Bombay High Court
Amruta Kaluji Shejol & 5 Others vs Vithal Ganpat Wadekar & Others on 15 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.359 of 2001
1. Amruta Kaluji Shejul,
Since dead, through his LRs.:
1A. Smt. Padmabai Amruta Shejul,
Aged about 68 years,
R/o Gahugaon (Damdade),
Tah. Mehkar,
Dist. Buldana.
1B. Smt. Annapurma alias Baby Dayaram
Ghuge,
Aged about 50 years,
Post Marsul, Tq. Malegaon,
Dist. Akola.
1C. Smt. Godavari Laxman Padghan,
Aged about 45 years,
R/o Post Mouza, Tq. Risod,
Dist. Washim.
1D. Dagdu Amruta Shejul,
Aged about 35 years,
R/o Gahugaon (Damdade),
Tah. Mehkar, Dist. Buldana.
1E. Shobha Ghanshyam Ghuge,
Aged about 30 years,
Post Marsul, Tq. Malegaon,
Dist. Akola.
1F. Keshav Amruta Shejul,
Aged about 28 years,
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R/o Gahugaon (Damdade),
Tah. Mehkar, Dist. Buldana.
2. Narmadabai wd/o Dagdu Gawai,
Aged 52 years, Agriculturist.
3. Shashikala w/o Girdhari Hiwale,
Aged 31 years, Agriculturist.
Both residents of Belgaon,
Tq. Mehkar, District Buldana.
4.
Shantabai w/o Kachru More,
Aged 28 years, Agriculturist,
Resident of Batala, Tq. Mehkar,
District Buldana.
5. Shri Yashwant Kaluji Shejul,
Since dead, through his LRs.:
5-a. Smt. Chandrabhaga Yashwant Shejul,
Aged about 58 years,
R/o Gahugaon (Damdade),
Tah. Mehkar, Dist. Buldana.
5-b. Gunwant Yashwant Shejul,
Aged 43 years,
R/o Gahugaon (Damdade),
Tah. Mehkar, Dist. Buldana.
5-c. Chhaya w/o Suresh Wakude,
Aged about 40 years,
At Post Kenwad, Tq. Risod,
Dist. Washim.
5-d. Sau. Karuna w/o Ramesh Ambhore,
R/o Rithod, Tq. Risod,
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Dist. Washim.
6. Gajanan Tukaram Ingale,
Aged 26 years,
R/o Belgaon, Tq. Mehkar,
Dist. Buldana. ... Appellants/
Ori. Defendants on R.A.
Versus
1. Vithal Ganpat Wadekar,
Aged 47 years, Service,corpus
R/o Belgaon, Tq. Mehkar,
District - Buldana.
(Expired) -
Legal Heirs of Respondent No.1
Vitthal -
1-A. Pramila Ganeshrao Kule,
Aged 24 years, Household duties,
C/o Ganesh Kule, Sindhi Camp,
Akola.
1-B. Vimal Kiran Dhavane,
Aged 26 years, Service,
Sindhi Camp, Akola.
1-C. Meena Namdeorao Kale,
Aged 26 years, Service,
R/o Padampura, Lamba Building,
Aurangabad.
2. Mahadeo Ganpat Surve,
Since dead, through his LRs.:
2-a. Mankarnabai Madhaorao Surve,
Aged about 65 years,
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Occupation - Agricultural Labour,
R/o Belgaon, Tq. Mehkar,
District Buldhana.
2-b. Girdhar Madhaorao Surve,
Aged about 45 years,
Occupation - Business,
R/o Belgaon, Tq. Mehkar,
District Buldhana.
2-c. Murlidhar Madhaorao Surve,
Aged about 42 years,
Occupation - Business,
R/o Belgaon, Tq. Mehkar,
District Buldhana.
2-d. Sau. Varsha Sudhakar Sonune,
Aged about 38 years,
Occupation - Household,
R/o Ward No.3,
At Post Rajakinhi, Tah. and
District Washim.
2-e. Sau. Sarla Sureshbhau Raike,
Aged about 25 years,
Occupation - Household,
R/o Near Shahapur
Parshuram Chowk, Bypass,
Mangrulpir, Tah. Mangrulpir,
District Washim.
2-f. Sau. Radha Sureshrao Ambade,
Aged about 32 years,
Occupation - Household,
R/o At Post - Hirpud,
Tah. Murtizapur,
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District Akola. ... Respondents/
Ori. Plaintiffs
Shri R.L. Khapre, with Shri P.B. Patil, Advocates for Appellants.
Shri S.A. Mohta, Advocate for Respondent Nos. 2-a to 2-f.
CORAM : R.K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT : 7-7-2016
DATE OF PRONOUNCING THE JUDGMENT : 15-7-2016
JUDGMENT :
1. The deceased-respondent No.1-Vitthal Ganpat Wadekar
was the original plaintiff No.1, whereas the deceased-respondent
No.2-Mahadeo Ganpat Surve was the original plaintiff No.2. Both
the plaintiffs were real brothers. The plaintiff No.1 was the
son-in-law (husband of the daughter) of one Laxmibai, whereas the
plaintiff No.2 was the son of Laxmibai, adopted on 9-5-1952. The
dispute in this matter pertains to 12 acres of land out of Survey
No.117, situated at Mouza Belgaon, Tq. Mehkar, District Buldana,
sold by Laxmibai to the deceased-defendant No.1-Amruta and the
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defendant No.3-Yashwant by the registered sale-deeds
dated 4-6-1974 and 19-7-1976; to the deceased-defendant
No.2-Dagdu by the registered sale-deed dated 13-4-1976; and to the
defendant No.4-Gajanan by the registered sale-deed
dated 24-5-1978.
2.
The plaintiffs approached the Civil Court by filing Regular
Civil Suit No.22 of 1986 with the case that they had purchased the
land Survey No.117, admeasuring total 4.86 HR, equivalent to
25 acres and 13 gunthas, out of their own funds by the registered
sale-deed dated 9-6-1965 at Exhibit 65 from one Rodji Bajirao; and
by executing the registered settlement-deed at Exhibit 66
dated 9-6-1965 the land admeasuring 12 acres out of Survey No.117
was given to Laxmibai for maintenance during her life-time, and
she was not authorized/competent to mortgage or sale the said land
to anyone. Laxmibai died on 4-5-1983 and thereupon the plaintiffs
became entitled to take over the possession of the said land. The
defendants have, however, obstructed them on the ground that they
are in possession as the owners of the said land on the basis of the
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aforementioned sale-deed executed by Laxmibai in their favour.
The plaintiffs, therefore, claimed a declaration that the
aforementioned sale-deeds are not binding upon them and the
defendants have no right to be in possession of the suit property,
and hence the decree for possession was also claimed.
3.
