Bombay High Court
Praomod Dattatriya Kand vs Sudha Krishna Kand on 1 February, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.578 OF 2013
Smt. Sudha Shrikrishna Kand,
Age 69 years, Occupation Household,
R/o Jivanprem Housing Society,
Panch Pakhadi, Thane (West). ...Appellant
(Original Plaintiff/Appellant)
VERSUS
Shri Pramod Dattatraya Kand,
Age 55 years, Occupation Business,
R/o 111, Renawikarnagar,
Savedi, Ahmednagar. ...Respondent
(Original Defendant/Respondent)
.....
Advocate for Appellant : Mr. M. S. Kulkarni.
Advocate for Respondent : Mr. L. B. Pallod
.....
WITH
SECOND APPEAL NO.581 OF 2013
Pramod Dattatray Kand,
Age 53 years, Occupation Business,
R/o 111, Renawikarnagar,
Savedi, Ahmednagar. ...Appellant
(Original Defendant)
VERSUS
Sudha Shrikrushna Kand,
Age 66 years, Occupation Household,
R/o Jeevanprem Society, Block No.6,
Pachpakhadi Tq. Dist. Thane. ...Respondent
(Original Plaintiff)
.....
Advocate for Appellant : Mr. L. B. Pallod
Advocate for Respondent : Mr. M. S. Kulkarni.
.....
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2 SA 578-2013, 581-2013, CA 133-2021
WITH
CIVIL APPLICATION NO.133 OF 2021
IN SA/581 OF 2013
Pramod s/o Dattatraya Kand,
Age 62 years, Occupation Service,
R/o Plot No.111, Revikarnagar,
Savedi, Ahmednagar. ...Applicant
VERSUS
Sow. Sudha Krishna Kand,
Age 71 years, Occupation Nil,
R/o Jeevanprem Housing Sosa
B Wing Flat No.5, Second Floor
Pachpakhadi Gurukul Road,
Thane (W). ...Respondent
.....
Advocate for Applicant : Mr. L. B. Pallod
Advocate for Respondent : Mr. M. S. Kulkarni.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 01-02-2021.
ORDER :
1. Both the appeals are arising out of concurrent Judgments and
decrees passed in Regular Civil Appeal No.190 of 2008 and Regular
Civil Appeal No.232 of 2008, by learned District Judge-5,
Ahmednagar, dated 06-12-2012 by which both the appeals filed by
the respective appellants challenging the Judgment and decree
passed by learned Civil Judge, Senior Division, Ahmednagar in
Special Civil Suit No.55 of 2007 dated 25-06-2008 came to be
3 SA 578-2013, 581-2013, CA 133-2021
confirmed. By the said Judgment and decree the learned Civil Jude,
Senior Division, Ahmednagar had partly decreed the suit. Original
plaintiff was held to be the owner of half of the suit property i.e. plot
No.111 out of land Survey No.8 (new Survey No.11) situated at
Savedi admeasuring 3200 square feet. The defendant was held to
be the owner of the other half and defendant was restrained from
obstructing the enjoyment of the said half of the plot by the plaintiff.
It was declared that the Will executed by the father of the defendant
on 28-04-1994 in favour of defendant was held to be not binding on
the plaintiff. Further Court Commissioner was directed to be
appointed for giving possession of half of the suit property to the
plaintiff.
2. Before considering the dispute between the parties what is
admitted to them is required to be considered. The suit land/ plot
was purchased in the name of plaintiff and father of defendant on
24-02-1983. Plaintiff is the sister-in-law (brother's wife) of
defendant. A construction was made on the said plot and as such
the suit property consisted of a built up house and open space.
Father of the defendant expired prior to the suit.
3. With the above said background, the plaintiff had come with a
4 SA 578-2013, 581-2013, CA 133-2021
case that in fact she had incurred all the consideration amount
required for the purchase of the suit plot though her father-in-law
was shown as joint purchaser of the suit plot. Thereby the plaintiff
contended that the suit property is her self-acquired property. She
has made construction on the said plot at her own expenses. The
father-in-law was fully aware about the said fact and, therefore,
executed a consent deed (styled as 'Sammati Patra') in favour of
plaintiff on 10-03-1983. According to the plaintiff by executing the
said consent deed the father-in-law had transferred his half share in
the suit property in favour of the plaintiff thereby making her as
exclusive owner of the suit property. Plaintiff had further come with
a case that the father-in-law had no other accommodation so also
the defendant was not having and, therefore, by her consent they
started residing in the suit property. By taking undue advantage of
the old age of the father-in-law, the defendant got executed Will in
his favour on 28-04-1994. According to the plaintiff the defendant is
trying to obstruct the plaintiff from enjoyment of the property. The
defendant is occupying the suit property illegally and, therefore, she
filed suit for declaration, possession and permanent injunction.
