Bombay High Court
Dr. Avinash Prakashchandra Banait And ... vs Jyoti W/O Moreshwar Kelkar And Others on 27 April, 2026
2026:BHC-NAG:6435
-- 1 -- SA 207.2021 (J) -.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 207 OF 2021
1 Dr. Avinash Prakashchandra Banait, .. Appellants
aged major, occ. Medical Original/respdts. 7 to 9/orig.
practitioner. Defts. 7 to 9
2 Dr. Smt. Jayashree Avinash Banait,
aged major, occ. medical
practitioner;
3 Kumudini Prakashchandra Banait
(dead)
Appellants r/o 25, Congress Nagar,
opposite Dhanwate Natinal college,
Nagpur.
Versus
1 Jyoti w/o Moreshwar Kelkar, aged 72
yars, occ. Housewife, r/o Buty .. Respondents
compound, Ravindranath Road, Civil respondents 1 & 2 Original
Lines, Nagpur 440001
2 Sachit Prakash Buty (dead) through
L.Rs.
2(a) Devyani Sachit Buty
2(b) Shreelekha d/o Sachit Buty,
Both residents of A-1, 6th floor, Forest Plaintiffs 1 & 2
Employees Cooperative Society,
near Centre Point School, Katol road,
Nagpur 440013
3 Kiran Bhaskarrao Buty, aged about
55 years, occ. Legal practitioner, Respondents 3 & 4/Orig.
Def.1 & 2.
4 Shri Deepak Bhaskarrao Buty (dead),
thru L.Rs.
4(a) Smt. Radhika wd/o Deepak
Buty, aged 57 years, occ. Household.
4(b) Shri Rahul Deepak Buty, aged
about 38 years occ. Landlord,
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4(c) Rutuja d/o Deepak Buty, aged
22 years, occ. student
All 4a to 4c r/o. 316 Buty Bungalow,
behind Axis Bank, Civil Lines, Nagpur
440001
5 Smt. Laxmi Prakash Buty, aged
about 68 years, occ. Business,
Respdts. 5 to 8/orig. Respdts
3 to 6, orig. defts. 3 to 6
6 Smt. Chitralekha P. Harode, aged
about 49 years, occ. Service,
7 Shri Sarang Prakash Buty, aged
about 43 years, occ. Business,
8 Ku. Shivalini Prakash Buty, aged
about 43 years, occ. student
Respondents all residents of building
no.A-1, 6th floor, Employees co-
operative housing society, near
Center Point School, Katol road,
Nagpur.
9(a) Dr. P. P. Banait, (deleted) Respdts. 9A & 9B
orig. defts. 9A & 9B
Aged Adult, Occ.: Medical
Practitioner, R/o. C/o. Dr. Sangeeta 9(a) deleted as per Court
Gandhi, 101, Fairfield B. Lodha order dt.20.11.25.
Laxuria Complex Highway, Malji Amendment carried out as
Wade, Thane (West) 400601. per Court order 4.4.24 and
R.J. Order dt.14.11.2024
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Dr. R. S. Sundaram, Advocate for appellants.
Mr. V. V. Bhangde, Advocate for respondents.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 10.02.2026
PRONOUNCED ON : 27.04.2026
JUDGMENT
-- 3 -- SA 207.2021 (J) -.odt (1) Heard finally with the consent of the learned counsel appearing for the parties. (2) The present second appeal is filed assailing judgment and
decree dated 09/07/2021 passed by the learned District Judge-16 Nagpur in R.C.A.No. 268/2018, whereby the learned first appellate Court has quashed and set aside judgment and decree dated 17/03/2018, passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No.621/2001. The present appellants are original defendant Nos.7, 8 and 9, the respondent Nos.1 and 2 are original plaintiffs, respondent Nos.3 to 8 are original defendant Nos.1 to 6. The defendant No.9 had expired while the civil suit was pending and her legal representatives, who are respondent Nos.9(a) and 9(b) were brought on record as defendant Nos.9(a) and 9(b). In the present appeal the name of deceased respondent No.9 was initially included as appellant No.3. The respondent No.9 is deleted pursuant to order dated 20/11/2025. The parties will hereinafter referred to as plaintiffs and defendants.
(3) The plaintiffs had filed the aforesaid suit for declaration, partition, separate possession and perpetual injunction with respect to suit property which comprises of plot No.383/3, House No.791/K, being a part of Khasra No.22, 23/1 and 30/1 situated at Laxmi Nagar, Mouja Ajni Khurd District Nagpur admeasuring around 1490.50 square meter
-- 4 -- SA 207.2021 (J) -.odt (16044.13) square feet. The following family tree will explain interse relation between the parties.
Shri Bhaskarrao Jageshwarrao Buty
(expired on 08.10.1983)
Smt. Pramilabai Bhaskarrao Buty
(expired on 18.03.1983)
Prakash expried Kiran Jyoti Deepak
on 14.07.1983 (defendant 1) (Plaintiff 1) (defendant No.2)
Radhika Rahul Rutuja
def. 2(a) def. 2(b) def. 2(c)
Laxmi Radhika Chitralekha Sachit Sarang Shivalini
(defendant 4) (defendant 4) (plaintiff 2) (defendant 5) (defendant 6)
(4) The defendant No.1 has sold the suit property vide three
different sale deeds dated 07/09/1989, 28/08/1989 and 25/08/1989 to the defendant Nos.7,8 and 9 respectively. The defendant No.1 sold the suit property to the defendant Nos.7, 8 and 9 as Vahivatdar(Manager) of Shri Dev Balkrishna Devghar Devasthan (hereinafter referred to as 'family trust'). It is the case of the plaintiffs that the suit property is ancestral property or joint family property of plaintiffs and defendant Nos.1 to 6. The case of defendant No.1 vendor and defendant Nos.7 to 9 purchasers is that the suit property is owned by the family trust of the
-- 5 -- SA 207.2021 (J) -.odt family of plaintiffs and defendant Nos.1 to 6. The said issue is the bone of contention between the parties.
(5) It will be pertinent to state that prior to institution of the present suit, another civil suit being Spl.C.S.No.350/1986 was filed by defendant Nos.3 to 6 and plaintiff No.2 for partition and separate possession with respect to various properties of the family. The said suit came to be disposed of in view of mutual compromise between the parties. The compromise decree dated 10/08/1988 was passed by learned 2nd Joint Civil Judge Senior Division, Nagpur. The suit property was not subject matter of the said suit. However some properties recorded in the name of family trust were subject matter of the suit and suit were subjected to partition under the compromise decree. (6) It is the case of plaintiffs that the Buty family had several properties in and around Nagpur and the fact that the suit property was owned by the family was not known to the plaintiffs. The plaintiffs have stated that the suit property was surreptitiously sold by the defendant No.1 to the defendant Nos.7 to 9 within a short period after compromise decree came to be passed in the earlier suit for partition and separate possession. It is contended that the sale deed is illegal and not binding on the plaintiffs. Accordingly, the plaintiffs have sought declaration that the suit property is a joint family property of plaintiffs and defendant Nos.1 to 6, along with a declaration that the sale deeds
-- 6 -- SA 207.2021 (J) -.odt dated 25/08/1989, 28/08/1989 and 07/09/1989 executed by defendant No.1 in favour of defendant Nos.7 to 9 are illegal and not binding on them and a decree for partition and separate possession. (7) The defendant Nos.1 and 2 filed written statement opposing the suit. It is the case of the defendant Nos.1 and 2 that the suit property was initially owned by late Shri Atmaram Amurtrao Buty who created a private trust named as 'Shri Dev Balkrishna Devghar Devasthan' vide Will deed dated 09/05/1930. It is stated that by virtue of said Will, the testator appointed Shri Jageshwar Buty as Vahivatdar/Administrator. It is stated that the Will provides that the eldest male member of the family will be Vahivatdar of the family trust. The defendant Nos.1 and 2 stated that after demise of late Jageshwar Buty, late Bhaskarrao Buty became Vahivatdar of the said family trust and after his demise, the defendant No.1 being the eldest male member became the Vahivatdar. It is stated that as a sole Vahivatdar/Manager, the defendant No.1 was competent and authorized to deal with the suit property. The defendant Nos.1 and 2, however, did not dispute the interse relationship between the parties. (8) After the demise of defendant No.2, his legal representatives filed separate written statement stating that the defendant No.1 did not have right to sell the suit property. Perusal of the written statement indicates that the Will by virtue of which the
-- 7 -- SA 207.2021 (J) -.odt family trust was created, is admitted by the legal representatives of deceased defendant No.2.
