Sundarabai Balkrushna Thorat Lrs ... vs Babaji Kondiba Mapari And Others
2021 Latest Caselaw 16603 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        SECOND APPEAL NO.596 OF 2018

                 SMT. SUNDARABAI BALKRUSHNA THORAT
               DECEASED BY HER LEGAL HEIRS AND OTHERS
                                  VERSUS
               SHRI. BABAJI KIONDIBA MAPARI AND OTHERS
                                    .....
                Advocate for Appellants : Mr. Y. P. Deshmkh.
             Advocate for Respondents No.1 to 5 : Mr. N. G. Kale.
                                    .....

                                    CORAM :     SMT.VIBHA KANKANWADI, J.

                                    DATE RESERVING THE ORDER                             :
                                    14-10-2021

                                    DATE OF PRONOUNCING THE ORDER :
                                    01-12-2021

ORDER :

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

challenging the concurrent Judgment and decree passed by the Courts

below.

2. The present appellants/plaintiffs had filed Special Civil Suit

No.297 of 2009 before 2nd Joint Civil Judge, Senior Division,

Ahmednagar, for cancellation of sale deed dated 29-01-2002 and for

possession and perpetual injunction. The said suit came to be

dismissed on 19-03-2014. The plaintiffs challenged the said Judgment

2 SA 596-2018

and decree by filing Regular Civil Appeal No.143 of 2014. The said

appeal came to be dismissed on 13-03-2018 by learned Adhoc

District Judge-5, Ahmednagar. Hence, this second appeal.

3. Heard learned Advocate Mr. Y. P. Deshmkh for appellants and

learned Advocate Mr. N. G. Kale for respondents No.1 to 5.

4. It has been vehemently submitted on behalf of the appellants

that the Courts below have not considered the facts and the

evidence properly. It has been wrongly held in spite of the fact that

had come on record that deceased Sunderabai was not having any

independent source of income, yet it was considered as her self-

acquired property by giving a wrong interpretation to Section 14 of

the Hindu Succession Act. Further, the plaintiffs had contended that

Sunderabai had no intention to sell the land but defendants No.1 to

5 played fraud upon her and got executed two sale deeds in respect

of the suit lands on 29-01-2002. It was specifically pleaded that

Sunderabai was taken by defendants No.1 to 5 under the pretext

that she would be taken for medical treatment. Admittedly she was

old age on 29-01-2002. She was residing with plaintiff No.3 and on

that day plaintiff No.3 and his wife had gone out of station. It was

not considered that even defendant No.5 who was the son of

3 SA 596-2018

Sunderabai had taken part in the said fraud. Sunderabai would have

definitely relied on defendant No.5-her own son. That means, she

was vulnerable for fraud. Immediately after the fact was noticed

that such document has been got executed, the suit was filed.

There was no legal necessity for Sunderabai to execute the sale

deeds as the plaintiffs were looking after her. Both the Courts below

failed to consider that Sunderabai was a Pardanashin lady and also

old and, therefore, any such document which has been got executed

from her without her knowledge and without consideration, would be

void. In order to support this contention, reliance has been placed

by the learned Advocate on the decision in :-

1) Mst. Kharbuja Kuer v. Jangbahadur Rai and others, reported in IR 1963 Supreme Corut 1203,

2) Rankanidhi Sahu v. Nandakishore Sahu, reported in AIR Orissa High Court 64, and

3) Ashok Kumar and another v. Gaon Sabha, Ratauli and other, reported in AIR 1981 Allahabad High Court 222.

5. It has been further submitted on behalf of the appellants that

in fact the burden was on the defendants to prove that the suit

property was the separate property as alleged by them. In

Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda

4 SA 596-2018

Sankh (Dead) by his legal representatives and another, reported in

AIR 1969 Supreme Court 1076, it has been held that,

"There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any, acquisition made by a member of the joint family is presumed to be joint family property."

