Bombay High Court
Narmadabai Rambhau Abuj Lrs ... vs Ramprasad Laxman Ajabe on 11 April, 2017
Bench: S.P. Deshmukh
{1} sa34-17
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.34 OF 2017
1. Narmadabai w/o Rambhau Abuj APPELLANTS
(Since died through her LRs)
1A. Nilawati Shrimant Shinde
Age - 64 years, Occ - Agriculture
R/o Harishchandra Pimpri,
Taluka - Wadwani, District - Beed
1B. Pandit Rambhau Abuj
Age - 59 years, Occ - Agriculture
R/o Rajegaon, Taluka - Majalgaon
District - Beed
1C. Mandodhari Ramchandra Kachre,
Age - 52 years, Occ - Agriculture
R/o Rajegaon, Taluka - Majalgaon
District - Beed
1D. Kushawarta Chandrakant Yadav
Age - 46 years, Occ - Agriculture
R/o Selu, Taluka - Georai,
District - Beed
2. Champabai Dhondiram Bapmare
Age - 64 years, Occ - Agriculture
R/o Mangrul, Taluka - Majalgaon,
District - Beed
VERSUS
Ramprasad s/o Laxman Ajabe RESPONDENT
Age - 69 years, Occ - Agriculture
R/o Surdi Najik, Taluka - Majalgaon
District - Beed
.......
Mr. Ravindra M. Deshmukh, Advocate for the appellants
.......
{2} sa34-17
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 11th APRIL, 2017
ORAL JUDGMENT :
1. Heard learned advocate for the appellants at quite some
length.
2. Learned advocate purports to contend that minor's
property had been dealt with by an imposter, executing sale
deed and law as it would show that minor's property without due
permission from district court is inalienable, taking into account
section 8 of the Hindu Minors and Guardianship Act, 1956. Since
sale deed had not been preceded by any such permission, the
same is void and bad in law. No rights can be said to have
accrued to the purchaser. He purports to point out that originally,
suit land belonged to Ganpati - father of minor Natha. Ganpati
died in 1960 leaving behind his wife - Sugandhabai, present
appellant - plaintiff Narmadabai and son Natha. Share of minor
Natha had been shown to have been dealt with under a fraud by
one Sugandhabai, while real Sugandhabai, wife of Ganpati had
never executed sale deed. According to learned advocate, Natha
had been cultivating suit land during his lifetime and after death
of Natha, suit land had been given for cultivation to the
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defendant. However, since 2007-08, defendant denied to give
share to the plaintiff and thereupon inspection of revenue entries
had been taken and it transpired that name of the defendant had
already entered revenue record as owner and possessor of suit
property. In the circumstances, regular civil suit No.138 of 2009
ensued seeking declaration that sale deed executed by
Sugandhabai dated 7th April, 1966 is brought about by fraud and
is not binding on the plaintiff and for perpetual injunction against
the defendant. Learned advocate refers to that the defendant
had denied averments in the plaint, including the genealogy,
contending that the suit is bad for non joinder of parties, as
Vithabai, wife of Natha had not been joined in as party
defendant despite she being alive. It has been further defence
that Natha, during his lifetime, had never challenged sale deed
and it was contended that the suit is barred by the law of
limitation. It was further referred to by the defendant that
regular civil suits No.1 of 1996 and 2 of 1996 were instituted by
present plaintiff in respect of inherited property from Ganpati,
which did not include the suit property.
3. Learned advocate goes on to submit that in any case, the
transaction of 1966 being fraudulent, no title could be said to
have been acquired by the defendant in the same. Admittedly,
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the property being ancestral in nature, plaintiff has right to said
property. The courts hitherto have erroneously dismissed the
claim under the suit of the plaintiff and thus he urges to indulge
into his request to entertain the second appeal.
4. Perusal of the judgments hitherto reveals that indisputably
chronology shows that Ganpati died in 1960, sale deed has been
executed by one Sugandhabai in 1966 and since then revenue
record uninterruptedly shows defendant to be owner in
possession of suit property. Natha died in 1981 and during his
lifetime he had never objected to either the sale deed or for that
matter corresponding revenue entries. It is the case of the
plaintiff - appellant that the property had been given to
defendant for cultivation after death of Natha and that around
2007-08 while defendant refused to give plaintiff her share in the
income from suit property, movement to inspect revenue record
had been made and it transpired that revenue record from long
time subsists in the name of defendant.
5. Trial as well as appellate courts, in the circumstances, have
found the claim made by the plaintiff to property to be baseless
and inconceivable on several grounds. It has been observed by
the courts that suit is outside the period of limitation. The
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appellate court has more particularly dwelt upon that there is no
evidence worth credence given about any fraud being played and
imposter has executed sale deed and has further referred to
subsisting position of law, so far as minor's share in joint family
property is concerned, and appears to have considered that
there is not an absolute embargo in dealing with joint family
property by manager of the family in case of legal necessity etc.
It also appears that Vithabai wife of deceased Natha had been
alive while present proceedings came to be instituted by the
plaintiff and that she had not been made a party.
6. In the circumstances, taking into account aforesaid
position, decisions thus far rendered by two courts do appear to
be flawless and do not leave behind any chasm to create an
opening for a claim by the plaintiff.
7. Having regard to aforesaid, it does not appear that second
appeal carries any substance and the same, as such, stands
dismissed.
[SUNIL P. DESHMUKH, J.]
drp/sa34-17
