Bombay High Court
Shivaji Griha Nirman Society, Through ... vs Nandu S/O Mohanlal Khatri on 26 April, 2016
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 8 OF 2014
Shivaji Griha Nirman Society
through its President Yuwraj
Marotrao Karate, aged 56 yrs.
R/o Warud, Tahsil Warud,
Distt. Amravati. APPELLANT.
ig VERSUS
1] Mohanlal Kunjilal Khatri,
aged 52 yrs., Occu.Agriculturist
R/o Warud, Tahsil Warud,
Distt. Amravati.
1-A] Kunjilal Mangilal Khatri,
@ Kunjilal Mangilal Suryawanshi
aged 75 yrs., Occu. Nil. R/o
Parashia (M.P.) (Dead).
2] Nandu Mohanlal, Khatri,
aged 34 yrs. Occu.Agriculturist.
3] Raju Mohanlal Khatri,
aged 31 yrs. Occu.Agriculturist.
4] Mul Mangala Mohanlal
Khatri, aged 28 yrs. Occu.
Household work.
5] Ku.Vijaya Mohanlal Khatri
aged 24 yrs., Occu. Student.
6] Leelabai Mohanlal Khatri,
aged 56 yrs. Occu.Household
work.
All R/o Warud, Tahsil Warud,
Distt. Amravati.
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7] Shekhar Jagdeorao
Tarkhande, aged 31 yrs.
Occu. Agriculturist,
R/o Warud, Tahsil Warud,
Distt. Amravati.
8] Jamunabai Rawanarayan
Khatri, aged 71 yrs. Occu.
Household, R/o Warud,
Tahsil Warud, Distt.Amravati.
9] Mahadeo Vishram Choudhary,
aged 45 yrs. Occu.Not known,
R/o Warud, Tah. Warud,
Distt. Amravati. (Dead).
10] Bhagirathi Murlidharji Khatri
aged 65 yrs. Occu.Household,
R/o Warud, Tahsil Warud,
Distt. Amravati. (Dead). RESPONDENTS.
Shri Rohit Joshi, Advocate for the appellant.
Smt U. A. Patil, Advocate for the respondents.
CORAM: A. S. CHANDURKAR J.
Dated : APRIL 26, 2016.
ORAL JUDGMENT:
Parties are duly served pursuant to notice issued on 16.01.2014.
2] Challenge in the present second appeal is to the judgment of the appellate Court whereby the suit filed by the plaintiffs has been decreed and it has been held that the plaintiffs and defendant no.1 have 1/6th share in field Survey No. 434/2 and the sale deed dated ::: Uploaded on - 11/05/2016 ::: Downloaded on - 29/07/2016 23:52:54 ::: sa8.14 3 06.06.1997 was not binding on the plaintiffs.
3] It is the case of the original plaintiffs that the defendant no.1-Mohanlal was the father of plaintiff nos. 1 to 4 and the husband of plaintiff no. 5. Field Survey No. 434 along with residential house and a shop were ancestral properties. On 06.06.1997 30 R. land from Survey No. 434 came to be sold in favour of defendant no. 2. The plaintiffs therefore filed suit for partition along with declaration that the sale deed dated 06.06.1997 was not binding on them.
4] Mohanlal, the defendant no.1 filed his written statement and took the stand that the suit land was sold to the defendant no.2 for the benefit of the family. The defendant no.1(A)-Kunjilal, the father of Mohanlal filed his written statement stating therein that he was having ancestral property and by partition dated 20.03.1989 a partition had taken place with regard to his self acquired as well as ancestral properties. From Survey No. 434/2 land admeasuring 50 R. was given to the share of defendant no.1. A written statement was also filed by the defendant no. 2-Society contending that after verifying the record the land to the extent of 30 R had been purchased.
5] The trial Court after considering the evidence on record held that the sale deed dated 06.06.1997 was valid and that the defendant no. 2 was a bonafide purchaser. The trial Court however partly decreed the suit by granting 1/6th share in remaining 20 R land ::: Uploaded on - 11/05/2016 ::: Downloaded on - 29/07/2016 23:52:54 ::: sa8.14 4 from field Survey no. 434/2. Being aggrieved the original plaintiffs filed an appeal and by the impugned judgment by allowing the appeal the suit has been decreed.