Here, admittedly Sunderabai had no source of income. Further, in

V. K. Surendra v. V. K. Thimmaiah and others, reported in (2013)

10 Supreme Court Cases 211, it has been held that,

"Properties purchased from the sale of ancestral lands would becomes ancestral properties. Character of a joint family property cannot be changed by Karta by transferring the same without consent of other coparceners."

Further, in Dhondu s/o Bhanu Barsagade and others v. Dharma s/o

Bhanu Barsagade and another, reported in 2008 (2) B C J 460, it

has been reiterated that,

"There is presumption of jointness when it is proved

5 SA 596-2018

that the acquisition is from the joint family income."

Therefore, both the Courts erred in holding that the plaintiffs had

failed to prove that the suit property was joint family property

between them and defendant No.5.

6. Necessary particulars of the fraud were given by the plaintiffs

and accordingly evidence was led. It ought to have been therefore

held that the fraud was also proved and, therefore, the cancellation

of the sale deed ought to have been ordered. Both the Courts went

wrong in holding that the suit was not within limitation. In fact, the

knowledge would be the starting point. Though certain witnesses

have stated that the plaintiffs used to go to Parner where the

property is situated, however, that itself does not mean that they

had the knowledge about the execution of the documents.

7. Lastly it has been submitted on behalf of the appellants in view

of the ratio laid down in :-

                  1)       Krishna Mohan Kul @ Nani Charan Kul an Anr.
                  v.    Pratima Maity and Ors., reported in 2003 SAR
                  (Civil) 760, Supreme Court,
                  2)       Kashimir Singh v. Harnamsingh and Another,
                  reported in 2008 (2) B C J 547 (SC),
                  3)       M. Manoharan Chetti and others        v.    M/s     C.





                                            6                                 SA 596-2018

Coomaraswamy Naidu and Sons, Madras, reported in AIR 1980 Madras 212,

4) Hero Vinoth (minor) v. Seshammal, rpeorted in AIR 2006 Supreme Court 2234,

5) Madan Lal v. Mst. Gopi and another, reported in AIR 1980 Supreme Court 1754, that substantial questions of law are arising in this case requiring

admission of the second appeal.

8. Per contra, the learned Advocate appearing for respondents

No.1 to 5 relied on the reasons given by both the Courts below. It

was submitted that ample opportunity was given to the plaintiffs to

lead evidence, yet no other evidence was led in order to prove the

further particulars of the fraud. Admittedly registered instrument

has been executed by Sunderabai. In view of Section 14 (1) of the

Hindu Succession Act, she was the exclusive owner of the suit

properties. Why her own son defendant No.5 would go against her.

It has not been shown that defendant No.5 has received any

extraneous consideration. The entire litigation is because of plaintiff

No.2 who is a lawyer by profession. It will have to be presumed that

the Sub-Registrar in whose presence the sale deeds were got

executed has done his duty as contemplated under the Registration

Act and the endorsements have been put regarding asking the

7 SA 596-2018

mandatory questions. It shows that Sunderabai got the knowledge

about execution of the sale deed immediately at that moment itself.

Evidence has been led on record to show that Sunderabai had gone

to the same office earlier also on several occasions when she had

purchased the lands. Definitely she was able to make out the

difference between the sub-Registrar's office and dispensary.

Though it is stated that she has filed the suit initially, however, she

was never examined when the matter was posted for hearing i.e.

adducing evidence. She was intentionally kept away from the

witness-box and the other plaintiffs had no personal knowledge

About the alleged fraud. None of the attesting witnesses or other

persons who were present at the time of execution of the sale deeds

were examined by the plaintiffs to support their contention.

Sunderabai though illiterate, had entered into sale and purchase

transactions earlier cannot be said to be merely a Pardanashin lady

or the rules applicable to transaction with or by Pardanashin lady will

not be applicable in this case. As substantial questions of law are

not arising in the second appeal, it deserves to dismissed at the

stage of admission itself.

9. At the outset, it is to be noted that there is no dispute that the

8 SA 596-2018

suit properties were standing in the name of Sunderabai alone.

