Bombay High Court
Jayshree S. Gupte & 2 Ors vs 1A) Ms. Tilottam Toprani & Ors on 27 February, 2020
Author: A.K. Menon
Bench: A.K. Menon
10-s-1812-1995.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1812 OF 1995
1. Sharadchandra Gajanan Gupte
since deceased through Legal Heirs
1(a) Jayshree S. Gupte ... Plaintiffs
1(b) Rajan S. Gupte
1(c) Sangita Ajit Karnik
All residing at 541, Laxmi Baug
Block no. 1, 17th Road
Khar (West), Mumbai-400 052
vs.
1. Sm Pramila Manohar Gupte
since deceased through
1(a) Tilottam Toprani
1(b) Dr (Mrs) Madhubala Rao
1(c) Adnya Manohar Rao
2. Hemchandra Gajanan Gupte
since deceased through Legal Heirs
2(a) Kundamala Hemchandra Gupte
2(b) Shobha S. Chitre
2(c) Gauri V. Gokhale
3. Smt Piroz S. Tipnis
since deceased through Legal Heirs
3(a) Shailesh Suresh Tipnis
3(b) Sanjiv Suresh Tipnis
4. West Coast Pillars Private Limited
5. Shri B. Sadhuram sole Trustee of ... Defendants
Darbar Sahib Halani, Sindhi Udasin Ashram
7-A/1 Sion Sindhi Society, Sion
Mumbai-400 022
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Ms. Harshali Gupte for the Plaintiff.
Ms. Deepti Panda a/w. Mr. Ajay Samant i/b. Mrs. Laxmi Vijay Mankar for Defendant
nos. 1(b) and 1(c).
Mr. Umesh Shetty a/w. S. D'souza, Mr. Harjot Singh i/b. Flavia Legal for Defendant
no. 4.
Mr. Meelan Topkar a/w. Ms. Pavitra Manesh i/b. Vaishali Bhilare for Defendant
no. 5.
CORAM : A.K. MENON, J.
DATED : 27th FEBRUARY, 2020
JUDGMENT
1. This suit seeks partition of an immovable property being a piece and parcel of land bearing City Survey No. E-40, Municipal Ward No. H/4677, Plot No. 545, 17th Road, Khar (West), Bombay-400 052 admeasuring 607.9 sq.mts. with a building standing therein. The original plaintiff Sharadchandra Gajanan Gupte ("Sharadchandra") sought a declaration that he was entitled to one fourth undivided share in the suit property described at Exhibit "A" to the plaint. The suit also seeks partition by metes and bounds and a decree for plaintiff's separate possession and in the alternative seeks sale of the suit property with the share of the plaintiff being paid over upon sale. The plaintiffs also seeks a declaration that declaration dated 27 th August, 1952 Exhibit "F" to the plaint is bad in law and void ab intio. The plaint has been amended to bring on record the heirs of the deceased plaintiff and defendants. The amended plaint states that upon demise of defendant no. 1-Pramila on 5th July, 2000 she left behind a Will dated 9 th 2/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt July, 1999 and Codocil dated 15 th March, 2000 appointing the present defendants 1(a), 1(b) and 1(c) as executors and trustees of her last Will and testament.
2. Legal representatives of original defendant no. 1 have filed a Testamentary Petition which stands converted to a Testamentary suit no. 14 of 2001 as a result of caveats filed by the plaintiff herein. On 7 th February,2018 all parties agreed that this suit was to be heard first and prior to the Testamentary suit. It is on that basis that matter has been taken up for hearing and final disposal. Meanwhile Sharadchandra expired on 29 th June, 2007 and his heirs were brought on record as plaintiff nos. 1(a) to 1(c) being the children of Sharadchandra. The heirs are now collectively referred as "plaintiffs". The Original defendant no. 1 -Pramila Manohar Gupte ("Pramila") was the widow of one Manohar Gajanan Gupte ("Manohar") who was the brother of the original plaintiff- Sharadchandra. Defendant nos. 2 and 3 were the other brother and a sister of Sharadchandra. Defendant no. 4 is a private limited company which acquired rights in the Suit property. Defendant no. 5 a Trust represented by its Trustee.
3. The plaint sets out that one Gajanan Gupte (hereinafter referred to as "the deceased") father of Sharadchandra, Manohar (the husband of original defendant no.1. Pramila) and of defendant nos. 2 and 3 was seized and possessed of various properties including the suit property described in 3/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt Exhibit A. Gajanan Gupte died intestate in the year 1962 leaving behind Sharadchandra and original defendant nos. 1 to 3 as his legal heirs and legal representatives according to the Hindu Succession Act. According to Sharadchandra the original plaintiff and original defendants all of them have equal shares in the suit property. Manohar, husband of Pramila-defendant no. 1 being desirous of developing the suit property, an agreement between 31st August, 1972 had been arrived at under which the said late Manohar and defendant nos. 2 and 3 agreed to sell one of the properties to one M/s. Parekh Brothers on certain agreed terms. In March 1995 the plaintiff came across a public notice in Nav Shakti newspaper inviting objections from the members of the public claiming any interest in the suit property.
4. According to Sharadchandra the suit property was self acquired property of the deceased and the plaintiffs now have one-fourth share therein. The plaintiffs have relied upon the communication dated 20 th March, 1995 addressed by Sharadchandra to the City Survey Officer requesting for a copy of the property registration card annexed at Exhibit "C" to the plaint. It is further contended that vide letter of 29 th March, 1995 Sharadchandra objected and called upon the original defendants to disclose details of the proposed transactions and in the meanwhile claimed to be entitled to one fourth share in the suit property. The plaintiff received a response on 11 th April, 1995 from defendant no.1's Advocate interalia contending that Sharadchandra and original defendant nos. 2 and 3 had relinquished their 4/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt rights in respect of the property in favour of Manohar and Pramila vide a declaration dated 27th August, 1952. Manohar through his Advocate claimed to have absolute ownership of the property while declining to furnish any further information. Accordingly on 3 rd May, 1995 Sharadchandra while denying the contention of Manohar reiterated his claim and contended that the declaration dated 27 th August, 1952 was forged and fabricated document. Sharadchandra contended that he had not signed any such document in the past and therefore it cannot be held against him. He disputed the claim to absolute ownership set up Manohar and Pramila.
5. According to Sharadchandra no transfer had taken place since the property was self acquired property of the deceased and after demise of the deceased Gajanan Gupte, Sharadchandra and original defendant nos. 1 to 3 became entitled to equal shares. The principal objection is on the ground that declaration was forged and fabricated and in the absence of any registered agreement / instrument of transfer as recognised in law, no such transfer could have taken place. It is on this basis that the plaintiff have claimed his right in the suit property.
6. The first amendment to the plaint inserted paragraph 11(A) and (B) to the plaint setting out facts that transpired after filing of the suit. The plaintiff had then filed a notice of motion seeking interim relief. It is in reply to this 5/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt notice of motion that defendant no. 1 had contended that the defendant no. 1 had sold the property to defendant no. 4 vide deed of conveyance dated 21 st March, 1996. Thereupon the plaintiff filed a Chamber Summons for impleading defendant no. 4 and that is how defendant no. 4 was impleaded.
