Bombay High Court
Rukhminibai Maruti Pachankar Thr ... vs Prakash Nivrutti Pachankar on 26 February, 2022
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 832 OF 2012
WITH CA/14322/2012 IN SA 832/2012
Smt. Rukhminibai Maruti Pachankar,
Age 76 years, Occ. Household and
Agriculture, r/o. Dighol, Tq. Jamkhed,
Dist. Ahmednagar, Through General
Power of Attorney Holder
Shri. Sandipan s/o Wamanrao Ratnaparkhe,
Age 57 years, Occ. Agril. & Service,
R/o. Gawande Galli, Chaware Wada,
At post Tq. Karjat Dist. Ahmednagar. ... Appellant
(Orig. Plaintiff)
VERSUS
Prakash Nivrutti Pachankar,
Age 56 years, Occ. Service,
R/o. Panchayat Samiti, Karjat,
Tq. Karjat, Dist. Ahmednagar. ... Respondent.
(Orig. Defendant)
...
Advocate for the Appellant : Mr. V.D. Hon, Senior Advocate with Mr.
A.D. Sonkawade.
Advocate for the Respondent : Mrs. Anjali Dube (Bajpai)
...
WITH
SECOND APPEAL NO. 833 OF 2012
WITH CA/14323/2012 IN SA 833/2012
Smt. Rukhminibai Maruti Pachankar,
Age 76 years, Occ. Household and
Agriculture, r/o. Dighol, Tq. Jamkhed,
Dist. Ahmednagar, Through General
Power of Attorney Holder
Shri. Sandipan s/o Wamanrao Ratnaparkhe,
Age 57 years, Occ. Agril. & Service,
R/o. Gawande Galli, Chaware Wada,
At post Tq. Karjat Dist. Ahmednagar. ... Appellant
VERSUS
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1) Prakash Nivrutti Pachankar,
Age 56 years, Occ. Service,
R/o. Panchayat Samiti, Karjat,
Tq. Karjat, Dist. Ahmednagar.
2) Balbhim Sona Tagad,
Age 53 years, Occ. Agriculture,
R/o. Dighol, Tq. Jamkhed,
Dist. Ahmednagar. ... Respondents.
...
Advocate for the Appellant : Mr. V.D. Hon, Senior Advocate with Mr.
A.D. Sonkawade.
Advocate for the Respondent No. 1 : Mrs. Anjali Dube (Bajpai).
Advocate for the Respondent No. 2 : Mr. L. V. Sangit.
...
WITH
SECOND APPEAL NO. 206 OF 2013
WITH CA/11603/2013 IN SA 206/2013.
Balbhim s/o Sonba Tagad,
Age 46 years, Occ. Agriculture,
R/o. Dighol, Tq. Jamkhed,
Dist. Ahmednagar. ... Appellant
(Orig. defendant No 3)
VERSUS
1) Neelawati Shamrao Lohakare,
since deceased through her
legal heirs and representatives.
1A) Shamrao s/o Eknath Lohakare,
Age 70 years, Occ. Agriculture.
1B) Ramchandra s/o Shamrao Lohakare,
Age 38 years, occ. Agriculture.
1C) Sakharam s/o Shamrao Lohakare,
Age 33 years, Occ. Agriculture.
All r/o. Loni Vyankatnath,
Tq. Shrigonda, Dist. Ahmednagar.
2) Mangal Nivrutti Pachankar,
@ Anuradha Nandkumar Bipetkar,
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Age 40 years, Occ. Agriculture,
R/o. Pandharpur, Tq. Pandharpur,
Dist. Solapur.
3) Rukhminibai Maroti Pachankar,
Age 60 years, Occ. Agriculture.
4) Changdeo s/o Tryambak Pachankar
...abated as per order dt. 25.09.2013.
5) Prakash s/o Nivrutti Pachankar,
Age 40 years, Occ. Agriculture,
R/o. Shrigonda, Tq. Shrigonda,
Dist. Ahmednagar.
