Bombay High Court

Narendra Bhausaheb Marathe ... vs Vikas Bhausaheb Marathe (Bhagat) ... on 8 February, 2021

Bench: V. V. Kankanwadi

                                                          773-2018-SA with 11607-2018-CA.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                          SECOND APPEAL NO.773 OF 2018
                                       WITH
                        CIVIL APPLICATION NO.11607 OF 2018

Narendra Bhausaheb Marathe (Bhagat)                           ... Appellant

          Versus

Vikas Bhausaheb Marathe (Bhagat) and others                  ... Respondents

                                 ..........
Mr. S. P. Bramhe and Mr. R. S. Devdhe, Advocates for appellant.
Mr. G. S. Yadav, Advocate for respondent No.1.
                                 ..........

                                    CORAM        : SMT. VIBHA KANKANWADI, J.

                                    DATE         : 8th February, 2021

ORDER :-


.         Present second appeal has been filed by original defendant No.2

to challenge the judgment and decree dated 04-07-2018 passed in

Regular Civil Appeal No.59 of 2013 by learned District Judge-5, Dhule

modifying the judgment and decree dated 08-04-2013 passed in Regular

Civil Suit No.66 of 2012 (Old Special Civil Suit No.34 of 2008) by

learned Joint Civil Judge Junior Division, Shirpur, District Dhule.

2. Before turning to the disputed facts, certain admitted facts are

required to be considered. Relationship between the parties is admitted.

Original plaintiff i.e. present respondent No.1 and present appellant and

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other respondents are the legal heirs of Bhausaheb Marathe and original

defendant No.1 - Kalabai Bhausaheb Marathe. Bhausaheb Marathe

expired on 06-07-1999 and Kalabai expired during the pendency of the

suit i.e. on 08-10-2011. Original plaintiff had filed the said suit for

partition and separate possession as well as declaration and perpetual

injunction. Suit agricultural lands bearing Gut No.135/2 admeasuring

68 R and Gut No.67 admeasuring 1 Hectare 36 R situated in village

Untawad and Savargaon stood in the name of Kalabai. It is further

admitted position that the deceased Bhausaheb was serving in

Maharashtra State Road Transport Corporation and he had not inherited

the agricultural lands.

3. The plaintiff had contended that there was a joint Hindu family of

himself and the other legal heirs of Bhausaheb. He was residing at Dhar

in Madhya Pradesh in connection with his business. Under those

circumstances, all the suit properties i.e. apart from the above-

mentioned agricultural lands, there was Gut No.135/1 admeasuring 68

R situated at Untawad and two house properties were in possession of

defendant No.1, the mother. Defendant Nos.2 and 3 i.e. the sons of

defendant No.1 were residing separately, but used to look after Kalabai

along with plaintiff. Due to the old age, Kalabai started residing with

defendant No.2 four months prior to the institution of the suit. It is the

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contention of the plaintiff that taking disadvantage of the said situation,

defendant No.2 got executed sale deed dated 15-12-2007 of Gut No.67

by showing consideration of Rs.3,00,000/- by fraud on defendant No.1.

Defendant No.1 is suffering from mental disorder and was under

treatment from psychiatrist. He states that defendant No.1 - Kalabai

was not the absolute owner of the said property and, therefore, had no

right to sell out the said land. The said sale deed is not binding on the

other heirs. He, therefore, prayed for partition and separate possession

of his 1/7th share and consequential prayer in respect of declaration,

permanent injunction was prayed.

4. Defendant No.1 - Kalabai herself had resisted the said suit by

filing written statement. She denied that their existed a joint family as

contended by the plaintiff. According to her, in the lifetime of father, the

plaintiff had relinquished his right and interest in the suit properties by

accepting money. It is stated by her that she had purchased the suit land

Gut No.135/1 in the name of her husband out of love and affection. In

fact, she had independent source of income. Agricultural land bearing

Gut No.135/2 and Gut No.67 are her self acquired properties. Further,

she had purchased plot No.32 from the income of landed properties.

House No.355/1 has been inherited by her from her parental side. The

salary of her husband was very much meager and even at the time of his

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retirement, he was not getting sufficient income to meet the expenses of

the family. The marriage of her daughters has been performed with her

financial assistance by deceased - Bhausaheb. Defendant No.2 was

taking her care properly and, therefore, she has sold the agricultural

land to him as she was in need of money. It is stated that the plaintiff

has become greedy and, therefore, he want to grab the properties by

harassing her. Defendant No.2 has also given the written statement

separately on similar lines, however, later on after defendant No.1 -

Kalabai expired, defendant No.2 has contended that defednant No.1 has

executed will in his favour on 21-08-2009. By the said will, all the suit

properties have been bequeathed by her to defendant Nos.2 and 6. After

Kalabai's death, defendant Nos.2 and 6 have become absolute owner of

those properties.

5. Defendant Nos.3 and 4 failed to appear and, therefore, the matter

has proceeded ex parte against them, whereas defendant No.5 though

appeared, failed to file her written statement.

6. Defendant No.6 has filed separate written statement, which is on

the line of the written statement of defendant Nos.1 and 2.

7. After the parties had put their pleadings, issues came to be

framed. Parties have led oral as well as documentary evidence. After

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considering the evidence on record, the learned Lower Court has

decreed the suit partly. It was held that the plaintiff is entitled to have

1/6th share in Gut No.135/1 and two house properties i.e. Plot No.32

and House No.355/1. Defendant Nos.2 and 6 were also entitled to hold

1/6th share each in those properties, however, the suit came to be

dismissed in respect of the other two agricultural lands. The relief of

declaration in respect of sale deed dated 15-12-2007 was rejected.

