Bombay High Court
Dashrath Narayan Shinde(Deceased vs Laxman Gangaram Ghag(Deceased on 29 January, 2010
Author: C.L.Pangarkar
Bench: C. L. Pangarkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.556 OF 1986
1. Dashrath Narayan Shinde(deceased)
through Legal Heirs
1(a) Miss Kalpana Dashrath Shinde
1(b) Santosh Dashrath Shinde
..Appellants
1(c) Eknath Dashrath Shinde
1(d) Prasad Dashrath Shinde
1(a) to 1(d) all residing at
Good Home Chambers, Room No.23/A,
Dr.Bapu Saheb Ambedkar Marg, Lalbaug,
Mumbai 400 012.
V/s.
1. Laxman Gangaram Ghag(deceased)
through Legal Heirs
1(A) Ravindra Laxman Ghag
Age : 35 years,
Residing at 239, Room No.24,
Kaveri Society, Sector No.2,
Charkop, Kandivali(West)
Mumbai 400 067.
1(B)Kishore Laxman Ghag
Age : 30 years ..Respondents
Residing at Songaon(Ghagwadi),
Peerlokhe, Taluka Khed,
District Ratnagiri
2. Ganpati Gangaram Ghag(deceased)
through Legal Heirs
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2
2(A) Hanmant Ganpat Ghag
Resident of Lami Park Phase,
Building No.C/3 'B' Wing 203,
Ladkanya Nagar, Pada No.2,
Pokharan Road,
Thane(West)
3. Vishnu Gangaram Ghag(deceased)
Through Legal Heirs
3(A) Sunil Vishnu Ghag
C/4, Priti Apartment,
Yashodhan Nagar,
Lokmanya Nagar Pada No.2,
Thane(West)
3(B) Santosh Vishnu Ghag
C/4, Priti Apartment,
Yashodhan Nagar,
Lokmanya Nagar Pada No.2, ..Respondents
Thane(West)
4. Maruti Gangaram Ghag(deceased)
Through Legal Heirs
4(A) Ramesh Maruti Ghag
R/o.4/C-15, Sector No.2,
Shanti Nagar, Mira Road(E),
District Thane 401 104
Mrs.Shakuntala Mudbidri, Advocate, for the
appellants
None for the respondents
CORAM : C. L. PANGARKAR, J.
DATE : 29TH JANUARY, 2010
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3
ORAL JUDGMENT
. This is a Second Appeal by the plaintiff, who has lost in both the Courts below.
2. The appellants and the respondents shall hereinafter be referred to as the plaintiffs and defendants. The facts giving rise to the Appeal are as follows :-
The suit property i.e.field bearing Survey No.53 was the ancestral property of the family of the plaintiffs. The suit property was mutated in the name of the mother of the plaintiff's by name Kashibai. The plaintiff was, however, living at Mumbai. The mother of the plaintiff was cultivating the land and was earning income out of the said land. The plaintiff's mother died in the year 1972. It is contended by the plaintiff that taking disadvantage of the illiteracy of the mother ::: Downloaded on - 09/06/2013 15:33:42 ::: 4 of the plaintiff, the defendandt had obtained the Sale Deed from her by paying Rs.90/-. It is contended that the plaintiff came to know about the mutation entry of the defendants and he applied for removal of the name of the defendant in record of rights. The defendants name was removed from the record of rights.
The plaintiff asked the defendants to deliver back the possession of the suit property but the defendant refused to do so. Therefore, notice was issued to the defendants but the defendants did not deliver back the possession of the suit property.
3. The Suit was resisted by the defendants contending that the suit property was purchased by the defendants from Kashibai by oral sale after paying a sum of Rs.90/-
towards consideration. It is also contended that upon such Sale Deed the property came to be mutated in the name of the defendants in the year 1955. Since 1955 the defendants have ::: Downloaded on - 09/06/2013 15:33:42 ::: 5 been in continuous possession. They have not taken any disadvantage of illiteracy of Kashibai, the mother of the plaintiff.
4. The learned Judge of the Trial Court upon consideration of the evidence found that the plaintiff was not in possession of the suit property within 12 years next before the institution of the suit. It was found that the defendants had purchased the property by oral Sale Deed and have become owner. Holding so the suit was dismissed.
5. The plaintiff preferred an Appeal and it was also found that the plaintiff had failed to prove his title and the possession over the suit property. On the other hand, it was found that the defendant has proved the title and the possession over the suit property. Holding so the learned Judge dismissed the Appeal. Feeling aggrieved by the same, he preferred this Second Appeal.
::: Downloaded on - 09/06/2013 15:33:42 ::: 66. The Second Appeal came to be admitted on the following substantial question of law.
Whether the property worth more than Rs.100 can be sold orally for less than Rs.100/- and also whether the plaintiff in the circumstances of the present case could get possession of the whole land.