Plaintiffs had come with a case that though it was standing in her

name, it was purchased from the joint family income and, therefore,

it is joint family property. Consequently they say that Sunderabai

alone could not have disposed of that property by executing sale

deeds. Thus, burden was on the plaintiffs to prove that the said

property was purchased out of joint family income. It has come on

record that Sunderabai independently had no direct source of

income, however, in her cross-examination PW.2 Housabai has

stated that her mother-in-law i.e. Sunderabai had two agricultural

lands at Ralegan Siddhi i.e. the suit properties and Sunderabai was

owner of the same. PW.1 Mahav in his cross-examination has stated

that when the suit property was purchased in the name of

Sunderabai, her children i.e. the plaintiffs and defendant No.5 were

minor. In specific words he has admitted that he has no knowledge

from where his mother had brought money for purchasing those suit

properties. PW.2 Housabai Madhav Thorat is also saying that she

had no knowledge out of which amount her mother-in-law had

purchased the suit properties. The other witness i.e. PW.3 Bhimrao

Limbaji Thorat, PW.9 Madhukar are also admitting in specific words

that the suit properties were purchased by Sunderabai and she was

9 SA 596-2018

the sole owner. Thus, there was no cogent, concrete and conclusive

evidence with the plaintiffs to prove that joint family income was

utilized by Sunderabai to purchase those two lands.

10. Another important point to be noted is that in fact Sunderabai

had filed the suit and she was alive till 27-01-2011. The recording

of the plaintiff's evidence had started on 04-09-2010. Plaintiffs

could have definitely examined her immediately when the matter

came up for the recording of evidence. When her children were

minor at the time when the suit properties were purchased then

definitely whatever they have stated about acquisition of the said

properties and the source thereof is hearsay which cannot be

admitted in evidence. The ratio laid down in :-

1) V. K. Surendra v. V. K. Thimmaiah and others, reported in (2013) 10 Supreme Court Cases 211,

2) Dhondu s/o Bhanu Barsagade and others v. Dharma s/o Bhanu Barsagade and another, reported in 2008 (2) B C J 460,

3) Mudigowda Gowdappa Sankh and others v.

Ramchandra Revgowda Sankh (Dead) by his legal representatives and another, reported in AIR 1969 Supreme Court 1076, will not be applicable to the facts of this case as the evidence therein

10 SA 596-2018

was showing that the property was purchased out of either ancestral

income or joint family income. The learned First Appellate Court has

rightly relied on the decision in, Suman Vishnu Pathak and others v.

Usha w/o Prabhakarrao Koparkar and others, 2013 (2) Mh.L.J. 268,

wherein the consistent view of the Apex Court was taken into

consideration that :-

"If the property stands in the name of a coparcener of a Hindu Undivided Family, then presumption is that it is his self-acquired property, unless it is shown that it is acquired with the aid of nucleus of the joint family property."

11. Both the Courts below have also considered the point that

even if for the sake of arguments it is accepted that the said

property was purchased in the name of mother, yet in view of V.

Tulasamma & Ors vs V. Sesha Reddi (Dead) By L. Rs., reported in

1977 Supreme Court 1944, wherein it has been held that,

"The scope of Section 14 (1) is large and it covers every kind of acquisition of property by a female Hindu. It would be sufcient to show that the property was possessed on the date of the commencement of the Act or the property was subsequently acquired or possessed by the female then she would become the full owner of the property."

11 SA 596-2018

Taking into consideration the admissions given by the witnesses

referred above together with the interpretation of Section 14 (1) of

the Hindu Succession Act, it can be said that the suit properties were

the exclusive properties of the Sunderabai and she had the authority

to dispose them of.

