Bombay High Court

Smt.Saralabai Rajendra Konde And ... vs Shamrao Gulabrao Konde And Anr on 2 November, 2017

Bench: V.M. Deshpande

                                            1



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

                        SECOND APPEAL NO. 501/2003


                 1]   Smt. Sarlabai Rajendra Konde

                 2]   Amol s/o Rajendra Konde,
                        aged 30 years,

                 3]    Rahul s/o Rajendra Konde
                         aged 19 years,

                 4]    Sarika d/o Rajendra Konde,
                         

                       All residing at Wdura,
                       Taluka Chandur Bazar
                       District-Amravati.                                    ..  Appellants


                                         -versus-


                 1]   Shamrao Gulabrao Konde

                 2]    Sundarabai wd/o Gulabrao Konde
                  
                       Both R/o Wdura, Taluka Chandur Bazar
                       District-Amravati.                                  ..  Respondents


                         -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                         Shri. J.J.Chandurkar the learned counsel for the appellant
                         =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                CORAM :     V.M. DESHPANDE, J.

                                                DATED  :     NOVEMBER 2, 2017







               ORAL JUDGMENT:


               1]              Heard   Shri   J.J.Chandurkar   the   learned   counsel

for the appellant. Nobody appearing for the respondent.

2] By the present appeal, the legal representatives

of original plaintiff Rajendra are challenging the judgment

and decree passed by learned Jt. Civil Judge Senior

Division Amravati dated 7/8/1987 in Special Civil Suit No.

74/1984 and judgment and decree passed by learned 2 nd

Additional District Judge Amravati dated 20/8/2003 in

Regular Civil Appeal No. 213/2000, by which both the

Courts below dismissed the suit for declaration and

permanent injunction.

3] The present appeal was admitted on 25/3/2004

on following substantial question of law:-

"Whether the tenant is entitled to transfer the tenanted property by Will?"

4] For answering the aforesaid substantial question

of law it would be useful to refer the facts which gives rise

to the present appeal. Rajendra Konde filed a suit for

declaration and permanent injunction. One Natthuji was

having one brother by named Rajaram. Natthuji was

having three sons Deorao, Gulabrao and Sahebrao.

Plaitniff Rajendra is son of Deorao. Gulabrao was issueless.

Sahebrao's son was Balasaheb. In the branch of Rajaram,

Kisanrao was son of Rajaram. His son is Sahebrao

defendant No.1. Gulabrao by registered adoption deed

(Exh. 50) adopted Sahebrao. Defendant No. 2 is

Subhadrabai wd/o Gulabrao. Partition was effected in

between Gulabrao, his wife Subhadrabai and son Shamrao

in respect of the agricultural properties. The said partition

was duly registered in accordance with the law on

16/5/1978 (Exh.60). By virtue of the said registered

partition deed, field survey No. 239 situated at mouza

Shirala of district Amravati, admeasuring 4 H. 53 R was

allotted to the share of Gulabrao. The other agricultural

properties were fallen to the share of Subhadrabai and

Shamrao. This appeal concerns only with field survey No.

239 of mouza Shirala.

5] During his life time Gulabrao executed a Will. It

is dated 29/7/1980. The said Will is also duly registered.

The Will is at Exh. 54 on the record.

6] By this Will, Gulabrao bequeathed field survey

No. 239 at mouza Shirala which was fallen to his share in

partition dated 16/5/1978 to Rajendra his nephew, the

plaintiff. The plaintiff was cultivating the land alongwith

Gulabrao, even during his life time. The crops statements

were also showing the possession of plaintiff Rajendra.

7] The cause for filing the suit for declaration and

injunction was a registered notice (Exh.62) dated

29/5/1984 issued on behalf of defendant No. 1 Shamrao

to Rajendra, making allegations that taking the

disadvantage of bad health of Gulabrao, plaintiff Rajendra

is brought into existence as fabricated Will and on the basis

of which he is claiming ownership over certain properties.

Thus, by filing the suit, plaintiff Rajendra sought

declaration that he became owner of suit field survey No.

239 by virtue of Will executed in his favour on 29/7/1980

by Gulabrao. He also claimed permanent injunction to the

effect that the defendants or any person claiming through

them shall not disturb the peaceful possession and

enjoyment of the suit field. The suit was registered as

Special Civil Suit No. 74/84.

