Dnyandeo Dattatraya Tapare Died ... vs Arun Bhanudas Nimbule And Others
2021 Latest Caselaw 10721 Bom

Citation : 2021 Latest Caselaw 10721 Bom
Judgement Date : 10 August, 2021

Bombay High Court

Dnyandeo Dattatraya Tapare Died ... vs Arun Bhanudas Nimbule And Others on 10 August, 2021

Bench: V. V. Kankanwadi

                                          (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      SECOND APPEAL NO.365 OF 2020

 1)       Dnyandeo s/o Dattatraya Tapare
          (Died) through legal heirs -

 1/1) Ashatai w/o Dnyandeo Tapare
       and ors.                      = APPELLANTS
                               (Orig.Deft.Nos.3 & 4)

          VERSUS

 1)       Arun s/o Bhanudas Limbule
          & Ors.                          = RESPONDENT/S
                                 (Resp.No.1 is orig.
                                  plaintiff & Resp.
                                  Nos. 2 to 4 are
                                  orig.Deft.Nos.1,2 & 5)
                            -----
 Mr.NK   Kakade                &    Mr.AN       Kakade,      Advocates             for
 Applicants;

 Mr.SV Suryawanshi, Advocate for Respondent No.1.
                        -----


                                   CORAM :      SMT.VIBHA KANKANWADI,J.

RESERVED ON : 26/07/2021 PRONOUNCED ON : 10/08/2021

PER COURT :-

1. Heard learned Advocate Shri NK Kakade for

the appellants and learned Advocate Shri SV

Suryawanshi for Respondent No.1. Perused the paper

book of the First Appellate court made available by

the appellants.

2. The appellants are the original defendant

Nos.3 and 4; whereas Respondent No.1 is original

plaintiff. Respondent Nos.2 to 4 are the original

defendant Nos.1, 2 and 5. Original plaintiff and

deft.No.5 are son and father respectively. The

plaintiff had filed Regular Civil Suit No.20/2012

(Old Special Civil Suit No.02/2010) before the

Civil Judge, Senior Division, Hingoli for

declaration, cancellation of sale-deed and

possession of the suit property as well as mesne

profits. The said suit came to be dismissed on

16.1.2013. The said decree was challenged by the

original plaintiff in Regular Civil Appeal

No.11/2013 before the District Court at Hingoli and

the said appeal came to be allowed on 26.2.2020 by

learned Ad-hoc District Judge-1, Hingoli, by

setting aside the judgment and decree passed by the

Trial Judge. The alienation of the suit property by

original deft.No.5 in favour of in favour of

deft.Nos.1 and 2 on 5.2.2004; further alienation

by deft.No.2 in favour of deft.No.3 on 20.3.2004

and further alienation by deft.Nos.1 and 2 in

favour of deft.No.4 on 7.6.2005, were cancelled.

The deft.Nos.3 and 4 were directed to hand over the

possession of the suit property to the plaintiff.

Hence, they have filed the present Second Appeal.

3. In short, the contention of the plaintiff

was that he was owner of the suit property as he

had received the same in partition which was

effected by deft.No.5 - his father. He was then

still minor and thereafter deft.No.5 had sold it to

deft.Nos.1 and 2. Thereafter, the subsequent sale

has taken place. The plaintiff contended that

those transactions are without his approval and

also without getting permission to sell the minor's

property from the competent Court. It was stated

that the said sale-deeds are void ab-initio. As

against that, the defendants contended that the

deft.No.5 was indebted and, therefore, in order to

repay the debt, he has sold portion of the

properties to them. They are the bonafide

purchasers for value without notice.

4. As aforesaid, the decree passed by the

learned Trial Judge has been reversed by the

learned First Appellate Court. It gives rise to

admission of the Second Appeal in view of the fact

that certain basic requirements of law are required

to be tested on the transactions. Both the Courts

below have considered the admissions given by the

plaintiff as well his witnesses. However, they

have come to a different conclusion. The alleged

partition has been reflected in the mutation entry

in respect of the suit property. Then question

arises as to what was the nature of the property.

If we are accepting that it is minor's property

then whether permission from the competent Court to

sell the minor's property, was mandatory or not, is

required to be considered and answer would

definitely have an effect on the relief that has

been granted in respect of the cancellation of the

sale-deed. If it is held by this Court, after

final hearing that there was no such partition, as

contemplated by the plaintiff, then the suit

property would be ancestral property and only in

case of the sale of the property, the question of

legal necessity will arise. Re-appreciation of the

evidence, in order to come to a conclusion

regarding the law point, is necessary in this case

and, therefore, the appeal deserves to be admitted.

Accordingly, it is admitted on the following

substantial questions of law, -

i. What was the nature of the property, i.e. whether it was minor's property or it was still ancestral property ?

ii. Whether the transaction of sale by

was hit by the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 ?

iii. Whether it was necessary to bring permission from a competent Court to sell the suit property to deft.Nos.3 and 4 ?

                  iv. Whether  deft.Nos.3                      and   4  were
                  bonafide purchasers for                      value without
                  notice ?