Gujarat High Court
Ramanbhai Parsottambhai vs Parsottambhai Kuberbhai on 3 May, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
RAMANBHAI PARSOTTAMBHAI PATELV/SRSOTTAMBHAI KUBERBHAI PATEL DECD.THRO'HEIRS GANGABEN & 11....Defendant(s) C/FA/4653/1998 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 4653 of 1998 WITH CIVIL APPLICATION No. 3549 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?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 ?5
Whether it is to be circulated to the civil judge ?
================================================================ RAMANBHAI PARSOTTAMBHAI PATEL & 4....Appellant(s) Versus PARSOTTAMBHAI KUBERBHAI PATEL DECD.
THRO' HEIRS GANGABEN &
11....Defendant(s) ================================================================ Appearance:
MR SHARVIL P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 5 DECESED LITIGANT, ADVOCATE for the Defendant(s) No. 1 MR HRIDAY BUCH, ADVOCATE for the Defendant(s) No. 1.1.2 - 1.1.3 , 1.3 - 1.6 , 1.8 MR MEHUL S. SHAH with MR LALJI R MOKARIA, ADVOCATE for the Defendant(s) No. 1 to 7 RULE SERVED for the Defendant(s) No. 1.1 - 1.1.1 , 1.2 , 1.7 SERVED BY AFFIX.(N) for the Defendant(s) No. 1.9 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :03/05/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal is at the instance of unsuccessful defendants in a Suit proceedings for partition and is directed against the judgment and decree dated 8th May, 1998, passed by the 6th Joint Civil Judge (Senior Division), Baroda, in Special Civil Suit No. 288 of 1996, by which the Suit filed by the original plaintiffs was allowed, and it was held that the plaintiffs Nos. 1 to 8 and the defendants Nos. 1 and 2 each had 1/10th share with respect to the suit properties as mentioned in the plaint. The learned trial Judge also held that the deed of relinquishment dated 17th September, 1982, Exh.191, executed by the plaintiff No.2 and the defendant Nos. 8 and 9, in favour of the defendant No.1, with respect to one of the suit properties, was void ab-initio, and accordingly, declared the same liable to be cancelled.
2. The appellants herein are the original defendants Nos. 1, 3, 4, 5 and 6, the respondents Nos. 1 to 8 are the original plaintiffs and the respondents Nos. 9 to 12 are also the original defendants.
The case set up by the original plaintiffs in their plaint may be summarized as under:-
2.1 The plaintiffs and the defendants are the legal heirs of one late Parsottambhai Kuberbhai Patel. The plaintiff No.1 is the widow of late Parsottambhai Kuberbhai Patel. The plaintiff Nos. 2 to 6 are the sons of late Parsottambhai Kuberbhai Patel. The plaintiffs Nos. 7 and 8 are the daughters of late Parsottambhai Kuberbhai Patel. The defendant No.1 is the elder son of late Parsottambhai Kuberbhai Patel. The defendant No.2 is the daughter of late Parsottambhai Kuberbhai Patel. The defendant No.3 is the wife of the defendant No.1. The defendant No.4 is the wife of the son of the defendant No.1. The defendant No.5 is the son of the defendant No.1.
The defendant No.6 is the younger son of the defendant No.1. The defendant No.7 is the son of the plaintiff No.2. The defendant No.8 is the wife of the plaintiff No.3. The defendant No.9 is the wife of the plaintiff No.2. Parsottambhai Kuberbhai Patel died on 16th April, 1991 at village Sundalpura, Taluka Anand, Dist. Kheda.
2.2 During the life time of late Parsottambhai Kuberbhai Patel, he was in the ownership and possession of the following properties at village Sundalpura, Taluka Anand, Dist. Kheda.
Survey Nos.
Acre - Guntha 957 3--06 1152 1--17 634/2 1--09 978 0--21 944 0--27 658/2 1--02 660 1--12 656 0--14 944/1 1--21 959 to 961 2--26 951 to 953 0--34 1190 1--22 795 0--39 796/1 1--07 659 3--39 949/4 1--02 956 1--25 634/1 1--09 1190 1--23 912 0--29 805/2 0--31 789 1--33 57/5 2--27 850-A 2--11 958, 961 3--01 971 0--28 661/5 1--20 662/5 1--12 959 to 991 1--12 962 1--15 777 / 778 / 779 1--06, 1, 0--39 951/2 0--24 805 0--31 57/5 2--27 964 1--19 965 1--23 377 / 778 2--00 978 0--12 797--1--2 0--36 661 Paiki 1--20 662 Paiki 1--13 2.3 The late Parsottambhai Kuberbhai Patel was also in ownership and possession of properties, namely plots and houses bearing property Nos. 28, 31, 41, 42, 43, 44, 45, 751, 771, 1470, 1471, 1472, 1212, 1213, 1214, 1215, 1531, 1708 and 1741, situated within the Panchayat boundaries of the village Sundalpura.
2.4 The late Parsottambhai Kuberbhai Patel was also in ownership of a plot bearing No.55, admeasuring 607 square meters and plot No.56, admeasuring 709 square meters, situated in Hari Bhakti Colony, Race Course, Baroda. The late Parsottambhai Kuberbhai Patel was also in ownership of plots Nos. 1 and 2 in Hari Bhakti Owners Lands, admeasuring 5000 sq. ft. The late Parsottambhai Kuberbhai Patel was also in ownership and possession of plots Nos. 70 and 71, admeasuring 400 sq. ft. each in Sumangal Society, Batar Road, Surat.
2.5 Amongst the properties referred to above, some of them were inherited by late Parsottambhai Kuberbhai Patel from his ancestors and few of them were purchased by Parsottambhai Kuberbhai Patel on his own. All the properties were in the exclusive ownership and possession of Parsottambhai Kuberbhai Patel.
2.6 Due to restrictions as imposed under the provisions of the Land Ceiling Act, Parsottambhai Kuberbhai Patel had kept the lands at Sundalpura village in the names of the plaintiffs and the defendants.
2.7 None of the properties were partitioned during the life time of Parsottambhai Kuberbhai Patel. After the demise of Parsottambhai Kuberbhai Patel, the defendant No.1 being the eldest son and as a head of the Hindu Undivided Family, divided the lands situated in village Sundalpura with the consent and approval of all the parties, by way of a partition deed. The partition deed to the said effect was reduced in the writings of the defendant No.1 dated 1st June, 1993. All the parties had put their signature in the partition deed.
2.8 According to the partition deed, each of the parties took possession of the land to the extent of their share with effect from 1st June, 1993 and the respective party is tilling the land as on today.
2.9 However, the properties at Baroda and Surat were not partitioned by the defendant No.1 as the administrator and head of the family after the demise of Parsottambhai Kuberbhai Patel.
2.10 The late Parsottambhai Kuberbhai Patel had purchased a plot bearing survey No.56 in Hari Bhakti Colony, Race Course area, Baroda on 9th January, 1963 in the names of Vitthalbhai Parsottambhai Patel (plaintiff No.1), Kantaben Vitthalbhai Patel (defendant No.9), Ramanbhai Parsottambhai Patel (defendant No.1), Ushaben Ramanbhai Patel (defendant No.3) and Lilaben Harmanbhai Patel (defendant No.8).
2.11 The late Parsottambhai Kuberbhai Patel had also purchased a plot bearing survey No.55 in the same Colony in the year 1974-75 in the names of Vitthalbhai Parsottambhai Patel (defendant No.2), Kantaben Vitthalbhai Patel (defendant No.9), Lilaben Pravinbhai Patel (defendant No.8) and Ramanbhai Parsottambhai Patel (defendant No.1).
2.12 The late Parsottambhai Kuberbhai Patel had also purchased plot Nos. 1 and 2 in Hari Bhakti Owners Land, near Race Course at Baroda in his own name jointly with Rajesh Ramanbhai Patel (defendant No.6), Kamleshbhai Ramanbhai Patel (defendant No.5) and Bharatbhai Vitthalbhai Patel (defendant No.7). Kamleshbhai Ramanbhai Patel (defendant No.5) and Rajesh Ramanbhai Patel (defendant No.6) are the sons of Ramanbhai Parsottambhai Patel (defendant No.1). Bharatbhai Vitthalbhai Patel (defendant No.7) is the son of Vitthalbhai Parsottambhai Patel (plaintiff No.2).
2.13 The properties referred to above had been purchased by late Parsottambhai Kuberbhai Patel from the income of the Hindu Undivided Family. The late Parsottambhai Kuberbhai Patel had also purchased a plot bearing survey No.70 and 71 in Sumangal Society, Surat, admeasuring 800 square feet in the names of Kamleshbhai Ramanbhai Patel (defendant No.5), Dinubhai Parsottambhai Patel (plaintiff No.6) and Bharatbhai Vitthalbhai Patel (defendant No.7).
2.14 The plot Nos. 55 and 56 situated in Hari Bhakti Colony, Race Course, Baroda, situated in the sim of village Jetalpur and the plot Nos. 1 and 2 in Hari Bhakti Owners Land situated in the same area had not been divided or partitioned. In the same manner, the properties belonging to Hindu Undivided Family of late Parsottambhai Kuberbhai Patel situated in the city of Surat had also not been divided or partitioned.
2.15 One residential house has also been constructed in plot No.56, situated in Hari Bhakti Colony, Race Course, Baroda, where the plaintiff No.5 and the defendant No.6 are residing with other tenants. Moreover, one residential house was also constructed in the sub-plot Nos. 1 and 2 at Hari Bhakti Owners Land, which is occupied by the tenants. The plot No.55 in Hari Bhakti Colony is an open plot.
2.16 The late Parsottambhai Kuberbhai Patel had purchased the plot No.55 in the year 1974-75 in the names of Vitthalbhai Parsottambhai Patel (plaintiff No.2), Kantaben Vitthalbhai Patel (defendant No.9), Lilaben Pravinbhai Patel (plaintiff No.8) and Ramanbhai Parsottambhai Patel (defendant No.1). The plot No.55 is also in the ownership and possession of the Hindu Undivided Family of late Parsottambhai Kuberbhai Patel.
3. It is the case of the plaintiffs that there was division of shares so far as the properties situated at village Sundalpura is concerned in the year 1993. The said partition had taken place with the consent of all the parties. At the time of the partition of the lands at village Sundalpura in the year 1993, the defendant No.1 as the head of the Hindu Undivided Family, had proposed that he would divide the other properties situated in Baroda and Surat after some period of time. However, despite requesting the defendant No.1 for effecting partition of the said properties, the defendant No.1 gave no response and sat tight over the matter. The plaintiffs had also requested the defendant No.1 to render accounts of the rent received by him so far as plot No.56 situated in Hari Bhakti Colony, Baroda and plot Nos. 1 and 2 situated in Hari Bhakti Owners Land, Baroda was concerned.
4. The defendant No.1, till the date of filing of the Suit, had not rendered any accounts of the income derived by way of rent. On 15th May, 1996, the plaintiffs had met the defendant No.1 and had requested him to undertake the exercise of partitioning the properties situated in Baroda as well as to show the accounts of the income derived from the rent. However, the defendant No.1 had informed the plaintiffs that the house constructed on the plot No.55 of Hari Bhakti Colony was not a Hindu Undivided Family property, but the said property was exclusively of the ownership of the defendant No.1 along with his wife (defendant No.2) and wife of the elder son of the defendant No.2. The defendant No.2 expressed his willingness to divide the properties amongst the legal heirs, except the property bearing plot No.55 in Hari Bhakti Colony, Baroda. The defendant No.1 also informed the plaintiffs that the property bearing plot No.55 situated in Hari Bhakti Colony, Baroda was his self-acquired property and nobody had any right over the said property. According to the plaintiffs, the late Parsottambhai Kuberbhai Patel had purchased the plot No.55 in the year 1974-75 in the names of the plaintiff No.2, the wife of the plaintiff No.2, the defendant No.9 and the defendant No.1, but despite such being the position, the defendant No.1 refused to recognize the shares of the plaintiffs over the plot No.55. The names of the plaintiff No.2 and the plaintiff No.3 were deleted from the Revenue records. The plaintiffs, after having learnt about the deletion of the names of the plaintiff No.2 and the plaintiff No.3 from the Revenue records, enquired as to on what basis the names were deleted and the enquiry revealed that the defendant No.1 had created a bogus release deed dated 17th September, 1982, and on the strength of the same, got deleted the name of the plaintiff No.2 i.e. Vitthalbhai Parsottambhai Patel, his wife Kantaben Vitthalbhai Patel and Lilaben Pravinbhai Patel, who is the wife of the plaintiff No.3.
