NEUTRAL CITATION
C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1399 of 1995
With
R/FIRST APPEAL NO. 1400 of 1995
With
R/FIRST APPEAL NO. 1401 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== DECEASED NIRANJANABEN MUKUNDRAI BARAIYA THROUGH HER LEGAL HEIRS Versus CHHOTALAL MOTILAL MASTER THR'HEIRS & 1 other(s) ========================================================== Appearance:
JENIL M SHAH(7840) for the Appellant(s) No. 1,1.1 MR MB GANDHI, SENIOR ADVOCATE WITH MR CHINMAY M GANDHI(3979) for the Defendant(s) No. 1.2.1,1.2.2,1.2.3,1.2.4 MR MB GANDHI(326) for the Defendant(s) No. 1,1.10,1.11,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.4,1.8,1.9,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 06/11/2023 Page 1 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined CAV JUDGMENT
1. Heard learned Advocate Mr. Jenil M.
Shah for the appellants and learned Senior Advocate Mr. M.B. Gandhi with learned advocate Mr. Chinmay Gandhi for the respondents.
2. Being aggrieved and dissatisfied with the common Judgment and Decree dated 28.04.1995 passed in Civil Suit No.3831 of 1982, Civil Suit No. 4081 of 1982 and Civil Suit No.1687 of 1984 passed by City Civil Court No.12, Ahmedabad, the appellant- legal heir Dilipkumar Popatbhai Desai of late Niranjanaben Baraiya and original defendant no.2-in Civil Suit No.1687 of 1984, plaintiff in Civil Suit No.3831 of 1982, original defendant no.1 in Civil Suit No. 4081 of 1982 has Page 2 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined preferred these three First Appeals.
3. As facts giving rise to these appeals are the same the same can be summarised as under:
(i) That Saubhagya Park Cooperative Housing Society is a registered cooperative housing society wherein the land is owned by the society. The society constructed tenements and blocks on the said land and allotted them to its members who were required to pay the consideration by installments.
(ii) Block No.1 of the said society was an independent block and there was no adjacent tenement of other members. The said block was allotted to one Page 3 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Manjulaben Chhotalal Master who was the wife of Chhotalal Master. All the installments and payments of consideration were paid to the society by Chhotalal Master by cheque and by Money order since Chhotalal Master and his wife were mainly residing in Mumbai. There was a joint bank account of said Manjulaben Chhotalal Master with her husband Chhotalal Master and all cheques and Money Orders drawn in favor of the Cooperative housing society were paid in favour of the Cooperative Society. Manjulaben Chhotalal Master died on 17.07.1977. After her death, her husband Chhotalal Master gave an application to the society to make necessary mutation of his name in the record of the society. Page 4 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Other legal heirs of Manjulaben comprising three sons and Kusumben widow of late Sharadkumar Chhotalal Master submtted affidavits to the Society declaring on oath that they had no right, title, or interest in the said block no.1 in question and that the property be transferred in the name of Chhotalal Master as owner- member of the society.
(iii) During the year 1980-1981 as Chhotalal Master was not paying the installment, the Society filed an arbitration case before the Board of Nominees, Ahmedabad wherein by purshish dated 21.05.1981 submitted by the society it was stated that Chhotalal Master was a member of the said block no.1 and on the basis of Page 5 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined the same, Chhotalal Master paid the remaining installment being the sale consideration of Block no.1 and thereafter Lavad Suit was withdrawn by the Society.
(iv) An Agreement for Sale ( Banakhat) dated 24.07.1981 (Exh.53) was executed for Block No.1 for sale consideration of Rs.30,000/- between Chhotalal Master and Late Niranjanaben and an amount of Rs.10,000/- was paid consisting of Rs.7,000/- by Account Payee cheque and Rs. 3,000/- by cash. As per the said Banakhat, Chhotalal Master had also executed irrevocable Power of Attorney in favour of husband of Niranjanaben, Dilipkumar Popatlal Desai.
Page 6 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
(v) It appears that till registered sale deed was executed, the possession of the part of the suit property was given to Niranjanaben at a token rent, and rent for 20 months was taken by issuing a rent receipt dated 24.07.1981 (Exh.165) as part of the suit property was in possession of Kusumben widow of late Sharadkumar Chhotalla Master.
(vi) As Chhotalal Master did not abide by the obligation arising from Banakhat dated 24.07.1981 (Exh.53), appellant Niranjanaben filed Suit being Civil Suit No.3831 of 1982 with a prayer seeking permanent injunction by restraining the defendants from transferring, alienating the suit property and further prayed for Page 7 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined handing over the peaceful vacant possession of the remaining part of the suit property to the plaintiff- appellant.
