Research › Search › Judgment

Bombay High Court · body

2024 DIGILAW 1316 (BOM)

Shantabai Ramchandra Pardhi v. Balu Bhoru Pardhi

2024-11-19

GAURI GODSE

body2024
JUDGMENT : GAURI GODSE, J. 1. This Second Appeal is preferred by the original plaintiffs to challenge the judgment and decree passed by the First Appellate Court. The trial court had decreed the suit granting one-fourth share jointly to the plaintiffs by declaring that the sale deed in favour of defendant no. 2 was not binding on the plaintiffs’ share. Defendants nos. 1, 2 and 3 were declared to have one-fourth share each in the suit property. The First Appellate Court partly allowed the first appeal preferred by defendant no. 2 and modified the trial court’s decree to the extent of the suit properties, which were the subject matter of the sale deed executed in favour of defendant no. 2. 2. Plaintiff no. 1 is defendant no. 1’s daughter-in-law, i.e. wife of defendant no. 1’s predeceased son (“Ramchandra”). Defendant nos. 2 and 3 are the other two sons of defendant no. 1. Plaintiff nos. 2 to 4 are children of plaintiff no. 1 and Ramchandra. The suit for partition and separate possession was filed with respect to Gat Nos. 304, 466, 313, 310, 302 and 467. Defendant no. 2 claims to have purchased four Gat numbers out of the suit properties, i.e. Gat No. 302, 304, 466 and 467. The suit was filed for a declaration that plaintiffs had one-fourth share in the suit properties and for a further declaration that the sale deed in favour of defendant no. 2 was not binding upon plaintiffs’ share. 3. The Second Appeal was admitted on the following substantial questions of law vide order dated 17th January 2019: (i) In the absence of any evidence whether the Appellate Court was justified in excluding the suit properties Gat Nos. 304, 466, 313, 310, 302 and 467 from the partition by holding those were self acquired properties of Defendant No. 2? (ii) Whether the Appellate Court was justified in holding that the sale-deed dated 24th February 1982 executed by the defendant no. 1 in favour of defendant no. 2 was valid without recording that finding that the said alienation was for the legal necessity? 4. Learned counsel for the appellants submitted that except for defendants nos. 2 and 5, the rest of the defendants admitted the suit claim. He further submitted that defendant no. 1 in favour of defendant no. 2 was valid without recording that finding that the said alienation was for the legal necessity? 4. Learned counsel for the appellants submitted that except for defendants nos. 2 and 5, the rest of the defendants admitted the suit claim. He further submitted that defendant no. 2 failed to prove that he purchased the suit properties from his own independent income and that they were his self-acquired properties. 5. Learned counsel for the appellants further submitted that defendant no. 1 filed his written statement and contended that the sale deed in favour of defendant no. 2 was a hollow sale deed without any consideration and that it was executed only for the purpose of payment of tax. He submitted that defendant no. 1’s pleadings were supported by his oral evidence. Learned counsel for the appellants further submitted that, admittedly, the suit properties were joint family properties of defendant no. 1 and his sons. He further submitted that once the joint family of defendant no. 1 and his sons was not in dispute, the suit properties could not have been accepted as independent properties of defendant no. 2 only based on the sale deed and in the absence of supporting evidence that the sale deed was executed for legal necessity and that it was executed on payment of consideration from the independent income of defendant no. 2. Learned counsel for the appellants relied upon the findings recorded by the trial court. 6. Learned counsel for the appellants submitted that admittedly, out of the suit properties, only Gat Nos. 302, 304, 466 and a certain portion of Gat No. 467 was purchased by defendant no. 1. However, he failed to produce any evidence to support his claim of having an independent source of income. He further submitted that defendant no. 1 contended that he had never received any consideration as stated in the sale deed. Thus, in the absence of any proof of payment of consideration amount, defendant no. 2 was not entitled to claim any exclusive right in the suit properties, which were the subject matter of the sale deed executed in favour of defendant no. 2. 7. Learned counsel for the appellants relied upon the findings recorded by the trial court, thereby holding that the suit properties being joint family properties of defendant no. 2 was not entitled to claim any exclusive right in the suit properties, which were the subject matter of the sale deed executed in favour of defendant no. 2. 