Gujarat High Court
Deceased Niranjanaben Mukundrai ... vs Chhotalal Motilal Master ... on 6 November, 2023
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1399 of 1995
With
R/FIRST APPEAL NO. 1400 of 1995
With
R/FIRST APPEAL NO. 1401 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DECEASED NIRANJANABEN MUKUNDRAI BARAIYA THROUGH HER
LEGAL HEIRS
Versus
CHHOTALAL MOTILAL MASTER THR'HEIRS & 1 other(s)
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Appearance:
JENIL M SHAH(7840) for the Appellant(s) No. 1,1.1
MR MB GANDHI, SENIOR ADVOCATE WITH MR CHINMAY M
GANDHI(3979) for the Defendant(s) No. 1.2.1,1.2.2,1.2.3,1.2.4
MR MB GANDHI(326) for the Defendant(s) No.
1,1.10,1.11,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.4,1.8,1.9,2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/11/2023
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CAV JUDGMENT
1. Heard learned Advocate Mr. Jenil M.
Shah for the appellants and learned Senior
Advocate Mr. M.B. Gandhi with learned
advocate Mr. Chinmay Gandhi for the
respondents.
2. Being aggrieved and dissatisfied with
the common Judgment and Decree dated
28.04.1995 passed in Civil Suit No.3831 of
1982, Civil Suit No. 4081 of 1982 and
Civil Suit No.1687 of 1984 passed by City
Civil Court No.12, Ahmedabad, the
appellant- legal heir Dilipkumar Popatbhai
Desai of late Niranjanaben Baraiya and
original defendant no.2-in Civil Suit
No.1687 of 1984, plaintiff in Civil Suit
No.3831 of 1982, original defendant no.1
in Civil Suit No. 4081 of 1982 has
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preferred these three First Appeals.
3. As facts giving rise to these appeals
are the same the same can be summarised as
under:
(i) That Saubhagya Park Cooperative
Housing Society is a registered
cooperative housing society wherein
the land is owned by the society. The
society constructed tenements and
blocks on the said land and allotted
them to its members who were required
to pay the consideration by
installments.
(ii) Block No.1 of the said society was
an independent block and there was no
adjacent tenement of other members.
The said block was allotted to one
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Manjulaben Chhotalal Master who was
the wife of Chhotalal Master. All the
installments and payments of
consideration were paid to the society
by Chhotalal Master by cheque and by
Money order since Chhotalal Master and
his wife were mainly residing in
Mumbai. There was a joint bank account
of said Manjulaben Chhotalal Master
with her husband Chhotalal Master and
all cheques and Money Orders drawn in
favor of the Cooperative housing
society were paid in favour of the
Cooperative Society. Manjulaben
Chhotalal Master died on 17.07.1977.
After her death, her husband Chhotalal
Master gave an application to the
society to make necessary mutation of
his name in the record of the society.
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Other legal heirs of Manjulaben
comprising three sons and Kusumben
widow of late Sharadkumar Chhotalal
Master submtted affidavits to the
Society declaring on oath that they
had no right, title, or interest in
the said block no.1 in question and
that the property be transferred in
the name of Chhotalal Master as owner-
member of the society.
(iii) During the year 1980-1981 as
Chhotalal Master was not paying the
installment, the Society filed an
arbitration case before the Board of
Nominees, Ahmedabad wherein by
purshish dated 21.05.1981 submitted by
the society it was stated that
Chhotalal Master was a member of the
said block no.1 and on the basis of
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the same, Chhotalal Master paid the
remaining installment being the sale
consideration of Block no.1 and
thereafter Lavad Suit was withdrawn by
the Society.
(iv) An Agreement for Sale ( Banakhat)
dated 24.07.1981 (Exh.53) was executed
for Block No.1 for sale consideration
of Rs.30,000/- between Chhotalal
Master and Late Niranjanaben and an
amount of Rs.10,000/- was paid
consisting of Rs.7,000/- by Account
Payee cheque and Rs. 3,000/- by cash.
As per the said Banakhat, Chhotalal
Master had also executed irrevocable
Power of Attorney in favour of husband
of Niranjanaben, Dilipkumar Popatlal
Desai.
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(v) It appears that till registered sale
deed was executed, the possession of
the part of the suit property was
given to Niranjanaben at a token rent,
and rent for 20 months was taken by
issuing a rent receipt dated
24.07.1981 (Exh.165) as part of the
suit property was in possession of
Kusumben widow of late Sharadkumar
Chhotalla Master.
(vi) As Chhotalal Master did not abide
by the obligation arising from
Banakhat dated 24.07.1981 (Exh.53),
appellant Niranjanaben filed Suit
being Civil Suit No.3831 of 1982 with
a prayer seeking permanent injunction
by restraining the defendants from
transferring, alienating the suit
property and further prayed for
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handing over the peaceful vacant
possession of the remaining part of
the suit property to the plaintiff-
appellant.
(vii) It was also pleaded that on
20.10.1982, Chhotalal Master came to
Ahmedabad and settled the matter and
pursuant thereto tendered his
resignation as member to the Society
on 20.10.1982 and also gave an
application to mutate the name of
Niranjanaben as member of the Society.
(viii) The Power of Attorney Holder of
Chhotalal Master and husband of
Niranjanaben, Dilipkumar Popatlal
Desai thereafter executed sale deed in
favour of Niranjanaben on 2.11.1982
(Exh.72).
