Bombay High Court
Jaiprakash Shankarrao Bodhankar ... vs M/S.Chimote & Sons.Through ... on 30 August, 2016
Bench: B.P. Dharmadhikari
lpa77.95 & 5 others
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) LETTERS PATENT APPEAL NO.77 OF 1995
IN FIRST APPEAL NO.22 OF 1980
1) Smt. Prabhatai wd/o Shankarrao
Bodhankar, aged about 75 years,
r/o Rajkamal Chowk, Amravati.
2) Smt. Jaya w/o Sheshikant Potale,
aged about 55 years, r/o Tope
Nagar, Amravati.
3) Smt. Vijayalaxmi w/o Arun Tambe,
aged about 50 years, r/o 165,
Ramdaspeth, Nagpur.
4) Smt. Ratna w/o Rajendra Pandit,
aged about 49 years, r/o Ujwal
Plots, Rahate Colony, Jail Road,
Nagpur.
5) Smt. Sanjivani w/o Prakash Fadnis,
aged about 44 years, r/o Gokulpeth,
Nagpur.
6) Jagdishchandra s/o Shankarrao
Bodhankar, aged 54 years,
r/o Radient View, Opp. A.S.P.T.
Swimming Tank, Ram Tekadi,
Pune - 13.
7) Jaiprakash s/o Shankarrao
Bodhankar, aged 52 years,
r/o A-3, Bhende Layout,
Dattanagar, Nagpur-22. ... Appellants
(L.Rs. of deceased
Shankarrao on R.A.)
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- Versus -
1) M/s. Chimote & Sons, through
its partner Shri Vinayak s/o
Wasudeorao Chimote, r/o
Amravati, Taluq and District
Amravati.
2) Smt. Prabhatai wd/o Ramchandra
Chimote, aged 70 years,
occupation : household, r/o
Shrikrishna Peth, Amravati.
3) Anil Ramchandra Chimote, aged
about 46 years, r/o Shrikrishan
Peth, Amravati.
4) Smt. Shobha Shrikant Dabale,
aged about 44 years, r/o 9,
Queen Garden Camp, Pune.
5) Sunil Ramchandra Chimote,
aged about 42 years,
r/o Shrikrishan Peth, Amravati.
6) Smt. Sulbha S. Desai, aged
about 40 years, r/o Silver Wood,
6, Almoners Barn, Potters Bank,
Durhan Bh 13 T, U.K.
7) Shrikrishna Ramchandra Chimote,
aged about 38 years, r/o
Shrikrishan Peth, Amravati.
8) Smt. Pratibha Prashant Padhye,
aged about 36 years, r/o near
Orbil Super Market, Civil Lines,
Nagpur.
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9) Smt. Devika Ujwal Nirgudkar,
aged about 34 years, r/o
Vandan Decan Gymkhana,
Shivajinagar, Pune.
10) Vinayak Wasudeorao Chimote,
aged about 64 years, Landlord
of Amravati, r/o Shrikrishan Peth,
Amravati, Taluq and District :
Amravati.
11) Dr. Suresh s/o Wasudeorao
Chimote, aged 54 years,
Medical Practitioner of
Amravati, Camp : near Police
Reserve Lines, Amravati. ... Respondents
(Orig. Defendants
& L.Rs. of Defendants
on R.A.)
-----------------
Shri R.L. Khapre, Advocate for appellants.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M. Sudame,
Advocate for respondent nos. 1 to 11.
---------------
(II) LETTERS PATENT APPEAL NO.78 OF 1995
IN FIRST APPEAL NO.23 OF 1980
Deodatta Shankarrao Bodhankar,
aged about 45 years, occupation :
Lecturer, r/o Amravati, Taluq &
District Amravati. ... Appellant
(Original
- Versus - Plaintiff on
R.A.)
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1) Smt. Prabhavatibai wd/o
Shankarrao Bodhankar, aged
75 years, occupation :
household work, r/o Rajkamal
Chowk, Namuna, Amravati.
2) Jagdishchandra s/o Shankarrao
Bodhankar, since deceased,
through his legal heirs -
i) Nayantara wd/o Jagdishchandra
Bodhankar, age about 75 years,
r/o 203, Radiant View, near ASBT
Swimming Tank, Ramtekadi,
Pune (M.S.)
ii) Dhananjay s/o Jagdishchandra
Bodhankar, aged 27 years,
occupation : business, r/o Radiant
view, near Asstt. Swimming Tank,
Ramtekdi, Pune (M.S.)
3) Jaiprakash s/o Shankarrao Bodhankar,
aged 52 years, Sub-Inspector of
Police, r/o A-3, Bhende Layout,
Datta Nagar, Nagpur - 22.
4) Smt. Prabhatai wd/o Ramchandra
Chimote, aged 70 years, occupation :
household, r/o Shrikrishna Peth,
Amravati.
5) Anil Ramchandra Chimote, aged
about 46 years, r/o Shrikrishan
Peth, Amravati.
6) Smt. Shobha Shrikant Dabale,
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aged about 44 years, r/o 9,
Queen Garden Camp, Pune.
7) Sunil Ramchandra Chimote,
aged about 42 years,
r/o Shrikrishan Peth, Amravati.
8) Smt. Sulbha S. Desai, aged
about 40 years, r/o Silver Wood,
6, Almoners Barn, Potters Bank,
Durhan BH 13 T, U.K.
9) Shrikrishna Ramchandra Chimote,
aged about 38 years, r/o
Shrikrishan Peth, Amravati.
10) Smt. Pratibha Prashant Padhye,
aged about 36 years, r/o near
Orbil Super Market, Civil Lines,
Nagpur.
11) Smt. Devika Ujwal Nirgudkar,
aged about 34 years,
r/o Vandan Decan Gymkhana,
Shivajinagar, Pune.
12) Balwantrao s/o Marotrao Naik,
Bhingora, aged about 64 years,
Landlord and Money Lender,
r/o Amravati, Camp, Taluq and
District Amravati.
13) Smt. Godubai alias Kamlabai
wd/o Deorao Kuthe, aged about
75 years, occupation : household
work, r/o c/o Dr. M.D. Kuthe,
Balaji Plot, Amravati.
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14) Dr. Madhusudan s/o Deorao Kuthe,
aged about 60 years, Medical
Practitioner, r/o Balaji Plots,
Amravati.
15) Sau. Sunanda alias Sindhu w/o
Bhaskarrao Sambre, aged
55 years, occupation : household
work, r/o Behind Hitwada
Press, Dhantoli, Nagpur.
16) Prabhakar alias Balasaheb Deorao
Kuthe, aged about 54 years,
Executive Engineer, M.S.E.B.,
r/o 10-A, Shankar Nagar, West
High Court Road, Nagpur.
17) Ashok s/o Deorao Kuthe, aged
about 48 years, Motor Vehicle
Officer, R.T.O., 14/188, Lok
Manyanagar, Pune - 30.
18) Dattatraya s/o Deorao Kuthe,
aged about 50 years, Central
Railway Bridge Inspector,
Railway Quarters Bungalow
No. F-50/A, South Civil Lines,
Station Road, Jabalpur.
19) Sau. Snehalata D. Amle, aged
about 40 years, occupation :
household work, r/o Kalyan Pathak,
Wadi, In front of Purnima Talkies,
Murbad Road, Kalyan.
20) M/s. Chimote and Sons, a
partnership firm, through its
partner Shri Vinayak Wasudeorao
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Chimote, r/o Amravati, Taluq and
District Amravati.
21) Vinayak s/o Wasudeorao Chimote,
aged about 64 years, Landlord of
Amravati, r/o Shrikrishan Peth,
Amravati, Taluq and District
Amravati.
22) Dr. Suresh s/o Wasudeorao
Chimote, since deceased, through
his legal heirs :
A) Smt. Snehal w/o Suresh
Chimote, age 58 years,
C/o Dr. Suresh W. Chimote,
r/o Chimote Bungalow, near
S.P. Bungalow Police Reserve
Line, Camp, Amravati.
B) Dr. Vijay Suresh Chimote,
age 32 years, s/o Dr. S.N.
Chimote, Medical Practitioner,
near S.P. Bungalow Police
Reserve Line, Camp,
Amravati - 444 602.
C) Shri Ajay Suresh Chimote,
s/o Shri S.W. Chimote, Civil
Engineer, age 43 years, r/o
Chimote Bungalow, near
S.P. Bungalow, Police Reserve
Line, Camp, Amravati-444 602.
D) Smt. Swapna A. Rashingkar,
age 32 years, c/o Dr. Seema
Prabhakar Rashingkar, Shashipuri,
2 Lane, Kolhapur (M.S.)
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23) Dr. Padmakar alias Manohar s/o
Balkrishna Sabnis, aged about
53 years, Professor in V.M.V.
College, Amravati.
24) Prabhakar alias Meena Sabnis,
aged about 50 years, Proprietor
of Sabnis Photo Studio,
Bodhankar Wada, Amravati,
r/o Sabnis Building, Amravati.
25) Secretary, Communist Party,
Amravati Branch.
26) Shankar Lingoji Lokhande,
aged abut 64 years, Flour Mill
owner, Bodhankar Wada,
Amravati.
27) Dr. Pradeep Balawant Shingare,
age 52 years, occupation :
Medical practitioner, r/o Rutu
Parna Camp Road, Amravati.
28) Anjali w/o Dilip Shingare,
age 50 years, occupation :
household, r/o Rutu Parna Camp
Road, Amravati.
29) Parikshit s/o Dilip Shingare,
age 25 years, occupation :
agriculturist, r/o Rutu Parna
Camp Road, Amravati.
30) Smt. Meenal w/o Pradeep Shingare,
age 42 years, occupation : Medical
Practitioner, r/o Rutu Parna Camp
Road, Amravati. ... Respondents
-----------------
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Shri S.R. Deshpande, Advocate for appellant.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M.Sudame,
Advocate for respondent nos. 4 to 11, 20 to 22 (A to D).
------------
(III) LETTERS PATENT APPEAL NO.107 OF 1995
IN FIRST APPEAL NO.329 OF 1989
1) Jaiprakash Shankarrao
Bodhankar, aged about 52 years,
Sub-Inspector of Police,
r/o A-3, Bhende Layout,
Datta Nagar, Nagpur-22.
2) Jagdishchandra s/o Shankarrao
Bodhankar, aged 54 years,
Armed Inspector of S.R.P.,
F-Group IV, r/o Radient View,
Opp. A.S.P.T. Swimming Tank,
Ram Tekadi, Pune - 13.
3) Smt. Prabhatai wd/o Shankarrao
Bodhankar, aged about 75 years,
occupation : household work,
r/o Rajkamal Chowk, Namuna,
Amravati.
4) Smt. Jaya w/o Sheshikant Potale,
aged about 55 years, r/o Tope
Nagar, Amravati.
5) Smt. Vijayalaxmi w/o Arun Tambe,
aged about 50 years, r/o 165,
Ramdaspeth, Nagpur.
6) Smt. Ratna w/o Rajendra Pandit,
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aged about 49 years, r/o Ujwal
Plots, Rahate Colony, Jail Road,
Nagpur.
7) Smt. Sanjivani w/o Prakash Fadnis,
aged about 44 years, r/o Gokulpeth,
Nagpur.
8) Deodatta Shankarrao Bodhankar,
aged 45 years, occupation :
Lecturer, r/o Namuna, Amravati. ... Appellants
(Original L.Rs. of
Defendant No.1
on R.A.)
- Versus -
1) M/s. Chimote & Sons, a partnership
firm, through its partner
Shri Vinayak s/o Wasudeorao
Chimote, r/o Amravati.
2) Smt. Prabhatai wd/o Ramchandra
Chimote, aged 70 years,
occupation : household, r/o
Shrikrishna Peth, Amravati.
3) Anil Ramchandra Chimote, aged
about 46 years, r/o Shrikrishan
Peth, Amravati.
4) Smt. Shobha Shrikant Dabale,
aged about 44 years, r/o 9,
Queen Garden Camp, Pune.
