Gujarat High Court
Vasantlal Motichand Shah Deceased ... vs Jashwantiben Shashikant on 15 February, 2013
Author: M.R. Shah
Bench: M.R. Shah
VASANTLAL MOTICHAND SHAH DECEASED THROUGH HIS HEIRS....Appellant(s)V/SJASHWANTIBEN SHASHIKANT SHAH C/SA/52/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 52 of 2007 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO ================================================================ VASANTLAL MOTICHAND SHAH DECEASED THROUGH HIS HEIRS....Appellant(s) Versus JASHWANTIBEN SHASHIKANT SHAH & 1....Respondent(s) ================================================================ Appearance:
MR NM KAPADIA, ADVOCATE for the Appellant(s) No. 1 - 1.1 MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/02/2013 CAV JUDGEMNT 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant original plaintiff (now heirs and legal representative of the plaintiff) challenging the judgement and decree passed by the learned Civil Judge (Junior Division) in Regular Civil Suit No.124 of 1993, dtd.7/8/2002 by which the learned trial court dismissed the said suit instituted by the appellant original plaintiff as well as the impugned Judgement and Order passed by the learned appellate court - learned Principal District Judge, Valsad in Regular Civil Appeal No.373 of 2002 dtd.21/9/2005, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court dismissing the suit.
2.00. That the original plaintiff instituted Regular Civil Suit No.124 of 1993 in the court of learned Civil Judge (Junior Division), Umargam for a declaration that the sale deed dtd.2/6/1980 as well as the rectification deed dtd.20/8/1983, with respect to the land in question, is not binding to the plaintiff and also for a declaration that in the suit property the plaintiff has 1/2 share and also prayed for partition of the suit property between the plaintiff and the defendant No.1. In the said suit, the plaintiff also prayed for permanent injunction. That it was the case on behalf of the plaintiff that the father of the plaintiff was the owner of the suit property. That the suit property was given by his father to one Parmanand Mathurdas firm before many years in settlement of debt. Thereafter the said property given to said Parmanand Mathurdas firm and the entire family was residing as tenant. That the defendant No.1 is the widow of his younger brother.
That the plaintiff shifted to Valsad due to business. That his elder brother, his younger brother and mother were residing in the suit property. That elder brother, who was unmarried, expired on 26/6/1984. According to the plaintiff, the suit property was formerly property of his father, and therefore, he and his brother Shashikant and defendant No.1 decided to purchase the suit property from the defendant No.2. That for purchasing the suit property draft was prepared by the petition writer Mr.Madhusudan Bhikhaji. That the plaintiff paid Rs.3000/- towards his share to the defendant No.2. That in the Draft sale deed, his name was not inserted as purchaser of the suit property and therefore, when it was pointed out and in presence of the defendant No.1 and in presence of her husband, his name was inserted in the sale deed, as a purchaser of the suit property and defendant No.2 also made their initial at the place where his name was inserted. That thereafter the said document was presented before the Sub-Registrar for the purpose of registration. It was further the case on behalf of the plaintiff that thereafter the name of the plaintiff was mutated in the revenue record, but thereafter the defendant No.1 changed his intention and filed RTS proceedings before the Mamlatdar and ALT and said proceedings continued for along period and reached upto Gujarat High Court and the plaintiff lost the said proceedings before this High Court and it was observed and held by this High Court that it will be open for the plaintiff to initiate proceedings before the Civil Court for establishing his rights in the suit property. According to the plaintiff, subsequently defendant Nos.1 and 2 in collusion with each other and to defeat the right of the plaintiff, defendant No.2 had executed one rectification deed dtd.20/8/1983 in favour of the defendant No.1 and behind the back of the plaintiff, deleted his name from the sale deed. Therefore, the plaintiff instituted the Regular Civil Suit No.124 of 1993 for declaration that the rectification deed dtd.20/8/1983 is not binding to him as the same was executed by the defendant No.2 in favour of the defendant No.1, behind the back of the plaintiff. Therefore, on the basis of the earlier deed / sale deed, the plaintiff also prayed relief for 1/2 share in the suit property.
2.01. The suit was resisted by the defendant No.1 by filing Written Statement at Ex.34. It was the case on behalf of the defendant No.1 that the plaintiff got his name mutated in the revenue record, but subsequently rectification deed dtd.20/8/1983 was executed. The suit was also resisted by the defendant No.2 by filing Written Statement at Ex.38. The learned trial court framed Issues at Ex.49.
