Dadarao Raghobaji ... vs Kamlesh Sahadeorao Deole & Anr
2017 Latest Caselaw 519 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                         SECOND APPEAL NO. 291 OF 2003


 1.         Dadarao s/o Raghobaji Deole
            (Dead through L.Rs)

 1A.        Ku. Sarita d/o Dadaraoji Deole,
            aged major.

 1B         Ku. Akla d/o. Dadaraoji Deole,
            aged major

 1C         Mahendra s/o. Dadaraoji Deole,

 2.         Smt. Sunanda w/o. Dadarao Deole,
            aged about 51 years, Occ. Household,

            All r/o. Shendurjana Bazar, Tq. Teosa,
            District - Amravati                 ......                     APPELLANTS
                                                                         Org.Defts.
                                ...VERSUS...

 1.         Kamlesh s/o Sahadeorao Deole,
            aged 20 years, Occ. Student,

 2.         Gajendra Arun Deole,
            Aged about 19 years,

            Both R/o. C/o. Savitgribai Arjun Deole,
            Shendurjana Bazar, Tq. Teosa,
            District-Amravati.              ......                           RESPONDENTS
                                                                            Org.Plffs.
 -------------------------------------------------------------------------------------------
 Shri A.P.Kalmegh,  counsel for appellants.
 Shri N.R.Saboo, counsel for Respondents 
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

th DATE : 7 MARCH, 2017 .

                                                     2             sa291.03.odt

 ORAL JUDGMENT


          1]               In   Special   Civil   Suit   No.   153   of   1992   seeking

declaration that the gift deed dated 27.07.1992 executed by

defendant No.1 in favour of defendant No.2 is null and void

being nominal and fictitious document and for a decree of

possession and permanent injunction restraining the

defendants from interfering with the possession of the

plaintiffs over the suit property, the trial Court by its judgment

and order dated 19.02.1996 passed a decree for refund of

Rs.47, 000/- along with interest against defendants and in

favour of the plaintiffs towards sale consideration. In Regular

Civil Appeal No. 129 of 1996, the lower appellate Court set

aside the decision of the trial Court and the suit is decreed by

granting a declaration that the plaintiffs have established the

ownership over the suit property on the strength of sale deed

dated 08.02.1991 executed by the defendant no.1 in the

name of the plaintiffs. The appellate Court also passed a

decree of possession of the suit property in favour of the

plaintiffs. Hence, this second appeal by the original

defendants.

                                                      3              sa291.03.odt

          2]               On 10.11.2006, this Court admitted the second

appeal on the following substantial questions of law;

(i) Whether the lower appellate Court erred in law in holding that gift deed dated 21.07.1972 executed by the defendant no.1 in favour of defendant no.2 was nominal without the said document being produced on record in the Court?

(ii) Whether the finding record by both the Courts below that the plaintiff has title over the suit property on the strength of the sale deed dated 8.2.1991 in spite of the fact that the suit property was gifted in favour of defendant no.2 by defendant no.1 by registered gift deed dated 21.07.1972, is perverse?

3] The undisputed factual position is that, the

defendant nos. 1 and 2, namely, Deorao Raghobaji Deole

and Smt. Sunanda w/o. Deorao Deole are the husband and

wife. The defendant no.1 was the original owner of the suit

property and he executed registered gift deed dated

27.07.1972 in favour of defendant no.2. Subsequently on

08.02.1991, the defendant no.1 executed registered sale

deed in favour of the plaintiffs in respect of the suit property.

The plaintiff filed Special Civil Suit No. 153 of 1992 for a

decree of possession on the basis of title. A declaration was

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also claimed that gift deed dated 27.07.1972 executed by

defendant no.1 in favour of defendant no. 2 be declared as

null and void being nominal and fictitious document.

4] The trial Court records the finding that the

plaintiffs have failed to establish that the gift deed was a

fictitious and null and void document, but holds that the

plaintiffs have established ownership on the basis of sale

deed dated 08.02.1991. The trial Court, therefore, passes a

decree for refund of sale consideration received by the

defendants from the plaintiffs. The lower appellate Court

records the finding that the plaintiffs have established that the

gift deed dated 27.07.1972 was a nominal document which

was not intended to be acted upon and the plaintiffs have

established their title over the suit property on the basis of

registered sale deed dated 08.02.1991. Hence, the decree

for possession and permanent prohibitory injunction has

been passed.

5] In the facts of this case, even if the finding of the

lower appellant Court that gift deed dated 27.07.1972 was a

nominal document which was not to be acted upon is set

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aside and the gift deed is held to be valid, the second appeal

cannot be allowed unless the claim of the plaintiffs based

upon the registered sale deed dated 08.02.1991 at Exh. 28 is

rejected.

6] Shri Saboo, the learned counsel appearing for

the respondents/plaintiffs has relied upon the provision of

Section 41 of the Transfer of Property Act to urge that the

sale of the property by the defendant No.1 in favour of the

plaintiffs was as an ostensible owner.

Section 41 of the Transfer of Property Act is

reproduced below.

"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, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith".

7] Shri Kalmegh, the learned counsel appearing for

the appellant has urged that there is absolutely no evidence

to show that the plaintiffs had taken reasonable care to

6 sa291.03.odt

ascertain that the transferor had power to make the transfer

and that he had acted in good faith in purchasing the

property. He has relied upon the decision of this Court in the

case of Khushalchand Bhagchand vrs. Trimbak

Ramchandra and others, reported in A.I.R (34) 1947

Bombay 49. He submits that in the absence of evidence in

respect of enquiry by the plaintiffs in the office of

Sub-Registrar regarding title of the defendant no.1 over the

suit property, the plaintiffs shall not be entitled to benefit of

the said provision.

8] It is not in dispute that both the Courts below

have rejected the stand taken by the defendant Nos. 1 and 2

that sale in favour of the plaintiffs on 08.02.1991 at Exh. 28

was a money lending transaction. The defendant Nos. 1 and

2 are the husband and wife. The defendant No.2 who claims

to be the owner on the basis of registered gift deed has

signed the sale deed at Exh.28 as an attesting witness.

Though the defendant No.1 had executed registered gift

deed in favour of defendant no.2, the revenue records were

not changed. Hence, due care was taken to make the

defendant no.2 as an attesting witness to the sale deed at

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Exh.28. The defendant no.2 had full knowledge of the

transaction of sale and it was for a consideration with the

implied consent of the defendant no.2. There is no findings

of the Courts below that the purchase of the suit property by

the plaintiffs is not in good faith. The findings recorded by

the lower appellate Court about the ownership of the plaintiffs

on the basis of the sale deed at Exh. 28 cannot be said to be

perverse.

9] In view of above, the substantial question of law

at Sr.No.1 framed by this Court does not at all arise for

consideration and so far as the substantial question of law at

Sr.No.2 is concerned, it is held that the findings recorded by

the lower appellate Court cannot be held to be perverse. In

the result, the second appeal is dismissed. No orders as to

costs.

JUDGE

Rvjalit