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(ix) The Court Commission of the suit
property was carried out on 14.10.1982
in Civil Suit No.3831 of 1982 wherein
it is stated that Kusumben one of the
contesting respondents after knowing
about the purpose of visit of the
Court Commissioner, locked her room
which was in her possession and left
the house.
(x) Kusumben who was daughter-in-law of
Chhotalal Master also filed Civil Suit
No.4081 of 1982 against her father-in-
law Chhotalal Master contending that
she had become the joint owner of the
suit property after death of
Manjulaben as Chhotalal master had no
right to sale the suit property as
provisions of the Indian Succession
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Act,1923t and she was also entitled to
get possession of one room, kitchen,
bathroom, etc. which has been in her
possession.
(xi) The appellant by amendment in the
pleadings added Kusumben as defendant
no.2 in Civil Suit No.3831 of 1982 and
further claimed relief of possession
of part of the suit property which was
in possession of Kusumben as well as
relief of mesne profit for that
portion of the property from the date
of suit till the date of possession.
(xii) It appears that thereafter third
suit being Civil Suit No.1687 of 1984
was filed by the all legal heirs of
Chhotalal Master against the appellant
for a declaration and cancellation of
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the registered sale deed dated
2.11.1982 and for possession of part
portion of the suit property
contending inter-alia that Banakhat
amount of Rs.10,000/- was only a loan
taken in the form of mortgage and the
suit was filed for redemption of
alleged mortgage and for cancellation
of sale deed dated 2.11.1982 at
Exh.72.
4. Learned Judge of the City Civil Court
after considering the pleadings,
consolidated all three suits and framed
the issues at Exh.18 in Civil Suit No.3831
of 1982, at Exh.14 in Civil Suit No. 4081
of 1982 and at Exh.18 in Civil Suit
No.1687 of 1984 as under:
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Civil Suit No.3831 of 1982 (filed
by Niranjanaben)
"1) Whether the plaintiff proves
that he has become the owner of
the property as described in the
plaint in view of the sale deed
executed by defendant no.1?
2) Whether defendant no.2 proves
that she is the co-owner of this
property?
2-A) If proved that the said
sale deed dt.2.11.1982 is illegal
and void on account of fraud as
alleged and further for want of
prior permission of Saubhagya Park
Housing Society as contended by
defendant no.1?
3) Whether the plaintiff is
entitled to the possession of the
disputed property?
3-A) Whether the defendant no.1
proves that the market price of
the suit property was more than
Rs. 2 lakhs on the date of the
suit? If yes, whether the suit is
correctly valued for the purpose
of Court fees?
3-B) Whether the defendant no.1
proves that the sale deed dated
2.11.1982 is sham, bogus,
fraudulent, mala fide and null and
void and ineffective?
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3-D) Whether the defendant no.1
proves that the transaction is bad
for the principle of lis pendense?
3-E) Whether the banakhat dt.
24.7.81 on a stamp paper of
Rs.10/- is fraudulently got up or
illegal in respect of the sale of
the disputed property?"
4) What order and decree?
Civil Suit No. 4081 of 1982 (Filed
by Kusumben)
"1) Whether the plaintiff proves
that originally Manjulaben the
mother-in-law, was the owner of
the suit property?
2) Does she further prove that on
the death of her mother-in-law,
her sons and the plaintiff have
become the owners of the suit
property?
2-A) Whether the plaintiff
proves that the alleged Banakhat
and power of attorney dt.24.7.81
and the sale deed are illegal,
without consideration and without
any authority and not binding to
the plaintiff?
3) Does she further prove that
defendant no.2 was only managing
the affairs of the property?
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4) Whether the plaintiff is
entitled to a permanent injunction
as prayed for?
5) Whether the defendant no.2 has
lawfully purchased the suit
property from defendant no.1?"
Civil Suit No.1687 of 1984 (Filed
by Late Chhotalla Master, after
his death through his legal heirs)
"1) Whether the plaintiff proves
that he has cancelled the power of
attorney alleged to have been
executed by him in favour of
defendant no.1 on 27.10.1982?
2) Whether the plaintiff proves
that the defendant no.2 had no
authority to execute the sale deed
of the suit property in favour of
defendant no.1?
3) Whether the plaintiff proves
that the sale deed alleged to have
been executed in favour of
defendant no.1 by defendant no.2,
was executed in collusion with
each other?
4) Whether the sale deed dt.
2.11.1982 is without the
permission of Saubhagya park Co-
operative Housing Society and
therefore, illegal?
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5) Whether the plaintiff is
entitled to the reliefs as prayed
for?
5-A) Whether the plaintiff
proves that the market price of
the suit property was more than
Rs. 2,00,000/- on the date of the
suit? If yes, whether the suit is
correctly valued for the purpose
of Court fees?
6-A) Whether the plaintiff
proves that the alleged
transaction between the parties is
in the nature of a mortgage and
not sale?
6-B) Whether the plaintiff
proves that the sale deed dt.
2.11.1982 is sham, bogus,
fraudulent, mala fide and null and
void and ineffective?
6-C) Whether the plaintiff
proves that the transaction is bad
in the principle of lis pendence?
6-D) Whether the Banakhat on a
stamp paper of Rs.10/- dt.
24.7.1981 is fraudulent, got up,
illegal and not binding to the
plaintiff?"
5. After considering oral and documentary
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evidence led by the parties, by common
Judgement and Decree the learned trial
Judge dismissed the suit filed by the
appellant i.e. Civil Suit No.3831 of 1982,
and allowed suits filed by the respondents
i.e. civil suit nos. 4081 of 1982 and 1687
of 1984 holding that the sale deed dated
2.11.1982 was illegal and void on account
of fraud as alleged and for want of proper
prior permission of Saubhagya Park
Cooperative Housing Society. It was
further held that the appellant failed to
prove her claim that she had become the
owner of the suit property.
