Bombay High Court
1 Smt Ratna W O Narayan Shetty vs Kumar Anandrao Hegde(Dead Thrlrs) on 9 August, 2024
2024:BHC-AS:33172
33-SA-257-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 257 OF 2023
WITH
INTERIM APPLICATION NO. 3395 OF 2023
Smt. Ratna W/o. Narayan Shetty
Age : 66 years, Occu : Housewife
R/o. 52 Shanti Nagar Society
Vijapur Road, Solapur
Through power of attorney holder
Sachin Narayan Shetty
Age : 45 years Occupation : Service
R/o. 52 Shanti Nagar Society Appellant
Vijapur Road, Solapur (Original Defendant No.1)
Vs.
Kumar Anandrao Hegde (Dead)
Since deceased through LRs
1. Smt. Nirmala W/o. Kumar Hegade
Age : 44 years, Occu : Housewife
R/o. Ashok Nagar, Vijapur Road
Solapur
2 Smt. Arti W/o. Parmeshwari Aigole
Age : 25 years, Occ : Housewife
R/o. Bhaski, Tal-Akkalkot, Solapur
3. Shri Sunil S/o. Kumar Hegade
Age : 22 years, Occu : Education
R/o. Ashok Nagar, Vijapur Road
Solapur
1/15
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33-SA-257-2023.docx
4. Chi. Vikki S/o. Kumar Hegade
Age : 17 years, Occu -Education
Smt. Nirmala Kumar Hegade
(Guardian of minor respondent no.4.)
R/o. Ashok Nagar, Vijapur Road Respondent Nos. 1 to 4
Solapur (Original Plaintiff Nos. 1 to 4)
5. Shanti Nagar Co-op Housing Society, Respondent No.5.
Vijapur Road, Solapur (Original Defendant No.2.)
Mr. Ashok B. Tajane a/w. Mr. Y.G. Thorat for the Appellant.
Mr. Bhushan Walimbe a/w. Mr. Suhas Inamdar for Respondent Nos.
1 to 4.
CORAM : GAURI GODSE, J.
DATE : 9th AUGUST 2024
ORAL JUDGMENT :
1. Heard learned counsel for the parties. This Second Appeal is
filed by the original defendant no.1 ("defendant") to challenge the
judgment and decree of the First Appellate Court in favour of the
respondents-plaintiffs.
2. The First Appellate Court has reversed the findings of the Trial
Court dismissing the suit. The First Appellate Court has set aside
the Trial Court's decree, and the registered sale deed in favour of
the defendant is declared void and, thus, cancelled. The impugned
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decree also declares the resolution and the membership letter
issued in favour of the defendant as illegal. Therefore, by setting
aside the sale deed, the First Appellate Court directed the
defendant to hand over possession of the suit property to the
plaintiffs.
3. The suit property comprises land and the constructed
structure in a society comprising backward class members. The
land was allotted in favour of the society (defendant no. 2) for the
benefit of the backward community members under a letter of
allotment at Exhibit 87 issued by the learned Collector. The
plaintiffs' father, being a member of the backward community, was
allotted land; as the original allottee, he had executed the sale deed
in favour of the defendant, transferring the property in her name.
Heirs and legal representatives of the original allottee challenged
the sale deed and the resolution passed by the society's
Administrator permitting the original allottee to transfer the property
after obtaining permission from the learned Collector. The main
ground of challenge in the suit is the execution of the sale deed
without any permission from the learned Collector.
4. The learned counsel for the appellant submitted that the First
Appellate Court failed to frame proper points for determination about
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the validity of the resolution passed by the society and transfer of
membership in the name of the defendant. He further submitted
that one of the plaintiff's grounds was regarding the vendor's mental
state of mind while executing the sale deed. However, according to
the learned counsel for the appellant, the First Appellate Court cast
a negative burden on the defendant to prove that the vendor had
executed the sale deed in a proper state of mind.
5. Learned counsel for the appellant further submits that the suit
against the society was not maintainable for want of notice under
Section 164 of The Maharashtra Co-operative Societies Act, 1960
("MCS Act"). He further submits that during the vendor's lifetime, he
never challenged the sale deed in favour of the defendant.
