Bombay High Court
Chandrakant @ Ashok Govind Kumar vs Faizulla Hasanali Takiya on 19 December, 2024
2024:BHC-AS:50001
901-SA-28-2011.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 28 OF 2011
Chandrakant @ Ashok Govind Kumar
since deceased through Lrs.
A Vasundhara Chandrakant @ Ashok Kumar
Age - 75 years, Occu. Household
R/at Sadguru Co-operative Housing
Society Ltd, H-28, 3rd Floor, Behind
Vardhaman Industrial Estate, Old Agra
Road, Thane (West)
RAJESHWARI
RAMESH
B Ujjwal Chandrakant @ Ashok Kumar
PILLAI
After marriage Ujjwal Nitin Korad
Digitally
signed by
RAJESHWARI
RAMESH
Age -52 years, Occu. Household
PILLAI
Date:
2024.12.19
15:41:37 Dnyanraj Plot No. 416-420A, Karmaveer
+0200
Hsg. Society, Durga Nagar, Shivajinagar,
Pune - 16
C Sharmila Chandrakant @ Ashok Kumar
After marriage Sharmila D. Jakkal
Age - 49 years, Occ. Household
R/at. 340 Sukrawar Peth,
Samachar Chowk, Solapur-413 002
1/36
::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
D Prasad Chandrakant @ Ashok Kumar
Age - 46 years, Occu. Service
R/at Sadguru Co-operative Housing
Society Ltd, H-28, 3rd Floor, Behind
Vardhaman Industrial Estate, Old Agra ... Appellants
Road, Thane (West)
Versus
1. Faizulla Hasanali Tapia
Since deceased through Legal heirs
1A. Moshina Faizulla Tapia
Age - Adult, Occ - not known
1B. Azim Faizulla Tapia
Age - Adult, Occ - not known
1C. Javel Faizulla Tapia
Age - Adult, Occ - not known
All residing at Jamshedji Rustomji &
Devidas & Jani & Merchant,
Advocate and Solictors
Crescent Chamber, 56 Tamrind Lane
Fort, Mumbai-400 023
2. Shri Jayant Govind Kumar
Age - 45 years, Occ - Business,
R/at-73, Valvan, Lonavala,
Tal - Mulshi, Dist-Pune ... Respondents
2/36
::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
Mr. S. M. Gorwadkar, Senior Advocate a/w. Mr. Yogesh Thorat i/b. Mr.
Ashok Tajane for the Appellants.
Mr. Prasad S. Dani, Senior Advocate a/w. Mr. Hrushi Narvekar with Mr.
Sameer Tapia, Ms. Siddhi Doshi and Mr. Rohan Marathe i/b. ALMT
Legal for the Respondent no.1.
CORAM: GAURI GODSE, J.
RESERVED ON: 19th SEPTEMBER 2024
PRONOUNCED ON: 19 th DECEMBER 2024
JUDGMENT:
1. This Second Appeal is preferred by the heirs and legal representatives of the original plaintiff to challenge the judgment and decree passed by the First Appellate Court. The trial court had decreed the suit declaring that the sale deed executed by Govind Dattatraya Kumar and defendant nos. 2 to 4 in favour of defendant no. 1 on 12th July 1979 was not binding on the plaintiff's share. The plaintiff and defendants nos. 2 to 4 are the sons of Govind. Respondent no.1 ("Defendant no.1") is a stranger purchaser. The trial court held that the plaintiff is entitled to partition and separate possession of his one-fifth share in the suit property. The First Appeal preferred by defendant no. 1 is allowed, and the trial court's decree is quashed and set aside, and 3/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx the suit is dismissed. Respondent no. 2 is defendant no. 3. The second appeal memo indicates that defendant nos. 2 and 4 expired and their names are deleted.
2. The Second Appeal is admitted on the following substantial questions of law vide order dated 29th November 2011 :
(i) Whether the Appellate Court completely ignored that the burden to prove that the sale deed was executed for legal necessity was on the first defendant ?
(ii) Whether the Appellate Court committed a serious error by framing point no. 3 which indicates that there was a negative burden on the appellant to prove that the sale deed was executed without any legal necessity ?
(iii) Whether the finding of the Appellate Court on point no. 3 is perverse in as much as the admission of the first respondent/first defendant was that he had not made any enquiry regarding the existence of legal necessity before execution of the sale deed ?
(iv) Whether the finding of the Appellate Court on the issue of bar of limitation is perverse ?
4/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
(v) Whether the Appellate Court could have relied upon the alleged declaration of which only a photo copy was produced and which was not exhibited in evidence ?