5. The plaintiffs claimed that they had 1/10th share each in the suit properties in question and the Suit was also filed to restrain the defendants from transferring the properties, namely the plot Nos. 55 and 56 situated in Hari Bhakti Colony and Plot Nos. 1 and 2 situated in Hari Bhakti Owners Land, including plot Nos. 70 and 71 situated in Sumangal Society, Batar Road to any third party.
6. The cause of action pleaded by the plaintiffs in the Suit was that late Parsottambhai Kuberbhai Patel was in the ownership of the properties of a Hindu Undivided Family and after the death of Parsottambhai Kuberbhai Patel, the defendant No.1 being administrator and head of the Hindu Undivided Family, distributed the agricultural lands situated in village Sundalpura, but refused to recognize the shares of the plaintiffs with respect to the other properties, claiming that the defendant No.1 was the sole owner as the properties had been acquired by the defendant No.1 from his own income. Since the defendant No.1 refused to acknowledge the right, title and interest of the plaintiffs in the suit properties, the plaintiffs were left with no other option but to file a Suit for partition.
7. The plaintiffs, accordingly, prayed to hold that the agreement dated 17th September, 1982, executed by the plaintiff No.2 and the defendants Nos. 8 and 9, relinquishing their right and share in the property in favour of the defendant No.1 be declared as fraudulent and a nullity. The plaintiffs also prayed to hold that they along with the defendants Nos. 1 and 2 had 1/10th share in the properties, namely, the plot Nos. 55 and 56, situated in Hari Bhakti Colony, Race Course, Baroda and plot Nos. 1 and 2 in Hari Bhakti Owners Land, situated in the same area. The plaintiffs also prayed for a declaration that the defendants Nos. 3 to 9 had no right, title or interest over the said property and accordingly, prayed for a decree for partition.
8. The plaintiffs also prayed to declare that they along with the defendants Nos. 1 and 2 had 1/10th share in the properties, namely the plot Nos. 70 and 71, situated in Sumangal Society, Batar Road, Surat and that defendants Nos. 3 to 9 had no right, title or interest over the said properties.
9. The plaintiffs also prayed for a declaration that the Suit properties, namely, the plot Nos. 55 and 56 situated in Hari Bhakti Owners Land, situated in Baroda and the plot Nos. 70 and 71 situated in Sumangal Society, Surat were Hindu Undivided Family properties and the plaintiffs and the defendants Nos. 1 and 2 were joint owners of the said properties.
10. The plaintiffs also prayed for an injunction restraining the defendants from selling, transferring or creating any encumbrance over the Suit properties till the final disposal of the Suit. The plaintiffs also prayed for appropriate direction on the defendant No.1 to render accounts of the income of rent received by him from the Suit properties and to distribute the amount to each of the plaintiffs Nos. 1 to 8 and defendants Nods. 1 and 2 in equal share of 1/10th.
11. The averments made in the plaint referred to above were opposed by the defendants Nos. 1, 3, 4, 5 and 6, by filing a joint written statement. The case made out by the defendants Nos. 1, 3, 4, 5 and 6 in their written statement may be summarised as under.
11.1 The averments made in paragraph No.1 of the plaint were admitted to be true. The plaintiff No.7 could not have been considered to be a plaintiff because the plaintiffs Nos. 2 and 3 had obtained the signature of the plaintiff No.7 on the plaint fraudulently under the pretext of mutating her name in the Revenue records concerning the Suit properties. The defendants are no way concerned with the defendants Nos. 2, 7, 8 and 9, as they are supporting the plaintiffs and the defendants had filed a Caveat against the defendants Nos. 2, 7, 8 and 9.
11.2 It was true that late Parsottambhai Kuberbhai Patel was in ownership and possession of the properties at village Sundalpura, Tal. Anand, Dist. Kheda, but it was not true that late Parsottambhai Kuberbhai Patel was in ownership of plot bearing No.55, admeasuring 607 square meters and plot No.56 admeasuring 709 square meters situated in Hari Bhakti Colony, Race Course, Baroda.
11.3 It was also not true that late Parsottambhai Kuberbhai Patel was in ownership of the plot Nos. 1 and 2 in Hari Bhakti Owners Land admeasuring 5,000 sq. ft. It was also not true that late Parsottambhai Kuberbhai Patel was in the ownership and possession of plot Nos. 70 and 71 admeasuring 400 sq. ft. each in Sumangal Society, Batar Road, Surat. Such facts were false and fabricated and the defendants did not admit the same.
11.4 According to the defendants, the Suit properties had been purchased by them and were self-acquired properties of the defendant No.1. Due to the provisions of the Urban Land Ceiling Act and other restrictions, the defendants had entered the names of the plaintiffs, being their real brothers in good faith and trust. The late Parsottambhai Kuberbhai Patel being father of the defendant No.1, had no right, title or interest over the suit properties.
11.5 The defendant No.1 is residing at Baroda with his family since 1963 and had purchased the suit properties situated in Baroda and Surat from his self-earned income. The plaintiffs have not been able to adduce any evidence to show that the suit properties were joint family properties. The defendants Nos. 4 and 5 had purchased plot No.55 admeasuring 348 square meters situated near Race Course, Baroda. All the said transactions had been registered on 7th August, 1975, vide entry No. 4417. Initially, the land was purchased by the defendants Nos. 1 to 5 jointly along with the plaintiff No.2, the defendant No.8 and the defendant No.9, however, vide document registered with the office of the Sub-Registrar on 10th September, 1982, vide entry No. 5868, the plaintiff No.2, the defendant No.8 and the defendant No.9, relinquished their right or share in favour of the defendants, as the plaintiff No.2, the defendant No.8 and the defendant No.9 knew that the property was bought from the income of the defendant No.1 and they had no right, title or interest over the said property, but for the sake of convenience, their names were also shown as joint owners in the sale-deed. It is also the case of the defendants that at a subsequent stage, the plaintiff No.2, the defendant No.8 and the defendant No.9 also did not pay the requisite amount of their share in the property and for such reason also, they waived their right and title over the said land without receiving any amount of consideration.
11.6 The defendants from their own income had purchased the plot No.55 and also constructed a residential house on the said plot. Thus, the plot No.55 is exclusively of the ownership of the defendants which had been purchased by them from their own income. The defendants are all living in the said house. The house initially was a one storied house and subsequently, second floor was also constructed. After purchasing plot No.56, the defendants also constructed residential premises from their own income. For the purpose of construction, the defendants had withdrawn some amount from their business firm. The plaintiffs are in no way concerned with the properties in question and the defendants had at no point of time obtained any financial assistance from any of the members of the joint family. The plot Nos. 1 and 2 situated in Hari Bhakti Owners Land had also been purchased by the defendants from their own income. None of the plaintiffs, including late Parsottambhai Kuberbhai Patel had invested any amount in the suit properties, and therefore, the plaintiffs could not have claimed any share in the suit properties.
11.7 The property bearing plot No.70 situated in Sumangal Society, Surat had also been purchased by the defendants from their own income. They possessed all the records of the purchase and the details of the payments. The said property was purchased by the defendants for their son Kamleshbhai. It is also the case of the defendants that the property bearing plot No.71, situated in Sumangal Society, Surat had been purchased by their daughter-in-law. The parents of their daughter-in-law had gifted the property to their daughter and the daughter-in-law is the defendant No.4 in the Suit. The said property was in the name of the parents of the defendant No.4 and the defendants had not invested any amount. Accordingly, the plot No. 71 also could not be said to be an HUF property or an ancestral property. The defendants had left Sundalpura for good in the year 1963 and got settled at Baroda. It was true that the land situated at village Sundalpura was of the ownership and possession of late Parsottambhai Kuberbhai Patel, and such land was inherited by Parsottambhai Kuberbhai Patel from his ancestors. However, so far as the properties situated at Surat and Baroda were concerned, the father i.e. late Parsottambhai Kuberbhai Patel had no role to play in buying the same or developing the same. Since the defendant No.1 was the elder son, he used to seek advice of his father late Parsottambhai Kuberbhai Patel, and therefore, the plaintiffs remained under a wrong impression that late Parsottambhai Kuberbhai Patel had also right, title and interest over the properties at Surat and Baroda, so as to claim 1/10th share in such properties. According to the defendants, such a belief of the plaintiffs is not true and there is no evidence to establish the same. There is no documentary evidence to establish that the Suit properties situated in Baroda and Surat were ancestral properties of HUF. It was true that Shri Parsottambhai Kuberbhai Patel died on 16th April, 1991 at Sundalpura village. It was also true that the plaintiff No.1 was the widow of late Parsottambhai Kuberbhai Patel. The plaintiffs Nos. 2 to 7 are progenies of late Parsottambhai Kuberbhai Patel, and in the same way, defendants are also progenies of late Parsottambhai Kuberbhai Patel.
11.8 The defendants admitted that there was no dispute as regards the properties situated in Sundalpura. It was also true that after the death of Parsottambhai Kuberbhai Patel, the defendant No.1, in his capacity as the elder son of late Parsottambhai Kuberbhai Patel, had distributed the land situated in Sundalpura with the consent and approval of all the parties. It was also true that the partition deed to the said effect had been executed on 1st June, 1993, in the handwritings of the defendant No.1, and all the parties had given their consent and approval to the said partition deed. Thus, according to the defendants, the ancestral or the HUF properties had been divided amongst the legal heirs. There is no immovable property now left of late Parsottambhai Kuberbhai Patel, which needs to be partitioned among the legal heirs.
11.9 According to the defendants, at the time of execution of the partition deed of the land in Sundalpura, dated 1st June, 1993, none of the plaintiffs had raised any questions regarding the suit properties at Surat and Baroda. Had it been so, then the plaintiffs would have put forward their claim in the year 1993 itself so far as the suit properties were concerned.
11.10 All the parties had also taken over the possession of their respective share of the land with effect from 1st June, 1993 and are carrying on the work of cultivation as on today in their respective part of the land. By filing the Suit, the plaintiffs intend to put forward their claim over the properties which are the self-acquired properties of the defendants. The plaintiffs have also obtained the signatures of some of the co-plaintiffs by misguiding them. The defendants had purchased the plot No.55 on 6th August, 1975 from their own earned income. It has not been stated anywhere in the sale deed of the plot No.55 that the property in question was purchased jointly in the name of Parsottambhai Kuberbhai Patel, HUF. According to the sale deed, the purchase price of the plot was Rs. 21,840/- and the defendants had paid the said amount through cheques dated 7th April, 1975, 16th February, 1975 and a Demand Draft dated 7th August, 1975, from their personal account.
11.11 At the time of purchase of the said property, the defendant No.1 had discussed about the same with his father and the father had informed the defendant No.1 that if plaintiffs Nos. 3, 4 and 5 were ready to contribute their share towards the purchase of the property, then in such circumstances the share of the said plaintiffs be kept in the property. The defendants Nos. 3 and 4 thereafter, had purchased the land admeasuring 3,480 square feet in the west side of the plot No.55 from their own income. The names of plaintiffs Nos. 2, 8 and 9 were entered as joint purchasers in the sale deed, but as suggested by late Parsottambhai Kuberbhai Patel, their right in the property could have been recognized provided they had contributed for the purchase of the said property. The plaintiffs Nos. 2, 8 and 9 had not contributed a single penny and therefore, they waived their right and title over the said property by executing a relinquishment deed dated 17th September, 1982.