2.02. That on behalf of the plaintiff, he himself came to be examined at Ex.85. On behalf of the plaintiff, one Jayantibhai Naranbhai Lad came to be examined at Ex.94; Gordhandas Ambalal Tank came to be examined at Ex.97; Jasvantlal Manilal Patel came to be examined at Ex.99 and Rameshchandra Fatesinh came to be examined at Ex.106.
2.03. That the plaintiff produced documentary evidences at Ex.Nos.87 to 103.
2.04. That the defendants also led evidences, oral as well as documentary.
2.05. That on appreciation of evidence, the learned trial court held that the suit is barred by law of limitation and also held that the plaintiff had not paid any amount of consideration to the original defendant No.2 and got his name mentioned in the sale deed and therefore, to delete his name from the sale deed when the rectification deed dtd.20/8/1983 was executed by the defendant No.2 and his name came to be deleted, the same is not illegal and consequently the learned trial court by the impugned judgement and decree dismissed the suit.
2.06. Being aggrieved by and dissatisfied with the judgement and orders / decrees passed by the passed by both the courts below, original plaintiff - now the heirs of the original plaintiff, have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. At the outset, it is required to be noted that the present Second Appeal came to be admitted for considering the following substantial question of law :-
(A) Whether both the Courts below erred in appreciating the provisions of the Indian Registration At inasmuch as when the document is duly registered, no change can be effected except in accordance with the provisions of the Registration Act?
(B) Whether the provisions of the Indian Registration Act can be overreached or nullified in the manner adopted by the defendant and/or Whether effect and authenticity of the document duly registered can be nullified by simply executing a rectification deed in the absence of one of and behind the back of one of the signatories of the said document without his consent and without serving him notice in that regard?
(C) Whether in the facts and circumstances of the case, both the Courts below were justified in holding that the suit was barred by the law of limitation?
(D) Whether in absence of registered sale deed by defendant no. 1, original sale deed can be declared as illegal by the plaintiff?
(E) Whether notice to the effected person is required before removing his name from the registered sale deed and before registering the rectification deed?
3.01. Mr.N.M. Kapadia, learned advocate appearing on behalf of the appellants has vehemently submitted that both the courts below have materially erred in dismissing the suit and in not granting the reliefs to the plaintiff, as prayed for.
3.02.
Mr.N.M. Kapadia, learned advocate appearing on behalf of the appellants has further submitted that the learned trial court has materially erred in dismissing the suit on the ground of limitation. It is submitted that the rectification deed dtd.20/8/1983 executed by the defendant No.2, by which the name of the appellant was deleted from the sale deed and as a co-owner / purchaser, behind the back of the plaintiff and the same was nonest and void, and therefore, the learned trial court ought not to have dismissed the said suit on the ground of limitation.
3.03. Mr.N.M. Kapadia, learned advocate appearing on behalf of the appellants has further submitted that even otherwise, considering the fact that the plaintiff was bonafidely prosecuting litigation before the revenue authorities, which reached upto this High Court and the plaintiff was suggested to approach the Civil Court and thereafter immediately the petitioner instituted the suit for declaration and permanent injunction, even considering section 14 of the Limitation Act, learned trial court ought not to have dismissed the suit on the ground of limitation. It is submitted that as such the learned trial court ought to have considered the provisions of section 14 of the Limitation Act and ought to have excluded the period during which the plaintiff was bonafidely prosecuting other proceedings.
3.04. Mr.N.M. Kapadia, learned advocate appearing on behalf of the appellants has further submitted that the learned trial court has materially erred in not declaring rectification deed dtd.20/8/1983 as illegal and/or void. It is submitted that once the sale deed was executed in favour of the plaintiff as a co-owner and the same was registered under the Indian Registration Act, no change can be effected, except in accordance with the provisions of Registration Act. It is submitted that the rectification deed has been executed by the defendant No.2 deleting his name from the registered document, behind the back of the plaintiff and without his consent and without serving him any notice in that regard, and therefore, the rectification deed dtd.20/8/1983 is absolutely illegal and void ab-initio and therefore, the learned trial court ought to have decreed the suit and granted relief as prayed for and ought not to have dismissed the suit on the ground of limitation.
3.05. In support of his above submission, Mr.Kapadia, learned advocate appearing on behalf of the original plaintiff has heavily relied upon the decision of the Full Bench of the Madras High Court in the case of M/s.Latif Estate Line India Ltd. Versus Mrs. Hadeeja Ammal, reported in WA No.592 of 2009 dtd.11/2/2011.