3. The plaintiff filed a suit for declaration that the sale deed executed by Govind and defendant nos. 2 to 4 is not binding on the area allotted to the plaintiff's share in the oral partition. The suit was thus filed for declaration and recovery of possession of the plaintiff's share. The plaintiff claimed that the northern side 1 acre 20 gunthas land out of Survey No. 55 was allotted to his share in the oral partition by his father. The plaintiff relied upon a letter dated 3 rd February 1979 issued by his father regarding the share allotted to the plaintiff. It was thus contended by the plaintiff that his father and defendants nos. 2 to 4 were not entitled to alienate the plaintiffs' share given to him at the time of oral partition.
4. Defendant no. 1 is the purchaser from the plaintiff's father, and defendant nos. 2 to 4. Defendant no. 1 claims title over the suit property based on the sale deed dated 12 th July 1979. Defendant no. 1 contended that the suit was barred by limitation. He further 5/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx contended that the sale deed was executed for legal necessity, and the reasons were set out in the document of the sale deed. Defendant no. 1 contended that for repayment of debts, household and marriage expenses of defendants nos. 2 to 3 and their other sister, the plaintiff's father had decided to sell the suit property for legal necessity.
5. No written statement was filed by the other defendants. The trial court disbelieved the plaintiffs' case of oral partition, and his contention that the northern side 1 acre 20 gunthas land was allotted to the plaintiff was also disbelieved. However, the trial court held that the sale deed was executed without any legal necessity, and thus, the sale deed would not be binding on the plaintiffs' share. Defendant no. 1's contention of being bonafide purchaser for value without notice was held against defendant no. 1. The suit was held to be within limitation, and thus, a declaration was granted that the sale deed executed in favour of defendant no. 1 would not be binding upon the plaintiffs' share. Hence, the suit was decreed by granting relief of partition and separate possession of one-fifth share to the plaintiff. The decree is set aside by the First Appellate Court in an appeal preferred by defendant no. 1. Hence the Second Appeal by the plaintiff.
6/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx Submissions on behalf of the Appellants:
6. Learned senior counsel for the appellants submitted that the sale deed in favour of defendant no. 1 did not record that it was executed for the legal necessity of the Hindu undivided joint family. However, subsequently, a declaration was signed only by Govind and the document was registered stating that the sale deed was executed for legal necessity. The sale deed was dated 12 th July 1979, and the declaration was executed and registered on 13 th July 1979. Govind expired on 15th August 1979.
7. Learned senior counsel for the appellants submitted that sometime in November 1988, the plaintiff learnt about the sale deed and the declaration executed in favour of defendant no.1. He, therefore, submitted that in view of Article 58 of The Limitation Act, 1963 the suit was filed within three years from the date of knowledge. To support his contention regarding the suit being within limitation, learned senior counsel for the appellants relied upon findings recorded by the trial court in paragraph 30 of the judgment. He submitted that the date and source of knowledge were specifically pleaded and proved by the plaintiff, which was accepted by the trial court. 7/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
8. Learned senior counsel for the appellants submitted that the First Appellate Court discussed the issue of limitation and held that the suit was not within limitation. However, the First Appellate Court further held that the plaintiff's evidence indicated that in the year 1988 itself, he learnt about the alienation of the suit property in favour of defendant no. 1; however, the plaintiff claimed to be in possession of 1 Acre 20 Gunthas of land from the northern side. Learned senior counsel for the appellants thus submitted that the appeal court ultimately held that when the plaintiff issued notice dated 22 nd October 1990 indicating his knowledge of the sale deed in the year 1979 without referring to the earlier partition and separate possession, makes the suit for declaration barred by limitation. However, the First Appellate Court held that since the prayer for possession was made, which should have been filed within twelve years would be barred by limitation. Thus, the First Appellate Court set aside the trial court's decree on the ground that the suit was barred by limitation.
9. Learned senior counsel for the appellants relied upon the letter at Exhibit 66 issued by Govind. He submits that in the said letter Govind had clearly indicated that 1 Acre 20 Gunthas land from the 8/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx northern side was allotted to the plaintiff, and Govind intended to sell the remaining portion of the land for the family's legal necessities. The said letter is not challenged by defendants nos. 2 to 4 by cross- examining him by confronting the said letter. Learned senior counsel for the appellants thus submitted that the intention of Govind (father) to create third party right for legal necessity was indicated that the same was with respect to the property save and except the 1 Acre 20 gunthas land allotted or at the most agreed to be allotted to the plaintiff.