5) Sunil Ramchandra Chimote,
aged about 42 years,
r/o Shrikrishan Peth, Amravati.
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6) Smt. Sulbha S. Desai, aged
about 40 years, r/o Silver Wood,
6, Almoners Barn, Potters Bank,
Durhan Bh 13 T, U.K.
7) Shrikrishna Ramchandra Chimote,
aged about 38 years, r/o
Shrikrishan Peth, Amravati.
8) Smt. Pratibha Prashant Padhye,
aged about 36 years, r/o near
Orbil Super Market, Civil Lines,
Nagpur.
9) Smt. Devika Ujwal Nirgudkar,
aged about 34 years, r/o
Vandan Decan Gymkhana,
Shivajinagar, Pune.
10) Vinayak Wasudeorao Chimote,
aged about 64 years, Landlord
of Amravati, r/o Shrikrishan Peth,
Amravati, Taluq and District :
Amravati.
11) Dr. Suresh s/o Wasudeorao
Chimote, aged about 54 years,
Medical Practitioner, Amravati,
Camp : near Police Reserve Lines,
Amravati. ... Respondents
(Orig. L.Rs. of
Plaintiff Shri
Ramchandra
on R.A.)
----------
Shri R.L. Khapre, Advocate for appellants.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M. Sudame,
Advocate for respondents.
-----------
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(IV) LETTERS PATENT APPEAL NO.126 OF 1995
IN FIRST APPEAL NO.328 OF 1989
1) Jaiprakash Shankarrao
Bodhankar, aged about 52 years,
Sub-Inspector of Police,
r/o A-3, Bhende Layout,
Datta Nagar, Nagpur-22.
2) Jagdishchandra s/o Shankarrao
Bodhankar, since deceased, through
legal heirs -
i) Smt. Nayantara Jagdishchandra
Bodhankar, aged about 59 years,
ii) Chi. Dhananjay Jagdishchandra
Bodhankar, aged about 35 years,
Both r/o 203, Radient View,
A.S.P.T., near Swimming Tank,
Hadapasar Road, Ramtekadi, Pune.
3) Smt. Prabhatai wd/o Shankarrao
Bodhankar, aged about 75 years,
occupation : household work,
r/o Rajkamal Chowk, Namuna,
Amravati.
4) Smt. Jaya w/o Sheshikant Potale,
aged about 55 years, r/o Tope
Nagar, Amravati.
5) Smt. Vijayalaxmi w/o Arun Tambe,
aged about 50 years, r/o 165,
Ramdaspeth, Nagpur.
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6) Smt. Ratna w/o Rajendra Pandit,
aged about 49 years, r/o Ujwal
Plots, Rahate Colony, Jail Road,
Nagpur.
7) Smt. Sanjivani w/o Prakash Fadnis,
aged about 44 years, r/o Gokulpeth,
Nagpur.
8) Deodatta Shankarrao Bodhankar,
aged 45 years, occupation :
Lecturer, r/o Namuna, Amravati.
ig ... Appellants
(Original L.Rs. of
Defendant on R.A.)
- Versus -
1) M/s. Chimote & Sons, a partnership
firm, through its partner
Shri Vinayak s/o Wasudeorao
Chimote, r/o Amravati.
Amravati.
2) Vinayak Wasudeorao Chimote,
aged about 62 years,
r/o Shrikrishan Peth, Amravati.
3) Dr. Suresh s/o Wasudeorao
Chimote, since deceased, through
his legal heirs :
A) Smt. Snehal wd/o Dr. Suresh W.
Chimote, aged 58 years,
r/o Chimote Bungalow, near
S.P. Bungalow Police Reserve
Line, Camp, Amravati.
B) Dr. Vijay s/o Dr. S.W. Chimote,
age 32 years, Medical Practitioner,
r/o Chimote Bungalow,
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near S.P. Bungalow Police
Reserve Line, Camp,
Amravati - 444 602.
C) Shri Ajay s/o Dr. S.W. Chimote,
aged 43 years, Civil
Engineer, r/o Chimote Bungalow,
near S.P. Bungalow, Police Reserve
Line, Camp, Amravati-444 602.
D) Smt. Swapna A. Rashingkar,
aged 32 years, c/o Dr. Seema
Prabhakar Rashingkar, Shashipuri,
2nd Lane, Kolhapur. ... Respondents
(Orig. Plaintiffs
on R.A.)
-----------------
Shri R.L. Khapre, Advocate for appellants.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M. Sudame,
Advocate for respondents.
---------------
(V) LETTERS PATENT APPEAL NO.130 OF 1995
IN FIRST APPEAL NO.331 OF 1989
1) Jaiprakash Shankarrao
Bodhankar, aged about 52 years,
Sub-Inspecor of Police,
r/o A-3, Bhende Layout,
Datta Nagar, Nagpur-22.
2) Jagdishchandra s/o Shankarrao
Bodhankar, aged 54 years,
Armed Inspector of S.R.P.,
F-Group IV, r/o Radient View,
Opp. A.S.P.T., Swimming Tank,
Ram Tekadi, Pune - 13.
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3) Smt. Prabhatai wd/o Shankarrao
Bodhankar, aged about 75 years,
occupation : household work,
r/o Rajkamal Chowk, Namuna,
Amravati.
4) Smt. Jaya w/o Sheshikant Fotale,
aged about 55 years, r/o Tope
Nagar, Amravati.
5) Smt. Vijayalaxmi w/o Arun Tambe,
aged about 50 years, r/o 165,
Ramdaspeth, Nagpur.
6) Smt. Ratna w/o Rajendra Pandit,
aged about 49 years, r/o Ujwal
Plots, Rahate Colony, Jail Road,
Nagpur.
7) Smt. Sanjivani w/o Prakash Fadnis,
aged about 44 years, r/o Gokulpeth,
Nagpur.
8) Deodatta Shankarrao Bodhankar,
aged 45 years, occupation :
Lecturer, r/o Namuna, Rajkamal
Chowk, Amravati. ... Appellants
(Original L.Rs. of
Defendant No.1
on R.A.)
- Versus -
1) M/s. Chimote & Sons, a partnership
firm, through its partner
Shri Vinayak s/o Wasudeorao
Chimote, r/o Amravati.
2) Vinayak Wasudeorao Chimote,
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aged about 64 years, Landlord
of Amravati, r/o Shrikrishan Peth,
Amravati.
3) Dr. Suresh s/o Wasudeorao
Chimote, aged about 54 years,
occupation : Medical Practitioner,
Amravati, Camp, near Police
Reserve Lines, Amravati.
4) Smt. Prabhatai wd/o Ramchandra
Chimote, aged 70 years, occupation :
household, r/o Shrikrishna Peth,
Amravati.
5) Anil Ramchandra Chimote, aged
about 46 years, r/o Shrikrishan
Peth, Amravati.
6) Smt. Shobha Shrikant Dabale,
aged about 44 years, r/o 9,
Queen Garden Camp, Pune.
7) Sunil Ramchandra Chimote,
aged about 42 years,
r/o Shrikrishan Peth, Amravati.
8) Smt. Sulbha S. Desai, aged
about 40 years, r/o Silver Wood,
6, Almonera Barn, Potters Bank,
Durhan BH 13 T, U.K.
9) Shrikrishna Ramchandra Chimote,
aged about 38 years, r/o
Shrikrishan Peth, Amravati.
10) Smt. Pratibha Prashant Padhye,
aged about 36 years, r/o near
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Orbil Super Market, Civil Lines,
Nagpur.
11) Smt. Devika Ujwal Nirgudkar,
aged about 34 years,
r/o Vandan Decan Gymkhana,
Shivajinagar, Pune.
12) The Communist Party, through
Secretary, Shri Bhai Mangale,
Rajkamal Chowk, Amravati. ... Respondents
(Orig. L.Rs. of
ig Plaintiff Ramchandra
& Deft. No.2 on R.A.)
----------------
Shri R.L. Khapre, Advocate for appellants.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M. Sudame,
Advocate for respondent nos.1 to 11.
----------------
(VI) LETTERS PATENT APPEAL NO.141 OF 1995
IN FIRST APPEAL NO.330 OF 1989
1) Jaiprakash Shankarrao
Bodhankar, aged about 52 years,
Sub-Inspector of Police,
r/o A-3, Bhende Layout,
Datta Nagar, Nagpur-22.
2) Jagdishchandra s/o Shankarrao
Bodhankar, since deceased, through
legal heirs -
i) Smt. Prabhatai wd/o Shankarrao
Bodhankar (already on record as
appellant no.3)
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ii) Smt. Nayantara Jagdishchandra
Bodhankar, aged about 51 years -
Wife,
iii) Chi. Dhananjay Jagdishchandra
Bodhankar, aged about 27 years - Son,
nos. ii and iii r/o 203, Radiant View,
A.S.P.T., near Swimming Tank,
Hadapasar Road, Ramtekadi, Pune.
3)
Smt. Prabhatai wd/o Shankarrao
Bodhankar, aged about 75 years,
occupation : household work,
r/o Rajkamal Chowk, Namuna,
Amravati.
4) Smt. Jaya w/o Sheshikant Potale,
aged about 55 years, r/o Tope
Nagar, Amravati.
5) Smt. Vijayalaxmi w/o Arun Tambe,
aged about 50 years, r/o 165,
Ramdaspeth, Nagpur.
6) Smt. Ratna w/o Rajendra Pandit,
aged about 49 years, r/o Ujwal
Plots, Rahate Colony, Jail Road,
Nagpur.
7) Smt. Sanjivani w/o Prakash Fadnis,
aged about 44 years, r/o Gokulpeth,
Nagpur.
8) Deodatta Shankarrao Bodhankar,
aged 45 years, occupation :
Lecturer, r/o Namuna, Rajkamal
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Chowk, Amravati. ... Appellants
(Original L.Rs. of
Defendant No.1
on R.A.)
- Versus -
1) M/s. Chimote & Sons, a partnership
firm, through its partner
Shri Vinayak s/o Wasudeorao
Chimote, r/o Amravati.
2) Vinayak Wasudeorao Chimote,
aged about 64 years, Landlord
of Amravati, r/o Shrikrishan Peth,
Amravati.
3) Dr. Suresh s/o Wasudeorao
Chimote, aged about 54 years,
occupation : Medical Practitioner,
Amravati, Camp, near Police
Reserve Lines, Amravati.
4) Smt. Prabhatai wd/o Ramchandra
Chimote, aged 70 years, occupation :
household, r/o Shrikrishna Peth,
Amravati.
5) Anil Ramchandra Chimote, aged
about 46 years, r/o Shrikrishan
Peth, Amravati.
6) Smt. Shobha Shrikant Dabale,
aged about 44 years, r/o 9,
Queen Garden Camp, Pune.
7) Sunil Ramchandra Chimote,
aged about 42 years,
r/o Shrikrishan Peth, Amravati.
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8) Smt. Sulbha S. Desai, aged
about 40 years, r/o Silver Wood,
6, Almonera Barn, Potters Bank,
Durhan BH 13 T, U.K.
9) Shrikrishna Ramchandra Chimote,
aged about 38 years, r/o
Shrikrishan Peth, Amravati.
10) Smt. Pratibha Prashant Padhye,
aged about 36 years, r/o near
Orbil Super Market, Civil Lines,
Nagpur.
11) Smt. Devika Ujwal Nirgudkar,
aged about 34 years,
r/o Vandan Decan Gymkhana,
Shivajinagar, Pune.
12) Ramrao Linguji Lohande,
aged 64 years, r/o Rajkamal
Chowk, Amravati, Taluq
and District Amravati. ... Respondents
(Orig. L.Rs. of
Plaintiff Ramchandra
& Deft. No.2 on R.A.)
-----------------
Shri R.L. Khapre, Advocate for appellants.
Shri S.P. Dharmadhikari, Senior Advocate with Shri M.M. Sudame,
Advocate for respondent nos.1 to 11.
