1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 501/2003
1] Smt. Sarlabai Rajendra Konde
2] Amol s/o Rajendra Konde,
aged 30 years,
3] Rahul s/o Rajendra Konde
aged 19 years,
4] Sarika d/o Rajendra Konde,
All residing at Wdura,
Taluka Chandur Bazar
District-Amravati. .. Appellants
-versus-
1] Shamrao Gulabrao Konde
2] Sundarabai wd/o Gulabrao Konde
Both R/o Wdura, Taluka Chandur Bazar
District-Amravati. .. Respondents
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri. J.J.Chandurkar the learned counsel for the appellant
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : V.M. DESHPANDE, J.
DATED : NOVEMBER 2, 2017 ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 2 ORAL JUDGMENT: 1] Heard Shri J.J.Chandurkar the learned counsel
for the appellant. Nobody appearing for the respondent. 2] By the present appeal, the legal representatives of original plaintiff Rajendra are challenging the judgment and decree passed by learned Jt. Civil Judge Senior Division Amravati dated 7/8/1987 in Special Civil Suit No. 74/1984 and judgment and decree passed by learned 2 nd Additional District Judge Amravati dated 20/8/2003 in Regular Civil Appeal No. 213/2000, by which both the Courts below dismissed the suit for declaration and permanent injunction.
3] The present appeal was admitted on 25/3/2004 on following substantial question of law:-
"Whether the tenant is entitled to transfer the tenanted property by Will?"
4] For answering the aforesaid substantial question of law it would be useful to refer the facts which gives rise to the present appeal. Rajendra Konde filed a suit for declaration and permanent injunction. One Natthuji was ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 3 having one brother by named Rajaram. Natthuji was having three sons Deorao, Gulabrao and Sahebrao. Plaitniff Rajendra is son of Deorao. Gulabrao was issueless. Sahebrao's son was Balasaheb. In the branch of Rajaram, Kisanrao was son of Rajaram. His son is Sahebrao defendant No.1. Gulabrao by registered adoption deed (Exh. 50) adopted Sahebrao. Defendant No. 2 is Subhadrabai wd/o Gulabrao. Partition was effected in between Gulabrao, his wife Subhadrabai and son Shamrao in respect of the agricultural properties. The said partition was duly registered in accordance with the law on 16/5/1978 (Exh.60). By virtue of the said registered partition deed, field survey No. 239 situated at mouza Shirala of district Amravati, admeasuring 4 H. 53 R was allotted to the share of Gulabrao. The other agricultural properties were fallen to the share of Subhadrabai and Shamrao. This appeal concerns only with field survey No. 239 of mouza Shirala.
5] During his life time Gulabrao executed a Will. It is dated 29/7/1980. The said Will is also duly registered. The Will is at Exh. 54 on the record.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 4 6] By this Will, Gulabrao bequeathed field survey No. 239 at mouza Shirala which was fallen to his share in partition dated 16/5/1978 to Rajendra his nephew, the plaintiff. The plaintiff was cultivating the land alongwith Gulabrao, even during his life time. The crops statements were also showing the possession of plaintiff Rajendra. 7] The cause for filing the suit for declaration and injunction was a registered notice (Exh.62) dated 29/5/1984 issued on behalf of defendant No. 1 Shamrao to Rajendra, making allegations that taking the disadvantage of bad health of Gulabrao, plaintiff Rajendra is brought into existence as fabricated Will and on the basis of which he is claiming ownership over certain properties. Thus, by filing the suit, plaintiff Rajendra sought declaration that he became owner of suit field survey No. 239 by virtue of Will executed in his favour on 29/7/1980 by Gulabrao. He also claimed permanent injunction to the effect that the defendants or any person claiming through them shall not disturb the peaceful possession and enjoyment of the suit field. The suit was registered as Special Civil Suit No. 74/84.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 5 8] On being summoned both the defendants were filed their separate written statement. The execution of Will was denied by them. According to them, the Will is sham, bogus and fraudulently obtained document by the plaintiff. In addition to the said, it was the defendant's case that suit field belongs to Harihar Maharaj Deosthan of Talegaon Thakur and Gulabrao was the tenant of the said agricultural field and therefore the said field can not be transferred or disposed of. It was also the case of the defendants that the partition deed was a nominal document and it was brought into existence only to save the joint family property from the operation of Ceiling Act, therefore, the property is joint family property and Gulabrao was not having any right to execute a Will in respect of joint family property and after his death the defendants being a son and widow succeeded the said property.