10. Learned senior counsel for the appellants further relied upon specific pleadings on the said letter, which were not denied by the defendants. Learned senior counsel thus relied upon the findings recorded by the trial court in paragraph 16 on the letter at Exhibit 66, wherein Govind had indicated that the portion allotted to him would not be alienated for the family's legal necessity. Learned senior counsel for the appellants submitted that to prove that the sale deed executed in favour of defendant no. 1 was for legal necessity, defendant no. 1 relied upon the declaration signed and executed by Govind. He further submitted that even if the document of the declaration was exhibited, 9/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx the contents of the same were not proved. He thus submitted that even if the execution of the declaration is proved, the truth of the contents was not proved. He, therefore, submitted that the First Appellate Court could not have accepted the document of declaration for deciding the issue of legal necessity. He further submitted that the burden to prove that the sale deed in favour of defendant no. 1 was executed for legal necessity was on defendant no. 1, which was not satisfied. He submitted that the burden of proving the alienation for legal necessity would always be on the purchaser.
11. To support his submissions, learned senior counsel for the appellants relied upon the decision of this court in the case of Bank of India vs. Allibhoy Mohammed and Others 1 and the decision of the Hon'ble Apex Court in the case of Ramji Dayawala and Sons (P) Ltd vs. Invest Import2. On the point of legal necessity, learned senior counsel for the appellants relied upon findings recorded by the trial court in paragraphs 24 and 25 of the judgment. He submitted that the trial court has relied upon the decision of the Hon'ble Apex Court in the case of Radhakrishnadas and Another vs. Kaluram and others 3. He 1 2008 SCC OnLine Bom 91 2 (1981) 1 SCC 80 3 1962 SCC Online SC 152 10/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx submitted that this court, in the decision of Shrikant s/o. Trimbakrao Begade and others vs. Natthu Maroti Shivarkar (dead) through LRS Jyoti wd/o Natthu Shivarkar and others 4 relied upon the legal principles settled by the Hon'ble Apex Court . Learned senior counsel thus submitted that it is a well-established principle of law that the burden of proving that the alienation was for legal necessity is on the purchaser.
12. With reference to question no. 5, learned senior counsel for the appellants submitted that defendant no. 1 had placed reliance on the alleged declaration executed by Govind to support his contention that the alienation was for legal necessity. He submitted that only a photocopy of the declaration was produced in the trial court, which was not exhibited in evidence. Learned senior counsel for the appellants thus submitted that though the original declaration was subsequently produced before the First Appellate Court, the contents of the same were not proved by defendant no. 1. He thus submitted that the fifth question of law be answered in favour of the appellants.
13. With reference to the first, second and third questions of law on legal necessity, learned senior counsel for the appellants relied upon 4 2017 (4) Mh.L.J. 590 11/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx the cross-examination of defendant no.1. He submitted that the admission given by defendant no. 1 clearly indicates that defendant no. 1 failed to prove that alienation in his favour was for legal necessity. By referring to the findings recorded by the First Appellate Court, learned senior counsel submitted that the First Appellate Court has completely ignored that the burden to prove that the sale deed was executed for legal necessity was on the purchaser, i.e., defendant no. 1.
14. Learned senior counsel for the appellants submitted that in view of the settled legal principles, the First Appellate Court committed serious error by casting a negative burden upon the appellants to prove that the sale deed was executed without any legal necessity. Learned senior counsel for the appellants thus submitted that the findings recorded by the First Appellate Court on the point of legal necessity are perverse findings. Learned senior counsel submits that defendant no. 1 failed to produce any evidence to prove that necessary inquiry was made by defendant no. 1 regarding the existence of any legal necessity before execution of the sale deed. Learned senior counsel for the appellants thus submitted that even the 12/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx first, second and third questions of law be answered in favour of the appellants.
15. With reference to the fourth question of law on the point of limitation, learned senior counsel for the appellants submitted that the sale deed was dated 12 th July 1979 executed by Govind (father) and defendant nos. 2 to 4, i.e. plaintiff's brothers. He submits that the sale deed did not record any legal necessity of the Hindu undivided joint family. Learned senior counsel for the appellants further submitted that the declaration dated 13 th July 1979 accepting the sale deed for legal necessity was signed and executed only by Govind. He submitted that after the date of knowledge regarding the alienation, the plaintiff filed a suit on 8th July 1991. He submits that the plaintiff specifically contended that he learned about the sale deed only in the month of November 1988.