6. Learned Judge allowed the Civil Suit
No.4081 of 1982 and Civil Suit No.1687 of
1984 filed by the respondents declaring
that Chhotalal Master had only authority
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or power to do the management of the suit
property and he had no authority on behalf
of Kusumben and other legal heirs to deal
with or dispose of the suit property and
Banakhat, Power of Attorney given by
Chhotalal Master and registered sale deed
executed by the said Power of Attorney
Holder was declared illegal, null and
void. It was further held that the amount
of Rs.10,000/- paid at the time of
execution of Banakhat was in the nature of
the mortgage transaction and not as a
consideration for the sale of the suit
property. Learned Judge, therefore,
directed the appellant to handover the
possession of the said portion of the suit
property to the respondents.
7. During the pendency of the
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proceedings, o plaintiff Niranjanaben as
well as defendant Chhotalal Master expired
and their respective legal heirs are
brought on record.
8. This Court by order dated 05.05.1995
by way of ad interim relief granted the
stay of execution, operation, and
implementation of the impugned Judgment
and Decree which was made absolute by
order dated 13.11.1995. It appears that
efforts were made thereafter to resolve
the dispute through Lok Adalat but the
same failed in the year 2001.
9. Learned advocate Mr. Jenil Shah
appearing for the appellant submitted that
the appellant entered into Banakhat on
24.07.1981 after making part payment of
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consideration by Account Payee cheque of
Rs. 7,000/- and Rs. 3000/- in cash and the
said fact is not in dispute but it is
fortified by the receipts issued by late
Chhotalal Master. It was therefore,
submitted that the learned Judge without
considering documentary evidence on
record i.e. notarised Agreement to Sale
(Exh.53), irrevocable Power of Attorney
(Exh.54) and registered sale deed dated
2.11.1982(Exh.72), resignation tendered by
Chhotalal Master dated 20.10.1982 to the
society as owner and member at Exh.122, a
letter written by Niranjanaben Baraiya
dated 29.10.1982 (Exh.123) to the society
to enroll her as a member of the society,
has passed the impugned Judgment and
Decree.
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9.1) Learned advocate Mr. Shah placed
reliance on Exh.97 which is the receipt
issued by the Chhotalal Master in favour
of appellant Niranjanaben Baraiya with
regard to receipt of Rs.3000/- by cash and
Rs. 7000/- by Cheque No.SB103627 of State
Bank of India and accordingly, receiving
Rs.10,000/- towards part consideration for
the sale of the suit property being Block
No.1 at Saubhagya Park Cooperative Housing
Society. It was further submitted that
there was a receipt issued by Chhotalal
Master which is not in dispute. He also
relied upon Exh.65- receipt issued by
Chhotalal Master for receipt of
Rs.10,000/- as part of sale consideration
for sale of the suit property.
9.2) Learned advocate Mr. Shah referred
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to and relied upon Exh.201, affidavit of
Kusumben widow of Sharadkumar Chhotalal
Master dated 10.10.1979 declaring that she
had no right, title, or interest in the
suit property as the suit property was
purchased by Chhotalal Master from his own
income in name of Manjulaben and there was
no objection if the property be
transferred in the name of Chhotalal
Master.
9.3) It was further submitted that the
suit property was though purchased in the
name of Manjulaben, wife of Chhotalal
Master but in fact, entire consideration
of the same was paid from the joint
account of Chhotalal Master which is
evident from the affidavit filed by the
legal heirs after death of Manjulaben on
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27.07.1977 to the effect that it was
Chhotalal Master who had invested his own
income and acquired Block No.1 and legal
heirs declared that they had no right,
title, or interest in the suit property.
It was therefore, submitted that the
learned Judge ought to have come to the
conclusion that the story of the
redemption of mortgage and cancellation of
the sale document in favour of
Niranjanaben and handing over the
possession of the suit property was false
and got up the case only to escape from
the liability and injunction which the
appellant had sought in Civil Suit No.3831
of 1982. It was submitted that the learned
Judge failed to appreciate and consider
the documents on record i.e. Power of
Attorney(Exh. 54), Banakhat (Exh.53),
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Application of Chhotalal Master to society
asking for permission to sale(Exh.162),
rent receipts issued by Chhotalal Master
(Exh. 165), Exh. 121 and Exh.122 being the
membership transfer Form and resignation
given by Chhotalal Master, Application of
the appellant to become member of the
society(Exh.123), registered sale deed
(Exh.72), payment of Rs. 3500/- made by
Chhotalal Master before the Board of
Nominees in suit filed by the society
(Exh. 169), (Exh.64) being the purshis
whereby Chhotalal Master was accepted as
member of the society and evidence of the
office bearer of the society at Exh.118
before the Board of Nominees. It was
therefore, submitted that in view of the
plethora of evidence on record, the
learned Judge could not have arrived at a
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conclusion of alleged fraud by the
appellant and thereby failed to appreciate
and evaluate the oral and documentary
evidence while dismissing Civil Suit No.
3831 of 1982 and allowing Civil Suit No.
4081 of 1982 and Civil Suit No.1687 of
1984.