6) Sandipan s/o Waman Ratnaparkhe,
Age 45 years, Occ. Agriculture.
7) Dattatraya s/o Maroti Pachankar,
Age 40 years, Occ. Agriculture.
8) Dilip s/o Maroti Pachankar,
Age 36 years, Occ. Agriculture.
9) Sundarabai Maroti Pachankar,
@ Sundarabai Asaram Pandit,
Age 46 years, Occ. Agriculture,
R/o. Ekdara, Tq. Majalgaon,
Dist. Beed.
10) Usha Ramesh Pandit,
Age 40 years, Occ. Household,
Respondent Nos. 6 to 8 and 10
R/o. Dighol, Tq. Jamkhed,
Dist. Ahmednagar. ... Respondents.
(Resp Nos. 1 & 2 Orig.plaintiffs,
respondent Nos. 3 to 10 original
defendants.)
...
Advocate for the Appellant : Mr. L. V. Sangeet.
Advocate for the Respondent Nos. 1A to 1C & 2 : Mr. D.B. Rode & S.S
Kulkarni.
Advocate for Respondent Nos 3, 7 to 10 : Mr. V.D. Hon, Senior Advocate
with Mr. A.D. Sonkawade.
Advocate for the Respondent No. 14 : Mrs. Anjali Dube (Bajpai)
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CORAM : MANGESH S. PATIL, J.
RESERVED ON : 14.02.2022.
PRONOUNCED ON : 26.02.2022.
JUDGMENT :
Heard both the sides.
2. The appeals arise from the following set of facts :
(a) The appellant in Second Appeals No. 832/2012 and 833/2012
is the original plaintiff whereas the respondent Prakash in Second Appeal
No. 832/2012 and respondent No. 1 in Second Appeal No. 833/2012 is the
defendant.
(b) The appellant averred that the respondent had agreed to sell
the suit property by receiving Rs. 75,000/- towards earnest and executed an
agreement of sale on 13.12.2000. It was agreed that the sale-deed was to be
executed till 30.03.2001. He having refused to execute the sale-deed she
filed the suit for specific performance.
(c) The respondent contested the suit and denied to have executed
any agreement of sale and even about having received any earnest money.
(d) The Trial Court refused specific performance but granted the
relief of refund of the earnest money and directed it to be refunded with
interest at the rate of 18% per annum.
(e) Being aggrieved, both the sides that is the appellant to the
extent of refusal of specific performance filed Regular Civil Appeal No.
323/2006 and the respondent to the extent aggrieved by the rate of interest
awarded by the trial court preferred Regular Civil Appeal No. 330/2006.
(f) Both these appeals were decided by the common judgment and
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order under challenge.
(g) The appellate court confirmed the decree to the extent it
refused specific performance of the contract but allowed the appeal of the
respondent and reduced the rate of interest to 6% per annum. Hence the
first two appeals.
3. Learned Senior Advocate Mr. Hon would submit that the trial court
was grossly in error in refusing specific performance on the sole ground that
the respondent had already agreed to sell and had actually sold the suit
property to respondent No. 2 Balbhim Sonba Tagad. Even the appellate
court failed to appreciate such a lapse on the part of the trial court in
refusing specific performance for this peculiar reason. In fact, such conduct
of the respondent Prakash clearly demonstrates a collusion between him and
respondent No. 2 Balbhim. He would further submit that in fact even
respondent No. 2 Balbhim had also filed the suit seeking specific
performance and both these suits were decided by the trial court on the
same day and therefore it is not that the suit property was already sold by
the respondent and was not available for being sold to the appellant. Both
the courts below, therefore, have not exercised the discretion vested in them
within the prescribed parameters of law and the observations and the
conclusions drawn by them are perverse and arbitrary and give rise to
substantial questions as indicated in the appeal memos.