8] On being summoned both the defendants were

filed their separate written statement. The execution of

Will was denied by them. According to them, the Will is

sham, bogus and fraudulently obtained document by the

plaintiff. In addition to the said, it was the defendant's

case that suit field belongs to Harihar Maharaj Deosthan of

Talegaon Thakur and Gulabrao was the tenant of the said

agricultural field and therefore the said field can not be

transferred or disposed of. It was also the case of the

defendants that the partition deed was a nominal

document and it was brought into existence only to save

the joint family property from the operation of Ceiling Act,

therefore, the property is joint family property and

Gulabrao was not having any right to execute a Will in

respect of joint family property and after his death the

defendants being a son and widow succeeded the said

property.

9] On these rival pleadings various issues were

framed by the learned trial Court. The issues alongwith

their findings are reproduced herein below.

Issues Findings

1. Does plaintiff prove that late Gulabrao had partitioned his all properties i.e. movable and immovable by registered partition deed dated 16/5/78 between himself, defendant No.1 and defendant No.2 and in that partition field S.No.239 had fallen to the share of Gulabrao and field S.No.26/2 had fallen to the shareof defendant No.2 and as per the partition deed each sharer had become the exclusive owner of their respective shares? .. Yes.

2. Does defendant prove that partition dated 16/5/1978 was sham and bogus document and same has been brought into to save the property from CeilingAct and therefore does not binding on defendant no.1? .. No.

3. Does defendant No.1 prove that originally field s.no.239 belonged to Harihar Mandir Deosthan and Gulabrao was the tenant of suit field since 1958-59 and he was cultivating the said field as owner thereof till 11/1/1983? .. Yes.

4. Does plaintiff prove that Gulabrao had executed a Will dated 29/7/1980 in his favour and by virtue of the Will he became full owner of field s.no.239 and he is in possession of the same as owner thereof? .. No.

5. Does defendant no.1 prove that the Will dated 29/7/1980 is bogusand sham document and it was fraudulently obtained by the plaintiff by mis-representation,coercion, fraud and therefore plaintiff cannot be closed that with the right of owner over the suit field? .. No.

6. Does plaintiff prove that the defendant no.2 during his life time Gulabrao were cultivating their respective shares with the help of plaintiff? .. No.

7. Does defendant no.1 prove that after the adoption deed dated 8.4.1976 he being the adopted son of Gulabrao was cultivating field s.no.239, 23/1 alongwith his adopted father Gulabrao and he is in possession of the same? .. Yes.

8. Does plaintiff prove that he is in possession of field s.n.23/1on the basis of Mukhtyar patra executed by defendant no.2 in his favour? .. No.

9. Whether the plaintiff is entitled to declaration as claimed? .. No.

10. Is he entitled for injunction as claimed? .. No.

11. Whether the suit is liableto be dismissed with compensatory cost of Rs.500/-? .. No.

12. What order and decree? .. As per final order.

10] The learned trial Court dismissed the suit.

11] Plaintiff Rajendra then filed Regular Civil Appeal

bearing Civil Appeal No. 213/2000 . During the pendency

of the said appeal, original plaintiff Rajendra expired and

therefore the names of the present appellants were brought

on record as his legal representatives.

12] The learned Lower Appellate Court formulated

points. Those points alongwith their findings are

reproduced herein below:-

                               Points                                               Findings

               i.              Whether the plaintiff has proved that there

was partition between Gulabrao, deft.no.1 his adopted son and deft.no.2 Sundarabai his wife in respect of his landed property including the suit property? .. Yes.

ii. Whether the plaintiff hasfurther proved that said Gulabrao has executed registered will deed in his favour and bequeated s.no.239 situated at Shirala to his share? .. Yes.

iii. Whether the plaintiff furtherprove that he has become the owner of the suit property bearing S.No.239 from Shirala by virtue of sale deed? .. No.

iv. Whether the defendant No.1has proved that the partitiondeed was affected just to save the land from Ceiling? .. No.

v. Whether the defendant No.1has proved that the alleged Will deed was obtained by fraud or by mis-representation or using undue influence upon Gulabrao by the plaintiff? .. No.

vi. Whether the plaintiff is entitled for relief of declaration as prayed? .. No.

vii. Whether the plaintiff is entitled for the relief of injunction as prayed? .. No.

viii. Order? .. As per final order

And ultimately the learned Lower Appellate Court

dismissed the appeal.

13] Thus, the present appeal is against the

concurrent judgments of both the Courts below dismissing

the suit.

