Bombay High Court
Suresh S/O Krishnarao Bhole And ... vs Pradip S/O Avinash Bhole on 18 January, 2018
Bench: A.S. Chandurkar
CRA77.16.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.77 OF 2016
APPLICANTS: 1. Suresh S/o Krishnarao Bhole, Age-79
(PLAINTIFFS on years, Occ-Business,
RA)
2. Shriram S/o Krishnarao Bhole, Age-71
years, Occ-Business,
Both R/o Plot No.3, West High Court
Road, Dharampeth, Nagpur.
-VERSUS-
NON- 1. Pradip S/o Avinash Bhole, Age-49 years,
APPLICANTS:
Occ: Private Teacher, 455 BUR OAK
(DEFENDANTS
Avenue, Markham, ON L6C 2S7,
on RA)
Canada.
2. Amarial S/o Narayandas Katariya, Age-
52 years, Occ-Business,
3. Shankar S/o Narayandas Katariya, Age-
54 years, Occ-Business,
Both 2 & 3 R/o 17-18, K. K. Nagar Nara
Road, Jaripatka, Nagpur.
Shri S. S. Voditel, Advocate for the applicants.
Shri M. M. Sudame, Advocate for the non-applicant No.1.
Shri Harish Dangre, Advocate for the non-applicant Nos.2 and 3.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 18, 2018.
CRA77.16.odt 2/10
ORAL JUDGMENT :
1. Pursuant to the notice for final disposal issued
earlier, the learned Counsel for the parties have been heard
at length.
2. The applicants are the original plaintiffs. It is their
case that they and the defendant No.1 - Avinash are the sons
of one Krishnarao and Padmavati. They constituted a joint
Hindu family. Krishnarao had purchased the suit plot in the
year 1940. The undivided family developed the plot and
erected construction thereon. A deed of understanding dated
23-10-1973 was executed between the plaintiffs, defendant
no.1 and their mother. As per this understanding, the mother
agreed to give some fixed income to the sons by keeping the
property joint. After the death of Padmavati on 31-5-1987, it
was learnt that during her life time she had executed a Will
on 21-7-1980. By that Will, shop blocks allotted to her were
given to the share of the sons of defendant no.1. It is the
further case that the plaintiffs learnt that on 12-10-2010, the
defendant no.1 had sold portion of the undivided suit
property to the defendant no.3. By another sale deed
executed on the same day, different portion of the suit
CRA77.16.odt 3/10
property was sold by the defendant no.1 to the defendant
no.4. The defendant no.1 had filed Regular Civil Suit
No.1191/2010 against said defendant Nos.3 and 4 while
defendant no.2 had filed Regular Civil Suit No.1192/2010
against defendant Nos.3 and 4 for cancellation of the
aforesaid sale deeds. In this backdrop, the applicants in
February, 2012 filed suit for a declaration that the suit
property continued to be undivided family property in which
the plaintiffs and the defendant no.1 had 1/3rd share each.
A declaration was sought that the document dated
23-10-1973 was not a partition deed and therefore, on that
basis neither their mother nor defendant No.2 had become
absolute owners of the suit property. The Will dated 21-7-
1980 was challenged as being null and void. Further
consequential relief of declaration that both the sale deeds
dated 12-10-2010 executed by the defendant Nos.1 and 2 in
favour of the defendant Nos.3 and 4 were null and void. The
relief of possession was also prayed for.
3. The defendant Nos.3 and 4 who had purchased
the suit properties by virtue of sale deeds dated 12-10-2010
filed their written statement. They denied the case as pleaded
CRA77.16.odt 4/10
and claimed title on the basis of those sale deeds. After the
written statement came to be filed, the plaintiffs moved an
application under provisions of Order XII Rule 6 of the Code
of Civil Procedure, 1908 (for short, the Code) seeking
judgment on admission against defendant Nos.3 and 4 with
regard to the relief of cancellation of sale deeds dated
12-10-2010. In the application, it was stated that as per the
sale deeds only an amount of Rs.11,000/- each was paid in
cash and the remaining amount was to be paid by various
post dated cheques. None of these post dated cheques were
handed over to the defendant Nos.1 and 2 and the defendant
no.1 had stated that he was not in a proper state of mind and
had also not encashed two pay orders. According to the
plaintiffs, it was an admitted position that the entire sale
consideration was not paid by the defendant nos.3 and 4 and
hence, the sale deeds were liable to be cancelled.
4. The defendant nos.3 and 4 did not file any reply to
the aforesaid application and the trial Court by its order
dated 28-1-2016 refused to pass any judgment on the basis of
the contentions raised by the plaintiffs. It was held that there
was no admission on record to enable the Court to pass any
CRA77.16.odt 5/10
judgment as prayed. Being aggrieved the plaintiffs have filed
this Civil Revision Application.
5. Shri S. S. Voditel, learned Counsel for the
applicants submitted that the plaintiffs had sought relief of
declaration that the sale deeds dated 12-10-2010 were null
and void and that the same did not create any legal right in
favour of defendant Nos.3 and 4. Referring to the contents of
the two sale deeds, it was submitted that as per the schedule
of payment mentioned therein an amount of Rs.11,000/-
alone was paid in cash while the balance sale consideration
was to be paid subsequent to the execution of the sale deed.
