Shankarrao Amrutrao Kale vs Raghunath Jagoji Shirpurkar
2017 Latest Caselaw 4378 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.


                                              SECOND APPEAL NO.148 OF 2012


               APPELLANT:                                              Shankarrao Amrutrao Kale,
               (Ori. Deft)                                             Aged about 55 years, Occ.
                                                                       Agriculturist, R/o Dapori, Tq. Morshi,
                                                      District Amravati.
                                                                                                               
                                                           -VERSUS-

               RESPONDENT:                                             Raghunath Jagoji Shirpurkar, 
               (Ori. Plff)                                             Aged about 50 years, Occ.
                                                                       Agriculturist, R/o Dapori, Tq. Morshi,
                                                                       District Amravati.

                                                                                                                       

              Shri P. R. Agrawal, Advocate for the appellant.
              Shri N. R. Saboo, Advocate for the respondent.


                                                  CORAM: A.S. CHANDURKAR, J.

DATED: 12 JULY, 2017.

th

ORAL JUDGMENT :

1. The present second appeal has been heard on the

following substantial question of law:

Whether findings of both the courts below that the suit land in the hands of the defendant was his self acquired property although it has been

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brought on record that the property was originally owned by his ancestors and it was received by him in partition is correct? If yes, whether a decree for specific performance in respect of the suit property in which the other members of the joint family have shares, could have been passed ?

2. The appellant is the original defendant who is

aggrieved by the decree for specific performance passed by the

trial Court which decree has been affirmed by the appellate Court.

It is the case of the respondent - plaintiff that the appellant -

defendant was the owner of field Survey No.36/3 - 36/1

admeasuring 2 Hectares 30R. On 17-9-1997, the defendant agreed

to sell 1 Hectare 21 R land to the plaintiff for a total consideration

of Rs.1,05,000/-. The amount of Rs.60,000/- was paid as part

consideration and it was agreed that the sale deed will be executed

by 10-6-1998. Though the plaintiff was ready and willing to

perform his part of the agreement, the defendant avoided to

execute the sale deed. Hence, the suit for specific performance

came to be filed on 24-7-1998.

3. The defendant in his written statement denied the

agreement. According to him, the document in question was a

forged document and as the plaintiff had borrowed sum of

Rs.l0,000/- from the defendant said document was got executed. It

was further pleaded that the suit property was ancestral property

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and his other family members had share therein. It was also

pleaded that the defendant was addicted to various vices.

4. The trial Court on consideration of the evidence on

record held the agreement to be duly proved. It further held that

the plaintiff was ready to perform his part of the agreement. It

was also held that the defendant was competent to alienate the

suit property. The appellate Court after reconsidering the evidence

on record dismissed the appeal filed by the defendant.

5. Shri P. R. Agrawal, learned Counsel for the appellant

submitted that as per the document at Exhibit-36 dated 29-2-1936,

the appellant's grandfather had purchased the suit property. The

appellant had succeeded to the same after the death of his father

and therefore, all members of his family had a share in the same.

According to him, the defendant alone did not have any right to

enter into said agreement as the other coparceners of his branch

had a share therein. In that regard he placed reliance on the

decision in Smt. Dipo v. Wassan Singh and others AIR 1983

Supreme Court 846, Rohit Chauhan v. Surinder Singh and Ors. AIR

2013 SC 3225, Ashwinkumar Manilal Shah and others v.

Chhotabhai Jethabai Patel and others AIR 2001 Gujarat 90,

Balmukand v. Kamla Wati and others AIR 1964 SC 1385 and

Dharmarao Sidhappa Shetgar v. Gopal Shriniwas Shirsikar and Ors

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AIR 2006 Bombay 228. He submitted that the finding recorded

against issue No.4 by the trial Court and confirmed by the

appellate Court was incorrect. He then submitted that the plaintiff

without making any necessary enquiries and only on the basis of

7/12 extract dated 12-6-1998 - Exhibit-27 entered into the

agreement. The defense that the transaction was a money lending

transaction was fortified by this fact. It was then submitted that

there was no evidence with regard to legal necessity on the part of

the defendant to alienate the suit property. According to the

learned Counsel only on the basis of the stray admission in the

cross-examination that the defendant had received the suit

property in partition his case had been disbelieved. According to

him, such stray admission could not have been relied upon. He

relied on the decision in Chikkam Koteswara Rao v. Chikkam

Subbarao and others AIR 1971 Supreme Court 1542 and judgment

of learned Single Judge in Sameersingh Sureshsingh Suryawanshi v.

Savita Sameersingh Suryawanshi 2008(1) Mh.L.J. 13. In the

alternate, it was submitted that the decree as passed would only

bind the share of the defendant and not other family members.