12. Turning towards the allegation about fraud in respect of the

sale deeds are concerned, it was the case of the plaintifs that

Sunderabai was taken by defendants No.1 to 5 under the pretext

that she was to be taken for medical treatment. At the outset, the

witnesses examined by the plaintifs have not come with a case that

just prior to the execution of the sale deeds, Sunderabai was

sufering from any illness and there was need for some treatment to

be given to her. Merely because she was hold, we cannot presume

that she would have been in requirement of medical treatment. It is

to be noted that as regards the allegation of fraud is concerned, the

other plaintifs that is the legal heirs of Sunderabai, had no personal

knowledge since none to them had accompanied with Sunderabai.

But then when they are coming with a case as the suit was fled by

Sunderabai, then the same has been further refected in the

testimony of the witnesses that she was taken under the pretext of

giving treatment to her. Both the Courts below have taken a note of

12 SA 596-2018

the fact that on many occasions earlier Sunderabai had gone to the

same ofce i.e. the Sub-Registrar's ofce at Parner for purchase of

the suit lands. Further, one more land bearing Block No.400 was sold

by Sunderabai in the year 1987. It can be seen that plaintifs are

silent on the point that, that property was also a joint family

property, that is the source of income for purchase of that property

and whether Sunderabai had authority to sell the said land in the

year 1987. The sale deeds have been produced on record at Exhibits

44, 46, 47 and 48 which show that Sunderabai had occasion to visit

the same ofce on four occasions. It has been rightly observed by

the First Appellate Court that she was in a position to diferentiate

between the dispensary and the ofce of the sub-Registrar in view of

the fact that on earlier four occasion she had gone to the same

ofce. Coupled with this fact, the admission given by PW.2.2 Housabai

is required to be considered wherein she has stated that on the date

of her evidence i.e. on 11-08-2010 Sunderabai's memory was intact

and she was in a position to speak. W.2hen she alone had the

personal knowledge about the alleged fraud, any evidence given to

support that contention by some other person especially hearsay

witnesses, will not be permissible/ believable.

13. The disputed sale deeds are the registered sale deeds having

13 SA 596-2018

requisite endorsements as required by law at the end of the

document. Those endorsements are required to be made by sub-

Registrar after making inquiry in a summary way, that too orally.

Until the contrary is proved, we will have to presume that the said

Sub-Registrar has done his duty as contemplated under the Act. The

inquiry revealed that Sunderabai understood the consequences of

the execution of those documents and reiterated the nature of

transaction before the Sub-Registrar. She even accepted the

receipts of consideration in presence of Sub-Registrar. Therefore, it

cannot be said that the said sale deeds were got executed without

payment of consideration. Plaintifs have not produced any evidence

in rebuttal to the presumption which the endorsements by Sub-

Registrar have attracted under Section 58 of the Indian Registration

Act.

14. At the cost of repetition it can be said that both the Courts

below were justifed in arriving at a conclusion that the plaintifs had

withheld the best possible evidence by not examining Sunderabai

within permissible time.

15. The plaintifs had even raised the point that defendants had no

capacity to purchase the suit property as loan was taken by them

earlier. The point has been properly dealt with by the First appellate

14 SA 596-2018

Court in paragraph No.23 of his Judgment.

16. Sunderabai had not executed the said sale deeds in the

capacity as Karta of the family. In fact, she could not have been the

Karta though for some practical purposes she would have been

managing the afairs of the entire family. Question of legal necessity

will not arise in this case since Sunderabai was the exclusive owner

of the suit properties and she had authority/legal right to dispose of

her property.

17. As regards the limitation is concerned, the point has been

correctly assessed by both the Courts below. Article 58 of the

Limitation Act would come into play. The sale deeds were executed

on 29-01-2002 whereas the suit was fled on 17-12-2009. W.2hen we

are considering that Sunderabai was healthy, her memory was

intact, she was able to speak properly, then at least after her return

from the town i.e. from Sub-Registrar's ofce and also from the

return of plaintif No.3 and his wife to their house, she would have

disclosed where she had gone and with whom she had gone.