(vii) It was also pleaded that on 20.10.1982, Chhotalal Master came to Ahmedabad and settled the matter and pursuant thereto tendered his resignation as member to the Society on 20.10.1982 and also gave an application to mutate the name of Niranjanaben as member of the Society.
(viii) The Power of Attorney Holder of Chhotalal Master and husband of Niranjanaben, Dilipkumar Popatlal Desai thereafter executed sale deed in favour of Niranjanaben on 2.11.1982 (Exh.72).
Page 8 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
(ix) The Court Commission of the suit property was carried out on 14.10.1982 in Civil Suit No.3831 of 1982 wherein it is stated that Kusumben one of the contesting respondents after knowing about the purpose of visit of the Court Commissioner, locked her room which was in her possession and left the house.
(x) Kusumben who was daughter-in-law of Chhotalal Master also filed Civil Suit No.4081 of 1982 against her father-in- law Chhotalal Master contending that she had become the joint owner of the suit property after death of Manjulaben as Chhotalal master had no right to sale the suit property as provisions of the Indian Succession Page 9 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Act,1923t and she was also entitled to get possession of one room, kitchen, bathroom, etc. which has been in her possession.
(xi) The appellant by amendment in the pleadings added Kusumben as defendant no.2 in Civil Suit No.3831 of 1982 and further claimed relief of possession of part of the suit property which was in possession of Kusumben as well as relief of mesne profit for that portion of the property from the date of suit till the date of possession.
(xii) It appears that thereafter third suit being Civil Suit No.1687 of 1984 was filed by the all legal heirs of Chhotalal Master against the appellant for a declaration and cancellation of Page 10 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined the registered sale deed dated 2.11.1982 and for possession of part portion of the suit property contending inter-alia that Banakhat amount of Rs.10,000/- was only a loan taken in the form of mortgage and the suit was filed for redemption of alleged mortgage and for cancellation of sale deed dated 2.11.1982 at Exh.72.
4. Learned Judge of the City Civil Court after considering the pleadings, consolidated all three suits and framed the issues at Exh.18 in Civil Suit No.3831 of 1982, at Exh.14 in Civil Suit No. 4081 of 1982 and at Exh.18 in Civil Suit No.1687 of 1984 as under:
Page 11 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Civil Suit No.3831 of 1982 (filed by Niranjanaben) "1) Whether the plaintiff proves that he has become the owner of the property as described in the plaint in view of the sale deed executed by defendant no.1?
2) Whether defendant no.2 proves that she is the co-owner of this property?
2-A) If proved that the said sale deed dt.2.11.1982 is illegal and void on account of fraud as alleged and further for want of prior permission of Saubhagya Park Housing Society as contended by defendant no.1?
3) Whether the plaintiff is entitled to the possession of the disputed property?
3-A) Whether the defendant no.1 proves that the market price of the suit property was more than Rs. 2 lakhs on the date of the suit? If yes, whether the suit is correctly valued for the purpose of Court fees?
3-B) Whether the defendant no.1 proves that the sale deed dated 2.11.1982 is sham, bogus, fraudulent, mala fide and null and void and ineffective?
Page 12 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined 3-D) Whether the defendant no.1 proves that the transaction is bad for the principle of lis pendense? 3-E) Whether the banakhat dt. 24.7.81 on a stamp paper of Rs.10/- is fraudulently got up or illegal in respect of the sale of the disputed property?"
4) What order and decree?
Civil Suit No. 4081 of 1982 (Filed by Kusumben) "1) Whether the plaintiff proves that originally Manjulaben the mother-in-law, was the owner of the suit property?
2) Does she further prove that on the death of her mother-in-law, her sons and the plaintiff have become the owners of the suit property?
2-A) Whether the plaintiff proves that the alleged Banakhat and power of attorney dt.24.7.81 and the sale deed are illegal, without consideration and without any authority and not binding to the plaintiff?
3) Does she further prove that defendant no.2 was only managing the affairs of the property? Page 13 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
4) Whether the plaintiff is entitled to a permanent injunction as prayed for?
5) Whether the defendant no.2 has lawfully purchased the suit property from defendant no.1?" Civil Suit No.1687 of 1984 (Filed by Late Chhotalla Master, after his death through his legal heirs) "1) Whether the plaintiff proves that he has cancelled the power of attorney alleged to have been executed by him in favour of defendant no.1 on 27.10.1982?
2) Whether the plaintiff proves that the defendant no.2 had no authority to execute the sale deed of the suit property in favour of defendant no.1?
3) Whether the plaintiff proves that the sale deed alleged to have been executed in favour of defendant no.1 by defendant no.2, was executed in collusion with each other?
4) Whether the sale deed dt.
2.11.1982 is without the
permission of Saubhagya park Co-
operative Housing Society and
therefore, illegal?