7. Learned counsel for the appellants relied upon the findings recorded by the trial court, thereby holding that the suit properties being joint family properties of defendant no. 1 and his sons, the sale deed executed without any legal necessity would not render any exclusive right in favour of defendant no. 2. Learned counsel for the appellants thus submitted that the trial court rightly held that all the suit properties, including the properties which were the subject matter of the sale deed in favour of defendant no. 2 were liable to be partitioned and the sale deed would not affect the plaintiffs’ share in the suit property through Ramchandra. 8. Learned counsel for the appellants submitted that the First Appellate Court failed to frame any proper points for consideration. He submitted that the only point framed by the First Appellate Court was whether the properties which are the subject matter of the sale deed could be held to be joint family properties. He submitted that the First Appellate Court reversed the findings recorded by the trial court without recording any cogent reasons. Learned counsel for the appellants submitted that the First Appellate Court accepted the properties which are the subject matter of the sale deed as the exclusive property of defendant no. 2 without recording any specific findings on defendant no. 2’s independent source of income and without recording any finding on whether the consideration amount stated in the sale deed was actually paid to defendant no. 1 He submitted that the First Appellate court erred in relying upon the sale deed only because it was a registered sale deed by ignoring the fact that admittedly all the suit properties belonged to HUF of defendant no. 1 and thus, in the absence of the sale deed executed for any legal necessity defendant no. 2 was not entitled to claim absolute right in the suit properties which are the subject matter of the sale deed. 9. Learned counsel for the appellants pointed out the reliance placed by the First Appellate Court on the Mutation Entry No. 268 recording names of plaintiffs in respect of Gat No. 454 belonging to Ramchandra. 2 was not entitled to claim absolute right in the suit properties which are the subject matter of the sale deed. 9. Learned counsel for the appellants pointed out the reliance placed by the First Appellate Court on the Mutation Entry No. 268 recording names of plaintiffs in respect of Gat No. 454 belonging to Ramchandra. Learned counsel for the appellants submitted that the First Appellate Court erroneously referred to the said mutation entry for holding that if all the suit properties were joint family properties on the death of Ramchandra, names of plaintiffs would have been recorded in respect of all the suit properties also. Learned counsel for the appellants submitted that Gat No. 454 was not the subject matter of the suit filed for partition, in as much as the said Gat number was an independent property of Ramchandra. Hence, there was no question of recording the names of plaintiffs as heirs of deceased Ramchandra with respect to the suit properties when there was no partition with respect to the suit properties. Thus, according to the learned counsel for the appellants, the First Appellate Court erred in reversing the findings recorded by the trial court on the grounds that they were never pleaded by defendant no. 2. 10. Learned counsel for the appellants submitted that, admittedly, the sale deed in favour of defendant no. 2 was with respect to only four properties out of the six suit properties. However, by accepting defendant no. 2’s ownership based on the registered sale deed in his favour, the First Appellate Court reversed the trial court’s decree regarding all the six suit properties, though admittedly, only four out of six suit properties were the subject matter of the sale deed in favour of defendant no. 2. 11. Learned counsel for the appellants thus submitted that both the questions of law framed by this court be answered in favour of the plaintiffs. Learned counsel for the appellants submitted that the First Appellate Court erred in excluding all the suit properties from partition by holding that they were self-acquired properties of defendant no. 2. He submitted that the First Appellate Court reversed the trial court’s findings without recording any findings on whether the sale deed in favour of defendant no. 2 was executed for legal necessity. 2. He submitted that the First Appellate Court reversed the trial court’s findings without recording any findings on whether the sale deed in favour of defendant no. 2 was executed for legal necessity. He thus submits that the Second Appeal deserves to be allowed by setting aside the First Appellate Court’s decree and confirming the trial court’s decree granting partition and separate possession to the plaintiffs regarding the suit properties. 