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2018 DIGILAW 2759 (BOM)

Ajab s/o Jairam Lad v. Gulab s/o Jairam Lad

2018-11-24

A.S.CHANDURKAR

body2018
JUDGMENT : This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the original defendant no.2 who is aggrieved by the decree for possession passed by the trial Court in favour of the respondent no.1 herein which decree has been confirmed by the appellate Court. 2. The facts giving rise to the present litigation are that one Jairam Lad had two sons namely Gulab and Ajab. Gulab being the elder brother was serving with the Railways till 1987. On account of his service, he was required to reside at various places. It is his case that in 1947, Municipal Plot No.4 came to be purchased out of the funds given to him by the sister of his grandmother-Kasabai. Thereafter, from the funds given by said Kasabai, a building was constructed and Gulab was the owner of the said building since purchase of the said plot. The municipal records also indicated his title. Father-Jairam expired on 01.01.1988. During his lifetime, the plaintiff's father was occupying the said building but he had no right, title or interest therein. All taxes were being paid by the plaintiff. After the death of the plaintiff's father he had come to Saoner on 03.01.1988 alongwith his family. On 20.01.1988, the plaintiff took possession of the entire building and locked the same. This fact was informed to his brother-Ajab by sending a telegram. Subsequently in October 1988 when the plaintiff came to reside at the said building he found that the defendant no.1 his mother Lankabai was occupying the ground floor and his brother-Ajab was occupying the first floor. Though the plaintiff called upon them to vacate the said premises the same was not done. It is on that basis that the plaintiff filed Regular Civil Suit No.251 of 1988 for declaration that he was the owner of the entire building and that his mother and brother had no right therein. Possession of the first floor was also sought from the defendant no.2. In the suit, the plaintiff had moved an application for temporary injunction. The defendant no.1 Mother filed her reply to the said application at Exhibit 10. The title of the plaintiff was denied. It was pleaded that Jairam had earned extensive property including plot in question during his lifetime. The ground floor of the building on the said plot was constructed by said Jairam in the year 1950. The defendant no.1 Mother filed her reply to the said application at Exhibit 10. The title of the plaintiff was denied. It was pleaded that Jairam had earned extensive property including plot in question during his lifetime. The ground floor of the building on the said plot was constructed by said Jairam in the year 1950. Thereafter two more floors were constructed in the year 1965 after obtaining necessary permission. Jairam and the defendants started residing in the suit premises since 1966. It was then pleaded that after obtaining necessary qualification, the plaintiff secured service and was required to live at various different places on that count. The ground floor of the said building was occupied by Jairam and his wife Lankabai. The shop was being run in the front portion of the said house on the ground floor. Jairam during his lifetime executed a will on 01.10.1987 and had bequeathed the property equally to Gulab and Ajab. It was thus averred that no relief could be granted to the plaintiff and suit was liable to be dismissed. Thereafter, written statement was filed by the defendant no.1 at Exhibit 27 raising similar pleas as raised in the earlier reply. The defendant no.2 filed pursis and adopted the written statement filed by the defendant no.1. Mother-Lankabai also filed Regular Civil Suit No.261 of 1988 against both her sons with a prayer for permanent injunction stating therein that she was in occupation of the ground floor premises and that her possession should not be disturbed by the defendants. Both the suits were consolidated and common evidence was led therein. 3. The trial Court after appreciating the evidence on record came to the conclusion that the plaintiff-Gulab alone was the owner of the suit site and the building standing thereon. The plaintiff had taken possession of the same after the death of his father and that the defendants had thereafter taken its possession without due notice to the plaintiff. The Will dated 01.10.1987 was held to be not proved. The suit filed by Gulab was accordingly decreed and he was held entitled to possession of the same. The suit filed by Lankabai came to be dismissed after recording a finding that she had not proved that she was the owner and possessor of the ground floor of the suit building. 4. The suit filed by Gulab was accordingly decreed and he was held entitled to possession of the same. The suit filed by Lankabai came to be dismissed after recording a finding that she had not proved that she was the owner and possessor of the ground floor of the suit building. 4. The defendants being aggrieved by the decree passed in the suit filed by Gulab filed Regular Civil Appeal No.73 of 1994. Lankabai being aggrieved by the dismissal of her suit challenged the same by filing Regular Civil Appeal No.92 of 1994. During pendency of these appeals, the defendants moved an application below Exhibit 98 before the appellate Court seeking permission to amend their written statement. By the said amendment, it was sought to be pleaded that on 04.03.1996, Gulab had sold agricultural land bearing Khasra Nos.7/5 and 7/6. By virtue of this sale, the plaintiff had exercised his choice in terms of Section 180 of the Indian Succession Act, 1925 (for short, ‘the said Act’). The appellate Court allowed the said amendment application after which the plaintiff consequentially amended the plaint. The plaintiff admitted execution of the said sale-deed but denied that the provisions of Section 180 of the said Act were attracted. The appellate Court after re-appreciating the evidence confirmed the findings recorded by the trial Court and dismissed both the appeals. 