7. It is the case of the plaintiffs as canvassed by Ms. Gupte that the sale of the property in favour of defendant no. 4 is illegal, void and void ab initio and by virtue of the fact that defendant no. 1 had no independent right in the suit property to enable them to sell and dispose the property. The contention of the plaintiffs is that the conveyance had been executed after filing of the suit on 21st March, 1996 and therefore it deserves to be declared illegal, null and void and defendant no. 4 is required to be restrained from dealing with the property. By a subsequent amendment paragraph 11(C) and 11(D) are inserted by which the plaintiff contended that since filing of the suit in 1995 and till the end of June, 2010 the structure/building upon which the suit property stood unchanged but around 28 th June, 2010 the plaintiffs noticed certain demolition work being carried out that prompted the plaintiffs to file Notice of Motion no. 1960 of 2010 when defendant no. 5 had been impleaded and was also joined to the Notice of motion.
8. According to the plaintiff it is only at the hearing of the Motion at the ad-interim stage that defendant no. 4 disclosed it had transferred and sold the suit premises to defendant no. 5 by deed of conveyance dated 16 th June, 6/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt 2008. The plaintiff have therefore made a grievance that despite pendency of the suit, the plaintiffs were not intimated of the proposed transfer. According to the plaintiffs, defendant no. 5 claims through defendant no. 4 which in turn claims title through defendant no. 1 and no valid title could have passed to defendant no. 4 and the deed of conveyance dated 16 th June, 2008 is liable to be declared void ab intio.
9. On 19th May, 1995 when the motion was moved for urgent relief, the Court declined to grant any ad-interim relief since no urgency had been made out. Liberty was granted to move after 5 th June, 1995. The record does not indicate that such liberty was exercised after 5 th June, 1995, since it appears that the application had first been made during the summer vacation and the liberty granted required Sharadchandra to move the Court after reopening in June, 1995. On behalf of defendant no. 1 it is contended that this motion was a draft motion which was not thereafter registered. Be that as it may, it is not in dispute today that as of May, 1995 the plaintiff had not secured any ad-interim relief or any protection against the transfer of the suit property. It is only thereafter on 2 nd September, 1998 that Chamber Summons taken out on behalf of the plaintiff was heard whereby amendments proposed were permitted to be carried out in the plaint. Amendments were partially permitted to the extent that the part of the proposed amendment relating to certain documents and which were proposed to be brought on record were not so allowed. The Court in the 7/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt course of submissions came to record a finding that there was no explanation as to why Sharadchandra had not objected to the claim of exclusive ownership set up by defendant at that stage. It is not in dispute that there is no challenge to the order permitting the limited amendment permitted.
10. The plaintiffs thus claim partition by metes and bounds and in the alternative by sale. Paragraph 13 of the plaint contains an averment to the fact that there were various structures on the suit property and those structures were occupied by various tenants. Although the plaintiff seek appointment of the Court Receiver, High Court Bombay of the suit property and in the meantime an injunction, no application appears to have been made after 19th May, 1995.
11. On behalf of the plaintiff it was contended by Ms. Gupte that the property being joint family property including the suit property could not have been dealt with by defendant no. 1 in the manner sought to be done. Defendant has only relied on the Mutation entry and that a Mutation entry does not entitle the defendant no.1 to deal with the property. The defendant no. 1 was not the absolute owner of the property. Therefore, Sharadchandra/ the plaintiffs', along with original defendant nos. 1, 2 and 3 (their legal heirs) have an equal share in the property and therefore issue no. 2 is to be answered in the negative.
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12. Ms. Gupte the learned Advocate for the applicant contends that the Mutation entry not being evidence of title it cannot be accepted. The contention of defendant no. 1 cannot be accepted merely because mutation entry of 29th August, 1952 records the names of late Manohar and defendant no.1-Pramila in the record of rights. According to her even the property registration card at Exhibit P-7 (page 247) records the transfer in the following words :
"As inheritance as son of * daughter in law as per statement of the occupants" * (sic)
13. According to Ms. Gupte the expression "inheritance" mentioned in the said extract of the property register card clearly indicates that the rights of the other legal heirs cannot be extinguished. She stressed upon the meaning of the expression "inheritance" to state that it would indicate that property that has devolved upon death of one of the person in accordance with law of inheritance and in the absence of testamentary disposition. Ms. Gupte submits that in the present case, claim to title on behalf of late Manohar Gupte and original defendant no.1 was based only on the aforesaid property record and that record which cannot constitute the said defendant no.1 and her late husband absolute owners of the property.
14. Ms. Gupte contended that while it is not in dispute that the property has initially been allotted under a Sanad - Exhibit P-4 in Form HH, the fact in issue is whether the plaintiff and the other defendant nos. 2 and 3 could be 9/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt ousted on the basis of this document alone especially in view of the plaintiff having disputed the declaration dated 27 th August, 1952 at Exhibit P-8. Inviting my attention to the contents of the declaration, Ms. Gupte submitted that the said declaration has not been executed by either of the signatories viz. Sharadchandra or his brother defendant no. 2 and that the "no objection"
endorsement referred to by the defendant was not in fact executed by them. Ms. Gupte therefore submitted that the plaintiffs are entitled to the reliefs sought.
15. In support of her submissions, Ms. Gupte relied upon the following judgments :
1. H. Lakshmaiah Reddy and Ors. vs. L. Venkatesh Reddy 1
2. Balwant Singh and Anr. vs.Daulat Singh (Dead) by LRS & Ors. 2
3. Smt Sawarni vs. Smt Inder Kaur and Ors.3
4. Karabalai Begum vs. Mohd Sayeed and Anr.4
5. Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors. 5
16. Meanwhile defendant no. 1 having expired, written statements were filed on behalf of defendant nos. 1(a) to (c), and on behalf of defendant nos. 4 and 5. Defendant nos. 2 and 3 (who expired on 6th April, 2010) have not contested the suit and in any event at the hearing of the suit none appeared for defendant nos. 2 and 3. The written statement of defendant nos. 1(a) to (c) refutes the claim of the plaintiff. It is contended that the suit is barred by the 1 (2015) 14 SCC 784 2 (1997) 7 SCC 137 3 (1996) 6 SCALE 4 AIR 1981 Supreme Court 77 5 (2009)16 SCC 517 10/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt law of limitation. It is further contended that the father of Sharadchandra late Gajanan Gupte had purchased the suit plot and he obtained permission to use and occupy the plot on 7 th August, 1945 pursuant to which a Sanad was issued on 30th June, 1948. Late Gajanan Gupte and his wife are said to have made an application to the City Survey Officer to transfer the plot to their son Manohar Gajanan Gupte who was husband of original defendant no.1 - Ms. Pramila Manohar Gupte. Sharadchandra/Plaintiffs and defendant no. 2 had conveyed their consent by endorsing their no objection to the said transfer and it is pursuant to the said application that a proper Mutation entry was entered into the record of rights on 27 th August, 1952. The property record came to be updated showing the names of Manohar Gajanan Gupte and original defendant no. 1 - Pramila Manohar Gupte on record.
