Bombay High Court
Shri. Bhausaheb Raghunath Sanap vs Smt. Ratnabai Chandrakant ... on 30 March, 2021
Bench: S. K. Shinde
7-SA-812-2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.812 OF 2015
WITH
CIVIL APPLICATION NO.1721 OF 2015
Shri Bhausaheb R. Sanap ... Appellant
Vs
Smt. Ratnabai C. Vadekar & Ors. ... Respondents
...
Ms. Vrushali Raje i/by Mr. Pramod N. Joshi for the
Appellant.
Mr. Sandip Dilip Shinde for the Respondent Nos.1 and
2.
Ms. Avanti Inamdar for Respondent Nos.6A to 6F.
CORAM : SANDEEP K. SHINDE J.
DATE : 30th MARCH, 2021.
ORAL JUDGMENT :
Appellant/defendant No.5, in the Regular Civil
Suit No.81 of 2000, instituted by respondent nos.1 and
2 herein, has preferred this appeal against the decree
dated 14th July, 2015, in Regular Civil Appeal No.68 of
2008 passed by the District Judge-2, Nifad, Nashik.
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2 Facts of the case are as follows:
Ratnabai and Satyabhamabai, respondent
nos.1 and 2 (Plaintifss instituted the suit against their
brothers Rangnath (Defendant No.1s, Raghunath Damu
Sanap (Defendant No.2s, Sister, Kamlabai (Defendant
No.3s for partition of the suit agricultural land
admeasuring 53R. The suit was instituted in December,
1998 for two fold reliefs; one, for partition and another
to set aside the sale deed executed by Rangnath
(Defendant No.1s in favour of Raghunath Damu Sanap
(Defendant No.2s. It is plaintifss case that, brother,
Rangnath, in collusion with Revenue Ofcer, recorded
his name in Revenue records, projecting suit property
had fallen to his share. Resultantly, Mutation Entry 428
was certifed. Whereafter Rangnath sold the suit
property to brother Raghunath, and as such another
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Mutation Entry 291, was certifed. Whereafter plaintifs
demanded their share, but since refused, sisters
instituted the suit. In appeals, after perusing Written
Statement of brothers, Rangnath and Raghunath,
plaintifs discovered that Rangnath had sold the suit
property to Bhausaheb, son of Raghunath. Also,
learned about, the partition deed dated 8th February,
1994, purportedly, made by Pandharinath (Father of
Plaintifs and Defendant Nos.1,2 and 4s and will dated
11th February, 1994 whereby Pandharinath bequeathed
suit property to the Rangnath. Following that, by
amending plaint, Bhausaheb (Son of Raghunaths was
impleaded as defendant no.5 and declaration was
sought, to the efect that sale deed dated 17 th
December, 1997 executed by Rangnath (Defendant
No.1s in favour of Bhausaheb (Defendants was illegal.
Also, sought a declaration that partition deed dated 8 th
February, 1994 and will of Pandharinath dated 11th
February, 1994, were illegal and not binding on them.
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Amendment was granted in August, 2005.
3 This appeal is preferred by Bhausaheb
(Defendant No.5s
4 Before the Trial Court, Bhausaheb (Defendant
No.5s had raised, the issue of limitation by taking
recourse to the provisions of Section 21 of the
Limitation Act read with Article 57. He contended, that,
in terms of Section 21, the suit instituted against him is
deemed to have been instituted in the year August,
2005 (when impleaded as defendant no.5s but at the
material time, it was barred by limitation in terms of
Article 57 of the Limitation Act. Thus, Bhausaheb,
contended prayer, seeking, to set aside the sale deed
dated 17th December, 1997, executed in his favour by
Rangnath (Defendant No.1s, was barred by limitation.
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5 Be that as it may, the learned Trial Court
upon appreciating the evidence although held, that
plaintifs have proved their 1/5th share each in the suit
property, the relief, seeking declaration to set aside
the sale deed executed by Rangnath (Defendant No.1s
in favour of appellant-Bhausaheb was declined being
barred by limitation and on this count, the suit was
dismissed.