4. The learned advocate would further submit that without there being
any cogent and convincing reason, even the rate of interest awarded by the
trial court has been unnecessarily reduced by the lower appellate court.
Therefore, even to that extent, at least, the judgment and order of the lower
appellate court deserves to be reversed.
5. Learned advocate Mrs. Dube for the respondent Prakash vehemently
submitted that this being a second appeal, when the courts below have
concurrently held the appellant to be not entitled to the discretionary relief
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of seeking specific performance, this court cannot reverse the findings of
facts which are based on correct appreciation of the facts, circumstances and
evidence.
6. The learned advocate would further submit that since the respondent
No. 1 Prakash had already agreed to sell the suit property to the respondent
No. 2 Balbhim by an agreement of sale which was first in point of time, even
otherwise, the suit of the appellant for specific performance could not have
been decreed.
7. She would further point out that even an independent suit (Regular
Civil Suit No. 251/2003) for general partition was filed by all the heirs of
the common ancestor Trimbak which included even the suit property in the
present matter. The appellant Rukhminibai is the wife of one Maruti who
was one of the sons of Trimbak whereas respondent No. 1 Prakash is the son
of one Nivrutti who was also a son of Trimbak. One of the daughters of
Trimbak by name Nilawati and the sister of respondent No. 1 Prakash by
name Mangal filed that suit for partition which was dismissed. However, in
appeal, bearing Regular Civil Appeal No. 326/2006 by the judgment and
order passed on the same date on which the appeals in the present matters
were decided. The lower appellate court allowed the appeal, quashed and
set aside the judgment and order passed by the trial court and decreed the
suit directing partition and separate possession of the shares. Even the sale-
deed executed by the respondent No. 1 Prakash in favour of respondent No.
2 Balbhim has been held to be not binding on the other sharers. In Second
Appeal No. 206/2013 respondent No. 2 Balbhim is challenging the judgment
and order passed by the lower appellate court decreeing the suit for
partition and holding that the sale-deed in his favour was not binding on
the other sharers except respondent No. 1 Prakash.
8. For these peculiar reasons, the learned advocate for the respondent
Prakash vehemently submitted that in view of such complexity of matter
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and the dispute, independent of the reasoning assigned by the courts below,
the propriety demands that the discretion may not be exercised in granting
specific performance to the present appellant.
9. In view of such peculiar state of affairs, therefore, I have heard even
the Second Appeal No. 206/2013 along with the first two appeals, for
admission.
10. As can be appreciated, it was a suit for partition with a declaration
that the sale-deed and the agreement of sale executed by respondent No. 1
Prakash in respect of the one of the suit properties in favour of Changdeo
who was his paternal uncle and who was the defendant No. 2 in that suit
and respondent No. 4 (against which the appeal stood abated in view of his
death) and, the agreement of sale in favour of the respondent No. 2 Balbhim
who was defendant No. 3 in that suit, was not binding on the other sharers.
Though the trial court recorded a finding that all the suit properties were
the ancestral and joint family properties it refused to direct partition by
upholding the contention of respondent No. 1 Prakash of there being an
antecedent partition of the year 1987.
11. The lower appellate court upheld the finding of the trial court to the
extent of holding the suit properties to be the ancestral and joint family
properties but refused to concur with the finding of trial court that there was
an antecedent partition and one of the plaintiffs namely Nilawati who was
one of the daughters of Trimbak had relinquished her share. The lower
appellate court also held that the plea of respondent No. 1 Prakash and
respondent No. 2 Balbhim about the former having sold agreed to sell
couple of suit properties being Karta to meet legal necessity was not duly
proved. It, therefore, allowed the appeal and by reversing the judgment and
order of the trial court decreed the suit by working out the shares of each
individuals.
12. The learned advocate Mr. Sangit for the respondent No.2 Balbhim
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who is appellant in Second Appeal No. 206/2013 would submit that the
lower appellate court has without sufficient and cogent reasons refuted the
strong evidence regarding previous partition which was evidenced by
recording mutation in the revenue record and also illegally refused to notice
that plaintiff No.1 Nilawati had relinquished her share. Since there are
inconsistent findings of the courts below, the Second Appeal No. 206/2013
deserves to be admitted.