17. The defendants have further contended that the plot came to be transferred to the name of Manohar and Pramila during the life time of Gajanan Gupte. Defendant nos. 1(a) to 1(c) have contended that the transfer having taken place during the lifetime of the original owner, there was no question of claiming any share in the property. It was contended by the said defendants that all outgoings and taxes of the property were paid and rents in respect of the property was collected by Manohar and Pramila till 10 th February, 1979. After demise of Manohar, his widow Pramila paid all outgoings and taxes and collected rents as exclusive owner of the property. 11/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 :::
10-s-1812-1995.odt It is only thereafter that defendant no. 1 then acting as sole owner of the property entered into an agreement with defendant no. 4 on 14 th December, 1994.
18. It is contended on behalf of defendants 1(a) to a(c) that the parties to the said agreement had also filed an application for no objection certificate under Chapter XXC of the Income Tax Act seeking no objection of the Appropriate Authority, Income Tax to the proposed transaction. It is contended that an NOC was issued on 1 st March, 1995. The defence set out is that despite all opportunities available to Sharadchandra, he did not seek to oppose the alienation of the property. In paragraph 4(i) of the written statement defendant no. 1 had set out that the claim for partition was made on 17th May, 1995 i.e. about 40 years after the plot was transferred and that after an ad-interim application was made only on 19 th May, 1995 but despite liberty being granted, no further application was made in the motion which was also not registered. It is only thereafter that Chamber Summons was taken out by the plaintiff. The first Chamber Summons bearing no. 1032 of 1996 was withdrawn with liberty to file a fresh Chamber Summons. The defence sets out that no restraint was placed on defendant no. 1- Pramila from transferring the property and the property came to be sold to defendant no. 4 on 21 st March, 1996. Possession was handed over and the transaction of sale was concluded. In the meantime, defendant nos. 1(a) to
(c) claimed they were entitled to defend the suit in view of the fact that they 12/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt are executors of the Will of the deceased original defendant no. 1-Pramila.
19. The defendant nos. 1(a) to (c) further contended that the structure(s) suit property was built by Manohar out of self acquired funds and after plot was transferred to the name of the said late Manohar and Pramila. In that sense it is contended that the plot/building did not even belong to the plaintiff and accordingly it is contended that the suit is misconceived especially since property was transferred to the name of Manohar and Pramila during the life time of Gajanan Gupte.
20. As far as defendant no. 4 is concerned the written statement proceeds on the basis that the suit is barred by limitation and that the plaintiff are estopped from claiming any right in the suit property having given up right in the property way back in 1952. Gajanan Gupte having died intestate and having transferred the property prior to his demise there was no question of the plaintiffs or defendant nos. 2 and 3 claiming any share in the property. Defendant no. 4 has therefore denied that the dispute inter se Sharadchandra/plaintiffs and the original defendant nos. 1, 2 and 3 has any bearing on the fact that defendant no. 4 has validly acquired title to the suit property and in accordance with law.
21. On behalf of defendant no. 5, a written statement has been filed in which defendant no. 5 claims to have acquired the property under a registered deed of conveyance dated 16 th June, 2008. It is contended that the 13/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt suit is barred by law of limitation inasmuch as it is clear that the possession of the property with original defendant no. 1(Manohar and Pramila) had become adverse since 29th August, 1952. It is contended that defendant no. 5 had purchased suit property from defendant no. 4 under a registered deed of conveyance since there was no restraint whatsoever in doing so. It is contended that several public notices had been issued inviting objections in relation to the proposed transaction as between defendant nos. 4 and 5 and that there was no response to these notices. The suit has proceeded to trial on the basis of the aforesaid pleadings. The record indicates that on 3 rd March, 2011 the Court framed the following issues :
1. Whether the suit is barred by the law of limitation?
2. Whether the deceased Gajanan Gupte was the absolute owner of the suit property ?
3. Whether the deceased Pramila Gupte validly transferred the suit property to Defendant no. 4?
4. Whether the Defendant no. 4 validly transferred the said property to Defendant no. 5 ?
5. Whether the Plaintiffs have 1/4th share in the suit property ?
6. Whether the declaration dated 27th August, 1952 is false and fabricated ?
7. Whether the Defendant no. 1 and her husband were in uninterrupted, unobstructed and adverse possession of the suit property ?
8. What relief, if any, is the Plaintiff entitled to ?
Vide the said order the Court inter alia directed filing of affidavits of documents and affidavits of evidence and adjourned the matter for considering admissibility of documents. Subsequently it appears from the record that all these documents have been marked by consent. 14/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 :::
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22. The plaintiffs have led evidence of one Rajan Sharadchandra Gupte- Plaintiff no. 1(b) and one of the legal heirs of the original plaintiff who filed his affidavit of evidence dated 19 th November, 2012. Mr. Rajan Sharadchandra Gupte filed an additional affidavit dated 15 th November, 2014 by way of further examination in chief. The plaintiff have also filed compilation of documents consisting of 17 documents. On 7th November, 2014 the Court marked such of the documents as were entirely admitted by all the contesting parties that is how Exhibit P-1 to P-12 came to be marked. Thereafter on 13th March, 2015 further documents upto and inclusive of the office copy of order dated 20 th March, 1995 were taken on record and marked Exhibit P-13 to P-17. The existence and contents of these documents are not disputed by any of the parties except to that the plaintiff has contended that the declaration dated 27 th August, 1952 Exhibit 'P-8' is forged and fabricated.
Sr. Particulars Exhibit
No Nos.
1 Photocopy of Notice in Marathi News paper Annexure B P-1
in August 1994
2 Certified copy of Application dated 17th April, Annexure F P-2
1952
3 Certified copy of the Order Annexure G P-3
4 Copy of Agreement dated 1 August, 1945
st
Annexure H P-4
5 Copy of Sanad dated 7th August, 1945 Annexure I P-5
6 Copy of possession certificate dated 21st May, Annexure J P-6
1945
7 Extract of PR Card of CS No. E-40 Annexure K P-7
8 Copy of Declaration dated 27 August, 1952
th
Annexure L P-8
by Shri G. S. Gupte and Mrs. S. G.Gupte
9 Copy of Declaration dated 27th August, 1952 Annexure M P-9
by brothers
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10 Copy of Agreement dated 7th October, 1951 Annexure N P-10
11 Original letter dated 20 March, 1997 by
th
Annexure Q P-11
Nanu Hormasjee & Co. to Plaintiffs Advocate
12 Copy of Page 18 of Deed of Conveyance Annexure O P-12
dated 16th June, 2008
13 Original Agreement dated 31st August, 1972 Annexure A P-13
14 Office copy of letter dated 29 March, 1995
th
Annexure C P-14
by deceased Plaintiff to deceased Defendant
no. 1.