3.06. Mr.Kapadia, learned advocate appearing on behalf of the appellants has further submitted that the learned trial court has materially erred in holding that the plaintiff has not paid sale consideration at the time of execution of the sale deed and/or registration of the sale deed relying upon the so-called contradiction as to the name of the plaintiff not written in the document as well as contradiction as to payment of amount towards sale consideration. It is submitted that whether total Rs.3000/- has been paid or Rs.2500/- is paid + Rs.1000/- paid for documents and registration charges, would not disprove the fact that the plaintiff along with defendant No.1 had purchased the suit property, since in any case payment of the amount falling towards his share is not controverted.
3.07. Mr.Kapadia, learned advocate appearing on behalf of the appellants has further submitted that both the courts below have materially erred in not appreciating the fact that the defendant No.2, in collusion with the defendant No.1, executed rectification deed and behind the back of the plaintiff deleting his name from the sale deed which was already registered before the Sub-Registrar. It is submitted that, therefore, if the rectification deed is held to be illegal and not binding to the plaintiff, the plaintiff would have right on the basis of the registered sale deed dtd.2/6/1980 in which the name of the plaintiff is mentioned as co-owner / co-purchaser and therefore, the plaintiff would be entitled to 1/2 share in the suit property.
By making above submissions, it is requested to allow the present Second Appeal.
4.00. Present Second Appeal is opposed by Mr.Dhaval Vyas, learned advocate appearing on behalf of the original defendant No.1. It is submitted that in the facts and circumstances of the case both the courts below have rightly dismissed the said suit on the ground of limitation. It is submitted that considering the fact that rectification deed was executed by the defendant No.2 on 20/8/1983 and the suit came to be filed in the year 1990 for declaration that the rectification deed dtd.20/8/1983, is not binding to the plaintiff, the same is rightly dismissed on the ground that the same is barred by law of limitation. It is submitted that in the facts and circumstances of the case the plaintiff would not be entitled to benefit of section 14 of the Limitation Act. It is submitted that in the facts and circumstances of the case, the plaintiff would not be entitled to the benefit of section 14 of the Limitation Act.
4.01. It is further submitted that as held by the learned Single Judge of this Court in the case of State of Gujarat Versus Gangaben Polabhai, reported in 2007 (2) GLR 921 as well as decision of the Hon'ble Supreme Court in the case of Jai Prakash Versus Santaram Singh, reported in 1994 (Supp.1) SCC 153 benefit of section 14 of the Limitation Act would apply in a case where subject matter of the proceedings taken / initiated before the wrong forum was related to title or decision of the property in question.
4.02. Relying upon the decision of the Hon'ble Supreme Court in the case of Ramti Devi Versus Union of India, reported in 1995 (1) SCC 198 as well as in the case of Prem Singh and others Versus Birbal and others, reported in 2006 (5) SCC 353 and in the case of Abdul Rahim and Others Versus Sk. Abdul Zabar and Others, reported in AIR 2010 S.C. 211, it is submitted that both the courts below have rightly dismissed the suit on the ground that the suit is barred by law of limitation.
4.03. Now, so far as the finding given by both the courts below with respect to non-payment of consideration by the plaintiff at the time of execution of the registered sale deed and to get his name mutated in the revenue record, it is submitted that there are finding of facts given by both the courts below which are not required to be interfered with by this Court in exercise of the powers under section 100 of the Code of Civil Procedure.
By making above submissions, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and decree passed by the learned trial court as well as the learned appellate court and also considered the evidence on record oral as well as documentary received from the record and proceedings learned trial court / learned appellate court. It is not in dispute that as such the name of the plaintiff was mentioned in the registered sale deed dtd.2/6/1980 as co-purchaser and the same was registered in the office of the Sub-Registrar. Thus, in the registered sale deed, the name of the plaintiff was mentioned as co-purchaser co-owner. That thereafter, though the sale deed dtd.2/6/1980 was executed and registered before the office of Sub-Registrar, original defendant No.2 original land owner executed rectification deed dtd.20/8/1983, deleting the name of the plaintiff from the registered sale deed dtd.2/6/1980 without the notice to the plaintiff and without informing the plaintiff and without the consent of the plaintiff and behind the back of one of the signatories to the registered sale deed dtd.2/6/1980 in whose favour the aforesaid registered sale deed dtd.2/6/1980 was executed i.e. plaintiff. When the sale deed dtd.2/6/1980 was a registered and signed by all the parties, said registered sale deed cannot be nullified by such a rectification deed executed by the original land owner, as thereafter and after executing the registered sale deed, original land owner has no right, title and/or interest in the land in question. As such after the execution of the registered sale deed dtd.2/6/1980 as such the original owner ceases to have any right, title and/or interest in the property / land, and therefore, such rectification deed dtd.20/8/1983, deleting the name of the plaintiff from the registered sale deed, is absolutely illegal, void ab-initio and nullity.
