Kausabai Chandrahas Nagargoje ... vs Dhondiram Sopan Nagargoje
2021 Latest Caselaw 10263 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      SECOND APPEAL NO.679 OF 2012
                                  WITH
                   CIVIL APPLICATION NO.11221 OF 2012

                   KAUSABAI W/O CHANDRAHAS NAGARGOJE
                               AND OTHERS

                                        VERSUS

                        DHONDIRAM S/O SOPAN NAGARGOJE

                                     .....
                 Advocate for Appellants : Mr. S. S. Thombre
               Advocate for Respondent : Mr. Vivek Bhavthankar
                                     .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    04-08-2021.

ORDER :

1) Present second appeal has been filed by the original plaintiffs

challenging the concurrent Judgment and decree. They had filed

Regular Civil Suit No.125 of 2008 for cancellation of sale deed in

respect of 59 R agricultural land situated in Gut No.140 at village

Nagdara, Taluka Parli Vaijnath, District Beed. The said suit came to be

dismissed by learned Joint Civil Judge, Junior Division, Parli Vaijnath

on 18-01-2011. The plaintiffs had challenged the said Judgment and

decree before District Court, Ambajogai, District Beed, by filing

Regular Civil Appeal No.19 of 2011. It was decided by learned District

2 SA 679-2012, CA 11221-2012

Judge-2, Ambajgoai and was dismissed on 23-11-2011. Hence,

present second appeal.

2) Heard learned Advocate Mr. S. S. Thombre for appellants and

learned Advocate Mr. Vivek Bhavthankar for respondent.

3) It has been vehemently submitted on behalf of the appellants

that plaintiffs had come with a case that the property was originally

belonging to the husband of plaintiff No.1 and father of plaintiffs

No.2 to 4 Chandrahas. Chandrahas expired and the property

devolved on the plaintiffs. Plaintiffs No.2 to 4 were minors at that

time. Plaintiff No.1 was having responsibility of the family and,

therefore, she was in need of money. Taking disadvantage of her

said situation, the defendant by getting executed a nominal sale

deed dated 24-05-2002 for consideration of Rs.41,000/-, however,

since plaintiffs No.2 to 4 were minors at that time sanction was not

obtained from competent Court for the execution of the sale deed.

In fact, it was agreed that the sale deed would be nominal and

would be kept as it is for about five years till the plaintiff repays the

loan. Thereafter, when the plaintiffs had gone to the defendant for

repaying the amount of Rs.41,000/- together with interest, the

defendant refused to take that amount and reconvey the sale deed

3 SA 679-2012, CA 11221-2012

to the plaintiffs. Hence, the suit was filed.

4) It was not in dispute before the Trial Court as well as First

Appellate Court that plaintiffs No.2 to 4 were minors and, therefore,

it was necessary to obtain prior permission from the competent

Court to sell the properties. No previous permission was sought and

then both the Courts below erred in holding that the said sale was

for the legal necessity. Both the Courts below failed to consider the

evidence that the defendant was running an illegal money lending

business. The value of the property that was conveyed under sale

deed Exhibit 50 was much more than it has been shown in the sale

deed. Both the Courts have failed to consider that the transaction

between plaintiff No.1 and the defendant was a loan transaction and

it was agreed that after the amount is repaid, the defendant would

reconvey the property. Substantial questions of law are therefore

arising in this case as to the construction and interpretation of the

document and also the real intention of the parties especially when

permission as required for the sale of property belonging to minors

as per Section 8 (2) of the Hindu Minority and Guardianship Act was

not obtained at all. He, therefore, prayed for admission of the

second appeal.