6. Shri N. R. Saboo, learned Counsel for the respondent

supported the impugned judgment. According to him, the

agreement dated 17-9-1997 has been held to be proved by both

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the Courts. The defendant had clearly admitted that he had

received the suit property in partition and that the remaining land

of 18R was also sold during pendency of the appeal. According to

him, if the defendant received the land in partition, he was

competent to transfer the same. He then submitted that the

alleged compromise of the suit filed by the other family members

of the defendant against him was not binding on the plaintiff. It

only showed that the defendant intended to avoid the decree of

specific performance in any manner whosoever. The learned

Counsel placed reliance on the decision in Uttam v Saubhag Singh

and others (2016) 4 Supreme Court Cases 68.

7. I have heard the learned Counsel for the parties at

length and have perused the records of the case. It is not in

dispute that the suit property was initially purchased by the

appellant's grandfather on 29-2-1936 (Exhibit-36). The agreement

dated 17-9-1997 (Exhibit-26) has been held to have been proved

by both the Courts. The defence as raised with regard to the

document being executed as a money lending transaction has not

been accepted by both the Courts. The finding in that regard

being based on the evidence available on record, the same

deserves to be accepted.

8. As regards competence of the defendant to enter into

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the agreement and alienate the suit property, it is to be seen that

the entire land was purchased by the defendant's grandfather and

the defendant succeeded to the same. The defendant came up with

the defence that he was addicted to vices and hence, had taken

loan of Rs.10,000/- from the plaintiff. This defence has not been

proved inasmuch as the defendant admitted that not a single case

either under the Bombay Prohibition Act or the Bombay Prevention

of Gambling Act was filed against him. In his cross-examination,

he has categorically stated "I have become the owner of the suit

field as I received the same in partition". According to the learned

Counsel for the defendant this was a stray admission in his cross-

examination and it could not have been relied upon. In Chikkam

Koteswara Rao (supra), it was held that before the right of a party

is sought to be defeated on the basis of alleged admission, such

statement should be clear and conclusive. There should not be any

doubt or ambiguity about such admission. The plea that this

admission of the defendant was a stray admission has not been

raised before the first appellate Court. It is also to be noted that as

per the provisions of Section 137 of the Evidence Act, it was open

to have the re-examination of the defendant for clarifying the

alleged ambiguity in his cross-examination. As observed in

Rammio alias Rameshwar Vs. State of Madhya Pradesh, AIR 1999

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SC 3544 any explanation required of any matter referred to in

cross-examination can be sought in re-examination. This

opportunity was not availed. If according to the defendant he had

received the suit property in partition then he was clearly

competent to transfer the same by entering into an agreement. It

is noticed that as per the 7/12 Extract (Exhibit-27) it is only the

name of the defendant which is shown as the owner of the suit

land. On consideration of the entire material on record, this

admission cannot be treated as a stray admission. In this backdrop,

the ratio of the decision in Sameersingh (supra) cannot assist the

case of the defendant.

9. It is also to be noted that during pendency of the

proceedings the wife and children of the defendant had filed suit

for partition and separate of the aforesaid property being Regular

Civil Suit No.1/2006. Though the original plaintiff was added as

defendant no.2 therein, the proceedings were compromised

between the family members of the defendant on one side and the

defendant on the other. The admission of the defendant in these

proceedings that the other family members had a share cannot

bind the plaintiff as he was not a party to the said compromise.

The aforesaid merely reflects the intent of the defendant to defeat

the agreement in any manner.

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10. In so far as the legal position that the coparceners had

a right in the property of the father as sought to be urged by the

defendant by relying upon the decisions in Smt. Dipo and Rohit

Chauhan (supra) is concerned, said legal position is not in dispute.

However, when it is seen that the defendant has admitted that he

had received the suit property in partition, it is not necessary in the

facts of the present case to go into said aspect. Moreover, as

observed by the appellate Court the defendant during pendency of

the appeal had sold away remaining portion of the suit field.

Hence, the other decisions relied upon on the aspect of legal

necessity to alienate the property do not assist the case of the

appellant.

11. Hence, on consideration of the entire evidence on

record, the substantial question of law is answered against the

appellant. The decree passed by the trial Court, therefore, stands

confirmed. The second appeal is accordingly dismissed with no

order as to costs.

12. At this stage, the learned Counsel for the appellant

seeks stay to the execution of the decree for specific performance

for a period of eight weeks. This request is opposed by the learned

Counsel for the respondent. In the facts of the case the execution

of the impugned decree shall remain stayed for a period of eight

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weeks. This direction shall come to an end automatically after the

said period.

JUDGE

//MULEY//