6] Shri Rohit Joshi, the learned counsel for the appellant submitted that in the plaint there was a reference to various properties being joint family properties. However, the relief of partition was sought only with regard to the property which was sold by the defendant no.1 in favour of the defendant no. 2. He submitted that the suit for partial partition was not maintainable. It was then submitted that in the sale deed dated 06.06.1997 it had been specifically stated that for purchasing some other land, 30 R land was sold by the defendant no.1 to the defendant no.2. He submitted that after making proper enquiries the defendant no.2 had purchased the property in question and therefore the appellate Court was not justified in decreeing the suit. Without prejudice, it was submitted that in any event, the sale deed dated 06.06.1997 would bind the vendor-
defendant no.1 and the decree to that extent was liable to be modified.
7] Smt. U. A. Patil, the learned counsel for the respondent nos.
2 to 6 supported the impugned judgment. It was submitted that in the plaint it had been specifically pleaded that the transaction dated 06.06.1997 was not for legal necessity nor was it for the benefit of the joint family. It was submitted that after the partition in the year 1989 ::: Uploaded on - 11/05/2016 ::: Downloaded on - 29/07/2016 23:52:54 ::: sa8.14 5 the relief was restricted to the property sold by defendant no.1 to defendant no.2. She further submitted that though the office bearer of the defendant no. 2 was examined, he admitted that no enquiries of any nature were made before purchasing the suit field. It was therefore submitted that the decree passed by the appellate Court was liable to be confirmed.
8] The learned counsel have been heard on the following substantial questions of law:
1] Whether the suit for partial partition as urged is maintainable?
2] Whether the sale deed dated 06.06.1997 would bind defendant no. 1 to the extent of his share?
9] As regards the question that the suit for partial partition was not maintainable, it is to be noted that on 20.03.1989 there was a partition between Kunjilal and his two sons, Mohanlal and Madan. In said partition 0.50 R from Survey No. 434 came to the share of defendant no.1. Thus, suit for partition of said property was tenable.
Moreover, there is no such plea raised by the defendant no. 2 in the written statement filed below Ex. 25. In absence of any such pleading that the suit for partial partition was not maintainable, said aspect which involves factual adjudication cannot be permitted to be urged at the instance of defendant no. 2. Though it was submitted on behalf of ::: Uploaded on - 11/05/2016 ::: Downloaded on - 29/07/2016 23:52:54 ::: sa8.14 6 the appellant that the pleadings in the plaint indicated existence of other properties, this plea is denied by the defendant no. 2 for want of knowledge. Thus in absence of any pleadings or evidence in that regard this aspect cannot be considered for the first time in the appeal.
10] As regards the submission that the defendant no.1 had sold the land in question for purchasing another land and that the alienation was for the benefit of the family, it is to be noted that it was the specific case of the plaintiffs that the alienation was not for legal necessity and hence the same was not binding on the plaintiffs. It is to be noted that the office bearer of the appellant-society admitted in his evidence that no enquiries were made before purchasing the aforesaid properties. The burden to prove that the alienation was for legal necessity and hence bonafide was on the purchaser-appellant. Merely on the basis of the statement in the sale deed that the vendor intended to purchase some other property, it would not be legally proper to hold that the alienation was legal. It is to be noted that in the sale deed itself it has also been stated that the land was being alienated to satisfy certain loans. There is no evidence in that regard also. In view of aforesaid, the findings recorded by the appellate Court regarding absence of legal necessity for alienating the suit property cannot be said to be perverse.
11] It is to be noted that the appellate Court while decreeing the ::: Uploaded on - 11/05/2016 ::: Downloaded on - 29/07/2016 23:52:54 ::: sa8.14 7 suit has held the sale deed dated 06.06.1997 not binding on the plaintiffs. As the appellant had purchased the land in question from the defendant no.1, it would be open for the appellant to work out its share in so far as 1/6th share of defendant no.1 from field Survey No. 434/2 is concerned. As held in Kartar Singh Vs. Harjinder Singh AIR 1990 Supreme Court 854, the sale deed even if it does not bind co-sharers who had not consented to the sale, the same would bind the vendor to the extent of his share. To that extent, the appellant would be entitled to succeed. The operative part of the decree in Regular Civil Suit No. 14 of 1998 is liable to be modified to that extent. The second substantial question of law is answered by holding that the sale deed dated 06.06.1997 would bind the defendant no.1 to the extent of his 1/6th share. While maintaining the decree passed by the appellate Court, it is further held that the appellant would be entitled to retain the 1/6th share of defendant no. 1 on the basis of sale deed dated 06.06.1997. The second appeal is disposed of in aforesaid terms with no orders as to costs.
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