The Trial Court answered the issue of title in favour of the
plaintiffs on the basis of the sale-deed dated 9-6-1965 at Exhibit 65
from Rodji Bajirao. It recorded the finding that the plaintiffs have
established that the suit land was transferred by the settlement-deed
dated 9-5-1965 at Exhibit 66 to Laxmibai, creating in her a limited
interest upto life for maintenance. The Trial Court also held that the
instrument at Exhibit 66 is governed by sub-section (2) of
Section 14 of the Hindu Succession Act, 1956, and the terms and
conditions enumerated therein indicate that it was not a transfer in
lieu of pre-existing right of Laxmibai in the property. The
contention of estoppel under Section 115 of the Indian Evidence
Act, 1872 read with Section 4 of the Transfer of Property Act, 1882
on the fact of attestation by the plaintiff No.1 on the sale-deed dated
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4-6-1974 at Exhibit 74, executed by Laxmibai in favour of the
defendant Nos.1 and 3, was rejected by the Trial Court. The Trial
Court also rejected the contention of the defendants that it was
Laxmibai, who was the real owner and had purchased the suit land
benami in the name of the plaintiffs by the registered sale-deed
dated 9-6-1965 at Exhibit 65. The contention that the defendants
were bona fide purchasers of the suit property under the sale-deeds
dated 4-6-1974 at Exhibit 74, dated 13-4-1976 at Exhibit 76, and
dated 19-7-1976 at Exhibit 78 from Laxmibai without notice for
valuable consideration, was also rejected by the Trial Court. The
lower Appellate Court has concurred with these findings and the
decree passed regarding ownership of the plaintiffs over the suit
property and possession in favour of the plaintiffs, was maintained
by dismissing the appeal.
4. This appeal was admitted by this Court on 3-10-2005,
framing the following two substantial questions of law :
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Serial Substantial questions of law Findings
Nos.
(i) Whether the Courts below have erred in Does not survive.
applying the provisions of Benami
Transaction Prohibition Act in respect of
transaction of purchase of property made on
9.6.1965 which was admittedly long prior to
coming into force of Benami Transaction
Act?
(ii) Whether the judgment of the lower Court is
ig No
perverse and is based principally on the
application of Benami Transaction
Prohibition Act and without depending on the
said Act any Court would have reasonably
come to the conclusion that Laxmibai was the
true owner of the property?
Subsequently, during the course of final hearing of this
appeal on 16-6-2016, the following additional substantial questions
of law were framed :
Serial Substantial questions of law Findings
Nos.
(i) Whether the defendants have established that No
Survey No.12/2, admeasuring 20 acres and 6
gunthas located at Belgaon was an ancestral
property in the hands of the plaintiffs and
Laxmibai?
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(ii) Whether the defendants have established that No
Laxmibai had pre-existing right of
maintenance in Survey No.12/2 situated at
Belgaon, sold on 09.06.65?
(iii) Whether the suit in question challenging the Yes
sale deeds dated 04.06.74, 13.04.76 and
respectively was barred by the law of
limitation?
(iv)
Whether the defendants have established that
they are the bonafide purchasers of the
property for valuable consideration?
Yes
The parties were put on notice and were given sufficient
time to address this Court on all the aforesaid substantial questions
of law. The matter was heard on 17-6-2016, 27-6-2016, 28-6-2016,
29-6-2016 and 30-6-2016.
As to substantial question of law at Serial No.(i)
dated 3-10-2005 :
5. Before this Court, it is conceded by both the parties that it
would be permissible for the appellant-defendants to establish that
the sale-deed dated 9-6-1965 at Exhibit 65 in the name of the
plaintiffs was a benami transaction and such a plea would not be
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barred by the provisions of the Benami Transactions (Prohibition)
Act, 1988 for two reasons - (i) that it was a transaction much prior
to coming into force of the said Act on 19-5-1988, and (ii) that
even if the said Act applies, leading of such evidence would be
permissible to the extent provided under sub-section (3) of
Section 4 of the said Act. In view of this, the substantial question at
Serial No.(i), framed on 3-10-2005, does not at all survive.
As to substantial questions of law at Serial No.(ii)
dated 3-10-2005 and at Serial No.(i) dated 16-6-2016 :
6. The substantial question of law at Serial No.(ii), framed on
3-10-2005, and at Serial No.(i), framed on 16-6-2016, can be
decided together, as they are interlinked. Both the Courts are
concurrent in holding that the appellant-defendants have failed to
establish that it was Laxmibai, who purchased the entire land
Survey No.117 in the name of the plaintiffs as benami. Shri Khapre,
the learned counsel appearing for the appellant-defendants, submits
that such a finding is in ignorance of - (i) the important admissions
given by the plaintiff No.2 himself, (ii) the fact that the sale-deed in
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favour of the defendant Nos.1 and 3 executed on 4-6-1974 at
Exhibit 74 was signed by the plaintiff No.1 as an attesting witness,
(iii) the fact that the plaintiff No.1 has failed to enter the
witness-box to avoid answers to the questions leading to estoppel,
(iv) the fact that on the same day, i.e. on 9-6-1965, Laxmibai and
the plaintiffs had sold the ancestral property, i.e. the land Survey
No.12/2, admeasuring 20 acres and 6 gunthas, situated at Belgaon,
to a third person, viz. Namdeo Surve, and though such a sale-deed
was in possession of the plaintiffs, the same is not produced on
record, (v) the fact that the corpus out of sale of Survey No.12/2
was utilized for purchase of the suit land on 9-6-1965 at Exhibit 65,
and (vi) the fact that the land Survey No.12/2, admeasuring 20 acres
and 6 gunthas, was an ancestral property in the hands of the
plaintiffs and Laxmibai.
7. The undisputed factual position is that both the plaintiffs
are real brothers. The plaintiff No.1 was the son-in-law of
Laxmibai, whereas the plaintiff No.2 was the son adopted by
Laxmibai on 9-5-1952. The land Survey No.12/2, admeasuring 20
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acres and 6 gunthas, located at Belgaon was sold on 9-6-1965
jointly by the plaintiff Nos.1 and 2 along with Laxmibai to a third
person, viz. Namdeo Survey, and a copy of such sale-deed was not
produced on record of the lower Courts. On the same day,
i.e. 9-6-1965, the land Survey No.117, situated at Belgaon, of which
the suit property is the part, was purchased under the registered
sale-deed dated 9-6-1965 at Exhibit 66 from Rodgi Bajirao in the
name of the plaintiff Nos.1 and 2 only. The said Rodgi Bajirao has
not been examined as witness. On the same day, i.e. on 9-6-1965,
the plaintiffs had executed a registered deed of settlement at
Exhibit 65, creating only a life interest for Laxmibai in the suit
property for her maintenance on the terms and conditions specified
therein, including that she shall not have any right to mortgage, sale
or transfer it in favour of any person. Laxmibai has transferred
different portions of suit property by registered sale-deeds
dated 4-6-1974 at Exhibit 74 in favour of the defendant Nos.1
and 3, dated 13-4-1976 at Exhibit 76 in favour of the defendant
No.2, and dated 19-7-1976 at Exhibit 78 in favour of the defendant
No.4. Laxmibai died on 4-5-1983. The suit in question was filed
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on 11-2-1986.
