Shri Wamanrao Babarao Ingole vs Smt. Lochana Sudhakar Ingole And Others on 11 July, 2019

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Bombay High Court

Shri Wamanrao Babarao Ingole vs Smt. Lochana Sudhakar Ingole And Others on 11 July, 2019

1. Original defendant is before this Court against judgments and decrees passed by learned Judge of Trial Court and learned Judge of Lower Appellate Court in Special Civil Suit No.303/2007 and in Regular Civil Appeal No.144/2011.

2. Heard learned counsel Shri G.R.Sadar for the appellant/defendant, in extenso. Also, perused respective pleadings and evidence which were made available to me by learned counsel during the course of submissions.

3. According to learned counsel for the appellant/defendant, learned Judges of both the Courts below committed mistake in recording a finding though concurrently against him that the appellant/defendant failed to prove that sale consideration was not given to Sudhakar. He submitted that for any lacunae in defence .....2/-

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sa267.19 4 2 respondents/plaintiffs cannot be permitted to take advantage of the said and for that he relied on a decision of the Honourable Apex Court in the case of Union of India and ors vs. Vasavi Cooperative Housing Society Limited and ors, reported at (2014)2 SCC 269. It is also his submission that suit itself was not properly framed inasmuch as no declaration was sought by the respondents/plaintiffs that sale execution is not binding upon them.

4. The respondents/plaintiffs are widow and daughters of late Sudhakar who expired 15.2.2007. They filed a suit for cancellation of sale-deed and possession. According to them, the appellant/defendant without paying any consideration to Sudhakar got executed sale-deed in respect of agricultural field survey No.123/2 gat No.356 admeasuring 1H 61R out of which 0.80.5R was sold to him. According to the respondents/plaintiffs, at the relevant time the Sudhakar was suffering from terminal disease. Taking advantage of his health condition, the appellant/defendant took Sudhakar, on a pretext that their mother is seriously ill, to Borala, however he was taken to office of the Sub Registrar at Amravati where sale-deed was executed. The respondents/plaintiffs submitted that after death of Sudhakar, when they applied for mutating their names in revenue records in place of Sudhakar, it was revealed to them that in view of sale transaction dated 6.2.2007, Sudhakar already parted his title in favour Waman, the .....3/-

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sa267.19 4 3 present appellant.

In this fact situation, the suit was filed.

5. In response to the suit summons, the appellant/defendant appeared and filed his written statement (Exhibit 9). It was not disputed in the written statement that Sudhakar was suffering from terminal disease (cancer). It was case of the appellant/defendant that he extended financial help to Sudhakar to meet medical expenses as well as expenses of marriage of his daughter Sheetal. It was also case of the appellant/defendant that, therefore, to meet expenses for legal necessity, sale-deed was executed.

6. From pleadings and the submissions of learned counsel for the appellant/defendant, it is case of the appellant/defendant that sale transaction by Sudhakar was under compulsion inasmuch as, according to the appellant/defendant, Sudhakar was required to execute sale- deed to meet expenses as well as expenses incurred for marriage of his daughters.

7. In the written statement, it was specific pleading that in the year 2004, the appellant/defendant paid Rs.50,000/- for marriage of one of his daughters by name Sheetal. However, evidence of the appellant/defendant shows that he never paid Rs.50,000/- in year 2004 but the amount was paid prior to 10 days of marriage of Sheetal. It is established on record that Sheetal's marriage took place on .....4/-

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sa267.19 4 4 13.2.2005. In evidence, the appellant/defendant improved his case by stating that in written statement amount paid in year 2004 is incorrect, however at the same time, he admitted that the written statement was drafted by his counsel as per his instructions.

8. The appellant/defendant is claiming title in view of sale-deed dated 6.2.2007 (Exhibit 32). It was his case that sale was required to be done by Sudhakar to meet his financial exigencies. It was also his case that previously also he paid amount from time to time and, thereafter, sale- deed was executed. Therefore, it was specific case of the appellant/defendant that from time to time he parted consideration amount. Under such case of the appellant/defendant, burden was on the shoulder of the appellant/defendant to prove and establish that he paid sale consideration Rs.1,10,000/- which is shown to be sale consideration in sale-deed (Exhibit 32).

9. Learned counsel Shri G.R..Sadar for the appellant/defendant, also made available to this Court copy of the sale-deed (Exhibit 32). It would be appropriate to reproduce important recitals in respect of sale consideration and the said is reproduced as under:

"fe lu 2007 lky dkj.ks LFkkoj ekykps [kjsnh[kr fygwu nsrks dh] eyk rqeps toGwu lngqZ [kjsnhpk laiw.kZ Hkjuk #i;s 1]11]000@& ,d yk[k vdjk gtkj #i;kpk ?kjh .....5/-

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sa267.19 4 5 vkxkm jks[k uxnh feGkkyk- Hkj.;kckcr ek>h dkghp rdzkj jkghyh ukgh-"

Thus, from recitals of the sale-deed it is clear that entire amount Rs.1,11,000/- was received in one stroke on the day of execution of the sale-deed in the house at Borala.

