Bombay High Court
Shri Rajendra Ganesh Kulkarni vs Shri Prakash Ganesh Kulkarni & Anr on 25 November, 2016
Bench: R.D. Dhanuka
Jt-SA-352-93.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 352 of 1993
Rajendra Ganesh Kulkarni,
age about 32, Resident of
Yelavi, Tal: Tasgaon, ...Appellant
Dist : Sangli. (Orig. Plaintiff)
Versus
1. Prakash Ganesh Kulkarni,
age about 37, Resident of
Yelavi, Tal: Tasgaon,
Dist : Sangli.
The Maharashtra State Co-
2. Operative Bank Limited,
...Respondents
Bombay, Branch Tasgaon,
District : Sangli. (Orig. Defendants)
----------
Mr. Mandar Limaye for the Appellant.
Mr. Umesh R. Mankapure, for the Respondent No. 1.
----------
CORAM : R.D. DHANUKA, J.
RESERVED ON : 17th November 2016
PRONOUNCED ON : 25th November 2016
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JUDGMENT :
1. By this Appeal filed under Section 100 of the Code
of Civil Procedure, 1908, the appellant (original plaintiff) has
impugned the Judgment and Decree dated 19th January 1993
passed by the Learned Joint District Judge, Sangli, dismissing
the Regular Civil Appeal No. 429 of 1987 filed by the appellant
inter alia impugning the Judgment and Decree dated 4th April
1986 passed by the learned Civil Judge, Senior Division, Sangli,
dismissing the Special Civil Suit No. 121 of 1984 inter alia
praying for specific performance and for possession and in the
alternate for the refund of amount of Rs. 38,000/-. Some of the
relevant facts for deciding this Second Appeal are as under :-
2. The appellant herein was the original plaintiff
whereas the respondents herein were the original defendants
before the Trial Court. For the sake of convenience, the status of
the parties described in this Judgment is as per the status before
the Trial Court.
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3. The plaintiff and defendant No. 1 are brothers. It
was the case of the plaintiff that on 30th July 1982, the
defendant No. 1 agreed to sell his half share in the land bearing
Gat No. 2181 situated at Yelavi, Taluka Tasgaon, District Sangli
(hereinafter referred to as "the suit property").
4. It was the case of the plaintiff that out of the total
consideration of Rs. 40,000/- under the said Agreement to Sell,
the plaintiff had already paid the amount of Rs. 38,000/- to the
defendant No. 1 prior to the date of execution of the said
Agreement to Sell. It was the case of the plaintiff that the
balance amount of Rs. 2,000/- was payable by the plaintiff to
the defendant No. 1 at the stage of execution of Sale Deed by
the defendant No. 1 in favour of the plaintiff. It was the case of
the plaintiff that since defendant No. 1 avoided to complete the
transaction on one or the other pretext, the plaintiff issued a
notice to the defendant No. 1 on 25th July 1983 through his
Advocate calling upon the defendant No. 1 to complete the
transaction by accepting the balance amount of Rs. 2,000/-. On
31st May 1984, the defendant No. 1 replied to the said notice
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and denied the claim of the plaintiff.
The plaintiff accordingly, filed a Suit (Special Civil
5.
Suit No. 121 of 1984) in the Court of learned Civil Judge, Senior
Division, Sangli inter alia praying for specific performance of the
Agreement to Sell dated 30th July 1982, for possession of the
suit land and in the alternate prayed for refund of the amount of
Rs. 38,000/- against the defendant No. 1.
6. The defendant No. 2 was impleaded as a party
defendant to the Suit by the plaintiff, in view of the fact that the
defendant No. 1 had borrowed certain amount from defendant
No. 2 and had mortgaged the suit property and the defendant
No. 2 had claimed attachment on the suit property in respect of
the alleged dues of the defendant No. 1.
7. The defendant No. 1 resisted the Suit by filing the
Written Statement on 11th March 1985 and denied that the land
bearing Gat No. 2181 was owned by the plaintiff and defendant
No. 1 jointly. It was alleged by the defendant No. 1 that he was
an exclusive owner of the whole land and the plaintiff was not
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concerned with the same. The defendant No. 1 denied having
executed the Agreement dated 30th July 1982 and also denied
having accepted any amount from the plaintiff under the said
alleged Agreement.