9.4) It was further submitted that the
learned Judge ought to have granted the
decree of possession in favour of the
appellant and against Kusumben for the
portion in which she is in possession of
the suit premises in view of the
transaction of sale and not transaction of
mortgage as Chhotalal Master was the owner
of the suit property and he had the
capacity of disposing of the same. It was
submitted that it was only to delay the
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execution of the sale deed, the late
Chhotalal Master with the help of his
daughter-in-law Kusumben filed collusive
Civil Suit No.4081 of 1982 which was also
liable to be dismissed.
9.5) In support of his submission
reliance was placed on the decision of the
Supreme Court in case of Kale and others
v. Deputy Director of Consolidation and
others reported in (1976) 3 Supreme Court
Cases 119 wherein the Hon'ble Apex Court
in facts of the said case has laid down
the proposition to put the binding effect
and the essentials of a family settlement
in a concretised form as under:
"10(1) The family settlement must
be a bona fide one so as to
resolve family disputes and rival
claims by a fair and equitable
division or allotment of
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properties between the various
members of the family.
(2) The said settlement must be
voluntary and should not be
induced by fraud, coercion or
undue influence;
(3) The family arrangements may be
even oral in which case no
registration is necessary;
(4) It is well settled that
registration would be necessary
only if the terms of the family
arrangement are reduced into
writing. Here also, a distinction
should be made between a document
containing the terms and recitals
of a family arrangement made under
the document and a mere memorandum
prepared after the family
arrangement had already been made
either for the purpose of the
record or for information of the
court for making necessary
mutation. In such a case the
memorandum itself does not create
or extinguish any rights in
immoveable properties and
therefore does not fall within the
mischief of Section 17 (2) (sic)
(Sec. 17 (1) (b) -) of the
Registration Act and is,
therefore, not compulsorily
registrable;
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(5) The members who may be parties
to the family arrangement must
have some antecedent title, claim
or interest even a possible claim
in the property which is
acknowledged by the parties to the
settlement. Even if one of the
parties to the settlement has not
title but under the arrangement
the other party relinquishes all
its claims or titles in favour of
such a person and acknowledges him
to be the sole owners, then the
antecedent title must be assumed
and the family arrangement will be
upheld and the Courts will find no
difficulty in giving assent to the
same;
(6) Even if bona fide disputes,
present or possible, which may not
involve legal claims are settled
by a bona fide family arrangement
which is fair and equitable the
family arrangement is final and
binding on the parties to the
settlement."
9.6) It was submitted that by virtue of
a family settlement or arrangement,
members of a family descending from a
common ancestor or a near relation seek to
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sink their differences and disputes,
settle and resolve their conflicting
claims or disputed titles once and for all
to buy peace of mind and bring about
complete harmony and goodwill in the
family. The family arrangements are
governed by a special equity peculiar to
themselves and would be enforced if
honestly made, although they have not been
meant as a compromise, but have proceeded
from an error of all parties, originating
in mistake or ignorance of fact as to what
their rights are, or of the points on
which their rights depend. The object of
the family arrangement is to protect the
family from long-drawn litigation or
perpetual strife which mar the unity and
solidarity of the family and create hatred
and bad blood between the various members
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of the family. It promotes social justice
through the wider distribution of wealth.
Family, therefore, has to be construed
widely and it is not confined only to
people having legal title to the property.
It was therefore, submitted that once the
legal heirs of Chhotalal Master and his
wife Manjulaben have declared on oath that
they have no right, title, or interest in
the suit property, such family arrangement
would prevail and could not have been
challenged by the respondents by
preferring the civil litigation against
each other. It was, therefore, submitted
that Civil Suit No. 4081 of 1982 and
Civil Suit No.1687 of 1984 are liable to
be dismissed.
9.7) Learned advocate Mr. Shah also
referred to and relied upon the decision
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of Apex Court in case of Korukonda
Chalapathi Rao and another v. Korukonda
Annapurna Sampath Kumar reported in 2021
SCC OnLine SC 847 in support of his
submission about unregistered documents in
the form of Banakhat vis-a-vis
registration of the documents as provided
under section 17 of the Registration Act,
1908. In facts of the said case, it was
held by the Apex Court that when the High
Court has set aside the order passed by
the Trial Court by which the Trial Court
overruled the objections of the respondent
to the marking of Exhibits-B12 and B13 on
the score that they were documents which
were unregistered and unstamped and matter
was posted for evidence of the witness of
the defendant for marking the said
document, the High Court found that the
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documents which were the unregistered
family settlement and receipt of Rs.
2,00,000/- by the respondent, were not
admissible in evidence. The Apex Court in
the aforesaid facts held as under:
"13. Undoubtedly, Section 17(1)
(b) makes 'other non-
testamentary instruments', which
purport or operate to create,
assign, limit or extinguish
whether in present or in future
any right or interest whether
vested or contingent of the value
of Rs.100/- and upwards in an
immovable property compulsorily
registrable. Section 17(1)(c)
reads as follows:
"17(1)(c) non-testamentary
instruments which acknowledge
the receipt or payment of any
consideration on account of
the creation, declaration,
assignment, limitation or
extinction of any such right,
title or interest; and"
14. Section 17 (2) provides
nothing in Clauses (b) and (c) of
sub-Section(1) applies, inter
alia, to any instrument of
partition made by the revenue
officer. Section 49 of the
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Registration Act reads as
follows:
"49. Effect of non-
registration of documents
required to be registered.--No
document required by section
17 1[or by any provision of
the Transfer of Property Act,
1882 (4 of 1882)], to be
registered shall--
(a) affect any immovable
property comprised therein,
or
(b) confer any power to
adopt, or
(c) be received as evidence
of any transaction affecting
such property or conferring
such power, unless it has
been registered: [Provided
that an unregistered document
affecting immovable property
and required by this Act or
the Transfer of Property Act,
1882 (4 of 1882), to be
registered may be received as
evidence of a contract in a
suit for specific performance
under Chapter II of the
Specific Relief Act, 1877 (3
of 1877) [***] or as evidence
of any collateral transaction
not required to be effected
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by registered instrument.] ."