Page 14 of 64
Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION
C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023
undefined
5) Whether the plaintiff is
entitled to the reliefs as prayed for?
5-A) Whether the plaintiff proves that the market price of the suit property was more than Rs. 2,00,000/- on the date of the suit? If yes, whether the suit is correctly valued for the purpose of Court fees?
6-A) Whether the plaintiff
proves that the alleged
transaction between the parties is in the nature of a mortgage and not sale?
6-B) Whether the plaintiff proves that the sale deed dt.
2.11.1982 is sham, bogus, fraudulent, mala fide and null and void and ineffective?
6-C) Whether the plaintiff proves that the transaction is bad in the principle of lis pendence? 6-D) Whether the Banakhat on a stamp paper of Rs.10/- dt.
24.7.1981 is fraudulent, got up, illegal and not binding to the plaintiff?"
5. After considering oral and documentary Page 15 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined evidence led by the parties, by common Judgement and Decree the learned trial Judge dismissed the suit filed by the appellant i.e. Civil Suit No.3831 of 1982, and allowed suits filed by the respondents i.e. civil suit nos. 4081 of 1982 and 1687 of 1984 holding that the sale deed dated 2.11.1982 was illegal and void on account of fraud as alleged and for want of proper prior permission of Saubhagya Park Cooperative Housing Society. It was further held that the appellant failed to prove her claim that she had become the owner of the suit property.
6. Learned Judge allowed the Civil Suit No.4081 of 1982 and Civil Suit No.1687 of 1984 filed by the respondents declaring that Chhotalal Master had only authority Page 16 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined or power to do the management of the suit property and he had no authority on behalf of Kusumben and other legal heirs to deal with or dispose of the suit property and Banakhat, Power of Attorney given by Chhotalal Master and registered sale deed executed by the said Power of Attorney Holder was declared illegal, null and void. It was further held that the amount of Rs.10,000/- paid at the time of execution of Banakhat was in the nature of the mortgage transaction and not as a consideration for the sale of the suit property. Learned Judge, therefore, directed the appellant to handover the possession of the said portion of the suit property to the respondents.
7. During the pendency of the Page 17 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined proceedings, o plaintiff Niranjanaben as well as defendant Chhotalal Master expired and their respective legal heirs are brought on record.
8. This Court by order dated 05.05.1995 by way of ad interim relief granted the stay of execution, operation, and implementation of the impugned Judgment and Decree which was made absolute by order dated 13.11.1995. It appears that efforts were made thereafter to resolve the dispute through Lok Adalat but the same failed in the year 2001.
9. Learned advocate Mr. Jenil Shah appearing for the appellant submitted that the appellant entered into Banakhat on 24.07.1981 after making part payment of Page 18 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined consideration by Account Payee cheque of Rs. 7,000/- and Rs. 3000/- in cash and the said fact is not in dispute but it is fortified by the receipts issued by late Chhotalal Master. It was therefore, submitted that the learned Judge without considering documentary evidence on record i.e. notarised Agreement to Sale (Exh.53), irrevocable Power of Attorney (Exh.54) and registered sale deed dated 2.11.1982(Exh.72), resignation tendered by Chhotalal Master dated 20.10.1982 to the society as owner and member at Exh.122, a letter written by Niranjanaben Baraiya dated 29.10.1982 (Exh.123) to the society to enroll her as a member of the society, has passed the impugned Judgment and Decree.
Page 19 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined 9.1) Learned advocate Mr. Shah placed reliance on Exh.97 which is the receipt issued by the Chhotalal Master in favour of appellant Niranjanaben Baraiya with regard to receipt of Rs.3000/- by cash and Rs. 7000/- by Cheque No.SB103627 of State Bank of India and accordingly, receiving Rs.10,000/- towards part consideration for the sale of the suit property being Block No.1 at Saubhagya Park Cooperative Housing Society. It was further submitted that there was a receipt issued by Chhotalal Master which is not in dispute. He also relied upon Exh.65- receipt issued by Chhotalal Master for receipt of Rs.10,000/- as part of sale consideration for sale of the suit property. 9.2) Learned advocate Mr. Shah referred Page 20 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined to and relied upon Exh.201, affidavit of Kusumben widow of Sharadkumar Chhotalal Master dated 10.10.1979 declaring that she had no right, title, or interest in the suit property as the suit property was purchased by Chhotalal Master from his own income in name of Manjulaben and there was no objection if the property be transferred in the name of Chhotalal Master.