(9) The defendant Nos.3 to 6 filed written statement supporting the plaintiffs.
(10) The defendant Nos.7 and 8 filed written statement justifying sale deeds. They also contended that the suit property belonged to Shri Dev Balkrishna Devghar Devasthan, which was created by Will deed dated 09/05/1930, executed by Shri Atmaram Amrutrao Buty. They contended that the defendant No.1 had absolute right to deal with the suit property including right to sell the same as sole Manager/Vahivatdar of the family trust. The defendant Nos.7 and 8 also contended that the plaintiffs were aware about the alienation of suit property by the defendant No.1 and that the suit was filed beyond the prescribed period of limitation. They contended that apart from the sale deed in their favour, they had also perfected their title over the suit property by adverse possession.
(11) Based on rival pleadings issues were framed by the learned trial Court. The plaintiff Nos.1 and 2 entered the witness box in support of their case. The defendant Nos.1 and 7 also examined themselves. The defendant Nos.7 and 8 also examined a witness to prove Will executed by defendant No.9 in favour of defendant No.7.
-- 8 -- SA 207.2021 (J) -.odt (12) The plaintiff No.2 deposed on the lines of the plaint
averments. His examination in chief is reiteration of the plaint averments. During the cross-examination he stated that his date of birth is 26/11/1971. He stated that he knew that late Atmaram Amrutrao Buty had executed a Will in the year 1932 and that he had gone through the contents of the said Will. He stated that he had read the Will for the first time when it was filed on record by defendant Nos.7 to 9. He admitted that he was aware that late Atmaram Amurtrao Buty had created a private trust by the name Shri Dev Balkrishna Devghar Devasthan. Questions were put to him with respect to alienation of some other properties of the family trust by late Bhaskarrao Buty, in response to which he stated that late Bhaskarrao Buty as Vahivatdar/Manager of the family trust had sold plot to one Sharadadevi Gupta in the year 1968. He further stated that he had no documentary evidence to establish that the suit property is ancestral property of Buty family.
(13) The plaintiff No.1 stated in general about the interse relations between the parties. She stated that her marriage was solemnized on 05/05/1969 and since her husband was serving in Indian Army, she was accompanying her husband at different places away from Nagpur due to his postings. She stated that the suit property was alienated by defendant No.1 without her knowledge. During her cross- examination by the defendant No.1 she denied that late Atmaram Buty
-- 9 -- SA 207.2021 (J) -.odt had created the said family trust for Buty family. She denied that defendant No.1 was competent to transfer the suit property as Vahivatdar/Manager of the family trust. However, in her cross- examination by the defendant Nos.7 to 9, she admitted that late Atmaram Buty had executed a Will with respect to suit property and that she had not challenged the said Will in any Court. She further stated that she had not filed any documentary evidence to establish that the suit property was owned by her father late Bhaskarrao Buty as exclusive owner. Question was put to her with respect to the relative who informed her about alienation of the suit property by the defendant No.1. In response to the said question she stated that she could not recollect the name of said relative. She further stated that she did not challenge any transaction entered into by late Bhaskarrao Buty or Kiran Buty while acting as Vahivatdar/Manager of the said family trust. She also stated that she was not aware about the tentative period when the suit property was mutated in the name of the family trust/idol. (14) The defendant No.1 in his examination in chief stood by the case that he had executed the sale deed acting as Vahivatdar/Manager of the family trust. He however, stated that he was in doubt as to whether he could sell the suit property, when the defendant Nos.7 to 9 approached him for purchasing the same. He stated that the defendant Nos.7 to 9 assured him that they will take care of any legal issue that may arise in relation to the sale transaction.
-- 10 -- SA 207.2021 (J) -.odt He also stated that he did not receive any consideration under the three sale deeds executed in favour of defendant Nos.7 to 9. In his cross-examination he stated that before execution of the sale deed he did not consult the plaintiffs or defendant Nos.3 to 6. He also stated that after compromise decree in earlier suit for partition he ceased to be 'Karta' of the family.
(15) It will be pertinent to state that the defendant Nos.7 to 9 have not cross-examined the defendant No.1.
(16) The defendant No.7 entered the witness box on behalf of defendant Nos.7 to 9. His evidence is on the lines of his written statement. He stated that defendant No.1 sold the suit property to defendant Nos.7 to 9 as Vahivatdar/Manager of the aforesaid trust and he was competent and authorized to sell the same. In his cross- examination by the plaintiffs, questions were put to him with respect to the plaint and compromise decree in the earlier partition suit. His attention was drawn to a property in the name of Shri Dev Balkrishna Devghar Devasthan, which was subject matter of earlier suit. He stated that he was not aware that why defendant No.1 sold the suit property. He admitted that the reason to sell the suit property was not disclosed by the defendant No.1.
(17) After the evidence was recorded, the learned trial Court
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heard the arguments of respective parties and decided the suit vide judgment and decree dated 17/03/2018. The learned trial Court dismissed the suit recording a finding that the suit property was not owned by late Bhaskarrao Buty as contended by the plaintiffs. The learned trial Court referred to the admissions of plaintiff Nos.1 and 2 in their cross-examination and held that the suit property belonged to late Atmaram Buty who had created a private trust by virtue of Will dated 09/05/1930. The learned trial Court has held that the trust becomes effective only when the grantor transfers the property to the trustee. The learned trial Court has referred to documents at Exh.92 and 93, which are sale deeds executed by late Bhaskarrao Buty as Vahivatdar/Manager of the said family trust, which were never challenged by the plaintiffs or the other family members. Likewise learned trial Court also referred to exchange deed dated 24/03/1975 executed between late Bhaskarrao Buty and Nagpur Improvement Trust, which is at Exh.91. Another sale deed dated 13/08/1975 executed by Bhaskarrao as Vahivatdar which is at Exh.88 was also relied upon. The learned trial Court recorded findings on the basis of the said documents that Bhaskarrao and thereafter defendant No.1 were authorized and competent to deal with the properties of the family trust. Apart from this, the learned trial Court also referred to plaint in the earlier suit for partition, wherein one of the suit properties identified as Abasaheb Wada was referred as property held by late Bhaskarrao Buty as Vahivatdar of the family trust. The learned trial Court has also
-- 12 -- SA 207.2021 (J) -.odt referred to another property of the family trust, which was subject matter of the earlier suit for partition, a portion of which was allotted to the plaintiff No.2 and defendant Nos.3 to 6 for construction of their residential house. In view of such findings, the suit came to be dismissed.
(18) Aggrieved by the aforesaid judgment and decree, the plaintiffs preferred R.C.A. No.268/2018. The learned first appellate Court allowed the appeal holding that the suit property was joint Hindu Family property of the plaintiffs and defendant Nos.1 to 6 and that sale deed executed by defendant No.1 in favour of defendant Nos.7 to 9 was not binding on the plaintiffs. In view of such finding, the learned first appellate Court allowed the appeal, thereby quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit for partition. The learned first appellate Court has held that the fact that the suit property was joint family property could not be disputed in view of the plaint averments in earlier civil suit for partition and compromise decree passed therein.
(19) As regards the case of defendant Nos.1 and 7 to 9 with respect to the suit property being property of the family trust, it is held that the said case was based on the Will which was not proved. It is held that the learned trial Court erred in placing reliance upon the will which was not proved in accordance with law. The learned first
-- 13 -- SA 207.2021 (J) -.odt appellate Court also recorded that the original Will was also not filed on record. The learned first appellate Court also recorded that even if the suit property considered to be property of the family trust, by virtue of the partition decree in the earlier suit, the trust came to be dissolved since some of the properties of the trust were subject matter of the earlier suit for partition and the same were mutually partitioned between the parties which results in dissolution of the trust. Reliance is placed on Section 77(c) of the Indian Trusts Act, 1882 to arrive at such conclusion. The learned first appellate Court has thus held that the suit properties were joint family properties of plaintiffs and defendant Nos.1 to 6 and has allowed the appeal thereby decreeing suit for partition and separate possession.