5. The defendant no.2 Ajab in the suit filed by Lankabai filed Second Appeal No.287 of 2004 challenging the decree passed in Regular Civil Suit No.261 of 1988 as confirmed in Regular Civil Appeal No.92 of 1994. This appeal however came to be dismissed on account of failure to file the paper book on 14.03.2008. The defendant no.2 Ajab in the suit filed by Gulab filed Second Appeal No.248 of 2004 challenging the decree as passed in Regular Civil Suit No.251 of 1988 that was confirmed in Regular Civil Appeal No.73 of 1994. 6. While admitting the appeal, the following substantial question of law was framed. i. Whether appellate Court was right in holding that S.180 of Indian Succession Act did not apply ? Thereafter, additional substantial question of law was framed as under:- ii. Whether the house property on plot no.4 is self acquired property of Jairam and the finding to that effect recorded by two courts below is perverse ? i. Whether appellate Court was right in holding that S.180 of Indian Succession Act did not apply ? Thereafter, additional substantial question of law was framed as under:- ii. Whether the house property on plot no.4 is self acquired property of Jairam and the finding to that effect recorded by two courts below is perverse ? Thereafter, in exercise of powers under Section 100(5) of the Code, an additional substantial question of law came to be framed as under: iii. In the light of the decisions in Premier Tyres Limited vs. Kerala State Road Transport Corporation AIR 1993 SC 1202 and Sri Gangai Vinayagar Temple and anr. vs. Meenakshi Ammal and ors. 2015 (6) Mh.L.J. 96 which have been followed in Kamlabai Suresh Khadse vs. Tukaram Rajaram Ingole and ors. 2015(2) Mh.L.J. 93 in absence of any challenge to the adjudication in R.C.A. No.92/1994, whether this appeal can be adjudicated on merits ? 7. Shri S.V. Manohar, learned Senior Advocate for the appellant-Ajab, in support of the appeal made following submissions:- (a) The suit property which was initially purchased in the municipal auction on 08.11.1947 was included for being partitioned in the partition-deed executed between Jairam and his brother Bala. As per the partition-deed at Exhibit 146, the suit property came to the share of Jairam and it was specifically stated therein that the same was purchased in the name of Gulab. Thereafter, Jairam executed a Will on 01.10.1987 at Exhibit 151. By that Will, the entire building standing on Plot No.4 was allotted jointly to both his sons Gulab and Ajab. Besides this property, Gulab was also allotted Field Survey Nos.7/5 and 7/6 admeasuring about 0.85 R. The Will took effect after the death of Jairam and on 04.03.1996 Gulab sold the said Khasra Nos.7/5 and 7/6 by virtue of sale-deed at Exhibit 49. Gulab in his plaint accepted the execution of the said sale-deed. In the light of the fact that plaintiff-Gulab acted upon the Will dated 01.11.1987 and thereafter sold some of the properties that were bequeathed to him, it was clear that he had accepted the entire Will. As an effect thereof, the doctrine of Election under Section 180 of the said Act came into play and Gulab therefore had no right to claim the entire suit property which was contrary to the Will executed by Jairam. As an effect thereof, the doctrine of Election under Section 180 of the said Act came into play and Gulab therefore had no right to claim the entire suit property which was contrary to the Will executed by Jairam. Having accepted the bequest with regard to Field Survey Nos.7/5 and 7/6, it would not be permissible for Gulab in the wake of the provisions of Section 180 of the said Act to disregard the Will insofar as the suit property was concerned. It was submitted that the appellate Court misconstrued the said provisions while dismissing the appeal preferred by Ajab. To buttress his submission in that regard, learned Senior Advocate placed reliance on the decisions in Mani Mani & Others Versus Mani Joshua [ AIR 1969 SC 1311 ], Lyla Darius Jehangir Versus Bakhtawar Lentin & Others [ 2007(1) Mh.L.J. 545 ] and Mirzaban Darabshaw Surti Versus Cedric Vaz & Another [ 2015(2) Mh.L.J. 184 ]. It was thus submitted that in view of provisions of Section 180 of the said Act, Gulab had no legal right to seek possession of the suit property in respect of that portion which was not bequeathed to him. (b) The finding recorded by both the Courts that the house property standing on Plot No.4 was the self-acquired property of Gulab was perverse. The said plot as well as the house standing thereon was that of Jairam in view of the partition effected between Jairam and his brother Bala on 05.09.1948. While it was the case of the plaintiff that the municipal plot was purchased in the auction that was held on 08.11.1947 through the funds given by Kasabai, it was submitted that this aspect was not proved by the plaintiff. There was no evidence on record to indicate the availability of funds with Kasabai especially when she was merely selling grams. The evidence on record indicated that the plot was purchased by Jairam and his brother Bala jointly and was thereafter allotted to Jairam in the subsequent partition. The plaintiff in his deposition had stated that atleast till the year 1953, he was studying after which he joined service. The contention that the construction was raised in the year 1950 was not duly proved. On the contrary, the evidence led by defendant no.2 clearly indicated the purchase being effected by Jairam in the name of his elder son Gulab. The contention that the construction was raised in the year 1950 was not duly proved. On the contrary, the evidence led by defendant no.2 clearly indicated the purchase being effected by Jairam in the name of his elder son Gulab. Pertinently, various receipts indicating renewal of lease as well as payment of taxes were produced by Ajab though the same were standing in the name of Gulab. By the documents at Exhibit 155 and 156, Gulab had given his no objection to the construction made on the first floor. It was submitted that both the Courts ignored vital material evidence on record and proceeded to record a perverse finding that the plot as well as the house property was owned by