15 Original Postal Acknowledgement Annexure D P-15
16 Original letter dated 11 April, 1995 by
th
Annexure E P-16
Advocate Vijaykar to Deceased Plaintiff
17 Office copy of letter dated 20th March, 1995 Annexure P P-17
23. On behalf of defendant no. 1 one Madhubala Rao has filed her affidavit in lieu of examination in chief dated 13 th October, 2015 along with a compilation of documents. On behalf of defendant no. 4 one Mahesh Chottubhai Pithawalla has deposed in support of defendant no. 4's case by filing affidavit dated 30th June, 2016 along with a compilation of documents and lastly defendant no. 5 has also filed affidavit of evidence of one Asudo Karnani, Constituted Attorney of defendant no. 5 dated 1 st August, 2016.
24. Ms. Panda on behalf of defendant nos. 1(a) to 1(c) submitted that by virtue of the terms of the Sanad the order passed by the City Survey Officer on 17th April, 1952, Gajanan Gupte and Saraswati Gupte were permitted to transfer the suit property to Manohar and Pramila. Sharadchandra and Defendant no. 2 had in fact signed the NOC and on that basis the property was transferred to the name of Manohar and Pramila during life time of Gajanan Gupte and Saraswati Gupte. Gajanan Gupte expired on 9 th February, 1964 and Saraswati Gupte expired in 1972. Thus property had been 16/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt transferred during the life time of Gajanan Gupte and Saraswati Gupte. After Manohar died on 10th February, 1979 the widow Pramila obtained transfer of the property by deleting the name of Manohar. It is on this basis that Pramila - Original defendant no. 1 became absolute owner of the property and thereafter dealt with the same culminating the transfer in favour of defendant no. 4 on or about 21 st March, 1996. Ms.Panda therefore submitted that the grant having taken effect all parties were bound by the terms of the grant and no registered document was required in law to effect the transfer. She relied upon the following decisions :
1. S. P. Chengalvaraya Naidu (Dead) by LRS vs. Jagannath (Dead) by Lrs. And Ors. 6
2. Motibhai Jijibhai and Anr. vs. Desaibhai Gokalbhai and Anr.7
3. Satyabhamabai w/o Wasudeo Dhanjode and Ors. vs. Chhatrapati s/o Zibal Dhanjode and Ors.8
25. On behalf of defendant no. 4 Mr. Shetty contended that by virtue of Government Grants Act, 1895 the provisions of the Transfer of Property Act do not apply and in that context it was submitted that the case at hand is one where a Sanad was granted to late Gajanan Gupte and Saraswati Gupte who later transferred it to Manohar Gupte and Pramila Manohar Gupte. The transfer of the grant did not attract provisions of the Transfer of Property Act and for that reason also the contention of the plaintiff cannot be accepted inasmuch as the absence of conveyance deed will not effect the vesting of right in Pramila Gupte absolutely.
6 (1994) 1 SCC 1 7 AIR 1916 Bom 59 8 2004(1) MhL.J. 1093 17/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt
26. According to Mr. Shetty the suit is liable to be dismissed on the ground of limitation and by virtue of the decision of the full bench of this Court in Sajanbir Singh Anand (supra) it was for the plaintiff to show that extended period of limitation was available. Mr. Gajanan Gupte having died on 9th February, 1964 and Saraswati Gupte on 27 th July, 1973 succession opened on 9th February, 1964 and 27th July, 1973 respectively but the suit has been filed only in the year 1995 and hence barred under Article 106 of the Limitation Act. Furthermore the suit properties were transferred in the year 1952 in the names of Manohar and Pramila by virtue of Article 110 of the Limitation Act the suit is barred. Property having been transferred by Gajanan Gupte and Saraswati Gupte pursuant to Government Grant Act no registration was required. All documents had been admitted. Therefore the transfer cannot now be questioned on the basis of a vague challenge particularly since Manohar and Pramila continued to be in absolute possession of the suit property. No ad-interim relief had been obtained and except for one tenant Mr. Malati Balakrishna Vijaykar no one had raised any objection, no lis pendence notice was registered. Defendant no. 4 being a bonafide purchaser under an agreement dated 21 st March, 1996 has validly obtained rights and therefore in exercise as right as owners transferred the premises to defendant no. 5. Plaintiff has no rights in the suit property and the declaration at Exhbit P-8 is neither false nor fabricated. Mr. Shetty therefore submitted that the suit deserves to be dismissed. He relied upon the 18/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt following decisions.
1. Sajanbir Singh Anand and Ors.vs. Raminder Kaur Anand and Ors.9
2. The Government Grants Act, 189510 Punjab State through Collector, Hoshiarpur vs. Lala Shiv Dayal and Ors. 11
3. 12
4. Gyani Tara Singh and Ors. vs. The State of Haryana and Ors.
27. All documents the aforesaid witnesses have relied upon are admitted by all parties and accordingly by orders dated 7 th November, 2014, 13th March, 2015, 15th July, 2016 and 12th August, 2016 these documents have been marked to be read in evidence. Defendant no.1 relied upon 14 documents which came to be marked Exhibit D-1/1 to D-1/14 vide order dated 15th July, 2016 to be read in evidence. Witness on behalf of defendant no. 5 has also deposed to defendant no. 5's defence in the suit and relies upon four documents which have been received and read in evidence being Exhibit D-5/2 to D-5/5. The evidence of the documents having thus being marked to be read in evidence. For ease of reference defendants' documents which were marked as Exhibits are listed in the table below :
Sr. No. Particulars Exhibit no. DOCUMENTS RELIED UPON BY DEFENDANT NO. 1 1 Copy of Certificate issued by MCGM (Assessor & Collector) Dept. to D-1/2 Manohar & Pramila dated 4.6.1953 2 Certificate issued by MCGM (Assessor & Collector) Dept. to Pramila D-1/2 dated 6.11.1981 3 Completion certificate issued by MCGM dated 14.1.1974 D-1/3 9 2018(3) Mh.L.J. 892 10 Act 15 of 1895 11 PLR (2004) 136 P&H 270 12 AIR 1974 P & H 266 19/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt 4 Copy of statement of Wealth Tax by Manohar & Pramila for D-1/4 Assessment year 1971-72 5 Assessment order of Wealth Tax for the year 1971-72 D-1/5 6 Statement of Wealth filed by Pramila for Assessment Year 1980-81 D-1/6 7 Statement of Wealth filed by Pramila for Assessment Year 1982-83 D-1/7 8 Statement of Income filed by Pramila for Assessment Year 1980-81 D-1/8 9 Statement of Income filed by Pramila for Assessment Year 1982-83 D-1/9 10 Receipts for payment of property tax by Manohar and Pramila for D-1/10 the years 1969, 1971, 1976 and 1979 11 Receipts for payment of land revenue by Manohar and Pramila D-1/11
dated 30.12.1953, 31.12.1954, 30.12.1955, 28.3.1958, 26.12.1963, 30.12.1966, 27.1.1967, 13.2.1980, 13.12.1984, 3.3.1990 12 Office copy of letter by Manohar to I.T.O. Bearing acknowledgment D-1/12 of I.T.O. 13 Copy of letter addressed to the Competent Authority by Pramila D-1/13 dated 20.5.1987 and acknowledgement dated 29.5.1987 DOCUMENTS RELIED UPON BY DEFENDANT NO. 4 1 Xerox copy of Paper cutting of the Public notice dated 8.8.1994 D-4/2 published in English Newspaper "Free Press Journal" 2 Xerox copy of Paper cutting of the Public notice dated 8.8.1994 D-4/3 published in Marathi Newspaper "Navshankti"
3 Xerox copy of Paper cutting of the Public notice dated 8.8.1994 D-4/4 published in Gujarathi Newpaper "Bombay Samachar"