9] On these rival pleadings various issues were framed by the learned trial Court. The issues alongwith their findings are reproduced herein below. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 6
Issues Findings
1. Does plaintiff prove that late Gulabrao had partitioned his all properties i.e. movable and immovable by registered partition deed dated 16/5/78 between himself, defendant No.1 and defendant No.2 and in that partition field S.No.239 had fallen to the share of Gulabrao and field S.No.26/2 had fallen to the shareof defendant No.2 and as per the partition deed each sharer had become the exclusive owner of their respective shares? .. Yes.
2. Does defendant prove that partition dated 16/5/1978 was sham and bogus document and same has been brought into to save the property from CeilingAct and therefore does not binding on defendant no.1? .. No.
3. Does defendant No.1 prove that originally field s.no.239 belonged to Harihar Mandir Deosthan and Gulabrao was the tenant of suit field since 1958-59 and he was cultivating the said field as owner thereof till 11/1/1983? .. Yes.
4. Does plaintiff prove that Gulabrao had executed a Will dated 29/7/1980 in his favour and by virtue of the Will he became full owner of field s.no.239 and he is in possession of the same as owner thereof? .. No.
5. Does defendant no.1 prove that the Will dated 29/7/1980 is bogusand sham document and it was fraudulently obtained by the plaintiff by mis-representation,coercion, fraud and therefore plaintiff cannot be closed that with the right of owner over the suit field? .. No.
6. Does plaintiff prove that the defendant no.2 during his life time Gulabrao were cultivating their respective shares with the help of plaintiff? .. No.
7. Does defendant no.1 prove that after the adoption deed dated 8.4.1976 he being the adopted son of Gulabrao was cultivating field s.no.239, 23/1 alongwith his adopted father Gulabrao and he is in possession of the same? .. Yes.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 7
8. Does plaintiff prove that he is in possession of field s.n.23/1on the basis of Mukhtyar patra executed by defendant no.2 in his favour? .. No.
9. Whether the plaintiff is entitled to declaration as claimed? .. No.
10. Is he entitled for injunction as claimed? .. No.
11. Whether the suit is liableto be dismissed with compensatory cost of Rs.500/-? .. No.
12. What order and decree? .. As per final order. 10] The learned trial Court dismissed the suit. 11] Plaintiff Rajendra then filed Regular Civil Appeal bearing Civil Appeal No. 213/2000 . During the pendency of the said appeal, original plaintiff Rajendra expired and therefore the names of the present appellants were brought on record as his legal representatives. 12] The learned Lower Appellate Court formulated points. Those points alongwith their findings are reproduced herein below:-
Points Findings
i. Whether the plaintiff has proved that there
was partition between Gulabrao, deft.no.1 his adopted son and deft.no.2 Sundarabai his wife in respect of his landed property including the suit property? .. Yes.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 8 ii. Whether the plaintiff hasfurther proved that said Gulabrao has executed registered will deed in his favour and bequeated s.no.239 situated at Shirala to his share? .. Yes. iii. Whether the plaintiff furtherprove that he has become the owner of the suit property bearing S.No.239 from Shirala by virtue of sale deed? .. No. iv. Whether the defendant No.1has proved that the partitiondeed was affected just to save the land from Ceiling? .. No. v. Whether the defendant No.1has proved that the alleged Will deed was obtained by fraud or by mis-representation or using undue influence upon Gulabrao by the plaintiff? .. No. vi. Whether the plaintiff is entitled for relief of declaration as prayed? .. No. vii. Whether the plaintiff is entitled for the relief of injunction as prayed? .. No. viii. Order? .. As per final order And ultimately the learned Lower Appellate Court dismissed the appeal.
13] Thus, the present appeal is against the concurrent judgments of both the Courts below dismissing the suit.
14] While dismissing the appeal, the learned Lower Appellate Court was of the view that in view of Section 57 of Bombay Tenancy and Agricultural Land (Vidarbha ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 9 Region) Act, 1958, unless sanction is given by the Collector, there can not be any transfer of the land held by tenant.