Gulab. Infact, the said property belonged to Jairam. (c) Dismissal of Second Appeal No.287 of 2004 for want of prosecution would not preclude the adjudication of the present second appeal on merits. In this regard, it was submitted that the principles of would not apply despite the fact that the proceedings in Regular Civil Suit No.251 of 1988 and 261 of 1988 were consolidated. The subject matter in both the suits as well as the reliefs sought were not identical. In the suit filed by Gulab, possession of the suit property was sought while in the suit filed by Lankabai, she merely sought permanent injunction from her possession of the ground floor portion being disturbed. She did not seek any declaration as to her title. The only issue involved in the suit filed by Lankabai was with regard to her possession and not that of title. On the other hand, in the suit filed by Gulab, the question of title arose. Reference in this regard was made to the decision in Ramagya Prasad Gupta & Others Murli Prasad & Others [ AIR 1974 SC 1320 ]. Placing reliance on the decision in Sri Gangai Vinayagar Temple & Another Versus Meenakshi Ammal & Others [2015 (6) Mh.L.J. 96], it was submitted that it was for the losing party to challenge the adverse decree. The suit filed by Lankabai had been dismissed and Ajab was defendant no.2 therein. There was no decree operating against Ajab and hence dismissal of Second Appeal No.287 of 2004 was inconsequential. Thus, the present appeal filed by Ajab against the decree for possession was maintainable and it was required to be adjudicated on merits. The suit filed by Lankabai had been dismissed and Ajab was defendant no.2 therein. There was no decree operating against Ajab and hence dismissal of Second Appeal No.287 of 2004 was inconsequential. Thus, the present appeal filed by Ajab against the decree for possession was maintainable and it was required to be adjudicated on merits. It was hence submitted that the judgment of the appellate Court in Regular Civil Appeal No.73 of 1994 deserves to be set aside and the suit filed by Gulab deserves to be dismissed. 8. Shri A.S. Jaiswal, learned Senior Advocate on behalf of the original plaintiff-Gulab, on the other hand supported the impugned decree. In that regard, he made the following submissions:- (a) The provisions of Section 180 of the said Act were not at all applicable in the facts of the present case. For the purposes of Section 180 to apply, it was submitted that the testator must be aware that the property in question belongs to some other person and the testator under the belief that the said property belongs to him proceeds to bequeath the same. This aspect was missing in the Will executed by Jairam inasmuch as, according to Jairam, the suit property was owned by him. Therefore, the question of Section 180 of the said Act applying to the case in hand did not arise. Reference was made to the decision in Valliammai Achi Versus Nagappe Chettiar [ AIR 1967 SC 1153 ] to demonstrate the contingencies as to when the provisions of Section 180 of the said Act would arise. In any event, it was urged that the plaintiff would have received part of the suit property as it was alleged to be joint family property. For that purpose, reference was made to the pleadings in the written statement that the suit property was the joint family property of Jairam. Sale of other lands received by Gulab would not have the effect of an option being exercised under Section 180 of the said Act. (b) The finding recorded by both the Courts that Gulab was the owner of the plot in question as well as the building constructed thereon was based on a proper appreciation of the evidence. Referring to the evidence on record, it was submitted that the presence of Jairam and his brothers was not brought on record during the course of said auction. Referring to the evidence on record, it was submitted that the presence of Jairam and his brothers was not brought on record during the course of said auction. On the other hand, the plaintiff had examined witnesses who had purchased adjoining plots and who had deposed that the required amount had been given by Kasabai. Lankabai, wife of Jairam was the best person to have deposed in this regard but she was not examined. Moreover, the source of income of Jairam was not brought on record to indicate that he had the capacity to purchase the suit property. Though it was deposed by Ajab that some transport business as well as money lending activities were being done by Jairam, said aspects were not pleaded in the written statement. On the other hand, the plaintiff was in service since 1953 and it was but natural that he had constructed both the floors in the said building. The fact that consent was sought from Gulab as per the document at Exhibit 155 itself indicated absence of any legal right with Ajab. In absence of any pleadings with regard to the partition, the said aspect was also required to be excluded from consideration. In the partition-deed which was heavily relied upon by Ajab, there was no reference to Bhakru who was also the brother of Jairam and Bala. It was thus submitted that both the Courts on a proper appreciation of the evidence on record rightly held that the suit property belonged to Gulab and that Jairam had no right therein to bequeath the same. The learned Senior Advocate referred to the decision in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Versus Chandran & Others [ (2017) 3 SCC 702 ] in that regard. (c) Dismissal of Second Appeal No.287 of 2004 filed by Ajab challenging the decree passed in Regular Civil Appeal No.92 of 1994 resulted in the principle of resjudicata being applicable. Though steps were taken to restore the said second appeal, the application in that regard was also rejected. (c) Dismissal of Second Appeal No.287 of 2004 filed by Ajab challenging the decree passed in Regular Civil Appeal No.92 of 1994 resulted in the principle of resjudicata being applicable. Though steps were taken to restore the said second appeal, the application in that regard was also rejected. Referring to the decisions in Premier Tyres Limited Versus Kerala State Road Transport Corporation [ AIR 1993 SC 1202 ] and Sri Gangai Vinayagar Temple & Another Versus Meenakshi Ammal & Others [2015 (6) Mh.L.J. 96], it was submitted that considering the fact that both the suits had been consolidated and were decided by a common judgment coupled with the fact that the appeals arising from both the suits were also decided by common judgment, dismissal of Second Appeal No.287 of 2004 for want of prosecution would preclude adjudication of the present second appeal on its merits. It was thus submitted that the appeal was liable to be dismissed. 