11.12 The defendants filed affidavits of few leading citizens of the village and they have stated on oath that the suit properties at Surat and Baroda were self-acquired properties of the defendant No.1 and his family. The signature of Shantaben Parsottambhai Patel, the plaintiff No.7, had been obtained on the Vakalatnama fraudulently by the plaintiffs Nos. 2 and 3 by misrepresenting before Shantaben that her name was to be mutated in the Revenue records. In the same manner, the signature of Lilaben Parsottambhai Patel, the plaintiff No.8 was also obtained on the Vakalatnama fraudulently by misrepresenting that the name of Lilaben was to be mutated in the Revenue records. The defendants relied on the following documentary pieces of evidence:
(i) Sale-deed of plot No.55 in Hari Bhakti Colony, Baroda.
(ii) Agreement dated 10th September, 1982, executed by the plaintiffs Nos. 2 and 8 and defendant No.9 in favour of the defendants waiving their right and title over the plot No.55 in Hari Bhakti Colony, Baroda.
(iii) Raja Chitti dated 26th April, 1996, issued by the Baroda Municipal Corporation, with regard to the plot No.55 in Hari Bhakti Colony, Baroda.
(iv) Abstract of village form No. 7/12 with regard to the plot No.55 in Hari Bhakti Colony, Baroda, reflecting the names of the defendants Nos. 1, 3, 4, 5 and 6.
(v) Abstract of village form No.8 with regard to the plot No.55 in Hari Bhakti Colony, Baroda.
(vi) Abstract of village form No.6 with regard to the plot No.55 in Hari Bhakti Colony, Baroda, bearing details as regards waiver of rights by the plaintiffs Nos. 2 and 8 and defendant No.9.
(vii) The receipts evidencing the details of amount paid to the Shroff (moneylender) towards the loan obtained by the defendants for purchasing the properties at Surat and Baroda;
(viii) Sale-deed of plot No.2 in Hari Bhakti Owners Land, Baroda, which was purchased by the defendant No.5 from his own income;
(ix) Sale-deed of plot No.1 at Hari Bhakti Owners Land, Baroda in the name of the defendants Nos. 1 and 3;
(x) The defendants have relied upon the affidavit affirmed by one Shri Vasantbhai Ramanbhai Patel, who stated on oath that defendants Nos. 1 and 3 were his parents-in-law and they had constructed the house on plot No.70 in Sumangal Society, Surat for him and the said property had been constructed by the defendants Nos. 1 and 5 from their self-earned income.
12. Relying on such documentary pieces of evidence, the defendants prayed that there was no cause of action for the plaintiffs to file the Suit and the same was liable to be dismissed.
13. The defendants Nos. 7, 8 and 9 also filed a joint written statement. The case set up by the defendants Nos. 7, 8 and 9 in their joint written statement may be summarized as under.
(i) The defendants accepted the defendant No.1 as the head and the administrator of late Parsottambhai HUF, but denied that the defendant No.1 had purchased the suit properties from his personal income. The suit properties situated in Baroda were purchased in the year 1963, and the construction thereon was completed in the year 1967. Thereafter, the properties were given on rent. The defendant No.1 completed his graduation in the year 1963 and at that point of time he had no personal income. The assertion on the part of the defendant No.1 that the properties situated in Baroda was bought by him from his personal income was not true.
(ii) The defendant No.1 had no financial capacity to purchase the land and put up construction which could be occupied by 28 tenants, immediately on completion of his graduation. The late Parsottambhai Kuberbhai Patel had purchased the land at Baroda in the year 1973 and had constructed a house in which around 28 tenants are residing. It was admitted that the defendant No.1 used to collect the rent from the tenants but at no point of time the defendant No.1 disclosed as to in what manner he was maintaining the accounts. Being the eldest son of the HUF family and living in Baroda, the defendant No.1 was looking after the properties situated in Baroda and had purchased other properties from the amount of rent which the defendant No.1 used to collect from the tenants. The defendant No.1 had opened a Savings Account with the Bank for depositing the amount of rent and in order to purchase the properties, he had withdrawn the rent amount through cheques and drafts. All the suit properties are HUF properties, but due to escalation of prices of the land, the defendant No.1 intends to usurp the properties by misusing his position as the head and the administrator of late Parsottambhai HUF. The agricultural lands were purchased between the year 1963 and 1993 at Moje: Sundalpura. The defendants Nos. 1, 3, 4, 5 and 6 were given their shares in the property. The lands situated in Baroda and Surat were not divided amongst the parties. Keeping trust on defendant No.1 being the elder brother, nobody had raised any questions in that regard. In joint Hindu families, after the demise of the father, the elder brother would assume the role of the father and that is the reason why the younger brothers and sisters never raised a finger towards the defendant No.1, but at the same time, since the defendant No.1 misused his position in the family, a Suit had to be filed. According to the well established principles of Hindu law, if the head and the administrator of Hindu Undivided Family purchases any property in his personal name, even then the said property would be considered as an HUF property and all the legal heirs of the family is entitled to claim equal rights over the HUF property. There is no dispute as regards the fact that the defendant No.1 was serving as an Executive Engineer in Baroda Municipal Corporation. The suit property i.e plot No. 55 had been purchased at the rate of Rs. 7/- per square meter. It is very difficult to believe or accept that the defendant No.1 could have bought this property from his own personal income in the year 1963 while he was studying. As a matter of fact, the properties had been purchased by late Parsottambhai Kuberbhai Patel. The family started deriving the income of rent from 1967. The agricultural lands at Sundalpura were partitioned in the year 1993. At that point of time, the defendant No.1 had represented that the other properties may not be divided as no one would suffer any loss. It was also represented by the defendant No.1 that he had good income being an Engineer in the Corporation and he had acquired large assets and would not go to the extent of depriving his brothers and sisters of their share in the suit properties. Such was the reason why in the year 1993, the other suit properties were not partitioned. The defendants denied having executed any agreement or document with respect to plot No.55, thereby relinquishing their right or share so far as plot No.55 was concerned. The defendants Nos. 8 and 9 denied their signatures in the said document. It was also denied that they had gone to the office of the Sub-Registrar for registration of such a document in favour of the defendant No.1. It was alleged that the defendants Nos. 1, 3, 4, 5 and 6 had forged the signatures of the defendants Nos. 7, 8 and 9. It was accordingly prayed to declare that the defendants Nos. 7, 8 and 9 had equal and undivided share over the properties of defendants Nos. 1, 3, 4, 5 and 6.
(iii) On the aforesaid pleadings, the trial Court framed the following issues and answered the same accordingly.
Sr.No. Issues Answer 1 Whether the plaintiffs prove that some of the suit properties were self-acquired properties of late Parsottambhai Kuberbhai Patel and some of them were purchased by late Parsottambhai Kuberbhai Patel on his own?
Affirmative 2 Whether the plaintiffs prove that late Parsottambhai Kuberbhai Patel was the owner and in possession of all the lands situated at village Sundalpura, but the same were purchased in the joint names of the plaintiffs and the defendants due to the rigors of the Land Ceiling Act and were not partitioned during the life time of late Parsottambhai Kuberbhai Patel.
Affirmative 3 Whether the plaintiffs prove that with the consent of all the parties the agricultural lands at village Sundalpura were partitioned and a deed of partition dated 1st June, 1993 was accordingly executed pursuant to which the respective parties took over the possession of their respective share?
Affirmative 4 Whether the plaintiffs prove that the properties situated in Baroda and Surat of late Parsottambhai Kuberbhai Patel were not partitioned?
Affirmative 5 Whether the plaintiffs prove that late Parsottambhai Kuberbhai Patel had purchased the properties in Baroda and Surat in his own name as well as in the names of the parties from the income of Hindu Undivided Family?
Affirmative 6 Whether the plaintiffs prove that the defendant No.1 created a false document in the form of a relinquishment deed purported to have been executed by the plaintiff No.2, plaintiff No.3, defendant No.8 and defendant No.9 with respect to plot No.55, thereby relinquishing their right in favour of the defendant No.1.
Affirmative 7 Whether the plaintiffs prove that the relinquishment deed dated 17th September, 1982 was liable to be declared as illegal and a false document?
Affirmative 8 Whether the defendant No.1 proves that the properties situated in Surat and Baroda are his self-acquired properties and with a bonafide intention, he had purchased the same in the names of his brothers?
Negative 9 Whether the defendant No.1 proves that the plaintiff No.2, defendant No.8 and defendant No.9 had on their own free will and volition executed the relinquishment deed in favour of the defendant No.1?
Negative 10 Whether the defendant No.1 proves that there had been no partition of immovable properties of late Parsottambhai Kuberbhai Patel?
Affirmative 11 Whether the plaintiffs prove that the plaintiffs Nos. 1 to 8 and defendants Nos. 1 and 2 have share in plot Nos. 55 and 56 situated in Hari Bhakti Colony, Baroda and plot Nos. 70 and 71 situated in Sumangalam Society, Surat and that the defendants Nos. 3 to 9 have no shares in the said property?
Affirmative 12 Whether the plaintiffs are entitled to get the reliefs as prayed for?
Affirmative 13 What order and decree?
As per order On behalf of the plaintiffs, the plaintiff No.5 Rajnikant Parsottambhai Patel examined himself as P.W.1, vide Exh.70. On behalf of the defendants, the defendant No.1 Ramanbhai Parsottambhai Patel examined himself vide Exh. 169.
14. Gist of the oral evidence on record:
14.1 The plaintiff No.5 reiterated the averments made in the plaint. He further deposed that the properties situated in the city of Baroda had been purchased from the income of joint Hindu Undivided Family of the late Parsottambhai Kuberbhai Patel, and in the same manner, the properties situated at Surat had also been purchased from the income of the joint Hindu Undivided Family of late Parsottambhai Kuberbhai Patel. On being shown document mark 17/1 and the accounts at page Nos. 1 to 3, he stated that the defendant No.1 had put his signature on page No.3 evidencing receipt of Rs. 91,742/- towards the price of the land and the same was in the handwritings of the defendant No.1. It also bears the signature of the defendant No.1, which was identified by the plaintiffs and was marked as Exh.137. He has also deposed about the financial assistance obtained by late Parsottambhai Kuberbhai Patel from a moneylender named Kiritkumar Champaklal for the purpose of buying the suit properties. He has deposed on being shown document mark 67/21 to be statement of account of expenses towards construction of the building upto the ground level at Surat, and the same to be in the handwritings of the defendant No.1, which was marked as Exh.159 bearing a note of receiving an amount of Rs.
15,000/- from Sundalpura. The property in Hari Bhakti Colony was purchased in the year 1963 and the same was purchased in the name of Ramanbhai Vittalbhai, Kantaben Vittalbhai and Lilaben. The said property was purchased from the income of the joint family. The property of Hari Bhakti Owners land was purchased in the year 1972 and the said property was purchased in the name of Parsottambhai Kuberbhai Patel, Kamleshbhai Ramanbhai, Rajeshbhai Ramanbhai, Bharatbhai Vittalbhai and the said property was also purchased from the income of Hindu Undivided Family and the income derived from the rent. The property bearing plot No. 55 of Hari Bhakti was purchased in the year 1975 in the names of Ramanbhai Parsottambhai, Ushaben Ramanbhai, Vittalbhai Parsottambhai, Kantaben Vittalbhai, Lilaben Pravinbhai and Urmilaben Kamleshbhai. He has also deposed that it was false to suggest on the part of the defendant No.1 that plot Nos. 55 and 56 of Hari Bhakti Colony in Baroda and the property of Hari Bhakti Owners land had been purchased from the self-earned income of the defendant No.1. He has also deposed that it was not true that with a view to avoid legal complications, the properties were purchased in the names of various members of the family. The defendant No.1 started living in Baroda from 1963, and up-till 1967 he was doing a private job in Baroda and thereafter, from 1967 to 1970, he remained at village Sundalpura and was carrying on agricultural operations. The defendant No.1 started serving in Baroda Municipal Corporation from the year 1970-71. He has also deposed that no relinquishment deed was executed in favour of the defendant No.1 with respect to plot No.55 of Hari Bhakti Colony and he had not put his signature in such relinquishment deed and the same was not binding to him.