16. Learned senior counsel for the appellants submitted that the plaintiff's contention regarding the date and source of knowledge of the sale deed is specifically pleaded and supported by evidence. He thus submitted that the suit filed within three years from the date of knowledge was within the limitation in view of Article 58 of The 13/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx Limitation Act, 1963. Learned senior counsel referred to the observations of the First Appellate Court in paragraphs 46, 56 and 62 of the impugned judgment. He submitted that the First Appellate Court referred to the plaintiff's admission that in 1988, he learnt about the prior alienation of the land. Learned senior counsel for the appellants submitted that the First Appellate Court, however, ignored the letter issued by the plaintiff's father, which indicated that 1 Acre 20 Gunthas from the northern side was allotted to the plaintiff and the sale deed was intended to be executed for the remaining area for the purpose of legal necessity. Learned senior counsel submitted that the First Appellate Court had misconstrued the admission given by the plaintiff. Learned senior counsel for the appellants referred to paragraph 62 of the impugned judgment to point out the perversity in the conclusions recorded by the First Appellate Court on the point of limitation. He submitted that the suit notice indicated the date of knowledge of the sale deed executed in the year 1979; however, the First Appellate Court ignored to refer to the same as stated in the letter issued by the plaintiff's father that the area allotted to the plaintiff was not to be alienated.
14/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
17. Learned senior counsel for the appellants relied upon the findings recorded by the trial court on the point of limitation. He submitted that the trial court has rightly held that the suit was within the limitation in view of the date of knowledge as pleaded and proved by the plaintiff. The trial court has rightly construed the letter issued by the plaintiff's father and the plaintiff's contention regarding the father's intention to alienate the remaining portion, excluding that was allotted to the plaintiff. Learned senior counsel for the appellants thus submitted that the First Appellate Court held the suit to be barred by limitation on misconstruction of the facts and by recording perverse conclusions. He therefore submitted that the suit be held within limitation and the fourth question of law be answered in favour of the plaintiff.
Submissions on behalf of respondent no.1.
18. Learned senior counsel for respondent no. 1, i.e., the purchaser supported the impugned decree. He pointed out that the plaintiff's address and the address of defendant nos. 2, 3 and 4, i.e. his brothers, as mentioned by the plaintiff, are one and the same. He submits that defendants nos. 2, 3 and 4 are parties to the sale deed 15/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx executed by defendant no.1. He, therefore, submitted that the theory of the plaintiff that he was not aware of the sale deed is completely incorrect and unbelievable.
19. Learned senior counsel for respondent no. 1 pointed out the cause of action pleaded by the plaintiff in paragraph 6 of the plaint. He submitted that as per the contention of the plaintiff the date of knowledge about the sale deed was sometime in November- December 1988. However, the suit notice was issued on 23 rd October 1990 only with the intention to bring the suit within limitation. He submitted that the admissions given by the plaintiff in his cross- examination clearly show that the plaintiff, since the beginning, had knowledge about the sale deed in favour of defendant no. 1, and thus, the suit filed in the year 1991 for declaration against the sale deed of 1979 was clearly barred by limitation.
20. Learned senior counsel for respondent no. 1 submitted that the plaintiff had filed an application for amendment of the plaint; however, the same was rejected on 15th July 2000 as issues were already framed. Learned senior counsel for respondent no. 1 submitted that by way of amendment, the plaintiff sought to set out a prayer for a 16/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx declaration that the sale deed was not binding upon the plaintiff's undivided share and, in the alternative, prayed for a decree of partition and separate possession. By way of amendment, the plaintiff also alternatively prayed for partition to grant a share to the plaintiff and the sisters who were not party to the suit. Learned senior counsel for respondent no. 1 thus submitted that there was no question of granting partition and separate possession as decreed by the trial court.
21. Learned senior counsel for respondent no. 1 submitted that the suit notice did not give any reference regarding the oral partition as sought to be pleaded in the suit. The notice also did not give any reference to the date or source of knowledge about the sale deed. Learned senior counsel for respondent no. 1 submitted that it is not the plaintiff's case that he was anytime put in possession pursuant to the alleged oral partition. However, in the oral evidence, the plaintiff claims to have been in possession of the area allegedly allotted to him. Learned senior counsel for respondent no. 1 thus submitted that the First Appellate Court has rightly referred to the admissions given by the plaintiff in his cross-examination. He submitted that the sale deed in favour of defendant no. 1 refers to the loans taken by the plaintiff's 17/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx father and that the plaintiff did not take care of the family and thus, for legal necessity, the plaintiff's father had agreed to sell the suit property to defendant no. 1. He submitted that the plaintiff's brothers also signed the sale deed. He thus submitted that even if the contents of the declaration are held to be not proved, the contents of the sale deed itself indicated that it was executed for the legal necessity of the family.