                                      4                  SA 679-2012, CA 11221-2012




5)       Per contra, the learned Advocate appearing for the respondent

strongly opposed the admission and he supported the reasons given

by both the Courts below. He submitted that the Courts below have

correctly assessed the factual aspects involved and also the law

points. Both the Courts have correctly held that plaintiff No.1 is not

disputing that she was in need of money but then it cannot be said

that she could raise the money only by way of taking loan. She

could definitely sell out the property and accordingly, after the

negotiations, she has sold the said property. She has admitted in

her cross-examination that she required money for the educational

purposes of the minors and, therefore, it can be taken as a legal

necessity, that was also for the benefit of the minors and, therefore,

such transactions are not covered under Section 8 (2) of the Hindu

Minority and Guardianship Act. The mother being a guardian of the

property of the minor was not required to obtain that permission.

Further, the possession of the land was also handed over by the

plaintiff to the defendant. Perusal of the sale deed Exhibit 50 would

show that there was no such relationship of debtor or creditor

between the plaintiffs and the defendant. There is no evidence on

the record as to what was the interest rate that was fixed between

5 SA 679-2012, CA 11221-2012

them and exactly how much amount was allegedly taken by plaintiffs

for repayment after the alleged expiration of five years. When both

Courts below have appreciated the evidence as well as law points

properly, the second appeal is not required to be admitted.

6) In view of catena of Judgments of the Hon'ble Supreme Court

especially : -

1) Ashok Rangnath Magar vs. Shrikant Govindrao Sangvikar, reported in (2015) 16 SCC 763, and

2) Kirpa Ram (since deceased through L.Rs.) and Others vs. Surendra Deo Gaur and Others, reported in 2021 (3) Mh.L.J. 250,

The position of law is very much clear that unless the appellants in

the second appeal are able to show substantial questions of law as

contemplated under Section 100 of the Code of Civil Procedure, it is

absolutely not necessary that the second appeal should be admitted.

It can be dismissed in limine without framing substantial questions

of law.

7) At the outset, from the stand taken by the plaintiffs in their

suit, it appears that they were not firm as to exactly which

averments they should make and base their claim in the suit. At

6 SA 679-2012, CA 11221-2012

one breath it is stated that since the defendant is doing illegal

money lending business and plaintiff No.1 was in need of amount,

she had executed the sale deed on 24-05-2002 for consideration of

Rs.41,000/- but it was a Sham and nominal document. At another

breath, she wants to say that the sale transaction is bad or void as it

has been entered without obtaining permission as required under

Section 8 (2) of the Hindu Minority and Guardianship Act. Important

point to be noted is that the plaintiffs are trying to say that the

duration of repayment of the loan was five years and when they had

gone to repay the loan together with interest, the defendant had

refused to accept. At the first place, it has not come on record

through the evidence of the plaintiffs that what was the rate of

interest that was agreed. Another fact that is required to be seen is

that plaintiffs have not given reason as to why the possession of the

suit property was handed over to the defendant on the date of the

sale when according to the plaintiffs the sale transaction was

nominal and real transaction or agreement between them was

different than the contents of the sale deed Exhibit 50. At one place

the plaintiffs are accepting that plaintiff No.1 was in need of money

especially for the educational expenses of the plaintiffs No.2 to 4 and

she is not coming with a case that there was any other guardian of

7 SA 679-2012, CA 11221-2012

the minor plaintiffs. When the father of the plaintiffs had expired,

definitely the mother would be the only guardian and the nature of

the suit property appears to be the ancestral property. It was not

necessary for the natural guardian to obtain permission when there

is a legal necessity. The plaintiffs have not produced on record any

evidence to support their contention that the defendant is running

an illegal money lending business.

8) Another aspect that can be considered here is that if the real

nature of the transaction was that after payment of the loan amount

together with interest, the property was to be reconveyed to them

by the defendant then why the suit has been filed for cancellation of

sale deed, is not explained. The suit for specific performance of that

contract for reconveyance could have definitely been filed.