5.01. A deed for a cancellation of a sale deed either done unilaterally or bilaterally is one in relation to extinguishment of a right in immovable property of a person and creation of right in the other and therefore, even while executing the rectification deed dtd.20/8/1983, all requirements of Registration Act are required to be followed and complied with, inclusive of payment of stamp duty etc. Therefore, when the sale deed dtd.2/6/1980 was duly registered in the office of the Sub-Registrar as per the provisions of the Indian Registration Act, no change could have been effected, except in accordance with the provisions of the Indian Registration Act. The provisions of the Indian Registration Act cannot be overreached or nullified in the manner adopted by the defendant by such a rectification deed and that too without the consent of the purchaser (plaintiff) in whose favour the registered sale deed was executed and/or even without issuing notice to him. After registration, document cannot be nullified by simply executing a rectification deed in absence of reconveyance deed and behind the back of one of the signatories to the said document and without his consent and without serving him notice in that regard. Thus, as such, the execution of the rectification deed by the defendant No.2 in favour of the defendant No.1, deleting the name of the plaintiff from the registered sale deed, which was an unilateral act by the defendant No.2 (original owner), is absolutely illegal, contrary to the provisions of the Registration Act as well as illegal, void ab-initio and nullity.
5.02. In the case of M/s. Latif Estate Line India Ltd. Versus Mrs. Hadeeja Ammal (supra) the Full Bench of the Madras High Court has observed and held as under :-
(i) A deed cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration.
(ii) Once the title to the property is vested in the transferee by the sale of the property, it cannot be divested into the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of re-conveyance by the transferee in favour of the transferor.
(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor.
(iv) In the cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons.
5.03. Moreover, considering section 31 of the Specific Relief Act, the rectification deed dtd.20/8/1983, is void ab-initio. As held by the Hon'ble Supreme Court in the case of Prem Singh and others, (supra), in such a case, there is no need of a decree setting aside a document as, as such the document would be a nullity. Under the circumstances, both the courts below have materially erred in dismissing the suit on the ground that the suit is barred by law of limitation.
5.04. Now, so far as the finding given by the courts below with respect to the consideration paid by the plaintiff mentioned in the registered sale deed to the effect that the plaintiff has failed to prove that he paid consideration at the time of execution of the sale deed in his favour and thereby not granting declaration with respect to the rectification deed is not binding to plaintiff is concerned, it is to be noted that sale deed dtd. 2/6/1980 which was in favour of the plaintiff and the defendant No.1 was a sale deed registered under the provisions of the Indian Registration Act and even if the original defendant No.2 original owner had any grievance with respect to consideration, he was required to file a substantive suit. It is required to be noted at this stage and it was not the case on behalf of the defendant No.2 original land owner that he has not received any sale consideration at all. If at all there could have been any dispute with respect to consideration that was between the two co-purchasers plaintiff and the defendant No.1 and therefore, it was not open for the original defendant No.2 original owner to execute the rectification deed dtd.20/8/1983 deleting the name of the plaintiff from the registered sale deed dtd.2/6/1980.
Considering the aforesaid facts and circumstances of the case and the aforesaid finding that the rectification deed dtd.20/8/1983 executed by the original defendant No.2 original owner deleting the name of the plaintiff from the registered sale deed dtd.2/6/1980 is void ab-initio, nullity and without any authority, the decisions relied upon by the learned advocate appearing on behalf of the original defendant No.1, referred to hereinabove, would not be applicable to the facts of the case and the plaintiff ought not to have been non-suited on the ground of limitation.
6.00. In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned judgement and decree passed by the learned Civil Judge (Junior Division) in Regular Civil Suit No.124 of 1993 dtd.7/8/2002 as well as the impugned Judgement and Order passed by the learned appellate court
- learned Principal District Judge, Valsad in Regular Civil Appeal No. No.373 of 2002 dtd.21/9/2005, are hereby quashed and set aside and consequently, Regular Civil Suit No.124 of 1993 filed by the plaintiff is hereby allowed and decreed and it is declared that the rectification deed dtd.20/8/1983 executed by the original defendant No.2 is not binding to the plaintiff and the same is illegal, nullity and void ab-initio and consequently, the plaintiff would be entitled to right in the suit land on the basis of the registered sale deed dtd.2/6/1980 i.e. ¿ share. Present appeal is allowed accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik Page 15 of 15