(20) Being aggrieved by the aforesaid reversing decree, the defendant Nos.7 to 9 have preferred the present appeal. Following substantial questions of law has been framed in the appeal vide orders dated, 18/10/2023, 05/01/2026 and 12/01/2026.
"A. Whether a private Trust created in favour of deities Dev Balkrishna which is in perpetuity can be impliedly dissolved? B. Whether a Will executed on 09/05/1930 by Deceased Atmaram Buty creating a private Trust, admitted, relied and read and observed by the Court requires to be exhibited so as to be read in evidence?
-- 14 -- SA 207.2021 (J) -.odt C. Whether parting of some portion of private Trust property by concerned compromise decree by Wahiwatdar throws property of the Trust as that of a Joint Family property of the family?
D. Whether the finding recorded by the First Appellate Court in his judgment in Paragraph Nos. 21, 23, 24 and 25 are perverse finding contrary to evidence on record? E. Whether the learned First Appellate Court has rightly computed the shares of respective parties having regard to the fact that as on the date of execution of the impugned sale deed the provisions of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 had not come into force and also having regard to the legal position that when one of the co-owners sells undivided share in a property, the purchaser gets the share of such co-owner which he was entitled in accordance with law on the date of execution of the sale deed?.
F. Whether the learned first appellate Court had erred in law for not taking into consideration in the admissions of plaintiff No.2 with respect to the suit property bearing Khasra No.22 being property of private family Trust named "Shri. Deo Balkrishna Deoghar Deosthan?
G. Whether the plaintiffs had constructive knowledge of the impugned sale deeds and consequently was the suit filed
-- 15 -- SA 207.2021 (J) -.odt within limitation?"
(21) Before dealing with the substantial questions of law framed in the appeal, it must be stated that the core issue between the parties is as to whether the suit property is Joint Hindu Family Property of plaintiffs and defendant Nos.1 to 6, or it is the property of a family trust of the plaintiffs and defendant Nos.1 to 6. The plaintiffs have come up with the case that the property is Joint Hindu Family Property. As against this, the contention of defendant Nos.1, 2 and 7 to 9 is that the property was dedicated to a family trust and, as such, it was the property of a private family trust. The foundation of the case of defendant Nos.1, 2 and 7 to 9 is the Will dated 09.05.1930 stated to be executed by late Atmaram Buty.
(22) The principal dispute between the parties is as to whether the property is a property of Joint Hindu Family of the plaintiffs and defendant Nos.1 to 6, or property of a family trust of the plaintiffs and defendant Nos.1 to 6. The suit is based on contention that the suit property is a joint Hindu Family property which is sold by defendant No.1 to defendant Nos.7 to 9 without authority. The contesting defendants are defending the impugned sale deeds on the ground that the suit properties belonged to a family trust and that defendant No.1 was competent to sell the suit properties, being the sole trustee.
(23) It must be stated that the fact that the property belonged
-- 16 -- SA 207.2021 (J) -.odt
to Buty family is not in dispute. It is rather admitted. The case of the contesting defendants is that this property, which belonged to Atmaram Buty, was dedicated to a private family trust by him by virtue of the Will.
(24) It must be stated that a Karta of a joint Hindu family property does not have absolute right to sell property of joint Hindu family. However for legal necessity etc., a Karta can alienate properties of joint Hindu family and such alienation is binding on the family members. It must also be stated that alienation of property by a Karta, even if it is not for legal necessity, is not void, but voidable at the instance of other co-parceners. In the present case, there was a partition in the family in the previous suit and the defendant No.1 has admitted that after the partition decree he ceased to be Karta of the family. Therefore, sale deed executed by defendant No.1 in favour of defendant Nos.7 to 9 will have to be treated as a sale deed by a coparcerner and not by a Karta. The defendant No.1 had admittedly not executed a sale deed as a Karta of the family. As per Bombay School of Mitakshara Hindu Law, a coparcener is also entitled to sell his undivided share in coparcenary property. Such sale deed is valid to the extent of this share in the coparcenary property. In view of the said legal position, in the event it is held that the property is joint family property, the sale deed in favour of defendant Nos.7 to 9 can at least be sustained to the extent of share of their vendor, defendant No.1.
-- 17 -- SA 207.2021 (J) -.odt (25) It is now necessary to consider what will be the fate of
the sale transaction, if the property is held to be property of the family idol/trust which is sold by defendant No.1 to defendant Nos.7 to 9 as Vahivatdar/Administrator.
(26) To answer this question, it will be profitable to refer to judgment of this Court in the case of Ramabai Govind Vs. Raghunath Vasudeo, reported in AIR 1952 Bom. 106 wherein it is held that a trustee has no right to sell the property of a trust unless he is expressly empowered by the deed of trust to do so. The relevant observations in the judgment are extracted herein-below:-
"There is no express power conferred by the Act upon the trustee to sell the trust property.
The instrument of trust, which is the vayasthapatra in the suit, also does not confer on the executor or even the executor de son tort the power to sell the same, as we have already indicated. Unless, therefore, it was contended that the sale of the property was a step towards the realization, protection or benefit of the trust property, and for the protection or support of a beneficiary who was not competent to contract, the sale could not be justified. The powers of the trustee are really limited and, as a matter of fact, it is laid down in the further provision contained in S. 36, Trusts Act that "Except with the permission of a principal Civil
-- 18 -- SA 207.2021 (J) -.odt Court of original jurisdiction, no trustee shall lease trust property for a term exceeding twenty-one years from the date of executing the lease, nor without reserving the best yearly rent that can be reasonably obtained."
This limitation on the power of the trustee is suggestive and goes to show that far from there being any power in the trustee to absolutely deal with the trust property in the manner suggested, even the right to give a lease of the trust property for a term exceeding twenty-one years is denied to him unless and until he obtains the sanction of the Court in that behalf. It follows, therefore, from the above discussion that the trustee as such has no right to sell the trust property. If he has no such right, the vendee does not get any title thereto which is unimpeachable by any person claiming to be entitled to that property. This argument would, therefore, not avail Mr. Bhalerao."
25. The next point which has been urged before us by Mr. Bhalerao for the defendant is that a trustee is competent to sell the trust property, and if he does sell it, a beneficiary may bring a suit to have the alienation set aside, but the alienation itself cannot be treated as null and void. We have considered this contention, but have no hesitation in coming to the conclusion that it has no substance. If we turn to S. 36, Indian Trusts
-- 19 -- SA 207.2021 (J) -.odt Act, we find that it lays down :
.
.
.
We have not been pointed out any express provision in the Trusts Act to the effect that a trustee is competent to sell the trust property, and if we turn to the instrument of trust, the will in this case, we do not find any provision therein empowering the trustees to alienate any portion of the estate....
26. In these circumstances, we do not see any force in the contention of Mr. Bhalerao that Martand had competence to sell the suit property the defendant and that the only remedy which was available to the plaintiff was to bring a suit to set that alienation aside"
(27) Perusal of the above judgment will clearly establish that in the absence of an enabling provision under the trust deed, a trustee does not have any authority to alienate property of the trust and further that such alienation is void. In the said case, a contention that even if sale transaction is not valid it will have to be challenged to have it set aside is also rejected.
(28) It will also be appropriate to refer to the judgment of this Court in the case of Shirinbai in R.E. Vs. NIL, reported in AIR 1919 BOM. 119, wherein it is held that Sections 36 and/or 40 of the Indian
-- 20 -- SA 207.2021 (J) -.odt Trusts Act, do not confer any power on trustees of immovable properties to sell the same in the absence of any express power conferred by the trust deed. It is held that in the absence of any enabling provision under the trust deed, if an emergency arises or the circumstances otherwise warrant necessity to sell the property of the trust, it is necessary to obtain consent of all the beneficiaries and the sanction of the Court. In the case at hand, there is no express authority in the Vahivatdar to sell the trust property under the Will in question.