22. Learned senior counsel for respondent no. 1 further relied upon averments in the plaint and examination in chief of the plaintiff where he claimed that the northern side was given to his share; however, according to the learned senior counsel for respondent no. 1, the plaintiff admitted in his cross-examination that southern side was allotted to the plaintiff's share. Learned senior counsel thus submitted that the admission given by the plaintiff indicated that the plaintiff knew the sale deed in the year 1979 itself, and he further submitted that the admission given by the plaintiff would also indicate that the sale deed was executed for legal necessity.
23. With reference to the prayers made in the plaint, learned senior counsel for respondent no. 1 submitted that the substantive claim in the suit was that the sale deed in favour of defendant no. 1 was bad in 18/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx law. However, by way of amendment, the plaintiff sought to claim alternative relief of partition and separate possession, which was, in fact, rejected by the trial court. Learned senior counsel for respondent no. 1 thus submitted that the admission given by the plaintiff further indicated that the father expired when he was living with the plaintiff. Thus, the plaintiff's case is unbelievable that he was not aware of the sale deed. Learned senior counsel for respondent no. 1 thus submitted that the First Appellate Court rightly held that the suit was barred by limitation as the admissions given by the plaintiff itself indicated that he was aware of the sale deed executed in the year 1979.
24. The issue regarding legal necessity is also clearly proved according to the learned senior counsel for respondent no. 1 in view of the admission given by the plaintiff. He submitted that the declaration was read over in the trial court at the time of evidence of the plaintiff. However, no objection was raised by the plaintiff on its contents. Learned senior counsel submitted that the plaintiff was confronted with the contents of the declaration, and no objection was raised on behalf of the plaintiff. He, therefore, submitted that there is no substance in the arguments raised on behalf of the plaintiff that the contents of the 19/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx declaration were not proved. Learned senior counsel for respondent no. 1 thus submitted that the contents of the sale deed, as well as the declaration, clearly show that the sale deed was executed for legal necessity. He further submitted that all the particulars regarding legal necessity were included in the contents of the sale deed as well as the declaration. Hence, the documents themselves were sufficient evidence to prove that the alienation in favour of defendant no. 1 was for the family's legal necessity.
25. Learned senior counsel for respondent no. 1 thus relied upon findings recorded by the First Appellate Court in paragraphs 55 and 56 of the impugned judgment on legal necessity. Learned senior counsel for respondent no. 1 thus submitted that the First Appellate Court had rightly construed the contents of the suit notice, the pleadings and the evidence in detail. He submitted that the First Appellate Court, being the last fact-finding court, has exhaustively examined the pleadings and evidence on record to hold that the sale deed was executed for the family's legal necessity. He thus submitted that in view of the First Appellate Court's findings based on a thorough examination of pleadings and evidence on record, this court in Second Appeal need 20/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx not reexamine the point of legal necessity.
26. With reference to the point of limitation, learned senior counsel for respondent no. 1 relies upon Article 5 of the Limitation Act. He submits that a period of three years has to be calculated from the date of knowledge of the sale deed. He thus submits that once the evidence indicated that the plaintiff was aware of the sale deed in the year 1979 itself, no fault can be found in the findings recorded by the First Appellate Court that the suit was barred by limitation.
27. To support his submissions, learned senior counsel for respondent no. 1 relied upon the decision of this court in the case of Royal Palms (India) Private Limited vs. Neeta Jignesh Parikh 5 and, in particular, the legal principles settled by this court in paragraph 58. Learned senior counsel for respondent no. 1 thus submitted that once the document of declaration was shown to the plaintiff in the trial court, the contents of the same cannot be disbelieved on the ground that the contents of the document were not proved. He thus submitted that once the declaration signed by Govind contained the reasons for alienation on the ground of legal necessity supported by the contents 5 2015 SCC OnLine Bom 2032 21/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx of the sale deed amounts to discharging the burden by defendant no. 1 to prove that the sale deed was executed for legal necessity. Learned senior counsel for respondent no. 1 thus submitted that the first, second, third and fifth questions of law framed on the point of legal necessity be thus answered in favour of defendant no. 1.
