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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.239 OF 2004
APPELLANT: Eknath Damodhar Zope, Aged 38 years,
Occu.- Agricultural, Resident of Shirsoli,
Tq. Nandura Distt. Buldana.
-VERSUS-
RESPONDENTS: 1. Smt. Kasturabai w/o Pandhari Dandale
(Deleted as per Court's Order dt. 18-12-09)
2. Manohar Pandhari Dandale, aged about
50 years, Occyu.- Agriculture
Both residents of Kurha (Kakoda), Tq.
Edlabad, Distt. Jalgaon, Khandesh.
3. Ku. Devkabai d/o Pandhari Dandale,
Aged about major, Occu. Agriculture
And household, Resiodent of Wadoda
Panhera, Tq. Malkapur Distt. Buldana.
4. Sau. Kokilabai w/o Vishwambhar
Kharate, Aged about 35 years, Occu.-
Agriculture and household, Resident of
Matonda, Tq. Nandura, Distt. Buldana.
5. Ramesh Pandhari Dandale, aged about
45 years, Occu. Agriculture,
6. Ganesh Pandhari Dandale (Deleted as per
Courts order dated 24-8-2007)
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7. Ajabrao Ramesh Dandale, Aged about
19 years, Occu.- Agriculture,
Nos 5 & 7 residents of Khundala, Tq.
Nandura, Distt. Buldana.
Shri R. L. Khapre, Advocate for the appellant.
Shri Bhushan Dafale Advocate along with Shri P. B. Patil Advocate
for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 28-09-2017 DATE ON WHICH JUDGMENT IS PRONOUNCED: 31-10-2017 ORAL JUDGMENT :
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendant no.4 who is aggrieved by the decree for partition and separate possession of the suit property passed by the first appellate Court after holding that he was a bonafide purchaser of land Gat No.270.
2. The respondent Nos.1 to 4 are the original plaintiffs. It is their case that one Pandhari expired on 20-4-1993. The plaintiff no.1 was his widow while plaintiff Nos.2 to 4 were their children. According to the plaintiffs, said Pandhari during his life time entered into second marriage with one Sushilabai. Said Sushilabai expired in the year 1978 and the defendant nos.1 and 2 were the ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 3/13 children from the said marriage. The defendant no.3 was the son of defendant no.1. The suit properties were ancestral properties belonging to the joint family. The plaintiffs, therefore, had right in the same. The defendant no.1 had got executed a document from said Pandhari in respect of field Gat No.270 and had got that property transferred in his name. The plaintiffs demanded a share of the properties and as the same was not granted they filed suit for partition and separate possession.
3. The defendant nos.1 and 3 filed their written statement and denied the claim as made. According to them, the suit property was the self acquired property of Pandhari. The plaintiff no.1 had filed Regular Civil Suit No.230/1973 against Pandhari claiming therein that she was his legally wedded wife. According to them, the plaintiff no.1 in that suit had relied upon the document of Vyavastha Patra dated 23-4-1944. That suit was however dismissed. It was then pleaded that Pandhari had executed a gift deed in favour of defendant no.1 and he had right to the suit property.
4. During pendency of the suit, the defendant nos. 1 and 3 sold field Gat No.270 in favour of one Eknath Zope. The plaintiffs therefore amended the plaint and added the subsequent purchaser as defendant no.4. It was also prayed that the sale deed ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 4/13 executed by defendant nos.1 and 3 in favour of defendant no.4 in respect of the field Gat No.270 be set aside as void. The defendant no.4 filed his written statement and pleaded that he was a bonafide purchaser of the suit property having purchased the same vide registered sale deeds dated 18-4-1994. He therefore claimed right to the suit property on that basis.
5. After the parties led evidence, the trial Court held that the sale of Gat No.270 in favour of defendant no.4 by the defendant nos.1 and 3 was void. The sale deed was accordingly set aside. However, rest of the claim for partition was refused. The defendant no.4 filed an appeal challenging this decree. The original plaintiffs filed cross-objection challenging the refusal of the relief of partition and separate possession.
The appellate Court held that the suit property was ancestral property and therefore passed a decree for partition and separate possession. It further held that the sale of the suit property in favour of the defendant no.4 was hit by principles of lis pendens. The share of defendant no.1 was directed to be allotted to the defendant no.4 during partition of the suit property. Being aggrieved, the original defendant no.4 has filed the present appeal.
6. While admitting the appeal, the following substantial questions of law were framed:
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(1) Whether the Courts below erred in holding that the
suit property was a joint family property in view of the fact that there is a gift deed executed in favour of Ramesh in the year 1970 by Pandhari?
(2) Was it necessary for the Courts below to have considered that Manohar one of the plaintiffs and coparcener who was 45 years old on the date of the suit should have challenged the alienation made by his father within 3 years of execution of the gift deed?