8. The questions, which are required to be addressed firstly,
are whether the land Survey No.12/2, admeasuring 20 acres and 6
gunthas, located at Belgaon, and sold to Namdeo Survey jointly by
the plaintiffs and Laxmibai, was an ancestral property, and whether
the purchase of land Survey No.117 by the registered sale-deed
dated 9-6-1965 at Exhibit 65 in the name of the plaintiffs was out of
corpus of joint family property - a benami transaction by Laxmibai.
9. On the position of law, I need not refer to several decisions
cited before me, but the reference to few, to recapitulate the
well-settled position of law, would be enough. It has to be stated
that the proof of existence of a joint family does not lead to the
presumption that property held by any member of the family is
joint, and the burden rests upon anyone asserting that any item of
property was joint to establish the fact. But where it is established
that the family possessed some joint property which from its nature
and relative value may have formed the nucleus from which the
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property in question may have been acquired, the burden shifts to
the party alleging self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint family property.
The important thing to consider is the income which the nucleus
yields. A building in the occupation of the members of a family and
yielding no income could not be a nucleus out of which acquisitions
could be made, even though it might be of considerable value. On
the other hand, a running business in which the capital invested is
comparatively small might conceivably produce substantial income,
which may well from the foundations of the subsequent
acquisitions. These are not abstract questions of law, but questions
of fact to be determined on the evidence in the case. This is what
the Apex Court has held in Srinivas Krishnarao Kango v. Narayan
Devji Kango and others, reported in AIR 1954 SC 379 (Para 10).
10. In the decision of the Apex Court in the case of Achuthan
Nair v. Chinnammu Amma and others, reported in
AIR 1966 SC 411, it has been held in para 7 that under Hindu law,
when a property stands in the name of a member of a joint family, it
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is incumbent upon those asserting that it is a joint family property to
establish it. When it is proved or admitted that a family possessed
sufficient nucleus with the aid of which the member might have
made the acquisition, the law raises a presumption that it is a joint
family property and the onus is shifted to the individual member to
establish that the property was acquired by him without the aid of
the said nucleus.
11. Keeping in view the aforesaid law laid down and turning to
the facts of the present case, it has to be accepted that the plaintiffs
have established their ownership over the suit property on the basis
of the sale-deed at Exhibit 65, which stands exclusively in their
name. The plaintiffs, who have come forward with this plea, have
discharged the burden, and the defendants, who are coming before
the Court with a case that the suit property was acquired with the
aid of nucleus of the joint family property, have to lead evidence
and prove the relevant facts, viz. that the suit property was
purchased out of the income, which was derived by Laxmibai by
way of sale of the land Survey No.12/2 to Namdeo Surve, and that
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the said property was an ancestral property in her hands.
12. The plaintiff No.2, the adopted son of Laxmibai, has
entered the witness-box. He has stated that on his day of adoption,
i.e. 9-5-1952, Laxmibai was staying at Pangarkhed, and at that time,
she had 18 acres of land at Pangarkhed. The defendants have not
brought on record any evidence to show that the land of 18 acres at
Pangarkhed in the hands of Laxmibai was an ancestral or joint
family property and that the said land was sold by Laxmibai at any
point of time during her life-time. It is not the evidence brought on
record by the defendants that apart from the land at Pangarkhed,
Laxmibai had any other land at any other place, muchless at
Belgaon. Undisputedly, on 9-6-1965, both the plaintiffs along
Laxmibai sold the land Survey No.12/2, situated at Belgaon to
Namdeo Surve. There is no evidence on record as to when was this
land Survey No.12/2 purchased jointly by the plaintiffs and
Laxmibai. It is not the evidence on record that this land was
purchased out of the sale proceeds of the land at Pangarkhed, if it
was sold.
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13. Thus, there is absolutely no evidence brought on record to
establish that there existed some joint family property in the hands
of Laxmibai on the date of purchase of the suit property or that the
suit property was purchased out of the nucleus of the joint family
property or that the sale proceeds of land Survey No.12/2 were
utilized/given by Laxmibai for purchase of suit property at
Exhibit 65. Merely because the plaintiffs have executed a deed of
settlement at Exhibit 66 for maintenance of Laxmibai on the same
day, i.e. 9-5-1965, it would not follow that the plaintiffs had
purchased the suit property with the aid of the funds provided by
Laxmibai and in consideration of that, the deed of settlement was
executed. The substantial questions of law are answered
accordingly.
14. Relying upon the decision of the Apex Court in the case of
Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, reported
in AIR 1968 SC 1413, and inviting my attention to the provisions of
Sections 103 and 114(g) of the Evidence Act, 1872, it is urged by
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Shri Khapre, the learned counsel for the appellant-defendants, that
the defendants are the purchasers of the suit property from
Laxmibai, who died prior to filing of suit, and the defendants were
not the members of her family, but are the strangers. The plaintiffs
being in possession of the information as to the nature of property in
the hands of Laxmibai and the sources of her income, the burden
shall be upon them to bring on record such facts.
15. The decision of the Apex Court in Gopal Krishnaji
Ketkar's would not be of much help to Shri Khapre for the
appellant-defendants. In the said decision, the question involved
was whether the land comprised in Survey Plot No.134 was the
property of Dargah or whether it belonged to the appellant. One of
the factors to be considered was of the income from Durgah and
production of accounts of income by the appellant would have
shown the element of his ownership over the said plot. The
appellant failed to produce either his own accounts or the accounts
of Durgah to show the income on the specious plea that it was no
part of the appellant's duty to produce the accounts unless he was
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called upon to do so and the onus was upon the respondents to
prove the case and to show that the Durgah was the owner of Plot
No.134. The Apex Court held in para 5 as under :
"5. ... We are unable to accept this argument as
correct. Even if the burden of proof does not lie on a
party the Court may draw an adverse inference if he
withholds important documents in his possession which
can throw light on the facts at issue. It is not, in our
opinion, a sound practice for those desiring to rely upon a
certain state of facts to withhold from the Court the best
evidence which is in their possession which could throw
light upon the issues in controversy and to rely upon the
abstract doctrine of onus of proof."
16. Section 114 of the Indian Evidence Act, relied upon by
Shri Khapre for the appellant-defendants, read with the illustration
as to clause (g), is reproduced below :
"114. Court may presume existence of certain facts.--
The Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the
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common course of natural events, human conduct and
public and private business, in their relation to the facts of
the particular case.
Illustration
The Court may presume--
(g) That evidence which could be and is not
produced would, if produced, be unfavourable to the
person who withholds it.
As to illustration (g)--A man refused to produce a
document which would bear on a contract of small
importance on which he is sued, but which might also
injure the feelings and reputation of his family."
The illustration speaks about the production of evidence and it does
not pertain to supply of information within the personal knowledge
of the party to the litigation. The decision in Gopal Krishnaji
Ketkar's case also deals with non-production of documentary
evidence and it does not deal with non-disclosure of information,
which is within the personal knowledge of the party to the
litigation. The decision cited, therefore, is not applicable to the
facts of the present case.