8. It was alleged by the defendant No. 1 that there was
a partition between his father and him in the year 1956 wherein
the land bearing Gat No. 2181 was allotted to his share and he
thus became the exclusive owner of the said land since the date
of partition. The other properties were disposed of by the father
of the plaintiff and the defendant No. 1 namely Ganesh Vishnu
Kulkarni and their mother Indirabai. It was alleged that the
property was disposed of by the plaintiff and the said Indirabai
after the death of father of the plaintiff and defendant No. 1. It
was the case of the defendant No. 1 that all the family members
had pressurized defendant No. 1 and compelled him to sign the
Agreement to Sell dated 30th July 1982. With a view to avoid
unwarranted complications in the family, the defendant No. 1
was forced to sign the said document.
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9. It was also the case of defendant No. 1 that he had
obtained loan from the defendant No. 2 in his individual
capacity as exclusive owner of the suit land. There was a charge
on the said suit property in respect of the said loan obtained by
the defendant No. 1. It was contended by the defendant No. 1
that it was thus, not possible to complete the alleged transaction
with the plaintiff, in view of the defendant No. 2 also having an
interest in the suit property. It was the case of the defendant No.
1 that the alleged Agreement to Sell was bogus and unenforcible
to the knowledge of the plaintiff and their mother Indirabai.
10. Sometime in the year 1983, the mother of the
plaintiff and the defendant No. 1 i.e. Mrs. Indirabai filed a Suit
(Regular Civil Suit No. 215 of 1983) in the Court of learned
Civil Judge, Junior Division, Tasgaon inter alia praying for
partition of various properties including the suit property. It was
alleged by the mother in the said Suit that the suit property was
also a joint family property and had applied for partition in
respect of the said property also. The defendant No. 1 also
opposed the Suit on the ground that the married sisters of the
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plaintiff and the defendant No. 1 were also involved in the joint
family property and were admittedly, not parties to the alleged
Agreement to Sell and thus, the plaintiff was not entitled to seek
specific performance of the said alleged Agreement to Sell on
this ground also. The defendant No. 1 also denied having
accepted any amount by way of part performance under any
alleged agreement from the plaintiff.
11. The defendant No. 2 Bank also filed a separate
Written Statement and alleged that the defendant No. 1 in his
capacity as a Manager of Joint Family had taken an agricultural
loan of Rs. 17,600/- on 2nd February 1981 and had mortgaged
the land bearing Gat No. 2181 against his dues to the bank. It is
alleged that the plaintiff was not entitled to purchase the suit
land from defendant No. 1. In their alternate plea, the
defendant No. 2 urged that in case of any decree for specific
performance granted in favour of the plaintiff, the charge on the
property should be continued which was in force when the loan
was taken by the defendant No. 1.
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12. Learned Trial Judge formulated seven issues
for adjudication including the issue as to whether the defendant
No. 1 had proved that the Agreement dated 30th July 1982 was
sham and bogus and whether it was proved by the defendant
No. 1 that the said Agreement was got executed from him under
pressure. The plaintiff and the defendant No. 1 led oral and
documentary evidence before the learned Trial Judge. The
learned Trial Judge held that the defendant No. 1 had proved
that the Agreement dated 30th July 1982 was sham and bogus
and the said Agreement was got executed from him under
pressure by the mother and sisters to the plaintiff and defendant
No. 1.
13. The learned Trial Judge held that the plaintiff
had failed to prove that he had paid sum of Rs. 38,000/- to the
defendant No. 1 by way of earnest money and/or part purchase
price. It is held that the plaintiff was not entitled for a decree of
a specific performance of the agreement or separate possession
of the suit land. The learned Trial Judge dismissed the Suit filed
by the plaintiff and also rejected the alternate prayer for refund
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of the amount of Rs. 38,000/-. Being aggrieved by the Judgment
and Decree passed by the learned Trial Judge in the year 1986,
the plaintiff preferred an Appeal (Regular Civil Appeal No. 429
of 1987) in the Court of learned Joint District Judge, Sangli.
