Bombay High Court
Abdul Fiyaz S/O Abdul Samad vs Sachin Savta Sonawane And Ors on 15 April, 2016
Bench: T.V. Nalawade
912SA648-03&479-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.479/2003
WITH CIVIL APPLICATION NO.4756/2003
IN SECOND APPEAL NO.479/2003
1. Abdul Kadar s/o Ab.Samad
Since deceased, through Legal
Heirs:
1-A. Tahera Kadar Pathan
Age 50 years, Occu: Household
& Agriculture, R/o Nandar,
Tal.Paithan, Dist.
Aurangabad.
1-B. Riyaz s/o Kadar Pathan
Age 26 years, Occu: Labour
R/o As above.
1-C. Uhhaz s/o Kadar Pathan
Age 22 years, Occu: Labour
R/o As above.
1-D. Saddam s/o Kadar Pathan
Age 15 years, Minor,
Under guardianship of
Appellant No.1-A.
R/o As above.
1-E. Sajeda d/o Kadar Pathan (W/o
Akhtar Shaikh,
Age 28 years, Occu: Household
R/o Pimpalwada, Tal. Paithan
District: Aurangabad.
1-F. Samayya d/o Kadar Pathan
Age 20 years, Occu:
Household
R/o Nandar Tq. Paithan
District Jalgaon.
1-G. Sumera d/o Abdul Samad
Age 16 years, Minor
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Under guardianship of
Applicant No.1-A,
R/o Nandar Tq. Paithan
District Jalgaon.
2. Abdul Faiyaz s/o Abdul Samad, ... Appellants
Age 35 years,Occu: (Orig.Defts.2&3)
Agriculture, R/o Nandar,
Tal.Paithan, Dist.
Aurangabad.
VERSUS
1. Sachin s/o Savta Sonawane
Age 7 years, Occu: Education
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
2. Surekha d/o Savta Sonawane
Age 6 years,
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
3. Saroj d/o Savta Sonawane
Age 2 years,
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
4. Sau. Ranjanabai w/o Savta
Sonawane
Age 30 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
5. Savta s/o Bhaurao Sonawane
Age 35 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
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6. Malaksingh @ Maniksing s/o
Hiralal Pardeshi
Since deceased through Legal
Heirs.
6-A Prabhabai Malaksingh @
Maniksing Pardeshi
Age 52 years, Occu: Household
R/o Pardeshipura, Paithan,
Taluka Paithan,
Dist. Aurangabad.
6-B Charan Malaksingh @ Maniksing ... Respondents
Pardeshi
Age 30 years, Occu: Labour
R/o Pardeshipura, Paithan,
Taluka Paithan,
Dist. Aurangabad.
Mr. Anand P. Bhandari, Advocates for Appellants
Mr. S G Chapalgaonkar, Advocate for Respondents :
WITH
SECOND APPEAL NO. 648 OF 2003
WITH CIVIL APPLICATION NO.7361/2003
IN SECOND APPEAL NO.648/2003
Malaksingh @ Maniksing s/o
Hiralal Pardeshi
Since deceased through Legal
Heirs.
1) Prabhabai Malaksingh @
Maniksing Pardeshi
Age 53 years, Occu: Household
R/o Pardeshipura, Paithan,
Taluka Paithan,
Dist. Aurangabad.
2) Charan Malaksingh @ Maniksing ... Appellants
Pardeshi
Age 30 years, Occu: Labour
R/o Pardeshipura, Paithan,
Taluka Paithan,
Dist. Aurangabad.
VERSUS
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1. Sachin s/o Savta Sonawane
Age 16 years, Occu: Education
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
2. Surekha d/o Savta Sonawane
Age 15 years,
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
3. Saroj d/o Savta Sonawane
Age 11 years,
Under Guardian ship of
Plaintiff No.4 mother
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
4. Sau. Ranjanabai w/o Savta
Sonawane
Age 39 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
5. Savta s/o Bhaurao Sonawane
Age 44 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
6. Abdul s/o Abdul Samad
Age 49 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
(deleted as per order
dt.30.8.13 in CA No.9695/13)
7. Abdul Faiyaj s/o Abdul Samad, ... Respondents
Age 44 years, Occu: Agri.
R/o Nandar, Taluka Paithan,
Dist. Aurangabad.
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Mr. N. K. Kakade & Mr. A. N. Kakade, Advocates for the
appellants.
Mr. S G Chapalgaonkar, Advocate for Respondents 1 to 5
CORAM : T. V. NALAWADE, J
DATE : 15th April, 2016
J U D G M E N T:
1. Heard. Admit. Notice after admission made
returnable forthwith. Heard both sides in both the
appeals for final disposal.
2.
Regular Civil Suit No. 148/1995 which was
pending in the Court of Civil Judge, Junior Division,
Paithan was filed by Sachin Sonawane, his two sisters
and his mother Ranjanabai for the relief of partition
and separate possession of their shares in the
ancestral property. Sachin and his two sisters were
minor and their mother Ranjanabai had filed the suit as
next friend, as natural guardian of her issues.
