledge about Exhibit B-1 dated 8-3-1960. He however stated that he might have attested the agreement without knowing the contents thereof. He further stated that he was divided from his father long prior to the agreement as per the partition deed. Exhibit A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the joint family. He further found that the plaintiff alone cannot sue to recover possession of the suit land. He agreed with the conclusion of the trial Court that the defendant was not a trespasser. It is this view that is now challenged in this second appeal. 6. The first question which falls for my determination is whether the plaintiff is entitled to get a decree on a cause of action which is different than what was set up by him in the plaint I have extracted the plaint above and it would have been noticed that the plaintiff came to the court on the basis that he is the exclusive owner of the property, that it was not joint family property and that the defendant is a trespasser. All these allegations have been found to be false by both the Courts below.The trial court however accepted his argument, which was not his case, that the oral gift made at the time of marriage to his sister by his father of a small portion of the joint family property was invalid because of section 123 of the Transfer of Property Act. The District Judge did not agree with this approach. He was of the opinion that the plaintiff should not have been allowed to succeed on a case not set up by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff, who was aware of the defence which the defendant was going to set up, denounced the defence in the plaint itself. He denied that the suit property was joint family property, and that it was gifted by his father, the manager of the joint family, to his sister at the time of marriage as pasupukunkuma and on the other hand claimed that the defendant was a trespasser. Having found that all his averments are false, he cannot be permitted to turn round and adopt the case of the defendant and that too not fully and ask relief on that basis. No relief can be granted upon facts and documents not disclosed in the plaint. When the plaintiff has asked for a particular relief on a specific ground, he cannot be granted the same relief on a different ground which is not at all not only disclosed in the plaint but has been definitely denounced. He cannot abandon his own case and try to build up a case which he has not himself pleaded. The suit based on one cause of action cannot be obviously decreed on another cause of action. He cannot be allowed to spell out a case different from what he had pleaded in the plaint. He claimed individual title to the suit property and when it is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage of Rule 1 says that all such persons may be joined as plaintiffs in one suit. This does not however affect the general principle of law that all such persons must be made parties to the suit either as plaintiffs or as defendants. The reason is obvious. Such persons together represent a single and indivisible right which cannot be adjudicated upon and no effective decree can be passed by the Court in the absence of any such persons. Therefore, a suit by a member of the joint Hindu family to recover property belonging to the joint family must be instituted by or on behalf of all the members. Of course where a number of persons are jointly entitled to the relief in respect of a transaction and one of them wishes to sue to enforce that relief, the proper course for him is to ask the other persons to join as co-plaintiffs if they refuse to join in the suit as plaintiffs, they must be joined as defendants. What is necessary is that all the persons jointly interested must be on the record as parties in order to determine the disputes effectively and finally. Thus one member of a joint Hindu family cannot sue to recover any property belonging to the joint family without impleading t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff had four undivided brothers and the deed has been executed in his name for the benefit of himself and his brothers, the latter should have been joined as plaintiffs and that the plaintiff could not maintain the suit alone, held: The plaintiff was entitled to sue for the family debt without joining his undivided brothers, the contract on which the suit was based being in plaintiff's sole name and not purporting to have been obtained on behalf of any others but himself. This case has been followed by a Bench of this Court in Nagamma v. Basappa, AIR1961AP257 15. The above said two decisions however do not help since the document was executed in favour of one or two members of the family they alone can sue . But that observation is qualified by an observation that these documents were not purported to have been obtained on behalf of any others but himself or themselves. The said observation brings out prominently the correctness of the earlier decision, that is to say (1881) ILR 3 Mad 234. The above said two decisions therefore cannot be said to be in conflict with the earlier decision. 16. In this case it has already been noticed that the finding of bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bring the suit for recovery of possession. The learned District Judge was, in my view, right in dismissing the plaintiff's suit on that ground also. 20. There is yet another ground on the basis of which the plaintiff can be non-suited. It has already been noticed that the gift at the time of marriage was oral. Possession was however given to the donee. That was the consideration for marriage as is found by the lower appellate court. Exhibit B-1 was subsequently executed by the father in which all the terms of the oral gift were brought out. The question is whether Exhibit B-1 can fall within the ambit of section 53-A of the Transfer of Property Act. It is not in dispute that Exhibit B-l brings out all the terms of the oral gift made at the time of the marriage, and the fact that the plaintiff's sister was put in possession of the land. While the trial Court rejected the contention of the part performance raised by the defendant on the ground that the gift was a gratuitous transfer and had no consideration, the learned District Judge on the other hand found that the gift was not gratuitous and it had consideration. He however rejected the contention on the ground that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous oral agreement. 23. To a similar effect is Mutyalu v. Veerayya AIR 1946 Mad 452. In that case, the plaintiff was the appellant Both the lower courts had dismissed the suit on the ground that he gave the letter Exhibit D-1 on 5th December, 1938 to the 1st defendant stating that he had no connection whatever with the said property thereafter and that the 1st defendant can himself enjoy the property which had been given to his wife, the sister of 1st defendant, by the father under a deed of gift in the year 1933. After this letter, 1st defendant has been in possession of the property all along. Both the Courts have found that this letter was preceded by a mediation as the result of which 1st defendant gave up a claim to recover a sum of ₹ 350/- from the plaintiff, who in his turn agreed to give up his interest in this property which belonged to his wife, she having got it from her father. The lower court applied the doctrine of part-performance against the plaintiff. It was argued for the appellant that the doctrine did not apply because section 53-A, Transfer of Property Act, requires two things, namely, (a) a contract, to transfer for consideration and (b) a writi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transfer of Property Act. It may be that under the traditional Hindu law no writing for the validity of transfer of property made at the time of marriage was necessary. There was no transaction under Hindu Law which absoutely required a writing. But after the Transfer of Property Act came into force, to say that the oral gift can be made at the time of marriage by way of pasupukunkuma would be inconsistent with section 123 of the Transfer of Property Act. That is provision applicable to all gifts which transfer immovable property. It is therefore necessary in order to constitute a valid gift that not only it should be in writing but it must also be registered. That this view is correct is supported by the following decisions. 27. In Ramachandrayya v. Satyanara-yana, [1964]3SCR985 , their Lordships of the Supreme Court observed: There can, in our opinion, be no doubt that after section 53-A was enacted the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of section 53-A are satisfied. Quite clearly, section 53-A does not apply to the facts of the present case. It must therefore be held that the considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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