15. There is a long line of
judgments of this court dealing
with the question as to whether a
family arrangement is
compulsorily registrable. We need
only refer to the case of Kale v.
Dy. Director of Consolidation.
This Court has summed up the
essentials of the family
settlement in the following
proposition:
"10. In other words to put
the binding effect and the
essentials of a family
settlement in a concretised
form, the matter may be
reduced into the form of the
following propositions:
"(1) The family settlement
must be a bona fide one so as
to resolve family disputes
and rival claims by a fair
and equitable division or
allotment of properties
between the various members
of the family;
(2) The said settlement must
be voluntary and should not
be induced by fraud, coercion
or undue influence;
(3) The family arrangement
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may be even oral in which
case no registration is
necessary;
(4) It is well settled that
registration would be
necessary only if the terms
of the family arrangement are
reduced into writing. Here
also, a distinction should be
made between a document
containing the terms and
recitals of a family
arrangement made under the
document and a mere
memorandum prepared after the
family arrangement had
already been made either for
the purpose of the record or
for information of the court
for making necessary
mutation. In such a case the
memorandum itself does not
create or extinguish any
rights in immovable
properties and therefore does
not fall within the mischief
of Section 17(2) of the
Registration Act and is,
therefore, not compulsorily
registrable;
(5) The members who may be
parties to the family
arrangement must have some
antecedent title, claim or
interest even a possible
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claim in the property which
is acknowledged by the
parties to the settlement.
Even if one of the parties to
the settlement has no title
but under the arrangement the
other party relinquishes all
its claims or titles in
favour of such a person and
acknowledges him to be the
sole owner, then the
antecedent title must be
assumed and the family
arrangement will be upheld
and the courts will find no
difficulty in giving assent
to the same;
(6) Even if bona fide
disputes, present or
possible, which may not
involve legal claims are
settled by a bona fide family
arrangement which is fair and
equitable the family
arrangement is final and
binding on the parties to the
settlement." (Emphasis
supplied)
9.8) Relying upon the above decision,
it was submitted that in the facts of the
present case, unregistered Banakhat when
found bona fide with other corroborative
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evidence, the same would be binding to the
parties and such instrument would be an
admissible evidence. It was further
submitted that the affidavits filed by the
legal heirs of late Manjulaben are also
admissible evidence for a declaration to
the effect that they had no right in the
suit property.
10. On the other hand, learned Senior
Advocate Mr. M.B. Gandhi with learned
advocate Mr. Chinmay Gandhi for the
respondents submitted that the trial Court
has rightly concluded to the effect that
on the filing of the suit by Kusumben
widow of Sharadkumar Chhotalal Master on
30.10.1982, plaintiff Niranjanaben got the
sale deed executed in her favor for the
suit property by her husband Dilipkumar
Popatlal Desai in his capacity as Power of
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Attorney Holder of Chhotalal Master on
2.11.1982 which is nothing but a sham and
bogus transaction inasmuch as except
payment of Rs.10,000/-, the appellant
original plaintiff Niranjanaben has not
paid any amount towards sale consideration
as even the remaining amount of sale
consideration of Rs. 20,000/- is stated to
have been outstanding in the registered
sale deed. It was therefore, submitted
that as per section 37 of the Contract
Act, 1872, the parties to a contract must
either perform, or offer to perform, their
respective promises unless such
performance is dispensed with or excused
under the provisions of the Act, or of any
other law. It was, therefore, submitted
that here in facts of the case, the
plaintiff Niranjanaben has never performed
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her promise and therefore, the trial court
has rightly dismissed the suit of the
plaintiff for permanent injunction and
handed over the remaining portion of the
suit property to Kusumben.
10.1) It was further submitted that
admittedly Manjulaben Chhotalal Master was
the owner of the property and once she
died intestate in the year 1977, all the
legal heirs i.e. Chhotalal Master and his
four sons would become the owners of the
suit property. It was therefore, submitted
that merely because the legal heirs have
filed the affidavit before the society to
transfer the suit property in favour of
Chhotalal Master, he would not become the
owner of the suit property but he would
be merely a Manager to manage the suit
property on behalf of all the legal heirs.
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It was, therefore, submitted that the
trial Court has rightly held that the sale
deed dated 2.11.1982 as well as the Power
of Attorney are null and void.
10.2) It was further submitted that the
mere filing of the affidavit by the legal
heirs as well as Kusumben widow of
Sharadkumar Chhotalal Master cannot be
considered as the extinguishment of their
rights in the share of the suit property.
It was submitted that such an affidavit
which is unregistered cannot be treated as
a relinquishment deed and the right of the
legal heirs would continue after the death
of Manjulaben Chhotalal Master on account
of succession of their share in the suit
property.