14.2 In his cross-examination, he stated that his father late Parsottambhai Kuberbhai Patel was a resident of Sundalpura, Dist. Kheda and his occupation was agriculture. The lands of Sundalpura were of the ownership of his father, some part of the lands was inherited by his father from his grand-father and some part was purchased by his father. He has stated that his father died living behind houses, besides agricultural lands and after the demise of the father, the brothers had got together to distribute the properties of the father. There were six godowns in the properties at Sundalpura and there were houses adjoining to those properties. The father died at Sundalpura on 16th April, 1991. The lands at Sundalpura were partitioned and the possession of the respective share was handed over to each of the brothers. He denied that his father was the administrator of the family till he died. He stated that his father had purchased the properties from his own earnings and besides agriculture, his father was also engaged in the business of tobacco since 1948. He has further deposed that he had no idea about the income of Ramanbhai, the defendant No.1, because he was of a very young age. He has also deposed that Ramanbhai had agricultural income, but had no idea about the extent of the same. He also admitted that Ramanbhai was an agent of LIC, but had no idea how much Ramanbhai earned being an agent of LIC. He also had no idea as to in which year Ramanbhai got married. He further deposed that he had no knowledge as to whether his father had suffered loss of Rs. 1 lakh in the business of tobacco. He had not seen the books of accounts of business maintained by his father. He has deposed that his father had 110 vigha of agricultural land and was cultivating crops like tobacco, rice, millet etc. A question was put to this witness whether he had seen any note till that date written by his father regarding the purchase of the properties in Baroda. To the said question, he replied in the negative. He deposed that he had not found any such entry and none of his brothers knew about it. He has deposed that he had no idea whether his father paid income tax for the income of tobacco because he was not even born at that point of time. He has also deposed that his father had an account in Dena Bank at Umreth, but had no idea about the status of the said account and had also no idea whether his father had deposited any amount in a fixed deposit or not. When his father passed away, he was holding 50 shares of Narmada Fertilizers, and the price of one such share was Rs. 50/-. He has deposed that his father used to borrow money from moneylenders for the purpose of agriculture and household expenses. He has also deposed that his father's health was very poor past eight years from the time of his death. His father was also operated twice during that period and was not able to do any work. He has deposed that Ramanbhai had got married in the year 1955, and Ramanbhai had started living in Baroda with his family since 1962 and was working as a Civil Engineer. He has further deposed that he had no idea as to whether Ramanbhai was engaged in the business of construction of a bridge etc. He had no idea whether Ramanbhai used to fill up tenders of P.W.D and take up contracts. He has further deposed that plot No.56 in Baroda was purchased in the year 1963 and at that point of time, the defendant No.1 had got married, the name of the father-in-law of the defendant No.1 was Harmanbhai Patel, who was an Engineer in Ambika Mills. He has deposed that Harmanbhai had lands at his native place and his economic position was very sound. Harmanbhai had one daughter named Lilaben, the elder daughter of Harmanbhai named Ushaben got married with Ramanbhai DW-1. He has further deposed that it was not true that Harmanbhai had helped Ramanbhai financially in purchasing plot No.56. It was also not true to suggest that Harmanbhai had asked the defendant No.1 to keep her minor daughter Lilaben as one of the joint purchasers of the property and on such conditions, financial help was extended in favour of Ramanbhai. On being shown the document mark 106 pertaining to plot No.56, this witness stated that the facts mentioned in the said document were true and there was name of Lilaben, the minor daughter of Harmanbhai in the said document. He has further deposed that the plot No.56 in Hari Bhakti Colony situated in Baroda was purchased in the year 1963 and was purchased in the names of Ramanbhai, Vittalbhai, Parsottambhai, Kantaben Vittalbhai and Lilaben Prvinbhai. The said property was purchased from the income of the joint family. The property at Hari Bhakti Owners land was purchased in the year 1972 and the said property was purchased in the names of Parsottambhai, Kamlesh Ramanbhai, Rajesh Ramanbhai and Bharatbhai Vittalbhai. This property was also purchased from the income of the Hindu Undivided Family and more particularly from the income of the rent. The property bearing plot No.45 of Hari Bhakti Colony was purchased in the year 1975 in the names of Ramanbhai, Ushaben Ramanbhai, Vittalbhai, Kantaben Vittalbhai, Lilaben Pravinbhai and Urmilaben Kamleshbhai. He has further deposed that the property bearing the plot No.70 and 71 in Sumangal Society was purchased in the year 1980-81 in the names of Urmilaben Vittalbhai, Dinubhai Parsottambhai and was purchased from the income of rent and the income of the joint family. He deposed that there were in all around 42 tenants in the property of Owners land and Bungalow No.56 in Baroda city and the defendant No.1 collected the rent of such properties right from the inception. He has denied that the plot Nos. 55 and 56 of Hari Bhakti Colony in Baroda city and the property of Owners land was purchased by the defendant No.1 from his own income.
14.3 On behalf of the defendants, the defendant No.1 Ramanbhai Parsottambhai Patel entered the witness box and examined himself vide Exh.139. In his evidence, he deposed that he lived with his father at Sundalpura. He further deposed that he himself along with his father used to cultivate the agricultural land. They had around 60 vighas of land and the same were non-irrigated lands. When his father passed away, the total holding was around 106 vighas of land, out of which a part of the same was irrigated land. Out of 60 vighas of land initially held, some parts were purchased by him. He has deposed that his father purchased the agricultural lands in a span of around 30 years till 1985.
14.4 All the agricultural lands were at Sundalpura and finance was availed of from a shroff (moneylender). When the lands were purchased during the year 1985, the Land Ceiling Limitation was in force. His father used to take care of his lands and cultivate crops of millet, pulse and tobacco. He has deposed that his father had one wife, six sons and three daughters and the financial condition of his father was not sound. His father educated all his children from the income which was derived from the agricultural operations and the defendant No.1 got himself admitted in a college for Advanced Education on his own. His father got all the daughters also married by borrowing money from shroffs on interest. There were four clay brick houses in the name of his grand-father, out of four buildings of clay, his father got two buildings constructed between 1961 and 1985 and the other two parts were kept as they were. His father got two buildings constructed in Sundalpura between 1961 and 1985 from the agricultural income and some of the amount was borrowed. His father used to borrow money from one Soma Lallu. He has further deposed that if any daughter or son-in-law was in need of money, his father used to help them by borrowing money from shroffs and he used to repay it with great difficulty, as a result of which his father had no savings.
14.5 He has deposed that there was no joint Hindu Undivided Family of his father and brothers and the same was not there even as on that date. He got married in the year 1985 while studying in First Year Science. Thereafter, he got himself admitted in an Engineering College at Vidyanagar and used to give part-time tuitions. He also received scholarships as he was very brilliant in studies. He has deposed that by qualifications, he was B.E Civil and he joined service in Western India Construction Company. He lived at Baroda permanently with his wife and children since 1962. Vittalbhai (plaintiff No.2) lived at Baroda with his family since 1964, in a separate building. His house was in Ladwada area. In the year 1972, Bhailalbhai Parsottambhai (plaintiff No.2) shifted to Anand along with his wife and children and in the year 1976, Rajnikantbhai Parsottambhai (plaintiff No.5) went to live at Borsad with his wife and children. Pravinbhai (plaintiff No.3) went to live at Sundalpura with his family. Dinubhai (plaintiff No.6) used to reside separately with his wife and children since 1978. He has deposed that each of the brothers had a job and none had any joint family income. He has deposed that his father was not in a position to help any of his children financially. He produced an abstract of 7/12 record relating to mortgage of land at Kotmi-Dhola village and original receipt for renovation in his building, duly signed by Natubhai Zaverbhai. The same was exhibited and marked as Exh.176. He has deposed that he got some sanitary work done in his buildings and in support of the same, he produced original receipts. They were all exhibited and marked as Exh. Nos. 174 to 176. He has deposed that he was a Chief Contractor of P.W.D and had a good income. He was also an agent of LIC. He deposed that he purchased plot No.56 in Hari Bhakti Colony, Baroda in the year 1963 from his own income with the help of his father-in-law. His father-in-law had an unmarried daughter named Lilaben, who got married with Pravinbhai (plaintiff No.3). Lilaben was also made one of the co-owners of the said property. All the affairs of Lilaben was being managed by his father-in-law Harmanbhai. He produced the sale-deed in that regard. Till 1968, there was construction on the plot upto 1st floor and in the year 1968, the property was divided amongst its co-owners. He has deposed that Vittalbhai, Ushaben, Kantaben, Lilaben (defendant No.8) all had put their signatures. He has deposed that at the time when the document was registered in the office of the Sub-Registrar, Lilaben had attained majority and had got married with his brother Pravinbhai. An agreement to sale was executed regarding terrace on the third floor of the said building, dated 8th December, 1969 and a part of the terrace was sold to Dinubhai (plaintiff No.6), Rajnikantbhai (plaintiff No.5), Pravinbhai (plaintiff No.3) and Bhailalbhai (plaintiff No.4) by a document which contained signatures of himself, Vittalbhai, Kantaben and Lilaben as sellers. He has deposed that not a single penny was invested by his father and the family was no way concerned with the said property. He has further deposed that plot No.56 was of his ownership and was running in his name in the city survey records. He has deposed that he was collecting rent from the tenants. He had been occupying this premises past couple of years and none had raised any objection in that regard. He further deposed that in the year 1972, he purchased Hari Bhakti Owners land No.1 for a sale consideration of Rs. 11,709/-. He produced the original document. The purchase was in the names of Kamleshbhai, Rajeshbhai, Parsottambhai and Bhiran. The construction was completed in the year 1974. All the four joint owners contributed towards the cost of construction and thereafter, the property was divided between the four joint owners vide distribution deed, which was produced by him during the course of his deposition. He has further deposed that it was not true that the property of Owners land No.1 was bought from the income of his father. Owners land No.1 was divided between the co-owners and after division, part of the terrace was sold off to Urmilaben i.e. wife of his son Kamlesh vide registered sale-deed, which is Exh.134. The said document contained his signature as guardian of Kamlesh and Rajesh and his father Parsottambhai and Bharatbhai Vittalbhai had signed as sellers. He has further deposed that the plot No.56 in Hari Bhakti Colony was purchased by him in the year 1975 and he produced the original document i.e. sale-deed, which was marked as Exh.105. He has further deposed that the joint owners of plot No.55 executed a release deed dated 17th September, 1982 in his favour and the said original release deed was produced by him bearing signatures of Vittalbhai Parsottambhai, Kantaben Vittalbhai and Lilaben Pravinbhai. The said release deed also contained his signature and the document was executed in the presence of the Sub Registrar. He has deposed that none of the joint owners were ready to pay any amount towards their share and that was the reason why decided to give up their rights in the said plot by executing such a release deed. He has deposed that he thereafter started construction in the year 1976 and the plot was running in the name of his son and wife. The construction permission was also in the name of his son and his wife and he produced such raja-chitti. He has deposed that the property of Owners land No.2 was a building already constructed consisting of ground floor plus first floor. Each person shared one room and a kitchen in the said building. The ground floor was purchased by Kamlesh Ramanbhai in the year 1979 for a sale consideration of Rs. 10,000/- and he produced the original document in that regard. He purchased it from one Hiralal. He has deposed that he himself and Kamlesh together made the payment to Hiralal. He has further deposed that he had not borrowed any amount from his father to purchase the property of Owners land No.2. Neither his father, nor any other member of the family had any right, title or interest over the said property. He has deposed that his son was studying in an Engineering College at Surat and therefore, he used to often visit Surat. He gave the building on rent as his son settled in Surat and took up a job of Engineering Manager in a textile company. His son was carrying on business of selling sarees. They purchased bungalow No.71 in Sumangal Society, Surat. He produced documents in that regard. He deposed that even at that point of time no financial help was obtained from his father. The amount was paid by cheque bearing No.A/344260 drawn on Bank of Baroda dated 28th August, 1981. The said cheque was drawn by his son Kamlesh and the building was constructed during the year 1981-82. The construction bills were produced by this witness, which are in his name and were exhibited as Exh. 195 to 196. He has deposed that Urmilaben was the owner of the building and nobody had any share in the said property. He has deposed that he had borrowed money from his P.F Account and loan was obtained from a Policy of LIC. He had also borrowed some amount from Chandrakant Dahyabhai and Jethabhai Jagjivanbhai from whom his father also used to borrow money. He has deposed that according to the requirements, they used to borrow money from Soma Lallu in his own name and his father had a separate account and he used to borrow money to meet with his own requirements. He has deposed that he used to pay the amount from his own income derived from the property. He has deposed that in the past he had borrowed money from Chhanabhai Hirabhai, Jethabhai Jagjivanbhai, Somabhai Lallubhai and Punambhai Jetabhai. In the year 1965, he had obtained a loan of Rs. 20,000/- from his father and repaid the said amount to his father within two months thereafter. He had borrowed the amount for the purpose of construction in the year 1968. He deposed that his father had purchased 40 vighas of land in the name of his son in the year 1975, bearing survey No. 805. He deposed that he had no idea as to what was his salary in the year 1971 while serving with the Baroda Municipal Corporation. In the year 1974, he was drawing a monthly salary of Rs. 748/- and the last pay drawn at the time of retirement was around Rs. 11,500/-. He has deposed that he used to collect rent of plot No.56 of Owners land and from the said amount, Owners land No.2 was purchased in the name of Kamlesh and Rajesh. He started filing his Income Tax Return since 1972. He gave few details of the tenants occupying plot No.56.