8. Original plaintiff challenged the said judgment and decree in the

aforesaid Civil Appeal. It will not be out of place to mention here that

respondent No.2 therein i.e. present appellant had filed cross objections.

After considering the submissions from both sides, the learned first

Appellate Court has allowed the appeal in its entirety and rejected the

cross objections. The suit came to be decreed in its entirety. Sale deed

dated 15-12-2007 was declared as null and void. 1/6th share each was

given to plaintiff as well as defendant Nos.2 to 6. Under the said

circumstance, the present appellant is challenging the said judgment and

decree.

9. Heard learned Advocate Mr. S. P. Bramhe and learned Advocate

Mr. R. S. Devdhe for the appellant and learned Advocate Mr. G. S. Yadav

for respondent No.1.

773-2018-SA with 11607-2018-CA.odt

10. Learned Advocate for the appellant submitted that both the Courts

have held that agricultural land Gut No.135/1 and the house properties

are only the properties left by Bhausaheb and agricultural land bearing

Gut No.67 and 135/2 are the self acquired properties of Kalabai. But

then, the learned first Appellate Court erred in holding that defendant

No.1 - Kalabai was not mentally sound, when she executed sale deed as

well as will. The evidence in respect of execution of the sale deed in her

sound disposing state of mind was accepted by defendant No.1 herself in

her written statement. It was a registered document and, therefore,

heavy burden was on the plaintiff to prove that she was not in a sound

disposing state of mind. Evidence of the medical practitioner would

show that he had examined defendant No.1 on 24-11-2004. At that

time, she was suffering from hallucination and psychosis, but said P.W.3

Dr. Pravin Salunkhe himself had admitted that schizophrenia is a curable

disease. The sale deed came to be executed on 15-12-2007 i.e. almost

three years after she was examined by P.W.3 Dr. Pravin Salunkhe.

Therefore, only on the basis of the evidence of Dr. Pravin Salunkhe, the

learned first Appellate Court ought not to have come to the conclusion

that on the date of the execution of the sale deed, Kalabai was not

having sound disposing state of mind. The will came to be executed two

years later to the sale deed and, therefore, there is no proper

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appreciation of evidence, which was then properly considered by the

learned Trial Judge. Under these circumstances, substantial questions of

law are transpiring requiring admission of the second appeal.

11. Per contra, the learned Advocate representing the original

plaintiff submitted that a detailed and properly assigned reasons have

been given by the first Appellate Court, which were not given by the

learned Trial Judge. When the plaintiff had led evidence of Dr. Pravin

Salunkhe to show that Kalabai had mental problem on 24-11-2004, the

onus shifted on the shoulders of defendants to disprove that piece of

evidence. But, he has not led any evidence except the evidence of the

attesting witness, who cannot be said to be the expert. He has also

examined witness to the sale deed, who is in fact brother-in-law of

defendant No.2. Further, the another witness to the sale deed was also

from his group or in such a relationship that he would support

defendant No.2. There was no evidence led by defendant No.2 to show

that he had paid consideration amount to the mother. When there is

proper appreciation of evidence and the decision given by the learned

first Appellate Court, it does not require to be interfered with. No

substantial question of law is arising in this case.

12. At the outset, it is to be noted that we are not required to scan the

evidence in detail at the stage of admission, but the provisions of Section

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100 of the Code of Civil Procedure makes it mandatory for this Court to

consider it on the basis of the record as well as the submissions as to

whether questions of law have been raised or not, which then would be

required to be gone into in detail at the time of final hearing by this

Court. Here, on the same set of facts and evidence, both the Courts

have come to the conclusion that only the two house properties and

agricultural land bearing Gut No.135/1 are the properties left by

Bhausaheb. Agricultural land bearing Gut No.135/2 and Gut No.67 are

hold to be the self acquired properties of Kalabai. Therefore, in respect

of those self acquired properties, definitely, Kalabai would be having

every right to dispose of them as per her choice. Now, the plaintiff had

come with the case that the sale deed executed by her on 15-12-2007 in

favour of defendant No.2 is illegal and she was not in sound disposing

state of mind on the date of the alleged execution of the sale deed. He

has examined P.W.3 Dr. Pravin Salunkhe, who had examined her on

24-11-2004. Definitely, the evidence will have to be scanned as to

whether on the date of execution of the sale deed Kalabai had sound

disposing state of mind, because there appears to be more than 2½ years

of gap when she was examined by P.W.3 Dr. Pravin Salunkhe and the

date of sale deed. Further, as regards the will that is alleged to be

executed on 21-08-2009, it is also required to be considered as to

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whether that is a legal transfer of rights in the property or legal

bequeathing of the property to the exclusion of her own other children.

Important point that is required to be gone into is that Kalabai had filed

her written statement on 08-09-2009 and it is stated that she had

executed will on 21-08-2009. No doubt, the effect of the will would be

after the death of a person executing the will, but then non mentioning

of execution of such document by her in her written statement has been

taken as adverse fact by the learned first Appellate Court. Whether it

was necessary for her to make a mention about the will that was left by

her, is required to be considered and, therefore, taking into

consideration over all aspects involved in the matter, definitely, case is

made out to admit the second appeal.

13. Hence, Admit.

14. Following substantial questions of law have been framed :-

(i) Whether Kalabai (original defendant No.1) was in sound disposing state of mind at the time of execution of sale deed dated 15-12-2007 and will dated 21-08-2009?

(ii) Whether the said sale deed and will is binding on the parties to the suit and appeal?

(iii) Whether plaintiff and defendant Nos.2 to 6 have share in all

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the suit properties? If yes, what is the share of each one of them?