6 It may be stated, the fnding of the Trial
Court, acknowledging, plaintifss 1/5th share each, has
not been assailed either by Ranganath nor by
Raghunath nor by Bhausaheb (Appellant hereins nor
fled cross-objections in Regular Civil Appeal preferred
by the plaintifs.
7 Appellate Court, allowed the appeal and set
aside the decree of the Trial Court. Operative order
reads as follows:
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ORDER
"(is The appeal is partly allowed,
(iis The judgment and decree passed by the
learned trial Court in RCS NO.81/2000 dated 21-02-
2006 is quashed and set aside,
(iiis Suit bearing RCS No.81/2000 is partly decreed
with costs,
(ivs Plaintif Nos.1 and 2 and defendant Nos.1,3 and
4 are entitled for 1/5th share each in the suit
property. Property be partitioned accordingly and
possession of respective shares of plaintifs and
defendant nos.3 and 4 be given to them after the
suit property is partitioned by metes and bounds,
(vs Out of the share of defendant No.1, it is already
sold by him to defendant no.5 by sale deed dated
08-12-1997 and said sale deed dated 08-12-1997
executed by defendant no.1 in favour of defendant
no.5 is valid and legal to the extent of 1/5th share of
defendant no.1,
(vis As regards remaining part of sale-deed in
respect of other excess land other than 1/5th share
of plaintifs, it is null and void and possession of
1/5th share sold to defendant no.5 be given to him,
(viis Issue perpetual injunction against defendant
no.5 thereby restraining him from alienating the
share of plaintifs and defendant nos.3 and 4 in the
suit property,
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(viiis Preliminary decree be drawn up accordingly."
8 Aggrieved by the decree passed in the
Regular Civil Appeal No.68 of 2008, Bhausaheb
(Defendant No.5s has preferred this appeal.
9 Heard learned counsel for the parties.
Perused the impugned decree.
10 Mr. Joshi, learned counsel for the
appellants, has strenuously argued that appellant is
bonafde purchaser for value and, therefore, rights
acquired by him in the suit property cannot be
defeated. He submitted admittedly, relief to set aside,
sale deed, was sought beyond the period of limitation.
Submission is, although the plaintifs had knowledge of
alienation of suit property at the time of instituting the
suit, but since appellant had been impleaded in year
2005, the relief seeking cancellation of the sale-deed
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dated 17th December, 1997, was clearly barred by
limitation. Mr. Joshi, learned counsel further submitted
that the suit property admeasures, hardly 53R and
cannot be partitioned in view of the provisions of the
Maharashtra Prevention of Fragmentation and
Consolidation of Holdings Act, 1947.
11 Admittedly, fnding, of fact in respect of
undivided share of the plaintifs in the suit property,
rendered by the Trial Court was not challenged either
by the appellant or by Rangnath (Defendant No.1s,
through whom appellant, is claiming right and interest
in the suit property. Admittedly, partition deed dated 9 th
February, 1994 and will deed dated 11th February, 1994
being not proved, right of defendant no.1, to alienate
the suit property has been negated and invalidated by
both the Courts below. Herein, the suit was for partition
and relief, to set aside the sale deed, was
consequential relief. Indisputably, the suit property was
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joint family property, in the hands of Pandharinath.
Therefore, he had no right to bequeath the suit
property to Rangnath nor had a right to execute the
partition deed, by excluding the other members of
family. As a result, defendant no.1 had no right to
alienate the suit property to appellant. Even otherwise,
alienation was not for legal necessity. A fact cannot be
overlooked that the appellant, is a member of family
and, therefore, it is to be presumed, he had knowledge
about the character of the property. In these
circumstances, alienation of the suit property was an
attempt to frustrate and defeat the plaintifss right.
12 Having heard learned counsel for the parties,
in my view, in consideration of the facts of the case
and the evidence on record, in my view, Appellate
Court has correctly decreed the suit. As such, no
interference is called for. Appeal does not give rise to
substantial questions of law. Appeal is, therefore,
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dismissed. Civil Application is disposed of.
(SANDEEP K. SHINDE, J.)
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