15. On the strength of the pleadings of the respective parties, the oral evidence on record as well as the documentary evidences adduced by both the sides, the learned trial Judge allowed the Suit holding that the properties were bought from the income of the joint family and that each of the plaintiffs had 1/10th share in the properties mentioned in the schedule to the plaint. While allowing the Suit, the learned trial Judge also declared the relinquishment deed dated 17th September, 1982, Exh.191, to have been obtained by fraud and accordingly, cancelled the same.
16. Being dissatisfied with the judgment and decree passed by the learned trial Judge, the appellants-original defendants Nos. 1, 3, 4, 5 and 6 have come up with the present appeal.
17. Submissions on behalf of the appellants:
17.1 Mr. Sharvil P. Majmudar, the learned counsel appearing for the appellants very laboriously submitted that all the six suit properties were acquired by his client i.e. Ramanbhai from his own income and at no point of time there was any joint Hindu Undivided Family of his father, the late Parsottambhai Kuberbhai Patel. He further submitted that there was no question of any partition of the properties at Surat and Baroda as they were self-acquired properties of his client and only with a bonafide intention and for the sake of convenience, the names of the original plaintiffs were included in the sale-deed.
17.2 He submitted that on the demise of late Parsottambhai, the property at Sundalpura was partitioned and therefore, no decree of partition could have been granted by the learned Civil Judge with respect to the other properties. In short, the sum and substance of Mr. Majmudar's submission is that if the other properties were joint family properties purchased from the income of the joint family, then the same would have also been partitioned in the year 1993 itself when the agricultural lands at village Sundalpura were partitioned.
The fact that at that point of time none of the plaintiffs raised any issues as regards the other properties, more particularly the suit properties itself goes to show that the plaintiffs knew that they had no right, title or interest over such properties.
17.3 According to Mr. Majmudar, the Revenue records of the suit properties also bear the name of the defendants which the Court below have failed to consider. In addition to that, Mr. Majmudar submitted that all the original documents relating to the suit properties and other evidences like sale-deeds etc. were produced by his client during the course of his oral evidence suggestive of the fact that the others have no right of any nature in the suit properties.
17.4 Mr. Majmudar very strenuously urged before us that the Court below failed to consider a very important question of fact that there is not an iota of evidence to show that late Parsottambhai had the financial capacity to acquire the suit properties. On the contrary, the evidence on record suggests that he was an ordinary farmer and was financially very weak. In such circumstances, he could not have contributed anything for acquiring the properties in question.
17.5 Mr. Majmudar submitted that none of the plaintiffs except plaintiff No.5 Rajnikant entered the witness box to establish their case. According to Mr. Majmudar, the oral evidence of the plaintiff No.5 Rajnikant is of no significance because it is very evident from his evidence that he was a minor at the time when most of the transactions had taken place and he has admitted that he had no personal knowledge about any of the transactions. Such being the position, no reliance could have been placed on the evidence of such a witness and the Court below ought to have held that the plaintiffs failed to prove that it was a joint family property.
17.6 Mr. Majmudar submitted that no evidentiary value could have been attached to the affidavits filed by the other plaintiffs and such affidavits would not constitute legal evidence. Mr. Majmudar submitted that his client Ramanbhai had a brilliant academic career and was serving as a chief contractor of P.W.D in Baroda Municipal Corporation and was also an agent of LIC. His client had good income at a young age to acquire the properties in question.
17.7 Mr. Majmudar submitted that the learned trial Judge ought not to have relied upon any books of account produced by the original plaintiffs containing the purported handwritings of his client, as according to Mr. Majmudar, no books of account were ever maintained by Ramanbhai or his father late Parsottambhai and all through out his client disputed about the hand-writings on such books of account. Mr. Majmudar submitted that his client till this date has been collecting the rent from the disputed properties and has regularly deposited the same in the Court pursuant to the orders passed by this Court at the time of the admission of the appeal. Mr. Majmudar submitted that the learned trial Judge has erred in not seeking opinion of the hand-writing expert, more particularly when his client strongly disputed his signature on the books of account produced by the plaintiffs. Mr. Majmudar submitted that a Court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writing, but it may not be safe for the Court to record a finding about a person's writing in a certain document, merely on the basis of comparison. According to Mr. Majmudar, the learned trial Judge failed to comply with the provisions of Section 73 of the Evidence Act. Mr. Majmudar laid stress on the fact that the sisters Shantaben and Kantaben chose not to contest the litigation bears eloquent testimony to the fact that there was no unanimity amongst the plaintiffs and only one of the brothers, namely Rajnikant entered the witness box. Mr. Majmudar submitted that the learned trial Judge committed a serious error in disbelieving the release deed Exh.191 dated 17th September, 1982, executed by the plaintiff No.2, the defendants Nos. 8 and 9 in favour of his client. Mr. Majmudar lastly submitted that it was not open for the respondents to raise the plea of benami, in view of the prohibition contained under the Benami Transactions Act. In such circumstances referred to above, Mr. Majmudar prays to quash and set aside the judgment and decree passed by the Court below and thereby allow the appeal.
18. Submissions on behalf of the respondents:
18.1 Mr. Mehul S. Shah, the learned counsel appearing for the respondents-original plaintiffs submitted that on overall appreciation and evaluation of the evidence on record, the learned trial Judge rightly decreed the suit, and no error, not to speak of any error of law, could be said to have been committed by the Court below so as to disturb the judgment and decree impugned. Mr. Shah submitted that late Parsottambhai had huge parcels of land in village Sundalpura and was quite a well- to-do farmer, who was engaged in the agricultural activity of producing tobacco. Late Parsottambhai owned around 110 vighas (approximately 70 acres) of land, which could be termed as quite substantial and had enough resources to not only settle all his children in life, but also had the capacity to buy other properties.
Mr. Shah submitted that once there is a nucleus from which properties could have been purchased by his father, that the burden to prove otherwise would shift on the party, in this case the defendant No.1, who asserts the properties to be his self-acquired properties. Mr. Shah submitted that under Section 73 of the Evidence Act, it was open for the learned trial Judge to compare the signature/hand-writing contained in the document including Exh.153. Mr. Shah submitted that it was a long standing family tradition to buy lands in the name of son, daughter as well as the children and grand-children in the joint family of late Parsottambhai and such agricultural lands were bought accordingly in the past. Mr. Shah vehemently submitted that the defendant No.1 Ramanbhai could never have managed to generate necessary funds to buy all the properties from his own income, as considering the period during which the properties were bought, it was impossible to believe that he had the necessary funds to buy all the properties, more particularly in view of his own admission that he was earning a sum of Rs. 748/- per month in the year 1974, while serving as an Engineer with the Baroda Municipal Corporation. According to Mr. Shah, none of the transactions were benami transactions and the learned trial Judge rightly rejected the defence of the present appellant, as it was a family tradition to buy properties in different names.
18.2 Mr. Shah very seriously alleged that the partition deed Exhibit 136 of Sundalpura properties was tampered with after the record and proceedings came to be transmitted to this Court. According to Mr. Shah, originally it was produced at mark 69/18/1 and the same was in respect of agricultural lands only which has also been recorded by the Court below in its judgment, but in the record available as on today, the houses have also been added to the list in the said document. It is alleged that there are two headings given at two different pages of the alleged partition deed and there is no continuity of paragraph numbers, and even the mentioning of the date of the cause list is on the top of the said document, which is a practice very much unknown, and in fact there was no date of "16th December" in the Rojkam of the Suit. Mr. Shah strenuously contended that such conduct on the part of the defendant No.1 disentitles him to seek any equitable relief. Mr. Shah further submitted that the defendant No.1 Ramanbhai used to borrow money from his father for purchasing suit properties as reflected through various documents such as Exhibits 137 to 146 in the form of books and statements, and also letters by the defendant No.1 at Exhibits 147, 148 and 158.
18.3 Mr. Shah submitted that the defence of the defendant No.1 that he had purchased the properties from the streedhan of his wife and also with the financial aid of his father-in-law is not at all substantiated by any reliable evidence. After purchase of the plot No.56, the claim of the defendant No.1 that he had bought the other properties from the rental income is also unbelievable as the rent in those days was very meager and one could not buy a property from the income of such a meager rent. As regards the plot No.55, vide Exhibit 153, an amount of Rs. 10,000/- was transmitted by the father and although the defendant No.1 seeks to rely on Exhibit 109 i.e. the Bank's statement of April, 1974, evidencing payment to C.S. Shah, the cheques referred to in Exh. 105 i.e. the sale-deed are of 7th April, 1975 and 16th February, 1975, and even a perusal of the letters Exhibits 185 and 186 addressed by the defendant No.1 to C.S. Shah would reveal that the purchase price was not finalized at least till July, 1974. Thus, according to Mr. Shah, there are discrepancies as regards the actual date of payment of consideration so far as the sale-deed Exhibit 105 is concerned.
18.4 Mr. Shah vehemently submitted that both the sisters have filed affidavits stating on oath that they were never present before the Sub-Registrar at any point of time so far as the registration of the release deed being Exh. 191 was concerned. Mr. Shah submitted that the Court below rightly came to the conclusion that Exh. 191 deserves to be cancelled. As regards the Owner's land plot No.1, the same was purchased in the name of the father and the defendants Nos. 5, 6 and 7, who were minors at that point of time and the distribution deed thereafter at Exh. 184 was only for the convenience as recorded in the terms of the deed. As regards the Owner's land plot No.2, according to Mr. Shah, the evidence would suggest that it originally belonged to one Hiralal Dhobi, who was one of the tenants of the plot No.56, and as he could not pay rent thereof, in lieu thereof, the plot No.2 was sold. Mr. Shah lastly submitted that the plot No. 70 and 71 in Surat, although are asserted to have been purchased in the year 1981, the defendant No.1 has relied on documents Exh. 195 and 196 for showing payment in the year 1984. There is no document on record evidencing the title of plot No.70, and with respect to plot No.71, there is just a certificate from the Co-operative Society produced on record, which in any case, is not in the name of the defendant No.1. In such circumstance referred to above, Mr. Shah prays for dismissal of this appeal.
19. At this stage, for better adjudication of the appeal in hand, we would like to give a table indicating the description of the properties, names of the purchasers, the consideration paid, the name of the seller, the date of execution of the sale-deed and the exhibit numbers.
Sr. No. Description of Property Purchased by whom Consideration paid Purchased from whom Date of execution of sale-deed Exh.
No. 1 Plot No. 56 Haribhakti Colony, Racecourse, Vadodara Area : - 7400 Sq.Ft.
1. Patel Ramanbhai Parshottambhai
2.Patel Ushaben Ramanbhai
3. Patel Vitthalbhai Parshottambhai
4.Patel Kantaben Vitthalbhai
5. Patel Lilaben Harmanbhai (guardian of minor Bhaikhabhai Harmanbhai Patel) Rs.
7,400/- (paid by cash) Mr. Navnitlal Balkrishnabhai 09/01/63 106 2 Plot No. 55 Haribhakti colony, Racecourse, Vadodara.