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17. The plaintiff No.2 supposed to be in the knowledge on
the nature of property in the hands of Laxmibai and the source of
her income. Section 106 of the Evidence Act states that when any
fact is specially within the knowledge of any person, the burden of
proving that fact is upon him. Order XI, Rule 1 of the Code of
Civil Procedure deals with discovery by interrogatories, and it is
reproduced below :
"Order XI, Rule 1 - Discovery by interrogatories.-- In
any suit the plaintiff or defendant by leave of the Court
may deliver interrogatories in writing for the
examination of the opposite parties or any one or more
of such parties, and such interrogatories when
delivered shall have a note at the foot thereof stating
which of such interrogatories each of such persons is
required to answer:
Provided that no party shall deliver more than
one set of interrogatories to the same party without an
order for that purpose:
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Provided also that interrogatories which do not
relate to any matters in question in the suit shall be
deemed irrelevant, notwithstanding that they might be
admissible on the oral cross-examination of a
witness."
The main object of interrogatories is to enable a party to obtain
from his adversary, the information as to facts which relate to the
matters in question. This helps in reducing the burden in respect
the facts which are within the special knowledge of adversary. The
another source of obtaining such information is the
cross-examination of party having special knowledge of such
information. It is possible that the person or party having
knowledge of such information avoids in cross-examination to part
with it and that will show the conscious withholding of
information, requiring the Court to draw an adverse inference
against such person or party. Drawing of an adverse inference is a
matter of discretion, which has to be exercised in the facts and
circumstances of the case. In the absence of such conscious
withholding of information, it may not be proper for the Court to
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draw an adverse information.
18. The defendants have not invoked the provision of
Order XI, Rule 1 of the Code of Civil Procedure to tender
interrogatories to the plaintiffs to seek information as to the facts
which related to the matter in question. The plaintiff No.2 has
entered the witness-box and was subjected to cross-examination by
the defendants. The entire cross-examination of this witness
nowhere discloses any efforts on the part of the defendants to elicit
the information about the nature of the property in the hands of
Laxmibai and the source of her income to purchase the property
located at Belgaon jointly with the plaintiffs, which was sold on
9-6-1965, to Namdeo Surve. Had such efforts been made to expose
the conduct of the plaintiff No.2 of hiding or suppressing such
information, it would have become possible for the Court to draw
an adverse inference. In the absence of such efforts being made,
the onus of proof shall not shift upon the plaintiffs. The contention
of Shri Khapre for drawing of an adverse inference is, therefore,
rejected.
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As to substantial question of law at Serial No.(ii)
dated 16-6-2016 :
19. Undisputedly, the plaintiffs had transferred the suit
property to Laxmibai under the registered settlement-deed
dated 9-5-1965 at Exhibit 66 upon the terms and conditions
enumerated therein, which include the condition of creating a life
interest for maintenance of Laxmibai and she was not
authorized/competent to mortgage or sale the suit property to
anyone. The Courts below have held that such a document is
covered by sub-section (2) of Section 14 of the Hindu Succession
Act, and the contention of Shri Khapre for the appellant-defendants
is that by virtue of sub-section (1) of Section 14 of the said Act, the
limited interest of Laxmibai becomes absolute, once the fact of her
possession over the suit property is established. The learned
counsels appearing for the parties have relied upon several
decisions of the Apex Court in support of their rival submissions.
It is not necessary for me to refer to all such decisions, except - (i)
in the case of Raghubar Singh and others v. Gulab Singh and
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others, reported in AIR 1998 SC 2401, and (ii) in the case of
Jupudy Pardha Sarathy v. Pentapati Rama Krishna & Ors.,
reported in 2016(1) ALL MR 434 (S.C.).
20. In the decision of Raghubar Singh's case, cited supra,
the Apex Court has traced out the history of bringing into force the
provisions of Section 14 of the Hindu Succession Act. In para 13,
the Apex Court was considering the obligations of a Hindu husband
towards the maintenance of his wife during his life-time and after
his death. Paras 14 to 16 of the said decision being relevant, are
reproduced below :
"14. According to the old Shastric Hindu Law,
marriage between two Hindus is a sacrament - a
religious ceremony which results in a sacred and a
holy union of man and wife by virtue of which the wife
becomes a part and parcel of the body of the husband.
She is, therefore, called Ardhangani. It is on account
of this status of a Hindu wife, under the Shastric Hindu
law, that a husband was held to be under a personal
obligation to maintain his wife and where he dies,
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possessed of properties, then his widow was entitled,
as of right, to be maintained out of those properties.
The right of a Hindu widow to be maintained out of the
properties of her deceased husband is, thus, a spiritual
and moral right, which flows from the spiritual and
temporal relationship of husband and wife, though the
right is available only so long as the wife continues to
remain chaste and does not remarry."
"15.
ig Mulla in his classic work on "Hindu Law",
14th Edn., dealing with the characteristic of the right
of maintenance of a Hindu wife observes:-
"A wife is entitled to be maintained by her
husband, whether he possesses property or not.
When a man with his eyes open marries a girl
accustomed to a certain style of living, he
undertakes the obligation of maintaining her in
that style. The maintenance of a wife by her
husband is a matter of personal obligation
arising from the very existence of the
relationship, and quite independent of the
possession by the husband of any property,
ancestral or self-acquired."
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Mayne in his Treatise on "Hindu Law and Usage"
11th Edn., while trancing the history and original of
the right of maintenance of a Hindu wife says:-
"The maintenance of a wife by her husband is,
of course, a matter of personal obligation,
which attaches from the moment of marriage."
"16.
ig The obligations, under the Shastric Hindu
Law, to maintain a Hindu widow out of the properties
of her deceased husband received a statutory
recognition with the coming into force of the Hindu
Women's Rights to Property Act, 1937. The law on the
subject was, thereafter, consolidated and codified by
the Hindu Married Women's Right to Separate
Maintenance and Residence Act, 1946 which came
into force on April 23, 1946. The right to maintenance
of the Hindu widow, as a pre-existing right, was thus
recognised by the two statutes referred to above but it
was not created for the first time by any of those
statutes. Her right to maintenance existed under the
Shastric Hindu Law long before statutory enactments
came into force. After the attainment of independence
the need for emancipation of women from fedual
bondage became even more imperative. There was
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growing agitation by Hindu women for enlargement of
their rights as provided by the Shastric Hindu Law in
various spheres. It was at this juncture that the
Parliament stepped in and enacted various statutes
like the Hindu Marriage Act, 1956. The Hindu
Adoption and Maintenance Act, 1956, and The Hindu
Succession Act, 1956 providing for intestate
succession."