----------------
Date of reserving the judgment : 04/08/2016
Date of pronouncing the judgment : 30/08/2016
::: Uploaded on - 31/08/2016 ::: Downloaded on - 01/09/2016 00:41:25 :::
lpa77.95 & 5 others
21
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : AUGUST 30th , 2016
JUDGMENT (PER INDIRA JAIN,
J.) :
These letters patent appeals take an exception to the
judgment and order dated 9/3/1995 passed by the learned Single
Judge of this Court in First Appeal Nos.22/1980, 23/1980, 328/1989,
329/1989, 330/1989 and 331/1989. The First Appeals arose
against the common judgment and decree in Special Civil Suit
No.20/1972 and Regular Civil Suit Nos.174/1969, 361/1969,
371/1969, 374/1969 and 375/1969 delivered by the learned Civil
Judge, Senior Division, Amravati on 25/1/1979.
2) The case of appellants and certain disputed facts
relevant for the purpose of deciding these appeals may be stated,
in brief, as under :
Balkrishna Bodhankar, resident of Amravati was a
Lawyer by profession. He died in the year 1918 leaving behind him
son Shankarrao and widow Durgabai. Durgabai is step mother of
Shankarrao. It is advantageous to reproduce genealogical tree of
lpa77.95 & 5 others
family of Balkrishna here to understand the controversy between the
parties :
Durgabai --- Balkrishna --- Gopikabai
2nd wife and (died in 1918) 1st wife (died in
step mother 1955) mother of
of Shankarrao Shankarrao
Defendant no.5
(died pending the
suit)
Shankarrao
ig --- Prabhawati
Deft. No.1 His wife
Deft. No.2
Jagdish Jaiprakash Deodatta
(Deft. No.3) (Deft. No.4) (Plff.)
3) In the year 1918, when Balkrishna died, Shankarrao
was aged about 3 years. During his life time, Balkrishna earned
certain properties. So far as disputed agricultural lands are
concerned, matters have been amicably settled between the parties.
The controversy is now limited to a double storeyed house situated
at Ambadevi Road, Amravati. Till Shankarrao attained majority in
1935, property was in possession and management of the Guardian
appointed by the Court. In 1940, Shankarrao started legal practice
at Amravati. In 1944-45, in partnership with B.H. Sabnis,
Shankarrao entered into grain business under Government Control
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Scheme. He also entered in the business of distribution of cinema
films in partnership with others and was dealing in American futures.
4) There was no positive response to the businesses
started by Shankarrao and his partners and as they suffered losses,
Shankarrao borrowed loans from Krishnarao Keole of Amravati,
Govindrao and Narayanrao Shingore of Deulwada, Taluka Achalpur,
Wasudeo Chimote of Amravati, People's Cooperative Bank,
Amravati and others. The creditors were required to institute suits
against Shankarrao as he could not repay the debts. The following
decrees were passed against Shankarrao and his partners :
(i) Civil Suit No. 31/B of 1947, dated 8 th August 1947,
Krishnarao Keole vs. Shankarrao (alone) for Rs.7000
costs and future interest in Amravati Court.
(ii) Civil Suit No.3-A of 1947, Dhapubai Bhoot vs.
Shankarrao and others in the Court of Civil
Judge, Wardha.
(iii) Civil Suit No. 65/1949, The Province of C.P. and Berar
vs. S.B. Bodhankar and B.H. Sabnis dated 16th January
1951 for Rs.883.15 p. and costs in the Court of Civil
Judge, Amravati.
(iv) An award for about Rs.4000 and costs in favour of
People's Cooperative Bank vs. V.K. Painthankar and
S.D. Bodhankar, as his surety.
lpa77.95 & 5 others
5) In the suit instituted by Dhapubai Bhoot, decree was put
to execution. Krishnarao Keole also filed execution proceedings and
property was to be auctioned in these proceedings. On 24/1/1951,
to pay Rs.2000/- to Krishnarao Keole, Shankarrao executed an
agreement of sale of the house in question in favour of Wasudeo
Chimote, took Rs.2000/- from him and paid the said amount to
Krishnarao Keole. In May and June 1946, Shankarrao had
borrowed loans from Wasudeo Chimote for business purpose. On
9/7/1951, after Dhapubai put the decree to execution, Shankarrao
executed Sale Deed of the house in favour of Ramchandra
Wasudeo Chimote, who paid Rs.6200/- to Krishnarao Keole for and
on behalf of Shankarrao in full and final satisfaction of the decree
passed in the suit instituted by Krishnarao Keole. The Sale Deed
was for a total consideration of Rs.25,000/-.
6) In 1951, house in dispute was attached in execution
proceedings taken out by Dhapubai Bhoot against Shankarrao. It
was put to Court auction. Ramchandra Chimote claiming to be
owner of the house raised objection to attachment of house under
lpa77.95 & 5 others
Order XXI Rule 58 of the Code of Civil Procedure (hereinafter
referred to as "the Code"). On hearing the parties, executing Court
rejected objection on 12/12/1953.
7) Thereafter Ramchandra and his father Wasudeo
Chimote filed Civil Suit No.3-A/1953 under Order XXI Rule 63 of the
Code The suit was renumbered as 1-A of 1954. It was decreed by
the learned 1st Additional District Judge, Amravati on 30/11/1956.
First Appeal No.15/1957 filed by Dhapubai Bhoot against
Ramchandra Chimote and others was allowed on 19/7/1962 and it
was held that Sale Deed dated 9/7/1951 of the house executed by
Shankarrao in favour of Ramchandra was not binding on Dhapubai.
Wasudeo Chimote then died.
8) The decision in first appeal was challenged by
Ramchandra Chimote and his two brothers before the Hon'ble
Supreme Court. Civil Appeal No.862/1964 was allowed by the
Hon'ble Supreme Court on 8/2/1967 and the judgment and decree
passed by the High Court was set aside and the decree passed by
lpa77.95 & 5 others
the lower Court was restored. The Hon'ble Supreme Court held that
Sale Deed dated 9/7/1951 was valid. Shankarrao was a party to the
litigation throughout.
9) With these basic facts, it would be essential to advert to
the claim of plaintiffs in the suits referred above. Deodatta, plaintiff
in Special Civil Suit No. 20/1972, is son of Shankarrao. He raised a
contention that income of Shankarrao from house rent and
agricultural produce was more than sufficient to maintain their
family. According to him, Shankarrao had no previous experience or
training in the businesses started by him. The loans borrowed by
him from time to time for grain business, cinema films distribution
and American futures were not for maintaining the family, but for
satisfying his speculative nature and vice in dealing in American
futures. Shankarrao entered into various businesses because of
his reckless actions and the businesses in different fields were
absolutely new to the family.
10) It is the case of Deodatta that Wasudeo Chimote was
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their family friend. He was aware of the speculative habits of
Shankarrao. With an intention to grab the house, Wasudeo took
disadvantage of the situation and insisted Shankarrao to execute a
nominal Sale Deed of the house at Ambadevi Road, Amravati. He
assured Shankarrao that Sale Deed would be nominal and would
not be acted upon. He submitted that the house was worth
Rs.60,000/- in 1951. The consideration of Rs.25,000/- was
inadequate and since Sale Deed was nominal, Ramchandra
Chimote and his brothers are not entitled to claim title on the
strength of nominal Sale Deed. The possession of house remained
with Shankarrao and his family.
11) Another contention raised by Deodatta is that sale of
house was not for legal necessity. It would not bind the interest of
coparceners of Shankarrao's family. Ramchandra Chimote
attempted to disturb possession of Shankarrao's family in the year
1967 and on 11/8/1967 forcibly took possession of four rooms of the
house. The rest of the house is in possession of plaintiff.
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12) The next submission raised by plaintiff in Special Civil
Suit No.20/1972 is that decree passed in first round of litigation
between Dhapubai and Shankarrao would not operate as res
judicata as he was minor at the relevant time, Shankarrao was party
to the proceedings throughout and the decree was obtained by
Shankarrao and Chimote in collusion to defeat the claim of
Dhapubai. On the basis of legal necessity, collusion and
res judicata, Deodatta claims that Sale Deed in question is not
binding on him and he claimed partition, possession and his share in
the house. No declaratory relief has been sought by him in respect
of Sale Deed.
13) The facts in Regular Civil Suit Nos.174/1969, 361/1969,
373/1969, 374/1969 and 375/1969 are almost identical. It can be
revealed from the plaints that Chimote and sons was a registered
partnership firm of Wasudeo and his three sons - Ramchandra
Chimote, Vinayak Chimote and Suresh Chimote. Initially it was a
joint Hindu family shop styled as "Vitthal Shrikrishna Chimote".
The joint family was consisting of Wasudeo Chimote and his three
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sons named above. On 20/7/1963, assets of the shop were
partitioned and each received 1/4th share. On 21/7/1963,
partnership firm Chimote and sons came into existence. Each
partner had 1/4th share in the firm. On 22/9/1963, Wasudeo
Chimote died. A day before, i.e. on 21/9/1963 Wasudeo Chimote
executed a Will and bequeathed all his properties to his sons. By
virtue of Will, on the death of Wasudeo, Ramchandra and his two
brothers - Vinayak and Suresh acquired interest in the property by
survivorship. According to Chimotes, Sale Deed dated 9/7/1951
was executed by Shankarrao in the name of Ramchandra, who was
one of the Kartas of joint family and its shop Vitthal Shrikrishna
Chimote. The consideration of Rs.25,000/- was paid from the
assets of joint Hindu family shop. In view of the Sale Deed, they
became owners of the house. At the time of Sale Deed, Shankarrao
agreed to pay advance rent of Rs.3000/- for one year and remained
in possession as tenant. The part of the house remained in
possession of Shankarrao and possession of another portion was
received by Chimotes. Thereafter in 1965, Shankarrao started
asserting his ownership over the suit house in collusion with other
lpa77.95 & 5 others
tenants. Rent Control proceedings were taken up by Chimote and
sons. Notice was issued for forfeiture of tenancy. The above 5 suits
were filed by Chimote and sons for ejectment, possession and
arrears of rent against Shankarrao and all other tenants.
Shankarrao was defendant no.1 in all the five suits.
14)
The defence raised by Shankarrao in the suits was of
denial. He submitted that though he executed agreement of Sale on
24/1/1951 and nominal Sale Deed on 9/7/1951, it was due to hard
pressing need for money as he incurred huge loss in the
businesses. He came with a case that at the time of execution of
Sale Deed, it was agreed that document was not to be acted upon
as it was nominal. In the suit of Dhapubai, Shankarrao remained
absent throughout. Wasudeo and Ramchandra prosecuted the suit.
It was a collusive decree obtained by Chimotes and Shankarrao to
protect the house from auction and to defeat the claim of Dhapubai
in execution proceedings. The decree being collusive in nature, title
did not pass to Chimotes and Shankarrao remained owner of the
house. The plea of estoppel raised by Chimotes from challenging
lpa77.95 & 5 others
the Sale Deed was denied by Shankarrao and others in five suits.
15) According to defendants in suits instituted by Chimotes,
previous suit was under Order XXI Rule 63 of the Code and it was
not a suit for declaration of title. The scope of Order XXI Rule 63 of
the Code was limited to lift the attachment of the house or to
continue with the attachment. It was not open to the Executing
Court to go beyond the scope of Order XXI Rule 63 of the Code and
even if the decree passed in the previous suit under Order XXI Rule
63 of the Code is confirmed by the Hon'ble Supreme Court, it would
not operate as res judicata as it was not a decree passed by the
regular Court.
16) The sum and substance of discussion and the order
passed by the learned Civil Judge, Senior Division in the suits
mentioned above is reflected in paragraph 61 of the judgment, which
reads as under :
"(i) Chimote and Sons fail to prove that it is the genuine sale
deed Exh. 203 dated 9th July 1951 and they are the owners
and landlords of the suit house.
lpa77.95 & 5 others
(ii) the previous litigation between Ramchandra Chimote and
Dhapubai being a collusive affair between Shankarrao and
Chimote, judgment Exh. 231 is not res judicata in this suit.
