Bombay High Court
Sou.Laxmibai Ashok Sutar vs Ashook Vithoba Sutar (Deceased) on 5 March, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:11590
sa_mandawgad 34sa209-17+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.209 OF 2017
WITH
CIVIL APPLICATION NO.484 OF 2017
Sou.Laxmibai Ashok Sutar and Ors. ... Appellants.
Versus
Ashook Vithoba Sutar (since deceased),
through LRs and Ors. ... Respondents.
------
Mr. Chintan Shah, Mr. Shubhankar Kulkarni i/by Triyama Legal for
the Appellants.
Mr. Umesh Mankapure, for the Respondent nos.2 and 3.
------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : MARCH 05, 2024
P. C.:
1. Being dissatisfied by the judgment dated 5th August, 2016
passed in Regular Civil Appeal No.348 of 2008 dismissing the
Appeal confirming the judgment and decree dated 10th September,
2008 passed in Regular Civil Suit No.92 of 2000 by the trial Court,
the original-plaintiffs are before this Court. For the sake of
convenience, the parties are referred to by their original status
before the trial Court.
2. Regular Civil Suit No.92 of 2000 was instituted by the
plaintiffs seeking partition and separate possession of the suit
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properties and for perpetual injunction. The plaintiff No.1 is the
wife of Defendant no.1, and plaintiff Nos.2 to 4 are the sons of the
defendant no.1.
3. The case of the plaintiffs is that the suit properties are
ancestral properties of Defendant No.1 and after the death of
father of the Defendant No.1, there was no partition of the
ancestral properties. The Defendant no.1 was not mentally sound
person and suffers from schizophrenia. It was pleaded that the
brother of the defendant no.1's mother and his son compelled the
Defendant no.1 to execute the sale-deed in respect of Gat No.192
in favour of the Defendant Nos.2 and 3 without there being any
legal necessity. The Defendant No.1 filed his written statement and
supported the case of the plaintiffs.
4. The Defendant Nos.2 and 3 have resisted the suit
contending that the Defendant no.1 and his mother have sold the
property for payment of bank loan and for other family debts and
the family needs. It was contended that out of land bearing Gat
No.192 the Defendant No.1 and his mother have sold 3 Hectors 25
Are for total consideration of Rs.1,60,000/- on 20 th January, 1988
and have handed over the possession of the said property.
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5. The parties went to trial. The trial Court declared that the
plaintiffs and the Defendant No.1 have 1/5th share in house
property and that the Defendant nos.2 and 3 have joint shares to
the extent of land admeasuring 3 H 25 Are out of land Gat No.192
and the plaintiffs and the Defendant No.1 have 1/5 th share each in
remaining property. The Appellate Court in an Appeal filed by the
plaintiffs upheld the findings of the trial Court and dismissed the
Appeal.
6. Heard Mr. Chintan Shah, learned counsel appearing for
the Appellants and Mr. Umesh Mankapure, learned counsel for the
Respondent nos.2 and 3.
7. Mr. Shah, learned counsel appearing for the Appellants
would submit that the admitted position is that the suit properties
were ancestral properties and in respect of which there was no
partition effected and as such, the burden was upon the defendant
Nos.2 and 3 to prove the legal necessity for sale of portion of Gat
No.912. He submits that the trial Court has wrongly cast the
burden upon the plaintiffs to prove the legal necessity. Pointing out
to the findings of the trial Court, he would submit that only certain
amounts have been shown as against the entire consideration of
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Rs,1,60,000/-, and there is no material to show that any amount
was paid to the Defendant no.1. He would further submit that the
findings of the Courts as regards the mental illness of the
Defendant no.1 is perverse in view of the medical evidence which
has come on record.
8. Per contra, Mr. Mankapure, learned counsel appearing for
the defendant Nos.2 and 3 would submit that the burden was not
cast upon the plaintiffs but upon the defendants, who have
discharged the burden by producing the receipts at Exhibit 294 as
well as by examining the witnesses to show the amount deposited
in the post office. He submits that the case of the plaintiffs is that
fraud has been committed upon the Defendant no.1, which case
has been rejected by the trial Court on the basis of the evidence.