21. Though there is no reference to the aforesaid decision
by the Apex Court in the last decision in the case of Jupudy Pardha
Sarathy, cited supra, para 15 of the said decision is relevant, and
hence it is reproduced below :
"15. It is well settled that under the Hindu Law, the
husband has got a personal obligation to maintain his
wife and if he is possessed of properties then his wife is
entitled to a right to be maintained out of such
properties. It is equally well settled that the claim of
Hindu widow to be maintained is not a mere formality
which is to be exercised as a matter of concession,
grace or gratis but is a valuable, spiritual and moral
right. From the judicial pronouncement, the right of a
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widow to be maintained, although does not create a
charge on the property of her husband but certainly the
widow can enforce her right by moving Court and for
passing a decree for maintenance by creating a
charge."
22. The decision of the Apex Court interprets the
provisions of Section 14 of the Hindu Succession Act in the light
of spiritual and moral right of a Hindu widow flowing from
spiritual and temporal relationship of husband and wife. Under the
Shastric Hindu Law, a husband was held to be under personal
obligation to maintain his wife as a result of union of husband and
wife, and if he dies, then his widow is entitled as a matter of right,
to be maintained out of the ancestral or joint family property or the
property of her husband. Such a right of a Hindu widow, can be
described as an 'inherent' or 'pre-existing' right of maintenance.
Sub-section (1) of Section 14 of the Hindu Succession Act applies
to the cases of inherent or pre-existing right of maintenance and in
such cases, the applicability of sub-section (2) therein is excluded.
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23. In the background of the aforesaid position of law, it
will have to be seen in the facts of the present case as to whether
Laxmibai had pre-existing right of maintenance out of the suit
property or it was a right created for the first time by the
settlement-deed dated 9-6-1965 at Exhibit 66. If it is held that it
was a pre-existing right of Laxmibai, then any restrictions put on
her rights under the document at Exhibit 66, would not prevent her
from becoming an absolute owner of the suit property. But if it is
held that she had no pre-existing right, then the deed of settlement
at Exhibit 66 would be one under sub-section (2) of Section 14 of
the said Act and she would not become an absolute owner thereof,
as has been held by the Courts below. In such event,
sub-section (1) of Section 14 of the said Act shall have no
application.
24. Laxmibai could enforce the right of maintenance only
against the ancestral or joint family property, or the property of the
husband, if any, in the hands of the plaintiffs. I have already held
that the defendants have not brought on record any evidence to
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show that the land of 18 acres situated at Pangarkhed in the hands
of Laxmibai was an ancestral or joint family property or the
property of her husband and that the said land was at any point of
time sold by Laxmibai during her life-time. There is no evidence
on record to show that Laxmibai or her husband possessed any
other property at any other place, muchless at Belgaon. Though
there is evidence on record to show that the plaintiffs and Laxmibai
jointly sold the land Survey No.12/2 at Belgaon on 9-6-1965, there
is no evidence on record to indicate the date and the source of fund
available with Laxmibai to jointly purchase this property. The
defendants have also failed to establish that the suit land was
purchased out of the nucleus of the joint family property or that the
sale proceeds of the land Survey No.12/2 were utilized by
Laxmibai for purchase of the suit property at Exhibit 65. In the
absence of existence of aforesaid kind of evidence, it cannot be
said that there was pre-existing right of maintenance of Laxmibai,
which could be enforced against the suit property. The document
at Exhibit 66 was not covered by sub-section (1) of Section 14 of
the Hindu Succession Act. The substantial question of law is,
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therefore, answered accordingly.
25. Shri Khapre, the learned counsel for the
appellant-defendants, has invited my attention to sub-sections (1)
and (3) of Section 20 of the Hindu Adoptions and Maintenance
Act, 1956 along with sub-section (1) of Section 22 therein, to urge
that even if the plaintiff No.2 was the adopted son of Laxmibai, he
was under statutory obligation to maintain her and thus it was
a pre-existing right of maintenance of Laxmibai. He submits that
the settlement-deed dated 9-6-1965 at Exhibit 66 shall, therefore,
be covered by sub-section (1) of Section 14 of the Hindu
Succession Act, 1956.
26. Sub-sections (1) and (3) of Section 20 and
sub-section (1) of Section 22 of the Hindu Adoptions and
Maintenance Act being relevant, are reproduced below :
"20. Maintenance of Children and aged parents.--
(1) Subject to the provisions of this section a Hindu is
bound, during his or her lifetime, to maintain his or her
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legitimate or illegitimate children and his or her aged or
infirm parents.
(3) The obligation of a person to maintain his or her
aged or infirm parent or a daughter who is unmarried
extends in so far s the parent or the unmarried daughter, as
the case may be, is unable to maintain himself or herself
out of his or her own earnings or other property."
(Emphasis supplied).
There cannot be any dispute over the proposition that even the
adopted son carries the same obligation to maintain his aged or
infirm parents, like natural son. However, such right cannot be
equated with the inherent or pre-existing right of maintenance, like
one which exists against the husband arising out of spiritual or
temporal relationship. The right of maintenance of mother against
a son, is not the personal obligation to be enforced against the son.
The obligation upon the son is statutorily created under the
provisions of the Hindu Adoptions and Maintenance Act, and it is
subject to the rider under sub-section (3) of Section 20 of the said
Act that such parents are unable to maintain themselves out of their
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own earnings or other property. Such adjudication has to be by a
Court of competent jurisdiction. If the Court passes a decree for
maintenance, that would only create a charge over the property.
The obligation so created for the first time, shall not convert the
limited or restricted right into one of absolute ownership under
sub-section (1) of Section 14 of the Hindu Succession Act, 1956.
27. Under sub-section (1) of Section 22 of the said Act, the
obligation of the heirs of the deceased Hindu to maintain the
dependents of the deceased is only out of the estate inherited by
him from the deceased. This is a matter of fact, which is required
to be pleaded and proved, and the obligation is not automatic. In
the absence of evidence of existence of such estate, the right of
heirs of the dependents of the deceased shall not survive. The
obligation so created in respect of parents is only during the
life-time without creating any right or interest, as contemplated
under sub-section (1) of Section 14 of the Hindu Succession Act, to
dispose of the property given for maintenance.
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28. In the present case, the plaintiff No.2 has discharged
his obligation to maintain Laxmibai, the adoptive mother, till her
life-time, and the document created at Exhibit 66 created for the
first time on 9-6-1965, making a provision for maintenance of
Laxmibai would not be enough to convert her limited right into one
of the absolute ownership in respect of the suit property, as
contemplated by sub-section (1) of Section 14 of the Hindu
Succession Act. She would not, therefore, become an absolute
owner of the said property, and by virtue of sub-section (2) of
Section 14 of the said Act, the property under Exhibit 66 shall
revert back to the plaintiffs upon her death. The contentions of
Shri Khapre, the learned counsel for the appellant-defendants,
based upon Sections 20 and 22 of the Hindu Adoptions and
Maintenance Act, 1956, are, therefore, rejected.