(iii) Plaintiff Deodatta fails to prove that his right, title and
interest in the suit lands was not sold at the said Court auction
sale, dt. 27Th July 1959 and hence, he has got a right of
redemption of mortgage dt. 12th November 1951.
With the various findings on crucial issues going in favour of
either of the parties, it is desirable that the parties to both the
litigations do bear their own costs incurred so far. With the
aforesaid discussion, this is the final order being passed in
these suits.
Order
In Special Civil Suit No. 20 of 1972, it is declared that
the suit house situated on Nazul Plot No. 67/C, sheet No.5/2 of
Amravati, still belongs to the joint family of the plaintiff and
defendant nos.1 to 4.
In Special Civil Suit No.20 of 1972, rest of the claim of
plaintiff is rejected.
Regular Civil Suit Nos. 174/69, 361/69, 373/69, 374/69
and 375/69 are dismissed.
Parties to these litigations do bear their own costs."
17) Being dissatisfied with the judgment and decree passed
by the learned trial Court, first appeals were filed by the
unsuccessful parties. The main questions considered by the
learned Single Judge in first appeals were :
lpa77.95 & 5 others
I) Whether findings in former suit bearing No. 13-A/1953
operate as res judicata ?
II) Whether Sale Deed dated 9/7/1951 was executed in
collusion between Shankarrao and Chimotes with
intent to defeat and delay the debts due from the
creditors ?
III) Plea of estoppel raised by Chimotes.
18) After considering the submissions advanced at length,
following order came to be passed in the first appeals :
"18) In the result, First Appeal No.22 of 1980 is allowed.
Decree passed in Civil Suit No.20 of 1972 granting
declaration that the suit house at Amravati still belongs to
the joint family of the plaintiff and defendant no.2 is
hereby set aside. The claim to that extent is dismissed.
First Appeal No.23 of 1980 is dismissed. Decree
dismissing the rest of the claim in Civil Suit No.20 of 1972
relating to partition, possession and redemption is
hereby confirmed.
First Appeal nos. 328, 329, 330 and 331 of 1969
are partly allowed. Dismissal of the suits since in view of
the declaration in Civil Suit No.20 of 1972 are hereby set
aside, the matters are remitted back to the Civil Court to
decide the suit claim for possession and damage afresh
in the light of the findings recorded by this Court."
This common order in first appeals is the subject matter of letters
patent appeals before us.
lpa77.95 & 5 others
19) We have heard the learned Counsel for the respective
parties in extenso.
20) Shri Khapre, learned Counsel for tenants in Regular
Civil Suit Nos.174/1969, 361/1969, 371/1969, 374/1969 and
375/1969 made manifold submissions as under :
(i) Evidence adduced by the parties ought to have been
discussed and reappreciated while deciding first appeals and since
evidence has not been discussed, judgment and decree gets
vitiated.
(ii) Arguments in first appeals were closed on 22/7/1994 and
judgment was delivered on 9/3/1995. Submission is that for want of
reasons to be recorded under Order XX Rule 1, second proviso of
the Code for not delivering judgment in time, it needs to be set
aside.
(iii) (a) The decision of the Hon'ble Supreme Court dated
8/2/1967 would not amount to res judicata as decree in suit under
lpa77.95 & 5 others
Order XXI Rule 63 of the Code was obtained in collusion between
Wasudeo and Shakarrao Bodhankar with a view to save the
property anyhow from the attachment in execution proceedings
initiated by Dhapubai.
(b) According to learned Counsel, it would not be a judgment in
rem, which binds for all the purposes and it is conclusive only to the
extent of attachment of the house in the execution proceedings
taken up by Dhapubai qua right of objector, judgment debtor and
decree holder. Ramchandra was objector and in suit under Order
XXI Rule 63 of the Code of Civil Procedure, Shankarrao was not a
necessary party as Ramchandra Chimote stepped into the shoes of
Shankarrao. If Shankarrao was not a necessary party or he was a
proforma defendant, in that case, submission is that decree in
previous suit would not bind either Shankarrao or his legal heirs. It
is submitted that in previous litigation, there was no real dispute
between Shankarrao and Chimote. Shankarrao was not going to
loose anything even otherwise. A distinction is tried to be made by
referring the word "conclusive" in Order XXI Rule 63 and the
absence of the same in Section 11 of the Code. Pointing out such
lpa77.95 & 5 others
difference, it is tried to be contended that by using word
"conclusive", intention of the Legislature is clear that suit under
Order XXI Rule 63 is qua attachment and decree under Order XXI
Rule 63 is final and conclusive qua attachment, but not title.
(c) The learned Counsel submits that Order XXI Rule 63 is a
special law whereas Section 11 is a general law, which is excluded
by special law. Executing Court was not concerned with title of the
property attached, but it had a limited scope to the execution of
decree in accordance with Order XXI of the Code.
(iv) (a) Sale Deed dated 9/7/1951 was a nominal, sham and
bogus document and never intended to be acted upon. The main
issue in the previous litigation was whether attachment was to be
lifted or to be continued. Issues whether Sale Deed was for
consideration or not, was bogus or genuine, was in collusion or not
were not the relevant issues in the suit between Chimote and
Dhapubai. In this background, decree in previous suit is not binding
on legal heirs of Shankarrao and in no case, such decree would
amount to res judicata under Section 11 of the Code.
lpa77.95 & 5 others
(b) Prior to Amending Act 104 of 1976, suit under Order XXI Rule
63 of the Code was qua attachment and not title. All rights and
liabilities prior to 1976 were protected and so Section 11
Explanation VIII of the Code would not apply in such situation.
(c)
Shankarrao had not filed an appeal against the judgment and
decree passed under Order XXI Rule 63 of the Code and
proceedings had not attained finality so far as Shankarrao is
concerned. It is urged that in that circumstance, judgment passed
by the Hon'ble Supreme Court would not amount to res judicata
against the legal representatives of Shankarrao.
(d) To sum up his submissions, learned Counsel states that issue
in the previous litigation was not directly and substantially in issue
and so decree in the previous litigation would not come in the way of
Shankarrao and his family members.
(e) The next submission is that once bar under Section 11 of the
Code is removed, exclusive burden lies on Chimotes to prove their
lpa77.95 & 5 others
title. In this connection, learned Counsel submits that derivative title
from Ramchandra Chimote to partnership firm is not proved. In the
absence of evidence regarding derivative title from Ramchandra to
partnership firm, submission is that title to the disputed house is not
established and the sale deed would not help Chimotes to establish
that they are the owners.
(v) Referring to the family history of Balkrishna and Shankarrao
Bodhankar, an attempt was made to show that family had no
background in trade or businesses. Shankarrao borrowed loans
from various creditors just to satisfy his needs and desires and the
liability created on account of non payment of such loans cannot be
fastened on the legal heirs. As debts were Avyawaharik, sons were
not under pious obligation to pay Avyawaharik debts. In this
situation, alienation of the house in question would not bind other
coparceners in the joint family.
(vi) From Aadhava maintained by Vitthal Shrikrishna Chimote and
sons, entry of Rs.25,000/- is shown. House property is not shown in
Aadhava. This crucial document was not properly considered and
lpa77.95 & 5 others
from this Aadhava, it is clear that parties had not intended to act
upon sale deed. It further indicates that even Ramchandra had
treated Shankarrao as owner of the house and not treated himself
as owner of the property in dispute.
(vii) On sale deed in question, it is urged that rent fixed at the rate
of Rs.250/- per month and interest at the rate of 12% per annum
clearly demonstrate that the transaction was not of sale and sale
deed was nominal. Further Rs.3000/- shown to have been
deducted on account of one year rent would make it clear that sale
was bogus and not to be acted upon as in the year 1952 custom
prevailing in the area was not to pay advance rent of one year. The
averments in the sale deed were thus contrary to the practice of
deducting advance rent and advance interest.
(viii) Consideration of Rs.25,000/- was grossly inadequate as in the
year 1951, disputed house could fetch value of Rs.60,000/-. The
witnesses were examined to show the valuation of house at the
relevant time, but their evidence was totally ignored in the first
lpa77.95 & 5 others
appeals. The grossly inadequate consideration is another factor to
show that transaction was not of sale as contended by Chimotes.
21) Shri Deshpande, learned Counsel for appellant in
Letters Patent Appeal No. 78/1995, adopts the submissions of Shri
Khapre. In addition, he mentions that issue of legal necessity is the
main issue. It is pointed out that evidence of Shankarrao, P.W.4
Dattatraya Tayde, P.W.5 Anant Khaparde and other witnesses
examined was not legally appreciated. There was no effective
cross-examination of these witnesses on the material facts
concerning various businesses started by Shankarrao. They went
in losses and debts were Avyawaharik, which would not render
minor's interest in the property liable for Avyawaharik debts incurred
for the businesses by father as Karta of the family. It is submitted
that businesses started by Shankarrao cannot be said to be
ancestral as it was his exclusive decision and to satisfy his needs,
he started various businesses and incurred losses for which
Shankarrao alone was responsible. The learned Counsel referring
to the pleadings of the parties submits that in the impugned
lpa77.95 & 5 others
judgment it is observed that there were no pleadings in this respect
whereas plaintiff has specifically pleaded about legal necessity.
According to learned Counsel, impugned judgment is contrary to the
pleadings and evidence on record. It is submitted that Shankarrao
was carrying on business on the licence of Sabnis is totally ignored.
There is no specific discussion on American Futures and other
businesses started by Shankarrao.
22) Learned Counsel then submits that evidence of
Shankarao has gone unchallenged on the part of Chimotes and
there was no reason to discard his evidence and the evidence of
other witnesses clearly indicating that Avyawaharik debts incurred
by father would not bind minors. It is submitted that theory of pious
obligation cannot be accepted in the facts of the present case.
23) On the point of res judicata, learned Counsel states that
in the previous suit, defence of collusiveness was raised. Here
plaintiff challenged alienation on the ground of legal necessity. It is
not necessary for him to seek declaration of setting aside sale as
lpa77.95 & 5 others
the property is ancestral and being one of the coparceners, on
attaining majority, he has a statutory right to challenge the
alienation on the ground of legal necessity to get his share on
partition.
24) Learned Counsel Shri Deshpande also submits that
pleadings and evidence were sufficient to hold that alienation was
not for legal necessity and so judgment and decree passed by the
trial Court was not to be interfered with in the first appeal.
25) Per contra, learned Senior Counsel Shri Dharmadhikari
on behalf of Chimotes raises three propositions in his extensive
arguments :
(i) Nature of the suit under Order XXI Rule 63 of the
Code of Civil Procedure is not limited to the enquiry under
Order XXI Rule 58 of the Code and it is a complete suit in
itself.
(ii) Having sold the property, Shankarrao was not
concerned with the same and with the suit instituted by
lpa77.95 & 5 others
Ramchandra under Order XXI Rule 63 of the Code of Civil
Procedure. Alleged collusion between Shankarrao and
Chimotes came to an end when appeal was preferred
before the Hon'ble Supreme Court. Shankarrao was aware
that Chimotes were about to grab the property, still he did
not appear before the Hon'ble Supreme Court and so
principle of estoppel would intervene.
(iii) The decision in previous litigation would operate as
res judicata even against the legal heirs of Shankarrao.
26) Based on these submissions, learned Senior Counsel
Shri Dharmadhikari submits that allowing claim of Deodatta would
mean to allow Shankarrao to defeat all debts and retain the house.
He points out that the law does not permit this and vehemently
opposes letters patent appeals.
27) In view of rival contentions and submissions urged on
behalf of parties, factual evidence on record and the circumstances
of the case, we have broadly framed the following points, which
lpa77.95 & 5 others
require our attention and consideration :
(i) What is the nature of suit under Order XXI Rule 63 of the
Code ? Is it a complete suit in itself or limited to an enquiry
under Order XXI Rule 58 of the Code ?