14. Learned Joint District Judge formulated three
points for determination including the point, whether the
defendant had proved that the agreement was without
consideration and was result of pressure brought on him. The
learned Joint District Judge, Sangli passed the Judgment and
Decree dated 19th January 1993 and dismissed the said Regular
Civil Appeal No. 429 of 1987. The learned Joint District Judge
held that the defendant had proved that the agreement was
without consideration and was executed as a result of pressure
brought on him. It is held by the learned Joint District Judge
that the Court could not overlook the roll played by the mother
in settling the dispute.
15. Being aggrieved by the said Judgment and
Decree dated 19th January 1993 passed by the learned Joint
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District Judge, Sangli, the plaintiff preferred this Second Appeal
under Section 100 of the Code of Civil Procedure, 1908. This
Court while admitting the Second Appeal on 21st August 1993
formulated the following substantial question of law:-
"2. Whether the said agreement dated 30th July
1982 was vitiated because of "undue influence" as
contemplated by the definition in the contract Act,
and whether the evidence about the duress would
prove in law the existence of undue influence?"
16. Mr. Limaye, the learned Counsel for the
plaintiff invited my attention to the findings recorded by the two
Courts below and would submit that it was the case of the
defendant No. 1 himself in the Written Statement that he was
the exclusive owner of the whole land which was allotted to him
in view of the partition between the father and the plaintiff and
defendant No. 1 in the year 1956. He submits that in the
agreement he made a representation that he was entitled to sell
his half share in the said property to the plaintiff. He submits
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that defendant No. 1 having admitted the execution of the said
Agreement to Sell, the defendant No. 1 could not have disputed
the contents of the said agreement including the factum of
receipt of consideration.
17. It is submitted by the learned Counsel for the
plaintiff that inspite of such plea of the defendant No. 1 claiming
ownership in respect of the entire suit property, the Appellate
Court has dismissed the Suit filed by the plaintiff inter alia
praying for specific performance for the Agreement to Sell on
the ground that the defendant No. 1 was not entitled to the
entire property, but was entitled to the lesser share in the suit
property.
18. It is submitted by the learned Counsel for the
plaintiff that since the defendant No. 1 had alleged pressure and
undue influence on the part of the mother and sisters of the
parties, the onus to prove such alleged pressure and undue
influence was on defendant No. 1, which he failed to prove
before the learned Trial Judge. He submits that the learned Trial
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Judge has rendered findings based on the presumption and
surmises and not based on the evidence led by the parties.
19. In support of his submission, the learned
Counsel for the plaintiff placed reliance on the Judgment of
Supreme Court in case of Meenakshiammal (Dead) Through
LRs. And Others Vs. Chandrasekaran and Another1 and in
particular paragraph 20 thereof.
20. Learned Counsel for the plaintiff also invited
my attention to the Judgment and Decree passed by the learned
Third Additional District Judge, Sangli in Regular Civil Appeal
No. 70 of 1989, which was filed by the mother Indirabai Ganesh
Kulkarni against the plaintiff, defendant No. 1, three sisters of
the plaintiff and also against the defendant No. 2. The said
Appeal was arising out of the Judgment and Decree passed by
the learned Civil Judge, Junior Division in Regular Civil Suit No.
216 of 1985 dated 20th December 1988 dismissing the Suit filed
by the mother against those parties for partition and possession
of her share. He submits that the learned Third Additional
1. (2005)1 SCC 280
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District Judge, Sangli allowed the said Appeal filed by the
mother and declared that the mother, plaintiff herein and
defendant No. 1 each had 7/24th share in the suit properties
and each of the sisters were entitled to 1/24th share in the suit
properties. It is held that the mother and the plaintiff herein
were entitled to partition and separate possession of their
respective shares in the suit properties. It is held that the
defendant No. 1 herein was entitled to recover the amount of
his 7/24th share from the total consideration amount of sale of
land bearing Gat No. 2197, on payment of requisite Court fees.