7. Shri R. L Khapre, learned Counsel for the appellant - defendant no.4 submitted that as Pandhari executed a gift deed dated 30-3-1970 in favour of defendant no.1 - Ramesh and this gift deed not having been challenged, it was clear that Ramesh was the lawful owner of the suit field. The said property was the self- acquired property of Pandhari, the same having been purchased by him exclusively and he was therefore competent to execute the gift deed. He referred to the earlier suit filed by the present plaintiff no.1 as well the written statement filed by Pandhari in which paternity of plaintiff no.2 - Manohar had been denied. It was thus submitted that the plaintiffs had no right to claim partition in the suit property. It was then submitted that the suit as filed in the year 1993 was barred by limitation inasmuch as plaintiff no.2 - ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 :::
SA239.04.odt 6/13 Manohar ought to have challenged the alienation of the suit property made by his father - Pandhari within three years of the execution of the gift deed. Said gift deed not having been challenged more than twenty three years, the suit was barred by limitation. According to the learned Counsel, the gift deed being a registered document, the limitation would start to run from 30-03- 1970 as the plaintiff no.2 had knowledge of the execution of the said gift deed. Reference was made to the provisions of Article 59 of the Limitation Act, 1963 in that regard. It was thus submitted that the suit could not have been decreed against defendant no.4 who was a bonafide purchaser of the suit property for value without notice. In support of his submissions, the learned Counsel relied upon the decisions in State of W. B. v. The Dalhousie Institute Society AIR 1970 SC 1778, Soni Lalji Jetha v. Soni Kalidas Devchand and others AIR 1967 SC 978, and Jagat Ram v. Varinder Prakash AIR 2006 SC 1786. On the aspect of the suit being barred by limitation, the learned Counsel placed reliance on the decision in Abdul Rahim & ors. V Sk. Abdul Zabar & Ors. 2009 (5) Mh.L.J. 701 and Amruta Kaluji Shejul v Vithal Ganpat Wadekar and others 2017 (1) Mh.L.J. 539.
8. On the other hand, Shri B. Dafle, learned Counsel for the respondent nos.1 and 2 - original plaintiffs supported the ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 7/13 impugned decree. It was submitted that what was put to challenge was the alienation of the suit property by defendant no.1 in favour of defendant no.4. This challenge was raised within limitation inasmuch as the suit property having been held to be joint family property, the gift deed executed by defendant no.1 of such joint family property was null and void. Pandhari expired on 20-04- 1993 and the suit for partition and separate possession was filed on 1-11-1993. He referred to the prayers made in the plaint to urge that the reliefs sought were within limitation. The finding that the suit property was joint family property was a finding of fact recorded by both the Courts and the same did not call for any interference. It was further submitted that defendant no.4 was not a bonafide purchaser of the suit property inasmuch as the suit property had been purchased after the suit had been filed and when an order of temporary injunction was operating. The appellate Court rightly held that the defendant no.4 would be entitled for the share of defendant no.1 when the property would be partitioned. In that regard, the learned Counsel placed reliance on the decisions in Shivappa Mallappa Isapure & Anr. Vs Ganpat Mallappa Isapure & Ors 2010(2) ALL MR 804, Prem Singh vs Birbal 2006(5) Mh.L.J. 441, Thamma Venkata Subbamma v. Thamma Rattamma and others AIR 1987 SC 1775 and Janaki ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 8/13 Pandyani vs. Ganeshwar Panda and another (2001) 10 SCC 434.
9. I have heard the learned Counsel for the parties at length and I have also perused the records of the case. Before considering the substantial questions of law as framed, it is necessary to note that the original defendant nos.1 and 3 being aggrieved by the judgment of the first appellate Court in Regular Civil Appeal No.4/2000 had preferred Second Appeal No.197/2004. This appeal came to be dismissed in liminie on 19- 7-2004 by passing the following order:
Heard Advocate Shri A. V. Bhide for the appellant. The findings recorded by appellate Court are being attacked as perverse.
The parties have permitted the Courts to adjudicate upon by dragging the Court in to arena of speculation of statement on oath against another. The findings based on such evidence cannot be attacked as perverse unless some material fact is held proved contrary to record. Nothing of this sort is shown. Thus the effort is to raise a dispute on the appreciation of evidence.
The finding of facts are final at first appellate stage. No substantial question of law is involved. Dismissed."
It is to be noted that the first appellate Court had passed a decree for partition and separate possession while holding the appellant herein to be a bonafide purchaser of the suit ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 9/13 property. The defendant no.4 having purchased the suit property from defendant nos.1 and 3 has stepped into their shoes. The findings as regards the suit property being joint family property and effect of the gift deed dated 30-3-1970 at Exhibit 108 executed by Pandhari in favour of defendant no.1 have thus attained finality. The aspect that remains for consideration is with regard to the rights of defendant no.4 who has purchased the suit properties on 18-4-1994.
