Gujarat High Court
Kanubhai Savabhai Rabari vs Punjiben Alias Shantaben Daughter Of ... on 17 July, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CRA/338/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 338 of 2013
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KANUBHAI SAVABHAI RABARI....Applicant(s)
Versus
PUNJIBEN ALIAS SHANTABEN DAUGHTER OF PARSHOTAMBHAI &
2....Opponent(s)
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Appearance:
MR LALJI R MOKARIA, ADVOCATE for the Applicant(s) No. 1
MS TANUJA N KACHCHHI, ADVOCATE for the Applicant(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Opponent(s) No. 1.1 - 1.4 , 2.1 - 2.3 ,
3.1 - 3.3
MR SP MAJMUDAR, ADVOCATE for the Opponent(s) No. 1.1 - 1.4 , 2.1 - 2.3 ,
3.1 - 3.3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 17/07/2015
ORAL ORDER
1. This Revision Petition is filed by the Original Defendant challenging the order dated 30.9.2013 passed by the learned Additional Senior Civil Judge, Vadodara below Application Exh.11 in Special Civil Suit No. 345 of 2011.
Brief facts are as under:
2. The Respondents are Original Plaintiffs. They have filed the said suit for a declaration that they are the owners of suit land bearing Revenue Survey No.1424 admeasuring 8562 sq. meters of village Chansad Taluka Padra, District Vadodara by virtue of succession. They have Page 1 of 7 C/CRA/338/2013 ORDER further prayed for declaration that the sale deed dated 31.1.1998 of the suit land executed in favour of the Defendant was fraudulant, bogus and void ab initio and nullity and prayed to set aside the same. They also prayed for consequential reliefs. According to the Plaintiffs, the suit property belonged to Punjiben alias Shantaben, daughter of Parshottam Nathabhai and wife of Govindbhai Galabhai Rai. She died on 9.12.1993 leaving behind Plaintiffs, her sons and daughters as the legal heirs. Thus, since the death of Punjiben, the Plaintiffs became the owners of the suit land by virtue of succession. The Defendant relies on registered sale deed dated 31.1.1998 allegedly executed by one Kamlaben, daughter of Parshottam Nathabhai acting as an administrator of Punjiben. According to the Plaintiffs, such sale deed was fraudulently created by the Defendant, since on the date of the sale, Kamlaben had also expired on 3.1.1996. According to the Plaintiffs, thus, a sale deed is bogus and fraudulent and therefore nullity and should be declared as void ab initio. In the plaint they have contended that they came to know about such sale transaction only upon receiving the revenue documents in the year 2010. According to them, thus the cause of action arose from the date of such knowledge and they therefore filed the said suit for the prayers noted above.
3. In such suit Defendant appeared and filed Application Exh.11 praying for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. In such Application the Defendant contended that he had become the owner of the suit land by virtue of the registered sale deed dated 31.1.1998. The suit is filed thirteen years after registration of the Page 2 of 7 C/CRA/338/2013 ORDER sale deed. The Plaintiffs have not indicated in the suit as to in between who was in possession of the suit land, when did they apply and obtain documents from the revenue authorities. According to the Defendant, the registration could be challenged only within three years from the date of registration. Though not mentioned in the Application, the case of the Defendant is principally based on his contention that the registration would amount to deemed notice to the Plaintiffs and that any suit for declaration that the document is invalid must be brought within three years from such date.
4. The court below rejected the application of the Defendant by the impugned order primarily on the ground that prima facie the sale transaction appears to be bogus. He took note of the contents of the civil suit and the accompanying document suggesting that Kamlaben -
the executor of the sale deed had died on 3.1.1996. The learned Judge was of the opinion that at any rate the issues can be examined at the time of the suit. This order the Defendant has challenged by way of this Revision Application.
5. Learned Counsel for the Defendant - present Petitioner vehemently contended that the suit is heavily barred by limitation. The suit is filed thirteen years after the date of registration of the sale deed, the Plaintiffs have not disclosed in the suit when did they come to know about the registration and in the meantime who was in the actual possession of the suit land. Learned Counsel further submitted that the registration of a document would be a deemed notice to one and all. Any suit for challenging such a registered document must be Page 3 of 7 C/CRA/338/2013 ORDER brought within three years from the date of the registration. In this context, learned Counsel heavily relied on the decision of the learned Single Judge of this Court in case of Becharbhai Zaverbhai Patel & Anr. v. Jashbhai Shivabhai Patel & Ors. reported in 2013 (1) GLR 398 as well as in the case of Dilboo (Smt) (Dead) by heirs and ors. v. Dhanraji (Smt.) (Dead) and ors reported in (2007) 7 SCC 702.