13. The learned advocate Mr. Hon for the appellant Rukhaminibai who is
the respondent in Second Appeal No. 206/2013 would submit that there are
no cogent and sufficient reasons to cause any interference in the judgment
and order of the lower appellate court. It has given sound reasons to
discard the defence of previous partition and relinquishment. The finding to
the extent that all the properties are the ancestral and joint family properties
is a concurrent finding of facts. Once it was demonstrated that there was no
previous partition and even the alleged relinquishment was not evidenced
by any written and registered document, it was obvious for the lower
appellate court to have decreed the suit for partition. No substantial
question of law arises even in this appeal.
14. It is a matter of record that both the courts below have concurred to
the extent of holding that respondent No. 1 Prakash had agreed to sell the
suit property to appellant Rukhaminibai by accepting earnest money to the
tune of Rs. 75,000/-. They have concurrently held that though she had
succeeded in establishing such agreement of sale and her readiness and
willingness, they have also concurred in refusing to decree the claim for
specific performance by noticing variety of facts and circumstances.
15. The lower appellate court has specifically mentioned that respondent
No. 1 Prakash had already executed a similar agreement of sale in respect of
the self-same property in favour of respondent No. 2 Balbhim and even the
latter was seeking specific performance and whose suit was subsequently
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decreed and the decree was confirmed by the time appellant
Rukhaminibai's appeal was heard. It also noted that apart from such claim
that was being put forth by respondent No. 2 Balbhim, even the suit
properties were the ancestral and joint family properties in respect of which
a separate suit for general partition was filed by Nilawati and Mangal which
is the subject matter in Second Appeal No. 206/2013. It was concluded that
since the suit property was a subject matter of dispute in that suit, it was not
proper to grant specific performance.
16. True it is that as far as the first ground for refusal of specific
performance is concerned, since respondent No. 2 Balbhim as well as the
present appellant Rukhaminibai were claiming specific performance and
both the suits were being tried by the same court and were being decided on
the same date, such claim by respondent No. 2 Balbhim for specific
performance could not have been the sole ground to justify refusal of
specific performance albeit he was found entitled to, and indeed it was not
the sole reason.
17. As is mentioned earlier, independently also there was one more reason
to refuse specific performance in as much as the suit property was a subject
matter of a pending dispute wherein number of sharers were demanding
partition. Once having noticed that there was a cloud on the right of the
respondent No. 1 Prakash to alienate the suit property, it was indeed a just
and plausible ground to refuse specific performance.
18. Interestingly, though I am disposing of the other Second Appeal No.
206/2013 filed by Balbhim, it is important to note that even the alienation
by respondent No. 1 Prakash in favour of respondent No. 2 Balbhim has
been held to be not binding on the other sharers including the present
appellant Rukhaminibai.
19. If such is the peculiar state of affairs, the conclusion of the two courts
below in refusing to exercise the discretion in granting specific performance,
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by no stretch of imagination, can be said to be either perverse or arbitrary
much less giving rise to any substantial question of law.
20. So far as the challenge to the extent of the finding recorded by the
lower appellate court holding the appellant Rukhaminibai not entitled to
claim interest on the refund at the rate of 18 % per annum, as has been
rightly pointed out by it, there was no agreement between the parties to
award any interest at a specific rate in case there was an occasion to refund
the earnest money. In the absence of such agreement and in view of the
provisions of Interest Act, and in the absence of material showing the
nationalised banks awarding interest at the rate of 18% per annum, the
direction to refund the earnest money at such exorbitant rate was indeed
arbitrary and has been correctly brought down by the lower appellate court
to 6% per annum. Consequently, even no substantial question of law arises
even on account of such reduction of rate of interest on the amount to be
refunded.