10.3) In support of his submission,
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reliance was placed on decision of this
Court in case of Roshanben Harjibhai
Deraiya W/o Ganibhai Sorathiya v. State of
wherein this Court has referred to the
decision of Apex Court in case of
Yellapu Uma Maheshwari v/s. Buddha
Jagadheeswararao, reported in 2015 (16)
SCC 787. The Apex Court in the said
decision held that the nomenclature given
to the document is not a decisive factor
but the nature and substance of the
transaction has to be determined
concerning the terms of the documents and
that the admissibility of a document is
entirely dependent upon the recitals
contained in that document but not on the
basis of the pleadings set up by the party
who seeks to introduce the document in
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question. The Apex Court in the facts of
the said case held that when there is
relinquishment of right in respect of
immovable property through a document that
is the compulsorily registerable document
and if the same not registered, becomes an
inadmissible document as envisage under
Section 49 of the Registration Act read
with section 17(i)(b) of the said Act.
10.4) It was therefore, submitted by
learned Senior Advocate Mr. Gandhi that in
the absence of registration of the
document, the trial Court has rightly held
that the same is inadmissible in evidence
to prove the factum of relinquishment of
rights by the legal heirs of Manjulaben in
respect of the suit property.
11. Having heard the learned advocates for
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the respective parties and having
considered the documentary and oral
evidence on record, it appears that the
learned trial Judge has been swayed away
by the fact of the registration of the
sale deed on 2.11.1982, two days after the
filing of the Civil Suit No. 4081 of 1982
by Kusumben on 30.10.1982. The trial Court
has further been prejudiced by the
relationship of Dilipkumar Popatlal Desai
and Niranjanaben while appreciating the
evidence and the fact regarding the
respective cases of the parties as
Dilipbhai is the husband of Niranjanaben
and even though Niranjanaben is writing
the name of and surname of father behind
her name, even though she is married to
Dilipbhai long back. The trial Court was
also of the view that both were residing
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under the same roof before the said
transaction and therefore, they can be
said to be two sides of the same coin and
it was not probable or natural that
Niranjanaben was thinking of purchasing
the property for her self independently
having no interest of Dilipbhai in it.
12. However, the trial Court referring to
a letter dated 4.05.1982 (Exh.191) written
by Dilipbhai, had drawn an unwarranted
interference that the thogh suit
transaction was between Niranjanaben and
Chhotalal Master, as a matter of fact both
husband and wife got interested in
purchasing the suit property and
therefore, it was very much surprising as
to how Dilipbhai could play double role
one as a Power of Attorney Holder and
thereby working as an agent of Chhotalal
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and at the same time he had also interest
in purchasing the suit property from
Chhotalal. The trial Court therefore, held
that Dilipbhai has tried to act as
purchaser and seller of the suit property.
13. Trial Court further has referred to
the fact of Dilipbhai and Niranjanaben
producing certain papers before the office
bearers of society even after the Civil
Suit No.3831 of 1982 was filed in the name
of Niranjanaben against Chhotalal Master
on 13.10.1982. The trial Court observed
that according to Niranjanaben and
Dilipbhai, Chottalal Master had intention
to back out from selling the suit property
and accordingly, Civil Suit No.3831 of
1982 was filed. The trial Court therefore,
has drawn inference that it was not
probable on part of Chhotalal Master to
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sign any document at the instance of
Niranjanaben or Dilipbhai and he would not
have agreed to do so given changed
circumstances and particularly, after the
suit was filed against him on 13.10.1982.
The trial Court, therefore, discarded the
document at Exh. 121 and Exh.122 whereby
Chhotalal Master resigned from the
membership of the society by signing the
application for the transfer of shares in
favour of Niranjanaben.
14. It appears that the trial Court has
overlooked the receipts issued by
Chhotalal Master for receipt of part of
the sale consideration on 24.07.1981.
Merely because of subsequent events after
the filing of the suit has created doubt
in the mind of the learned Judge about the
transaction by twisting the facts in
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favour of Kusumben, plaintiff of Civil
Suit No. 4081 of 1982, that documents at
Exh. 121 and 122 are concocted documents
by Niranjanaben and Dilipbhai with the aid
of witness Davidbhai. Trial Court without
verifying the correctness of the signature
of Chhotalal Master on such document
relied upon the oral evidence at Exh. 199
of Kusumben wherein she has denied on oath
that documents at Exh.121 and Exh. 122
bears the signature of her deceased
father-in-law Chhotalal Master. The Trial
Court has also failed to appreciate that
Kusumben filed Civil Suit No.4081 of 1982
against her father-in-law as a counter
blast to the suit filed by Niranjanaben.
15. The Trial Court has also discarded
the evidence of Davidbhai who has deposed
that the documents at Exh.121 and Exh.122
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signed by Chhotalal Master in his
presence.
16. The Trial Court has further drawn an
adverse inference without any basis with
regard to Exh.120 which is the original
proceeding book of the Society wherein
Chhotalal Master had put his signature
below the resolution of transfer of
membership in the meeting dated
06.06.1981. The Trial Court observed that
the date of taking the signature of
Chhotalal Master is not the same on which
the resolution is passed as David himself
has admitted that the resolution was
passed in a meeting dated 06.06.1981
whereas according to him signature of
Chhotalal Master was obtained on
30.11.1982 i.e. after 17 months after the
date of resolution.
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17. The trial Court, therefore, concluded
that it is not proved by Davidbhai that
the signature dated 30.11.1982 in Exh.120
purporting to be of Chhotalal Master is
really of Chhotalal Master because
Davidbhai in his examination in chief has
stated that Chhotalal Master had come on
30.11.1982 and had put his endorsement and
below the endorsement put his signature
with date 30.11.1982 in his presence. But
in his cross-examination, he admitted that
this endorsement was neither made in his
presence nor it was signed by anybody in
his presence. The trial Court, therefore,
held that whatever has been said by
Davidbhai regarding the endorsement and
the so-called signature of Chhotalal
Master at Exh.120 is not true and correct
because of the cross-examination. The
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Trial Court has therefore, drawn an
adverse inference that by allowing
Niranjanaben and Dilipbhai to have such an
addition in the proceeding book, the
office bearers of the society have also
tried to take side of Niranjanaben and
Dilipbhai for reasons best known to them.
