Bhagubai Vitthal Pande And Others vs Shevantabai Baban Pande And ...
2021 Latest Caselaw 6778 Bom

                                                        Second Appeal No.34/2021
                                         :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   SECOND APPEAL NO.34 OF 2021 WITH
                   CIVIL APPLICATION NO.3324 OF 2021



  Bhagubai Vitthal Pande & ors.                            ...APPELLANTS

               VERSUS

  Shevantabai Baban Pande & ors.                           ...RESPONDENTS
                                .......
  Mr. S.T. Shelke, Advocate for appellants
                                .......


                                   CORAM :         R. G. AVACHAT, J.


                           Date of reserving order : 7th April, 2021
                           Date of pronouncing order : 28th April, 2021

 ORDER:

This Second Appeal is directed against the

judgment and decree dated 29/11/2012, passed by the Court

of Civil Judge, Senior Division, Sangamner in Regular Civil

Suit No.391/2008 and confirmed with slight modification by

judgment and decree dated 13/1/2020, passed by District

Judge-2, Sangamner in Regular Civil Appeal No.4/2013.

2. The original defendants No.1 to 4 have preferred

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this Appeal. The suit was filed by the respondents No.1 and 2

for declaration that they have one third share in the

properties mentioned in paragraph No.1 of the plaint. A

further relief of declaration was also sought to the effect that

the property described in paragraph No.1-B of the plaint has

been allotted to the share of the respondents No.1 and 2

(plaintiffs) in the partition. The trial Court decreed the suit in

toto. It has further declared that the two sale deeds dated

2/2/2010 are void-ab-initio. Those sale deeds were effected

pending the suit and, therefore, hit by the principle of lis

pendence. The appellate Court modified the decree passed by

the trial Court. The decree came to be modified to the extent

of setting aside the relief of declaring the sale deeds dated

2/2/2010 to be void and non est. The appellate Court

declared that those two sale deeds are not binding on the

plaintiffs' one third share. The appellate Court set aside the

decree declaring those two sale deeds to be null and void.

3. It is the case of the respondents No.1 and 2/

plaintiffs that there existed a joint family consisting of

themselves and the appellants herein. The suit lands came to

be purchased out of the joint family funds. The lands were

decided to be purchased in the names of the wives of the

three brothers namely Baban, Vithal and Tukaram. Since the

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respondent No.1 Shevantabai (plaintiff No.1) was pregnant,

she could not remain present in the office of the Sub-Registrar

for execution of the sale deed in her favour. The lands,

therefore, came to be purchased in the names of wives of

Vitthal and Namdeo. They have acknowledged the plaintiffs'

share in the suit land and, therefore, gave application to the

revenue authorities to record their names in the revenue

record.

4. On appreciating the evidence in the case the trial

Court decreed the suit. The appellate Court concurred with

the finding of facts recorded by the trial Court except to the

extent of modification of the decree as stated hereinabove.

5. I have perused both the impugned judgments.

Heard the learned counsel for the appellants. I am of the

view that both the Courts below have rightly come to the

conclusion to decree the suit. I do not find any perversity in

the impugned judgments.

6. Shri S.T. Shelke, learned counsel for the

appellants would submit that, both the Courts below erred in

appreciating the evidence in the case. According to him, it

was the case of the respondent No.1 and 2 that, some portion

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of the joint family property was sold in November 1984 by the

three brothers and suit lands came to be purchased out of the

said sale consideration. The fact, however, is that, the suit

lands have been purchased in November 1983. The recitals of

the sale deed indicate that the consideration amount was paid

three months prior to the execution of the sale deeds dated

24/11/1983. There was a suit (Regular Civil Suit

No.137/1983) for partition and separate possession of the

joint family properties. These lands were not the subject

matter of the said suit. The said suit was compromised. As

such, there was severance in status amongst the members of

the joint family. The respondents/ plaintiffs did not have

evidence to show that there was joint family income and the

same was used for purchase of the suit lands. It has come in

the evidence that, the plaintiff Shevantabai was not pregnant

when the suit lands came to be purchased. The same falsifies

the case of the plaintiffs that she could not remain present for

execution of the sale deed in her name. According to learned

counsel, the entries in the revenue record do not create or

confer right, title and interest in immovable property. The

learned counsel would further submit that, number of

substantial questions of law do arise in this Second Appeal.

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7. I have perused the substantial questions of law

formulated by the learned counsel for the appellant. It is also

the contention of the learned counsel that, by virtue of

Section 14 of the Hindu Succession Act, the properties

purchased in the name of female members would be their

absolute property. Relying on the judgment in the case of

Mangathai Ammal (Died) through L.Rs. and Ors. Vs. Rajeswari

and Ors. [ AIR 2019 SC 2918 ], the learned counsel would

submit that, it is well settled that the burden of proving that a

particular sale is benami and the appellant purchaser is not

the real owner, always rests on the person asserting it to be

so. This burden has to be strictly discharged by adducing

legal evidence of a definite character which would either

directly prove the fact of benami or establish circumstances

unerringly and reasonably raising an inference of that fact.

The essence of a benami is the intention of the party or

parties concerned; and not unoften, such intention is

shrouded in a thick veil which cannot be easily pierced

through. But such difficulties do not relieve the person

asserting the transaction to be benami of any part of the

serious onus that rests on him; nor justify the acceptance of

mere conjectures or surmises, as a substitute for proof.