21. So far as the Second Appeal No. 206/2013 is concerned, there is a
concurrent finding of fact by the courts below holding all the suit properties
to be the ancestral and joint family properties.
22. The trial court in spite of having recorded such finding refused to
decree the suit on two grounds, firstly, by holding that there was an
antecedent partition of the year 1987 and that one of the plaintiffs namely
Nilawati had relinquished her share. To repeat, both these grounds were
found by the lower appellate court not to have been duly established.
23. So far as the claim of the respondent No. 1 Prakash and respondent
No. 2 Balbhim regarding there being an antecedent partition the lower
appellate court has discussed the testimony of their witness Pandurang Kisan
Pachankar. It has been specifically pointed out that during his cross-
examination he gave clinching admissions holding that the plaintiffs in that
suit were having shares in all the suit properties. It has also been pointed
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out that the witness further admitted that all these suit properties were the
self acquired properties of Trimbak who was the common ancestor and even
the names of Nilawati and Mangal, the plaintiffs, were recorded as owners
in the revenue record of the suit properties. It then referred to the revenue
record to demonstrate that name of Nilawati and even her mother
Bhagirathi was recorded in the revenue record of the suit properties.
24. The lower appellate court has then discussed the testimony of one
Sandipan who stated about mutation entries having taken place pursuant to
a partition in the year 1987 between Maruti, Changdeo and Prakash. The
lower appellate court has specifically pointed out that this witness Sandipan
was serving in revenue department and at the material time was posted as
Awwal Karkun at Jamkhed in the year 1987. He further admitted that a
sharer cannot relinquish his rights orally but by way of registered
instrument. Admittedly, the other sharers apart from Changdeo, Maruti,
Prakash were not the parties to the alleged partition of the year 1987. It
has, therefore, been held and correctly so, by the lower appellate court that
even if the three sharers had with some understanding separated their
shares, since the other sharers were not parties to that arrangement it could
not have been accepted as a full and complete partition. Even it has
correctly held that in the absence of any registered instrument even the
claim that Nilawati having relinquished her share was not legally
sustainable. It has then pointed out that the trial court has clearly ignored
all such material facts and circumstances and the law and had readily
accepted that there was some antecedent partition.
25. The observation and the conclusion of the trial court, therefore, was
clearly perverse, arbitrary and capricious and has been rightly interfered
with and reversed by lower appellate court while discarding the theory of
antecedent partition and relinquishment. The logical and legal corollary, it
was imperative for the lower Court to have quashed and set aside the
judgment and order of the trial court and to decree the suit.
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26. As far as the claim of the respondent No. 2 Balbhim who is the
appellant in Second Appeal No. 206/2013 is concerned, there was
absolutely no evidence before the trial court or the lower appellate court to
demonstrate that respondent No. 1 Prakash had agreed to sell him one of
the suit properties for any legal necessity. Even assuming for the sake of
arguments that he was the Karta of the family, so long as there was no
evidence to demonstrate that he had any legal necessity to alienate one of
the suit properties, the burden to prove which fact was on the purchaser
respondent No. 2 Balbhim, no fault can be found with the observation and
the conclusion of the lower appellate court in holding that the alienation
made by respondent No 1 Prakash in favour of Balbhim was not binding on
the other sharers. No substantial question of law, therefore, arises for
determination in the Second Appeal No. 206/2013 also.
27. All three second appeals are dismissed.
28. Pending civil applications are disposed of.
(MANGESH S. PATIL, J.)
29 After pronouncement of judgment the learned advocate Mr.
Sonkawade h/f Mr. Hon learned Senior Advocate in Second Appeals No.
832/2012 and 833/2012 submits that since the interim relief was in
operation till date the same may be continued for a reasonable time to
enable the appellants to challenge the judgment and order.
Since the interim relief has been in operation till date, it stands
extended for a period of four weeks from today.
(MANGESH S. PATIL, J.)
mkd/-