4. The defendant had resisted the suit by filing written statement.
5 SA 578-2013, 581-2013, CA 133-2021
He denied those contentions which are against his interest. It has
been contended that plaintiff's husband, his father and he himself
were the members of joint Hindu family. They had agricultural land
as well as a Wada at Sakurdi, Taluka Khed (Rajgurunagar) District
Pune. His father was getting huge income from the agricultural
land. Plaintiff's husband was a government servant. It was then
realised that it would not be proper to take immovable properties in
the name of that government servant and, therefore, their father i.e.
Dattatraya had purchased various properties at Ahmednagar,
Nashik, Thane, Brahmangaon. All these properties were purchased
from the income of the joint Hindu family property. Plaintiff has
equal share in those properties. In order to deprive him of getting
his share, the plaintiff has brought a false suit. His father has left a
genuine and legal Will bequeathing the property in his favour. He,
therefore, prayed for dismissal of the suit.
5. As aforesaid, after the issues were framed, parties have led
evidence in the form of documents as well as oral. After considering
the evidence on record, the learned Trial Judge has decreed the suit
partly. Both the parties preferred separate appeals. It appears that
both the appeals were heard together and decided on the same date
6 SA 578-2013, 581-2013, CA 133-2021
by the same Judge, however for the reasons best known to him, two
separate Judgments have been given. This Court time and again
has given caution to the Judicial Officers that they should avoid
writing such Judgments which would create problems and
clumsiness. When in both the appeals challenge was to the same
decree then both the appeals could have been disposed of by
common Judgment. Both the appeals have been dismissed, hence
both of them have filed these two second appeals.
6. Heard learned Advocate Mr. M. S. Kulkarni for the appellant
and learned Advocate Mr. L. B. Palod for the respondent in Second
Appeal No.578 of 2013, and vice versa in Second Appeal No.581 of
2013.
7. It has been vehemently submitted on behalf of original plaintiff
that both the Courts below have not considered the evidence
properly. The consent deed executed by deceased Dattatraya in
favour of plaintiff on 10-03-1983 was duly proved at Exhibit 34. On
the basis of said document both the Courts ought to have considered
that original plaintiff had become exclusive owner on 10-03-1983
itself. Both the Courts have held that the Will allegedly executed by
Dattatraya in favour of defendant on 28-04-1994 is not duly proved
7 SA 578-2013, 581-2013, CA 133-2021
and has no legal effect, under such circumstance, the consequential
weightage ought to have been given to the consent deed. In fact
the consent deed was executed prior in time in favour of plaintiff and
by effect of the said consent deed when the plaintiff had become the
exclusive owner of the suit plot then deceased Dattatraya had no
right to execute any Will in favour of the defendant. Defendant
cannot be said to be the owner of half of the land for the simple
reason that he has not contributed to the consideration amount.
Plaintiff had proved that she had spent the entire amount of
consideration out of her own pocket. Both the Courts below ought
to have held that the plaintiff had become exclusive owner of the
entire suit plot and accordingly the consequential reliefs ought to
have been granted.
8. Learned Advocate for the original defendant vehemently
submitted that as regards the consent deed dated 10-03-1983 is
concerned, it has been rightly considered by both the Courts below
that it has no legal sanctity. It was not a registered document
though it is stated that by virtue of the said document the title has
been given by the father-in-law to the daughter-in-law. However,
both the Courts below had failed to appreciate the evidence in
8 SA 578-2013, 581-2013, CA 133-2021
respect of Will dated 28-04-1994 executed by Dattatraya in favour
of defendant. Defendant had examined the wife of attesting witness
to the Will. The attesting witness though alive, was suffering from
paralytic attack and, therefore, he was unable to appear before the
Court. Therefore, by examining the wife of the attesting witness, all
the legal formalities have been fulfilled. Further it was a registered
document and, therefore, due weightage ought to have been given
to the said registered document. Both the Courts below have
unnecessarily discarded the Will. If the effect of the Will is given
then the defendant would be the exclusive owner of the property
and, therefore, the decree deserves to be set aside and it should be
held that the defendant is the exclusive owner of the suit plot.