10. Thus, the aforesaid recitals are contrary to pleadings and the case that was developed by the appellant/defendant during the course of the Trial.

11. In evidence, the appellant/defendant tried to show source of income. According to his evidence, he took loan from one Hemant Rathi. It would have been very convenient for the appellant/defendant to introduce said Hemant Rathi in the witness box to prove that he obtained financial assistance from him in order to pay part/full sale consideration to Sudhakar. However, for the reasons best known to the appellant/defendant, he did not examine said Hemant Rathi thereby the appellant/defendant has not brought relevant evidence on record in respect of financial capacity of the appellant/defendant. Therefore, there is no difficulty to draw adverse inference against the appellant/defendant regarding financial capacity.

12. According to evidence of the appellant/defendant, that could be seen from his affidavit itself, which is reproduced herein below:

.....6/-

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sa267.19 4 6 "e;r lq/kkdjjko gs uksdjh fufeRr ckgsjxkoh jkgr vlY;keqGs R;kaP;k 'ksrkph ikg.kh o e'kkxr ehp dfjr gksrks- 2003 e/;s R;kauk dWUlj vlY;kps letys- rsOgkiklwu R;kauk R;kap;k pkj eqyhaP;k yXukph dkGth gksrh- e;r lq/kkdjjkokaph eksBh eqyxh f'kry ghps yXu

13 Qsczqokjh 2005 jksth >kkys- R;kvxksnj eh lq/kkdjjkoyk 50]000@& :- enr Eg.kwu fnys gksrs- rlsp lq/kkdjjkokauh eqacbZyk R;kaP;k inkourhps ts izdj.k nk[ky dsys gksrs R;kdjhrk [kpkZlkBh eh :-25]000@& R;kauk fnys gksrs- R;kaP;k vkWijs'kueqGs] dWUljP;k fu;fer vkS "k/kkeqGs] izR;{kkr ixkj deh vlY;keqGs o ukxiwjlkj[;k 'kgjkr jkgr vlY;keqGs lnj jDde R;kaph bZPNk vlqu nsf[ky rs ijr d: 'kdr uOgrs- rlsp bZrj nksu eqyhaps nsf[ky R;kauk yXu djko;kps gksrs o R;kap;k uarj lnj 'aksrhdMs y{k ns.kkjs dq.khgh ulY;keqGs R;kauh lnj 'ksrh eyk fodr ? ksowu moZfjr iSls ns.;kckcr lqpfoys- nkO;krhy tkxspk R;kosGh cktkjHkko 1]10]000@&P;k toGikl gksrk R;keqGs lnj 'ksrkpk ekscnyk 1]11]000@& :- e/;s vkEgh Bjfoyk o fn-6-02-2007 jksth [kjsnh dj.;kps Bjys- R;kizek.ks eh fn- 5-02-2007 jksthp vko';d rks LVWEi ?ks Åu Bsoyk- BjY;kizek.ks lq/kkdjjko cksjkGk ;sfFky vkeP;k oMhyksikftZr ?kjh vkys- xkokrhy Jh- foJketh /kekZGs o lq/kkdj yksgh ;kauk [kjsnhlkBh lk{khnkj Eg.kwu vkEgh ?kjh cksykowu ?ksrys- R;kosGh eh lq/kkdjjkoyk :-36]0000@& uxnh R;kaP;k le{k fnys- rs iSls eh R;kauk ?kjhp jkgw ns.;kl lkafxrys- ijarw vejkorho:u ijLij ukxiwjyk tko;kps vkgs] Eg.kwu rs iSls R;kauh lkscrp ?ksrys gksrs o mijksDr nksUgh lk{khnkjkaP;k mifLFkrhr [kjsnhph izfdz;k ikj ikMY;kuarj lq/kkdjjko ;kauk ukxiwjP;k cle/;s clfoY;kuarj vkEgh cksjkG;kyk ijr vkyks- "

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sa267.19 4 7 However, the sale-deed is not having any recitals that Sudhakar is required to execute sale-deed for any necessity.

13. Even, from evidence, amount Rs.36,000/- was paid in house at Borala by the appellant/defendant in presence of Suresh Dharmale and Suresh Lohi who were attesting witness to the sale-deed (Exhibit 32). Even, these two persons, in whose presence, according to the appellant/defendant he parted Rs.36,000/-, are not examined without offering any explanation.

14. In view of the facts which emerge from pleadings and evidence on record, there is no hesitation in my mind to record a finding that learned Judge of the Trial Court rightly decreed the suit. The present second appeal does not involve any substantial question of law. Consequently, the appeal fails and is dismissed. No costs.

JUDGE !! BRW !! ...../-

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