(ii) Whether the decision in former suit between Dhapubai and
Chimote would operate as res judicata ?
(iii) Whether the decree obtained in suit under Order XXI Rule
63 of the Code was a collusive decree not binding on the legal
heirs of Shankarrao ?
(iv) Whether Shankarrao sold the house in dispute for legal
necessity ?
(v) Whether principle of estoppel would be attracted against
Shankarrao and his legal representatives ?
(vi) Whether sale deed in question is hit by Section 44 of the
Evidence Act ? and
(vii) Whether delay in delivering judgment ipso facto would be
enough to viiate the same ?
28) Before we proceed to consider the above points,
contention raised by appellants regarding extent of powers of the
Court in letters patent appeal needs to be looked into. Shri Khapre,
lpa77.95 & 5 others
learned Counsel submits that generally letters patent Bench would
be slow in disturbing the concurrent findings of facts of two Courts
below, but in an appropriate case, even findings of facts will have to
be looked into by letters patent Bench. He submitted that in the
case on hand, first appellate Court was required in law to
reappreciate the evidence of witnesses and to arrive at its own
independent conclusion, but the evidence of witnesses particularly
on valuation of the house, businesses taken up by Shankarrao and
American Futures was not at all considered, which resulted into
findings contrary to the evidence on record. On the powers of
letters patent Bench, Shri Khapre placed reliance on :
(i) Smt. Asha Devi vs. Dukhi Sao and another (AIR
1974 SC 2048 (1), and
(ii) Ishwarlal Sarabhai Parikh vs. Prabhawati Ishwarlal
Parikh (Smt.) and another (1988 (1) Bom. C.R. 464).
Referring to these authorities, he adds that letters patent appeal is
not equivalent to second appeal under Section 100 of the Code and,
therefore, such appeal would lie not only on question of law, but also
on question of facts. He contended that oral evidence is admissible
to show that document executed was never intended to be acted
lpa77.95 & 5 others
upon. He placed reliance on the judgment in Tyagaraja Mudaliyar
and another vs. Vedathanni (AIR 1936 Privy Council 70) to
substantiate his contention.
29) According to Shri Khapre, burden to prove correctness
of contents of sale deed in question was on Chimote and since
contents of sale deed were not duly proved with cogent evidence, it
was not possible for the first appellate Court to come to the
conclusion that execution of sale deed is proved. In support, he
relied upon the judgment in Shalinibai Trimbakrao Begde and
others vs. Narayan Harnaji Bhalme and others (2007 (Supp.)
Bom. C.R. 721).
30) In Ishwarlal Sarabhai Parikh's case (supra), decision
in the case of Smt. Asha Devi referred above has been relied upon
and it was observed :
"We will, therefore, first examine the correctness of
the findings of fact reached by the learned Single
Judge. There was some debate on the extent of the
powers of this Court in a Letters Patent Appeal to
examine the correctness of these findings. This
question need not detain us for long. The Supreme
lpa77.95 & 5 others
Court has Ruled in A.I.R. 1974 S.C. 2048 (Smt.
Asha Devi v. Dukhi Sao), that the power of Division
Bench hearing a Letters Patent Appeal from the
judgment of a Single Judge in First Appeal is not
limited only to the questions of law under section 100
C.P.C., but that it has the same power which the
Single Judge himself had as a first Appellate Court in
respect of both questions of fact and of law. The
constraints imposed by Section 100 C.P.C. in the
case of a second appeal are not applicable to a
Division Bench hearing a Letters Patent Appeal.
This is because, a second appeal is from the
decision of Subordinate Court, while, a Single Judge
is not subordinate to the High Court. It follows who
have all the powers of a Single Judge to reach our
own findings on questions of fact."
Keeping in view the powers of letters patent Bench, we now
proceed to consider the above questions in their chronological
order.
(I) What is the nature of suit under Order XXI Rule 63 of the
Code ? Is it a complete suit in itself or limited to an enquiry
under Order XXI Rule 58 of the Code ?
31) According to learned Counsel Shri Khapre, provisions of
Order XXI Rule 63 of the Code are qua attachment/execution and
not qua title. He urged that judgment in such a suit is not judgment
in rem, which would bind all for all the purposes, but it is a judgment
lpa77.95 & 5 others
in personam qua right of objector, judgment debtor or decree holder.
He submitted that suit under Order XXI Rule 63 of the Code cannot
be decided beyond the question involved under Order XXI Rule 58
of the Code. In support thereof, learned Counsel placed strong
reliance on :
(i) M. Chimpiramma and another vs. Pabbisetti
Subramanyam and others (AIR 1957 Andhra Pradesh
61),
(ii) Sangapu Vishwanadham and others vs. Kanneganti
Basavayya and others (AIR 1959 Andhra Pradesh 180),
(iii) Mangru Mahto and others vs. Thakur Taraknathji
Tarkeshwar and others (AIR 1967 SC 1390),
(iv) Tharu Cheru and another vs. Mary and others (AIR
1973 Kerala 125).
32) Per contra, learned Senior Counsel Shri Dharmadhikari
submitted that suit under XXI Rule 63 of the Code is not limited to
enquiry under Order XXI Rule 58 of the Code, but it is a complete
suit in itself. He pointed out that while deciding suit under Order XXI
Rule 63 of the Code, Court exercises its regular jurisdiction and not
only relief of declaration, but also consequential relief can be
claimed. To substantiate his contention, learned Senior Counsel
placed reliance on the decisions of the Hon'ble Apex Court and High
lpa77.95 & 5 others
Courts in :
(i) Kavouri Basivireddi and others vs. Nidumoori
Rammayya and another (AIR 1917 Madras 393)
(ii) Ganpati Uka Koshti and others vs. Yadao Shrawan
and another (AIR (29) 1942 Nagpur 61)
(iii) Sawai Singhai Nirmal Chand vs. The Union of India
(AIR 1966 SC 1068),
(iv) in Civil Appeal No.862/1964 (Ramchandra Vasudeo
Chimote and others vs. Dhapubai w/o Mahadeo Bhut
and others)
33) Order XXI Rule 63 of the Code as was then prevailing
reads as under :
"63) Saving of suits to establish right to attached
property - Where a claim or an objection is preferred, the
party against whom an order is made, may institute a suit
to establish the right which he claims to the property in
dispute, but, subject to the result of such suit, if any, the
order shall be conclusive."
This Rule gave a statutory right of suit to the party
against whom an order was passed in the claim proceedings. A suit
contemplated by the Rule was to be filed within one year from the
date of order as prescribed by Article 11 of the Limitation Act. If
under Order XXI Rule 63 of the Code suit is not filed, order under
lpa77.95 & 5 others
Order XXI Rule 58 of the Code becomes final.
34) In Mangru Mahto's case (supra), the Hon'ble Supreme
Court considered two inconsistent decisions of the Madras High
Court and while approving decision of the Full Bench in Kandadai
Narsimhachariar vs. Raghava Padayachi and others (AIR 1945
Madras 333) overruled the decision in Subbier vs. Moideen
Fitchai and others (AIR 1923 Madras 562). It was observed :
"A claim proceeding under O.21, Rule 58 is not a suit or
a proceeding analogous to suit. An order in the claim
proceedings does not operate as res judicata. It is
because of R. 63 that the order becomes conclusive.
The effect of R.63 is that unless a suit is brought as
provided by the rule, the party against whom the order
in the claim proceeding is made or any person claiming
through him cannot re-agitate in any other suit or
proceeding against the other party or any person
claiming through him the question whether the property
was or was not liable to attachment and sale in
execution of the decree out of which the claim
proceeding arose, but the bar of Rule 63 extends no
further. AIR 1923 Mad 562 Overruled: AIR 1945 Mad
333(FB), Approved; AIR 1922 PC 341, Overruled on
point of appealability of order under R.58.
Held that in view of orders passed against the plaintiff
in the claim proceedings and his failure to institute suits
under O.21, R.63, the plaintiff was precluded from
lpa77.95 & 5 others
claiming that he had the right to attach the suit lands in
execution of his money decree, but that did not
preclude him from claiming that he had the right to sell
the lands in execution of his mortgage decree."
35) The decision of the Hon'ble Supreme Court in
Mangru Mahto's case was referred by Kerala High Court in
Tharu Cheru's case (supra) in which it has been held :
"7. The learned District Judge seems to think that, as the
present suit, O.S.No.269 of 1959, is not brought within one
year after the date on which the claim was allowed this suit is
not maintainable. I do not think that this view of the learned
District Judge is correct. No doubt, a suit under Order XXI,
Rule 63, Civil P.C., has to be brought within one year from
the date on which the order on the claim petition is passed.
It is precisely for that reason that the suit O.S. No.387 of
1957 was dismissed, as the suit was brought only on 4-12-
1957 whereas the order on the claim petition was passed on
24-11-1956. That suit was under Order XXI, Rule 63 of the
Civil P.C., for setting aside the order on the claim petition.
The ground alleged was that Exhibit P-1 sale deed dated 5-
1-1951 executed by the second defendant in favour of his
wife, the first defendant, was a sham document. That suit,
however, was not a creditor's suit under Section 53 of the
Transfer of Property Act. The question then is whether the
decision in O.S. No.387 of 1957 as confirmed by the decree
in A.S. No.241 of 1958, is a bar to the institution of the
present suit, O.S. No.269 of 1959. The suit O.S. No.387 of
1957 was merely a suit for setting aside the order on the
claim petition on the ground that Exhibit P-1 sale deed by the
husband in favour of the wife was a sham document not
lpa77.95 & 5 others
intended to be acted upon. The decision in that suit can bind
the decree-holder only with respect to the execution of the
decree for the realisation of which the property was attached.
This is the view that was taken in the Full Bench decision of
the Madras High Court in Narasimhachariar v. Raghava
Padayachi (AIR 1945 Mad 333) :
A Full Bench of the Andhra Pradesh High Court also has
taken a similar view in Chimpiramma v. Subramanyam
(AIR 1957 Andh Pra 61 (F.B.)."
36)
In this case, Andhra Pradesh High Court
distinguished on conclusiveness of the suit under Order XXI
Rule 63 of the Code in two contingencies :
(i) where judgment debtor is not made a party and
(ii) where judgment debtor is made a party
and observed as under :
"12. The scope of the decision on a claim order has
been correctly stated in cases where the judgment-
debtor is not made a party. But where the Judgment-
debtor is made a party, I would prefer the Madras view
and hold that the order against the Judgment-debtor
cannot be questioned unless he gets it vacated within
the time prescribed. It may therefore be taken as settled
law, and also consistent with practice, that a judgment-
debtor need not be made a party to claim proceedings in
which case, the Court decides only the right of the
decree-holder to bring the property to sale against the
claim of the claimant's right to have the property
lpa77.95 & 5 others
released.
Such an order would not obviously bar the Judgment-
debtor who was not a party to the proceedings. It is
equally settled that a judgment-debtor can also be made
a party to such a proceeding, and in that event it would
be binding on him and preclude him from setting up his
claim unless he gets the said order set aside in a suit
filed under Order XXI Rule 63 C.P.C. within the time
prescribed. Subject to the operation of the doctrine of
Res Judicata, an order on a claim petition filed under
Order XXI rule 58 of the Code of Civil Procedure, or a
decree in a suit filed under Rule 63 of that order, does
not extend beyond the execution of the decree which
has given rise to these proceedings. See
Narasimhachariar v. Raghava Padayachi, ILR (1946)
Mad 79 : (AIR 1945 Mad 333) (FB) (K). So far, the legal
position is clear."
"13. ........All these complications and unjust
consequences can be avoided if the well-settled
principles are adhered to without stretching them to
meet a hard case. The fundamental principle is that an
order binds only the parties to that order or the persons
claiming under them. If the judgment-debtor is made a
party to the claim proceedings, the order therein will bind
the auction-purchaser as he claims only under the
judgment-debtor. If he is not made a party, the order is
an order of limited scope confined to the right of the
decree-holder to bring the property to sale as against
the claim of the judgment-debtor to the property.