28. Learned senior counsel for respondent no. 1 further submitted that in view of the admission given by the plaintiff, the findings recorded by the First Appellate Court on the suit being barred by limitation cannot be faulted. He thus submits that all the questions framed by this court be thus answered in favour of defendant no. 1. Consideration of Submissions and Analysis:
29. I have carefully considered the rival submissions. Before dealing with the rival submissions, it is necessary to refer to the pleadings and evidence. The plaintiff pleaded that Govind informed him by letter dated 3rd February 1979 that the northern side 1 acre 20 gunthas land is allotted to the plaintiff's share. The said letter is produced on record at Exhibit 66; however, is not held as proved by the plaintiff. A perusal of the plaintiff's evidence indicates that Govind informed the plaintiff 22/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx about the share allotted to him and further informed that, except for the plaintiff's share, he intended to sell the remaining land. It is further pleaded by the plaintiff that sometime in November - December 1988, the plaintiff learnt that the entire land was sold to defendant no.1; hence, he made inquiries and defendant no. 1 assured to resolve the issue. Since defendant no. 1 did not take any positive steps, the plaintiff issued a legal notice dated 22 nd October 1990, to which defendant no. 1 gave evasive responses; hence, the plaintiff filed suit on 8th July 1991. Thus, the plaintiff contended that the suit filed within three years from November - December 1988 was within limitation in view of Article 58 of the Limitation Act.
30. The trial court accepted the plaintiff's evidence in support of the date of knowledge of the plaintiff about the sale deed. The trial court held that there was no evidence produced by the defendants that the plaintiff was aware of the sale of the entire land. Thus, the trial court held that the suit filed within three years from November - December 1988 was within limitation in view of Article 58 of the Limitation Act. The first appellate court reversed the trial court's findings on limitation by holding that the notice dated 22 nd October 1990 and the sequence 23/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx of events indicated that the plaintiff had knowledge about the sale deed in 1979 itself. The first appellate court held that the notice did not make reference to the oral partition and aspect of legal necessity. It is further held that the prayer for an amendment to claim partition and separate possession was rejected, and other necessary parties were not impleaded. Hence, it is held that even if prayer for possession as per oral partition can be made within 12 years, in view of the sequence of events, the suit was barred by limitation.
31. A perusal of the pleadings and evidence indicates that it is the plaintiff's case that he was informed about the area given to his share, and Govind intended to sell only the remaining land for legal necessity. The first appellate court neither recorded any reasons to disbelieve the plaintiff's case that he learnt about the sale deed in November- December 1988 nor recorded any reasons to reverse the trial court's findings on accepting the plaintiff's case about the date of knowledge. Nothing is seen on record to indicate that before November 1988, the plaintiff knew about the execution of the sale deed in 1979. The rival pleadings and the evidence would, at the most, indicate that the plaintiff was aware of Govind's intention to sell the land, excluding the 24/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx area to be given to his share. Thus, in the absence of any evidence to show the plaintiff's knowledge about the execution of the sale deed, the trial court's findings on the issue of limitation cannot be faulted. In view of the findings recorded by the trial court, based on correct appreciation of the pleadings and evidence, I do not find any substance in the arguments made by the learned senior counsel for defendant no. 1 on the plaintiff's knowledge of the execution of the sale deed.
32. The reasons recorded by the first appellate court to reverse the trial court's findings on limitation cannot be accepted as valid reasons. The first appellate court misappreciated the pleadings and evidence on record regarding the cause of action pleaded by the plaintiff. The conclusions recorded by the first appellate court on the point of limitation by referring to the sequence of events is thus a perverse finding. Thus, the trial court has rightly held that the suit filed within three years from the date of knowledge of the execution of the sale deed is well within the limitation in view of Article 58 of the Limitation Act. Hence, the fourth question of law is answered in favour of the plaintiff.
25/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
33. There is no dispute that defendant no. 1 knew that the suit land was a joint family property and the plaintiff had a share in it. The only reason to justify the exclusion of the plaintiff from the sale transaction is that the alienation was for legal necessity. It is a well-established principle of law that the burden of proving legal necessity is on the purchaser. Defendant no. 1 has relied upon the contents of the sale deed and the subsequent declaration executed by Govind to support his contention that the alienation was for legal necessity. In the trial court, only a photocopy of the declaration was produced, and it was not exhibited and proved in evidence. The trial court examined the admissions given by defendant no. 1 that he never made any inquiry regarding legal necessity and thus disbelieved the defendant no.1's oral evidence in support of his contention that the sale was for legal necessity.