Total Area :
9720Sq.Ft (A)
1.
Patel Kamleshbhai Ramanbhai
2. Patel Urmilaben Kamleshbhai (Holding 3480 Sq.Ft. ) (B)
1.Patel Ramanbhai Parshottambhai
2. Patel Ushaben Ramanbhai
3. Patel Vitthalbhai Parshottambhai
4. Patel Kantaben vitthalbhai
5. Patel Lilaben Pravinbhai (Holding 3240 Sq.Ft.) Rs.
21,840/-
(Rs.
10,000 by cheque & Rs. 5,000 by Cheque from the account of Ramanbhai patel, Rs. 6840 by draft of Ramanbhai Mr. Chandrava 07/08/75 105 3 Owners land Plot No. 1 Harbhakti Colony, Racecourse, Vadodara Area : 3609 Sq. Ft
1. Patel Kamleshbhai Ramanbhai
2. Patel Rajesh Ramabhai
3. Patel Parshottambhai Kuberbhai
4. Patel Bhartkumar Vitthalbhai Rs.
11,709/-
(2000 paid by cheque of BOB from the account of Ramanbhai Patel & 9709 paid by cash) Mr. Balkrishna Ratanla Haribhakti 21/08/72 107 4 Owners land plot No. 2 Harbhakti extension colony, Racecourse raod, Vadodara.
Area : 0-1-70 Sq.mt.
(3 different sale sale deeds for each purchaser) 1 Patel Kamlesh Ramanbhai
2. Patel Rajeshbhai Ramanbhai 3.1 Patel Ramanbhai Parshottambhai 3.2 Patel Ushaben Rs.
10,000/- (By cash) Rs.
10,000/- (By Cash) Rs.
1000/- (By cash) Mr. Hiralal Chandulal Dhobi 23/07/79 23/07/79 23/07/79 165 166 193 5 Plot No. 70 & 71 respt.
Shri Sumangal Co-op Housing Society Ltd. Surat.
Area 400 Sq.Ft. each Patel Dinubhai Parshottambhai (Plot.
70) Patel Urmilaben vittalbhai (Daughter of vittalbhai Rambhai) (Plot No. 71) Rs.
2751 for each plot.
(paid by Kamleshbhai Ramanbhai by cheque of Bank of Baroda) President of Sumangal Society 28/08/81 85/ 21 Sr. No. Description of Property Name Share Exh.
No. Date of execution of sale-deed 1 Plot No. 56 Harbhakti Colony, Racecourse Vadodara.
Area : 7400 Sq.Ft.
1. Ramanbhai Parshottambhai Patel
2. Ushaben Ramanbhai Patel
3. Vittalbhai Parshottambhai Patel
4. Kantaben Vittalben Patel
5. Lilaben Pravinbhai (Daughter of Harmanbhai) Ground Floor Area 1667 Sq.Mt. First Floor Area 1667 Sq.Mt. Ground Floor Area 986 Sq.Mt. First Floor Area 1025 Sq.Mt. Ground Floor & first First Floor Area 1222 Sq.Ft.
17914/05/68 2 Owners land plot No. Haribhakti Colony, Racecourse, Vadodara Area 3609 Sq. Ft.
1. Patel Kamlesh Bhai
2. Patel Parshottambhai Kuberbhai
3. Patel Rajeshbhai Ramanbhai
4. Patel Bharatbhai Vittalbhai Ground Floor Area 900 Sq.Ft.
Ground Floor Area 575 Sq.Ft.
First Floor Area 900 Sq. Ft.
First Floor Area 575 Sq.Ft.
18413/06/74 Sr. No. Description of Property Name of the Purchaser Respective Shares of Purchaser Price Exh.
No. 1 Terrace of First Floor of Plot NO. 56 Haribhakti colony, Racecourse Vadodara.
Date of Purchase : - 08/12/69 (4 sale deeds in favour of different persons.
1. Dinubhai Parshottambhai Patel
2. Parvinbhai Parshottambhai Patel
3.Rajnikant Parshottambhai Patel
4. Bhailalbhai Parshottambhai Patel First Floor Terrace Area 650 Sq.Ft.
First Floor Terrace Area 430 Sq.Ft.
First Floor Terrace Area 425Sq.Ft.
First Floor Terrace Area 450 Sq.Ft.
Rs.
600/-
Rs.
325/-
Rs.
375/-
Rs.
350/-
180 183 182 181 2Terrace of Owners land Plot NO. 1 Haribhakti Colony, Racecourse, Vadodara.
Urmilaben Kamelshbhai Patel Rs.
1500/-
16420. The relevant documentary evidences relied upon by the plaintiffs are as under:-
Sr. No. Particular of document Exh.
No. 1 Counter foils or Rs. 10,000/- fo Chkshi Soma Lallu to Ramanbhai Patel for Plot NO. 55 153 2 Counter foils by Vittalbhai (Plaintiff No. 2) of Rs. 9,000/-155 3
Counter foils by Pravinbhai V. Patel (Plaintiff No. 3) of Rs. 8,000/-154
21. The relevant documentary evidences relied upon by the defendants are as under:-
Sr. No. Particulars of document Exh.
No. 1 Balance-sheet of income and expenditure towards the properties purchased & developed by the Ramanbhai P. Patel (Defendant No. 1) 37 2 Particulars regarding the education, experience in service and agriculture & construction business of Ramanbhai P. Patel (Defendant No. 1) 38 3 Receipts of borrowed money from C.D. Patel (Private Money Lender) by Ramanbhai P. Patel 197, 198, 199 4 Bank Statement of Payment for Plot No. 55 by cheque to C.S. Shah by Ramanbhai Patel (defendant No. 1) 109 5 Letter from Collector ULC, Bhadra Kacheri, Vadodara for granting to execute relinquish-deed in favour of Ramanbhai Parshottambhai and Ushaben Ramanbhai Patel for plot No. 55 Haribhakti Colony, Vadodara.110 6
Order of Dy. Collector in RTS Case No. 32/96 relating to plot No. 55, Haribhaikti Colony, Vadodara.192 7
Property card of Owners land Plot. 1, 2, 55 & 56 situated at Vodadara.111
to 117 8 Raja chittchi No. 26/96-97 ward NO. 6 from Vadodara Muncipal Corporation for the purpose of construction by Ramanbhai P. Patel (Defendant No. 1) 133 9 Insurance agent License No. L41316 of Ramanbhai P. Patel (Defendant No. 10 131 10 Correspondence to C.S. Shah relating to purchasing of plot NO. 55 at Haribhakti Colony 84 11 Letters showing correspondence with S.C. Shah 12 Receipts of payment of amount Rs. 9004 by cheque towards the plot No. 71 & 70 Sumangal Society, Surat from the amount of Kamleshbhai R. Patel (Defendant No. 3) 194
22. Having heard the learned counsel for the respective parties and having gone through the materials on record, in our opinion, the following questions fall for our consideration in this appeal.
(a) While the plaintiffs claim that all the immovable properties are joint family properties, having acquired all of them by virtue of the joint family nucleus, the defendants assert that the properties standing in their respective names belong to them exclusively. Thus, the first question is whether there was any Hindu Undivided Family of late Parsottambhai Kuberbhai Patel?
(b) Whether the plaintiffs had the benefit of the joint family property or nucleus from which they could have acquired several properties?
(c) Whether the Court below was justified in holding that the release deed Exhibit 191 dated 17th September, 1982, executed by the plaintiff No.2, the defendant No.8 and the defendant No.9 jointly in favour of the defendant No.1 was a nullity and liable to be cancelled, in the absence of the plaintiff No.2, the defendant No.8 and the defendant No.9 failing to lead any evidence in that regard, and also by not entering into the witness box to examine themselves on this particular issue?
(d) Whether there is any evidence on record to show that the lands owned by late Parsottambhai at Sundalpura was yielding any income, or any nucleus was available with the aid whereof the other suit properties mentioned in the plaint could be purchased by late Parsottambhai as a joint family?
23. Before adverting to the questions referred to above, we would also like to refer to few relevant principles of Hindu law.
Hindu Joint Family A joint Hindu family consists of male members descended lineally from a common male ancestor together with their mother, wives or widows and unmarried daughters bound together by the fundamental principles of family relationship. This body is a creature of law and cannot be created by act of the parties. Coparcenery is a smaller body than a joint family and consists of only male members of family. All members of the coparcenery are undoubtedly members of the family but all members of the joint family are not necessarily coparceners. The property which belongs to the coparcenery under the Hindu law can be divided into two heads (i) coparcenery property (ii) separate property. Coparcenery property is again divisible into (i) ancestral property and (ii) joint family property which is not ancestral. This latter kind of property consists of property which is acquired with the aid or assistance of joint family property or without the aid or assistance of the joint family property provided if it is acquired jointly by two or more coparceners as a joint property. One of the main incidents of joint family property is that there is community of interest and unity of possession between all the members of the joint family, as a result thereof every member is entitled to joint possession and enjoyment of the property. The unity of possession, which is one of the incidents of joint Hindu family property denotes that the possession of the one coparcener is possession of all coparceners. If one coparcener is in possession then through him all coparceners are deemed to be in possession. Every coparcener is entilted to possess and enjoy the property along with others. If anyone is excluded from joint possession, he may without suing for partition, recover joint possession. Although there is a presumption with regard to the jointness of a Hindu family but there is no presumption that a joint family possesses joint property. It is not necessary for a joint family to possess joint property. There can be a joint family without there being a property.
23.1 The Privy Council in the case of Kalyanji Vithaldas v. Commissioner of Income-tax, Bengal, reported in AIR 1937 PC 36, explained the meaning of Hindu undivided family as under :
The phrase Hindu undivided family is used in the statute with reference not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words Hindu coparcenary , all the more that it is not possible to say on the face of the Act that no female can be a member.
23.2 The Apex Court in the case of Smt. Sitabai and another v. Ramachandra, reported in AIR 1970 Sc 343 held thus :
Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to belong to a joint family merely because the family is represented by a single co-parcener who possesses rights which an absolute owner of property may possess. The property which was the joint family property of the Hindu undivided family does not cease to be so because of the temporary reduction of the co-parcenery unit to a single individual . The character of the property, viz. That it was the joint property of a Hindu undivided family remains the same. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family.
23.3 The Supreme Court in the case of Gowli Buddanna v. Commissioner of Income-tax, Mysore, reported in AIR 1966 SC 1523 held thus :
"A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu co-parcenary is a much narrower body than the joint family : it includes only those persons who acquire by birth an interest in the joint or co-parcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore, there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners.
23.4 The Apex Court in the case of Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer and another, reported in AIR 1952 SC 72, held as under :
The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved but where one of the co-parceners separates himself from the other members of the joint family and has his share in the joint property partitioned off for him, there is no presumption that the rest of the co-parceners continued to be joint. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.
Co-parcenery:
A co-parcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes two or more persons together constituted the heir, and to this case they took the land as 'parceners' or 'co-parceners', the latter expression being the more common. In theory of law, coparceners together constituted a single heir; ' they be but one heir and yet several persons'. They were called parceners because, every co-parcener had a common law right to have a partition made.
A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenery. In other words, three generations comes to the holder in unbroken male descendant. Coparcenery is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A Hindu coparcenery is, however, a narrower body than the joint family, drily males who acquire by birth an interest in the joint or coparcenery property can be members of the coparcenery or coparceners. No female can be a coparcener.
23.5 The Supreme Court in the case of Bhagwan Dayal (since deceased) v.
Mst. Reoti Devi (deceased) reported in AIR 1962 SC 287, held as under :
Coparcenery is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a Joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired.
23.6 The Supreme Court in the case of Sunil Kumar and another v. Ram Prakash and others [(1988) 2 SCC 77 ] : (AIR 1988 SC 576), held as under : -
18. The coparcenery consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcener ship is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degree can offer spiritual ministration to an ancestor. Only males can be coparceners.