4 Xerox copy of Certificate dated 14.10.1994 of Advocate Mrs. Netra D-4/5 Ajit Vijayakar 5 Original Certificate no. AA/Bom.Certs/17053/94-95 dated 1 st D-4/6 March, 1995 issued by the Appropriate Authority under Chapter XXC of the Income Tax Act 6 Certified true copy of the Registered Deed of Conveyance dated D-4/7 21.3.1996 (Registered with Sub-Registrar of Assurances at Bombay under Registration Sr.No. BBJ/1029/1996) made and entered into between Pramila Manohar Gupte (Original Defendant no.1) and Defendant no. 4 in respect of the Suit property 7 Original Assessment receipt dated 2.3.1994 for Rs.27.25 issued by D-4/8 Talati of Village Danda Taluka Andheri to Mrs. Pramila Manohar Gupte (Org.Defendant no.1) in respect of suit property 20/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt 8 Original Assessment Bill and receipt dated 4.12.1995 and D-4/9 18.12.1994 for Rs.27.25 issued by Talati of Village Danda, Taluka Andheri to Mrs. Pramila Manohar Gupte (Org. Defendant no.1) in respect of suit property 9 2 Original Assessment receipts dated 3.1.2001 and 23.5.2007 for D-4/10 Rs.396.00 and Rs.3500/- issued by Talati of Village Danda, Taluka Andheri to Defendant no.4 10 35 Original Electricity Bills for the period 14.10.1996 to August D-4/11 2000 issued by BSES Ltd. to Defendant no. 4 towards electricity consumption on Suit property 11 2 Original Electricity Bills for the month of April and May, 2008 D-4/12 issued by Reliance Energy to Defendant no. 4 towards electricity consumption on suit property.
12 21 Original Assessment Bills for the period 1.10.1997 to 3.10.2000 D-4/13 in respect of suit property issued by Municipal Corporation of Greater Bombay to Defendant no. 4 13 2 Original Water Bills both dated 25.8.2006 issued by Brihan D-4/14 Mumbai Mahanagar Palika to defendant no. 4 towards water consumption on suit property DOCUMENTS RELIED UPON BY DEFENDANT NO. 5 1 The Original Certified copy of the said Registered Deed of D-5/2 Conveyance dated 16.06.2018 obtained from the office of Sub- Registrar of Assurances, Andheri 2 Copy of newspaper cutting of "Free Press Journal" dated 8.2.2008 D-5/3 3 Copy of newspaper cutting of "Mumbai Samachar (Gujarati Edition) D-5/4 dated 21.5.2008 4 Copy of newspaper cutting of "Nav Shakti (Marathi Edition)" dated D-5/5 22.5.2008
28. The plaintiffs' sole witness was cross examined between 23 rd April, 2015 and 15th May, 2015. All defendants except defendant nos. 2 and 3 who have not been appearing in the suit have cross examined the plaintiffs' witness. The report of the Commissioner appointed for recording evidence dated 23rd June, 2015 records that on 23 rd April, 2015, 28th April, 2015, 7th 21/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt May, 2015 and 15th May, 2015 counsel for the defendants cross examined the plaintiffs' witness. Cross examination was concluded on 15 th May, 2015 and as recorded in order dated 20 th August, 2015, the plaintiffs closed their case. On 10th June, 2016 the plaintiffs' through their counsel after admitting the document filed on behalf of defendant no. 1 stated that he did not wish to cross examine the defendant no. 1's witness Madhubala Rao. Defendant nos. 2 and 3 were absent. The counsel for defendant nos. 4 and 5 also did not cross examine witness Rao .
29. On 15th July, 2016 Mahesh Chottubhai Pithawalla the witness on behalf of defendant no. 4 tendered his evidence affidavit dated 30 th June, 2016 which was marked to be read in evidence along with compilation of 13 documents which had already been marked D-4/2 to D-4/14 as aforesaid. The plaintiffs through counsel made a statement that he did not wish to cross examine defendant no. 4's witness. Counsel for defendant no. 5 also did not wish to cross examine defendant no. 4's sole witness. The order records that counsel for defendant no. 4 also did not wish to cross examine DW-2, reference being intended to defendant no. 1(a) to (c).
30. Lastly the evidence affidavit of one Asudo Karnani, Constituted Attorney who was described as DW-3 was also taken on record to be read in evidence on 12th August, 2016. While the affidavit came to be marked Exhibit D-5/1, documents tendered were four in number and were marked 22/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt D-5/2 to D-5/5 as aforesaid. Once again the plaintiffs through counsel submitted that he did not wish to cross examine the witness. Likewise counsel for defendant nos 1(a) and (b) also submitted that they did not wish to cross examine the witness since defendant nos. 2(a) to 2(c) and 3(a) and (b) who were brought on record after demise of original defendant nos. 2 and 3 did not remain present. Evidence of defendant no. 5 was closed. Evidence having been completed the matter was then heard on merits.
31. The factual aspects on evidence reveal that the plaintiff has chosen not to cross examine any of the witnesses DW-1, DW-2 or DW-3. Their evidence therefore has gone on record unchallenged. As far as the plaintiffs are concerned PW-1 Rajan Gupte has been cross examined as aforesaid on the deposition contained in his two affidavits and documents on record.. It is on this basis that the submissions were made by counsel on each of these issues.
32. Before I proceed to analyse the facts and the parties contentions it would be appropriate to consider the judgments cited. Reliance placed by Ms. Gupte in support of the plaintiffs case in H. Lakshmaiah Reddy (supra) may be justified inasmuch as mutation of a name in the revenue records cannot establish title in favour of such person. She is right when she contends that other legal heirs will not be deemed to have relinquished their rights by virtue of a mutation entry recording the name of the claimants. Ms. Gupte 23/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt had submitted that defendant no. 1 could not claim absolute right in the property and would at the most be entitled to one fourth share in the property but when one considers the fact that the transfer took place during the lifetime of the original owners, no assistance can be derived from the ratio in H. Lakshmaiah Reddy (supra) .
33. Similarly in the case of Balwant Singh (supra) the effect of mutation of the property in the revenue records neither creates nor extinguishes title has been reiterated. Balwant Singh's case holds that mutation in the revenue record does not even have presumptive value as to title. The facts of that case are not relevant for the present purposes since in Balwant Singh one of the reversioners of the original owner filed a suit for the declaration "Mutation if would not effect reversionary right after the death of the widow and the suit was decreed, the properties were then mutated in favour of the widow without any challenge. The widow then claimed to be absolute owner upon coming to the effect of Hindu Succession Act, 1956 and executed gift deed. Moreover upon the widow's demise the reversioners filed a suit. The mutation did not result in divesting the widow of title and since the previous decree was in respect of a simple declaration, it would not convey title in favour of the reversioner. The gift was then held to be valid . On facts, this judgment is of no assistance to Ms. Gupte or to the plaintiff in view of the transfer having been made during the life time of Gajanan Gupte. 24/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 :::
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34. Similarly in the case of Smt Sawarni (supra) the suit was sought to be resisted on the basis of mutation entries and the Court held that in paragraph 7 of that judgment that mutation of property in the revenue records does not create or extinguish title nor adds presumptive value on the title.
