MOHAN LAL versus ANANDBAI & ORS.

Citation: [1971] 3 S.C.R. 929 · Decided: 03-03-1971 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

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Judgment (excerpt)

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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 mort-
gage. 
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 indi-
cate 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 wit-
nesses of the respondents suggesting such fraud or antedating. The ques-
tion 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 
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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 
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.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 regis

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