34. The first appellate court discussed the oral evidence and held that the plaintiff's contention of oral partition falsified his case that he was unaware of the sale transaction. The first appellate court further held that Govind's letter relied upon by the plaintiff shows that he was aware of the alienation; however, he made no efforts to find out 26/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx whether the alienation was for the entire land or excluding the area given to him as per Govind's letter. The first appellate court referred to the plaintiff's oral evidence, where he denied the suggestions that the sale was for repayment of family loans and other family expenditures. Thus, the entire discussion by the first appellate court is on the plaintiff's evidence and the contents of the declaration executed by Govind. Though admissions by defendant no. 1 regarding not making any inquiry about the legal necessity are referred by the first appellate court, much emphasis is placed on the plaintiff's theory of oral partition and rejection of his application for an amendment to the plaint. There is a long discussion by the first appellate court on the oral evidence of the parties, but there is no conclusive finding recorded on legal necessity.
35. The first appellate court refers to defendant no. 1's prayer for permitting him production of the original registered deed of declaration executed by Govind to support his contentions that the alienation was for legal necessity. However, no valid reason is recorded for permitting the production of the document at the appellate stage as contemplated under Rule 27 of Order XLI of the Code of Civil Procedure 1908 27/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx ("CPC"). No findings are recorded for exhibiting the document and on the proof of contents by permitting supporting oral evidence. However, the learned appellate judge observed that the plaintiff, in his cross- examination, admitted that his father executed the declaration by giving details of the family debts. The learned appellate judge also referred to the plaintiff's admission that the copy of the declaration was read over to him. Thus, based on the admission given by the plaintiff, the learned appellate judge relied upon the document of declaration to hold that the alienation was for legal necessity.
36. To examine the correctness of the findings recorded by the first appellate court, I have carefully scrutinised the pleadings and oral evidence. It is the plaintiff's case that by the letter sent by his father, he was intimated by his father about his intention to alienate the land by excluding the area given to the plaintiff's share in oral partition. The letter is produced on record and marked exhibit 66; however, both courts held that the plaintiff failed to prove that the letter was issued by his father. Hence, it is held that the plaintiff failed to prove that there was oral partition. However, there is no dispute that the plaintiff was a coparcener, and he had a share in the suit land. The plaintiff has 28/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx denied that any family debts existed, warranting alienation of the family property. In his cross-examination, the plaintiff denied all the suggestions regarding alienation for legal necessity. He also denied knowledge about the alienation. A perusal of the cross-examination of the plaintiff indicates that he has maintained his contention that he was not aware of the alienation and that no family debts existed. In response to the suggestions on the execution and the contents of the declaration by Govind, the plaintiff admitted the execution of the document and stated that he was read over the declaration, which said that his father had given details of the loan amount. It is pertinent to note that there is no admission that the details given in the declaration are correct. Based on this admission, the first appellate court relied upon the contents of the declaration. Learned senior counsel for defendant no. 1 has also relied upon this admission of the plaintiff to support his submissions that the execution of the declaration and its contents were proved, which supported the theory of legal necessity.
37. It is a well-established principle of the law of evidence that the mere execution of a document would not prove the truthfulness of its contents. The Hon'ble Apex Court in the decision of Ramji Dayawala 29/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx held that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. This court in the case of Bank of India vs. Allibhoy Mohammed observed that production of document is no evidence of its authorship and that a writing needs to be accompanied by proof of some sort, admissible in evidence. This court in the decision of Om Prakash Berlia and Another vs. Unit Trust of India and Others 6 held that Sections 61 and 62 of the Indian Evidence Act, 1872 read together shows that the contents of a document must, primarily be proved by the production of the document itself for the inspection of the court. This court, further observed that the truth of the contents of the document even, prima facie, cannot be proved by merely producing the document and the contents are to be proved in the manner one would prove a relevant fact. In the present case, in view of the admission given by the plaintiff at the most execution of the document of declaration can be accepted as proved. However, in the absence of any supporting evidence, the correctness of the contents of the same cannot be treated as proved. Thus, the document of the declaration by itself is not proof of the existence of any legal necessity, in as much as 6 1983 Mh. L. J. 339 30/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx mere admission of execution of the document does not prove the correctness of the contents, unless proved by leading supporting evidence. Therefore, the legal principles of the law of evidence settled in the decisions relied upon by the learned senior counsel for the appellants squarely apply to the present case.
38. This court in the decision of Royal Palms (India) Pvt. Ltd., relied upon by the learned senior counsel for respondent no. 1, held in the facts of that case, that the document when confronted to the witness in cross-examination identified the document, hence it was rightly exhibited. Hence, the decision of this court relied upon by the learned senior counsel for defendant no. 1 is of no assistance to defendant no. 1 for relying upon the contents of the document of declaration. Hence, the fifth question of law is answered accordingly.