Defendant No.1 is father of plaintiff Nos.1 to 3.
Defendant Nos. 2 to 4 are purchasers of some portion
of the suit property.
3. It is the case of plaintiffs that Gat No. 377/2
admeasuring 8 Acres and 3 Gunthas which is known as
Mathyacha Wavar, situated at village Nandar, Taluka
Paithan, District Aurangabad is ancestral and a joint
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family property of plaintiffs and defendant No.1. It
is the case of the plaintiffs that defendant No.1 is
addicted to bad vices and when there was no legal
necessity, defendant No.1 sold 60 R portion to
defendant No.2 and 61 R portion to defendant No.3
from the suit property and the amount was used for
satisfying the bad vices by defendant No.1. It was
contended that defendant No.1 was attempting to dispose
of the remaining property also and so the suit was
required to be filed. The plaintiffs had claimed
their 2/3rd share in the suit property by partition.
During pendency of the suit, some portion was sold by
defendant No.1 to defendant No.4 and so defendant no.4
was added in the suit.
4. Defendant Nos. 2 and 3, purchasers prior to the
date of the suit, filed written statement and contested
the matter. They contended that they purchased the
portion shown in the plaint under registered sale deeds
about 6/7 years prior to the date of suit from
defendant No.1. They contended that the property was
standing in the name of defendant No.1 and they are
bonafide purchasers. They contended that they have
developed the portion purchased and they have even
taken loan for digging well in the said portion. They
912SA648-03&479-03.odt
had prayed for dismissal of the suit.
5. Defendant No.4 also filed written statement and
contested the matter. He contended that he has
purchased 40 R portion from defendant No.1 and that
portion was sold for legal necessity by defendant No.1.
He contended that he was not aware of the pendency of
the suit and even of the status quo order made by the
court in the suit.
6.
On the basis of aforesaid pleadings, issues were
framed by the trial court. Both sides gave evidence.
Plaintiff No.4 Ranjana gave evidence and she placed
reliance on the revenue record. She examined mother of
defendant no.1 to show that defendant No.1 is
addicted to bad vices and there was no legal necessity
for sale of the aforesaid property.
7. Defendants 2 and 3 examined witnesses like
Bhausaheb Shelke and Kadar. Defendant No.4 Maniksing
Pardeshi also gave evidence. One Baban Shinde was
examined by defendant No. 4 to prove execution of the
sale deed. The plaintiffs have not disputed the
execution of sale deeds and so there is no need to
discuss the evidence given by some witnesses examined
by the defendants. There were following issues:
912SA648-03&479-03.odt
1) Whether the suit property is ancestral property
of plaintiffs and defendant No.1 ?
2) Whether the plaintiffs have share in the suit
property ?
3) Whether defendant Nos. 2 and 3 prove that they
are bonafide purchasers for value without
notice ?
4) Whether defendant No.4 proves that defendant
No.1 had sold the portion to him for legal
necessity and he is bonafide purchasers for
valuable consideration without notice ?
8. All the aforesaid issues were answered in favour
of the plaintiffs but the suit was dismissed by
holding that Section 8 of the Hindu Minority and
Guardianship Act, 1956 comes in the way of issues of
defendant No.1 and they cannot challenge the alienation
made by defendant No.1 during their minority.
9. The first appellate court has set aside the
aforesaid decision of the trial court on the basis of
the observations made by the Apex Court in the case
reported in AIR 1958 Supreme Court 1091 ( Kokka Mannu
Vs. Kakumanu Akkamma and another). The first appellate
court has held that even minor coparcener has right to
challenge such transaction. It is clear that the trial
court had committed error in holding that section 8 of
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the Hindu Minority and Guardianship Act comes in the
way of minors to challenge the transactions. The
purpose behind section 8 of the said Act is totally
different.
10. Against the decision of the trial court, only
the plaintiffs filed appeal. The record shows that the
defendants purchasers did not challenge the finding
given against them by the trial court.
11.
The learned counsel for the appellants placed
reliance on the following reported cases:
1) 1999 (1) Bom. C.R. 508(Supreme Court), K.
Muthuswami Gounder Vs. N. Palaniappa Gondur
2) (1970) 3 SCC 722, Smt. Rani and another Vs. Smt.
Sant Bala Debnath and others.
3) (2007) 10 SCC 296, Gannmani Anasuya and others
Vs. Parvatini Amarendra Choudhary and others
4) AIR 1954 Bom 386, Shivaji Ganpati Muthal and
others Vs. Murlidhar Daji Muthal and others,
5) 1994 (2) Bom. C.R.161, Narayan Laxman Gilankar
Vs. Udaykumar Kashinath kaushik and others.
Relying on the above cases, the learned counsel
submitted that in appeal also this court can consider
the issues again in view of provisions of Order 41
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Rule 33 and Section 100 of the Civil Procedure Code.