However, after his death, his legal heirs filed the suit. Learned
counsel for the appellant supported the findings recorded by the
Trial Court by referring to the issues framed in the suit and the
relevant findings. He thus submitted that the Trial Court rightly held
that the Civil Court would have no jurisdiction to record any finding
on the validity of the resolution passed by the society. Learned
counsel for the appellant thus submitted that the Second Appeal
raises substantial questions of law on the aforesaid points and
hence would require consideration by this Court.
33-SA-257-2023.docx
6. Learned counsel for the appellant supported the defendant's
contentions regarding the payment of the consideration amount by
relying upon specific admissions given by the plaintiffs in the cross-
examination. He further submits that the defendant has always
resided in the suit property as a tenant for 15 to 20 years; hence,
the original vendor executed the sale deed in her favour after
following the necessary procedures and obtaining permission from
the Administrator. He submits that sub-section 4 of Section 78 of
the MCS Act empowers the Administrator to make all the decisions
on behalf of the society; hence, in view of the valid resolution issued
by the Administrator, even the membership was transferred in the
name of the defendant.
7. Learned counsel for the appellant thus submits that the
Second Appeal would also require consideration on the ground that
after accepting the consideration amount and the defendant already
being in possession of the suit property, the heirs and legal
representatives of the vendor would not be entitled to raise any
objection to the execution of the sale deed in favour of the
defendant.
8. Learned counsel appearing for the respondents-plaintiffs
supported the impugned decree. He submits that there is no
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dispute that the transfer could not have been effected without valid
permission from the learned Collector. He submits that, admittedly,
no such permission has been issued by the Collector. He submits
that the sale deed is executed only on the resolution issued by the
Administrator, which also clarifies that the permission is granted to
transfer subject to obtaining necessary permission from the
Collector. With reference to the objection raised regarding notice
under Section 164 of the MCS Act is concerned, learned counsel for
the respondents submitted that there is no relief claimed against the
society; hence, for want of any such notice, the suit filed for
challenging the sale deed cannot be said to be not maintainable. He
submits that the suit is for a substantial relief for challenging the
sale deed, which is executed in favour of the defendant, and that
setting aside the resolution and the membership would only be a
consequence of the relief of invalidity of the sale deed.
9. Learned counsel for the respondents relied upon the finding
recorded by the First Appellate Court in paragraphs 27 and 28 of
the impugned judgment, which deals with the objection to the notice
under Section 164 of the MCS Act. He thus submitted that by
relying upon the decision of this court in the case of B. Y. Chavan
and Another Vs Association of Tenants of the Bombay Catholic
33-SA-257-2023.docx
Housing Society and Others 1, the First Appellate Court has rightly
held that the suit filed for challenging the sale deed was
maintainable.
10. Learned counsel for the respondents also relied upon the
decision of this court in the case of S.M.Kamble and Others Vs Jt.
Registrar and Others2 and Sanjivani Kailas Borade Vs Kashinath
Huseni (Waghe) Valher and Another3. He submits that it is a well-
settled principle of law that the challenge to the execution of the
sale deed would be a subject matter of challenge in the Civil Court
and that the challenge to the resolution of the society or ground of
membership would be an ancillary relief.
11. Learned counsel for the respondents also relied upon a
finding recorded by the First Appellate Court that the defendant
failed to produce any documents supporting the contentions that the
entire consideration amount was paid to the vendor. With regard to
the authority of the learned Administrator to issue the resolution for
the transfer of the suit property, learned counsel for the respondents
pointed out sub-section (4) of Section 78, which indicates that the
Administrator would be empowered to perform the functions of the
1 2-11(5) Bom CR 133
2 2008(1) Bom C.R. 695
3 2018 (5) Bom C.R. 591
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society in terms of the directions issued by the learned Registrar.
He submitted that nothing was produced on record to indicate that
the learned Administrator was empowered to issue permission to
transfer the suit property. Thus, the learned counsel for the
respondents submitted that no fault can be found in the reasons
recorded by the First Appellate Court, and the grounds raised on
behalf of the appellant do not involve any question of law required
to be considered by this court.