Rather there is a prohibition. Moreover perusal of written statements of Defendant Nos.1 and 2 and defendant No.9 do not refer to any need or necessity for sale of the suit property.
(29) Dr. Sundaram, learned Advocate for appellants has however raised a contention that since the property is dedicated to the family idol, the idol is absolute owner of the suit property and further that the plaintiffs did not have any right to challenge the alienation and/or seek a decree for partition and separate possession. The contention, so far as it relates to right to challenge the sale deed is liable to be rejected in view of judgment of the Hon'ble Supreme Court in the case of Deoki Nandan Vs. Murlidhar and ors, reported in AIR 1957 SC 133, wherein the Hon'ble Supreme Court has held that in case where a property is dedicated to an idol, the property is vested in the idol in an ideal sense, however, the idol itself cannot enjoy the properties vested with it and has no beneficial interest in the same. It is
-- 21 -- SA 207.2021 (J) -.odt held that the real beneficiaries of the property are the worshipers of the idol. It is held that in case of a family idol, the beneficiaries are the family members and when the idol is installed for public worship, the beneficiary is the body of worshipers at large. The Hon'ble Supreme Court has observed the following in the judgment:-
"6. Then the question is, who are the beneficiaries when a temple is built, idol installed therein and properties endowed therefor? Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment? Though such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the plaint), it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties. Vide Prosunno Kumari Debya v. Golab Chand Baboo³, Jagadindra Nath Roy v. Rani Hemanta Kumari Debi and Pramatha Nath Mullick v. Pradyumna Kumar Mullick. It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the Sanskrit texts....
Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they
-- 22 -- SA 207.2021 (J) -.odt can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship...
7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individual's are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers."
(30) Similar view is taken by the Hon'ble Supreme Court in the case of Balashankar Mahashankar Bhattjee and ors. Vs. Charity Commissiioner, Gujarat State, reported in AIR 1995 SC 167,
-- 23 -- SA 207.2021 (J) -.odt (Paragraph No.20) and in the case of Radhakanta Deb and anr. Vs. The Commissioner of Hindu Religious Endowments, Orissa, reported in AIR 1981 SC 798, (Paragraph Nos.6 and 7) (31) The case of contesting defendants is that the trust was first created by Atmaram Buty for benefit of the family. All the family members are, therefore, beneficiaries of the trust. It is obvious that even if the suit property is presumed to be trust property, the plaintiffs, as members of the family, will have the right to challenge the impugned sale deeds as beneficiaries of the trust. (32) The substantial questions of law framed in the appeal must be viewed in the backdrop of this legal position that even if the property is considered to be a property of the family trust, the defendant No.1 does not get authority to alienate the suit property and the real beneficiaries are the family members, the idol being a figurative owner of the trust property. Even if the suit property is held to be property of a family trust, the plaintiffs being beneficiaries as family members will have a right to challenge the alienation in favour of defendant Nos.7 to 9. However, if the suit property is held to be a property of trust, the family members may not have a right to partition the same. However, the defendant No.1 who has sold the suit property cannot come up with a case that the plaintiffs do not have right to seek partition of the same, more so, in the light of earlier partition between
-- 24 -- SA 207.2021 (J) -.odt the family members vide compromise decree in previous suit for partition to which the defendant No.1 is also a party. Likewise, the defendant Nos.7 to 9/purchasers will have a right to defend the sale deeds, but not the right to oppose prayer for partition if the sale deed is cancelled. It must also be stated that defendant Nos.7 to 9 can at least claim right over the share of their vendor in the event the suit property is held to be joint family property. The contention and argument of the contesting defendant that the suit property is property of family idol is, therefore, a self defeating argument.
(33) Although express substantial question with respect to nature of the suit property is not framed, substantial question of law A, B, C and F revolve around the aforesaid issue which is the core issue in the appeal.
(34) A substantial question of law is a question, which if decided in favour of the appellant, will have the effect of reversing the decree passed in favour of the respondent and turn it in favour of the appellant. In view of the reasons recorded above, in the considered opinion of this Court the appeal can be decided on merits without deciding substantial questions of law A, B, C, F and D so far as it relates to perversity of findings in paragraph 21 and 23 of the judgment of the learned First Appellate Court. These questions even if answered in favour of appellants will not have the effect of reversing the decree
-- 25 -- SA 207.2021 (J) -.odt passed by the learned First Appellate Court in favour of the appellants.
SUBSTANTIAL QUESTION OF LAW Whether a Will executed on 09/05/1930 by Deceased Atmaram Buty creating a private Trust, admitted, relied and read and observed by the Court requires to be exhibited so as to be read in evidence?
(35) The original Will dated 09.05.1930 is not placed on record. The learned First Appellate Court has categorically recorded so. The learned Trial Court also does not record that the original Will was placed on record. During the course of hearing of the appeal, this observation by the learned First Appellate Court that original Will is not placed on record was not disputed by the learned Advocate for the appellants.
(36) It must, however, be stated that the cross-examination of the plaintiffs on the point of Will also assume significance. Plaintiff No.1 stated that he knew that late Atmaram Buty had executed a Will in the year 1932 and that he had gone through the contents of the Will for the first time when the defendant Nos.7 to 9/appellants produced the same in the Court proceedings. Plaintiff No.2 also stated that he was aware that late Atmaram Buty created a private trust named Shri. Deo Balkrishna Deoghar Deosthan. He also admitted that the eldest male member of Buty family was Vahivatdar/Manager of the trust. He
-- 26 -- SA 207.2021 (J) -.odt admitted the status of defendant No.1 as Vahivatdar after demise of his father. Similarly, plaintiff No.1 also admitted in her cross-examination that late Atmaram Buty had executed a Will and that the Will was not challenged by her in any Court proceeding.
(37) The issue that is required to be answered is as to whether these admissions with respect to the Will are sufficient to read the Will in evidence. In this regard, it is necessary to refer to Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. So far as it is relevant to the present case, Section 63 provides that, in order to execute a valid Will, the testator must sign it showing his intention to create a Will and that the Will must be attested by two or more witnesses, each of whom has seen the testator sign the Will or received a confirmation from him regarding signing of the Will and that the attesting witnesses must sign the Will in the presence of the testator signifying attestation thereof. Section 68 of the Evidence Act provides mode of proof of execution of a document required to be attested by law. Section 68 provides that when a document is required by law to be attested, it shall not be used in evidence unless one of the attesting witnesses has been called for the purpose of proving due execution, if such attesting witness is alive. Proviso to Section 68 recites that the requirement of calling attesting witness for proving execution of a document required to be attested by law will not be necessary if the document is a registered document and execution of
-- 27 -- SA 207.2021 (J) -.odt the document is not disputed by the person who is stated to have executed the same. However, the proviso is not applicable to a Will. Therefore, in the case of a Will, examination of attesting witness, if he is alive, is mandatory. The Will in question is of the year 1930. One may reasonably presume that the attesting witnesses are no longer alive. Nonetheless, the mandate of Section 69 of the Evidence Act should have been obeyed by defendant Nos.1, 2 and 7 to 9. Section 69 of the Evidence Act provides that if the attesting witness cannot be found, it must at least be proved that the attestation by one of the attesting witnesses was in his handwriting and that the signature of the person who has executed the document was in his own handwriting. Thus, defendant Nos.1, 2 and 7 to 9 should at least have proved the signature of one of the attesting witnesses. As regards proof of signature of testator, a concession may be given that the same was admitted by the plaintiffs in their cross-examination referred above, however, signature of one of the attesting witnesses is not proved. It will also be appropriate to refer to Section 70 of the Evidence Act, which provides that admission of a party to an attested document of its execution by himself will be sufficient proof of its execution against him, although the document is required to be attested.
(38) Dr. Sundaram, learned Advocate for the appellants, however, placed reliance on Section 90 of the Evidence Act and contended that presumption with respect to due execution and
-- 28 -- SA 207.2021 (J) -.odt attestation of the Will must be drawn since the document is admittedly more than 30 years old.