12. Office remark shows that respondent nos. 1 and 2 were served, and respondent nos. 3 to 7 were deleted pursuant to the order dated 11th December 2015 passed in Civil Application No. 1098 of 2014. Though served, none appeared for respondent nos. 1 and 2. I have gone through the record and considered the submissions made on behalf of the appellants. 13. Defendant no. 1, i.e. the father-in-law of plaintiff no. 1, supported the suit claim. Respondent no. 1, i.e. original defendant no. 2, had contested the suit claim by relying upon a registered sale deed in his favour. Defendant no. 3, i.e. respondent no. 2 herein, had filed his written statement admitting the suit claim. Defendant no. 5, i.e. respondent no. 4 herein, had filed written statement and contended that there was a partition of the ancestral properties between defendant no. 1 and defendant no. 4 and his deceased father, i.e. Laxman and his brother Dhavaji. Thus, it was defendant no. 5’s claim that there was already partition of the suit properties and therefore denied suit claim in respect of Gat Nos.310 and 313, i.e. the suit properties which were not the subject matter of the sale deed in favour of defendant no. 2. However, defendant no. 5 could not substantiate his claim of prior partition. Defendant No. 5 accepted the Trial Court’s decree. Thus, the main contesting party is defendant no. 2, i.e. respondent no. 1 herein. Though served, none appeared on behalf of defendant no. 2. 14. I have considered the submissions made on behalf of the appellants. I have perused the impugned judgments, pleadings and evidence on record. The suit is filed with respect to six Gat numbers. Out of six Gat numbers, the sale deed is executed in favour of defendant no. 2 by defendant no. 1 in respect of four Gat numbers. The relationship between the parties is not in dispute. I have perused the impugned judgments, pleadings and evidence on record. The suit is filed with respect to six Gat numbers. Out of six Gat numbers, the sale deed is executed in favour of defendant no. 2 by defendant no. 1 in respect of four Gat numbers. The relationship between the parties is not in dispute. It is also not disputed that all the suit properties belonged to the Hindu Undivided Family (“HUF”) of defendant no. 1. The genealogy described in the plaint, the description of the suit properties, and the suit properties being joint family properties is not in dispute. The plaintiffs’ contention regarding the HUF of defendant no. 1 and his sons is also not disputed by any of the defendants. The suit is filed with a pleading that there was no partition in respect of the HUF of defendant no. 1. Thus, the plaintiffs jointly claim one-fourth share in the joint HUF through Ramchandra, i.e. defendant no. 1’s predeceased son. 15. Plaintiff no. 1, being the widow of Ramchandra, and Plaintiff nos. 2 and 3, being the children of plaintiff no. 1 and deceased Ramchandra, claim one-fourth joint share in respect of the suit property through Ramchandra. A perusal of the pleadings on record indicates that the only controversy in the suit was on the sale deed dated 24th February 1982 executed by defendant no. 1 in favour of defendant no. 2 and whether there was any prior partition. Defendant no. 2 is one of the sons of defendant no. 1. Execution of the registered sale deed in favour of defendant no. 2 is not in dispute. However, the plaintiffs claim that the suit properties being properties belonging to HUF of defendant no. 1, the sale deed would not bind Ramchandra’s share, and thus, plaintiffs were entitled to claim one-fourth of the share in the suit property through Ramchandra. 16. Defendant no. 1 admitted execution of the registered sale deed in favour of defendant no. 2; however, he contended that the sale deed was a hollow sale deed without any consideration executed for the purpose of property tax. He contended that consideration mentioned in the sale deed was never paid to defendant no. 1. As against these pleadings, defendant no. Defendant no. 1 admitted execution of the registered sale deed in favour of defendant no. 2; however, he contended that the sale deed was a hollow sale deed without any consideration executed for the purpose of property tax. He contended that consideration mentioned in the sale deed was never paid to defendant no. 1. As against these pleadings, defendant no. 2 contended that the registered sale deed had a presumptive value and that the consideration amount paid at the time of execution of the sale deed is recorded in the registered document. Defendant no. 2 further contended that he had his own independent income, and thus, pursuant to the sale deed executed by defendant no. 1, defendant no. 2 became an absolute owner of the four suit properties which was subject of the sale deed. It was also contended on behalf of the plaintiffs and defendant no. 1 that the sale deed was not executed for any legal necessity; hence, it would not bind the share of deceased Ramchandra. 