Bombay High Court
Eknath Damodhar Zope vs Smt.Kasturabai Pandhari Dandale ... on 31 October, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.239 OF 2004
APPELLANT: Eknath Damodhar Zope, Aged 38 years,
Occu.- Agricultural, Resident of Shirsoli,
Tq. Nandura Distt. Buldana.
-VERSUS-
RESPONDENTS: 1. Smt. Kasturabai w/o Pandhari Dandale
(Deleted as per Court's Order dt. 18-12-09)
2. Manohar Pandhari Dandale, aged about
50 years, Occyu.- Agriculture
Both residents of Kurha (Kakoda), Tq.
Edlabad, Distt. Jalgaon, Khandesh.
3. Ku. Devkabai d/o Pandhari Dandale,
Aged about major, Occu. Agriculture
And household, Resiodent of Wadoda
Panhera, Tq. Malkapur Distt. Buldana.
4. Sau. Kokilabai w/o Vishwambhar
Kharate, Aged about 35 years, Occu.-
Agriculture and household, Resident of
Matonda, Tq. Nandura, Distt. Buldana.
5. Ramesh Pandhari Dandale, aged about
45 years, Occu. Agriculture,
6. Ganesh Pandhari Dandale (Deleted as per
Courts order dated 24-8-2007)
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7. Ajabrao Ramesh Dandale, Aged about
19 years, Occu.- Agriculture,
Nos 5 & 7 residents of Khundala, Tq.
Nandura, Distt. Buldana.
Shri R. L. Khapre, Advocate for the appellant.
Shri Bhushan Dafale Advocate along with Shri P. B. Patil Advocate
for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 28-09-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 31-10-2017
ORAL JUDGMENT :
1. This appeal under Section 100 of the Code of Civil
Procedure, 1908 has been filed by the original defendant no.4 who
is aggrieved by the decree for partition and separate possession of
the suit property passed by the first appellate Court after holding
that he was a bonafide purchaser of land Gat No.270.
2. The respondent Nos.1 to 4 are the original plaintiffs. It
is their case that one Pandhari expired on 20-4-1993. The plaintiff
no.1 was his widow while plaintiff Nos.2 to 4 were their children.
According to the plaintiffs, said Pandhari during his life time
entered into second marriage with one Sushilabai. Said Sushilabai
expired in the year 1978 and the defendant nos.1 and 2 were the
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children from the said marriage. The defendant no.3 was the son
of defendant no.1. The suit properties were ancestral properties
belonging to the joint family. The plaintiffs, therefore, had right in
the same. The defendant no.1 had got executed a document from
said Pandhari in respect of field Gat No.270 and had got that
property transferred in his name. The plaintiffs demanded a share
of the properties and as the same was not granted they filed suit
for partition and separate possession.
3. The defendant nos.1 and 3 filed their written
statement and denied the claim as made. According to them, the
suit property was the self acquired property of Pandhari. The
plaintiff no.1 had filed Regular Civil Suit No.230/1973 against
Pandhari claiming therein that she was his legally wedded wife.
According to them, the plaintiff no.1 in that suit had relied upon
the document of Vyavastha Patra dated 23-4-1944. That suit was
however dismissed. It was then pleaded that Pandhari had
executed a gift deed in favour of defendant no.1 and he had right
to the suit property.
4. During pendency of the suit, the defendant nos. 1 and
3 sold field Gat No.270 in favour of one Eknath Zope. The
plaintiffs therefore amended the plaint and added the subsequent
purchaser as defendant no.4. It was also prayed that the sale deed
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executed by defendant nos.1 and 3 in favour of defendant no.4 in
respect of the field Gat No.270 be set aside as void. The defendant
no.4 filed his written statement and pleaded that he was a
bonafide purchaser of the suit property having purchased the same
vide registered sale deeds dated 18-4-1994. He therefore claimed
right to the suit property on that basis.
5. After the parties led evidence, the trial Court held that
the sale of Gat No.270 in favour of defendant no.4 by the
defendant nos.1 and 3 was void. The sale deed was accordingly set
aside. However, rest of the claim for partition was refused. The
defendant no.4 filed an appeal challenging this decree. The
original plaintiffs filed cross-objection challenging the refusal of
the relief of partition and separate possession.
The appellate Court held that the suit property was
ancestral property and therefore passed a decree for partition and
separate possession. It further held that the sale of the suit
property in favour of the defendant no.4 was hit by principles of lis
pendens. The share of defendant no.1 was directed to be allotted to
the defendant no.4 during partition of the suit property. Being
aggrieved, the original defendant no.4 has filed the present appeal.
6. While admitting the appeal, the following substantial
questions of law were framed:
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(1) Whether the Courts below erred in holding that the
suit property was a joint family property in view of the
fact that there is a gift deed executed in favour of
Ramesh in the year 1970 by Pandhari?