(39) Mr. Bhangde, counters the contention with respect to Section 90 of the Evidence Act. He argues that the presumption under Section 90 of the Evidence Act cannot be invoked in case of a Will. He further contends that even if a Will is not disputed and is admitted, proof of the same in accordance with Section 68 of the Evidence Act is mandatory. The learned Advocate places reliance on the judgment of the Hon'ble Supreme Court in the case of Ramesh Verma (Dead) thru. LR's Vs. Lajesh Saxena (Dead) through LR's and anr, reported in (2017) 1 SCC 257 (paragraph 13.), S. R. Srinivasa and others. Vs. S. Padmavathamma, reported in (2010) 5 SCC 274 (paragraph 36, 41, 48 and 49) in support of his contention. The Hon'ble Supreme Court in the case of M. B. Ramesh (D) by Lrs. Vs. K. M. Veeraje URS (D) by Lrs and ors, reported in AIR 2013 SC 2088, held that presumption under Section 90 cannot be invoked in a case of a Will.
(40) In view of the aforesaid judgments of the Hon'ble Supreme Court, the contention of Dr. Sundaram that proof with respect to due execution and attestation of the Will must be dispensed with in view of Section 90 of the Evidence Act cannot be accepted. It must also be stated that apart from the aforesaid, the contesting defendants have
-- 29 -- SA 207.2021 (J) -.odt also not brought on record foundational evidence to read photocopy of the Will in evidence. The Will on which reliance is placed by the contesting defendants is inadmissible in evidence and is rightly discarded by the learned First Appellate Court. The learned Trial Court has not adverted to the provisions of Section 63 of the Succession Act and Sections 68 and 69 of the Evidence Act while placing reliance on the Will.
(41) Dr. Sundaram, placed reliance on Section 70 of the Evidence Act to contend that admission of the Will is by itself sufficient proof of its due execution. Reliance on the said provision is misplaced. The admission with respect to the Will is not by the testator. Section 70 is attracted only when a person executing the document required to be attested admits its due execution. In such case, the admission is sufficient proof of due execution of the document against the executant.
(42) In the light of aforesaid, substantial question of law B with respect to proof of the Will is required to be answered against the appellants/defendant Nos.7 to 9 and in favour of respondent Nos.1 and 2/original Plaintiffs.
AS TO SUBSTANTIAL QUESTION OF LAW A "A. Whether a private Trust created in favour of
-- 30 -- SA 207.2021 (J) -.odt deities Dev Balkrishna which is in perpetuity can be impliedly dissolved?
(43) The foundation of this question is that the family trust was created in perpetuity. It must be stated that although the contesting defendants have come up with a case that late Atmaram Buty had created a family trust by virtue of his Will, it is not their case that the trust was created in perpetuity. Such is not a case set by them in the written statement.
(44) In order to deal with the contention of the defendant Nos.7 to 9 with respect to perpetual nature of the trust reference will have to be made to Section 78 of the Indian Trust Act, 1882 which reads as under:-
S.78- Revocation of trust.- A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only-
(a) where all the beneficiaries are competent to contract-by their consent;
(b) where the trust has been declared by a non-
testamentary instrument or by word of mouth-in exercise of a power of revocation expressly reserved to the author, of the trust; or
(c) where the trust is for the payment of the debts of
-- 31 -- SA 207.2021 (J) -.odt the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.
(45) Perusal of the provision will demonstrate that a trust created by a Will can be revoked by the testator. The provision states that a trust created otherwise can be revoked by mutual consent of all beneficiaries or in case of a trust created by non-testamentary instrument or orally, in exercise of power of revocation expressly granted by the author of the trust. The trust in question is purportedly created by a Will which is not proved. Therefore it cannot be said that the testator alone could have revoked the trust. In the considered opinion of this Court, the trust could be revoked by all the family members who are beneficiaries of the trust by a mutual consent. Whether a private family trust is created in perpetuity, thereby forbidding the family members who are beneficiaries of the trust from dissolving the same, cannot be a pure question of law. The fact that the trust was created in perpetuity was required to be pleaded by the contesting defendants. In the absence of such pleading, the contention of the contesting defendants that the trust was created in perpetuity and, as such, it could not have been dissolved by the family members/beneficiaries cannot be accepted. Substantial question of law A is answered accordingly.
-- 32 -- SA 207.2021 (J) -.odt AS TO SUBSTANTIAL QUESTION OF LAW C. C. Whether parting of some portion of private Trust property by concerned compromise decree by Wahiwatdar throws property of the Trust as that of a Joint Family property of the family?"
(46) This substantial question of law is framed in view of finding by the learned First Appellate Court that the private trust stood dissolved by virtue of a compromise decree in the earlier suit for partition and separate possession, in which some of the properties of the private trust were subjected to partition between the family members, i.e., plaintiff and defendant Nos.1 to 6. (47) At the outset, it must be stated that the plaintiffs have not come up with a case that the private family trust stood dissolved by implication in view of family partition as recorded in the compromise decree. Implied dissolution of a trust cannot be a pure question of law.
At best, it will be a mixed question of law and fact. In the absence of pleadings regarding implied dissolution, the learned First Appellate Court could not have arrived at a conclusion that the private trust stood dissolved in view of family partition arrived at in the earlier civil suit, in which properties of the trust were also included. The plaintiffs must have specifically pleaded that the family trust stood impliedly dissolved by virtue of decree for partition in earlier suit and should have led evidence in order to substantiate the said contention. Implied
-- 33 -- SA 207.2021 (J) -.odt revocation or dissolution of a trust is obviously a matter of intention of the beneficiaries. Such intention must be exhibited from hard facts, which must to be pleaded and proved. The learned First Appellate Court has erred in drawing an inference with respect to implied dissolution of the trust by act of partition of some of the properties of the trust. Substantial question of law C is answered accordingly.
SUBSTANTIAL QUESTION OF LAW E "Whether the learned First Appellate Court has rightly computed the shares of respective parties having regard to the fact that as on the date of execution of the impugned sale deed the provisions of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 had not come into force and also having regard to the legal position that when one of the co-owners sells undivided share in a property, the purchaser gets the share of such co-owner which he was entitled in accordance with law on the date of execution of the sale deed?."
(48) The learned First Appellate Court has held that the suit property is a joint family property and has accordingly granted 1/4 th share collectively to plaintiff Nos.2(i), 2(ii) and defendant Nos.3 to 6 and
-- 34 -- SA 207.2021 (J) -.odt 1/4th share individually to plaintiff No.1, defendant No.1 and defendant Nos.2-A to 2-C. (49) Dr. Sundaram, the learned Advocate for the appellants, contends that defendant Nos.7 to 9 will be entitled to the share of their vendor, defendant No.1. He further contends that the share of defendant No.1 will have to be carved out as on the date of impugned sale deeds. He argues that the sale deeds are valid to the extent of share of the defendant No.1.
(50) He further argues that since the sale deeds are executed prior to commencement of Hindu Succession (Amendment) Act, 2005, the shares of the parties will have to be determined in the light of Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment.
(51) Mr. Bhangde, the learned advocate for respondent Nos.1 and 2/plaintiffs, contends that since the property is held to be a joint Hindu family property, the shares of parties will be crystallized only on the final decree being passed in a suit for partition. He contends that until a decree for partition is effected by division of property by metes and bounds, shares are not crystallized. Mr. Bhangde argues that purchaser of undivided share of ancestral property from one of the co- parceners in the family is not entitled to receive any definite share, but
-- 35 -- SA 207.2021 (J) -.odt share of the transferring co-parcener, which is determined by passing a final decree in a suit for partition. Mr. Bhangde contends that since the decree in the partition suit is passed after amendment to Hindu Succession Act, the share of defendant No.1 will have to be carved out accordingly and defendant Nos.7 to 9 will be entitled to the same. (52) Mr. Bhangde has placed strong reliance on judgments of the Hon'ble Supreme Court in the cases of Vineeta Sharma Vs. Rakesh Sharma and ors., reported in (2020) 9 SCC 1, Prasanta Kumar Sahoo and ors. Vs. Charulata Sahu and ors., reported in (2023) 9 SCC 641 and Ganduri Koteshwaramma and anr. VS. Chakiri Yanadi and anr, reported in (2011) 9 SCC 788 in support of his contention.