39. The sale deed is executed by Govind, i.e. father and defendants nos. 2 to 4, i.e. plaintiff's brothers. Govind expired after a few days of execution of the sale deed and the declaration. Defendant No. 1 did not examine any of the brothers to prove the contents of the sale deed, which, according to defendant no. 1, recorded the existence of family 31/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx debts. Defendant No. 1 relied upon the registered document styled as a declaration executed only by Govind to prove that alienation was for legal necessity. A photocopy of the declaration was produced in the trial court, but it was neither exhibited nor read in evidence. The trial court, by correctly appreciating the evidence, disbelieved the theory of alienation for legal necessity. In the absence of any evidence and based on the admissions given by defendant no. 1 regarding making no inquiry about the existence of legal necessity, the trial court disbelieved defendant no. 1's case of alienation for legal necessity and held that the sale deed would not be binding on the plaintiff's share.
40. The Hon'ble Apex Court in the decision of Radhakrishnadas held that an alienee has to establish the necessity for the transaction. This court in the decision of Shrikanth Begade held that the burden to prove legal necessity is always on the purchaser, who has to prove that necessary inquiry as to the legal necessity was conducted by the purchaser. The legal principles settled in the aforesaid decisions relied upon by the learned counsel for the appellants squarely apply to the facts of the present case.
32/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
41. In paragraph 32 of the judgment, the first appellate court relies upon the declaration and holds that it records that alienation was for legal necessity. Thereafter, the learned appellate judge records that the plaintiff's version and evidence are not trustworthy, the suit is barred by limitation, and since the suit is not for partition, the trial court's judgment is without jurisdiction and thus needs to be set aside. The conclusions recorded by the learned appellate court are inconsistent and perverse. I have already recorded reasons for holding that the correctness of the contents of the sale deed and document of declaration has not been proved. Defendant no. 1 has failed to prove alienation by legal necessity by leading cogent evidence. It is a well- established legal principle that alienation of joint hindu family property may be permissible if it is for the legal necessity and the purchaser is under obligation to discharge the burden of proof to prove the existence of legal necessity and that he has made proper and bonafide inquiry as to the existence of legal necessity. In the present case, the trial court referred to the admissions of defendant no. 1 that he had not taken any search and made no inquiry about the existence of the legal necessity. Thus, in the absence of any proof of the existence of legal necessity, it cannot be said that defendant no. 1 satisfied the test laid 33/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx down in the well-established legal principles for proof of valid alienation for legal necessity.
42. As discussed in the above paragraphs, a perusal of the reasons recorded by the first appellate court indicates that the appellate court has relied upon the pleadings and evidence of the plaintiff to record findings on legal necessity. The appellate court erred in drawing conclusions on the existence of legal necessity by finding weaknesses in the plaintiff's evidence, on whom there is no burden to prove the existence of legal necessity. The appellate court has erred by ignoring that the burden to prove the existence of legal necessity was upon defendant no. 1. Thus, the findings recorded by the appellate court on proof of the existence of legal necessity by misplacing the burden of proof on the plaintiff vitiates the judgment of the appellate court. Hence, the first, second and third questions of law are answered in favor of the appellant.
43. For the reasons and findings recorded above, I am of the considered opinion that there are no valid reasons recorded by the first appellate court to reverse the trial court's decree. Much emphasis was placed by the first appellate court on the rejection of the plaintiff's 34/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 ::: 901-SA-28-2011.docx prayer for an amendment to the plaint to seek partition and separate possession. The trial court's well-reasoned judgment is based on the well-established legal principles of a valid alienation for legal necessity. The trial court has rightly held that defendant no. 1 failed to prove that the sale deed in his favour was for legal necessity. Thus, the trial court has rightly held that the sale deed in favour of defendant no. 1 is not binding on the plaintiff's share and, therefore, correctly moulded the relief to grant partition and separate possession. The trial court's decree is not challenged by any other defendant. Hence, in view of the findings recorded above, the trial court's decree for partition and separate possession cannot be set aside at the behest of defendant no. 1.
44. Hence, the second appeal is allowed by passing the following order:
i) The judgment and decree dated 23 rd September 2010 passed by the learned Extra Joint Adhoc and Additional District Judge, Pune, in Civil Appeal No. 437 of 2006 is quashed and set aside, and Civil Appeal No. 437 of 2006 is dismissed. 35/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::
901-SA-28-2011.docx
ii) The judgment and decree dated 31 st March 2006 passed by the learned Civil Judge, Senior Division, Pune, in Special Civil Suit No. 868 of 1991, is confirmed.
[GAURI GODSE, J.] 36/36 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:53 :::