24. In the aforesaid context, we may quote with profit the decision of the Supreme Court in the case of D.S. Lakshmaiah anr. Vs. L. Balasubramanyam AIR 2003 SC 3800(1). In that case, the appellant No.1 and the respondent No.2 were husband and wife respectively. The respondent No.1 was their son. The second appellant purchased the suit property from the first appellant. The respondents before the apex Court were the original plaintiffs. They filed a Suit for declaration of their 2/3rd share, partition and possession thereof in respect of the two properties. According to them, the property shown as item No.2 in the schedule came to the appellant No.1 (the original defendant No.1 in the Suit) in partition between him and his brothers and the same was an ancestral property. The item No.1 property, according to the averments in the plaint, was acquired by the plaintiffs and the first defendant out of the joint Hindu family funds and it was alleged that the first defendant was trying to alienate the suit property for his self benefit and not for the benefit of the members of the family. The trial Court decreed the suit holding that the respondents were entitled for 2/3rd share in the properties, as also possession thereof, and also granted other consequential reliefs. The first Appellate Court allowed two separate appeals that had been filed by each of the appellant, and the Suit was ordered to be dismissed. It was held that the respondents had failed to prove that item No.1 property was a joint Hindu family property. The said property was held to be the self-acquired property of the first appellant. It further held that the respondent No.1 had failed to prove that any amount of income was available in the hands of the first appellant to purchase item No.1 property, noticing that except 15 guntas of land, there was no ancestral property with the first appellant, and that the trial Court was not correct in observing that it was for the first appellant to show that no nucleus on the ancestral property was available with him to purchase item No.1 property. The judgment and decree of the first Appellate Court was challenged by the respondents before the High Court in Second Appeal. The High Court held that item No.2 property had been proved to be a joint Hindu family property and the respondents had share in it. The Supreme Court noticed that the finding in respect of item No.2 property had not been challenged before it. The Supreme Court took notice of the fact that the only controversy was with respect to item No.1 property, and the question to be determined was as to who was required to prove the nature of the property, whether it was joint Hindu family property or a self-acquired property of the first appellant. The Supreme Court, after considering the evidence on record and its various earlier decisions, including the well-known decision of the Privy Council in the case of Appalaswami Vs. Suryanarayanamurti and ors.
AIR 1947 PC 189, held as under:-
17.
In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No. 2 property and no other nucleus was claimed, the burden remained on the respondent to establish that Item No. 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of Item No. 1 to be joint family property would fall as rightly held by the first appellate Court.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims tit to be self-acquired property to prove that he purchased the property to prove that he purchased with his own funds and no out of joint family nucleus that was available.
19. Another contention urged for the respondents was that assuming Item No. 1 property to be self-acquired property of appellant NO. 1, he blended the said property with the joint family property and, therefore, it has become the joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that joint family property if it is voluntarily thrown by th owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support person whom the holder was not bound to support or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation (see Lakaireddi Chinna Venkata Reddy v. Lakkireddi Lakshamama (1964 (2) SCR 172) and K.V. Narayanan v. K.v. Ranganathan and others ((1977) 1 SCC 244)).
While taking the aforesaid view, the Supreme Court took into consideration its earlier decision in the case of Srinivas Krishnarao Kango Vs. Narayan Devji Kango and ors. AIR 1954 SC 379. In that case, the submission on behalf of the appellant was that the burden was wrongly cast on the plaintiff of proving that the acquisition of the properties were made with the aid of joint family funds, the submission being that as the family admittedly possessed the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions were made with the aid of joint family funds and, therefore, the burden lay on the defendants who claimed that they were self-acquired acquisitions to establish that they were made without the aid of joint family funds and that the evidence adduced by them fell far short of its and that the presumption in favour of the plaintiff stood unrebutted. It was noticed by the Supreme Court that on the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres bearing an annual assessment of Rs. 49/-. The Supreme Court noticed that there was no satisfactory evidence about the income which these lands were yielding at the material time. In such circumstances, after taking into consideration the decision of the Privy Council in the case of Appalaswami Vs. Suryanarayanamurti and ors. (supra), the Supreme Court held that whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him to establish that there was adequate nucleus out of which the acquisition could have made, was one of the fact depending on the nature and extent of the nucleus. The Supreme Court took the view that what was important was to consider the income which the nucleus yields. The Supreme Court also held that a building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value.
25. What is discernible from the various decisions referred to above is that the property cannot be presumed to be a joint family property merely because of existence of a joint family, if any. The burden to prove the property to be the joint, lies on the person who asserts so. In the present case, the respondents herein, the original plaintiffs are asserting that the suit properties are joint family properties. If they are able to prove that the family possessed sufficient nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint, and the onus would be shifted on the person, (here in the present case the appellant) claiming it to be self-acquired property, and in failure to establish the nucleus, the burden of proof would remain on the person who asserts the property to be the joint family property. The Supreme Court also took the view that if the party fails to prove that the property was joint family property, then in such circumstances, the party who asserts that the property is self-acquired property need not lead any evidence to establish his separate income. In the absence of such evidence of separate income, the other party cannot claim a property to be a joint family property. Therefore, the initial burden is on the original plaintiffs i.e. the respondents herein to establish the existence of some joint family property, capable of being the nucleus from which new property or asset could have been acquired. It is also not sufficient to show that the joint family possessed some assets but it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets were acquired. Whether the joint family assets could have formed the nucleus, again depends upon there nature and relative value. The existence of such joint family property even if believed that it could have formed the nucleus for the acquisition of the new assets, by itself would not lead one to believe that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets.
26. In the present case, the first error which we have noticed in the judgment of the Court below is that the Court proceeded on the footing that there was a Hindu Undivided Family of late Parsottambhai Kuberbhai Patel. It appears that late Parsottambhai was a farmer settled in village Sundalpura. Although there is a dispute as regards the exact holding of the agricultural lands, but even if we believe that late Parsottambhai had around 70 acres of agricultural land at village Sundalpura, there is not an iota of evidence on record as to what was the income of late Parsottambhai from such agricultural lands. It is also not the case of the original plaintiffs that late Parsottambhai had, during his life time, sold a part of the agricultural lands and with the aid of such funds he had purchased the suit properties. On the contrary, the evidence on record is that late Parsottambhai had sustained a huge loss in the business of tobacco. It also appears that all the lands were not irrigated lands. Thus, only on the strength of such agricultural land being possessed by late Parsottambhai, it could not be said that there was sufficient nucleus with the help of which the suit properties could have been acquired.
27. It appears that some books of accounts have been relied upon by the plaintiffs to establish that their father late Parsottambhai had borrowed some amount from the moneylenders and on such evidence, it was sought to be argued that with the help of such financial aid, the suit properties were purchased. This piece of evidence is not found to be cogent and convincing. The books of accounts have been disputed by the appellants herein, more particularly so far as the handwritings of the appellant No.1 in such books of account is concerned. We do agree with Mr. Majmudar that once having disputed the handwritings in such books of account, the Court should not have undertaken the exercise of comparing the handwritings, but the Court should have called for the opinion of the handwriting expert in such circumstances. Even if we believe for the time being that some amount was obtained from the moneylenders, it is very hard to believe that the amount was obtained to buy other properties. We cannot overlook the fact that late Parsottambhai had in all eight children, out of which three were daughters. The expense of getting all the three daughters married was also borne by late Parsottambhai. Even for such occasions in the family, the headman of the family may borrow money from the moneylenders.
28. We have also noticed that late Parsottambhai passed away in the year 1991 and thereafter, in the year 1993, all the brothers assembled and decided to divide Sundalpura properties, namely the agricultural lands. There is no dispute as regards division of the land amongst the brothers so far as the properties at Sundalpura is concerned. Although Mr. Shah very strenuously urged before us to take cognizance of some tampering with the partition document, but we do not find any substance in the same. We undertook the exercise of perusing the disputed document very minutely and closely and it is very difficult for us to come to the conclusion that the same was tampered and we see no reason for the appellants to tamper the said document because as such there is no dispute so far as the partitioning of the lands at village Sundalpura is concerned. In fact, there was no joint family. The evidence on record would suggest that each of the brothers was residing separately with their respective families and were carrying on their own business. To a certain extent, we do agree with Mr. Majmudar that if the properties were joint family properties, then the brothers would have gone for partition of all such properties in the year 1993 itself i.e at the time when Sundalpura properties were partitioned. However, we may clarify that where an item of a joint family property is left out in the partition, then in such circumstances a right can be enforced by a fresh partition of that property, provided the same is a joint family property, which we do not find in the present case.
29. One another important aspect which we have noticed while going through the evidences is that except the plaintiff No.5, none of the other plaintiffs entered the witness box to establish their case. What we find from the oral evidence of the plaintiff No.5 is that he hardly had any personal knowledge of any of the transactions because of his age. He appears to be the youngest son of late Parsottambhai. None of the other plaintiffs had entered the box to lead evidence to establish that they had contributed towards the purchase of the suit properties. They have relied upon only on the fact that during the life time of their father, the father had purchased the properties with the help of the appellant No.1 herein, being the eldest son. Relying on such assertion, the entire claim has been put forward in the suit. As held above, there is no satisfactory, cogent or convincing evidence on record to show that late Parsottambhai had the means and the finance to buy such properties.
30. Such being the position, we could have stopped here without going into the question whether the appellants herein as the original defendants have established that the suit properties are their self-acquired properties and not joint family properties, in view of the principles explained by the apex Court in the case of D.S. Laxman and anr. (supra).
31. However, we have also looked into this aspect and there is thumping evidence to show that the appellant No.1 had the resources to buy the suit properties. There are so many circumstances pointing towards the fact that the suit properties are self-acquired properties of the appellant No.1. We may state few of such circumstances (i) although documents, namely the sale-deeds are in the names of the defendants, it has been admitted by the plaintiff No.5 in his oral evidence that what has been stated in the sale-deeds was true; (ii) the possession of such properties past couple of years is with the appellant No.1 and his family; (iii) all through out, the rent was also being recovered by the appellant No.1 and at no point of time any objection was raised by any of the other brothers in that regard; (iv) all the payments have been made by the appellant No.1 either through cheques from his own account or through drafts or by cash; (v) the appellant No.1 was a qualified Civil Engineer and had a job with Baroda Municipal Corporation; (vi) there is evidence on record that his academic career was outstanding and while studying Engineering, he also used to give tuitions and had also been getting scholarship; (vii) he was also an LIC agent earning good income as commission; (viii) he worked with Western India Construction Company; (ix) there is evidence on record that he used to fill up tenders for the work of construction;
(x) there is also evidence on record that the appellant No.1 was financially helped by his father-in-law, named Harmanbhai; and one of his brothers is married to second daughter of Harmanbhai, named Lilaben, and even much before the marriage of Lilaben with the brother of the appellant No.1, a property was purchased, in which the name of Lilaben was included as a joint owner. All this would suggest that the appellants had the sufficient means and resources to buy the properties.
32. We shall now come to the question whether the Court below was justified in holding the release deed dated 17th September, 1982 marked as Exh.191 executed by the plaintiff No2, the defendant No.8 and the defendant No.9 in favour of the defendant No.1 as a nullity and liable to be cancelled. It appears that property bearing plot No.55, situated in Har Bhakti Colony was purchased by the appellant No.1 along with the plaintiff No.2, the defendant No.8 and the defendant No.9 by a registered sale-deed dated 6th August, 1975. At a later stage, a release deed was executed by the plaintiff No.2, the defendants Nos. 8 and 9 in favour of the defendant No.1 i.e. the appellant No.1 herein, giving up their right or share in the said property. This fact has been very seriously disputed by the plaintiff No.2, the defendant No.8 and the defendant No.9 on the premise that release deed is bogus and is a concocted document. The dispute is with regard to their signatures on the said release deed, Exh. 191 and by filing affidavit stated that on the date of the execution of such release deed, they had not even visited the office of the Sub Registrar. We are unable to accept this stance of the respondents for the simple reason that if it is the case of the plaintiff No.2 and the defendants Nos. 8 and 9 that the document Exh. 191 was a concocted document, then the burden was on them to establish the same by entering the witness box and by leading oral evidence in that regard. Such a fact could not have been said to be proved by filing affidavit. The document of 1982 never came to be questioned by the plaintiff No.2 and the defendants Nos. 8 and 9 until 1996. In our opinion, the Court below committed a serious error in accepting such affidavit without the party affirming such affidavit making themselves available for cross-examination at the end of the defendant No.1 against whom the allegations have been levelled.