(53) Mr. Bhangde also contends that the property is not joint Hindu family property. He contends that pleadings of the plaintiffs will demonstrate that, according to them, the property was owned by father of plaintiff No.1, Bhaskarrao, from whom the properties were inherited. I am afraid, the said contention cannot be accepted. The plaint averments clearly indicate that the plaintiffs came up with a case of suit property being joint family property. Moreover, prayer clause 1 in the suit itself indicates that the plaintiffs prayed for declaration that the suit property is joint family property. Even otherwise, it is undisputed that the suit property was earlier held by late Atmaram Buty, who died
-- 36 -- SA 207.2021 (J) -.odt prior to the commencement of Hindu Succession Act, 1956. After his demise, the property assumed the character of joint Hindu family property since he expired prior to the year 1956. It is obvious that property which is devolved from a male ancestor prior to commencement of the 1956 Act devolved upon his descendants as coparcenary or joint family property.
(54) The decisions relied upon by Mr. Bhangde certainly lay down that rights of parties in a suit for partition pertaining to a Joint Hindu Family are not fixed and vary with developments as they occur during pendency of the suit. In the case of Ganduri (supra), the Hon'ble Supreme Court has also held that in the case of change in law after passing of preliminary decree, the shares can be reworked based on the altered legal position and in such a situation, more than one preliminary decree can also be passed. The judgments do lay down that the law and factual situation prevailing as on the date of actual division of shares will determine the respective shares of parties in a suit for partition.
(55) However, none of these decisions deal with a case of alienation by a Karta or co-parcener of his undivided share in joint Hindu family property. It is well settled that a Karta and even a co- parcener of a Joint Hindu Family governed by Bombay School of Mitakshara Law is entitled to transfer his undivided share in co-
-- 37 -- SA 207.2021 (J) -.odt parcenery property. In cases where such alienation is of the entire property, as in the present case, the sale is held to be valid to the extent of the share of the alienating co-parcener. (56) The contention of Mr. Bhangde that the purchasers, i.e., defendant Nos.7 to 9, cannot claim any definite share in the suit properties but the share that their vendor, defendant No.1 will get pursuant to a decree for partition cannot be accepted. Legal position in this regard, needs to be examined in the light of Full Bench decision of this Court in the case of Sakarchand Satidas and ors. Vs. Narayan Sawala Wani and ors, reported in AIR 1951 BOM. 10. Relevant extract of the judgment is quoted herein-below:-
"10....Therefore, for the purpose of this full bench it would be more advisable to consider the decisions of our own High Court, and the position as far as this Court is concerned is clear. Ever since Pandurang Anandrav V. Bhaskar Sadashiv . (3). consistently, with one solitary exception in Gurligappa V. Nandapa (2). this Court has taken the view that the share of the alienee is to be determined at the date of the alienation. Mr. Joshi says that this is not a logical approach to the question. Possibly he is right. But we must not
-- 38 -- SA 207.2021 (J) -.odt overlook the fact that as it is we have departed from the strict principle of Hindu law by which a father cannot alienate except for legal necessity any portion of the joint Hindu family property including his own undivided share. Once we depart from that principle, then some workable principle has got to be accepted by which the share of the alienee has to be determined, and this Court has accepted a workable principle, namely that the share of the alienee is to be determined at the date of the alienation and not at the time when the alienee asks for an equitable partition. We are impressed by the fact that in over a considerably long period, and in doing so we would be offending against the doctrine of stare decisis which is always more important and more to be respected than any logical doctrine resulting from a particular view as to the strict law. Therefore, we are of the opinion that Gurlingapa V. Nandapa (1), to the extent that it laid down that the share of the alienee is to be determined not at the date of the alienation but at the moment when the alienee seeks for a partition, was wrongly decided and
-- 39 -- SA 207.2021 (J) -.odt the other Bombay decisions to which reference has been made were rightly decided."
(57) The Full Bench decision categorically holds that an alienee of a share in joint Hindu family property is entitled to the share of the alienor-coparcener to the extent of the share of the alienor- coparcener existing as on the date of alienation. The contention that the purchaser should get the share of the alienor-coparcener as on the date of decree for partition is expressly rejected. (58) Similar view is taken by Full Bench of the Madras High Court in the case of Chinnu Pillai, Minor By Guardian Ramchandram Pillai Vs. Kalimuthu Chetti, reported in 1911 SCC Online Mad 53. Same view is taken by the Kerala High Court in the case of Kumaraswami Mudaliar and ors. Vs. Rajamanikkam Udaya and ors, reported in AIR 1966 Ker 266.
(59) With this backdrop, it will be necessary to refer to Section 6 of the Hindu Succession Act as amended by the Amendment Act of the year 2005. Although Section 6, as amended, confers status of a co- parcener on a daughter born in a Joint Hindu Family from the date of her birth, proviso to Section 6(1) prescribes that the said sub-section will not affect or invalidate any alienation of property that has taken place prior to 20th December, 2004. The sale deed by defendant No.1 in
-- 40 -- SA 207.2021 (J) -.odt favour of defendant Nos.6 to 9 is certainly prior to the said date. (60) The contention of Mr. Bhangde also cannot be accepted in view of the proviso to Section 6(1) of the Hindu Succession Act. If the contention is accepted, the proviso which clearly excludes sale deeds executed prior to 20.12.2004 from the applicability of amended Section 6 will be rendered otiose.
(61) As on the date of alienation, defendant No.1 had 5/16 th share in the suit property. This 5/16th share is determined by applying rule of notional partition in view of unamended Section 6 of the Hindu Succession Act, in order to carve out share of deceased Bhaskarrao, (father) as on the date of his demise i.e. 08.10.1983. Bhaskarrao's wife, Pramila, had predeceased him. He was survived by four class-I legal heirs, including plaintiff No.1/daughter. In the notional partition, Bhaskarrao will get 1/4th share alongwith his three sons, who get 1/4th share each. 1/4th share of Bhaskarrao is inherited by his four class-I legal heirs, including defendant No.1. Thus, the share of defendant No.1 comes to 1/4+ 1/16 i.e. 5/16.
(62) Substantial question of law is answered accordingly by holding that defendant Nos.6 to 9 will be entitled to 5/16th share in the suit property, which is the share of defendant No.1 as on the date of execution and registration of the impugned sale deeds.
-- 41 -- SA 207.2021 (J) -.odt SUBSTANTIAL QUESTION OF LAW G Whether the plaintiffs had constructive knowledge of the impugned sale deeds and consequently was the suit filed within limitation?
(63) The plaintiffs have pleaded that they were not aware about the suit property being property of the family. They have stated that if they were aware about the existence of the suit property, the same would have been included in the earlier suit for partition. The allegation is that defendant No.1 suppressed the suit property and shortly after the previous suit for partition was disposed of in terms of compromise, defendant No.1 clandestinely sold the suit property to defendant Nos.7 to 9. The plaintiffs have stated that they came to know about the alienation of suit property by defendant No.1 shortly before institution of the suit from one of their relatives. However, name of the said relative is not mentioned in the plaint. The said relative is also not examined as a witness.
(64) In view of the aforesaid, Dr. Sundaram, learned Advocate for the appellants/defendant Nos.7 to 9 contends that the date of sale deed should be considered to be the date of constructive notice and limitation for filing the suit should be counted from the said date. His contention is that the limitation for filing the suit will be three years from the date of registration of sale deeds. The learned Advocate vehemently argues that limitation for filing the suit had expired in the
-- 42 -- SA 207.2021 (J) -.odt year 1992 itself and the suit filed in the year 2001 was hopelessly barred by limitation and ought to have been dismissed as such. The learned advocate places reliance on judgment of the Hon'ble Supreme Court in the case of Uma Devi and ors. Vs. Anand Kumar and ors, reported in (2025) 5 SCC 198 and in the case of Rattan Singh and ors., Vs. Nirmal Gill and ors., reported in (2021) 15 SCC 300. Apart from this, the aforesaid judgments of the Hon'ble Supreme Court reliance is also placed on judgment of this Court in CRA No.104 of 2019 (Sushil Agrawal Vs. Naresh Agrawal and ors), decided on 08.09.2025.