9. I have heard the learned counsel for the parties at length and with their assistance I have gone through the records of the case. Since substantial question of law No.(iii) pertains to the aspect of permissibility of adjudication of the second appeal on merits, that substantial question of law is taken up first for consideration. The record indicates that Gulab had filed Regular Civil Suit No.251 of 1988 against Lankabai and Ajab seeking the relief of declaration of ownership and possession of the suit property. Lankabai in turn had filed Regular Civil Suit No.261 of 1988 against both her sons seeking the relief of permanent injunction so as to protect her possession with regard to the ground floor premises of the suit property. It is an admitted position that the proceedings in both the suits were consolidated and common evidence was led in the said suits. Both the suits were decided by common judgment dated 31.12.1993. It is further not in dispute that both the defendants in Regular Civil Suit No.251 of 1988 had filed Regular Civil Appeal No.73 of 1994 while the original plaintiff-Lankabai in Regular Civil Suit No.261 of 1988 had filed Regular Civil Appeal No.92 of 1994. Both these appeals were decided by common judgment dated 23.03.2004. As noted above, both the appeals came to be dismissed. Second Appeal No.287 of 2004 was filed by the defendant no.2 in Regular Civil Suit No.261 of 1988. Both these appeals were decided by common judgment dated 23.03.2004. As noted above, both the appeals came to be dismissed. Second Appeal No.287 of 2004 was filed by the defendant no.2 in Regular Civil Suit No.261 of 1988. Similarly, defendant no.2 in Regular Civil Suit No.251 of 1988 has filed Second Appeal No.248 of 2004. Second Appeal No.287 of 2004 was dismissed for want of prosecution on 14.03.2008. It is in this backdrop that the question of maintainability of the present second appeal arises. 10. For considering the aspect of maintainability of the appeal in the light of the fact that the suits were consolidated and decided together, it would be necessary to consider the reliefs sought in both the suits. In this regard, reference can be made to the law as laid down in Ramagya Prasad Gupta & Others (supra). It has been held therein that for the principles of resjudicata to be applicable, the issues arising in one of the suits should directly and substantially arise in the other suit. If the subject matter of the earlier suit and the subsequent suit is different, then the question of principles of resjudicata being applicable would not arise. It can be seen that in Regular Civil Suit No.251 of 1988, Gulab had sought declaration of his title as being owner of the suit property alongwith a prayer for possession. On the other hand, in the other suit filed by Lankabai she had not sought declaration of her title and has merely sought the relief of permanent injunction so as to protect her possession. The question of title therefore was not directly and substantially in issue in the suit filed by Lankabai. This is one of the major aspects which would rule out applicability of the principles of res-judicata. 11. Another relevant aspect is that Second Appeal No.287 of 2004 filed by Ajab was not an appeal filed by a losing party. The suit arising therein had been filed by Lankabai but said suit had been dismissed. The appeal filed by her had also been dismissed. As held in Sri Gangai Vinaygar Temple & Another (supra), where common issues have been framed in two or more suits, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. The appeal filed by her had also been dismissed. As held in Sri Gangai Vinaygar Temple & Another (supra), where common issues have been framed in two or more suits, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. It is thus clear that on this principle, Second Appeal No.287 of 2004 was not filed by Lankabai who was the losing party as her suit had been dismissed. The appeal filed by Ajab who was defendant no.2 in a suit which was dismissed is therefore inconsequential and the principles of res-judicata would therefore not apply to the case in hand. On this distinguishing feature, the ratio of the decision in Premier Tyres Limited Versus Kerala State Road Transport Corporation [ AIR 1993 SC 1202 ] would not be applicable to the case in hand. Accordingly, substantial question of law no.(iii) is answered by holding that in the light of the law laid down in Ramagya Prasad Gupta & Others and Sri Gangai Vinayagar Temple & Another (supra), the present second appeal can be adjudicated on merits and dismissal of Second Appeal No.287 of 2004 for want of prosecution would not preclude adjudication of this appeal on merits. 12. Substantial question of law no.(i) relates to applicability of the principles of Section 180 of the said Act while substantial question of law no.(ii) concerns the nature of right of Jairam in the suit property. If it is held that the suit property was the self-acquired property of Jairam, then the question of provisions of Section 180 of the said Act applying would lose its significance as the bequest would be by a person having title to the suit property. It would therefore be necessary to first answer substantial question of law no.(ii) as framed. 