35. In Karlabai Begum (supra), adverting to the claim of the defendant to be entitled to adverse possession, the Court observed that as between Co- sharers there would be no ouster of the other co-sharer merely because he did not participate in the rent and profits of the land. In the facts of the present case it was submitted by Ms. Gupte that the defendants as co-sharers could not claim to be entitled to the property on the ground of adverse possession and merely because plaintiff did not contribute to the rent or profit and only the case Manohar Gupte was exclusively discharging his obligations cannot deprive the plaintiff of his share.
36. In the case of Hemji Waghaji Jat (supra) the Supreme Court had occasion to consider the classical requirements of adverse possession and in the course of hearing that case and on facts of that case observed the law of adverse possession which ousts the owner on the basis of inaction within a period of limitation is irrational, illogical and wholly disproportionate had the Human rights and Civil rights consideration. The Court recommended to Union of India to consider suitable changes in the law of adverse possession. This once again is of no assistance to the plaintiff.
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37. In a subsequent judgment of Nagabhushanammal (supra) the Court was once again called upon to consider a co-owner not in possession as against co-owner in possession. Making reference to Article 65 of the Limitation Act reliance was also placed on a three Judge bench decision in P.Lakshmi Reddy vs. L. Lakshmi Reddy 13 while observing that it is settled rule of law as between co-heirs that there must be evidence of assertion of hostile title coupled with exclusive possession and enjoyment by one of them. In the present case it is not necessary to enter upon this aspect since issue of adverse possession is alternative defence need not be considered in view of the fact that it was a transfer effected during the life time of original grantees Gajanan Gupte and Saraswati Gupte.
38. In S. P. Chengalvarya Naidu (supra) the Supreme Court considered a view of the High Court, which it held as erroneous, inasmuch as the High Court had observed that there was a legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. Further observing that the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The plaintiffs in the present case have clearly failed to make out a case of being deprived of their share in the property since the transfer in favour of Manohar and Pramila was during the life time of the parents Gajanan Gupte and Saraswati Gupte. It is also material to note that 13 AIR 1957 SC 314 26/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt defendant no. 2 and 3 Hemchandra Gajanan Gupte and Piroz Tipnis did not at any point of time challenge the defendants claim to the property. In my view the plaintiffs in the present case was duty bound to prove their case but as we have seen there is no attempt by the plaintiff even to cross examine defendant's witness and elicit the factual aspects. Although it may be contended that the original defendant no. 1 had died and that the trustee who gave evidence had no personal knowledge, that is a matter could have been highlighted by the plaintiff. The plaintiff was also duty bound to lead his own evidence in a manner such that they discharge the burden cast upon them.
39. In Motibhai Jijibhai (supra) reliance was placed by Ms.Panda on the observation that in the case of any relation to the legal effect of Rajinama and requirement of compliance under sections 2 and 54 of the Transfer of Property Act and Section 17 and 90 of the Registration Act. On facts it was found that the owner had relinquished his rights in favour of occupant under a statutory provision which contemplated giving up of interest absolutely in favour of another person followed by delivery of possession. The notice of relinquishment contained no reservation of rights in favour of the transfer. In that view of the matter it was found the Court negated the appellants contention that the respondent could not acquire rights in the property except by a registered sale deed. Considering the fact of the relinquishment under section 74 of the Land Revenue Code, the Court found that the transaction in question was not subject to compulsory registration and that 27/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt there was a specific exemption from registration. In the case at hand section 74 of the Land Revenue Code the Government land given as aforesaid leaves no manner of doubt that there was no occasion for any sale deed to be executed in favour of Manohar and Pramila and having it registered.
40. The case of Satyabhamabai (supra) deals with a case of a suit for partition and separate possession of house forming part of the ancestral property. The defendant having raised the plea of adverse possession claimed that the plaintiff had surrendered rights in the suit house, shifted from the house, which was gifted to the defendant by the grandfather. The defendant had been in possession and enjoying the property for more than 25 years. The Revenue records continuously for 30 years itself corroborating their plea of adverse possession and it was held that the suit filed was an afterthought, as a result the suit came to be dismissed. Thus as between co-sharers holding possession of property, the evidence recorded in that case revealed that upon death of the father during life time of that father no suit of partition was filed. The appellant - original defendant was in continuous possession since 1947 and continued to be in possession. On leading evidence it was found that the plaintiff had practically given up the suit property and not demanded his share. In the present case, the demand first surfaced only upon public notice being issued. Prior to the public notice there is absolutely no evidence of the original plaintiff having demanded a share of the suit property. The conduct of the plaintiff in having not adopted an appropriate proceeding to claim a 28/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt share at the appropriate time also must be held against the plaintiff.
41. In Punjab State, Hoshiarpur (supra) the Punjab and Haryana High Court had not considered the necessity of executing the sale deed and registering the same. In the case of Government Grants the Court held that execution of sale deed for conveyance of title was not necessary.
42. Likewise in Gyani Tara Singh (supra) also take similar view. In any event the provision of Government Grant Act, 1895 are clear on the transfer of property Act would not be applicable to the facts of the present case in respect of the transfer of Sanad from Gajanan Gupte and Saraswati Gupte to Manohar and Pramila.
43. In rejoinder the plaintiff had placed reliance on decision of the full bench of this Court in Sajanbir Singh Anand (Supra) which held that in an administration suit the period of limitation for filing of the suit depends on who the plaintiff is and that specific cause of action. There was no straitjacket formula for determining the period of limitation for filing a suit and pleading and prayers have to be analysed before the relevant article was made applicable. The Court considered whether Article 110 of the Limitation Act had application in a suit for administration of the estate of a deceased person and whether in the course of administering or partitioning the estate and property, movable and immovable whether different periods would apply for movable property and immovable properties. After considering the 29/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt effect of Section 13 of the Limitation Act and Articles 106 and 110 the Court came to the conclusion that no straitjacket formula could be applied and that pleading and prayers that would be analysed that the onus would be on the party claiming the shorter period of limitation. The reference was therefore answered accordingly.
44. In the instant case, it would appear that the issue of limitation will have to be answered in favour of the plaintiffs inasmuch as the original plaintiff had pleaded. The cause of action arose when the public notice came to be issued and it is on that basis that the plaintiff realised that the property was being dealt with and that fact read with the challenge to the declaration dated 27th August 1952 would in my view assist the plaintiff in overcoming the bar of limitation. On the issue of limitation I hold that the suit was not barred by limitation at its institution.