As to substantial question of law at Serial No.(iv)
dated 16-6-2016 :
29. Shri Khapre, the learned counsel appearing for the
appellant-defendants, pressed into service the provisions of
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Section 115 of the Indian Evidence Act, 1872 in relation to an issue
of estoppel and Section 41 of the Transfer of Property Act, 1882 in
relation to an issue of ostensible ownership. In response to the
contention of the appellant-defendants that the sale-deed
dated 4-6-1974 at Exhibit 74 bears the signature of the plaintiff
No.1 as an attesting witness, who made the representation to the
appellant-defendants to believe that Laxmibai is the real owner of
the suit property, the Trial Court records the finding that no such
interference can be drawn and the appellant-defendants failed to
make any enquiry in respect of the title of Laxmibai over the suit
property, which has been admitted in the cross-examination of the
defendant No.1. The lower Appellate Court concurs with the
finding recorded by the Trial Court and rejects the contention of the
appellant-defendants that the estoppel operated against the
respondent-plaintiffs.
30. The plaintiffs are held to be the real owners of the suit
property. The question is whether the transfer of suit property by
Laxmibai in favour of the defendant Nos.1 and 3 on 4-6-1974 at
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Exhibit 74 is protected under the provisions of Section 41 of the
Transfer of Property Act read with Section 115 of the Evidence
Act. The equitable principle of estoppel contained in Section 115
of the Evidence Act is also one which is contained in Section 41 of
the Transfer of Property Act. Hence, the provisions of Section 115
of the Evidence Act and Section 41 of the Transfer of Property Act
being relevant, are reproduced below :
"115. Estoppel.-- When one person has, by his
declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true
and to act upon such belief, neither he nor his
representative shall be allowed in any suit or
proceeding between himself and such person or his
representative, to deny the truth of that thing."
"41. Transfer by ostensible owner.-- Where, with
the consent, express or implied, of the persons
interested in immovable property, a person is the
ostensible owner of such property and transfers the
same for consideration, the transfer shall not be
voidable on the ground that the transferor was not
authorised to make it: provided that the transferee,
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after taking reasonable care to ascertain that the
transferor had power to make the transfer, has acted in
good faith."
The transfer of property by a person other than the real owner
becomes voidable at the instance of the real owner on the ground
that the transferor had no authority to make it, and, therefore, it is
not binding upon him. Section 41 of the Transfer of Property Act
is aimed at protecting the transfer by an ostensible owner with the
consent - express or implied - of the real owner of the immovable
property for consideration, provided that the transferee, after taking
reasonable care to ascertain that the transferor had power to make
the transfer, has acted in good faith. However, where the real
owner of the property by his own conduct, as per Section 115 of the
Evidence Act, intentionally causes another person, i.e. the
transferee, to believe that the transferor is the true owner or is
authorized by him to transfer the property, it shall not be necessary
for the transferee to make any further enquiry to establish that he
took reasonable care to ascertain that the transferor had power to
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transfer the property.
31. In the decision of the Apex Court in the case of M/s.
Grasin Industries Ltd. and Anr. v. M/s. Agrawal Steel, reported in
2010 AIR SCW 232, cited by Shri Khapre for the
appellant-defendants, the Apex Court has held in para 5 as under :
"5.
ig In our opinion, when a person signs a
document, there is a presumption, unless there is proof
of force or fraud, that he has read the document
properly and understood it and only then he has
affixed his signatures thereon, otherwise no signature
on a document can ever be accepted. In particular,
businessmen, being careful people (since their money
is involved) would have ordinarily read and
understood a document before signing it. Hence, the
presumption would be even stronger in their case. ..."
32. In the decision of the Apex Court in the case of
Dattatraya v. Rangnath Gopalrao Kawathekar, (dead) by his legal
representatives and others, reported in AIR 1971 SC 2548, cited by
Shri Khapre for the appellant-defendants, it was a case where the
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plaintiffs' suit was for possession of the suit properties on the basis
of title by way of registered sale-deed dated January 12, 1952 from
the defendant No.1, the owner of the suit properties. The defendant
No.2, who was the real brother of the defendant No.1 and in
possession of the properties, took the stand that in the partition, the
suit properties fell to his share and his brother, the defendant No.1,
had no right to alienate the same. The plaintiffs pleaded in the
plaint that the second defendant had specifically admitted in the
sale-deed that the suit properties were the exclusive ownership of
his brother and he had no right on the same. The defendant No.2
took the stand in the written statement that the deal in question was
a forgery and he had not executed it.
33. The Apex Court has held in the aforesaid decision that
from the document, it is clear that the second defendant admitted
that the suit properties were of the exclusive ownership of the first
defendant and he had no right in the same. The Apex Court held
that the second defendant after executing that the document is now
trying to resile from the administration made by him with a view to
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take the advantage of the situation in which the plaintiffs were
placed. The Court held that the sale-deed relied upon by the
plaintiffs proved the admission of the second defendant that the suit
properties belonged to his brother and that his brother had sold the
same to the plaintiffs. The Court held that the admission is a piece
of evidence, which proves the title of the defendant No.1 to the suit
properties and it further proves alienation effected by the first
defendant in favour of the plaintiffs.
34. In the decision of the Apex Court in the case of
Mahboob Sahab v. Syed Ismail and others, reported in
AIR 1995 SC 1205, the plaintiffs claimed to be the owners of the
suit property on the basis of the oral gift executed by their father
jointly in their favour and their mother Smt. Chandi, the third
defendant in the suit, in the month of April, 1958. The challenge
was to the sale-deed executed by the father at Exhibit D-1,
dated May 12, 1961, in respect of the said property in favour of the
appellant before the Apex Court. Neither the mother nor the father
examined as witness to prove the gifts said to have been given in
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favour of the plaintiffs. One of the plaintiffs, viz Ibrahim in his
evidence admitted the execution of sale-deed by his father and he
acted as an attesting witness to the sale transaction under
Exhibit D-1. The Apex Court confirmed the decision of the lower
Appellate Court that the oral gift in favour of the plaintiffs was not
established. On the aspect of validity of sale-deed at Exhibit D-1,
the Apex Court held in para 7 of the decision that the plaintiff
Ibrahim had attested Exhibit D-1 when his father conveyed the
lands as an owner. Though the sale was against his interest, he had
not objected to the sale. He, thereby, is estopped by conduct and
record to assail Exhibit D-1 sale or to claim any interest in the
lands.