(2) Was it necessary for the Courts below to have
considered that Manohar one of the plaintiffs and
coparcener who was 45 years old on the date of the
suit should have challenged the alienation made by his
father within 3 years of execution of the gift deed?
7. Shri R. L Khapre, learned Counsel for the appellant -
defendant no.4 submitted that as Pandhari executed a gift deed
dated 30-3-1970 in favour of defendant no.1 - Ramesh and this
gift deed not having been challenged, it was clear that Ramesh was
the lawful owner of the suit field. The said property was the self-
acquired property of Pandhari, the same having been purchased by
him exclusively and he was therefore competent to execute the gift
deed. He referred to the earlier suit filed by the present plaintiff
no.1 as well the written statement filed by Pandhari in which
paternity of plaintiff no.2 - Manohar had been denied. It was thus
submitted that the plaintiffs had no right to claim partition in the
suit property. It was then submitted that the suit as filed in the
year 1993 was barred by limitation inasmuch as plaintiff no.2 -
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Manohar ought to have challenged the alienation of the suit
property made by his father - Pandhari within three years of the
execution of the gift deed. Said gift deed not having been
challenged more than twenty three years, the suit was barred by
limitation. According to the learned Counsel, the gift deed being a
registered document, the limitation would start to run from 30-03-
1970 as the plaintiff no.2 had knowledge of the execution of the
said gift deed. Reference was made to the provisions of Article 59
of the Limitation Act, 1963 in that regard. It was thus submitted
that the suit could not have been decreed against defendant no.4
who was a bonafide purchaser of the suit property for value
without notice. In support of his submissions, the learned Counsel
relied upon the decisions in State of W. B. v. The Dalhousie Institute
Society AIR 1970 SC 1778, Soni Lalji Jetha v. Soni Kalidas Devchand
and others AIR 1967 SC 978, and Jagat Ram v. Varinder Prakash
AIR 2006 SC 1786. On the aspect of the suit being barred by
limitation, the learned Counsel placed reliance on the decision in
Abdul Rahim & ors. V Sk. Abdul Zabar & Ors. 2009 (5) Mh.L.J. 701
and Amruta Kaluji Shejul v Vithal Ganpat Wadekar and others 2017
(1) Mh.L.J. 539.
8. On the other hand, Shri B. Dafle, learned Counsel for
the respondent nos.1 and 2 - original plaintiffs supported the
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impugned decree. It was submitted that what was put to challenge
was the alienation of the suit property by defendant no.1 in favour
of defendant no.4. This challenge was raised within limitation
inasmuch as the suit property having been held to be joint family
property, the gift deed executed by defendant no.1 of such joint
family property was null and void. Pandhari expired on 20-04-
1993 and the suit for partition and separate possession was filed
on 1-11-1993. He referred to the prayers made in the plaint to
urge that the reliefs sought were within limitation. The finding
that the suit property was joint family property was a finding of
fact recorded by both the Courts and the same did not call for any
interference. It was further submitted that defendant no.4 was not
a bonafide purchaser of the suit property inasmuch as the suit
property had been purchased after the suit had been filed and
when an order of temporary injunction was operating. The
appellate Court rightly held that the defendant no.4 would be
entitled for the share of defendant no.1 when the property would
be partitioned. In that regard, the learned Counsel placed reliance
on the decisions in Shivappa Mallappa Isapure & Anr. Vs Ganpat
Mallappa Isapure & Ors 2010(2) ALL MR 804, Prem Singh vs
Birbal 2006(5) Mh.L.J. 441, Thamma Venkata Subbamma v.
Thamma Rattamma and others AIR 1987 SC 1775 and Janaki
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Pandyani vs. Ganeshwar Panda and another (2001) 10 SCC 434.
9. I have heard the learned Counsel for the parties at
length and I have also perused the records of the case. Before
considering the substantial questions of law as framed, it is
necessary to note that the original defendant nos.1 and 3 being
aggrieved by the judgment of the first appellate Court in Regular
Civil Appeal No.4/2000 had preferred Second Appeal
No.197/2004. This appeal came to be dismissed in liminie on 19-
7-2004 by passing the following order:
Heard Advocate Shri A. V. Bhide
for the appellant. The findings recorded by
appellate Court are being attacked as
perverse.
The parties have permitted the
Courts to adjudicate upon by dragging the
Court in to arena of speculation of statement
on oath against another. The findings based
on such evidence cannot be attacked as
perverse unless some material fact is held
proved contrary to record. Nothing of this
sort is shown. Thus the effort is to raise a
dispute on the appreciation of evidence.
The finding of facts are final at
first appellate stage. No substantial question
of law is involved. Dismissed."
It is to be noted that the first appellate Court had
passed a decree for partition and separate possession while
holding the appellant herein to be a bonafide purchaser of the suit
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property. The defendant no.4 having purchased the suit property
from defendant nos.1 and 3 has stepped into their shoes. The
findings as regards the suit property being joint family property
and effect of the gift deed dated 30-3-1970 at Exhibit 108
executed by Pandhari in favour of defendant no.1 have thus
attained finality. The aspect that remains for consideration is with
regard to the rights of defendant no.4 who has purchased the suit
properties on 18-4-1994.
