921-J-SA-94-16 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.94 OF 2016
1. Pritesh Narendra Thakkar,
Aged about 32 years,
Occupation : Business,
2. Tarulata wd/o Narendra Thakkar,
aged about 50 years,
Occupation household work.
Both residents of
Shrikrishna Complex,
Opposite Dashera Maidan,
Badnera Road, Amaravati,
Tahsil and Dist. Amravati ... Appellants.
-vs-
Pravin s/o Gwaldas Lakhotia,
Aged about 30 years,
Occupation business,
R/o Rajapeth Amravati,
Tahsil and Dist. Amravati. ... Respondent.
Shri M. N. Ahmed, Advocate for appellants.
Shri S. S. Alaspurkar, Advocate for respondent.
CORAM : A. S. CHANDURKAR, J.
DATE : September 13, 2017 Oral Judgment :
Notice for final disposal was issued on the following substantial question of law :
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921-J-SA-94-16 2/6 " Whether the sale deeds at Exhibits-22 and 23 convey title to the respondent or whether they were executed merely for collateral purpose ?"
2. The appellants are the original defendants in a suit for recovery of possession filed by the respondent. It is the case of the respondent that by virtue of two sale deeds dated 30/05/2002, flat No.101 was purchased from one Shri Ravindra Nawathe. The appellant No.2-defendant No.2 was a consenting party to the sale deeds. The plaintiff permitted the son of defendant No.2 to occupy the premises on Leave & License basis by executing an agreement. Initially proceedings under Section 24 of the Maharashtra Rent Control Act, 1999 were filed. As the issue of title arose, the respondent filed suit for possession based on the title. In the written statement filed on behalf of the defendants it was denied that the premises were given in possession of the defendants on the basis of Leave & License agreement. It was denied that the plaintiff was the owner of the suit premises. The defendant No.2 had taken a loan of Rs.3,00,000/- from the plaintiff and hence by way of security, two cheques for an amount of Rs.1,50,000/- each were deposited. The transaction was therefore not one of sale but it was by way of mortgage. The sale deeds were therefore only nominal. The parties led evidence before the trial Court. Both the appellants examined themselves and the respondent also examined himself. The trial Court held that the ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 00:48:27 ::: 921-J-SA-94-16 3/6 title of the plaintiff was duly proved as per the sale deeds at Exhibits-22 and
23. It was further held that the defendant No.1 was a licensee as per the agreement at Exhibit-28. On that basis the suit was decreed. The appellate Court confirmed these findings and dismissed the appeal.
3. Shri M. N. Ahmed, learned counsel for the appellants submitted that the sale deeds at Exhibits-22 and 23 were nominal documents which were not intended to transfer the title in favour of the plaintiff. They were executed only for collateral purpose. According to him though the valuation of the property was on a higher side, it was stated that the consideration was settled at Rs.3,00,000/-. Out of this amount of Rs.3,00,000/-, Rs.1,50,000/- was paid by cheque and Rs.1,50,000/- was paid in cash. It was urged that this was one factor to demonstrate that the sale deeds were nominal in nature. No receipt for payment of Rs.1,50,000/- in cash as per the the sale deed was placed on record. The possession was also not taken from the vendor and the vendor was shown as the licensee. Though the respondent filed his balance sheet on record, it could not be demonstrated that the consideration in cash had been paid. It was thus submitted that even if the sale deeds were duly registered, there was no intention to transfer the title. The documents were executed only as a security for the loan transaction. In support of his submissions, the learned counsel placed reliance on the following decisions :
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921-J-SA-94-16 4/6
(i) Manish Shukla and ors. v. Anand Kumar Sharma and ors.
2016(4) Civil L.J. 42.
(ii) Jagannath v. Sunderlal 1977 MhLJ 40
4. Shri S. S. Alaspurkar, learned counsel for the original plaintiff supported the impugned judgment. According to him one Ravindra Nawathe was the owner of the suit property. He had executed the Power of Attorney in favour of defendant No.2. On the strength of that document, the sale deeds came to be issued by the defendant No.2. According to the plaintiff the initial agreements were with the husband of defendant No.2 who had expired thereafter in May, 2000. It was submitted that the defendants had admitted that the sale deeds were executed in their presence. Similarly, execution of Leave and License agreement was also admitted. It was submitted that on the basis of such relationship, the eviction was sought before the Rent Controller. As the defendants disputed the title, the present suit was filed. He therefore submitted that both the Courts having concurrently held in favour of the plaintiff, no interference was called for.
5. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case. The initial document executed is the document of Power of Attorney at Exhibit-57. As per this document dated 27/06/2000 it was stated that the husband of defendant ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 00:48:28 ::: 921-J-SA-94-16 5/6 No.2 was the owner of a Construction Company and he intended to carry out construction activities. The owner of the property, Shri Ravindra Nawathe executed this Power of Attorney in favour of defendant No.2 after the demise of her husband with a view to complete the project. To this document, the defendant No.1 is an attesting witness. Thereafter on the project being completed, sale deeds were executed in respect of Flat No.101 in two parts. The vendor has been shown as Shri Ravindra Nawathe and he has acted through his Power of Attorney holder-defendant No.2. The total consideration paid is Rs.3,00,000/-, half of which is by cheque and other half is by cash. To this document also, the defendant No.1 is the witness. Similar is the situation with regard to the sale deed at Exhibit-23. On the same day, an agreement of Leave and License at Exhibit-28 was entered into. This was to facilitate the accommodation of the defendant No.1 for a period of one year.
From the aforesaid documents, it is clear that the owner of the property was Shri Ravindra Nawathe and the defendant No.2 was merely his Power of Attorney holder. The contents of both the sale deeds and the agreement of Leave and License are not shown to be either incorrect or conveying some other intention.
6. As per recitals of Exhibits-22 and 23 which are signed by the defendant No.2, the amounts in cash have been received. The plaintiff has ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 00:48:28 ::: 921-J-SA-94-16 6/6 placed on record his balance-sheet at Exhibits-25 and 26. The mutation entry taken pursuant to the aforesaid transaction at Exhibit-27 was never challenged by the defendant. Thus, mere inadequate consideration as urged cannot by itself lead to the conclusion that no title was intended to be conveyed in favour of the plaintiff. There is no evidence brought on record by the defendant No.2 to indicate loan of Rs.3,00,000/- being borrowed from the plaintiff. I therefore find that the substantial documentary evidence placed on record by the plaintiff is sufficient to convey valid title in his favour. The sale deed at Exhibits-22 and 23 cannot be termed as nominal. The decisions relied upon by the learned counsel for the appellants cannot be made applicable to the facts of the present case. Accordingly the substantial question of law is answered by holding that sale deeds at Exhibits-22 and 23 convey title to the respondent. As a result, the appeal fails. Same is therefore dismissed with no order as to costs. Pending civil application is also disposed of accordingly.
JUDGE Asmita ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 00:48:28 :::