21. The learned Counsel for the plaintiff also
invited my attention to the order dated 29th February 1996
passed by this Court in Second Appeal No. 428 of 1995
preferred by the defendant No. 1 herein against the said
Judgment and Decree dated 22nd November 1994 allowing the
Appeal filed by the mother. He submits that this Court has
dimissed the Second Appeal filed by the defendant No. 1 herein
and has confirmed the Judgment and Decree passed by the
Third Additional District Judge on 22nd November 1994
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allowing the Appeal filed by the mother wherein the Court had
held that the mother, defendant No. 1 and the plaintiff were
each entitled to 7/24th share in respect of the entire suit
properties including the suit property herein. He submits that
though in the partition Suit filed by the mother, the share of the
defendant No. 1 is crystallized as 7/24 in the entire property
including the suit property herein, the learned Trial Judge ought
to have passed the Decree in favour of the plaintiff for specific
performance and for possession at least to the extent of 7/24th
share which the defendant No. 1 became entitled to under the
said Decree passed in the said partition Suit.
22. It is submitted by the learned Counsel for the
plaintiff that findings recorded by the two Courts below being
perverse can be interfered by this Court under Section 100 of
the Code of Civil Procedure, 1908.
23. Mr. Mankapure, the learned Counsel for
defendant No. 1 on the other hand, invited my attention to the
findings of the fact recorded by the two Courts below while
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dismissing the Suit for specific performance filed by the plaintiff
and would submit that the findings of fact being concurrent
findings and not being perverse cannot be interfered with by
this Court in the Second Appeal filed under Section 100 of the
Code of Civil Procedure, 1908. He submits that there was no
dispute that the plaintiff and defendant No. 1 were real
brothers. The plaintiff was fully aware of the share of the
defendant No. 1 in the suit property. He submits that in the
partition Suit filed by the mother of the plaintiff and defendant
No. 1, the plaintiff was also a party defendant and had filed a
Written Statement supporting the case of the mother.
24. It is submitted that it was the case of the
mother that there was no partition of the joint Hindu family
property including the suit property herein and accordingly, she
had applied for partition and separate possession. He submits
that it was the case of the mother in the said Suit that the
agreement entered into between the plaintiff and the defendant
No. 1 was not binding on the mother. He submits that it was not
the case of the plaintiff in the said Written Statement filed by
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him in the partition Suit that the Suit filed by the mother was
not maintainable on the ground that the partition in respect of
the joint family properties including the suit property had
already taken place and that the defendant No. 1 was allotted
the entire plot bearing Gat No. 2181.
25. It is submitted that though in the Written
Statement filed by the plaintiff in the said Suit, the plaintiff
brought on record that the defendant No. 1 had entered into an
Agreement to Sell in favour of the plaintiff in respect of the
property which is the subject matter of the Suit, the learned
Trial Judge did not accept the plea of the plaintiff. He submits
that the plaintiff admittedly did not challenge the Judgment and
Decree passed by the learned Third Additional District Judge in
Regular Civil Appeal No. 70 of 1989, wherein it was held that
the mother, the plaintiff and the defendant No. 1 each were
entitled to 7/24th share in the property which were the subject
matter of that Suit which included the land bearing Gat No.
2181. He submits that the plaintiff who had colluded with the
mother in the said Suit and did not dispute the plea of the
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mother contending that there was no partition of the suit
properties including the property in this Suit could not raise the
plea that the defendant No. 1 was exclusive owner of the land
bearing Gat No. 2181.
26. It is submitted by the learned Counsel for the
defendant No. 1 that it was an admitted position that the
relation of the mother and sisters of the plaintiff were strained
with the defendant No. 1. He submits that the defendant No. 1
had proved beyond reasonable doubt before the learned Trial
Judge that the mother and sisters of the plaintiff and defendant
No. 1 had pressurized and there was undue influence upon the
defendant No. 1 by them for execution of the Agreement to Sell
by the defendant No. 1 in favour of the plaintiff though the
mother herself had filed the Suit for partition. He submits that
both the Courts below have considered these issues in detail in
the Judgment and Decree which do not require any interference
by this Court.
