Bombay High Court
Shrihari Ganpati Sagade Lrs ... vs Ankitabai Sudam Metkar And Others on 26 February, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
950 SECOND APPEAL NO.132 OF 2018
WITH
CIVIL APPLICATION NO.2281 OF 2018
SHRIHARI GANPATI SAGADE LRS KASABAI AND OTHERS
VERSUS
ANKITABAI W/O SUDAM METKAR AND OTHERS
...
Mr. P.K. Lakhotiya, Advocate for appellants
Mr. V.P. Savant, Advocate for respondent Nos.1 and 2
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 26th FEBRUARY, 2021.
ORDER :
1 Heard learned Advocate Mr. P.K. Lakhotiya for appellants and
learned Advocate Mr. V.P. Savant for respondent Nos.1 and 2.
2 Present appellants are the original defendant Nos.2 to 4,
whereas respondent Nos.1 and 2 are the original plaintiffs. Original plaintiffs
had filed Regular Civil Suit No.18/1999 before learned 2 nd Joint Civil Judge
Junior Division, Georai, Dist. Beed for partition and separate possession as
well as declaration that four registered sale deeds are not binding on them.
The said suit came to be decreed on 27.01.2012, wherein it is held that the
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plaintiffs are entitled to get 1/6th share each in the suit properties. It was
declared that the four sale deeds were not binding on them. It will not be
out of place to mention here that the original defendant No.1 was the
husband of plaintiff No.1 and father of plaintiff No.2, who had sold the
properties, that is, pieces of the agricultural land to present respondent Nos.2
to 4. Original defendant Nos.5, 6 and 7 are the relatives of defendant No.1.
3 Being aggrieved by the said Judgment and Decree, present
appellants had filed Regular Civil Appeal No.30/2012 before the District
Court, Beed and the appeal was heard by learned District Judge-5, Beed. It
came to be dismissed on 20.12.2017. Therefore, present appeal has been
filed.
4 Original plaintiffs had come with the case that the suit property
Gat No.56 situated at village Bhatpuri, Tq. Georai, Dist. Beed was originally
admeasuring 01 H 95 R. Out of that 1/3 rd share and House No.62 in the said
village Bhatpuri was the ancestral property of the plaintiffs and defendant
Nos.1, 5 to 7. Plaintiff No.1 had contended that she had instituted suit
bearing Regular Civil Suit No.222/1985 for maintenance against defendant
No.5. It came to be decreed and charge of her maintenance was kept on Gat
No.56. Thereafter, the defendant No.1 is stated to have sold the property by
way of registered sale deeds executed on 07.05.1991, 30.07.1993,
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22.12.1993 and 15.05.1995 respectively; without legal necessity and it is
stated that those sale deeds are not binding on them.
5 At the outset, without going into the evidence also a fact requires
to be considered is that if the charge of the maintenance was kept on the
agricultural land, which was then stated to be an ancestral, then how it was
possible and if it was the self acquired property or separate property, on
which normally the charge is required to be kept in respect of maintenance,
then whether the defendant No.1 was justified in selling those properties.
Therefore, it appears that the point, as to whether the suit land was ancestral
or self acquired or separate property of the defendant No.1 ought to have
been considered from that perspective. This is also to be considered from the
point that it is stated that in execution of decree in Regular Civil Suit
No.222/1985 plaintiff No.1 had filed Regular Darkhast No.75/1988 and it is
stated that the suit property was attached in that proceedings. No doubt, in
the suit filed by the plaintiffs for partition and separate possession, the Trial
Court would not have sat as an Appellate Court but the circumstances were
required to be considered, as to whether the ancestral property could have
been attached in execution of a decree for failing to pay maintenance amount
by defendant No.1. Under those circumstances then whether plaintiffs'
contention that defendant No.1 could not have sold the property without any
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legal necessity is ought to have been considered from that perspective.
6 Though the learned Advocate for the appellants has tried to raise
point of limitation, but this Court is not of the opinion that any substantial
question of law in respect of point of limitation is arising in this case. The
suit was for partition and separate possession and the first sale deed came to
be executed on 07.05.1991. Important point to be noted is that the plaintiffs
were not praying for setting aside the said sale deeds but it is their contention
that the said sale deeds were not binding on their share. Therefore, there is
no question of point of limitation. No doubt, the learned First Appellate
Court had not framed that point specifically, but it appears that the substance
was covered in para No.13 of the Judgment.
7 Another point, that is, tried to be raised is that the wife and son
cannot file suit for partition during the life time of defendant No.1. Though
learned Advocate for the appellants has argued that point, but it appears to
be absurd. Definitely, a son can file suit for partition of the ancestral property
or joint family property during the life time of the father. In that event, the
mother would get share in the property. Plaintiff No.1 is in fact the mother of
the plaintiff No.2 and in that capacity she was also claiming her share and
not as a wife of defendant No.1.
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8 The learned First Appellate Court has observed that the
alienation of the suit property has taken place inspite of attachment of the
property in the execution proceedings, and therefore, the sale deeds are void
ab initio. First of all, it appears that certified copy of the report of the Bailiff
in Regular Darkhast No.79/1988 has been filed at Exh.72. However, whether
its reflection was made in the revenue records or not appears to be not
brought on record. A person would consider the 7/12 extract before
purchasing a land, though the 7/12 extract is not a document of title.
Further, mere completing the procedure of attachment would be sufficient or
not, itself is a question, for the simple reason that when the note of the
attachment of the property is not taken to the revenue record or even the Sub
Registrar's office, then how a third party would be able to know about such
an attachment of the property, is a question. Further, it appears that one
more execution petition appears to have been filed i.e. Regular Darkhast
No.53/1996 and the copy of the objection petition filed by the present
defendant Nos.2 to 4 was filed in the present proceedings at Exh.50, as it
appears from the Judgment of the learned Trial Judge. The effect of that
objection and the filing of the present suit at a latter point of time i.e. on
07.01.1999 is required to be considered. Therefore, case is made out to
admit the Second Appeal by framing following substantial questions of law.
Hence, following order.
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ORDER
1 Admit.
2 Following substantial questions of law are framed.
i) What was the nature of the suit property i.e. whether it
was ancestral property or joint family property of plaintiffs,
defendant Nos.1, 5 to 7 or it was a separate property of
defendant No.1 ?
ii) Whether the sale deeds executed on 07.05.1991,
30.07.1993, 22.12.1993 and 15.05.1995 in favour of defendant
Nos.2 to 4 by defendant No.1 are binding on the plaintiffs and
defendant Nos.2 to 7 ?
iii) Whether interference is required in the impugned
Judgment and Decree passed by both the Courts below.
3 Issue notice to the respondents after admission. Learned
Advocate Mr. V.P. Savant waives notice for respondent Nos.1 and 2. Notices
of respondent Nos.3 to 6 made returnable on 14.06.2021.
4 Record and Proceedings is already received with paper book.
( Smt. Vibha Kankanwadi, J. )
agd