If the claim is dismissed it becomes conclusive against
the claimant not because of any principles of Res
Judicata, but because of the express provisions of the
C.P.C. Under Order XXI Rule 63 C.P.C., where a claim
lpa77.95 & 5 others
or an objection is preferred, the order against the party
to the proceeding becomes conclusive unless the
statutory suit is filed within the time prescribed. The
order, therefore, against the claimant is conclusive in
regard to the execution of the decree which has given
rise to the claim proceedings.
On the other hand, if the claim is allowed and the
claimant chooses not to make the judgment-debtor a
party, the order cannot be an order against the
judgment-debtor, and therefore, in the terms of Order
XXI Rule 63, it is not conclusive against him, and
therefore, not conclusive on persons claiming under him.
In that event, the purchaser gets the right, title and
interest of the judgment-debtor. The aforesaid legal
position ordinarily will not cause any prejudice to any of
the parties. If the claim is dismissed the claimant can
get that order, if wrong, set aside in a properly
constituted suit."
The view of Andhra Pradesh High Court in Sangapu
Vishwanadham's case (supra) was that an order passed
under Order XXI Rule 58 or Order XXI Rule 63 of the Code
does not extend beyond execution of decree giving rise to
those proceedings.
37) In Sawai Singhai Nirmal Chand's case referred
above, a short question of law arose before the Hon'ble
lpa77.95 & 5 others
Supreme Court - whether a suit filed in pursuance of Order XXI
Rule 63 of the Code attracts the provisions of Section 80 of the
Code. In paragraphs 5 and 9, it is observed thus :
"5) Let us begin by referring to the provisions of O. 21
Rules 58 and 63. O. 21 R. 58 deals with the investigation of
claims to, and objections to attachment of, attached
properties. It is under this rule that a person whose property
is wrongfully attached in execution of a decree passed
against another, is entitled to object to the said attachment.
On such an application being made, a summary enquiry
follows and the attachment is either raised or is not raised
and the objection to attachment is allowed or is not allowed
according as the Court trying the application is satisfied that
the objector is or is not justified in objecting to the
attachment. After the final order is passed one way or the
other as a result of the investigation made in such
proceedings, R. 63 comes into operation. It provides that
where a claim or an objection is preferred, the party against
whom an order is made may institute a suit to establish the
right which he claims to the property in dispute, but subject
to the result of such suit, if any, the order shall be
conclusive. It is thus plain that where an order is passed in
objection proceedings commencing with R.58, it would be
final subject to the result of the suit which a party aggrieved
by such order may institute, and that means that if a party is
aggrieved by an order passed in these proceedings, he can
have the said order set aside or reversed by bringing a suit
as provided by R.63 itself and such a suit has to be filed
within one year from the date of the impugned order. That is
the nature of the suit which the appellant has brought in the
present case.
6).....
lpa77.95 & 5 others
7).....
8).....
9) In this connection, we ought to bear in mind that the
scope of the enquiry under O. 21, R. 58 is very limited
and is confined to question of possession as therein
indicated while suit brought under O. 21 R. 63 would be
concerned not only with the question of possession, but
also with the question of title. Thus, the scope of the suit
is very different from and wider than that of the
investigation under O. 21 R.58. In fact, it is the order
made in the said investigation that is the cause of action
of the suit under O. 21 R.63. Therefore, it would be
impossible to hold that such a suit is outside the purview
of S. 80 of the Code."
38) It appears from the above decisions that there was
divergence of judicial opinion regarding nature and scope of suit
under Order XXI Rule 63 of the Code. As can be seen from
the plain language of Order XXI Rule 63 of the Code,
establishment of right to property comprises in the order
involving grant of all prayers relating to the property. It nowhere
restricts the scope of suit to the enquiry under Order XXI Rule
58 of the Code. In this situation, a second suit under Order II
Rule 2 of the Code, in our view, would be unnecessary. True,
under Order XXI Rule 63 of the Code, the Legislature
lpa77.95 & 5 others
contemplated different period of limitation for reliefs claimed. If
shorter period of limitation is applied, that would not mean that
the suit under Order XXI Rule 63 of the Code would be limited
to an enquiry under Order XXI Rule 58 of the Code. The
shorter period prescribed under Order XXI Rule 63 of the Code
is only to expedite the execution proceedings.
39) Reverting to the facts of present case as indicated
above, Shankarrao had borrowed loans from various creditors.
Dhapubai was one of them. A civil suit was filed in which
decree was passed and Dhapubai put the said decree to
execution. In the execution proceedings by filing miscellaneous
judicial case, objection was raised by Ramchandra Chimote
under Order XXI Rule 58 of the Code contending therein that
the house in question was not liable to attachment, attachment
needs to be lifted and sale of the property was required to be
postponed. Executing Court after hearing the decree holder
and objector dismissed the contention of objector on
lpa77.95 & 5 others
12/12/1953.
40) On 17/12/1953 Ramchandra filed a suit before the
Civil Judge, Amravati for declaration that property belongs to
him. On 18/1/1954, plaint was returned for presentation to
proper Court. On 21/1/1954 plaint was presented to proper
Court. Suit was registered. On 6/8/1955 Wasudeo, father of
plaintiff Ramchandra, was joined as co-plaintiff in the suit and
declaration was sought in respect of the house by both the
plaintiffs. During pendency of suit, property was sold and
purchased by Natthu. The suit was then decreed by Additional
District Judge, Amravati. In appeal, decree was set aside by
this Court and the suit was dismissed. The order was carried to
the Hon'ble Supreme Court and vide order dated 8/2/1967, the
Hon'ble Supreme Court reversed the judgment of High Court
and restored judgment and decree passed by the trial Court.
41) All these chronological events would indicate that
lpa77.95 & 5 others
question of title raised by Ramchandra Chimote and his father
in suit under Order XXI Rule 63 of the Code adjudicated by the
trial Court was confirmed by the Hon'ble Supreme Court. In
our view, adjudication of title in a suit under Order XXI Rule 63
of the Code was not limited to an enquiry under Order XXI Rule
58, but it was a complete suit in itself before the Court of regular
jurisdiction.
(II) Whether the decision in former suit between Dhapubai
and Chimote would operate as res judicata ?
42) To this question, parties have addressed at length
and placed reliance on various Authorities. The learned
Counsel for plaintiffs submitted that in a former suit,
Shankarrao was not a necessary party as the dispute
regarding attachment was between Dhapubai and
Ramchandra Chimote. According to the learned Counsel,
after 1976 amendment, Explanation VIII has been
incorporated to Section 11 of the Code and all rights and
lpa77.95 & 5 others
liabilities prior to 1976 have been protected. It is contended
that Ramchandra Chimote sought relief against decree holder
Dhapubai and since Chimote entered into the shoe of
Shankarrao, it was not necessary to join Shankarrao as a
party as he was not going to lose anything. An attempt was
made to demonstrate that Section 11 of the Code was not
attracted at all. Under Order XXI Rule 63 of the Code, word
"conclusive" was used though Section 11 was very much on
the statute book. He submitted that by using the word
"conclusive" in Order XXI Rule 63 of the Code, intention of the
Legislature was clear that it was qua attachment/execution
and not title. It is also submitted that Order XXI Rule 63 being
special law and Section 11 being general law, special law
would prevail over general law. Learned Counsel submitted
that Executing Court was not concerned with the title as it had
limited jurisdiction to execute the decree. Executing Court
was required to decide the objection under Order XXI Rule 58
and if objection failed, suit under Order XXI Rule 63
lpa77.95 & 5 others
pertaining to an enquiry under Order XXI Rule 58 was to be
instituted.
43) The next contention raised is that issue in the suit
between Dhapubai and Chimote, was not directly and
substantially in issue in the suit instituted by Deodatta. It is
submitted that suit by Deodatta was for partition and separate
possession. Shankarrao challenged the Sale Deed on various
grounds including the plea that it was a sham and bogus
document, not to be acted upon. Shankarrao not being a
necessary party to suit in a former suit, decree under Order
XXI Rule 63 passed by the trial Court and confirmed by the
Hon'ble Supreme Court would not amount to res judicata
against Shankarrao.
44) Referring to the various decisions of the Hon'ble
Supreme Court and High Courts, learned Counsel urged that
Section 11 is not attracted and the decree in former suit would
lpa77.95 & 5 others
not operate as res judicata in the subsequent suit. To
substantiate his contentions, he relied upon the decisions in :
(i) Official Assignee, Bombay vs. Madholal Sindhu
(AIR 1947 Bombay 217),
(ii) Bhola Singh vs. Teja Singh and another (AIR
1951 Punjab 363),
(iii) Shashibhushan Prasad Misra (dead) and
another vs. Babuaji Rai (dead) by his legal
representatives and others (AIR 1970 SC
809(1)
(iv) Smt. Gangabai vs. Smt. Chhabubai (AIR 1982
SC 20),
(v) Haleem Khan (deceased by L.Rs.) and others
vs. Mukhteshwar Rai and others (AIR 1983
Allahabad 207).
(vi) M. Kunhirama Kurup and others vs. Mayyarath
Krishnan Kurup and others (AIR 1987 Kerala
13).
(vii) Life Insurance Corporation of India vs. M/s.
India Automobiles and Co. and others (AIR
1991 SC 884),
(viii) Williams vs. Lourdusamy and another (AIR
2008 SC 2212).
(ix) Ramji Gupta and another vs. Gopi Krishan
Agrawal (D) and others (AIR 2013 SC 3099).
lpa77.95 & 5 others
(x) Commercial Tax Officer, Rajasthan vs. M/s.
Binani Cements Ltd. and another (AIR 2014 SC
(Supp) 1926).
45) Shri Deshpande, learned Counsel for plaintiff
Deodatta, also placed reliance on the following Authorities in
support of his submission that principle of res judicata would
not be attracted in the instant case :
(i) (Kintali) Chandramani Prushti vs. Jambeswara
Rayagaru and others (AIR 1931 Madras 550),
(ii) Mt. Munni Bibi and another vs. Tirloki Nath and
others (AIR 1931 Privy Council 114),
(iii) Kedar Nath Goenka vs. Munshi Ram Narain
Lal and others (AIR 1935 Privy Council 139),
(iv) Ch. Mohammad Afzal and others vs. Ch. Din
Mohammad and others (AIR (34) 1947 Lahore
117 (C.N. 25),
(v) Amrit Sagar Gupta and others vs. Sudesh
Behari Lal and others (AIR 1970 SC 5).
46) In reply, learned Senior Counsel Shri
Dharmadhikari submitted that alleged collusion between
lpa77.95 & 5 others
Shankarrao and Chimote came to an end way back in 1967
when the appeal was pending before the Supreme Court and
assuming that there was collusion, it did not affect the
decisions in previous round of litigation. He mentioned that
findings none-the-less would operate as res judicata.
47)
Learned Senior Counsel submitted that
Shankarrao was a party to the litigation in former suit
throughout and as such, decision in former suit would operate
as res judicata not only against Shankarrao, but also against
plaintiff Deodatta and other legal heirs of Shankarrao.
48) Needless to state that Section 11 embodies the
doctrine of conclusiveness of the judgment as to the points
decided, in every subsequent suit between the same parties.
It is based on the need of giving finality to the judicial
decisions. The principle is founded on equity, justice and
good conscience and based on maxim nemo debet bis vexari
lpa77.95 & 5 others
pro una et eadem causa, which means no man should be
vexed twice for the same cause. On going through the
Authorities referred by the learned Counsel for the parties, it is
apparent that they reiterate well settled proposition of law.
