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2023 DIGILAW 408 (BOM)

Ananda Appaji Patil v. Rajaram Appaji Patil

2023-02-07

MADHAV J.JAMDAR

body2023
JUDGMENT 1. Heard Mr. Yuvraj Narvankar, learned counsel appearing for the Appellants. Mr. Narvankar submitted that the following substantial questions of law are involved in this Second Appeal. i. Whether the entire trial is vitiated as although specific contention is raised that the suit agreement is forged and fabricated, no issue in that behalf is framed by the learned Trial Court? ii. Whether the agreement dtd. 30/1/2012 (Exhibit-40) can be read in evidence in view of non-payment of stamp duty as contemplated under Article 25 of the Maharashtra Stamp Act? 2. Before considering the substantial questions of law raised by Mr. Narvankar, it is necessary to set out certain aspects:- i. The Appellants i.e. Defendant Nos. 1 and 2 and the Respondent No.2 i.e. Defendant No.3 are the brothers of Respondent No.1 i.e. Plaintiff. ii. The suit property is ancestral property and all have share in the suit property. iii. It is the claim of the Plaintiffs that by agreement dtd. 30/1/2012 executed between the Plaintiff and the Defendants, the Defendants agreed to sell the suit property in favour of the Plaintiffs for consideration of Rs.60, 000.00 and at the time of execution of the agreement, Rs.40, 000.00 were paid. It is the contention of the Appellants i.e. Defendant Nos. 1 and 2 that certain arrangement regarding partition was agreed before the raVke qDrh dfeVh and therefore, signatures were obtained on blank paper and the said page was utilized for creation of fabricated document. 3. The first substantial question of law raised by Mr. Narvankar is that although specific contention is raised in the written statement that the agreement is forged and fabricated and inspite of that the issue regarding the said aspect has not been framed. 4. It is significant to note that the said contention is raised before the learned First Appellate Court and the learned First Appellate Court considered the said aspect. Learned First Appellate Court has considered the said aspect by assigning detailed reasons. 5. The learned First Appellate Court has held that as per the settled legal position whether the absence of any specific issue will vitiate the trial or not depends on the facts and circumstances of the case in question. Learned First Appellate Court has considered the said aspect by assigning detailed reasons. 5. The learned First Appellate Court has held that as per the settled legal position whether the absence of any specific issue will vitiate the trial or not depends on the facts and circumstances of the case in question. The same can be ascertained from the material on record that both the parties understood rival case and the relevant questions arising for consideration and lead all the evidence on all material aspects of the case and the Court on considering the said material gave its findings, then the decision cannot be said to have been vitiated merely on the ground of absence of framing of specific issue in question. The reason being that no party can be said to have been prejudiced by absence of issue. 6. The learned Appellate Court found that the learned Trial Court has raised issue whether the Plaintiff has proved the said agreement dtd. 30/1/2012 and at the time of execution of agreement whether Plaintiff has paid Rs.40, 000.00 to the Defendants. The Plaintiff has examined the P.W.1- Rajaram Appaji Patil at Exhibit-29 and attesting witness P.W. 2- Shivaji Ganpati Patil at Exhibit-53. Both these witnesses have proved the execution of agreement for sale i.e. Exhibit-40. Both the Courts have concurrently held that evidence of both these witnesses have remained unshaken in their cross-examination. It is further observed that no cross-examination has been conducted of these witnesses on very vital points and therefore, their evidence has remained unchallenged. It has been held that the Plaintiff has proved that agreement is executed and also proved that said amount of Rs.40, 000.00 has been paid by the Plaintiff to the Defendants. 7. The learned Appellate Court also took into consideration that Defendant No.3 has remained ex-parte and therefore, it can be assumed that Defendant No.3 has admitted the claim of the Plaintiff. 8. It is further significant to note that the D.W.1-Raghunath Appaji Patil i.e. Defendant No.2 has examined himself as D.W.1 and during his cross-examination, he admitted that the Plaintiff agreed to purchase the share of the Defendant Nos. 8. It is further significant to note that the D.W.1-Raghunath Appaji Patil i.e. Defendant No.2 has examined himself as D.W.1 and during his cross-examination, he admitted that the Plaintiff agreed to purchase the share of the Defendant Nos. 1 to 3 and for that share, Rs.60, 000.00 was agreed to be paid and it was agreed that the price of entire property was determined as Rs.80, 000.00 and therefore, Rs.20, 000.00 was allotted to the share of the Plaintiff and Rs.60, 000.00 was fixed as purchase price to be paid to the Defendant Nos. 1 to 3. The said crossexamination of D.W.1 is to the following effect:- 9. In the cross-examination he further admitted that the said Exhibit-40 bears signature of Defendant Nos.1 and Defendant No.3 and also bears his thumb impression. "In his further cross also he categorically stated 10. Thus, inter alia on the basis of above evidence on record, both the Courts have concurrently held that execution of agreement dtd. 31/1/2012 is proved as well as payment of amount of Rs.40, 000.00 is proved and both the Courts have concurrently held that Defendants have failed to prove that the said agreement is forged and fabricated document. Therefore, there is no substance in the first substantial question of law raised by Mr. Narvankar. 11. The second substantial question of law raised by Mr. Narvankar is that as the stamp duty in accordance with Article 25 of Maharashtra Stamp Act is not paid, the said document at Exhibit-40 can not be read in evidence. In this behalf, it is significant to note that agreement in question specifically contains following clause:- 12. Article 25 is regarding conveyance. The Explanation- I to Article 25 specifies that for the purposes of this article, where in the case of agreement to sell an immovable property, the possession of any immovable property is transferred or agreed to be transferred to the purchaser before the execution, or at the time of execution, or after the execution of, such agreement then such agreement to sale shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly. 13. In the present case, Exhibit-40 is the agreement of sale between the parties. As per the agreement dtd. 30/1/2012, the possession of the said property would be handed over to the Plaintiff by the Defendants at the time of execution of Sale Deed. 13. In the present case, Exhibit-40 is the agreement of sale between the parties. As per the agreement dtd. 30/1/2012, the possession of the said property would be handed over to the Plaintiff by the Defendants at the time of execution of Sale Deed. Therefore, the said Explanation-I to Article 25 is not applicable to the present case. Therefore, there is no substance in the second substantial question of law raised by Mr. Narvankar. 14. Therefore, there is no substantial question of law involved in the Second Appeal and the same is dismissed with no order as to costs. 15. In view of the dismissal of the Second Appeal, nothing survives in the Interim Application and the same is disposed of accordingly.