9.3) It was further submitted that the suit property was though purchased in the name of Manjulaben, wife of Chhotalal Master but in fact, entire consideration of the same was paid from the joint account of Chhotalal Master which is evident from the affidavit filed by the legal heirs after death of Manjulaben on Page 21 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined 27.07.1977 to the effect that it was Chhotalal Master who had invested his own income and acquired Block No.1 and legal heirs declared that they had no right, title, or interest in the suit property. It was therefore, submitted that the learned Judge ought to have come to the conclusion that the story of the redemption of mortgage and cancellation of the sale document in favour of Niranjanaben and handing over the possession of the suit property was false and got up the case only to escape from the liability and injunction which the appellant had sought in Civil Suit No.3831 of 1982. It was submitted that the learned Judge failed to appreciate and consider the documents on record i.e. Power of Attorney(Exh. 54), Banakhat (Exh.53), Page 22 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Application of Chhotalal Master to society asking for permission to sale(Exh.162), rent receipts issued by Chhotalal Master (Exh. 165), Exh. 121 and Exh.122 being the membership transfer Form and resignation given by Chhotalal Master, Application of the appellant to become member of the society(Exh.123), registered sale deed (Exh.72), payment of Rs. 3500/- made by Chhotalal Master before the Board of Nominees in suit filed by the society (Exh. 169), (Exh.64) being the purshis whereby Chhotalal Master was accepted as member of the society and evidence of the office bearer of the society at Exh.118 before the Board of Nominees. It was therefore, submitted that in view of the plethora of evidence on record, the learned Judge could not have arrived at a Page 23 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined conclusion of alleged fraud by the appellant and thereby failed to appreciate and evaluate the oral and documentary evidence while dismissing Civil Suit No. 3831 of 1982 and allowing Civil Suit No. 4081 of 1982 and Civil Suit No.1687 of 1984.
9.4) It was further submitted that the learned Judge ought to have granted the decree of possession in favour of the appellant and against Kusumben for the portion in which she is in possession of the suit premises in view of the transaction of sale and not transaction of mortgage as Chhotalal Master was the owner of the suit property and he had the capacity of disposing of the same. It was submitted that it was only to delay the Page 24 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined execution of the sale deed, the late Chhotalal Master with the help of his daughter-in-law Kusumben filed collusive Civil Suit No.4081 of 1982 which was also liable to be dismissed.
9.5) In support of his submission reliance was placed on the decision of the Supreme Court in case of Kale and others v. Deputy Director of Consolidation and others reported in (1976) 3 Supreme Court Cases 119 wherein the Hon'ble Apex Court in facts of the said case has laid down the proposition to put the binding effect and the essentials of a family settlement in a concretised form as under:
"10(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of Page 25 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) (sic) (Sec. 17 (1) (b) -) of the Registration Act and is, therefore, not compulsorily registrable;Page 26 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
9.6) It was submitted that by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to Page 27 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights are, or of the points on which their rights depend. The object of the family arrangement is to protect the family from long-drawn litigation or perpetual strife which mar the unity and solidarity of the family and create hatred and bad blood between the various members Page 28 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined of the family. It promotes social justice through the wider distribution of wealth. Family, therefore, has to be construed widely and it is not confined only to people having legal title to the property. It was therefore, submitted that once the legal heirs of Chhotalal Master and his wife Manjulaben have declared on oath that they have no right, title, or interest in the suit property, such family arrangement would prevail and could not have been challenged by the respondents by preferring the civil litigation against each other. It was, therefore, submitted that Civil Suit No. 4081 of 1982 and Civil Suit No.1687 of 1984 are liable to be dismissed.
9.7) Learned advocate Mr. Shah also referred to and relied upon the decision Page 29 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined of Apex Court in case of Korukonda Chalapathi Rao and another v. Korukonda Annapurna Sampath Kumar reported in 2021 SCC OnLine SC 847 in support of his submission about unregistered documents in the form of Banakhat vis-a-vis registration of the documents as provided under section 17 of the Registration Act, 1908. In facts of the said case, it was held by the Apex Court that when the High Court has set aside the order passed by the Trial Court by which the Trial Court overruled the objections of the respondent to the marking of Exhibits-B12 and B13 on the score that they were documents which were unregistered and unstamped and matter was posted for evidence of the witness of the defendant for marking the said document, the High Court found that the Page 30 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined documents which were the unregistered family settlement and receipt of Rs. 2,00,000/- by the respondent, were not admissible in evidence. The Apex Court in the aforesaid facts held as under:
"13. Undoubtedly, Section 17(1)
(b) makes 'other non-
testamentary instruments', which purport or operate to create, assign, limit or extinguish whether in present or in future any right or interest whether vested or contingent of the value of Rs.100/- and upwards in an immovable property compulsorily registrable. Section 17(1)(c) reads as follows:
"17(1)(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and"
14. Section 17 (2) provides nothing in Clauses (b) and (c) of sub-Section(1) applies, inter alia, to any instrument of partition made by the revenue officer. Section 49 of the Page 31 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Registration Act reads as follows:
"49. Effect of non-
registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected Page 32 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined by registered instrument.] ."
