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2019 DIGILAW 2448 (BOM)

Krishna Savala Dalvi v. Sampat Krishna Kadam

2019-11-05

S.C.GUPTE

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JUDGMENT : S.C. Gupte, J. 1. Heard learned Counsel for the Appellants. 2. This second appeal arises out of a decree of declaration of 1/3rd share of Respondent No. 1 (original plaintiff) in the suit property and an order for separate possession of that share. The appeal was admitted on substantial questions of law set out in the grounds urged in the second appeal. The main grounds urged in support of the appeal are contained in the questions of law formulated in grounds (a) and (e). Ground (a) concerns maintainability of the suit without seeking a declaration or relief concerning the decree of specific performance passed in favour of defendant no. 1 in Regular Civil Suit No. 219 of 1972. Ground (e) concerns permissibility of a partial partition. It is submitted that it has come on record that the plaintiff possesses in his own names several joint family properties and that without including these properties in the pool of properties for effecting a partition, no partition decree was permissible. 3. The suit property consists of two parcels of land: Survey No. 26/2 admeasuring 2 acres and 13 gunthas, and Survey No. 26/3 admeasuring 2 acres 10 gunthas. Both properties are at Parali in Satara district. It was the case of Respondent No. 1 (original plaintiff) that the properties were owned originally by one Natha Kadam, who was survived by his three sons: Krishna, Ganpat and Ramchandra. Krishna died in the year 1961, leaving him surviving by the plaintiff as his sole legal heir. Ganpat died in the year 1970, survived by Respondent Nos. 3 and 4 herein (original defendant nos. 3 and 4). Ramchandra was alive, when the present suit was filed. He was arraigned as defendant no. 2 to that suit. (Ramchandra is Respondent No. 2 to the present second appeal.) The Appellant herein, as noted above, was arraigned as defendant no. 1 to the present suit. It was the case of the plaintiff that he had 1/3rd share in the suit property through his deceased father Krishna. It was submitted that defendant nos. 2 and 3, without the knowledge of the plaintiff, alienated the suit lands by an agreement for sale in favour of defendant no. 1 on 14 March 1969. It was submitted that on the basis of this agreement, defendant no. 1 filed a suit, being Suit No. 210 of 1972, against defendant no. It was submitted that defendant nos. 2 and 3, without the knowledge of the plaintiff, alienated the suit lands by an agreement for sale in favour of defendant no. 1 on 14 March 1969. It was submitted that on the basis of this agreement, defendant no. 1 filed a suit, being Suit No. 210 of 1972, against defendant no. 2 and the deceased father of defendant no. 3 for specific performance of contract. That suit was decreed in favour of defendant no. 1 on 21 September 1973. It was submitted that this decree was between defendant nos. 2 and 3 on the one hand and defendant no. 1 on the other; it was not binding on the plaintiff. It was submitted that originally, Ganpat, father of defendant nos. 3 and 4, had filed a suit, being Regular Civil Suit No. 106 of 1969, for redemption of mortgage of one of the two parcels of land (land bearing Survey No. 26/2), which was mortgaged to one Bhiku Gopal Palekar. That suit was decreed on 11 February 1971 and possession of Survey No. 26/2 was taken over in execution of that decree. It was submitted that the decree acknowledged 1/3rd share of the plaintiff in the property, bearing Survey No. 26/2; he could get his share from defendant nos. 2 and 3 herein under the decree, against payment of the proportionate share of redemption money. It was submitted that defendant nos. 2 and 3 were not authorised to execute any agreement of sale in respect of the plaintiff's share in the suit property either in their own rights or as karta of the joint family; there was no necessity of the family for such sale. On that basis, the plaintiff demanded his 1/3rd share in the suit property and its separate possession against payment of the proportionate redemption money payable by him to defendant nos. 2 and 3 in accordance with the decree of 11 February 1971. The trial court dismissed the suit. On appeal, the District Court decreed the suit in favour of the plaintiff. 4. Learned Counsel appearing for the Appellant/defendant no. 1 submits that the sale deed was executed in favour of his client in pursuance of a decree of specific performance granted by a competent court. The trial court dismissed the suit. On appeal, the District Court decreed the suit in favour of the plaintiff. 4. Learned Counsel appearing for the Appellant/defendant no. 1 submits that the sale deed was executed in favour of his client in pursuance of a decree of specific performance granted by a competent court. Learned Counsel submits that without seeking a declaration of nullity or variation of that decree, it was not permissible to the plaintiff to claim any share in the suit property. The argument has no force. In the first place, the plaintiff was not a party to the suit. The suit was between defendant no. 1, who claimed to be an agreement purchaser, and defendant nos. 2 and 3 herein, who claimed to be vendors of the suit property. Defendant Nos. 2 and 3 could only represent 2/3rd share in the suit property, that is to say, 1/3rd share each of Ramchandra and Ganpat. They had absolutely no authority in law to deal with or alienate the balance 1/3rd share of Krishna represented by the plaintiff. The decree of specific performance granted by the court in favour of defendant no. 1 herein and against defendant nos. 2 and 3 herein, thus, cannot bind the estate of Krishna represented by the plaintiff. The sale deed in respect of the suit property was executed on behalf of defendant nos. 2 and 3. Once again, this sale deed is incapable of passing the interest of the plaintiff to the extent of his 1/3rd share in the suit property. 5. Alternatively, it is submitted by Mr. Thorat that it was not permissible to the plaintiff to claim a partial partition. It is submitted that there were admittedly other properties, forming part of joint family property of the family of Ganpat, Krishna and Ramchandra, and without bringing all these properties to the table, no partition could be claimed; in other words, it was impermissible to claim separate partition of the suit property. There is no substance in this contention either. In the first place, there is no case made out before the courts below that there was any particular joint family property belonging to the family of Krishna, Ganpat and Ramchandra, which was left out. Mr. Thorat refers to a reference to "all joint family property" "standing in the name of Krishna". There is no substance in this contention either. In the first place, there is no case made out before the courts below that there was any particular joint family property belonging to the family of Krishna, Ganpat and Ramchandra, which was left out. Mr. Thorat refers to a reference to "all joint family property" "standing in the name of Krishna". A mere solitary reference generally to joint family property in the impugned order does not indicate that this question was actually argued before the first appellate court. Be that as it may, the suit is not for partition of family property generally against members of the family, who are arraigned as co-sharers. This suit is against a third party purchaser, who claims to have purchased the suit property, which was admittedly a joint family property, and in which the plaintiff had a 1/3rd share. This l/3rd share was even acknowledged by a competent court of law in a decree passed by it, namely, the decree of redemption passed in Regular Civil Suit No. 106 of 1969. That decree acknowledged the plaintiffs l/3rd share in the suit property and his entitlement to claim that share against payment of proportionate redemption money. There is no question, accordingly, of bringing in the other properties belonging to the joint family so as to form a pool of properties of which division could be sought. 6. None of the two grounds pressed by the Appellants in the second appeal, thus, deserves acceptance. Both questions of law are answered against the Appellants. The plaintiffs suit was maintainable without seeking any declaration or relief in respect of the decree of specific performance passed in Regular Civil Suit No. 219 of 1972. So also, the plaintiffs suit could not be termed as bad in law on account of non-inclusion of other properties allegedly owned by the family. The second appeal is, accordingly, dismissed. 7. At the request of Mr. Thorat, the interim stay of execution granted by this Court in respect of the decree passed by the District Court, is continued for a further period of eight weeks from today.