13. As per the plaint averments, it is the case of Gulab that in the year 1947 he had purchased a municipal plot in Ward No.4 out of the funds given to him by Kasabai, the sister of his grandmother. It is further pleaded that the building standing on that plot was also constructed by the plaintiff through the funds given by Kasabai. It is on that premise that the plaintiff claims title to the plot and the building standing thereon. It is further pleaded that the building standing on that plot was also constructed by the plaintiff through the funds given by Kasabai. It is on that premise that the plaintiff claims title to the plot and the building standing thereon. On the other hand in the written statement it has been pleaded that Jairam and Bala, who are the plaintiff’s father and uncle respectively, had formed the joint Hindu family. There was a partition between Jairam and his brother Bala in September 1948. In that partition, plot no.4 which had been purchased by Jairam and his brother in the name of the plaintiff fell to the share of Jairam after which Jairam constructed structure standing thereon. It is further pleaded that a single storeyed structure was constructed in 1950 and the double storeyed structure was constructed in 1965. 14. Since the question of perversity of the findings recorded by the Courts is to be answered, it would be necessary to scan the relevant evidence. Plaintiff-Gulab examined PW1 Babulal Singh at Exhibit 74 to prove his case. This witness has deposed that the plaintiff and Kasabai took plot no.4 in an auction. Kasabai had purchased the plot in the name of plaintiff as she had no issue. This witness produced the lease-deed at Exhibit 75 which was standing in the name of the plaintiff. In his cross-examination, this witness has stated that he did not remember who had participated in the auction of plot no.4. He has further deposed that Kasabai did not participate in the auction and Jairam was also not present in the auction. He also admitted that he could not say as to how much amount was given by Kasabai in the auction. The plaintiff examined himself at Exhibit 76. According to him at the time of auction he was aged about nineteen years and Kasabai had given him the amount to purchase the suit property. She had also purchased a house in the name of the plaintiff in the year 1936. He further deposed that he had constructed the building on the suit plot in 1950 from the money provided by Kasabai. Remaining construction was undertaken by the plaintiff himself in the year 1965. He has further deposed that he took education at Saoner in the year 1948 and thereafter his further education in College was at Nagpur. He started his service in the year 1953. Remaining construction was undertaken by the plaintiff himself in the year 1965. He has further deposed that he took education at Saoner in the year 1948 and thereafter his further education in College was at Nagpur. He started his service in the year 1953. Said Kasabai had borne the expenses of his college education. In his cross-examination, he admitted that Kasabai did not have any land standing in her name and that he had not pleaded about money being advanced by Kasabai to purchase the plot in the plaint. The construction in the year 1951 to 1954 was without any permission. He had paid some amount to Kasabai but he had not maintained any accounts of the expenditure. He further admitted that he had no accounts to show the expenditure while constructing the ground floor. Similarly, the accounts of expenditure of the first floor were also not maintained. It was admitted by him that his father and Kasabai were doing weekly payments to labourers. His father Jairam was purchasing the material and the plaintiff was making the payments. It was further admitted by him that Kasabai was doing the business of baking grams and that he was not aware about her daily income. PW3 has been examined at Exhibit 118 and he has deposed that he had seen Kasabai on the date of the auction. PW4 Sanitary Inspector was examined by the plaintiff at Exhibit 119 who was referred to the map that was submitted for seeking permission to construct the building on the suit plot. These are the witnesses examined by the plaintiff. 15. The defendants examined one Shalikram Naik at Exhibit 136 who was a Petition Writer. He deposed of having scribed various documents including the partition-deed dated 05.09.1948. Said partition-deed was at Exhibit 146. Defendant no.2 Ajab examined himself as DW2 at Exhibit 147. He has deposed that in the year 1948 his father and uncle had separated. His father was keeping all original documents and the same were produced by said witness. According to him, it was Jairam who had purchased the suit plot and had paid the consideration. The plot was purchased in the name of Gulab as he was the eldest son. The financial condition of Kasabai was not sound and she was merely baking and selling grams. In 195253 his father had constructed the ground floor by bearing all expenses. The plot was purchased in the name of Gulab as he was the eldest son. The financial condition of Kasabai was not sound and she was merely baking and selling grams. In 195253 his father had constructed the ground floor by bearing all expenses. The taxes were also paid by Jairam and he produced on record various receipts in that regard. He then deposed as to the execution of the Will at Exhibit 151 and the properties bequeathed and subsequently mutated on the basis of the said Will. He also referred to the application seeking permission for construction and the no objection given in that regard by the plaintiff. DW3 was examined at Exhibit 187 who was present at the time of the auction and he deposed that it was Jairam who participated in the same and purchased plot no.4. He denied the suggestion that Gulab had taken money from Kasabai for making the payment towards the auction amount. Another witness examined at Exhibit 186 has also supported the case of defendant no.2 by deposing that it was Jairam who participated in the auction and purchased the said plot. The other witnesses examined are the attesting witnesses on the Will at Exhibit 151. Another son of Jairam namely Shamrao was examined as DW7 at Exhibit 192 and he has supported the case of defendant no.2. This is the evidence led by the defendants. 