15. There is a long line of judgments of this court dealing with the question as to whether a family arrangement is compulsorily registrable. We need only refer to the case of Kale v. Dy. Director of Consolidation. This Court has summed up the essentials of the family settlement in the following proposition:
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement Page 33 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible Page 34 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide
disputes, present or
possible, which may not
involve legal claims are
settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." (Emphasis supplied) 9.8) Relying upon the above decision, it was submitted that in the facts of the present case, unregistered Banakhat when found bona fide with other corroborative Page 35 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined evidence, the same would be binding to the parties and such instrument would be an admissible evidence. It was further submitted that the affidavits filed by the legal heirs of late Manjulaben are also admissible evidence for a declaration to the effect that they had no right in the suit property.
10. On the other hand, learned Senior Advocate Mr. M.B. Gandhi with learned advocate Mr. Chinmay Gandhi for the respondents submitted that the trial Court has rightly concluded to the effect that on the filing of the suit by Kusumben widow of Sharadkumar Chhotalal Master on 30.10.1982, plaintiff Niranjanaben got the sale deed executed in her favor for the suit property by her husband Dilipkumar Popatlal Desai in his capacity as Power of Page 36 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Attorney Holder of Chhotalal Master on 2.11.1982 which is nothing but a sham and bogus transaction inasmuch as except payment of Rs.10,000/-, the appellant original plaintiff Niranjanaben has not paid any amount towards sale consideration as even the remaining amount of sale consideration of Rs. 20,000/- is stated to have been outstanding in the registered sale deed. It was therefore, submitted that as per section 37 of the Contract Act, 1872, the parties to a contract must either perform, or offer to perform, their respective promises unless such performance is dispensed with or excused under the provisions of the Act, or of any other law. It was, therefore, submitted that here in facts of the case, the plaintiff Niranjanaben has never performed Page 37 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined her promise and therefore, the trial court has rightly dismissed the suit of the plaintiff for permanent injunction and handed over the remaining portion of the suit property to Kusumben.
10.1) It was further submitted that admittedly Manjulaben Chhotalal Master was the owner of the property and once she died intestate in the year 1977, all the legal heirs i.e. Chhotalal Master and his four sons would become the owners of the suit property. It was therefore, submitted that merely because the legal heirs have filed the affidavit before the society to transfer the suit property in favour of Chhotalal Master, he would not become the owner of the suit property but he would be merely a Manager to manage the suit property on behalf of all the legal heirs. Page 38 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined It was, therefore, submitted that the trial Court has rightly held that the sale deed dated 2.11.1982 as well as the Power of Attorney are null and void. 10.2) It was further submitted that the mere filing of the affidavit by the legal heirs as well as Kusumben widow of Sharadkumar Chhotalal Master cannot be considered as the extinguishment of their rights in the share of the suit property. It was submitted that such an affidavit which is unregistered cannot be treated as a relinquishment deed and the right of the legal heirs would continue after the death of Manjulaben Chhotalal Master on account of succession of their share in the suit property.
10.3) In support of his submission, Page 39 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined reliance was placed on decision of this Court in case of Roshanben Harjibhai Deraiya W/o Ganibhai Sorathiya v. State of Gujarat reported in 2022(1) GLR 480 wherein this Court has referred to the decision of Apex Court in case of Yellapu Uma Maheshwari v/s. Buddha Jagadheeswararao, reported in 2015 (16) SCC 787. The Apex Court in the said decision held that the nomenclature given to the document is not a decisive factor but the nature and substance of the transaction has to be determined concerning the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in Page 40 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined question. The Apex Court in the facts of the said case held that when there is relinquishment of right in respect of immovable property through a document that is the compulsorily registerable document and if the same not registered, becomes an inadmissible document as envisage under Section 49 of the Registration Act read with section 17(i)(b) of the said Act. 10.4) It was therefore, submitted by learned Senior Advocate Mr. Gandhi that in the absence of registration of the document, the trial Court has rightly held that the same is inadmissible in evidence to prove the factum of relinquishment of rights by the legal heirs of Manjulaben in respect of the suit property.