According to him, the trial Court did not frame the issues as

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regards purchase of the suit land benami in the name of co-

sisters of the plaintiff No.1. The issue ought to have been

framed.

The learned counsel also relied on the judgment of

the Apex Court in the case of Bhagwat Sharan (Dead) through

L.Rs. Vs. Purushottam and Ors. [2021(1) Mh.L.J. 485] to

submit that, the burden lies upon the person alleging

existence of a joint family to prove that the property belongs

to joint Hindu family. The learned counsel ultimately urged

for admission of the Second Appeal to decide the substantial

questions of law formulated by him and mentioned in Grounds

I to XIV of appeal memo.

8. Ramji was the common ancestor. He was survived

by his two sons - Ganpat and Namdeo. Ganpat has four sons

namely - Bhau, Laxman, Mahadu (deceased) and Khandu.

Namdeo has three sons - Vitthal, Tukaram and Baban and

daughter Radhabai. The suit (R.C.S. No.137/1983) was

between members of the two branches of Ganpat and

Namdeo. The present suit under appeal is between the

members of the branch of Namdeo alone. As stated above,

Vitthal, Tukaram and Baban are the three sons of Namdeo.

Shevantabai (plaintiff No.1), is the wife of Baban. Bhagubai,

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defendant No.1, is the wife of Vitthal and Vithabai is wife of

Tukaram. As such, these three females are the co-sisters.

The suit lands have been purchased on 24/11/1983 in the

name of Bhagubai and Vithabai. There is no evidence to

indicate that Bhagubai and Vithabai did have their

independent source of income. There is also no evidence to

indicate that the three brothers - Baban, Vitthal and Tukaram

were separate in estate and they have their independent

source of income. The agricultural lands, the subject matter

of the partition suit (R.C.S. No.137/1983) was the source of

income for three brothers. Since the said suit was between

the two branches of Ramji, the present suit lands could not be

the subject matter of the said suit. The trial Court has rightly

observed that the suit lands have been purchased in the

names of female members of the family with a view to avoid

them to be branded to be the joint family properties of the

two branches of Ramji. The said suit (R.C.S. No.137/1983)

was compromised. The compromise decree was passed on

23/12/1983. Those suit lands have been purchased well

before the compromise decree was passed. The sale

consideration was paid three months before the suit lands

came to be purchased. The same indicates that there was no

severance in status among the three brothers.

Second Appeal No.34/2021 :: 8 ::

9. True, there is no evidence to indicate that

Shevantabai was pregnant and, therefore, could not remain

present for execution of the sale deed in her name. The suit

has been filed in 2008. The lands have been purchased 25

years before filing of the suit. There is overwhelming

evidence to indicate the suit lands to have been purchased

out of joint family funds, though there is no direct evidence of

the existence of the nucleus for purchase of the suit lands.

10. There is evidence to indicate that defendants No.1

and 2/ appellants No.1 and 2 gave application to the revenue

authorities to record the name of Shevantabai (co-sister) to

the extent of one third share in the lands purchased by both

of them. Pursuant to those applications, mutation entries

No.1437and 1482 have been effected way back in 1994. The

said revenue record continues up to 2008. There is also

evidence to indicate that both Bhagubai and Vithabai have

sold the portion of the suit land to the extent of not more than

their share (one third) therein. Some portion of the suit lands

appears to have been acquired for public purpose. During the

joint measurement, Shevantabai (plaintiff No.1) was found in

possession of the suit land described in para No.1-B of the

plaint. As such, the evidence in the suit undoubtedly disclose

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that it was a joint family of the three brothers - Baban, Vitthal

and Tukaram. The suit lands were purchased in the names of

defendants No.1 and 2. The plaintiff No.1 could not remain

present for execution of sale deed in her name along with

defendants No.1 and 2. The family did not have other source

of income. The income from the lands (subject matter of

R.C.S. No.137/1983) was the source of income for the three

brothers. The defendants No.1 and 2 and their better-half

namely Vitthal and Tukaram acknowledged the plaintiffs to

have one third share in the suit lands. To the extent of one

third share, she was found in possession of the suit land

described in paragraph No.1-B of the plaint. As such, both

the Courts below have concurrently held the plaintiffs to have

proved their case.

11. Before both the Courts below, neither Section 14

of the Hindu Succession Act nor Section 3 or 4 of the

Prohibition of Benani Properties Transactions Act was relied

on. The written statement was silent to take such defence.

The parties to the suit went for trial knowing fully well each

other's case. The trial Court has rightly framed the issues

placing the burden on the plaintiffs to prove their case.

12. Section 2(g) of the Prohibition of Benani

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Properties Transactions Act defines benami transactions to

mean :-

(A) a transaction or an arrangement :---

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by -

(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;

(ii) . .. . . . . .

13. It was the case of the plaintiffs that there existed

a Hindu undivided family. The property has been purchased

in the names of female members of the joint family. The

purchase price has been paid out of joint family funds. The

same has been proved by the evidence in the case. It is

reiterated that, no substantial question of law arises in this

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Second Appeal. The Second Appeal is thus sans merit. The

same is dismissed.

In view of dismissal of the Second Appeal, Civil

Application No.3324/2021 also stands dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-