16. The trial Court while appreciating the aforesaid evidence found that the lease-deed at Exhibit 78 stood in the name of the plaintiff and that he was not a minor when the suit plot was purchased in the auction. In paragraph 33 of its judgment, it has been observed that it was the plaintiff who produced various receipts of lease rent and thus recorded a finding that it was the plaintiff who had acquired lawful title over the suit plot. It was further held in paragraphs 33 and 34 that the suit property was not the property of the joint Hindu family or of Jairam and hence the partition memo at Exhibit 148 and the Will at Exhibit 151 to that extent did not operate against the rights of the plaintiff. It was also held that the construction undertaken by Gulab of the ground floor in the year 1950-51 and the first floor in the year 1965 was with the help of Kasabai. It was also held that the construction undertaken by Gulab of the ground floor in the year 1950-51 and the first floor in the year 1965 was with the help of Kasabai. Accordingly, the trial Court by holding the ownership of the plaintiff to be proved decreed the suit. Insofar as the appellate Court is concerned, in paragraph 11 of its judgment, it has recorded a finding that it was the plaintiff who consistently paid taxes at Exhibit 157 to 174 with regard to the suit property. In paragraph 12 it has been held that the plaintiff had just attained the age of majority when the auction took place. Since Kasabai was doing the business of sale of baked grams and she was issueless it was possible that she had given amounts to plaintiff not only for participating in the auction but even for construction. It was then held in paragraph 13 that the partition-deed at Exhibit 146 was only between two brothers Jairam and Bala and therefore it did not reflect the clear picture. On that basis, it proceeded to hold that the partition-deed and the will-deed did not operate against the title of the plaintiff. The appeals came to be consequently dismissed. The aforesaid indicates that both the Courts have held that it was the plaintiff who had purchased the suit plot in the municipal auction and that he had thereafter constructed the ground floor initially and thereafter the first floor. 17. While considering the aspect as to perversity of the findings as recorded, if it is found that material evidence available on record has been ignored or the inference drawn therefrom is totally unreasonable, the same would be liable to be interfered with on the ground of perversity. Similarly, as observed in Govindaraju Versus Mariamman [ (2005) 2 SCC 500 ], if the findings recorded are based on a misreading of the evidence on record, interference is permissible on the ground of perversity. However, if the Courts have taken a possible view in the light of the evidence on record after considering all the material on record, interference on that ground would be impermissible on the aspect of perversity. Keeping this aspect in mind, the following material available on record can be taken into consideration. However, if the Courts have taken a possible view in the light of the evidence on record after considering all the material on record, interference on that ground would be impermissible on the aspect of perversity. Keeping this aspect in mind, the following material available on record can be taken into consideration. The plaintiff has deposed that he had taken education at Saoner in the year 1948 and after passing the Secondary School Certificate Examination he took further education in a college at Nagpur. He joined service in the year 1953 and prior to his service he had no source of income. It was his father who spent for his education upto the Secondary School Certificate Examination and thereafter it was Kasabai who had borne expenses of his college education. In paragraph 3 of his deposition he has stated that he had constructed the building on the suit plot in the year 1950 and that it was Kasabai who had provided the money for constructing the ground floor. In paragraph 14 of his deposition he has stated that the construction in the years 1951 to 1954 was without permission and it was done by Kasabai but he was not aware of the actual expenditure. As regards the financial capacity of Kasabai, the plaintiff admitted that she had no land with her and that he was not aware of the amounts spent by Kasabai. He had no account to show the expenditure on the ground floor. He was personally coming to Saoner and paying the amounts. Similarly, he did not maintain the accounts of the expenditure of the first floor though that construction was undertaken in the year 1964-65. In paragraph 18 of his deposition he has admitted that his father and Kasabai were doing weekly payments of the labourers. However, he has further admitted that it was his father who was purchasing the material and it was the plaintiff who was paying the costs of the same. In paragraph 20 of his deposition, he has stated that Kasabai was doing the business of baking grams and he was not aware of her daily income. From the aforesaid evidence on record, it becomes clear that except oral statements that it was Kasabai who provided the finance for purchasing the suit plot in the auction as well as for the plaintiff's college education, there is no other documentary evidence in that regard. From the aforesaid evidence on record, it becomes clear that except oral statements that it was Kasabai who provided the finance for purchasing the suit plot in the auction as well as for the plaintiff's college education, there is no other documentary evidence in that regard. According to the plaintiff himself Kasabai did not have any landed property and was only doing the business of baking grams. The bid was taken for the amount of Rs.2,500/- in the year 1947. Though the plaintiff joined service in the year 1953, he was not able to produce any accounts of expenditure either of construction of the ground floor or the first floor. On the contrary, he admitted that his father was purchasing the material in question. The aforesaid evidence would have to be considered in the light of documentary evidence led by the defendants. 