10. In the written statement filed by defendant nos.1 and 3 at Exhibit-33, a specific stand was taken that the suit property was self-acquired property of Pandhari. A further plea was raised that in view of the earlier adjudication in Regular Civil Suit No.230/1973, the plaintiff no.1 had no legal right to claim the suit property from Pandhari. As stated above, Second Appeal No.197/2004 filed by defendant Nos.1 and 3 came to be dismissed in liminie. The learned Counsel for the appellants by relying upon the judgment of the Hon'ble Supreme Court in Bajranglal Shrai Ruia v. Shashikant N. Ruia and others AIR 2004 SC 2546 sought to urge that dismissal of the second appeal filed by original defendant nos.1 and 3 did not preclude entertainment of the present appeal on merits. There is no difficulty whatsoever in proceeding to adjudicate the present appeal on merits. However, the fact that ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 10/13 the challenge raised by defendant nos.1 and 3 to the decree passed by the appellate Court against them cannot be a factor that can be totally overlooked. The findings recorded by the first appellate Court against the defendant nos.1 and 3 have attained finality. The first appellate Court in paragraphs 18 and 20 of its judgment has already held that DW 3 Janardhan had admitted that Pandhari was not having any independent source of income and that Gat No.270 was purchased from the nucleus provided by the joint family.
The present appeal has been filed by the defendant no.4 who is a subsequent purchaser of the suit property from defendant nos.1 and 3 and he has thus stepped into their shoes. In his written statement filed at Exhibit-51 it was claimed by the defendant no.4 that defendant nos.1 and 3 had enjoyed the suit property since last twenty five years and that he had purchased the suit properties on 18-4-1994. It was also his case that he was a bonafide purchaser of the suit property in good faith. This appeal, therefore, filed at his instance would have to be adjudicated keeping in mind the finality attained with regard to identical challenges raised by the defendant nos.1 and 3. In that view of the matter, substantial question of law no.1 is answered against the appellant.
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11. Considering the question as to suit being barred by limitation in view of provisions of Article 59 of the said Act, according to the appellant the limitation for filing the suit commenced on 30-03-1970 as the plaintiff no.2 had knowledge of the execution of the gift deed at Exhibit-108 by Pandhari in favour of defendant no.1. It is however to be noted that the suit property has been held to be ancestral property of Pandhari. This finding recorded by the first appellate Court is on the basis of the material available on record and there is no other evidence on record to held that said finding is perverse.
It is well settled that the execution of a gift deed by a co-parcener in respect of joint family property would be void. This has been so held in Thamma Venkata (supra) and Shivappa Malappa Isapuri (supra). On the basis of such void document, defendant no.1 and 3 did not get any valid title to the suit property. It continued to remain joint family property. It is thus clear that on the basis of this gift deed at Exhibit-108, defendant nos.1 and 3 did not get any valid title to the suit property for the same to be transferred in favour of the defendant no.4.
12. In Premsingh (supra), it was held that if a document is void ab initio, a decree for setting aside the same would not be necessary and such document is non est in the eyes of law and ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 12/13 therefore a nullity. As held in Amruta Kaluji Shejul (supra), if any written instrument is put forward in defence but such document is void, then that document need not be challenged and the limitation for filing suit for possession based on title would be twelve years from the date when the possession becomes adverse to the plaintiff. The limitation would be governed by Article 65 of the said Act. Once it is found that the suit property was ancestral in nature, one co-owner cannot hold the same in a manner adverse to the other co-owner. This has been held in Janki Pandipani (supra). From the aforesaid position it is clear that the suit property was ancestral property and therefore the execution of the gift deed by a coparcener in respect of portion of such property was void. The gift deed being void ab initio, it was not necessary to challenge the same specifically and therefore limitation for the suit would not be governed by Article 59 of the said Act. On this count also it cannot be held that the suit was barred by limitation. Substantial question of law No.2 stands answered accordingly.
13. I, therefore, find that the first appellate Court has rightly passed a decree for partition and separate possession of the suit property. The finding that defendant no.4 was a bonafide purchaser has not been challenged by the plaintiffs herein. The further direction issued is that Gat No.270 be allotted to the share ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 ::: SA239.04.odt 13/13 of defendant no.1 and in turn to defendant no.4 being the transferee, the said decree does not call for any interference. As a result of the aforesaid discussion and in view of the answers given to the substantial questions of law, the appeal has to fail.
14. Accordingly, the second appeal stands dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:57:36 :::