49) Condition precedent to attract applicability of
principle of res judicata lies in the requirements enumerated
under Section 11 of the Code. These conditions are :
i) Matter directly and substantially in issue in the former
suit must be directly and substantially in issue in the
subsequent suit also.
ii) Both the suits should be between the same parties or
between parties under whom they or any of them claim
litigating under the same title.
iii) Former suit should have been decided by a Court
competent to try such subsequent suit.
iv) Any matter, which might and ought to have been made
ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in
issue in such suit.
lpa77.95 & 5 others
50) With these requirements of law, prime question
before us is whether issue involved in suit under Order XXI
Rule 63 between Ramchandra Chimote and Dhapubai was
directly and substantially in issue in a suit instituted by
Deodatta and whether both these suits were between the
same parties or between the parties under whom they claimed
litigating under the same title. So far as competency of Court
is concerned, it is not in a serious dispute that the former suit
was decided by the Court of competent jurisdiction. Issue nos.
2 and 3 in the former suit were :
"2) Whether the Sale Deed dated 9/7/1951 was
executed by the defendant No.2 in favour of plaintiff for a
consideration as alleged by the plaintiff ?
3) Whether the above transfer is bogus and was made
in collusion between plaintiff and defendant no.2 with an
intent to defeat and delay the debts due from defendant
no.2 to defendant no.1 ?
We find that issue nos. 10 and 20 framed by the trial Court in
lpa77.95 & 5 others
Special Civil Suit No. 20/1972 are on the same lines. They
are :
"10) Does plaintiff prove that the said sale of the suit
house by his father Shankarrao was a nominal one and
was not to be acted upon ?
20) Do defendant nos.6 to 11 prove that this is a
collusive suit got filed by defendant no.1, through his
son, the plaintiff ?"
51) It is an undisputed fact that Shankarrao was Karta
of joint family and suit house was property of joint family. In
the former suit, Shankarrao was impleaded as defendant no.1.
Plaintiff Deodatta is a member of coparcenary. He is thus
litigating under the same title and in our view, issues involved
in both the suits were between the same parties as under
Order XXI Rule 63 of the Code, Dhapubai attached the suit
house being of judgment debtor Shankarrao. On the strength
of sale deed executed by Shankarrao in favour of Chimote,
declaration was sought by Ramchandra Chimote that house
lpa77.95 & 5 others
belonged to them and they are owners thereof. It clearly
indicates that relief claimed by Ramchandra Chimote in former
suit was specifically against Shankarrao not merely as he was
a judgment debtor, but also a predecessor in title of Chimotes.
In this situation, Shankarrao was a necessary party in the
former suit and the submission made by learned Counsel for
plaintiffs that he was a formal party is unsustainable in law.
52) Once it is found that Shankarrao was a necessary
party in the former suit, then the issues involved in the former
suit and the suit instituted later on by Deodatta as can be seen
from the issues reproduced above, were directly and
substantially in issue in the subsequent suit.
53) It is pertinent to note that Shankarrao was aware at
least when appeal was pending before the Hon'ble Supreme
Court that Chimote was bent upon to claim the property. If the
theory put up by Shankarrao that decree in former suit was
lpa77.95 & 5 others
obtained in collusion with Chimote so as to save the property
from execution taken out by Dhapubai is to be believed,
Shankarrao would not have remained silent and as a prudent
man, he would have appeared before the Hon'ble Supreme
Court and contested the litigation. It is a matter of record that
Shankarrao did not contest. It is only after decision went
against him, he in collusion with his son Deodatta brought
Special Civil Suit No. 20/1972. Shankarrao and Deodatta
litigate under the same title, if the sale deed in favour of
Ramchandra Chimote is found to be for legal necessity. In
view of these facts established on record, particularly when
every thing pertaining to Sale Deed in question was pointed
out to the Hon'ble Supreme Court and the Hon'ble Supreme
Court refused to interfere with the Sale Deed and the issue of
said Sale Deed being involved in the subsequent suit, we are
of the opinion that provisions of Section 11 of the Code are
squarely applicable in the present case and the decision in
previous litigation would amount to res judicata between the
lpa77.95 & 5 others
parties.
(III) Whether the decree obtained in suit under Order XXI
Rule 63 of the Code was a collusive decree not binding on the
legal heirs of Shankarrao ?
54) It is the case of plaintiff Deodatta that the decree
obtained in previous suit was in collusion as anyhow
Shankarrao and Chimote wanted to frustrate the execution of
decree passed in favour of Dhapubai. According to plaintiff
Deodatta, decree being collusive has no force of law and it
would not be binding on the members of joint family. Trial
Court in paragraph 30 of its judgment referred certain
instances and drew an inference of collusion between
Shankarrao and Wasudeo Chimote. It is pertinent to note that
Shankarrao never challenged the decree in previous suit
confirmed by the Hon'ble Supreme Court. He did not make
any attempt to get it set aside on the ground of collusion.
Except bare version of Shankarrao, nothing is on the record to
lpa77.95 & 5 others
show that to protract execution proceedings filed by Dhupabai,
sale deed was executed. Shankarrao was father of Deodatta.
Therefore, with a design to render support to the claim of his
son, he introduced the plea of collusion. Having not
challenged the decree confirmed by the Hon'ble Supreme
Court, Shankarrao could not have been allowed to turn around
and take advantage on the ground of collusion.
55) There is another reason to discard the plea of
collusion. On perusal of sale deed dated 9/7/1951, it can be
seen that Krishna Keole had obtained money decree against
Shankarrao and attached property in execution of the decree.
The sale in execution of decree was due to be held on
24/1/1951. On 24/1/1951 Shankarrao executed an agreement
to sell in favour of Chimote and received Rs.2000/-. On
receipt of Rs.2000/-, Shankarrao paid the sum to Krishna
Keole, who agreed to postpone the sale. On 9/7/1951, plaintiff
paid a sum of Rs.6200/- to Krishna Keole in full satisfaction of
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the decree and got the property released from attachment in
the execution filed by Krishna Keole. In these circumstances,
contention of plaintiff that to frustrate execution of decree filed
by Dhapubai, Shankarrao executed sale deed in favour of
Chimote holds no water.
(IV) Whether Shankarrao sold the house in dispute for legal
necessity ?
(V) Whether principle of estoppel would be attracted against
Shankarrao and his legal representatives ?
56) Another contention of plaintiff Deodatta is that
there was no legal necessity for his father Shankarrao to
execute the sale deed. In this connection, plaintiff submits
that Shankarrao embarked upon new ventures without any
experience in different trades and suffered losses. He submits
that family of Shankarrao was not a trading family. The
income from agricultural land and other sources was enough
to maintain the joint family, but to satisfy his desires and
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needs, he, on his own, recklessly entered into grain business,
distribution of films and American futures. According to him,
the sale was not independent, but correlated to earlier
Aywarharik debts and since it was not for antecedent debts,
sale was not binding on the plaintiff. Shri Deshpande, learned
Counsel placed reliance on the following authorities in support
of this challenge :
(i) The Benares Bank Ltd. vs. Hari Narain and
others (AIR 1932 Privy Council 182).
Sabhachand Navalchand vs. Sambhoo Gyanoba
(ii)
Bhoj (ACJ 1936 Bombay Law Reporter 118).
(iii) Ganesh Prasad Singh and another vs.
Sheogobind Sahu and others (AIR 1938
Patna 40).
(iv) Sankaranarayanan and another vs. The Official
Receiver, Tirunelveli and others (AIR 1977
Madras 171).
57) In reply, learned Senior Counsel for respondent
Chimotes placed strong reliance on the decision in Venkatesh
Dhonddev Deshpande vs. Sou. Kusum Dattatraya
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Kulkarni and others (AIR 1978 SC 1791) and would submit
that house sold by Shankarrao was for legal necessity and it is
equally binding on his legal heirs too.
58) From the evidence brought on record, it can be
seen that suit house was ancestral. In 1936, after Shankarrao
attained majority, house came to his management. In 1949,
he entered into business of cinema and grain shop. It further
appears from the evidence that Shankarrao was also dealing
in business of American futures. It is also apparent that
Shankarrao was required to borrow loan from time to time as
he was unsuccessful in businesses. The question is whether
loans borrowed by Shankarrao were for the joint family as a
Karta or in his individual capacity to satisfy his own desires ?
Here it would be relevant to look into the debts with which sale
deed is actually concerned. As stated above, agreement to
sell was executed on 24/1/1951 when the house was attached
in execution of decree filed by Krishna Keole. To get the sale
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postponed, Shankarrao executed agreement to sell of house
in favour of Wasudeo and Ramchandra Chimote. Accordingly,
he received Rs.2000/- from Chimotes, paid the same to
Krishna Keole and got the sale postponed. On 9/7/1951 he
paid remaining amount of Rs.6200/- to Krishna Keole in full
satisfaction of the decree. He executed sale deed on that day
in favour of Chimotes, received Rs.6200/- and paid to Krishna
Keole. Thus, from the sale deed, it is clear that to satisfy the
debts received from Krishna Keole, Shankarrao being in need
of money was required to sell the house so as to satisfy the
decree in favour of Krishna Keole.
59) In this background, evidence of Krishna Keole is
most important. The evidence of Krishna Keole was
considered by the Hon'ble Supreme Court in Civil Appeal
No.862/1994. The Hon'ble Supreme Court at the bottom of
page 7 observed as under :
"The High Court held that the agreement for sale dated
January 24, 1951 was ante dated and was not in fact
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executed on January 24, 1951. We are unable to
agree with this finding. In arriving at this finding, the
High Court overlooked the evidence of Krishna Kewle.
Krishna Kewle swore that on January 24, 1951,
plaintiff no.1 and Shankar came to his house and told
him that the plaintiffs had entered into a bargain for the
purchase of the property from Shankar for Rs.25000/-
and Shankar had received an earnest money of
Rs.2000. It is because Shankar had received the
earnest money that he was able to pay a sum of
Rs.2000 to Krishna Kewle and was able to obtain a
postponement of the sale due to be held on January
24, 1951. Krishna Kewle is an independent witness
and we see no reason to disbelieve him. His evidence
strongly corroborated the case of the plaintiffs that the
agreement for sale was entered into on January 24,
1951. There can also be no doubt that on January 24,
1951, the plaintiffs had paid a sum of Rs.2000 to
Shankar. It was argued that it was somewhat curious
that on January 24, 1951 Shankar had gone to the
plaintiffs with a stamped paper before the bargain was
struck, but the evidence only shows that the bargain
was struck at one and the same sitting. Plaintiff no.2
stated that Shankar had brought the stamped paper,
but he did not say that he did so before the bargain
was struck. We are satisfied that on January 24, 1951
Shankar duly agreed to sell the property to the
plaintiffs for Rs.25000/-. The agreement for sale was
executed in favour of plaintiff no.2 acting on behalf of
both the plaintiffs. The sale deed dated July 9, 1951
was executed in favour of plaintiff no.1 acting on
behalf of both the plaintiffs. On this finding it is not
disputed that the intermediate attachment of the
property by defendant no.1 Dhapubai on March 14,
1951 cannot prevail against the claim of the plaintiffs.
The attachment of the right, title and interest of
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Shankar in the property on March 14, 1951 was
subject to the obligation of Shankar to sell the property
under the agreement dated January 24, 1951."
In view of above observations and on going through the entire
evidence of Krishna Keole, we do not find that debts incurred
by Shankarrao in view of loans borrowed from Krishna Keole
were Avyawaharik or for some other immoral purpose. In this
background, it was not necessary for Chimote to lead evidence
on legal necessity. Shankarrao being a Karta alienated the
house on behalf of joint family and represented the
coparcenary. Plaintiff Deodatta is a member of coparcenary
and in absence of any evidence to show that loans borrowed
by Shankarrao were for immoral, illegal or individual purposes,
submission of plaintiff Deodatta cannot be accepted that the
sale transaction was not for legal necessity. Trial Court in
paragraphs 46 to 51 of its judgment while recording reasons for
answering the issue on legal necessity in the affirmative
elaborately dealt with this aspect. In paragraph 51, trial Court
culled out its conclusion and introducing principle of pious
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obligation held that plaintiff Deodatta failed to prove that debts
were tainted with immorality or illegality. Therefore, Deodatta
cannot plead collusion between Shankarrao and Ramchandra
Chimote and fraud on Court. Even otherwise, successful
auction purchaser Nathu or Dhapubai, who attached property,
ought to have been joined as necessary parties as alleged
fraud was on them.