45. The declaration at Exhibit P-9 was purportedly signed by the original defendant no. 2 and by the original plaintiff and it appears to be executed before some authority. Exhibit P-9 bears an hand written endorsement which reads as follows :
Before me sd. xxx M.S.Bendre 27/8/52 However, the original signed version of Exhibit P-9 is not available with any 30/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt of the parties neither the plaintiffs nor defendants are in a position to produce the original of these documents. In my view the indications are since document is now admitted for evidence the original plaintiff would have signed the document which mentions the age of H.G.Gupte who is the first signatory at about about 37 years and S.G.Gupte is aged about 33 years. Reference to H.G. Gupte appears to be that of the original defendant no.2- Hemchandra Gajanan Gupte. Although the plaintiff have sought to contend that it is not signed by H.G.Gupte the fact remains that H.G.Gupte defendant no. 2 has not filed any written statement. He has not opposed the suit and to that extent since document is admitted I am inclined to hold that defendant no. 2 had in no uncertain terms consented to the grant of the no objection. Defendant no. 2 not having contested the claim of the plaintiff what remains to be seen is whether original plaintiff Sharadchandra alias S.G.Gupte had signed this document. Nothing has been shown to me to enable me to hold that the signature of S.G.Gupte is forged or that the document is fabricated.
46. The plaintiffs' contention in paragraph 9 of the plaint dealing with the declaration reads thus :
"Plaintiff submits that the said purported declaration is got up, forged, fabricated and bogus document. Plaintiff says that Plaintiff has not signed any such document in the past. The said purported declaration in the circumstances is neither binding nor enforceable against the Plaintiff. The Plaintiff submits that the said purported Declaration has been disclosed and put forward by the 1 st Defendant for the first time by the said letter dated 11 th April, 1995 and the Plaintiff had no knowledge of the said alleged declaration prior thereto." 31/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 :::
10-s-1812-1995.odt There is no specific averment regarding the execution of the said no objection by defendant no. 2. Indeed, had defendant no. 2 not signed this consent it would have been open to the plaintiff to obtain confirmation or evidence or deposition on behalf of defendant no.2 to that effect. Defendant no. 2 was served with the writ of summons. It is not in dispute that original defendant no. 2 passed away some time in 20th February, 1999 and the plaint came to be amended pursuant to an order dated 14 th October, 1999. It is not in dispute that the heirs of defendant no. 2 viz. defendant nos. 2(a), 2(b) and 2
(c) have since been brought on record. Defendant nos. 2(a) to 2(c) have also not defended the suit and to that extent I must proceed on the basis that there is no dispute as to the fact that original defendant no. 2 had executed declaration. That leaves only the plaintiff to establish that the declaration was not executed by Sharadchandra.
47. As a matter of record it is seen that the only other contention on behalf of the plaintiff is that the document under which the defendant claimed was not registered and in the absence of a registered deed, no title could have passed on the basis of the Sanad annexed at Exhibit P-5, the possession certificate at Exhibit P-6, the property registration card at Exhibit P-7, the declaration by Gajanan Gupte and Saraswati Gajanan Gupte, Exhibit P-8 and the declaration by the brothers at Exhibit P-9. The defendant no. 1 was not entitled to claim absolute ownership of the property and as a consequence there could be no valid transfer of the property from original defendant no. 1 32/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt to defendant no. 4 and the onward transfer from defendant no. 4 to defendant no. 5 would obviously be invalid for want of vesting of title. It is not in dispute that the agreement between defendant no. 1 and defendant no. 4 and that between defendant no. 4 and defendant no. 5 are registered conveyance deeds being Exhibit D-4/7 and D-5/2 respectively. Accordingly it is contended that the initial transfer from defendant no. 1 to defendant no. 4 being invalid, issue no. 5 would have to be answered in favour of the plaintiff inasmuch as the property is liable to be now divided by metes and bounds as set out in the plaint.
48. As far as issue no. 6 is concerned plaintiff have contended that the declaration Exhibit P-8 is forged and fabricated and got up. In the evidence of PW-1, Rajan Sharadchandra Gupte dated 19 th November, 2012 the witness has dealt with the Annexures H to N being Agreement in the Form HH dated 1st August, 1945, Sanad in Form KK dated 7 th August, 1945, possession certificate dated 21st May, 1945 as also extract of property registration card, Declaration dated 27th August, 1952 by G.S.Gupte and Mrs. S.G.Gupte and declaration dated 27th August, 1952 by the two brothers. It is submitted on the basis of this deposition that the documents do not show that legal and valid title was created in favour of Manohar and Pramila. Paragraph 14 of the deposition deals with the plaintiffs' contention that the property could not have been validly transferred since deceased defendant no. 1-Pramila and her husband late Manohar did not have valid title in their own name. The 33/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt plaintiffs' witness was cross examined between 23 rd April, 2015 and 15th May, 2015 and in answer to question nos. 19 and 20 the witness admitted that in relation to sale of certain plot no. 541 (not the suit property) the earnest money received was divided between the heirs of late Gajanan Gupte alluding to the sale of the property which is described as witness joint family property in paragraph 6 of the deposition.
49. Furthermore the witness deposed that apart from earnest money the original plaintiff, his brother Manohar Gupte and Hemchandra Gupte also became entitled to one flat each in the property put up on plot 541. On that basis it is contended that the suit plot also was joint family property. The witness confirmed in cross examination that Manohar Gupte who was in partnership with one M/s. Junarkar and had set up a firm of M/s. Junarkar and Gupte which, in the words of the witness "must have been" dissolved since Manohar had expired. He was personally not aware of the fact whether firm of M/s.Junarkar and Gupte had been dissolved.
50. The witnesses attention was drawn to events that had transpired in 1940 and the deposition in paragraph 5 of the affidavit. The witness admitted that his deposition in the affidavit is not based on his personal knowledge. In answer to question no. 31 as to who constructed the building on the suit plot, he admitted that Manohar had constructed the building and was paying property tax, water taxes and maintenance. In 34/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt answer to question no. 34 witness the volunteered that Manohar was looking after everything. Land revenue was paid by Manohar who was also collecting rent from the tenants. In view of admissions by the plaintiff and as evident from answers to question nos. 32 to 36, it cannot be disputed that at all material times, it was Manohar and Pramila who were maintaining the property, paying tax and in all manner exercising control over the suit property.
51. Vide question no. 56 the witness was asked whether Manohar and Pramila exercised ownership rights over the suit property since 1952, to which the witness answered that he did not know, but in answer to question no. 57, the witness disagreed that there was a valid transfer of the property by Gajanan Gupte and his mother to the late Manohar and Pramila. In answer to question no. 58, the witness has denied that the declaration dated 27th August, 1952 Exhibit P-8 was a validly executed document. The answer to question no.70 is of some relevance and hence it would be appropriate to reproduce question no. 70 and the answer thereto which reads as follows :
"Q. 70. Would it then be correct to say that as per this document also Mr.H.G.Gupte and S.G. Gupte i.e. Mr. Hemchandra Gupte and Sharadchandra Gupte have given their consent for transfer of this property in the names of Mr. Manohar Gupte and Pramila Manohar Gupte ?