11. Having heard the learned advocates for Page 41 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined the respective parties and having considered the documentary and oral evidence on record, it appears that the learned trial Judge has been swayed away by the fact of the registration of the sale deed on 2.11.1982, two days after the filing of the Civil Suit No. 4081 of 1982 by Kusumben on 30.10.1982. The trial Court has further been prejudiced by the relationship of Dilipkumar Popatlal Desai and Niranjanaben while appreciating the evidence and the fact regarding the respective cases of the parties as Dilipbhai is the husband of Niranjanaben and even though Niranjanaben is writing the name of and surname of father behind her name, even though she is married to Dilipbhai long back. The trial Court was also of the view that both were residing Page 42 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined under the same roof before the said transaction and therefore, they can be said to be two sides of the same coin and it was not probable or natural that Niranjanaben was thinking of purchasing the property for her self independently having no interest of Dilipbhai in it.
12. However, the trial Court referring to a letter dated 4.05.1982 (Exh.191) written by Dilipbhai, had drawn an unwarranted interference that the thogh suit transaction was between Niranjanaben and Chhotalal Master, as a matter of fact both husband and wife got interested in purchasing the suit property and therefore, it was very much surprising as to how Dilipbhai could play double role one as a Power of Attorney Holder and thereby working as an agent of Chhotalal Page 43 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined and at the same time he had also interest in purchasing the suit property from Chhotalal. The trial Court therefore, held that Dilipbhai has tried to act as purchaser and seller of the suit property.
13. Trial Court further has referred to the fact of Dilipbhai and Niranjanaben producing certain papers before the office bearers of society even after the Civil Suit No.3831 of 1982 was filed in the name of Niranjanaben against Chhotalal Master on 13.10.1982. The trial Court observed that according to Niranjanaben and Dilipbhai, Chottalal Master had intention to back out from selling the suit property and accordingly, Civil Suit No.3831 of 1982 was filed. The trial Court therefore, has drawn inference that it was not probable on part of Chhotalal Master to Page 44 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined sign any document at the instance of Niranjanaben or Dilipbhai and he would not have agreed to do so given changed circumstances and particularly, after the suit was filed against him on 13.10.1982. The trial Court, therefore, discarded the document at Exh. 121 and Exh.122 whereby Chhotalal Master resigned from the membership of the society by signing the application for the transfer of shares in favour of Niranjanaben.
14. It appears that the trial Court has overlooked the receipts issued by Chhotalal Master for receipt of part of the sale consideration on 24.07.1981. Merely because of subsequent events after the filing of the suit has created doubt in the mind of the learned Judge about the transaction by twisting the facts in Page 45 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined favour of Kusumben, plaintiff of Civil Suit No. 4081 of 1982, that documents at Exh. 121 and 122 are concocted documents by Niranjanaben and Dilipbhai with the aid of witness Davidbhai. Trial Court without verifying the correctness of the signature of Chhotalal Master on such document relied upon the oral evidence at Exh. 199 of Kusumben wherein she has denied on oath that documents at Exh.121 and Exh. 122 bears the signature of her deceased father-in-law Chhotalal Master. The Trial Court has also failed to appreciate that Kusumben filed Civil Suit No.4081 of 1982 against her father-in-law as a counter blast to the suit filed by Niranjanaben.
15. The Trial Court has also discarded the evidence of Davidbhai who has deposed that the documents at Exh.121 and Exh.122 Page 46 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined signed by Chhotalal Master in his presence.
16. The Trial Court has further drawn an adverse inference without any basis with regard to Exh.120 which is the original proceeding book of the Society wherein Chhotalal Master had put his signature below the resolution of transfer of membership in the meeting dated 06.06.1981. The Trial Court observed that the date of taking the signature of Chhotalal Master is not the same on which the resolution is passed as David himself has admitted that the resolution was passed in a meeting dated 06.06.1981 whereas according to him signature of Chhotalal Master was obtained on 30.11.1982 i.e. after 17 months after the date of resolution.
Page 47 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
17. The trial Court, therefore, concluded that it is not proved by Davidbhai that the signature dated 30.11.1982 in Exh.120 purporting to be of Chhotalal Master is really of Chhotalal Master because Davidbhai in his examination in chief has stated that Chhotalal Master had come on 30.11.1982 and had put his endorsement and below the endorsement put his signature with date 30.11.1982 in his presence. But in his cross-examination, he admitted that this endorsement was neither made in his presence nor it was signed by anybody in his presence. The trial Court, therefore, held that whatever has been said by Davidbhai regarding the endorsement and the so-called signature of Chhotalal Master at Exh.120 is not true and correct because of the cross-examination. The Page 48 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Trial Court has therefore, drawn an adverse inference that by allowing Niranjanaben and Dilipbhai to have such an addition in the proceeding book, the office bearers of the society have also tried to take side of Niranjanaben and Dilipbhai for reasons best known to them.