18. With regard to document at Exh.201
which is an affidavit dated 10.10.1979, it
is held to be not proved and the signature
below the contents has been admitted by
Kusumben to be her own signature but she
had said that her signature was obtained
in the document at her house representing
that writing was required to be given to
the society for permitting Chhotalal to
act as Manager on behalf of all the heirs
of Manjulaben for management of the suit
property and without reading the contents
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she had put her signatures. The Trial
Court has thus heavily relied upon the
deposition of Kusumben and accepted the
story put forth that without reading she
had signed the document at Exh.201 which
is an affidavit whereby she has declared
that she has no right, title, or interest
in the suit property and the suit property
be transferred in the name of Chhotalal
Master as he is the owner of the same. It
is pertinent to note that on 10.10.1979
after the death of Manjulaben, there was
no transaction between Niranjanaben and
Chhotalal Master. Therefore, story put
forth by Kusumben and believed by the
trial Court that affidavit was signed only
to permit Chhotalal Master to manage the
suit property is also an eyewash that has
been blindly accepted by the trial Court.
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19. The Trial Court has also discarded the
Affidavit of Kusumben at Ex.201 in the
absence of examining Steven Syrus
witnessing the said document and Registrar
of the Labour Court. The Trial Court has
heavily relied upon the non-examination of
witness Steven Syrus who had identified
Kusumben in the affidavit even though
Kusumben had not disputed her signature in
the said document.
20. The Trial Court has again relied upon
the deposition of Kusumben wherein she had
stated that Steven Syrus was not keeping
good health and he was bedridden. He was
not able to see properly as by then his
eyesight had become very weak and because
of illness, he was not able to speak
properly. According to Kusumben, it was
not possible for her to examine Steven
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Syrus after her evidence was recorded. The
trial Court therefore, after considering
the fact that Steven Syrus died during the
course of the proceeding heavily relied
upon the say of Kusumben that Steven Syrus
was not keeping good health and therefore,
Kusumben couldn't examine him though he
was an important witness for both
Niranjanaben and Kusumben. In such
circumstances, the trial Court has drawn
adverse inference that the contents of
affidavit Exh.201 cannot be said to have
been proved as true and believed the say
of Kusumben that she had put her signature
without reading the contents of the
document at Exh.201.
21. The entire reasonings given by the
trial Court is without any basis inasmuch
as Steven Syrus had only identified
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Kusumben and he had no connection with
contents of the document. Therefore, in
rejecting the contents of the document,
the trial court has not given any reason.
Kusumben who had failed to examine Steven
Syrus has not even tried to prove that she
had signed the document without reading
it.
22. In view of the facts emerging from the
record, it appears that the trial Court by
drawing unwarranted inference has believed
what Kusumben had said as a gospel truth
ignoring the fact that Kusumben had filed
the suit against her own father-in-law to
continue to reside in the part portion of
the suit property.
23. The Trial Court has also referred to
and relied upon the absence of permission
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granted by the society to execute the sale
deed dated 2.11.1982 (Exh.72). The Trial
Court has distinguished the decision cited
on behalf of the appellant with regard to
the contention of the appellant there was
no requirement of permission from the
society before execution of the sale deed
by Dilipbhai in capacity of Power of
Attorney Holder of Chhotalal Master on the
ground that in the decision in case of
Jain Merchant Co-op Housing Society Ltd
and others v. HUF of Manubhai reported in
1995(1) GLR 19, the dispute was different
wherein permission was sought for by the
Karta of the HUF for transfer of property
which was denied by the society on the
ground that property can be transferred in
name of an individual only and in such
circumstances it was held by this Court
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that provisions of Gujarat Cooperative
Societies Act and Rules would not restrict
the registration of the sale deed in
absence of the permission from the
society.
24. The trial Court, therefore, dismissed
the suit filed by the appellant i.e.Civil
Suit No.3831 of 1982 on the ground that
the appellant plaintiff has failed to
prove that she has become the owner of the
suit property in view of the sale deed
executed by Dilipbhai as Power of Attorney
Holder of Chhotalal Master. Trial Court
has further also taken into consideration
that the market value of the suit property
was about Rs. 2 Lakh in the year 1981 when
the Banakhat was executed, however, the
suit property has been agreed to be sold
for Rs. 30,000/-. Therefore, the entire
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transaction would be contrary to the
evidence on record and therefore, the
registered sale deed also was held to be
null and void by allowing Civil Suit
No.4081 of 1982 and Civil Suit No. 1687 of
1984. The Trial Court also held that
deceased Chhotalal Master can be said to
have proved that he had cancelled the
Power of Attorney alleged to have been
executed by him in favour of Dilipbhai by
giving a public notice dated 27.10.1982 in
Gujarat Samachar newspaper on 30.10.1982
as alleged in para no.8 of the suit and he
has also proved that Dilipbhai had no
authority to execute the sale deed dated
2.11.1982 of the suit property contrary to
the fact that Power of Attorney was an
irrevocable Power of Attorney executed by
Chhotalal Master, coupled with the fact of
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issuance of a receipt for Rs. 10,000/-
towards part sale consideration signed by
Chhotalal Master which is not disputed by
any of the legal heirs of Chhotalal
Master. The Trial Court has therefore,
committed an error in arriving at the
conclusion that Banakhat dated 14.07.1981
deed dated 2.11.1982 in favour of
Niranjanaben was executed for loan
transaction and therefore, the same was
held to be illegal because market price of
the suit property was much higher than
Rs.30,000/- agreed between the parties.