(65) Per contra, Mr. Bhangde, learned Advocate for the plaintiffs contends that it is not in dispute that there was an earlier suit for partition and separate possession filed for partition and separate possession. He contends that all known properties where included in the said suit for partition. Referring to the schedule of properties, the learned advocate contends that even properties standing in the name of the family idol were subject matter of the earlier suit. The contention of the learned advocate is that it is obvious that the suit property was not included in the earlier suit for partition since defendant No.1 had not disclosed about existence of the same. Learned advocate also states that the Will in which reference to the suit property is made was also not filed in the earlier suit. He draws attention to the observation by the learned First Appellate Court wherein it is recorded that the Will
-- 43 -- SA 207.2021 (J) -.odt was not placed on record in the earlier suit. Mr. Bhangde, further argues that it is not in dispute that Buty family of Nagpur was a very rich family and that it owned extensive immovable properties in an around Nagpur is a well known fact which is duly established on record. He contends that it is therefore understandably that details of all the properties were not known to the plaintiffs. He therefore argues that the finding by the learned First Appellate Court on the aspect of limitation need not be disturbed.
(66) Learned advocate places reliance on judgment of the Hon'ble Supreme Court in the case of Mallavva and anr. Vs. Kalsammanavara Kalamma (Since Dead)by LR's and ors, reported in (2024) SCC OnLine SC 3846 and Thankamma George Vs. Lilly Thomas and anr., reported in (2024) 8 SCC 351. He contends that the limitation for filing the suit will be governed by Article 65 of the Limitation Act. The learned advocate argues that the plaintiffs are not parties to the sale deed and therefore they could have maintained the suit for partition even without challenging the sale deed. He further argues that in a case of partition and separate possession where right to property is established, it is for the defendants to prove the ouster.
(67) The contention of the plaintiffs is that Buty family owned extensive lands in and around Nagpur and all family members, and the
-- 44 -- SA 207.2021 (J) -.odt plaintiffs, in particular, were not aware of all the properties of the family. It is stated that plaintiff Nos.1 and 2 were not aware about existence of the suit property. It is stated that defendant No.1 did not disclose about existence of the suit property while the earlier suit for partition was filed and was disposed of by virtue of compromise. Their contention is that immediately after the earlier suit was disposed of in terms of the compromise decree dated 10.08.1988, defendant No.1 clandestinely sold the suit property to defendant Nos.7 to 9 vide impugned sale deeds dated 25.08.1989, 28.08.1989 and 07.09.1989. The learned First Appellate Court has recorded that in the earlier suit for partition, parties have arrived at compromise. It is also observed that some of the properties standing in the name of family trust were also subject matter of the compromise. The learned First Appellate Court has also referred to the admission of defendant No.1 in his cross- examination that he had disclosed the will executed by late Atmaram Buty to the plaintiffs for the first time vide reply to suit notice, which was issued in the year 2001.
(68) In view of the aforesaid, the learned First Appellate Court has recorded that defendant No.1 had concealed the suit property from the plaintiffs. The finding is a probable finding which does not warrant any interference.
(69) I have considered the rival submissions as aforesaid. The
-- 45 -- SA 207.2021 (J) -.odt
finding by the learned First Appellate Court that there was no reason to exclude the suit property from the earlier suit for partition and separate possession merits acceptance. Indeed, there is no reason or logic behind excluding the suit property. It must also be stated that some of the properties of the family idol have also been included in the earlier suit and have been partitioned between the family members. The finding of fact recorded by the learned First Appellate Court on this aspect does not warrant interference.
(70) As regards constructive notice of the impugned sale transactions reference needs to be made to Section 3 of the Transfer of Property Act which deals with constructive notice. The provision reads as under:-
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I. Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one
-- 46 -- SA 207.2021 (J) -.odt sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:] Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.- II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.- A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
-- 47 -- SA 207.2021 (J) -.odt Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.
(71) Constructive notice of the impugned sale transactions can be attributed to the plaintiffs only if it is established that they would have known about the suit property but for failure to make proper inquiry or search which they were required to make, or on account of gross negligence on their part. In this regard it must be stated that this Court has expressed agreement with the finding by the learned First Appellate Court that existence of the suit property was concealed by the defendant No.1 from other family members. Constructive notice with respect to sale transactions in relation to immovable property can be attributed under Explanation-I from the date of registration only to a person who acquires the property or any part thereof or interest therein after registration of earlier sale transaction. However, since the plaintiffs are not subsequent purchasers, the said provision will not be attracted. (72) Coming to the judgments cited by the learned advocate for the appellants, the judgment in the case of Umadevi (supra) is clearly distinguishable on facts. In the said case, the plaintiffs filed a suit for partition with respect to ancestral property in the year 2023. The records indicated that there was a family partition with respect to
-- 48 -- SA 207.2021 (J) -.odt the suit properties in the year 1968, pursuant to which many family members had transferred their shares in the properties by registered sale deeds in the year 1978. The suit property was subject matter of partition. It is in this factual situation that the Hon'ble Supreme Court has held that the date of registration of sale deed will be the date of constructive knowledge of the sale deeds challenged in the suit, since the plaint was silent with respect to the date on which the plaintiffs became aware about the impugned sale deeds.
(73) In the present case, although there is a prior partition, the suit property is not a subject matter of the said partition. The ratio of the aforesaid decision will not apply to the facts of the present case. (74) Similarly, in the case of Rattan Singh and ors Vs. Nirmal Gill and ors., reported in (2021) 15 SCC 300, the plaintiff had executed a power of attorney in favour of defendant No.1, who sold some properties on the basis of sale deed. The plaintiff had also sold certain properties. The sale transactions were assailed in the suit. The Hon'ble Supreme Court has held that it was necessary for the plaintiff to challenge the sale transactions.
(75) It is already held that the suit property was concealed by the defendant No.1 from the other family members. Defendant No.1 alone had sold the suit properties. The findings by the learned First
-- 49 -- SA 207.2021 (J) -.odt Appellate Court regarding concealment of this property and clandestine sale of the same by the defendant No.1 to defendant Nos.7 to 9 is found to be proper. In view of the above ratio of Rattan Singh (supra) will not be applicable to facts of the present case. (76) In the case of Sushil Agrawal, the plaintiff had challenged sale deeds which were subject matter of earlier suit in which the plaintiff was a defendant. The said suit was decreed against the plaintiff in the subsequent suit on the basis of the two sale deeds. The plaintiff had filed written statement in the earlier civil suit. The plaintiff filed subsequent suit challenging the sale deeds on the basis of which earlier civil suit was decreed against him. The earlier civil suit was filed in the year 2011. The subsequent suit was filed in the year 2018. The suit was filed for challenging sale deeds of the year 1998 and 2001. The pleadings in the subsequent suit filed by plaintiff included statements with respect to earlier civil suit. In view of the aforesaid knowledge to the plaintiff with respect to the impugned sale deeds could be inferred from the year 2011 from reading of the plaint itself. In such circumstances, this Court has held that the silence on the part of the plaintiff in disclosing the date of knowledge assumes significance and accordingly it is held that the date of registration of sale deeds will have to be treated as date of knowledge of the sale deeds. It is reiterated that there is a reference to earlier suit in the subsequent suit filed by the plaintiff in the case of Sushil Agrawal. The ratio of the
-- 50 -- SA 207.2021 (J) -.odt said decision cannot apply to the present case where a clear finding of fact is recorded that the suit property was concealed in the earlier suit for partition and separate possession and shortly after passing of the compromise decree in the earlier civil suit the defendant No.1 sold the suit property to defendant Nos.7 to 9 without knowledge of the plaintiffs and other family members.
(77) The plaintiffs are not parties to the impugned sale deeds. Since plaintiffs are not parties to the sale deeds they are not required to challenge the same. Reliance in this regard can be safely placed on judgment of the Hon'ble Supreme Court in the case of S.K. Golam Lalchand Vs. Nandlal, reported in 2024 SCC OnLine (SC) 2456. The limitation for filing the suit will not be governed by Articles 58 or 59 of the Limitation Act as contended by Dr. Sundaram. Suit for partition will be maintainable even in the absence of challenge to the sale deeds. Limitation for filing the suit will have to be determined having regard to the provisions relating to suit for partition. The limitation will be governed by Article 110 which provides for limitation of 12 years commencing from the date of knowledge of exclusion. The burden of proving exclusion is on the defendants which they have failed to discharge.
