Pritesh Narendra Thakkar And ... vs Pravin S/O. Gwaldas Lakhotia
2017 Latest Caselaw 7085 Bom

921-J-SA-94-16                                                                           1/6


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

                           SECOND APPEAL NO.94 OF 2016



1. Pritesh Narendra Thakkar, 
    Aged about 32 years, 
    Occupation : Business, 
    
2. Tarulata wd/o Narendra Thakkar,
    aged about 50 years, 
    Occupation household work.  

    Both residents of  
    Shrikrishna Complex, 
    Opposite Dashera Maidan, 
    Badnera Road, Amaravati, 
    Tahsil and Dist. Amravati                               ... Appellants. 

-vs- 

Pravin s/o Gwaldas Lakhotia, 
Aged about 30 years, 
Occupation business, 
R/o Rajapeth Amravati, 
Tahsil and Dist. Amravati.                                  ... Respondent.  


Shri M. N. Ahmed, Advocate for appellants. 
Shri S. S. Alaspurkar, Advocate for respondent. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 13, 2017

Oral Judgment :

Notice for final disposal was issued on the following substantial

question of law :

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" Whether the sale deeds at Exhibits-22 and 23 convey title to the respondent or whether they were executed merely for collateral purpose ?"

2. The appellants are the original defendants in a suit for recovery of

possession filed by the respondent. It is the case of the respondent that by

virtue of two sale deeds dated 30/05/2002, flat No.101 was purchased from

one Shri Ravindra Nawathe. The appellant No.2-defendant No.2 was a

consenting party to the sale deeds. The plaintiff permitted the son of

defendant No.2 to occupy the premises on Leave & License basis by executing

an agreement. Initially proceedings under Section 24 of the Maharashtra

Rent Control Act, 1999 were filed. As the issue of title arose, the respondent

filed suit for possession based on the title. In the written statement filed on

behalf of the defendants it was denied that the premises were given in

possession of the defendants on the basis of Leave & License agreement. It

was denied that the plaintiff was the owner of the suit premises. The

defendant No.2 had taken a loan of Rs.3,00,000/- from the plaintiff and

hence by way of security, two cheques for an amount of Rs.1,50,000/- each

were deposited. The transaction was therefore not one of sale but it was by

way of mortgage. The sale deeds were therefore only nominal. The parties

led evidence before the trial Court. Both the appellants examined themselves

and the respondent also examined himself. The trial Court held that the

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title of the plaintiff was duly proved as per the sale deeds at Exhibits-22 and

23. It was further held that the defendant No.1 was a licensee as per the

agreement at Exhibit-28. On that basis the suit was decreed. The appellate

Court confirmed these findings and dismissed the appeal.

3. Shri M. N. Ahmed, learned counsel for the appellants submitted

that the sale deeds at Exhibits-22 and 23 were nominal documents which

were not intended to transfer the title in favour of the plaintiff. They were

executed only for collateral purpose. According to him though the valuation

of the property was on a higher side, it was stated that the consideration was

settled at Rs.3,00,000/-. Out of this amount of Rs.3,00,000/-, Rs.1,50,000/-

was paid by cheque and Rs.1,50,000/- was paid in cash. It was urged that

this was one factor to demonstrate that the sale deeds were nominal in

nature. No receipt for payment of Rs.1,50,000/- in cash as per the the sale

deed was placed on record. The possession was also not taken from the

vendor and the vendor was shown as the licensee. Though the respondent

filed his balance sheet on record, it could not be demonstrated that the

consideration in cash had been paid. It was thus submitted that even if the

sale deeds were duly registered, there was no intention to transfer the title.

The documents were executed only as a security for the loan transaction. In

support of his submissions, the learned counsel placed reliance on the

following decisions :

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     (i)             Manish Shukla and ors. v. Anand Kumar Sharma and ors.
                2016(4)  Civil L.J. 42.

    (ii)        Jagannath v. Sunderlal 1977 MhLJ 40  

4. Shri S. S. Alaspurkar, learned counsel for the original plaintiff

supported the impugned judgment. According to him one Ravindra Nawathe

was the owner of the suit property. He had executed the Power of Attorney

in favour of defendant No.2. On the strength of that document, the sale

deeds came to be issued by the defendant No.2. According to the plaintiff

the initial agreements were with the husband of defendant No.2 who had

expired thereafter in May, 2000. It was submitted that the defendants had

admitted that the sale deeds were executed in their presence. Similarly,

execution of Leave and License agreement was also admitted. It was

submitted that on the basis of such relationship, the eviction was sought

before the Rent Controller. As the defendants disputed the title, the present

suit was filed. He therefore submitted that both the Courts having

concurrently held in favour of the plaintiff, no interference was called for.

5. I have heard the learned counsel for the parties at length and with

their assistance I have perused the records of the case. The initial document

executed is the document of Power of Attorney at Exhibit-57. As per this

document dated 27/06/2000 it was stated that the husband of defendant

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No.2 was the owner of a Construction Company and he intended to carry out

construction activities. The owner of the property, Shri Ravindra Nawathe

executed this Power of Attorney in favour of defendant No.2 after the demise

of her husband with a view to complete the project. To this document, the

defendant No.1 is an attesting witness. Thereafter on the project being

completed, sale deeds were executed in respect of Flat No.101 in two parts.

The vendor has been shown as Shri Ravindra Nawathe and he has acted

through his Power of Attorney holder-defendant No.2. The total

consideration paid is Rs.3,00,000/-, half of which is by cheque and other half

is by cash. To this document also, the defendant No.1 is the witness.

Similar is the situation with regard to the sale deed at Exhibit-23. On the

same day, an agreement of Leave and License at Exhibit-28 was entered into.

This was to facilitate the accommodation of the defendant No.1 for a period

of one year.

From the aforesaid documents, it is clear that the owner of the

property was Shri Ravindra Nawathe and the defendant No.2 was merely his

Power of Attorney holder. The contents of both the sale deeds and the

agreement of Leave and License are not shown to be either incorrect or

conveying some other intention.

6. As per recitals of Exhibits-22 and 23 which are signed by the

defendant No.2, the amounts in cash have been received. The plaintiff has

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placed on record his balance-sheet at Exhibits-25 and 26. The mutation

entry taken pursuant to the aforesaid transaction at Exhibit-27 was never

challenged by the defendant. Thus, mere inadequate consideration as urged

cannot by itself lead to the conclusion that no title was intended to be

conveyed in favour of the plaintiff. There is no evidence brought on record

by the defendant No.2 to indicate loan of Rs.3,00,000/- being borrowed from

the plaintiff. I therefore find that the substantial documentary evidence

placed on record by the plaintiff is sufficient to convey valid title in his

favour. The sale deed at Exhibits-22 and 23 cannot be termed as nominal.

The decisions relied upon by the learned counsel for the appellants cannot be

made applicable to the facts of the present case. Accordingly the substantial

question of law is answered by holding that sale deeds at Exhibits-22 and 23

convey title to the respondent. As a result, the appeal fails. Same is therefore

dismissed with no order as to costs. Pending civil application is also disposed

of accordingly.

JUDGE

Asmita