Testimony of PW.2.1 Madhav is totally silent on this point. Thus, in

spite of having knowledge that such document of sale deed has been

got return from her, she had not taken any action against defendants

No.1 to 5 within prescribed period of limitation. Further, it is to be

15 SA 596-2018

noted that as per the contention of the defendants, they were put in

possession of the suit properties on the date of the sale deeds.

Plaintifs have not come with a case that that possession was given

by dispossessing the plaintifs. The plaintifs were residing at Pimpri

Jalsen Tq. Parner Dist. Ahmednagar. PW.2.1, PW.2.2 and other witnesses

who have examined by the plaintif have categorically stated that

PW.2s.1 and 2 used to go frequently to Ralegaon Siddhi where the

properties are situated. How they could not have noticed that the

suit property is being cultivated by defendants No.1 to 4. Though

other witnesses have denied, PW.2.12 Dnyandev Phatangade has

admitted in the cross-examination that defendants No.1 to 4 are

cultivating the suit lands since date of the sale and they have dug a

well in the suit property, laid pipeline, levelled it and increased the

quality of the soil. W.2hen all these things were happening, why no

objection was taken by Sunderabai or the plaintifs, has not been

clarifed by them. In order to come out this theorye then the

plaintifs have led evidence which was beyond the pleadings that

they were getting the land cultivated through defendant No.4. Since

that fact is beyond pleadings, the evidence led on that point cannot

be considered at all.

18. It has come on record that Sunderabai's sons developed rivalry

16 SA 596-2018

with each other after 2006 and, therefore, it appears that it had

given rise to the suit. After execution of the sale deed by Sunderabai

in favour of defendants No.1 to 4, they were cultivating the lands

and it was never objected by Sunderabai prior to 17-12-2009. Again

it can be said that on this count also the suit is time barred.

19. The ratio laid down in : -

               1)       Krishna Mohan Kul @ Nani Charan Kul an Anr.
               v.    Pratima Maity and Ors., reported in 2003 SAR
               (Civil) 760, Supreme Court,
               2)       Kashimir Singh v. Harnamsingh and Another,
               reported in 2008 (2) B C J 547 (SC),
               3)       M. Manoharan Chetti and others        v.    M/s     C.

Coomaraswamy Naidu and Sons, Madras, reported in AIR 1980 Madras 212,

4) Hero Vinoth (minor) v. Seshammal, rpeorted in AIR 2006 Supreme Court 2234,

5) Madan Lal v. Mst. Gopi and another, reported in AIR 1980 Supreme Court 1754,

in spite of scope of second appeal, and when it can be admitted,

cannot be denied at all. However, when this Court is coming to the

conclusion that there is absolutely no perversity and wrong

appreciation of evidence, it does not give rise to any substantial

question of law. Even recently in, Balasubramanian and Anr. v. M.

17 SA 596-2018

Arockiasamy (dead) Through L.Rs., in Civil Appeal No.2066 of 2012,

decided on 02-09-2021, it has been observed that,

"Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated."

Further, in P. Velayudhan and Ors. v. Kurungot Imbichia Moidu's son

Ayammad and Ors., (1990) Supp. SCC 9, and Tapas Kumar Samanta

v. Sarbani Sen and Anr., (2015) 12 SCC 523, it has been held that :-

"In a second appeal the High Court would not be justified in interfering with the finding of fact made by the First Appellate Court since such finding referred would be based on evidence."

In other words, it can be said that from the catena of Judgments of

the Hon'ble Apex Court, it can be inferred that if the perversity is

shown then defnitely it may give rise to framing of substantial

questions of law otherwise it will not. For the aforesaid reasons,

plaintifs have failed to prove the perversity. Both the Courts have

appreciated the evidence properly and the legal points involved in

the mater have been correctly assessed and, therefore, this case is

18 SA 596-2018

not giving rise to any substantial questions of law as contemplated

under Section 100 of the Code of Civil Procedure requiring admission

of the second appeal. Hence, second appeal deserves to be

dismissed at the threshold, accordingly it is dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-