18. The defendant no.2 in his deposition produced various receipts of the lease rent at Exhibits 157 to 171. He also produced demand notices and water tax receipts on record. Similarly, other receipts of lease rent at Exhibits 182 and 183 were also produced by the defendant no.2. It is to be noted that though these documents indicated the name of the plaintiff as owner, these relevant documents have been produced by the defendant no.2 who has deposed that it was his father who was making the payments and that he was maintaining a record of the original documents. The plaintiff has failed to explain as to how all the said original documents indicating payment of lease rent and other amounts were in the custody of the defendant no.2 especially when it was his case that since inception he was the owner of the suit plot. The finding recorded by the trial Court in paragraph 33 of its judgment that it was the plaintiff who had produced all the original documents is therefore obviously contrary to the material on record. It was not the plaintiff-Gulab but it was defendant no.2 Ajab who had produced all these relevant documents. It is thus obvious that this observation of the trial Court in paragraph 33 of its judgment is perverse. 19. Another relevant piece of evidence is the deed of partition dated 05.09.1948 at Exhibit 146 that was produced by defendant no.2. The necessary averments in that regard can be found in paragraph 14B of the written statement. It is thus obvious that this observation of the trial Court in paragraph 33 of its judgment is perverse. 19. Another relevant piece of evidence is the deed of partition dated 05.09.1948 at Exhibit 146 that was produced by defendant no.2. The necessary averments in that regard can be found in paragraph 14B of the written statement. The defendant no.2 examined its Scribe to prove the same. Perusal of the document at Exhibit 146 indicates that the three brothers-Jairam, Bala and Bhakru had agreed that initially Bhakru had separated from both of them and he had been granted a share in the property. The remaining properties were then partitioned between Jairam and Bala. With regard to the suit property, it has been specifically stated that the same was allotted to the share of Jairam and that while purchasing the same, the documents were prepared in the name of Gulab. It is to be noted that the third brother Bhakru has also affixed his thumb impression to this document as a witness and has thus accepted to the contents of the same. This partition-deed dated 05.09.1948 having been executed shortly after taking the suit plot on lease as per Exhibit 78 is a strong circumstance to indicate the nature of right of Jairam and that of the plaintiff therein. In the light of the clear statement in the partition-deed that the lease-deed was got executed in the name of Gulab, material importance has to be given to this document which has been duly proved by examining its Scribe. The observations of the appellate Court in that regard and especially in paragraph 13 of its judgment that though there were three brothers-Jairam, Bala and Bhakru, the partition took place only between Jairam and Bala and hence it did not reflect the real picture is by overlooking the material fact that the third brother Bhakru had signed the said partition-deed as a witness and it was specifically mentioned in the said partition-deed that he had already separated from the other two brothers. It is thus obvious that this finding recorded by the appellate Court that the partition-deed at Exhibit 176 did not reflect the real picture is by overlooking the contents of the very same document which infact reflect the real picture. The finding in that regard as recorded by the appellate Court is thus perverse. 20. It is thus obvious that this finding recorded by the appellate Court that the partition-deed at Exhibit 176 did not reflect the real picture is by overlooking the contents of the very same document which infact reflect the real picture. The finding in that regard as recorded by the appellate Court is thus perverse. 20. Another document having material bearing is the application at Exhibit 155. This application was moved by plaintiff-Gulab before the Municipal Council seeking permission to make construction. The plaintiff has stated therein that the plot was standing in his name and that his younger brother-Ajab had moved an application seeking permission to make construction. The plaintiff stated that he had no objection for the same and hence permission in that regard be granted. It is on that basis that the requisite permission came to be granted as per the document at Exhibit 156. These material documents were also produced by the defendant no.2. The appellate Court merely by observing that as plaintiff's father-Jairam or the defendant no.2 did not raise any objection to the assertions made in said application Exhibit 155 proceeded to hold that said aspect indicated the title of the plaintiff. 21. Thus, when the aforesaid evidence led by the parties is taken as a whole, it becomes obvious that the plaintiff has sought to rely upon the lease-deed at Exhibit 78 standing in his name and on that basis has sought to claim title thereof. However, the absence of any evidence to indicate the financial capacity of Kasabai and absence of any assets with her so as to pay amount of Rs.2,500/- in the year 1947 alongwith expenses of construction and bearing the expenses of the plaintiff's college education are vital aspects that cannot be ignored. When this evidence is compared to the evidence led by the defendants, it can be seen that there are clear statements made in the partition-deed dated 05.09.1948 at Exhibit 146 of the same having been purchased in the name of Gulab. Production of the original lease rent receipts by the defendant no.2 though the plot stood in the name of the plaintiff is another relevant factor in favour of the defendants. As noted above, the perversity in the finding recorded by the Courts becomes obvious as it has been incorrectly observed by the trial Court that it was the plaintiff who produced the original lease rent receipts. As noted above, the perversity in the finding recorded by the Courts becomes