He would further submit that although the Defendant no.1 is
stated to be suffering from schizophrenia, he has filed the written
statement supporting the case of the plaintiffs and as such, the suit
was clearly a collusive suit.
9. Considered the submissions and perused the record.
10. The nature of the suit property being ancestral property is
not disputed. The issue raised for consideration is whether the
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Defendants have proved the legal necessity for sale of portion of
ancestral properties. The judgment of the trial Court indicates that
the Plaintiffs had produced receipts to show that the parents of the
defendant no.1 had taken bank loans and gold loan for the
purpose of cultivation of lands. The Defendants have produced
receipt at Exhibit 294 dated 19th January, 1988 which shows the
name of the defendant No.3, depositing the amount of loan on
behalf of the father of the defendant no.1 thereby discharging the
entire debt a day prior to execution of sale-deed on 20 th January,
1988. The said fact is stated in the sale-deed that amount of
Rs.60,000/- is paid to vendor for discharging debts. On the basis of
receipt at Exhibit 294, the trial Court has come to a finding that
there has been discharge of the debt on behalf of the father of the
Defendant No.1. Although the receipt is not for the payment of
loan of Rs.60,000/-, the trial Court has rightly held that there is no
explanation forthcoming as to who has discharged the debt of the
bank loan and as to why the name of the defendant no.3 is
mentioned in the said receipt. The burden was cast upon the
defendants to prove the legal necessity, which is evident from
the fact that the defendant had examined DW2-Laxmikant
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Deshpande, who was serving in the post-office. The witness for the
defendants has produced the document at Exhibits 301 and 302
which shows that the amount of Rs.40,000/- was deposited in the
name of Defendant no.1 which amount was discharged on 21st
January, 1988, after the sale-deed dated 20th January, 1988.
11. Considering the evidence which has come on record as
regards the discharge of the debt as well as the deposit of the
money in the bank account which was received by the defendant
no.1, there is no merit in the contention of the learned counsel for
the Appellants that the property was not sold for legal necessity.
The evidence on record would demonstrate that the defendants
had examined the necessary witness in support of their case of the
ancestral property being sold for legal necessity. If the burden was
cast upon the plaintiffs there was no necessity for the defendants
to examine the witnesses and produce the documentary evidence
to show the payments made towards discharge of the debt as well
as the amounts deposited in the name of the Defendant no.1.
12. The trial Court has further considered that in the sale-
deed itself it is mentioned that the amount is required for
treatment of the mother of the Defendant No.1 and that on 23rd
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January, 1988, amount of Rs.3,000/- was deposited in the bank
account of the Defendant No.1.
13. Having regard to the evidence on record the trial Court
and the Appellate Court has rightly answered the issue as regards
the sale of the ancestral property on account of the legal necessity
in favour of the Defendant Nos.2 and 3. As regards the contention
that there is perversity in the findings inasmuch as the medical
record produced would show the mental illness of the Defendant
no.1, the evidence indicates that the treatment of the defendant
no.1 was started on 3rd April, 1978 and the medical records
produced were only in respect of the period from 3rd April, 1978 to
15th May, 1978. In the cross-examination, the witness has admitted
that he is not in a position to state about the fitness of the
defendant no.1 for the period from 10th June, 1978 to 30th June,
1989. The sale-deed had been executed on 20 th January, 1988 and
no medical records have been produced that the Defendant No.1
was suffering from any mental illness at the time of execution of
the sale-deed. Coupled with the fact that the written statement has
been filed by the defendant no.1 in the proceedings and no
application was made for appointment of any next friend of the
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Defendant no.1 as according to the plaintiffs, he was suffering
from any mental illness shows that the trial Court and the
Appellate Court has rightly appreciated the evidence as regards the
mental illness of the Defendant no.1 on record.
14. Having regard to the discussion above, no substantial
question of law arises in the present case. In exercise of powers
under Section 100 of the Code of Civil Procedure, 1908, this Court
is not expected to re-appreciate the evidence which has come on
record unless perversity is demonstrated. Second Appeal stands
dismissed.
15. In view of the disposal of Second Appeal, Civil/Interim
Application(s) taken out in this Appeal, if any, does not survive and
the same is disposed of.
( Sharmila U. Deshmukh, J.)
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 11/03/2024 14:25:02