60) One of the grounds to challenge the sale deed in
question is that it was nominal and not to be acted upon. In
this connection, learned Counsel for plaintiff Deodatta
submitted that Shankarrrao, Ramchandra and Wasudeorao
were acquainted with the true nature of transaction, viz. sale
deed (Exh. 203). He stated that Shankarrao was in need of
money to get the house released from attachment in the
execution proceedings filed by Dhapubai and so a show was
made that house was sold, but in fact it was not a transaction
of out and out sale. It was just to frustrate execution of decree
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and particularly sale of house in the execution proceedings
taken out by Dhapubai. In view of a secret arrangement
between Shankarrao and Chimote, learned Counsel submits
that there can be no estoppel between them. The decision of
Lahore High Court in Ch. Mohammad Afzal and others
(supra) is pressed into service to support the contention.
61) Under Section 115 of the Evidence Act, principle of
estoppel means a person shall not be allowed to show one
thing at one time and opposite of it at another time. The rule is
based on principles of equity and good conscience. In the
present case, as indicated above, decree passed under Order
XXI Rule 63 of the Code was carried till Hon'ble Supreme
Court and the Hon'ble Supreme Court restored the decree
passed by the trial Court vide judgment dated 8/2/1967.
Everything pertaining to sale deed was pointed out to the
Hon'ble Supreme Court and the Hon'ble Supreme Court
refused to interfere with the sale deed. This includes the
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contention of plaintiff that consideration of Rs.25,000/- was
grossly inadequate indicating the nature of sale deed as not to
be acted upon. On adequacy of Rs.25,000/- as consideration,
Hon'ble Supreme Court accepts price as fair by holding it as
"hard bargain". In view of the decision of the Hon'ble
Supreme Court in Civil Appeal No. 862/1964, we are not
inclined to go into the contention of plaintiff that transaction of
sale was not the real and true transaction, but it was a nominal
one.
62) The significant factor to be noted in the instant
case is conduct of Shankarrao throughout. He was a party to
the execution proceedings filed by Dhapubai. He was also a
party to the execution proceedings taken out by Krishna
Keole. In a suit under Order XXI Rule 63 of the Code filed by
Chimotes, Shankarrao was a necessary party. The decision
was challenged before this Court and also before the Hon'ble
Supreme Court. Throughout Shankarrao refrained himself
lpa77.95 & 5 others
from contesting the proceedings. His conduct is consistent. It
was convenient for him not to participate. Subsequently, with
the aid of his son, he got up and raised the plea that the
transaction in question was nominal and parties intended not
to act upon the same. In this situation, he is estopped in law
by his conduct and cannot be allowed to approbate and
reprobate as rightly observed by the learned Single Judge.
Shankarrao and Ramchandra Chimote cannot be permitted to
take such stands as they choose or at such time, when they
choose or after it, to defeat finality to Court decree. Such
"finality" is the vital base/foundation of justice administration.
In the facts established on record, we find that principle of
estoppel is squarely applicable and the same goes against the
plaintiffs.
(VI) Whether sale deed in question is hit by Section 44 of the
Evidence Act ?
63) The next contention of learned Counsel for
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plaintiffs is that it is always open to any party to a suit to show
that judgment was obtained by fraud or collusion. Reference
is made to Section 44 of the Evidence Act and an attempt is
made to show that where son of Hindu father is challenging
the decision in previous suit on the ground that it was a
collusive suit, then Section 44 allows party to set up the fraud
to defeat the effect of judicial order. It is submitted that in such
a situation, though judgment stands unreversed, language of
Section 44 is wide enough to allow the party to show that it
was obtained by fraud or collusion. In support thereof,
reliance is placed on :
(i) Mt. Parbati vs. Gajraj Singh (AIR 1937
Allahabad 28),
(ii) Bhondu Mal vs. Thomas Skinner (AIR 1937
Allahabad 29)
(iii) Bishunath Tewari and others vs. Mst. Mirchi
{(S) AIR 1955 Patna 66 (Vol. 42, C.N.6)},
(iv) Immami Appa Rao and others vs. Gollapalli
Ramalingamurthi and others (AIR 1962 SC 370).
(v) Gram Panchayat of Village Naulakha vs. Ujagar
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Singh and others {(AIR 2000 SC 3272(1)}.
64) In response to the submissions of the learned
Counsel for plaintiffs, Shri Dharmadhikari, learned Senior
Counsel submits that to avoid a plea of res judicata, a
judgment or order or decree under Section 44 of the Evidence
Act can be shown to be obtained by fraud or collusion and
there cannot be any dispute over the settled principles. He
submitted that scope of Section 44 is limited only to the cases
in which a decree is treated as relevant under Sections 40, 41
and 42 of the Evidence Act. He points out that by implication
in the present case, application of Section 44 does not arise
as Shankarrao was not debarred from exercising his
substantive right in the present matters and also in the
previous suit under Order XXI Rule 63 of the Code.
65) So far as decree allegedly obtained by fraud or
collusion is concerned, principle of public policy requires that
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this Court will not lend its aid to a man, who found his cause
of action upon an immoral or illegal act. It is well known that
no polluted hand shall touch the pure fountain of justice. We
refrain ourselves from further commenting upon it.
66) In the judgment of the Hon'ble Supreme Court in
Civil Appeal No.862/1964, the Hon'ble Supreme Court
considering all the circumstances observed that the Court was
unable to see that sale deed was a sham transaction and was
not intended to be acted upon. The Hon'ble Supreme Court
further observed that Shankarrao might have intended to
prefer one creditor, but the sale deed cannot be pronounced to
be void on the ground that it was executed with intent to defeat
or delay any creditor of Shankarrao. In this background,
decree passed by the trial Court was restored by the Hon'ble
Supreme Court. This question will, therefore, no longer detain
us further in view of the clear dictum of the Hon'ble Supreme
Court on the sale deed in question.
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67) Learned Counsel Shri Khapre then submits that
tenancy of Shankarrao relating to suit house was terminated
on 7/7/1952. Even thereafter Shankarrao continued in
possession in his own right. His possession was adverse to
the interest of true owners and so even after sale, title of
Shankarrao was perfected by adverse possession. To
substantiate his submission, learned Counsel placed reliance
on :
i) Application dated 28/2/1952 (Exh. 270) filed by
Shankarrao to postpone auction sale in which he asserted
his title even after sale deed in favour of Chimotes.
ii) Pleadings in the suits by Chimotes.
iii) Finding in Special Civil Suit No.7/1965 vide
judgment dated 16/8/1966 that sale deed was nominal
and fictitious.
iv) Deposition of Wasudeo Chimote in former suit
stating that besides Rs.3000/-, he did not receive
anything by way of rent,
v) Property shown in the name of Bodhankar in
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Exh. 428, an extract of account of rent.
68) In Civil Suit No. 7/1965, subject matter was for
recovery of amount based on pro-note. Issue of title was not
directly or substantially involved. Even otherwise, in view of
finding in former suit, issue was not open. The plea of
adverse possession raised was not properly pleaded and
proved before the trial Court. So far as rent of Rs.3,000/- is
concerned, at the most it can be said that Shankarrao was in
arrears of rent and it was a case of termination of tenancy
against him. This by itself would not vest title of suit house in
Shankarrao. It can be seen from the rent receipts dated
18/4/1959 and 3/6/1959 (Exhs. 200 and 201) that Shankarrao
had paid the rent. Till 1959, Shankarrao did not assert title in
himself. An extract of account of rent of Shankarrao (Exh.
428) and rent receipts in respect of other tenants were also
brought on record. All these important facts would negative
the claim of adverse possession raised in regular civil suits by
tenants. The plea of adverse possession, in our view,
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therefore, does not sustain.
(VII) Whether delay in delivering judgment ipso facto would be
enough to vitiate the same ?
69) The next unsuccessful attempt on the part of
learned Counsel for plaintiffs was regarding delay in delivering
judgment in first appeals. Learned Counsel would submit that
arguments in first appeals were lastly heard on 21/7/1994 and
matters were closed for judgment on that date, but the
common judgment was delivered on 9/3/1995. A grievance
is made that because of delay, important points were missed.
Appellate Court did not consider main objection of plaintiffs
that decree obtained from the Hon'ble Supreme Court was
collusive and not binding on the parties. He also pointed out
that judgment of Full Bench of Andhra Pradesh High Court on
necessary party was ignored and this could happen due to
delay. According to learned Counsel, as material points were
missed, serious prejudice has been caused to appellants and
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on this ground itself, judgment of the appellate Court gets
vitiated. On the effect of delay in deliverng judgment under
Order XX Rule 1 of the Code, Shri Khapre relied upon :
(i) R.C. Sharma vs. Union of India and others (AIR
1976 SC 2037),
(ii) Bhagwandas Fatechand Daswani and others
vs. H.P.A. International and others (AIR 2000
SC 775),
(iii) Anil Rai vs. State of Bihar (AIR 2001 SC 3173),
(iv) Kanhaiyalal and others vs. Anupkumar and
others (AIR 2003 SC 689(1),
(v) M/s. Telestar Travels Pvt. Ltd. And others vs.
Special Director of Enforcement (AIR 2013 SC
(Supp) 1041,
70) On going through the above authorities, it can be
seen that mere unexplained delay in delivering judgment is not
fatal and guidelines given by the Hon'ble Supreme Court in
paragraph 21 of the judgment in the case of Anil Rai (supra)
regarding pronouncement of judgments need to be strictly
followed being mandate of the Hon'ble Supreme Court. These
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guidelines are :
(i) The Chief Justices of the High Courts may issue
appropriate directions to the Registry that in a
case where the judgment is reserved and is
pronounced later, a column be added in the
judgment where, on the first page, after the
cause title date of reserving the judgment and
date of pronouncing it be separately mentioned
by the Court Officer concerned.
(ii)
That Chief Justices of the High Courts, on their
administrative side, should direct the Court
Officers/Readers of the various Benches in the
High Courts to furnish every month the list of
cases in the matters where the judgments
reserved are not pronounced within the period of
that month.
(iii) On noticing that after conclusion of the
arguments the judgment is not pronounced within
a period of two months, the concerned Chief
Justice shall draw the attention of the Bench
concerned to the pending matter. The Chief
Justice may also see the desirability of circulating
the statement of such cases in which the
judgments have not been pronounced within a
period of six weeks from the date of conclusion of
the arguments amongst the judges of the High
Court for their information. Such communication
be conveyed as confidential and in a sealed
cover.
(iv) Where a judgment is not pronounced within three
months from the date of reserving it, any of the
parties in the case is permitted to file an application
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in the High Court with prayer for early judgment.
Such application, as and when filed, shall be listed
before the Bench concerned within two days
excluding the intrvening holidays.
(v) If the judgment, for any reason, is not pronounced
within a period of six months, any of the parties of
the said lis shall be entitled to move an application
before the Chief Justice of the High Court with a
prayer to withraw the said case and to make it over
to any other Bench for fresh arguments. It is open
to the Chief Justice to grant the said prayer or to
pass any other order as he deems fit in the
circumstances."
71) In the present case, no grievance was ever made
by the parties regarding alleged delay in delivering judgment.
The facts of the case would show that while reversing the
judgment and decree passed by the trial Court, learned Single
Judge has come to his own independent conclusion based on
material placed on record. Moreover, it is too late for the
plaintiffs to get up and say that delay has caused prejudice to
them. In what way prejudice is caused is not explained. Order
XX Rule 1 of the Code nowhere mentions that delay vitiates
the judgment. In this backdrop, we do not find force in the
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submission of learned Counsel for plaintffs that delay is fatal
and judgment in first appeals gets vitiated.
72) As a result of above discussion, we do not find any
merit in any of the contentions raised before us by appellants.
The letters patent appeals are, therefore, dismissed with no
order as to costs.
JUDGE JUDGE
khj
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