17. A perusal of the sale deed at Exhibit 81 indicates that payment of Rs.2000/- as total consideration towards the purchase of four Gat numbers was recorded in the document. However, there is no independent receipt recording payment of the consideration amount attached to the document of the registered sale deed. A perusal of the oral evidence led by defendant no. 2 indicates that he has supported his claim regarding payment of the entire consideration amount from his own independent income. However, the payment of the consideration amount and the independent income of defendant no. 2 is not supported by any documentary evidence. 18. The trial court framed specific issues on the point of the binding effect of the sale deed on Ramchandra’s share and whether the plaintiffs were entitled to claim a share in all the suit properties. Defendant no. 2 had contended that Gat no. 454, standing in the name of deceased Ramchandra, was also liable to be added to the common hotchpot properties liable for partition. However, for want of any evidence, the trial court disbelieved defendant no. 2’s case that Gat No. 454 was also HUF property. The claim of defendant no. 2 of being the absolute owner pursuant to the sale deed in respect of the four properties is also disbelieved by the trial court. However, for want of any evidence, the trial court disbelieved defendant no. 2’s case that Gat No. 454 was also HUF property. The claim of defendant no. 2 of being the absolute owner pursuant to the sale deed in respect of the four properties is also disbelieved by the trial court. The contents of the sale deed and oral evidence are examined in detail by the trial court. The issue regarding whether the sale deed in favour of defendant no. 2 was executed for any legal necessity is also discussed by the trial court. The trial court held that since all the suit properties were admittedly in the name of defendant no. 1 and there was no dispute of the HUF of defendant no. 1, the burden was upon defendant no. 1 and defendant no. 2 to prove that the sale deed was executed in favour of defendant no. 2 for any legal necessity. The trial court further held that defendant no. 2 failed to prove his independent source of income, and thus defendant no. 1’s case was accepted that the sale deed was executed without any consideration as contended by defendant no. 1. Thus, it was held that the sale deed would not have any binding effect on the plaintiffs’ right to claim share through Ramchandra. 19. The First Appellate Court reverses the findings recorded by the trial court without recording any independent findings of facts by examining evidence on record. The First Appellate Court has failed to examine the issue of legal necessity, though the First Appellate Court did not reverse the findings recorded by the trial court on the existence of the HUF of defendant no. 1.The First Appellate Court referred to the revenue record produced at Exhibits 67 to 72 and 85 to 88. However, the First Appellate Court held that the revenue record did not indicate that the suit properties were treated as joint HUF properties. 20. It is pertinent to note that the existence of the HUF of defendant No. 1 and his sons was not denied by any of the defendants. Thus, the First Appellate Court failed to properly appreciate the pleadings and evidence of defendant no. 1, who specifically pleaded that the sale deed was executed without any consideration. Reliance placed by the First Appellate Court on the revenue record, which stood in the name of defendant no. Thus, the First Appellate Court failed to properly appreciate the pleadings and evidence of defendant no. 1, who specifically pleaded that the sale deed was executed without any consideration. Reliance placed by the First Appellate Court on the revenue record, which stood in the name of defendant no. 1 to hold that it does not refer to the existence of joint HUF properties is without any foundation or pleadings. The existence of joint HUF is not disputed by any party. Hence, the revenue record in the name of defendant no. 1 could not be a ground for holding that the suit properties were never treated as properties belonging to HUF. The First Appellate Court further erred in recording a finding that since defendant no. 1 was dependent upon the plaintiffs who were taking his care during his old age, he had supported the plaintiffs’ case. A perusal of the pleadings and evidence on record does not indicate that any of the defendants had raised such ground to disbelieve the pleadings and evidence of defendant no. 1. 