35. In the decision of the Apex Court in the case of Vimal
Chand Ghevarchand Jain and Ors. v. Ramakant Eknath Jajoo,
reported in AIR 2009 SC (Supp) 1550, cited by Shri Khapre, it was
a suit for possession based on the registered sale-deed executed by
the father of the defendant in favour of the partnership firm. The
defendant himself had signed the deed as a witness. The plaintiff
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became the owner of the suit property on dissolution of the firm
and the possession of it, was given to the father of the defendant as
a licensee after the execution of the sale-deed and the licence fee
was paid by the son by cheque, which was dishonoured. The
question was whether the plaintiff proved his title on the basis of
the registered sale-deed. The Apex Court held that the deed of sale
being a registered one and apparently containing stipulation of
transfer of right, title and interest by the vendor in favour of the
vendee, the onus of proof was upon the defendant to show that the
said deed was, in fact, not executed or otherwise did not reflect the
true nature of transaction. The Apex Court held that evidently,
with a view to avoid confrontation in regard to his signature as an
attesting witness as also that of his father, i.e. the vendor in the said
sale-deed, he did not examine himself and, therefore, an adverse
inference should have been drawn by the Trial Court. It holds that
a heavy burden of proof lay upon the defendant to show that the
transaction was a sham one or the parties did not intend to enter
into any transaction at all.
sa359.01.odt
36. Now coming to the facts of the present case in the light
of the evidence on record and the law laid down by the Apex Court,
the document, which is a sale-deed in question and dated 4-6-1974
at Exhibit 74, need to be seen. It contains a clear recital that the
part of the property sold is owned and possessed by Laxmibai. The
document is registered and it carries a presumption of its
genuineness. It was a specific stand taken in the written statement
by the defendants that the plaintiff No.1 had attested the sale-deed
dated 4-6-1974 at Exhibit 74. The defendant No.1, the purchaser of
the suit property under the sale-deed at Exhibit 74, entered the
witness-box and stated on oath that both the plaintiffs were present
at the time of execution of the sale-deed and the plaintiff No.1
signed it as an attesting witness. There is no cross-examination of
the defendant on this aspect of the matter by the plaintiffs. This
evidence, therefore, has to be accepted as sufficient to shift the
onus upon the plaintiffs for the reason that the plaintiff No.1 is
presumed to know the contents of the document at Exhibit 74
representing the defendants that the suit property is owned and
possessed by Laxmibai and though the sale was against his own
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interest, he does not have any objection for such sale.
37. The plaintiffs do not dispute execution or genuineness
of the sale-deed at Exhibit 74 or even the sale-deeds at Exhibits 76
and 78. In spite of knowing specific stand taken by the defendants
in written statement that the sale-deed dated 4-6-1974 at Exhibit 74
bears the signature of the plaintiff No.1, the plaintiff No.2, who
entered the witness-box, states that he did not meet the plaintiff
No.1 since 1974 and remains silent as to the signature of the
plaintiff No.1 on Exhibit 74 as an attesting witness. The plaintiff
No.2 also does not speak about the execution of sale-deed by
Laxmibai and admits the fact that neither Laxmibai nor plaintiffs
were in possession of the suit property since 1974.
38. In the light of the aforesaid evidence, it was necessary
for the plaintiff No.1 to have entered the witness-box to put the
controversy beyond the pale of doubt by discharging the onus
shifted upon the plaintiffs. Section 114, Illustration (g) of the
Evidence Act regarding presumption of existence of certain facts
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for failure to produce certain evidence, which could be and is not
produced, will have to be invoked. In the present case, the plaintiff
No.1 could have entered the witness-box to deny his signature on
Exhibit 74 as an attesting witness and his presence at the time of
execution of this document. The adverse inference is, therefore,
required to be drawn to hold the presence of the plaintiffs at the
time of execution of document at Exhibit 74 and that it bears the
signature of the plaintiff No.1 as an attesting witness.
39. Shri Mohta, the learned counsel appearing for the
respondent-plaintiffs, has invited my attention to the admission of
the defendant No.1 in his cross-examination that he did not make
any enquiry as to the title of Laxmibai before getting the sale-deed
at Exhibit 74 executed and, therefore, there is
non-compliance of Section 41 of the Transfer of Property Act
because of failure on the part of the defendant No.1 to take
reasonable care to ascertain that the transferor had power to make
transfer. The contention cannot be accepted for the reason that
once the real owners of the suit property have, by their own
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conduct, as per Section 115 of the Evidence Act, intentionally
caused the defendants to believe that the transferor is the true
owner or is authorized by them to transfer the suit property, for
which they had no objection, the transaction at Exhibit 74 in favour
of the defendants has to be presumed as bona fide with the consent
of the plaintiffs and such direct representation by signing as
attesting witness, protects the transaction under Section 41 of the
Transfer of Property Act. It was a sale by ostensible owner,
viz. Laxmibai, with the consent of the real owners, who are the
plaintiffs, for valuable consideration. The substantial question of
law at Serial No.(iv) dated 16-6-2016 is answered accordingly.
As to question of limitation :
40. Shri Khapre, the learned counsel for the
appellant-defendants, submits that the limitation was governed by
Article 59 of the Limitation Act, which prescribes the period of
three years from the date of knowledge of the transaction. He
submits that in the year 1974 itself, the plaintiffs acquired the
knowledge of sale-deed dated 4-6-1974 and the plaintiff No.2 has
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admitted that neither Laxmibai nor plaintiffs were in possession of
the suit property since then. According to him, the period of three
years has to be counted from 4-6-1974 and the suit brought on
11-2-1986 was barred by the law of limitation. He has relied upon
the decisions of the Apex Court in the cases of Noorul Hoda v.
Bibi Raifunnisa, reported in 1996(7) SCC 767, and Abdul Rahim &
Ors. v.
Sk. Abdul Zabar & Ors., reported in
2009(5) Mh.L.J. 701 (S.C.). Shri Khapre, therefore, submits that
the suit should have been dismissed as barred by the law of
limitation.
41. The case of the respondent-plaintiffs is that the
question of limitation is governed by Article 65 of the Limitation
Act, which prescribes the period of twelve years from the date on
which the possession of the defendants becomes adverse.
According to the plaintiffs, even if the date of first sale-deed,
i.e. 4-6-1974 at Exhibit 74, is taken to be the date from which the
limitation is to be counted, the suit filed on 11-2-1986 would be
within a period of twelve years. In support of the case of the
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respondent-plaintiffs on the point of limitation, Shri Mohta, the
learned counsel for the respondent-plaintiffs, has relied upon the
decisions of the Apex Court in the cases of Ghanshyamdas
Vallabhadas Gujrathi v. Brijraman Rasiklal, reported in
1984(2) Bom.C.R. 50, Ameena Bi v. Kuppuswami Naidu and
others, reported in (1993) 2 SCC 405, State of Maharashtra v.
Pravin Jethalal Kamdar (dead) by LRs., reported in
AIR 2000 SC 1099, Ranbir Singh and others v. Kartar Singh and
others, reported in AIR 2003 SC 1858, Prem Singh Ors. v. Birbal
Ors., reported in 2006(6) Bom.C.R. 332, and Anathula Sudhakar v.
P. Buchi Reddy (Dead) by LRs. and others, reported in
(2008) 4 SCC 594.
42. Sub-section (1) of Section 31 of the Specific Relief
Act, 1963 deals with the declaration of cancellation of a written
instrument, and it reads as under :
"31. When cancellation may be ordered.--(1) Any
person against whom a written instrument is void or
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voidable, and who has reasonable apprehension that
such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or
voidable; and the Court may, in its discretion, so
adjudge it and order it to be delivered up and
cancelled."