(78) The Hon'ble Supreme Court has held in the case of Mallava (supra), that once plaintiff prove his title, the burden of
-- 51 -- SA 207.2021 (J) -.odt proving that the suit is barred by limitation on account of adverse possession is upon the defendants. Similar view is taken in the case of Thankamma George (supra), wherein the Hon'ble Supreme Court has held that if the sale deed is found to be void, the defendant must prove the date on which the plaintiff got knowledge about the same. (79) It is well settled that the burden of proving ouster or possession becoming adverse is always on the defendant. Once the entitlement to immovable property is proved, decree for partition and separate possession, or possession as the case may be cannot be denied to the plaintiff unless the defendant establishes that the suit is barred by limitation by setting up and duly proving a case of ouster or possession becoming adverse. The pleadings of adverse possession by defendant Nos.7 to 9 are lacking in all material particulars and are grossly inadequate to make out such a case.
(80) In view of the above discussion, the substantial question of law is answered in favour of respondent Nos.1 and 2/plaintiffs and against the appellants/ contesting defendants.
AS TO SUBSTANTIAL QUESTION OF LAW F. Whether the learned first appellate Court had erred in law for not taking into consideration in the
-- 52 -- SA 207.2021 (J) -.odt admissions of plaintiff No.2 with respect to the suit property bearing Khasra No.22 being property of private family Trust named "Shri. Deo Balkrishna Deoghar Deosthan?
(81) It is not necessary to answer this substantial question of law in order to decide the appeal. Even if it is held that the property is property of the family trust, as held above, the plaintiffs will have the right to assail the transaction as beneficiaries and rather defendant Nos.7 to 9 will not be able to claim any right, title or interest on the basis of impugned sale deeds in the suit properties, since the Will on the basis of which it is claimed that the suit properties are properties of family trust does not empower or authorize defendant No.1 to sell the suit property. Rather, if the property is held to be ancestral property, as rightly recorded by the learned First Appellate Court, defendant Nos.7 to 9 will be entitled to the share of their vendor, defendant No.1 in the suit properties.
AS TO SUBSTANTIAL QUESTION OF LAW D D. Whether the finding recorded by the First Appellate Court in his judgment in Paragraph Nos. 21, 23, 24 and 25 are perverse finding contrary to evidence on record?"
(82) The findings in paragraph 21 pertain to proof of the Will.
While dealing with substantial question of law B, it is held that the Will
-- 53 -- SA 207.2021 (J) -.odt was not duly proved. The findings in paragraph 21, which pertain to proof of the Will, are just and proper.
(83) The findings in paragraph 23 pertain to documents at Exhibits 88 to 93. The relevance of these documents and the findings in paragraph 23 is with respect to nature of property. It is already held that if the suit property is held to be belonging to the family idol the defendant Nos.7 to 9/appellants will be completely deprived of the suit property, however, if the property is held to be coparcenary property the sale deed can be held valid to the extent of share of defendant No.1/Vendor.
(84) The case of the contesting defendants is that Bhaskasrrao Buty, and thereafter defendant No.1, Kiran Buty, have dealt with various properties in their capacity as Vahivatdar of the family trust and, therefore, the suit property, which is referred in the Will as a property dedicated to the private family trust, must be treated as property of the trust. The learned First Appellate Court has referred to the exchange deed dated 24.03.1971 at Exhibit 91 executed between Nagpur Improvement Trust and Shri Bhaskarrao Buty. The learned First Appellate Court has recorded that the said document is not executed by Bhaskarrao Buty in his capacity as Vahivatdar of the family trust, but in his personal capacity. It is also recorded that the exchange deed does not refer to the family trust at all. This observation by the
-- 54 -- SA 207.2021 (J) -.odt learned First Appellate Court is correct. However, at the same time, the learned First Appellate Court has not referred to the other documents, i.e. sale deed executed by Bhaskarrao in favour of Ramkrishna and Sheshrao on 13.08.1975 (Exhibit 88); Correction Deed executed by defendant No.1 in favour of Ramkrishna and Sheshrao on 29.05.1984 (Exhibit 89); Sale Deed executed by Bhaskarrao in favour of Ajabrao Tote on 10.01.1985 (Exhibit 90); Correction Deed executed by defendant No.1 in favour of Bhoyar and Sale Deed executed by Bhaskarrao in favour of Sharda Gupta on 15.11.1968 (Exhibit 92). These documents are executed by late Bhaskarrao Buty and defendant No.1 in capacity of Vahivatdars of the family trust.
(85) Although the Will is not proved, there is evidence on record to suggest existence of the family trust. The said documents and other evidence on record clearly indicates existence of a family trust. However, as recorded above, whether the properties are property of joint Hindu Family or family trust should not make much difference in the final outcome of the appeal since even if it is assumed that the suit property is property of family idol, defendant No.1 was definitely not empowered or authorized to sell the same. The defendant Nos.7 to 9 cannot claim ownership over the suit property on the basis of sale deed executed in their favour by defendant No.1 acting as Vahivatdar of the family trust. Since such authority to alienate trust property is not conferred upon the Vahivatdar.
-- 55 -- SA 207.2021 (J) -.odt (86) Earlier transactions by the Vahivatdar of the trust, which
were not challenged by the family members, will not by itself confer authority on defendant No.1 to alienate the trust property. It must be reiterated that the Will on which reliance is placed by defendant Nos.1 and 7 to 9 expressly prohibits sale of trust property by the Vahivatdar. (87) Although inference with respect to existence of family trust can be drawn on the basis of evidence on record, since the Will is not proved, it cannot be conclusively held that the suit property is property of family trust/idol. The fact that property initially belonged to the joint Hindu family is not in dispute. Since dedication is not proved, it will have to be held that suit property is property of joint Hindu family property. As held above, if the suit property is held to be property of family idol, defendant Nos.7 to 9 cannot claim any right in the same on the basis of sale deeds in their favour.
(88) The findings in paragraph 24 and 25 are pertaining to concealment of suit property. These findings cannot be said to be perverse as is held while recording reasons on substantial question of law (G).
(89) The substantial question of law is answered accordingly.
(90) For the reasons recorded above, Second Appeal is partly
-- 56 -- SA 207.2021 (J) -.odt
allowed in the following terms:-
I. Clause-3 of the of the decree dated 09.07.2021 passed by the learned District Judge-16, Nagpur in Regular Civil Appeal No.268 of 2018 is modified as under:-
A. It is declared that defendant No.1 had 5/16 th share in the suit property as on 25.08.1989, 28.08.1989 and 07.09.1989 i.e. on the dates of impugned sale transactions in favour of defendant Nos.7 to 9.
B. It is further declared that the defendant Nos.7 to 9 will be entitled to receive the said 5/16 th share of the defendant No.1 in the suit property.
C. It is declared that plaintiff No.1 has 11/48th share in the suit property.
D. It is declared that plaintiff No.2 (i), 2(ii) and defendant No.3 to 6 together have 11/48 th share in the suit property. The plaintiff Nos.2(i) and 2(ii) have 11/480th share each. The defendant Nos.3 to 6 have 11/240th share each.
E. The defendant Nos.2(a), 2(b) and 2(c) together have 11/48th share in the suit property. The defendant Nos.2(a), 2(b) and 2(c) have 11/144th share each.
-- 57 -- SA 207.2021 (J) -.odt II. Clauses-1, 2, 4, 5, 6 and 7 of the decree dated 09.07.2021 passed by the learned District Judge-16, Nagpur in Regular Civil Appeal No.268 of 2018 are maintained.
III. Parties to bear their own costs.
[ ROHIT W. JOSHI, J. ] (91) At this stage, learned advocate for the appellants seeks stay of eight weeks in order to enable the appellants to approach the Hon'ble Supreme Court. The decree passed is a decree for partition and separate possession. The execution of such decree involves a very long process. The possession of separate shares can be delivered only once the property is actually demarcated and physically partitioned as per shares determined. In that view of the matter, prayer for stay of execution is rejected.
[ ROHIT W. JOSHI, J. ] Tanmay...