The sale transaction was in fact contingent on the fulfillment
of various conditions including payment of entire
consideration. As the condition with regard to payment of
entire consideration was not satisfied no title passed over to
the defendant Nos.3 and 4. He referred to the provisions of
Section 54 of the Transfer of Property Act, 1882 to urge that
the title would not pass on to the defendant nos.3 and 4 till
the entire consideration was paid. Placing reliance on the
decisions in Charanjit Lal Mehra and others Vs. Kamal Saroj
Mahajan and another (2005) 11 SCC 279 and Karam Kapahi
CRA77.16.odt 6/10
and others Vs. Lal Chand Public Charitable Trust and another
(2010) 4 SCC 753, it was submitted that the contents of the
sale deeds which were not in dispute could be taken into
consideration under provisions of Order XII Rule 6 of the
Code while considering the prayer as made by the plaintiffs.
The expression "or otherwise" in Order XII Rule 6 of the Code
was of wide nature and even the contents of the sale deeds
could be referred to for said purpose. It was thus submitted
that the trial Court having failed to consider the application
in its proper perspective committed an error by refusing to
pass judgment on admission.
6. Shri H. D. Dangre, learned Counsel for the non-
applicant Nos.2 and 3 supported the impugned order.
According to him, on reading of the entire plaint, it would be
clear that the plaintiffs had sought various reliefs. A
declaration was sought that the suit property was joint Hindu
family property, it was not partitioned as per deed dated
23-10-1973, the Will dated 21-7-1980 was null and void and
a prayer was also made for grant of 1/3rd share in the suit
property. The relief with regard to the sale deeds dated 12-
10-2010 was consequential in nature. He referred to written
CRA77.16.odt 7/10
statement filed by the defendant Nos.3 and 4 and submitted
that there was no admission whatsoever in the said written
statement that would enable the Court to pass any judgment
on admission. He submitted that the trial Court did not
commit any jurisdictional error in refusing to pass any
judgment on admission as prayed by the plaintiffs.
Shri A. M. Sudame, learned Counsel for the non-
applicant no.1 supported the contentions as urged on behalf
of the applicants.
7. I have heard the learned Counsel for the parties at
length and I have perused the pleadings of the parties.
Perusal of the plaint in its entirety reveals that it is the case of
the plaintiffs that their father had purchased the suit plot in
the year 1940 and their father along with the plaintiffs and
the defendant no.1 constituted joint Hindu family. Though a
deed of understanding dated 23-10-1973 was entered into it
was not a partition deed. As the suit property did not
exclusively belong to their mother, the Will dated 21-7-1980
executed by her was null and void. The relief of declaration
as to voidness of the sale deeds dated 12-10-2010 was sought
by way of consequential relief. In para 31 of the plaint, it is
CRA77.16.odt 8/10
pleaded that the sale deeds were conditional in nature and
the title would pass on to the defendant Nos.3 and 4 only
after payment of entire sale consideration. Those amounts
were not paid by the defendant Nos.3 and 4.
In the written statement filed by the defendant
Nos.3 and 4 all averments made in the plaint have been
denied. In reply to paragraph 31 of the plaint, it has been
denied that the amounts mentioned in the sale deeds have
not been paid by the defendant Nos.3 and 4 to the defendant
no.1. It is an admitted position that the plaintiffs are not
relying upon any admission of the defendant Nos.3 and 4 in
their written statement. For substantiating their application
filed under provisions of Order XII Rule 6 of the Code,
support is sought to be taken from the contents of the sale
deeds dated 12-10-2010. The schedule of payment has been
mentioned in both the sale deeds which indicate that initially
an amount of Rs.11,000/- each was paid when the sale deeds
were executed. The other payments were to be made
through post dated cheques. It is on this basis that the
plaintiffs alleged that the entire sale consideration having not
passed on to the defendant no.1, the defendant Nos.3 and 4
CRA77.16.odt 9/10
did not have any valid title to the suit property. It is urged
that these sale deeds can be looked into for the purpose of
deciding the application under provisions of Order XII Rule 6
of the Code.
8. On considering the law as laid down in the
decisions relied upon by the applicants and after perusing the
plaint, the sale deeds as well as written statement, I do not
find that the plaintiffs are entitled for any judgment on
admission under provisions of Order XII Rule 6 of the Code.
The averments in paragraphs 31 to 33 of the plaint alleging
non payment of entire sale consideration on the part of the
defendant nos.3 and 4 to the defendant no.1 have been
specifically denied by said defendants in their written
statement. There is no admission whatsoever in these
pleadings. The sale deeds merely refer to the schedule of
payment on the basis of which the entire sale consideration
was to be paid. If these sale deeds are considered alongwith
the averments in paragraphs 31 to 33 of the plaint as well as
the written statement in that regard, it cannot be said that
there is any admission on the part of the defendant nos.3 and
4 that the entire sale consideration has not been paid by them
CRA77.16.odt 10/10
to the defendant no.1 as per the schedule of payment. There
is no admission whatsoever that can be made the basis for
granting any relief to the plaintiffs under provisions of Order
XII Rule 6 of the Code. In absence of any such admission, the
trial Court did not commit any error when it refused to pass
any judgment on admission as prayed for by the plaintiffs.
9. I, therefore, find that the trial Court did not
commit any jurisdictional error when it passed the impugned
order and rejected the application in question. The Civil
Revision Application, therefore, stands dismissed with no
order as to costs. It is clarified that the trial Court shall decide
the suit without being influenced by any observations made
in this order.
JUDGE
/MULEY/