21. The First Appellate Court further accepted the case of defendant no. 2 based on the contents of the sale deed indicating consideration amount of Rs.2000/- and the subsequent revenue record entering defendant no. 2’s name in respect of the suit properties, which were the subject matter of the sale deed. Thus, the First Appellate Court held that the contents of the sale deed and revenue record at Exhibit 82 would indicate that the suit properties were not joint HUF properties. The First Appellate Court also referred to Mutation Entry No. 268 in respect of Gat No. 454 in the name of the plaintiffs to hold that if the suit properties were joint HUF properties, then the said mutation entry affected on the death of Ramchandra would have also included the suit property. Even these findings recorded by the First Appellate Court is not supported by any pleadings or evidence of defendants. 22. Lastly, the First Appellate Court, while reversing the trial court’s decree, has accepted all the six suit properties to be the subject matter of the sale deed in favour of defendant no. 2. The First Appellate Court has not recorded any reasons for excluding all the suit properties from the suit for partition and separate possession. 22. Lastly, the First Appellate Court, while reversing the trial court’s decree, has accepted all the six suit properties to be the subject matter of the sale deed in favour of defendant no. 2. The First Appellate Court has not recorded any reasons for excluding all the suit properties from the suit for partition and separate possession. Admittedly, out of the six suit properties only four Gat numbers are subject matter of the sale deed in favour of defendant no. 2. Hence, by relying upon the sale deed the First Appellate Court could not have reversed the entire trial court’s decree based on the sale deed in respect of only four suit properties. The operative part of the order records that the appeal is partly allowed, and the trial court’s decree is modified only to the extent that the plaintiffs have one-fourth share in the suit properties except for the suit properties at Gat No. 304, 466, 313, 310, 302 and 467 which are the subject matter of the sale deed in respect of defendant no. 2. Thus, in effect, the First Appellate Court has set aside the trial court’s entire decree. Thus, the findings recorded by the First Appellate Court in paragraph 10 of the impugned judgment and the operative part of the judgment amounts to a perverse finding. 23. The First Appellate Court has failed to record any reasons for disbelieving the trial court’s findings on the suit property being joint HUF properties, the sale deed being executed without payment of any consideration, and the sale deed not executed for any legal necessity. Therefore, the reversal of the trial court’s findings based on pleadings and evidence on record is reversed by the First Appellate Court without any valid reasons. Thus, the First Appellate Court has reversed the trial court’s findings as perverse findings without any supporting reasons referable to the pleadings or evidence on record. 24. The First Appellate Court erred in excluding all the suit properties from partition by referring them as subject matter of the sale deed, in as much as admittedly only four out of the six Gat Numbers of the suit properties were subject matter of the sale deed in favour of defendant no. 2. In the absence of any valid proof of payment of the consideration amount and in the absence of any proof of independent income of defendant no. 2. In the absence of any valid proof of payment of the consideration amount and in the absence of any proof of independent income of defendant no. 2, he would not be entitled to claim absolute right in the suit properties based on the sale deed. Once there is no dispute on the existence of HUF of defendant no. 1, the sale deed in favour of defendant no. 1 will not bind the plaintiffs’ share in the absence of any evidence that the sale deed was executed for any legal necessity. Hence, both the questions of law framed by this Court are answered in favour of the Plaintiffs, i.e. the appellants. 25. For the reasons stated above, the second appeal is allowed by passing the following order: (i) The judgment and decree dated 3rd April 2004 passed by the IIIrd Extra Joint District Judge, Pune in Civil Appeal No. 373 of 1998 is quashed and set aside and the Civil Appeal No. 373 of 1998 is dismissed. (ii) The judgment and decree dated 2nd April 1998 passed by the Civil Judge, Junior Division, Ghodegaon in Regular Civil Suit No. 165 of 1987 is confirmed. (iii) Record and proceedings to be sent to the concerned Civil Court for forwarding it to the Collector for effecting partition.