9. It will not be out of place to mention here that by order dated
21-03-2016 both the appeals came to be admitted by passing a
detailed order and following substantial questions of law was
framed ;
(i) Whether the Courts below have committed
error in not considering material given by the
defendant for proof of due execution of the Will ?
In fact apart from the said substantial question of law, further
9 SA 578-2013, 581-2013, CA 133-2021
substantial question of law is also arising in view of the fact that the
plaintiff is also challenging the impugned Judgments and decrees
and on the basis of the consent deed executed on 24-02-1983 she
had become exclusive owner and, therefore, now further substantial
question of law is framed.
(ii) Whether both the Courts below were right in
discarding the plaintiff's claim that she had become
exclusive owner of the suit plot by virtue of consent
deed dated 24-02-1983 and that in fact it is the self-
acquired property of the plaintiff as she had spent for
the entire consideration of the plot ?
10. Perusal of the record would show that the plaintiff had
examined herself and she was subjected to detailed cross-
examination. She had also examined the wife of the attesting
witness to the consent deed (Exhibit 34) by which the plaintiff was
saying that she has received the exclusive ownership. If we perused
the pleadings as well as affidavit-in-chief of the plaintiff, we could
see the contrary facts tried to be canvassed. At the first place she
tried to say that she has paid entire amount of consideration. It is
not in dispute that the sale deed in respect of suit plot stands in the
name of plaintiff as well as her father-in-law. In clear terms it
appears that she is not coming with a case that though the name of
10 SA 578-2013, 581-2013, CA 133-2021
the father-in-law has been included in the sale deed, yet he cannot
be said to be titled owner as she had spent the entire amount of
consideration. But then she cannot do so for the simple reason that
she is not allowed to raise a plea that her father-in-law was a
Benami holder in view of the prohibition under the Benama
Prohibition Act. She has tried to contend that since she had paid the
entire amount of consideration, she was the exclusive owner itself,
however in order to leave no room for any complain, her father-in-
law executed Exhibit 34 on 10-03-1983. If we want to rely on the
said document then she will have to accept that her father-in-law
was the owner of the half portion. The title of the said half portion
could not have been transferred in her name by the father-in-law
without executing a legal document. It could have been either only
by gift deed, sale deed or Will deed. The said consent deed is
neither registered nor it is on a duly stamped paper. Therefore even
if we accept that the execution of that document has been proved,
yet it cannot be said to be a legal document which could have
transferred title of the father-in-law in her favour. Therefore, her
contention that she has become absolute owner of the suit plot since
1983 has been rightly discarded by both the Courts below.
11 SA 578-2013, 581-2013, CA 133-2021
11. As regards the Will executed by father-in-law on 28-04-1994 is
concerned, the defendant had come with a case that in fact the suit
plot was purchased by his father from his own income. Plaintiff's
name is taken in the sale deed only to please plaintiff. He has given
reason that plaintiff's parents had expired when she was a child and
she was brought up by her paternal aunt. Since she could not get
the love affection of her parents, the father-in-law had decided to
get her name included in the sale deed. He has also come with a
case that plaintiff has not contributed to the amount of
consideration. Defendant cannot now raise such kind of defence for
the same reason that it is prohibited under the Benami Transaction
(Prohibition) Act. Further it appears that by way of the said Will
dated 28-04-1994, entire property has been bequeathed to the
defendant. Even if for the sake of arguments we consider that it is
properly proved, yet it can be said that since the father was owner
of only half portion, he could not have executed the Will in respect of
entire property. Now as regards the suspicious circumstances
around the said Will are concerned, they have been considered by
both the Courts below correctly. When those doubts or clouds have
not been removed by the defendant then both the Courts below
were right in discarding the evidence adduced by the defendant in
12 SA 578-2013, 581-2013, CA 133-2021
respect of the same.
12. Taking into consideration these aspects answer to first
substantial question of law would be in the negative and the answer
to the second substantial question would be in the affirmative. No
case is made out by either of the appellants to take a contrary
decision than taken by both the Courts below. There is no merit in
both the appeals and, therefore, both the appeals are dismissed. In
view of dismissal of both appeals, Civil Application No.133 of 2021
stands disposed of. Parties to bear their own costs of the
proceedings.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