12. I have considered the submissions made on behalf of the
parties. Perused the papers. It is not in dispute that the suit land is
the subject matter of allotment of land by the learned Collector in
favour of the society formed for the benefit of the backward
community. It is also not in dispute that the suit property could not
have been transferred without the prior permission of the learned
Collector. The findings recorded by both courts indicate that the sale
deed was executed only based on the resolution/permission issued
by the learned Administrator of the society. The findings recorded
by both courts also clearly indicate that the resolution/permission
issued by the learned Administrator clearly stated that the transfer
could have been made only after necessary permission from the
Collector. A perusal of the original allotment letter in favour of the
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society produced at Exhibit - 87 clearly states that the transfer by
the allottee shall not be effected without permission of the Collector.
13. As far as the ground with regard to framing points for
consideration is concerned, even though a specific point on the
ground of validity of the resolution and membership is not framed by
the First Appellate Court, there are specific reasons recorded by the
First Appellate Court while deciding the point on the validity of the
sale deed. It is a well-settled principle of law that the findings
recorded by the First Appellate Court if found within the parameters
of Order 41 Rule 33 of the Code of Civil Procedure 1908, no
interference will be called for in the impugned judgment on the
technical point of framing a specific point for consideration.
14. The next ground argued on behalf of the appellant with
reference to the negative burden cast upon the defendant is
concerned; the reasons recorded by the First Appellate Court
indicate that the Court has referred to the pleading of the parties. It
is the case of the plaintiffs that the original allottee/vendor was not
residing in the suit property, and hence, after the death of the
original vendor, the plaintiffs, upon getting the knowledge about the
transaction, filed the suit. One of the grounds raised to challenge
the sale deed was regarding the vendor's mental condition.
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However, the main reasons for the challenge were the need for
permission from the Collector and the powers of the learned
Administrator. Thus, the reasons recorded by the First Appellate
Court are not only with regard to the defendant's burden to prove
the state of mind of the vendor. It is only considered as one of the
grounds raised to challenge the sale deed. Once the validity of the
sale deed was supported by the defendant and the ground
regarding mental condition was pleaded and supported by oral
evidence of the plaintiffs, the First Appellate Court found it fit to refer
to the evidence of the defendant, which does not indicate any
rebuttal on the pleadings and evidence of the plaintiffs. After
examining the pleadings and evidence on record, the First Appellate
Court also held that the defendant failed to prove payment of the
total consideration to the vendor. Thus, I do not find any substance
on the said grounds raised on behalf of the appellant.
15. The First Appellate Court also considered the issue regarding
the requirement of notice under Section 164 of the MCS Act. The
main relief in the suit is on the validity of the sale deed on the
grounds of wanting necessary permission from the learned Collector
in terms of the conditions of allotment. Admittedly, no such
permission was taken. Hence, the validity of the resolution issued
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by the Administrator of the society and grant of membership to the
defendant would necessarily depend upon the validity of the sale
deed. The issuance of the resolution by the Administrator of the
society and grant of membership will not validate the sale deed.
16. The Administrator of the Society issued a resolution dated 15 th
November 2010, permitting transfer subject to obtaining permission
from the learned Collector. Based on the resolution, membership
was granted by the Administrator on 16 th November 2010. The
document of sale was executed and registered on 19 th November
2010. The original allottee/vendor expired on 8 th November 2012.
The plaintiffs, i.e., the heirs of the original allottee/vendor, filed an
application before the learned Registrar, Cooperative Societies,
making a grievance on 11 th March 2013 about the aforesaid
transfer. By letter dated 4th April 2013, the learned Registrar,
Cooperative Societies, informed the plaintiffs to approach the Civil
Court for redressal of their grievances. Hence, the suit was filed.
17. Considering the aforesaid facts, the first appellate court
followed the legal principles settled by this Court in the case of B. Y.