33. It is a settled position of law that where a party to the suit does not enter in to the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct (see Vidhyadhar Vs. Mankikrao and ors. AIR 1999 SC 1441).
34. In our opinion, the Court below should not have come to such a conclusion solely on the basis of affidavits. An affidavit would not constitute legal evidence without the party affirming such affidavit making himself or herself available for cross-examination at the end of the party against whom allegations are levelled.
Had there been any truth in the case set up by the original plaintiffs of being a joint Hindu family having joint family properties, then in such circumstances the respondent No.7 Shantaben and the respondent No.12 Kantaben would also have contested the litigation. The fact that the two sisters thought fit not to contest the suit, is also one of the circumstances going against the plaintiff.
35. Although on merits, based on the materials on record we have taken the view that there was no Hindu Undivided Family of late Parsottambhai and there was no ancestral nucleus with the help of which the properties in question were acquired, we are of the opinion that apart from this, a pure question of law arises in this appeal with regard to the maintainability of the Suit itself, taking into consideration the provisions of the Benami Transactions (Prohibition) Act, 1988.
36. A close scrutiny of the pleadings of the plaintiffs and the oral evidence on record would suggest that the plaintiffs came before the Court with a case that late Parsottambhai had inherited some part of the properties situated at Sundalpura through his ancestors, and some part of the same was self- acquired properties of late Parsottambhai. There is an admission on the part of the plaintiffs that the self-acquired properties of late Parsottambhai at Sundalpura were purchased in the names of the plaintiffs and the defendants due to the provisions of the Urban Land (Ceiling & Regulation) Act. To that extent, there is no dispute. However, their case is that the other properties situated in Baroda and Surat were acquired from the joint family funds of the Hindu Undivided Family and it was the tradition of the family to purchase properties in different names i.e. in the names of sons and unmarried daughters. It appears to us from the pleadings as well as from the oral evidence that this stance of the plaintiffs is a very guarded stance only with a view to overcome the rigours of the Act of 1988. As stated above, we have already held that the Court below proceeded on a wrong footing that the family was a joint Hindu Undivided Family and that the properties were joint family properties. We have also taken the view that there was no ancestral nucleus with the help of which the properties in question were acquired. It is thus, very clear that the entire case of the plaintiffs is that they are claiming through their father late Parsottambhai, who had purchased the suit properties, but the transactions were benami with a view to wriggle out of the provisions of the Urban Land (Ceiling & Regulation) Act. In such circumstances, we have decided to consider this issue in detail.
37. As held by the Supreme Court in the case of Canbank Financial Services Ltd. Vs. Custodian and ors. reported in AIR 2004 SC 5123, the evil of benami transactions was sought to be curbed by reason of the provisions of the Urban Land (Ceiling & Regulation) Act, 1976; the State Ceiling Laws, Income Tax Act, 1961 as amended by the Taxation Laws (Amendment) Act, 1975; Section 5 of the Gift Tax Act, 1958; Section 34B of the Wealth Tax Act and Section 5 clause (1) of the Estate Duty Act (since repealed). It is only with that view the Benami Transactions (Prohibition) Act, 1988 prohibiting the right to recover benami transactions was enacted. Section 5 clause (1) provided that all the properties held `benami' shall be subject to acquisition as different from forfeiture provided for in the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, but even Section 5 had not been made workable as no Rules under Section 8 of the Act for acquisition of the property held benami were framed.
38. In Canbank Financial Services Ltd. (supra), the Supreme Court in paragraphs 60 to 65 observed as under:-
"60.
Benami transactions in India were generally recognized by the Courts. But the same had not been given effect to when the transaction
(a) violates the provisions of any law; or
(b) defeats the rights of innocent transferees for value from the benamidar without notice; or when
(c) the object of the benami transaction was to defraud the creditors of the real owner and that object has been accomplished; or when
(d) it is against public policy.
61.
Benami Transactions, however, used to be effected for various purposes-to avoid taxes, to avoid ceiling laws etc. Blank transfers of shares had also posed serious problems as dividends are paid to the registered share- holders and not to be the real shareholders as in the case of benami holdings of shares, but despite the same the transactions have not been declared to be invalid in law by any statute including the Benami Transactions Act.
62. 'Benami Transaction' has been defined in Section 2(a) of the Benami Transactions Act to mean any transaction in which property is transferred to one person for a consideration paid or provided by another person. 'Transfer' of property, therefore, is sine qua non for attracting the said definition.
63. In a transfer involving benami transaction, three parties are involved. The benamidar may be a party therein. In this case, the parties to the transactions are public sector undertakings being scheduled banks and their subsidiaries. A presumption would, thus, arise that they would not encourage any benami transaction nor would involve themselves therein. In a situation of this nature and, in particular, having regard to the fact that a disclosure was made by the Respondent Nos. 3 and 4 in their applications for allotment of CANCIGO; that the same were filed on behalf of the Respondent No.2 herein, the intention of the parties was not to enter into a benami transaction.
64. The Benami Transaction Act is not a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act. A statute which takes away the rights of a party must be strictly construed. (See R. Rajagopal Reddy (dead) by LRs. and others v. Padmini Chandra-sekharan (dead) by LRs. AIR 1996 SC 238).
65. The evil of benami transaction was sought to be curbed by reason of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the State Ceiling Laws, Income-tax Act 1961 as amended by the Taxation Laws (Amendment) Act, 1975 (See Sections 281 and 281A of the Income Tax Act), Section 5 of the Gift Tax Act, 1958, Section 34B of the Wealth Tax Act and Section 5(1) of the Estate Duty Act (since repealed). It is only with that view the Benami Transactions (Prohibition) Act, 1988 prohibiting the right to recover benami transaction was enacted. Section 5(1) provided that all properties held benami shall be subject to acquisition as different from forfeiture provided for in the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. But even Section 5 had not been made workable as no rules under Section 8 of the Act for acquisition of property held benami were framed."
39. Section 2 of the Benami Transactions (Prohibition) Act, 1988 defines a benami transaction as under:
"Section 2 (a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;"
40. Section 3 forbids benami transaction while sub-section (2) thereof excludes such a transaction enumerated therein from the said provision. Section 4 of the Act may be extracted in extenso:
"Section
4. Prohibition of the right to recover property held benami.-(1)
No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.(2)
No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.(3)
Nothing in this section shall apply,-
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
41. A plain reading of the above would show that no Suit, claim or action to enforce a right in respect of any property held benami shall lie against the person in whose name the property is held or against any other person at the instance of a person claiming to be the real owner of such property. The question for our consideration is whether the prohibition contained in Section 4 would, therefore, apply to the present Suit, subject to the satisfaction of other conditions stipulated therein. In other words, unless the conditions contained in Section 4 clause (1) are held to be inapplicable by reason of anything contained in sub-section (3) thereof, the Suit filed by the plaintiffs herein would fall within the mischief of Section 4 of the Act.
42. In the present case, late Parsottambhai is said to have acquired the properties in the names of his sons and daughters. We have tried to examine the question whether the sons and the daughters could be said to have stood in a fiduciary capacity and whether the property was held for the benefit of late Parsottambhai. If the plaintiffs and the defendants could be said to be holding the properties in their fiduciary capacity, then probably Section 4, clause (3) would save the situation and the suit would not be hit by the provisions of the Act, 1988.
43. Therefore, the second question that falls for our consideration is as to what is a "fiduciary relation" or "fiduciary capacity".
44. Fiduciary relationship:
i) As Waker defines it: "A 'fiduciary' is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect.
He may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, Company promoters and directors, guardians, solicitors and clients and other similarly placed." [Oxford Companion to Law, 1980 p. 469]
ii) "A fiduciary relationship", may arise in the context of a jural relationship. Where confidence is reposed by one in another and that leads to a transaction in which there is a conflict of interest and duty in the person in whom such confidence is reposed, fiduciary relationship immediately springs into existence." [see Mrs.Nellie Wapshare v. Pierce Lasha and Co. Ltd. (AIR 1960 Mad 410)]
iii) In Lyell v. Kennedy, (1889) 14 AC 437, the Court explained that whenever two persons stand in such a situation that confidence is necessarily reposed by one in the other, there arises a presumption as to fiduciary relationship which grows naturally out of that confidence. Such a confidential situation may arise from a contract or by some gratuitous undertaking, or it may be upon previous request or undertaken without any authority.
iv) In Dale and Carrington Invt. (P) Ltd. v. P.K. Prathaphan, (2005) 1 SCC 212 : (AIR 2005 SC 1624) and Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd., (1981) 3 SCC 333 : (AIR 1981 SC 1298), the Court held that the directors of the company owe fiduciary duty to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambier, (1994) 6 SCC 68 :
(AIR 1994 SC 2694), the Court held that an agent and power of attorney can be said to owe a fiduciary relationship to the principal.
45. We are of the opinion that only by reason of relations, the property acquired by the father in the benami name of his sons and daughters, such sons or daughters could not be said to be acting in a fiduciary capacity vis-a-vis their father. The children would have no legal obligation to perform while holding such properties purchased in their names by their father.
46. At this stage, it will be profitable to even look into the provisions of Section 88 of the Trusts Act. That section recites:
"Where a trustee, executor, partner, agent, director of a company, legal adviser or other person bound in a fiduciary character to protect, the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests, are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained."
47. The language of this Section indicates that it comes into play only where the persons contemplated by that section buy some property for themselves or gain any other advantage by making use of their fiduciary position and that could enure for the benefit of the beneficiary. This Section envisages a situation where a person in fiduciary capacity acquiring property for himself; in other words, he is the real purchaser and not a benamidar. It does not cover benami purchases.
48. In the present case, if the father, late Parsottambhai, with a view to defeat the provisions of the Urban Land (Ceiling and Regulation) Act and other laws relating to the same, bought properties in the benami names, such transactions, in our opinion, would definitely be hit by the provisions of the Act, 1988.
49. The three Judge bench decision of the Supreme Court in the case of Canbank Financial Services (supra) has in so many words observed that the Act of 1988 was enacted only with a view not to defeat the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and other ceiling laws, including Income Tax, Wealth Tax etc.
50. In the case before us, it is the definite case of the plaintiffs that their predecessor, viz. Parsottambhai, purchased the Suit property by his own money in the names of the defendants for the purpose of avoiding the rigour of Land Ceiling law. Thus, even on the basis of the case made out by the plaintiffs, the Suit is barred by Section 4 of the Act of 1988.
We are of the opinion that the Suit filed by the plaintiffs should also fail on the ground that the same is hit by the provisions of Section 4 of the Act, 1988.
51. In the overall reappreciation and re-evaluation of the entire evidence on record, we come to the conclusion that the plaintiffs have failed to prove that there was ancestral nucleus with the help of which the properties in question were acquired. The onus being on the plaintiffs in a suit for partition to establish how the family came to own considerable joint family properties, in our opinion, the plaintiffs have failed to discharge such onus. In our opinion, the Court below proceeded on a wrong footing that the family was a joint Hindu Undivided Family and that the properties were joint family properties. For all the foregoing reasons, we are left with no other option but to set aside the judgment and decree passed by the Civil Court.
52. In the result, the appeal succeeds. The judgment and decree passed by the 6th Joint Civil Judge, Baroda in Special Civil Suit No. 288 of 1996 is hereby set aside. The Suit filed by the plaintiff is dismissed. In view of the order passed in the appeal, the Civil Application also stands disposed of.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) FURTHER ORDER:
After this judgment is passed, Mr. Buch, the learned counsel appearing for the plaintiff-respondent prays for stay of operation of our judgment. We, by our above judgment having dismissed the Suit, no question of staying operation of the order arises. It is needless to mention that till the expiry of the period of limitation for filing appeal against our judgment, and even thereafter if any appeal is filed, the doctrine of lis pendens will be applicable, and therefore, we do not find any reason to pass any order.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 97 of 97