6. On the other hand, learned Counsel Shri P.P.Majmudar for the Opponents - Original Plaintiffs opposed this Revision Petition contending that the trial court has given cogent reasons for rejecting the application of the Defendant, the sale deed was fraudulently executed as can be seen from the fact that Kamlaben, the executor of the sale deed had expired long before the date of the sale, no time limit would therefore apply for declaration that such a document is nullity. In any case, the Plaintiffs cannot be attributed deemed knowledge of the document if the Defendant has not pointed out any notice of the revenue entries was served on the Plaintiffs.
7. Having thus heard learned Counsels for the parties and having perused the documents on record, it would prima facie emerge that the suit is based on a fraud committed by the Defendant. According to the Plaintiffs, their predecessor-in-title Punjiben died on 9.12.1993 leaving behind suit land in their favour by way of succession. They point out that Kamlaben, the so called executor of the sale deed as an administrator of Punjiben's property had died on 3.1.1996 whereas the sale deed is said to have been executed on 31.1.1998. If these primary facts are correct, immediately it would imply that the sale Page 4 of 7 C/CRA/338/2013 ORDER document is completely bogus. First and foremost, after the death of Punjiben on 9.12.1993, Kamlaben, whom previously any authority to act for an on behalf of Punjiben could continue to do so, itself would be a serious question. Secondly, if Kamlaben died on 3.1.1996 as contended by the Plaintiffs, any deed which purports to carry her execution after such date would necessarily be invalid.
8. The question of limitation would have to be judged on facts that may be brought on record during the course of trial that whether to such a fraudulent document, if so established, can period of limitation would apply, would itself be a question. Even if one go to apply the period of limitation as provided in the Limitation Act, the question would be, what would be the starting point of such limitation - whether the date of registration of the document or the date of actual knowledge to the Plaintiffs in present state of facts would also be a relevant question. All these issues must be allowed to be tried. The principle of deemed knowledge of registered document to a existing owner cannot be applied mechanically. Both the details cited by the learned Counsel for the Petitioner came for consideration before this Court recently in Civil Revision Application No. 12 of 2015 decided on 26.6.2015, in which following observations were made by this Court:
"13. Upon perusal of the said portion of section 3 of the Transfer of Property Act, it can be seen that knowledge of a fact is attributed to a person either when he actually knows that fact, or when, but for wilful abstention from an inquiry or search, he ought to have made, or gross negligence, he would have known it. ExplanationI to the said clause interalia provides that where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any Page 5 of 7 C/CRA/338/2013 ORDER person acquiring such property or any part thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. This is subject to the conditions provided in provisios contained to the said explanation. Explanation1 thus refers to deemed notice and relates to the notice of instrument relating to a transaction of immovable property which is required by law and has also been so registered and such deemed knowledge is imputed to the person acquiring such property or any share or interest in such property. Such provision therefore, cannot be applied in case of a subsequent sale of an immovable property to impute deemed knowledge of such transaction on the erstwhile purchaser/owner merely on the strength of section 3 of the Transfer of Property Act unless facts and attendant circumstances suggest that the person in question was reasonably expected to make search or inquiry which he failed to do, thus suggesting willful act, negligence or lack of due diligence i.e. prudence, expected of a reasonable man. Any such interpretation being quite contrary to the language used in the provision, would also put an unreasonable onus on a owner or a purchaser of an immovable property to be constantly vigilant and apprise himself of any subsequent registered transaction with respect to such immovable property or face unpleasant consequences of his challenge to a totally invalid or even a fraudulent or a bogus sale deed being barred by law of limitation after the statutory period commencing from the date of registration on the principle of deemed knowledge. In plain terms said provision of section 3 of the Transfer of Property Act applies in case of a person acquiring an immovable property or a share or interest therein of a transaction which would be an existing and not a future transaction which by law is required and indeed been registered."
9. In the result, the Civil Revision Petition is dismissed.
(AKIL KURESHI, J.) Page 6 of 7 C/CRA/338/2013 ORDER JNW Page 7 of 7