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distinguished the Judgment cited by the learned Counsel for the
plaintiff and submits that the said Judgment does not assist the
case of the plaintiff. Since the defendant No. 1 had proved that
the Agreement to Sell was bad in law, in view of the pressure
and undue influence upon the defendant No. 1 by the mother
and sisters of the plaintiff and defendant No. 1, the entire
transaction between the plaintiff and the defendant No. 1 was
illegal and not binding on the defendant No. 1.
REASONS AND CONCLUSIONS
There is no dispute that the plaintiff and
28.
defendant No. 1 are brothers. There is no dispute that the
mother of the plaintiff and defendant No. 1 had filed a suit
interalia praying for partition of the larger properties including
the suit property in which suit the plaintiff as well as the
defendant No. 1 were also party defendants. The plaintiff and
defendant No. 1 had filed separate written statement in the said
suit. It was the case of the mother in the said suit that none of
the properties which were subject matter of the said suit
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including the property which is subject matter of this suit were
partitioned and the agreement entered into between the plaintiff
and defendant No. 1 was not binding on the mother. The
plaintiff did not contest the averments made by the mother in
the said suit though had averred that there was an agreement to
sell entered into between the plaintiff and the defendant No. 1
in respect of the property which is subject matter of this suit
which was also the subject matter of that suit.
29. It is not in dispute that the averments made by
the plaintiff in the said written statement filed in the said
partition suit in respect of the agreement to sell entered into
between the plaintiff and defendant No. 1 herein was not
accepted by the trial court in the said partition suit filed by the
mother. There is no dispute that the first appellate court in the
said partition suit filed by the mother had accepted the plea of
the mother and had held that the plaintiff herein and defendant
No. 1 and mother were each entitled to 7/24th share in respect
of the entire suit property which was subject matter of the said
suit which included the property which is subject matter of this
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suit. Though the defendant No. 1 had filed the second appeal
against the said judgment and decree passed in the said
partition suit, admittedly the plaintiff accepted the said findings
rendered by the first appellate court in the said partition suit
declaring the share of the parties thereto and did not file any
second appeal.
30. In my view there is no substance in the
submission of the learned counsel for the plaintiff that in view of
the said decree passed by the first appellate court in the said
partition suit filed by the mother declaring the share of the
defendant No. 1 at 7/24th, the trial court ought to have passed
a decree for specific performance at least in respect of the said
share of the 7/24th of the defendant No. 1. Admittedly the
plaintiff had not made any averments in the plaint for specific
performance for seeking specific performance of the part of the
property or did not aver that the consideration alleged to have
been paid by the plaintiff to the defendant No. 1 in respect of
the entire property would be the consideration in respect of the
said 7/24th share. In my view the plaintiff thus cannot be
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allowed to raise this plea for the first time across the bar for
seeking specific performance of the agreement to sell in respect
of the share of the defendant No. 1 to the extent of 7/24.
31. Insofar as submission of the learned counsel
for the plaintiff that in view of the averments made by the
defendant No. 1 in the written statement that he was exclusive
owner of the whole land which was alloted to him when
partition took place between the father, the plaintiff and the
defendant No. 1 in the year 1956 and thus the trial court ought
to have passed a decree for specific performance in respect of
the plaintiff in respect of the whole property is concerned, in my
view though the defendant No. 1 has taken such plea in the
written statement, the fact remains that in the partition suit, the
plaintiff himself had taken contrary plea and did not deny the
plea raised by the mother in the partition suit that the entire
property was not partitioned and each of the party thereto were
entitled to certain undivided share in the said properties. In my
view the decree passed in the partition suit in which the plaintiff
and defendant No. 1 were also parties and wherein the property
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which is subject matter of this suit was also the subject matter of
that suit which decree has attained finality would be binding on
the parties. The plaintiff cannot be allowed to raise any issue
contrary to the findings rendered by the court in the said
partition suit between the same parties in view of the said
decree having attained finality and contrary to the averments
made by the parties in the said suit.