The filing of suit by any person for cancellation of written
instrument operating against him is discretionary and depends upon
the reasonable apprehension of such person that if such instrument
is left outstanding, it may cause him serious injury. If a written
instrument is void ab initio, a suit for getting such a declaration
from the Court of competent jurisdiction is not required to be filed,
and even if such instrument remains outstanding, a plea that such
instrument is void can be raised anywhere in any proceedings by
way of defence and the bar of limitation to raise such challenge
would not arise. In a suit based on title claiming the relief of
possession, any written instrument putforth in defence considered
to be void, need not be challenged and the limitation for filing such
a suit would be of twelve years from the date when it becomes
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adverse to the plaintiff and it shall be governed by Article 65 of the
Limitation Act. But this is not true in a case where a written
instrument operating against a person is voidable. It has to be
necessarily challenged within a period of limitation of three years,
as prescribed by Article 59 of the Limitation Act and the period of
limitation starts running from the date when such an instrument
first become known to him.
43. The decision of the Apex Court in the case of
MD. Noorul Hoda v. Bibi Raifunnisa and others, reported in
(1996) 7 SCC 767, lays down in very clear and unequivocal terms
the law on this aspect in para 6 of the judgment, the relevant
portion of which is reproduced below :
"6. ... The present Article 59 of the Schedule to the
Act will govern any suit to set aside a decree either on
fraud or any other ground. Therefore, Article 59
would be applicable to any suit to set aside a decree
either on fraud or any other ground. It is true that
Article 59 would be applicable if a person affected is a
party to a decree or an instrument or a contract.
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There is no dispute that Article 59 would apply to set
aside the instrument, decree or contract between the
inter se parties. The question is whether in case of
person claiming title through the party to the decree or
instrument or having knowledge of the instrument or
decree or contract and seeking to avoid the decree by
a specific declaration, whether Article 59 gets
attracted? As stated earlier, Article 59 is a general
provision. In a suit to set aside or cancel an
instrument, a contract or a decree on the ground of
fraud, Article 59 is attracted. The starting point of
limitation is the date of knowledge of the alleged fraud.
When the plaintiff seeks to establish his title to the
property which cannot be established without avoiding
the decree or an instrument that stands as an
insurmountable obstacle in his way which otherwise
binds him, through not a party, the plaintiff necessarily
has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or
rescinded. Section 31 of the Specific Relief Act, 1963
regulates suits for cancellation of an instrument which
lays down that any person against whom a written
instrument is void or voidable and who has a
reasonable apprehension that such instrument, if left
outstanding, may cause him serious injury, can sue to
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have it adjudged void or voidable and the court may in
its discretion so adjudge it and order it to be delivered
or cancelled. It would thus be clear that the word
'person' in Section 31 of the Specific Relief Act is wide
enough to encompass a person seeking derivative title
from his seller. It would, therefore, be clear that if he
seeks avoidance of the instrument, decree or contract
and seeks a declaration to have the decrees set aside
or cancelled he is necessarily bound to lay the suit
within three years from the date when the facts
entitling the plaintiff to have the decree set aside, first
became known to him."
44. The aforesaid decision has been followed by a
Three-Judge Bench of the Apex Court in the case of Abdul Rahim
and others v. Sk. Abdul Zabar and others, reported in
(2009) 6 SCC 160. In para 28 of the said decision, it has been held
as under :
"28. A suit for cancellation of transaction whether
on the ground of being void or voidable would be
governed by Article 59 of the Limitation Act. The suit,
therefore, should have been filed within a period of
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three years from the date of knowledge of the fact that
the transaction which according to the plaintiff was
void or voidable had taken place. The suit having not
been filed within a period of three years, the suit has
rightly been held to be barred by limitation."
The Apex Court thereafter follows the earlier decision in Md.
Noorul Hoda's case, cited supra, and allows the appeal maintaining
the order of the Trial Court dismissing the suit as barred by the law
of limitation prescribed under Article 59 of the Limitation Act.
45. The question as to whether a document/written
instrument is void or voidable, depends upon the nature of such
document and the challenges raised. It has to be decided in the
facts and circumstances of each case. Normally, Article 59 of the
limitation Act is attracted where a suit has been filed by a party to
such an instrument. In case where suit to avoid such instrument is
filed by a person not party to such instrument, the decision in the
case of Md. Noorul Hoda's case, cited supra, lays down a test as to
whether the title to the property can be established without
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avoiding an instrument, which stands as an insurmountable
obstacle in a way which otherwise binds the plaintiff, though not a
party. If answer is in the negative, the limitation for filing a suit to
challenge it shall start running from the date of knowledge of such
instrument to the party challenging it, as prescribed under
Article 59 of the Limitation Act.
46. The burden of proof that the suit filed is within a period
of limitation, is upon the plaintiffs, who have come before the
Court to get the same set aside or cancelled. It is not the case of
plaintiffs that these sale-deeds were obtained from Laxmibai by
practising misrepresentation and/or fraud. The challenge to the
sale-deeds cannot be said to be on the ground of voidness. In the
present case, the sale-deeds at Exhibits 74, 76 and 78 are covered
by Section 41 of the Transfer of Property Act and the transactions
become voidable at the instance of the plaintiffs. It is not the
pleading in the plaint that the plaintiffs filed the suit challenging
the sale-deeds, within a period of three years from the date of their
knowledge about execution of such sale-deeds. This is also not the
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evidence brought on record by the plaintiffs. On the contrary, the
evidence brought on record and the findings recorded in earlier
paras clearly establish the knowledge of the plaintiffs about the
possession of the defendants and the execution of sale-deeds on
4-6-1974, 13-4-1976 and 19-7-1976 itself. These instruments stand
as insurmountable obstacle and binds them. In fact, they have
made a prayer for setting aside these instruments. The limitation is,
therefore, governed by Article 59 of the said Act and the suit
should have been brought within a period of three years, as
contemplated by Article 59 of the Limitation Act, from the date of
knowledge of these sale-deeds to the plaintiffs. The suit filed on
11-2-1986 was, therefore, clearly barred by the law of limitation, as
prescribed under Article 59 of the Limitation Act. The substantial
question of law at Serial No.(iii) dated 16-6-2016 is answered
accordingly.
47. In view of the aforesaid answers to the substantial
questions of law, the suit is required to be dismissed as barred by
the law of limitation. Hence, the appeal is allowed. The judgments
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and orders dated 12-2-1993 passed by the Trial Court in Regular
Civil Suit No.22 of 1986, and dated 31-8-2001 passed by the lower
Appellate Court in Regular Civil Appeal No.40 of 1993, are hereby
quashed and set aside. Regular Civil Suit No.22 of 1986 is
dismissed. No order as to costs.
ig JUDGE.
Lanjewar
sa359.01.odt
CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 16-7-2016
P.D. Lanjewar,
PS to Hon'ble Judge