18. With regard to document at Exh.201 which is an affidavit dated 10.10.1979, it is held to be not proved and the signature below the contents has been admitted by Kusumben to be her own signature but she had said that her signature was obtained in the document at her house representing that writing was required to be given to the society for permitting Chhotalal to act as Manager on behalf of all the heirs of Manjulaben for management of the suit property and without reading the contents Page 49 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined she had put her signatures. The Trial Court has thus heavily relied upon the deposition of Kusumben and accepted the story put forth that without reading she had signed the document at Exh.201 which is an affidavit whereby she has declared that she has no right, title, or interest in the suit property and the suit property be transferred in the name of Chhotalal Master as he is the owner of the same. It is pertinent to note that on 10.10.1979 after the death of Manjulaben, there was no transaction between Niranjanaben and Chhotalal Master. Therefore, story put forth by Kusumben and believed by the trial Court that affidavit was signed only to permit Chhotalal Master to manage the suit property is also an eyewash that has been blindly accepted by the trial Court. Page 50 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
19. The Trial Court has also discarded the Affidavit of Kusumben at Ex.201 in the absence of examining Steven Syrus witnessing the said document and Registrar of the Labour Court. The Trial Court has heavily relied upon the non-examination of witness Steven Syrus who had identified Kusumben in the affidavit even though Kusumben had not disputed her signature in the said document.
20. The Trial Court has again relied upon the deposition of Kusumben wherein she had stated that Steven Syrus was not keeping good health and he was bedridden. He was not able to see properly as by then his eyesight had become very weak and because of illness, he was not able to speak properly. According to Kusumben, it was not possible for her to examine Steven Page 51 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Syrus after her evidence was recorded. The trial Court therefore, after considering the fact that Steven Syrus died during the course of the proceeding heavily relied upon the say of Kusumben that Steven Syrus was not keeping good health and therefore, Kusumben couldn't examine him though he was an important witness for both Niranjanaben and Kusumben. In such circumstances, the trial Court has drawn adverse inference that the contents of affidavit Exh.201 cannot be said to have been proved as true and believed the say of Kusumben that she had put her signature without reading the contents of the document at Exh.201.
21. The entire reasonings given by the trial Court is without any basis inasmuch as Steven Syrus had only identified Page 52 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined Kusumben and he had no connection with contents of the document. Therefore, in rejecting the contents of the document, the trial court has not given any reason. Kusumben who had failed to examine Steven Syrus has not even tried to prove that she had signed the document without reading it.
22. In view of the facts emerging from the record, it appears that the trial Court by drawing unwarranted inference has believed what Kusumben had said as a gospel truth ignoring the fact that Kusumben had filed the suit against her own father-in-law to continue to reside in the part portion of the suit property.
23. The Trial Court has also referred to and relied upon the absence of permission Page 53 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined granted by the society to execute the sale deed dated 2.11.1982 (Exh.72). The Trial Court has distinguished the decision cited on behalf of the appellant with regard to the contention of the appellant there was no requirement of permission from the society before execution of the sale deed by Dilipbhai in capacity of Power of Attorney Holder of Chhotalal Master on the ground that in the decision in case of Jain Merchant Co-op Housing Society Ltd and others v. HUF of Manubhai reported in 1995(1) GLR 19, the dispute was different wherein permission was sought for by the Karta of the HUF for transfer of property which was denied by the society on the ground that property can be transferred in name of an individual only and in such circumstances it was held by this Court Page 54 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined that provisions of Gujarat Cooperative Societies Act and Rules would not restrict the registration of the sale deed in absence of the permission from the society.
24. The trial Court, therefore, dismissed the suit filed by the appellant i.e.Civil Suit No.3831 of 1982 on the ground that the appellant plaintiff has failed to prove that she has become the owner of the suit property in view of the sale deed executed by Dilipbhai as Power of Attorney Holder of Chhotalal Master. Trial Court has further also taken into consideration that the market value of the suit property was about Rs. 2 Lakh in the year 1981 when the Banakhat was executed, however, the suit property has been agreed to be sold for Rs. 30,000/-. Therefore, the entire Page 55 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined transaction would be contrary to the evidence on record and therefore, the registered sale deed also was held to be null and void by allowing Civil Suit No.4081 of 1982 and Civil Suit No. 1687 of 1984. The Trial Court also held that deceased Chhotalal Master can be said to have proved that he had cancelled the Power of Attorney alleged to have been executed by him in favour of Dilipbhai by giving a public notice dated 27.10.1982 in Gujarat Samachar newspaper on 30.10.1982 as alleged in para no.8 of the suit and he has also proved that Dilipbhai had no authority to execute the sale deed dated 2.11.1982 of the suit property contrary to the fact that Power of Attorney was an irrevocable Power of Attorney executed by Chhotalal Master, coupled with the fact of Page 56 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined issuance of a receipt for Rs. 10,000/- towards part sale consideration signed by Chhotalal Master which is not disputed by any of the legal heirs of Chhotalal Master. The Trial Court has therefore, committed an error in arriving at the conclusion that Banakhat dated 14.07.1981 deed dated 2.11.1982 in favour of Niranjanaben was executed for loan transaction and therefore, the same was held to be illegal because market price of the suit property was much higher than Rs.30,000/- agreed between the parties.