32. It was not the case of the plaintiff in the said
written statement filed in the said partition suit filed by the
mother that the said suit was not maintainable on the ground
that the partition in respect of the joint family properties
including the suit properties had already taken place and that
the defendant No. 1 was alloted the entire plot bearing plot
no.2181. I am inclined to accept the submission of the
defendant No. 1 that the plaintiff had colluded with the mother
in the said partition suit and did not dispute the plea of the
mother containing that there was no partition of the suit
properties including the property which is subject matter of the
suit and thus cannot be allowed to take a contrary plea in this
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proceeding.
33. The learned trial judge has rightly held that
the mother had played important role in the settlement of the
dispute between the plaintiff and the defendant No. 1. There
were strained relation between the defendant No. 1 and the
plaintiff, three sisters and the mother. Both the courts in my
view has rightly held that the defendant No. 1 was pressurized
and there was undue influence upon him by mother and three
sisters for execution of the agreement to sell in favour of the
plaintiff though herself had filed a suit for partition. These
findings rendered by the two courts below being concurrent
findings of fact and not being perverse, cannot be entertained by
this court under section 100 of the Code of Civil Procedure,
1908.
34. Be that as it may, in my view the first appellate
court rightly held that the defendant No. 1 being not exclusively
entitled to deal with the property which is subject matter of this
suit and his share in the said property having found only to the
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extent of 7/24th share, no decree for specific performance could
be granted. The plaintiff being the real brother of the defendant
No. 1 and was also claiming the share in the joint family
property which was not partitioned was fully aware of the share
of the defendant No. 1 in the suit property and still entered into
an agreement to sell in respect of the suit property with the
defendant No. 1. These facts clearly indicates that there was a
pressure and undue influence upon the defendant No. 1 from
the mother and the sisters to execute such agreement to sell in
favour of the plaintiff.
35. In my view the findings of fact rendered by the
trial court that the plaintiff had failed to prove that he had paid
a sum of Rs.38,000/- to the defendant No. 1 by way of earnest
money and/or part purchase price is based on the evidence led
by both the parties and being not perverse cannot be interfered
with by this court. Similarly the findings of the learned trial
judge that the defendant No. 1 had proved that the agreement
dated 30th July, 1982 was sham and bogus and was got
executed from him under the pressure of the mother and sisters
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does not warrant any interference.
Insofar as judgment of the Supreme Court in
36.
case of Meenakshiammal (Dead) Through LRs. and Ors.
(supra) relied upon by the learned counsel for the plaintiff is
concerned, Supreme Court in the said judgment had considered
section 63 of the Succession Act, 1925 and has held that When
the Will is alleged to have been executed under undue influence,
the onus of proving undue influence is upon the person making
such allegation and mere presence of motive and opportunity
are not enough. In my view this judgment of Supreme Court
does not assist the case of the plaintiff. Be that as it may,
defendant No. 1 had led evidence to prove that there was an
undue influence and pressure of the mother and three sisters
upon him to execute the agreement to sell in favour of the
plaintiff.
37. Insofar as order passed by this court in Second
Appeal No.428 of 1995 which was preferred by the defendant
No. 1 herein arising out of the judgment and decree passed in
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the partition suit filed by the mother is concerned, in my view
even if the said second appeal filed by the defendant No. 1 came
to be dismissed, at the most it could be contended that the
decree passed by the first appellate court in that said partition
suit declaring that there was no partition of the suit property
between the parties to the said proceedings, had attained
finality. In my view the said judgment and decree passed by the
first appellate court which attained finality would assist the case
of the defendant No. 1 and not the plaintiff. In my view the
second appeal is thus devoid of merits and thus no relief can be
granted in favour of the plaintiff in this appeal.
38. Insofar as substantial question of law
formulated by this court referred to aforesaid is concerned, for
the reason recorded aforesaid, in my view the said agreement
dated 30th July 1982 was vitiated because of the undue
influence contemplated under the definition of the 'Contract Act,
1872' and the evidence about the duress led by the defendant
No. 1 would also prove in law the existence of the undue
influence. The said substantial question of law is accordingly
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answered in affirmative.
I, therefore, pass the following order :-
39.
(a) Second Appeal No. 352 of 1993 is dismissed.
(b) No order as to costs.
[R.D. DHANUKA, J.]
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