25. The Trial Judge has also held that
when sale deed dated 2.11.1982 was
executed by Dilipbhai in favour of
Niranjanaben of suit property, Civil Suit
No.3831 of 1982 and Civil Suit No.4081 of
1982 filed on 13.10.1982 and 30.10.1982
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respectively were pending and therefore,
under doctrine of lis pendense as provided
in section 52 of the Transfer of Property
Act, 1882 transaction is bad in law which
was ignoring the fact that lis pendense is
required to be registered and in absence
of such registration, execution of the
sale deed at Exh.72 is concerned, cannot
be said to violate section 52 of the
Transfer of Property Act. The Trial Court
has committed an error in applying section
52 of the Transfer of Property Act which
reads as under:
"52. Transfer of property
pending suit relating thereto.
--During the [pendency] in any
Court having authority [within
the limits of India excluding
the State of Jammu and
Kashmir] or established beyond
such limits] by [the Central
Government] [* * *] of [any]
suit or proceedings which is
not collusive and in which any
right to immoveable property
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is directly and specifically
in question, the property
cannot be transferred or
otherwise dealt with by any
party to the suit or
proceeding so as to affect the
rights of any other party
thereto under any decree or
order which may be made
therein, except under the
authority of the Court and on
such terms as it may impose.
[Explanation.--For the purposes
of this section, the pendency
of a suit or proceeding shall
be deemed to commence from the
date of the presentation of
the plaint or the institution
of the proceeding in a Court
of competent jurisdiction, and
to continue until the suit or
proceeding has been disposed
of by a final decree or order
and complete satisfaction or
discharge of such decree or
order has been obtained, or
has become unobtainable by
reason of the expiration of
any period of limitation
prescribed for the execution
thereof by any law for the
time being in force.]"
26. Reliance was placed by the learned
advocate for the appellant on Bombay Act,
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1939 and amendment in section 52(1) to
exclude the applicability of section 52 of
Transfer of Property Act.
27. Findings given by the trial Court in
relation to issue no.3 of Civil Suit
No.3831 of 1982, issue nos. 4 and 5 of
Civil Suit No.4081 of 1982 and issue no. 5
of Civil Suit No.1687 of 1984 are
concerned, same would be dependent upon
issues no 1, 2, 2-A, 3-A and 3-E of the
Civil Suit No.3831 of 1982 wherein it held
that Niranjanaben can be said to have
failed to prove that she has become the
owner of suit property by virtue of sale
deed at Exh.72 and the legal heirs of
Manjulaben are the co-owners of the suit
property has also been upheld and
transaction between the parties dated
24.07.1981 is not as a matter of fact in
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nature of sale transaction but it is in
nature of security against advance payment
of Rs.10,000/- and thereby it is in nature
of mortgage of the property by depositing
the document. The Trial Court has however,
ignored the receipt issued by Chhotalal
Master in favour of Niranjanaben for
accepting Rs. 10,000/- comprising of cash
of Rs. 3000/- and cheque of Rs. 7000/-
towards part consideration out of total
sale consideration of Rs. 30,000/- agreed
between the parties. Moreover, there is no
evidence on record to come to a conclusion
by the trial Court that the suit property
was having market value not less than Rs.
1,25,000/-. In such circumstances, the
findings arrived at by the Court below are
perverse and contrary to the documentary
evidence available on record with regard
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to legality of Banakhat is concerned.
However, the findings of the Trial court
about registered sale deed dated
02.11.1982 are in accordance with evidence
led before it and cannot be said to be
perverse as the Dilipbhai could not have
executed the sale deed dated 02.11.1981 in
favour of his wife Niranjanaben after two
days of filing of suit by Kusumben on
30.10.1982 on the basis of Power Of
Attorney without payment of balance sale
consideration.
28. Therefore, Civil Suit No.3831 of 1982
is allowed by granting permanent
injunction against legal heirs of
Manjulaben and Chhotalal Master, and
respondent Kusumben is hereby directed to
vacate the suit premises.
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29. Civil Suit No. 4081 of 1982 and Civil
Suit No.1687 of 1984 are accordingly
partly allowed. Agreement to Sale
(Banakhat) dated 24.07.1981 is confirmed,
however, findings of the trial Court about
the sale deed dated 2.11.1982 are hereby
confirmed. Respondents are directed to
execute the sale deed in favor of legal
heirs of Niranjanaben by considering the
Agreement to Sale dated 24.07.1981 as
legal and valid. Consideration for sale
deed shall be worked out as per the Jantri
value prevailing as on today and legal
heirs of Niranjanaben are directed to pay
the balance amount of consideration
arrived at after obtaining the valuation
report from the registered valuer and
after receipt of possession of the portion
of the premises occupied by Kusumben widow
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of Sharadkumar Chhotalal Master from the
suit property. First Appeals stand
disposed of in above terms.
Record and proceedings be sent back to
the concerned Court.
(BHARGAV D. KARIA, J)
At this juncture, learned advocates for
the respective parties prayed that direction
may be given to comply with the above
directions issued while disposing of the
appeals on or before 31st March, 2024.
Accordingly, both the sides are directed
to abide by the directions issued here-in-
above latest by 31st March, 2024.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