25. The Trial Judge has also held that when sale deed dated 2.11.1982 was executed by Dilipbhai in favour of Niranjanaben of suit property, Civil Suit No.3831 of 1982 and Civil Suit No.4081 of 1982 filed on 13.10.1982 and 30.10.1982 Page 57 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined respectively were pending and therefore, under doctrine of lis pendense as provided in section 52 of the Transfer of Property Act, 1882 transaction is bad in law which was ignoring the fact that lis pendense is required to be registered and in absence of such registration, execution of the sale deed at Exh.72 is concerned, cannot be said to violate section 52 of the Transfer of Property Act. The Trial Court has committed an error in applying section 52 of the Transfer of Property Act which reads as under:
"52. Transfer of property pending suit relating thereto.
--During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [* * *] of [any] suit or proceedings which is not collusive and in which any right to immoveable property Page 58 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]"
26. Reliance was placed by the learned advocate for the appellant on Bombay Act, Page 59 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined 1939 and amendment in section 52(1) to exclude the applicability of section 52 of Transfer of Property Act.
27. Findings given by the trial Court in relation to issue no.3 of Civil Suit No.3831 of 1982, issue nos. 4 and 5 of Civil Suit No.4081 of 1982 and issue no. 5 of Civil Suit No.1687 of 1984 are concerned, same would be dependent upon issues no 1, 2, 2-A, 3-A and 3-E of the Civil Suit No.3831 of 1982 wherein it held that Niranjanaben can be said to have failed to prove that she has become the owner of suit property by virtue of sale deed at Exh.72 and the legal heirs of Manjulaben are the co-owners of the suit property has also been upheld and transaction between the parties dated 24.07.1981 is not as a matter of fact in Page 60 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined nature of sale transaction but it is in nature of security against advance payment of Rs.10,000/- and thereby it is in nature of mortgage of the property by depositing the document. The Trial Court has however, ignored the receipt issued by Chhotalal Master in favour of Niranjanaben for accepting Rs. 10,000/- comprising of cash of Rs. 3000/- and cheque of Rs. 7000/- towards part consideration out of total sale consideration of Rs. 30,000/- agreed between the parties. Moreover, there is no evidence on record to come to a conclusion by the trial Court that the suit property was having market value not less than Rs. 1,25,000/-. In such circumstances, the findings arrived at by the Court below are perverse and contrary to the documentary evidence available on record with regard Page 61 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined to legality of Banakhat is concerned. However, the findings of the Trial court about registered sale deed dated 02.11.1982 are in accordance with evidence led before it and cannot be said to be perverse as the Dilipbhai could not have executed the sale deed dated 02.11.1981 in favour of his wife Niranjanaben after two days of filing of suit by Kusumben on 30.10.1982 on the basis of Power Of Attorney without payment of balance sale consideration.
28. Therefore, Civil Suit No.3831 of 1982 is allowed by granting permanent injunction against legal heirs of Manjulaben and Chhotalal Master, and respondent Kusumben is hereby directed to vacate the suit premises.
Page 62 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023
NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined
29. Civil Suit No. 4081 of 1982 and Civil Suit No.1687 of 1984 are accordingly partly allowed. Agreement to Sale (Banakhat) dated 24.07.1981 is confirmed, however, findings of the trial Court about the sale deed dated 2.11.1982 are hereby confirmed. Respondents are directed to execute the sale deed in favor of legal heirs of Niranjanaben by considering the Agreement to Sale dated 24.07.1981 as legal and valid. Consideration for sale deed shall be worked out as per the Jantri value prevailing as on today and legal heirs of Niranjanaben are directed to pay the balance amount of consideration arrived at after obtaining the valuation report from the registered valuer and after receipt of possession of the portion of the premises occupied by Kusumben widow Page 63 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023 NEUTRAL CITATION C/FA/1399/1995 CAV JUDGMENT DATED: 06/11/2023 undefined of Sharadkumar Chhotalal Master from the suit property. First Appeals stand disposed of in above terms.
Record and proceedings be sent back to the concerned Court.
(BHARGAV D. KARIA, J) At this juncture, learned advocates for the respective parties prayed that direction may be given to comply with the above directions issued while disposing of the appeals on or before 31st March, 2024.
Accordingly, both the sides are directed to abide by the directions issued here-in- above latest by 31st March, 2024.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 64 of 64 Downloaded on : Tue Nov 07 20:42:06 IST 2023