12. On the interpretation of Section 8 of the Hindu
Minority and Guardianship Act, 1956 and Section 29 of
Guardian and Wards Act, 1890, these cases are not in
support of the contention made by the appellants/
defendants. It cannot be disputed that there is power
with natural guardian to alienate undivided interest
of minors of Joint Hindu Family and for that purpose,
section 6 and 8 of the Hindu Minority and Guardianship
Act cannot be used against the natural guardian.
However, the fact remains that alienation when made by
father karata, it needs to be for legal necessity. If
the legal necessity is not proved, then such
transaction cannot bind undivided interest of minors.
13. This Court has carefully gone through the
evidence given in the trial court and also the rival
pleadings. There was no specific pleading of defendant
Nos. 2 and 3 about the legal necessity and pleading of
defendant No.4 was very vague. Though in the
contents of sale deed, there is mention that for
satisfying family needs and for payment of loan,
transactions were made, no such evidence is
given. It was the duty of the purchaser to ascertain
912SA648-03&479-03.odt
that there was such loan taken for needs of family by
defendant No.1. There is no whisper about any inquiry
made by the purchasers. On the other hand there is
substantive evidence of mother of defendant No.1 to the
effect that defendant No.1 is addicted to bad vices and
only to satisfy the bad vices, he sold the properties.
The circumstance that even when there was order of
status quo and the suit was pending, some more portion
was sold by defendant No.1 to defendant No.4 itself
shows that defendant No.1 was ready to do anything to
satisfy the bad vices. The findings given on these
point are on the question of facts and they are
concurrent and there is no convincing material to show
that there was legal necessity. This court holds that
it is not possible to interfere in the findings given
on this point by the courts below.
14. Second Appeal No. 479/2003 is filed by original
defendant Nos. 2 and 3 who had purchased the property
from defendant No.1 before filing of the suit. Second
Appeal No. 648/2003 is filed by defendant No.4, the
person who purchased some portion during pendency of
the suit and even when there was order of status quo.
As the courts below have came to the conclusion that
there was no legal necessity, the transactions made by
912SA648-03&479-03.odt
defendant No.1 only to the extent of his share could
have been protected to protect the interest of
defendant Nos. 2 to 4. Considering the area which
comes to the share of defendant No.1 during partition
which is 1/3rd portion, it can be said that to some
extent the transactions made in favour of defendant
Nos. 2 and 3 could have been protected but there was
no possibility of protecting transaction made in
favour of defendant No.4. Inspite of all these
circumstances, the first appellate court has directed
that portion of the field sold to defendant Nos. 2, 3
and 4 be allotted to defendant No.1. Practically, such
partition is not possible as the portion sold to the
defendants 2 to 4 is more than the share of defendant
No.1. Even from the possession of defendant Nos. 2 and
3, some portion will have to be taken back for giving
it to the share of plaintiff as they have 2/3rd share.
The first appellate court did not grant equitable
partition and the order is made to protect the property
sold to defendant Nos. 2 to 4. This decision is not
challenged by the original plaintiffs by filing appeal
or by filing cross objection. In view of this
circumstances, this curt holds that the both the
appeals needs to be decided on following substantial
912SA648-03&479-03.odt
questions of law:
1) Whether it was proper on the part of the first
appellate court to set aside the judgment and
decree of the trial court in view of the
established position of law ?
2) Whether it was proper on the first appellate
court to protect the interest of purchasers,
defendant Nos. 2 to 4 when the portion sold to
them exceeds the share which can be given to
defendant No.1 ?
15. This Court has considered the relevant material
and the provisions of the two special Acts. The trial
court has committed grave error in holding that in
view of provisions of Section 8 of the Hindu Minority
and Guardianship Act, the suit could not have been
filed. So, to that extent, the first appellate court
has not committed any error. However, the District
Court/first appellate court has committed error in
protecting the interest of purchasers when the property
sold to them exceeds the share of defendant No.1. So,
the first point is answered in the affirmative and
second point is answered in the negative and following
order is made:
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O R D E R
(1) Second Appeal No.479/2003 is partly allowed.
(2) Judgment and decree of the first appellate court
delivered in Regular Civil Appeal No. 348 of 1999 is
modified as under:
i. The interests of the appellants/ original
defendant Nos. 2 and 3 are protected to the
extent of share to which defendant no.1 is
entitled and land purchased only to that
extent is allowed to be kept with
defendants 2 and 3. During execution, the
remaining area as mentioned above can be
taken back for giving it to the plaintiffs.
ii. Decree given in favour of defendant No.4
to the effect that the sale deed made in
his favour is to be protected and the land
allotted to the share of defendant no.1 is
to be given to him is hereby set aside.
(3) Decree be prepared accordingly.
(4) Second Appeal No. 648/2003 is dismissed.
(5) Civil applications also stand disposed of.
( T. V. NALAWADE, J. )
JPC