14] While dismissing the appeal, the learned Lower

Appellate Court was of the view that in view of Section 57

of Bombay Tenancy and Agricultural Land (Vidarbha

Region) Act, 1958, unless sanction is given by the

Collector, there can not be any transfer of the land held by

tenant.

15] Precisely, therefore, this Court while admitting

appeal, formulated substantial question of law which is

mentioned in para 3 of this judgment.

16] Both the Courts below concurrently recorded a

findings of fact that a partition was effected in between

Gulabrao and the defendants, being his son and wife on

16/5/1978 and the field survey No. 239 was fallen to the

share of Gulabrao. Not only that, both the Courts below

concurrently rejected the case of the defendants that said

partition was brought into existence only to save the

agricultural land from the clutches of Ceiling Act. Thus,

both the Courts below disallowed the case of defendants on

the issue that the partition deed was a nominal document.

17] Once it is established that field survey No. 239

was fallen to the share of Gulab, he acquired exclusive

right to dispose of the said agricultural field. Therefore,

Gulabrao was well within his right to execute a Will in

respect of field survey No. 239 of mouza Shirala.

18] The learned Lower Appellate Court specifically

recorded a finding in favour of the plaintiff that Gulabrao

executed a registered Will in his favour, at the same time,

the learned Lower Appellate Court negativated the case of

the defendants that the said Will was brought into

existence by fraud or mis-representation, practicing upon

the Gulabrao by the plaintiff. All these issues were

specifically recorded against the defendant. No appeal is

presented before this Court by the defendants thereby

those two issues has attained the finality.

19] In this backdrop, it has to be seen whether the

Court below were right to non suit the plaintiff on the

ground of Section 57 of Bombay Tenancy And Agricultural

Land (Vidarbha Region) Act, 1958.

20] Record shows that the parties have brought on

record the crops statements for various years and those are

at Exh. 41 to 43 and 49. Those crops statements pertains

to field survey No. 239 of mouza Shirala. Perusal these

crops statements would show that the field is owned by

Harihar Maharaj Deosthan Talegaon Thakur and the name

of Gulabrao is appeared in all these crops statements as

tenant. Further, even in Will (Exh. 54) by which the said

field is bequeathed upon Rajendra has recitals that field

survey No.239 is a tenanted property. Therefore, there can

not be any dispute that the field survey No. 239 which was

given under the Will to Rajendra, was a property of which

executent of Will Gulabrao was tenant.

21] Therefore, now only question is whether

Gulabrao a tenant, was having right to execute Will in

respect of the tenanted property.

22] The learned counsel for the appellant Shri

J.J.Chandurkar invited my attention to the authoritative

pronouncement of Hon'ble Apex Court reported in

2017(2)Mh.L.J. 371 Mahadeo (dead) through L.Rs. vs.

Shakuntalabai and submitted that the issue is not now in

res-integra in view of the law declared by the Hon'ble Apex

Court. With the assistance of the learned counsel for the

appellant, I gone through the said authoritative

pronouncement. The said case also relates to Section 57 of

Bombay Tenancy and Agricultural Land (Vidarbha

Region)Act, 1958. It would be useful to refer paragraphs 7

and 8 of the said decision and those are reproduced herein

below:-

"7. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissble by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal and anr. vs. Kailash Chandra Kapur and ors., (1997) 2 SCC 387, devolution of property by way of a Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.

8. That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S.Rathinam alias Kuppamuthu and ors. vs. L.S.Mariappan and ors., (2007) 6 SCC 724 wherein this Court has held in para 21 that a testator by his Will, may make any disposition of his property subject to the conditions that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. In coming to this conclusion, this Court referred to Beru Ram and others vs. Shankar Dass and others, AIR 1999 J and K 55 ."

23] Thus, it is clear that Rajendra the beneficiary of

Will received the property by way of devolution and not by

transfer. In view of the decision of the Hon'ble Apex Court,

I answered substantial question of law formulated by this

Court in affirmative and records findings that Gulabrao

was entitled to bequeath the tenanted property by Will in

favour of the original plaintiff Rajendra. Consequently, I

allowed this appeal. The judgment and decrees dated

7/8/1987 and 20/8/2003 are quashed and set aside. The

plaintiffs are entitled for declaration as sought for in the

plaint. So also, the defendants/respondents or any other

person claiming through them are hereby permanently