7. Heard the learned counsel for the appellants. None appears for the respondents.
8. The plaintiff alleges that the suit property was an ancestral property and name of his mother Kashibai was mutated in the record of rights. Although, that is so alleged a Sale Deed of the year 1955 (Exhibit 54) is placed on record. The Sale Deed goes to show that the field was purchased by Kashibai herself in her own name on 3rd March, 1941 for a consideration of Rs.280/-. P.W.1 Dashrath, the original plaintiff in his evidence states that his father, Narayan died prior to 1954 i.e.before the suit land was purchased by Kashibai, his mother in the year 1955. In the ::: Downloaded on - 09/06/2013 15:33:42 ::: 7 circumstances, in no case the suit property could be said to be ancestral or joint family property of the plaintiff and his mother. It has to be held, therefore, that Kashibai was the exclusive owner and she had full authority to dispose of the suit property.
9. The Sale Deed (Exhibit 54) no doubt goes to show that the suit property was purchased by Kashibai in the year 1941 for a consideration of Rs.280/-. The very same property is said to be purchased by the defendants from Kashibai for a sum of Rs.90 in the year 1955, by an oral Saledeed. The learned counsel for the appellants submits that it is difficult to digest that the prices of the immovable properties went down during the period from the year 1941 to 1955. She submits that the price of the property ought to be much more in the year 1955 as compared to the year 1941. There could be no two opinions that the trend is always upward. The ::: Downloaded on - 09/06/2013 15:33:42 ::: 8 prices of the suit property may be more in the year 1955 than in the year 1941. The question is as to whether the seller is bound to sale the property only at the market rate. There is no law which says that the seller must sale the property at market rate. He can always sale at any rate of his choice. The only constraint that is imposed on him would be to pay the stamp duty required to be paid on the prices fixed by the Ready Reckoner of the Government so that there could be no loss of the Government Revenue. The Saledeed cannot become void for inadequacy of prices after the parties have mutually accepted the prices as the correct price. Inadequacy of prices may be one of the grounds when the parties intend to show that the nature of the transaction was otherwise. The validity of this Sale Deed is not challenged on this ground. It is challenged because the Sale Deed is oral and is not registered document.
::: Downloaded on - 09/06/2013 15:33:42 ::: 910. Section 9 of the Transfer of Property Act says that transfer of property may be effected without writing in every case in which the writing is not expressly required by law. Law therefore, permits in certain cases an oral transfer but no doubt subject to section 54 and other sections of the Transfer of Property Act as well as Registration Act.
Section 54 of the Transfer of Property Act says that the sale of an immovable property of value of Rs.100/- or more can be effected only by registered instrument. Therefore, when the sale of the immovable property, the value of which, is more than Rs.100/- has to be effected by registered instrument. Here the learned counsel submits that since market price of the property was much more the sale ought to have been effected by registered instrument. The submission cannot be accepted. As stated earlier, a party has a right to dispose of property for inadequate price. Therefore, the only consideration that ::: Downloaded on - 09/06/2013 15:33:42 ::: 10 can weigh is what is the price shown in the sale. The price shown in this case is Rs.90/-
i.e. less than Rs.100/-. The price of Rs.90/-
will have to be taken into account to determine the application of Section 9 and Section 54 of the Transfer of Property Act.
Section 54 does not require a sale of immovable property worth less than Rs.100/- to be effected by a registered instrument.
11. The defendant has placed on record the certified copy of Vardiyadi at Exhibit 68. It goes to show that Vendor Kashibai appeared before the Talathi had made a positive statement that she had sold property for Rs.
90/- to Gangaram by oral Sale Deed. This was way back in the year 1965. The name of Gangaram is since then recorded in Revenue Record. It appears that even the Title Deed by which Kashibai purchased the property was handed over by her to Gangaram. The land revenue was paid by Gangaram except after the ::: Downloaded on - 09/06/2013 15:33:42 ::: 11 year 1974. The Crop Statements are also in the name of Gangaram. Gangaram had also received a notice under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act for purchase of the property and he was directed to pay a fine of Rs.1/- vide Exhibit 52 in the year 1972. He paid the fine vide Exhibit 53. These circumstances go to show that Oral Sale Deed was acted upon and during life time of Kashibai. She never challenged the Sale Deed from the year 1955 to 1972.
12. In the result, I conclude that a party has a right to sale the property for a consideration, less than market value and the mandate of registration would be required to be followed only when the price exceeds Rs.
100/-. The plaintiff, as a result, cannot be avoid the Sale Deed and is, therefore, not entitled to possession. The substantial question of law is answered accordingly. The Judgment and Decree passed by the Courts below ::: Downloaded on - 09/06/2013 15:33:42 ::: 12 are confirmed and the Appeal is dismissed with costs.
(C.L.PANGARKAR, J.) ::: Downloaded on - 09/06/2013 15:33:42 :::