15] Precisely, therefore, this Court while admitting appeal, formulated substantial question of law which is mentioned in para 3 of this judgment.
16] Both the Courts below concurrently recorded a findings of fact that a partition was effected in between Gulabrao and the defendants, being his son and wife on 16/5/1978 and the field survey No. 239 was fallen to the share of Gulabrao. Not only that, both the Courts below concurrently rejected the case of the defendants that said partition was brought into existence only to save the agricultural land from the clutches of Ceiling Act. Thus, both the Courts below disallowed the case of defendants on the issue that the partition deed was a nominal document. 17] Once it is established that field survey No. 239 was fallen to the share of Gulab, he acquired exclusive ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 10 right to dispose of the said agricultural field. Therefore, Gulabrao was well within his right to execute a Will in respect of field survey No. 239 of mouza Shirala. 18] The learned Lower Appellate Court specifically recorded a finding in favour of the plaintiff that Gulabrao executed a registered Will in his favour, at the same time, the learned Lower Appellate Court negativated the case of the defendants that the said Will was brought into existence by fraud or mis-representation, practicing upon the Gulabrao by the plaintiff. All these issues were specifically recorded against the defendant. No appeal is presented before this Court by the defendants thereby those two issues has attained the finality. 19] In this backdrop, it has to be seen whether the Court below were right to non suit the plaintiff on the ground of Section 57 of Bombay Tenancy And Agricultural Land (Vidarbha Region) Act, 1958.
20] Record shows that the parties have brought on record the crops statements for various years and those are ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 11 at Exh. 41 to 43 and 49. Those crops statements pertains to field survey No. 239 of mouza Shirala. Perusal these crops statements would show that the field is owned by Harihar Maharaj Deosthan Talegaon Thakur and the name of Gulabrao is appeared in all these crops statements as tenant. Further, even in Will (Exh. 54) by which the said field is bequeathed upon Rajendra has recitals that field survey No.239 is a tenanted property. Therefore, there can not be any dispute that the field survey No. 239 which was given under the Will to Rajendra, was a property of which executent of Will Gulabrao was tenant. 21] Therefore, now only question is whether Gulabrao a tenant, was having right to execute Will in respect of the tenanted property.
22] The learned counsel for the appellant Shri J.J.Chandurkar invited my attention to the authoritative pronouncement of Hon'ble Apex Court reported in 2017(2)Mh.L.J. 371 Mahadeo (dead) through L.Rs. vs. Shakuntalabai and submitted that the issue is not now in res-integra in view of the law declared by the Hon'ble Apex ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 12 Court. With the assistance of the learned counsel for the appellant, I gone through the said authoritative pronouncement. The said case also relates to Section 57 of Bombay Tenancy and Agricultural Land (Vidarbha Region)Act, 1958. It would be useful to refer paragraphs 7 and 8 of the said decision and those are reproduced herein below:-
"7. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissble by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal and anr. vs. Kailash Chandra Kapur and ors., (1997) 2 SCC 387, devolution of property by way of a Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.
8. That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S.Rathinam alias Kuppamuthu and ors. vs. L.S.Mariappan and ors., (2007) 6 SCC 724 wherein this Court has held in para 21 that a testator by his Will, may make any disposition of his property subject to the conditions that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. In coming to this conclusion, this Court referred to Beru Ram and others vs. Shankar Dass and others, AIR 1999 J and K 55 ." 23] Thus, it is clear that Rajendra the beneficiary of Will received the property by way of devolution and not by transfer. In view of the decision of the Hon'ble Apex Court, I answered substantial question of law formulated by this ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 ::: 13 Court in affirmative and records findings that Gulabrao was entitled to bequeath the tenanted property by Will in favour of the original plaintiff Rajendra. Consequently, I allowed this appeal. The judgment and decrees dated 7/8/1987 and 20/8/2003 are quashed and set aside. The plaintiffs are entitled for declaration as sought for in the plaint. So also, the defendants/respondents or any other person claiming through them are hereby permanently restrained from disturbing the possession and enjoyment of field survey No. 279 of Mouza Shirala, District-Amravati. Appeal is allowed. No order as to costs.
JUDGE RSG ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:50:24 :::