Chavan and held that the non-issuance of the notice under Section
164 of the MCS Act would not bar the Civil Court's jurisdiction to
33-SA-257-2023.docx
decide the suit filed to challenge the sale deed on the ground that it
was void and illegal. In the decision of B. Y. Chavan, this Court held
that the notice, under Section 164, is to enable the society, upon
being informed by the Registrar, to avoid litigation involving time
and expense by settling the claim. This Court further held that if a
party by its act deprives the plaintiff of an opportunity to approach
the Court and seek relief, final or even interlocutory, it is axiomatic
that it does not wish to avail the benefit or opportunity provided by
the legislature to avoid the litigation by settling the matter or
otherwise. On the question of waiver, this Court held that it matters
little whether the conduct prejudicially affects the right to obtain the
final relief or even interim relief. Thus, this Court observed that the
logical inference would be that the party does not wish to settle the
dispute and avoid litigation, thereby waiving its right to such a
notice. This Court further held that a view to the contrary would
render the provisions of Section 164 arbitrary, unfair, and, in fact,
irrational. This Court thus observed that the legislature could not
have intended such a consequence, which would enable the
defendant, by insisting upon the empty formality of a notice, to
defeat a just claim.
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18. Thus, in view of the facts of the present case, the legal
principles settled by this Court in the aforesaid decision squarely
apply to the present case. The plaintiffs are justified in filing the suit
to challenge the sale deed without issuing any notice under Section
164. The validity of the resolution issued by the Administrator and
the grant of membership would necessarily depend upon the validity
of the sale deed, which can be decided only by the Civil Court.
Hence, the suit cannot be held as not maintainable for want of
notice under Section 164 of the MCS Act.
19. The ground that the vendor did not challenge the sale deed
during his lifetime would not validate its execution. Once it is not in
dispute that a valid permission of the Collector was necessary for
executing the sale deed and that the plaintiffs had filed a suit as
heirs and legal representatives of the original allottee, the original
allottee not challenging the sale deed during his lifetime would be
immaterial. The suit is for a substantial relief for challenging the sale
deed, which is executed in favour of the defendant, and setting
aside the resolution and the membership would only be a
consequence of the relief of invalidity of the sale deed. Thus, the
First Appellate Court rightly held that, since the Administrator's
permission was on a condition to obtain the necessary permission
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from the learned Collector, the sale deed executed without such
permission is void in view of the terms and conditions of the original
allotment Order at Exhibit 87.
20. Learned counsel for the appellant relied upon the Government
Resolution dated 1st June 2015 to contend that the Collector has the
authority to grant permission to sell the suit property to a member
not belonging to the backward community. The said resolution was
never produced before both the Courts to support any of the
contentions. Even otherwise, the said Government Resolution is of
no assistance to the appellant as it is not even the case of the
appellant that any such application for permission was made before
the learned Collector. Though it is sought to be argued on behalf of
the appellant that the application for permission was made and the
same is pending before the learned Collector, nothing is produced
on record to support the same. Hence, reliance on the said
Government Resolution is of no assistance to the arguments raised
on behalf of the appellant.
21. It is in view of the aforesaid reasons none of the grounds
raised on behalf of the appellant would require consideration by this
Court as they do not raise any substantial question of law.
33-SA-257-2023.docx
22. The Second Appeal does not raise any substantial question of
law; hence, the second appeal is dismissed. In view of the
dismissal of the Second Appeal, pending Civil Applications are
disposed of as infructuous.
23. At this stage, learned counsel for the appellant seeks a stay to
the execution of the impugned decree on the ground that the
appellant has been residing in the suit property for the last 20 years.
On the request made by the learned counsel for the appellant,
execution of the impugned decree shall remain stayed for eight
weeks, subject to the appellant filing an affidavit-cum-undertaking in
this Court stating that the appellant is in possession of the suit
property, and she shall not create any third party interest and part
with the possession of the suit property. The appellant shall also
undertake that if the Hon'ble Apex Court does not pass any
favourable order, the appellant shall hand over the possession on
expiry of the period of eight weeks. The necessary affidavit shall be
filed within two weeks.
[GAURI GODSE, J.]
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2024.08.20
09:46:04
+0530