obvious as it has been incorrectly observed by the trial Court that it was the plaintiff who produced the original lease rent receipts. The further finding recorded by the appellate Court that the partition-deed dated 05.09.1948 did not give a clear picture is by not reading the entire partition-deed at Exhibit 146. It has been clearly mentioned therein that the third brother-Bhakru had already separated from the other two brothers and said Bhakru had put his thumb impression on the partition-deed as a token of accepting its contents and execution. In the light of the averments in paragraph 14B of the written statement, the ratio of the decision in Executive Officer (supra) does not assist the case of the plaintiff. It is thus found that the finding recorded by the Courts that it was the plaintiff who was the owner of the suit plot and the building constructed thereon is perverse as the evidence on record has been misread by the Courts. Substantial question of law no.(ii) is accordingly answered by holding that the house property on plot no.4 as well as the plot itself was the property of Jairam and the finding otherwise recorded by the Courts is perverse. 22. Insofar as the first substantial question of law is concerned, the same relates to applicability of the provisions of Section 180 of the said Act. Section 180 of the said Act would come into play when a person by his will professes to dispose of something of which he has no right to dispose of and in such situation the person to whom the thing belongs shall elect either to confirm the disposition or dissent from it. In the latter case such person has to give up any benefits which may have been provided to him by the Will. The Will in question is at Exhibit 151 and by that Will the structure standing on plot no.4 has been bequeathed in favour of the plaintiff as well as defendant no.2. However, while answering substantial question of law no.(ii) it has been held that it was Jairam who was the owner of the suit property which was purchased in the name of his son Gulab. However, while answering substantial question of law no.(ii) it has been held that it was Jairam who was the owner of the suit property which was purchased in the name of his son Gulab. Once it is held that the suit property belongs to Jairam it would follow that he had full right to bequeath the same which he had done as per Exhibit 151. Having found that it was Jairam who was the owner of the suit property, the question of the provisions of Section 180 of the said Act requiring the plaintiff to elect accepting the benefits received under the Will would therefore not arise for consideration. However, even if it is assumed that the suit property belongs to Gulab by virtue of the lease-deed at Exhibit 78, it is to be noted that under the Will at Exhibit 151, the said property was bequeathed to Gulab and Ajab. Under the said Will, field bearing Survey Nos.7/5 and 7/6 were also bequeathed in favour of Gulab. During pendency of the proceedings, said Gulab sold these two fields on 04.03.1996 vide sale-deed at Exhibit 49. In other words, the plaintiff accepted the bequest insofar as the agricultural fields bearing Khasra Nos.7/5 and 7/6 are concerned. Thus having accepted part of the bequest and having acted upon the same, it would be impermissible for him to reprobate with regard to bequest of the suit property in favour of defendant no.2 Ajab. As observed in Valliammai Achi (supra) a legatee has to either accept the instrument as a whole or has to dispute the same. The doctrine of Election would arise when the legatee has to choose between his own property that has been willed away to somebody else and the property which belongs to the testator which the testator has given to the legatee by the Will. It is thus clear that by accepting the bequest with regard to Khasra Nos.7/5 and 7/6 and having sold those two properties on 03.04.1996, Gulab is required to accept the entire Will at Exhibit 151. The ratio of the decision in Mani Mani & Others (supra) supports the contention of the appellant. Thus, it would be impermissible for Gulab to now contend that the Will at Exhibit 151 to the extent portion of the suit property has been bequeathed in favour of defendant no.2 Ajab is invalid and not binding on him. The ratio of the decision in Mani Mani & Others (supra) supports the contention of the appellant. Thus, it would be impermissible for Gulab to now contend that the Will at Exhibit 151 to the extent portion of the suit property has been bequeathed in favour of defendant no.2 Ajab is invalid and not binding on him. It is not in dispute that Ajab is in possession of the first floor of the suit house. Though it was urged on behalf of Gulab that even otherwise he was entitled to receive some of the properties being the son of Jairam, it having been held by both the Courts that the suit property was not joint family property, bequest by Jairam would have to be accepted in its entirety. The appellate Court committed an error in law while holding that the provisions of Section 180 of the said Act were not applicable to the case in hand. Substantial question of law no.(i) is answered by holding that the appellate Court was not right in holding that the provisions of Section 180 of the said Act did not apply despite holding that Gulab was the owner of the plot and building thereon. 23. As a result of aforesaid adjudication, it is held that plaintiff-Gulab is not entitled for any relief in Regular Civil Suit No.251 of 1988. Consequently, the judgment dated 31.12.1993 in Regular Civil Suit No.251 of 1988 as well as the judgment in Regular Civil Appeal No.73 of 1994 dated 22.03.2004 are quashed and set aside. Regular Civil Suit No.251 of 1988 stands dismissed with costs. Second Appeal No.248 of 2004 is accordingly allowed with costs. After a period of eight weeks from today, the appellant would be entitled to receive back the amount of Rs.1,50,000/- alongwith accrued interest which amount was deposited as a condition for grant of stay. The appellant shall also not create any third party rights in the suit property for a period of eight weeks from today.