10. In the written statement filed by defendant nos.1 and
3 at Exhibit-33, a specific stand was taken that the suit property
was self-acquired property of Pandhari. A further plea was raised
that in view of the earlier adjudication in Regular Civil Suit
No.230/1973, the plaintiff no.1 had no legal right to claim the suit
property from Pandhari. As stated above, Second Appeal
No.197/2004 filed by defendant Nos.1 and 3 came to be dismissed
in liminie. The learned Counsel for the appellants by relying upon
the judgment of the Hon'ble Supreme Court in Bajranglal Shrai
Ruia v. Shashikant N. Ruia and others AIR 2004 SC 2546 sought to
urge that dismissal of the second appeal filed by original defendant
nos.1 and 3 did not preclude entertainment of the present appeal
on merits. There is no difficulty whatsoever in proceeding to
adjudicate the present appeal on merits. However, the fact that
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the challenge raised by defendant nos.1 and 3 to the decree passed
by the appellate Court against them cannot be a factor that can be
totally overlooked. The findings recorded by the first appellate
Court against the defendant nos.1 and 3 have attained finality.
The first appellate Court in paragraphs 18 and 20 of its judgment
has already held that DW 3 Janardhan had admitted that Pandhari
was not having any independent source of income and that Gat
No.270 was purchased from the nucleus provided by the joint
family.
The present appeal has been filed by the defendant
no.4 who is a subsequent purchaser of the suit property from
defendant nos.1 and 3 and he has thus stepped into their shoes. In
his written statement filed at Exhibit-51 it was claimed by the
defendant no.4 that defendant nos.1 and 3 had enjoyed the suit
property since last twenty five years and that he had purchased the
suit properties on 18-4-1994. It was also his case that he was a
bonafide purchaser of the suit property in good faith. This appeal,
therefore, filed at his instance would have to be adjudicated
keeping in mind the finality attained with regard to identical
challenges raised by the defendant nos.1 and 3. In that view of
the matter, substantial question of law no.1 is answered against
the appellant.
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11. Considering the question as to suit being barred by
limitation in view of provisions of Article 59 of the said Act,
according to the appellant the limitation for filing the suit
commenced on 30-03-1970 as the plaintiff no.2 had knowledge of
the execution of the gift deed at Exhibit-108 by Pandhari in favour
of defendant no.1. It is however to be noted that the suit property
has been held to be ancestral property of Pandhari. This finding
recorded by the first appellate Court is on the basis of the material
available on record and there is no other evidence on record to
held that said finding is perverse.
It is well settled that the execution of a gift deed by a
co-parcener in respect of joint family property would be void. This
has been so held in Thamma Venkata (supra) and Shivappa
Malappa Isapuri (supra). On the basis of such void document,
defendant no.1 and 3 did not get any valid title to the suit
property. It continued to remain joint family property. It is thus
clear that on the basis of this gift deed at Exhibit-108, defendant
nos.1 and 3 did not get any valid title to the suit property for the
same to be transferred in favour of the defendant no.4.
12. In Premsingh (supra), it was held that if a document is
void ab initio, a decree for setting aside the same would not be
necessary and such document is non est in the eyes of law and
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therefore a nullity. As held in Amruta Kaluji Shejul (supra), if any
written instrument is put forward in defence but such document is
void, then that document need not be challenged and the
limitation for filing suit for possession based on title would be
twelve years from the date when the possession becomes adverse
to the plaintiff. The limitation would be governed by Article 65 of
the said Act. Once it is found that the suit property was ancestral
in nature, one co-owner cannot hold the same in a manner adverse
to the other co-owner. This has been held in Janki Pandipani
(supra). From the aforesaid position it is clear that the suit
property was ancestral property and therefore the execution of the
gift deed by a coparcener in respect of portion of such property
was void. The gift deed being void ab initio, it was not necessary
to challenge the same specifically and therefore limitation for the
suit would not be governed by Article 59 of the said Act. On this
count also it cannot be held that the suit was barred by limitation.
Substantial question of law No.2 stands answered accordingly.
13. I, therefore, find that the first appellate Court has
rightly passed a decree for partition and separate possession of the
suit property. The finding that defendant no.4 was a bonafide
purchaser has not been challenged by the plaintiffs herein. The
further direction issued is that Gat No.270 be allotted to the share
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of defendant no.1 and in turn to defendant no.4 being the
transferee, the said decree does not call for any interference. As a
result of the aforesaid discussion and in view of the answers given
to the substantial questions of law, the appeal has to fail.
14. Accordingly, the second appeal stands dismissed with
no order as to costs.
JUDGE
/MULEY/