9) It appears that the plaintiff had taken alternative pleas to get

rid of sale deed Exhibit 50. Those alternative pleas are mentioned

above. It was asked to the learned Advocate for the appellants, as

to whether the plaintiffs would be justified in taking the alternative

pleas ? He has relied on the decision in : -

                  1)       Praful Manohar Rele       vs. Krishnabai Naryaan
                  Ghosalkar         and   Others,   reported    in      (2014)       11





                                         8                  SA 679-2012, CA 11221-2012



               Supreme Court Cases 316, and
               2)       Firm Sriniwas Ram Kumar vs. Mahabir Prasad,
               reported in 1951 AIR (SC) 177.

However, facts in both these cases wherein it has been held that

even the plaintiff can take alternative pleas, are different. In case

of Praful Manohar Rele (Supra) it was observed that,

"The alternative plea of the plaintif and the defence set up by the defendants was not diferent from each other."

The case of the defendants was that they were in occupation of the

suit premises not as licensees but as tenants and, therefore, it was

held that,

"Plaintiff is entitled on that basis alone to ask for an alternative relief of a decree for eviction on the grounds permissible under the Rent Control Act."

In this case, anyway, the relief claimed was the possession of the

property which was admittedly belonging to the plaintiffs. In case of

Firm Sriniwas Ram Kumar (Supra) the case of the plaintiff was that

some of Rs.80,000/- was advanced to the defendants by way of

loan. It was observed that,

"A plaintif may rely upon diferent rights alternatively

9 SA 679-2012, CA 11221-2012

and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The court cannot grant relief to the plaintif on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet."

Here in this case, though as aforesaid the case of the plaintiffs was

that the advancing amount by way of loan but then the alternative

plea was raised about claiming specific performance of the contract

for sale. The Court further proceeded to hold that the appeal will

have to be allowed in part the claim for specific performance was

dismissed, however the plaintiff was held to be entitled to a money

decree for some of Rs.30,000/- together with interest.

10) Here in this case, at the cost of repetition it can be said that at

one place the plaintiffs contended that there is an agreement to

reconvey the property separate from the sale deed and the real

nature of the transaction was different, then the question would be

whether a suit for cancellation of the sale deed without there being

any relief for reconveyance could have been allowed. Another fact is

that except bare words, there is nothing on record to show that the

amount was tried to be returned to the defendant together with

10 SA 679-2012, CA 11221-2012

interest after the alleged expiry of five years. The details of the

agreement/concluded contract apart from the sale deed have not

been given nor they are proved and, therefore, that alternative plea

cannot be considered at all. Based upon the facts of a case, the

plaintiff can definitely pray as many as reliefs as he/she can and any

of those reliefs can be an alternative to each other. However, as

regards the base for that alternative relief is concerned, it cannot be

contrary to each other or alternative to each other. Even if the

plaintiffs take such an alternative plea then they will have to elect

one of the pleas at the time of leading evidence, however, it

depends upon the facts and circumstances of each case. In Prem

Raj vs. The D. L. F. Housing and Construction (Private) Ltd. And

another, reported in AIR 1968 Supreme Court 1355, which has been

referred by this Court in Smt. Krishnabai C. Kadam and others vs.

Wellworth Developers and others, reported in 2001 Bombay 9, it has

been held that,

"A plaintiff cannot be permitted to take such inconsistent pleas where each of them is not maintainable."

In the said case, the objection was raised for grant of alternative

relief at the outset but then the defendant himself had agreed

11 SA 679-2012, CA 11221-2012

specifically in clear terms to the alternative plea taken by the

plaintiff and, therefore, it was held that provision of Order VII Rule 7

of the Civil Procedure Code can be invoked. Here the alternative

relief was not claimed at all but a plea was tried to be taken which

was not at all proved by the plaintiffs and, therefore, both the Courts

below have correctly held that the plaintiffs have failed to prove that

the sale deed dated 24-05-2002 was a nominal sale deed, executed

as security with assurance to reconvey the suit land in the name of

the appellants. It has also been correctly held that the defendant

has proved that the sale deed was executed for legal necessity and

for the benefit of minor owners.

11) No substantial questions of law are arising in this case

requiring admission, hence the second appeal stands dismissed.

Pending civil application stands dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-