A. Yes.
It is pertinent to note that this question was put to the witness after the attention of the witness was drawn to Exhibit P-9. Exhibit P-9 as we have 35/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt seen is declaration dated 27 th August, 1972 in which the witness had initially challenged his signature appearing as the second signature. At the same time in answer to question no. 70 he confirms the fact that both H.G.Gupte and S.G.Gupte had given consent for transfer of the property to Manohar Gupte and Pramila Gupte. It is not in doubt therefore the property was sought to be transferred by late Gajanan during his life time. The question is whether plaintiff can claim any share in that property. Once it is admitted that the property is transferred during the life time of his father, the other aspect that needs to be borne in mind that defendant nos. 2 and 3 have not come forward to question the disposal of the property.
52. Although it is the case of the plaintiff that defendant nos. 2 and 3 also received benefits of the sale of the plot no. 541 by receiving not only a share and earnest money, these answers of the witness have to be juxtaposed with answers to question no. 56, 57, 58 to which my attention has been invited by Ms. Gupte in support of her case. Question nos. 56 to 58 and answers thereto reads as follows :
Q.56. Whether any discussions amongst the family members left behind by Smt Saraswati Gupte took place after her demise in or around 1972-73 for the purpose of distribution of the properties, if any, that was left behind by the said Smt Saraswati Gupte ?
A. I do not know and I am not aware.
Q.57. Whether Smt Saraswati Gupte at the time of her demise left behind any properties ?
A. Yes. 36/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt
Q.58. What was the property left behind Smt Saraswati Gupte ?
A. Plot no. 541 and 545.
In question no. 60 witness was asked whether parents of the original plaintiff and defendant nos. 1, 2 and 3 had transferred the property during their life time with consent and knowledge of the original plaintiff . The answer of the witness is in the affirmative. For ease of reference question no. 60 and answer is reproduced below:
Q.60. I put it to you that Gajanan and his wife transferred the said property during their life time with the consent of knowledge of Sharadchandra ?
A. I agree.
Considering the answers to aforesaid question nos. 60, 70, 71 and 72 recorded on 15th May, 2015 what is to be seen is whether answers of the witness in question nos. 56, 57, 58, 59 assist the plaintiffs.
53. In the aforesaid background it is appropriate to consider the veracity of the witness deposition in the light of the answers to question nos. 56 to 59 (both inclusive) and question nos. 62, 63 and 64. The aforesaid questions and answers are reproduced for ease of reference :
Q. 62. Can you please tell whether Mr. Hemchandra G Gupte filed any suit or any proceeding claiming any rights on Plot No. 545 after the demise of Mr. Gajanan Gupte in the year 1964 or any time thereafter ?
A. No. (Attention of witness is drawn to Exhibit P-1] Q.63. How did you come in possession of this newspaper cutting ?
A. From my father 37/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt
Q.64. Would it then be correct to say that your father was in possession of this newspaper cutting in or about July / August 1994? A. Yes it would be correct to say that my father was in possession of this newspaper cutting in August 1994.
Thus on comparing these questions and answers one would see that while the witness admits to the fact that the suit property was transferred by Gajanan Gupte and his wife during their life time the witness refused to accept the fact that Manohar and Pramila exercised ownership rights and that there was a valid transfer in favour of Manohar and Pramila. The witness also disputed the fact that Exhibit P-8 and P-9 were validly executed documents. However in answer to question no. 61 the witness admits that the original plaintiff did not interfere with the possession of the suit property. Yet in answer to question nos. 62 and 63 witness has agreed that Sharadchandra Gupte the original plaintiff did not exercise ownership rights. Answers to question nos. 70 to 73 would however establish that if the plaintiff contends no valid transfer was effected, there is no justification in Sharadchandra not having taken any action after the knowledge of the transfer by his parents to Manohar and Pramila came to his attention. Even after the suit was filed, no steps appear to have been taken to prevent the enjoyment of the property by defendant nos. 1, 2 or 3 let alone defendant nos. 4 and 5. If indeed plaintiff was of the view that property was joint family property and there could have been no transfer of joint family property 38/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt without consent of all heirs, the fact that the plaintiff admits the fact that the suit property was transferred during the life time of the deceased militates against the plaintiff's contention in the suit.
54. I am therefore of the view that the plaintiff's case that the suit property is joint family property cannot be accepted. The evidence of the plaintiff is clear and unequivocal that the transfer took place during life time of the deceased Late Gajanan Gupte. Issue no. 2 must be answered in the affirmative and in favour of the defendants.
55. The next issue which comes up for consideration whether Pramila had validly transferred the suit property. In this context it is necessary to consider the evidence of the plaintiffs witness. The depositions to the effect that the declaration is forged or fabricated is only a bare allegation, unsupported by evidence, documentary or otherwise. The plaintiffs have not considered it necessary to cross examine the deposition on behalf of the defendant no.1 which was in my view crucial for the purpose of the plaintiff's case. Although the plaintiffs have not cross examined defendant nos. 4 and 5 is probably in view of the fact that defendant nos. 4 and 5 are transferees of the estate and especially so because transfer in favour of defendant no. 4 had taken place during the life time to the original defendant no. 1. To that extent the deposition of Madhubala Rao on behalf of the defendant no. 1 has not been called into question. Defendants' said witness has relied upon the 39/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt numerous documents all of which are admitted. Even the declaration at Exhibit P-8 which has now been called into question, has been admitted, save and except the limited challenge of signature of S.G.Gupte appearing as the second signatory which challenge in my view has no substance.
56. As far as defendant nos. 4 and 5 are concerned they are not directly involved in the proving of these documents. In any event defendant no. 4 claims through and under defendant no. 1 and defendant no. 5 claims through and under defendant no.4. Title in the instant case is to be ascertained from Exhibit P-3 and P-4 viz. Sanad granted by the Collector in favour of the original allottees of land Gajanan Gupte and Saraswati Gajanan Gupte. Although the original of these documents are not available, by consent of parties these documents are required to be read in evidence and stand admitted. The grant under the said Sanad is issued in favour of Gajanan Gupte and Saraswati Gajanan Gupte effective from 7 th August, 1945. Exhibit P-5 also grants permission to the said allottees G.S . Gupte and S.G.Gupte to occupy the site and build subject to conditions sanctioned by the Collector . In that respect the description of the land is not in dispute. It clearly describes the suit property and the grant is effective at least from 7 th August, 1945 if not earlier. The Sanad itself refers to the very same suit plot and was initially granted for a term of 50 years reckoning from 1 st September, 1945 is evident from Exhibit P-5. Subsequent possession is also not in dispute. 40/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 :::
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57. As far as aspect of inheritance is concerned, mere reference to the expression "inheritance" in the property register card is unconsequential as far as title is concerned. The reference to property card is not material to title because it is merely a record of rights. Transfer of property does not take place by mere incorporation of names in the property register card. The title in the instant case flows from the Sanad. Reference was invited to the provisions of Bombay Land Revenue Code 1879 in force at the material time and to that extent the provisions of section 74 of the Code which reads as follows :
74. The occupant may relinquish his land, that is, resign it in favour of the Crown, but subject to any rights, tenures, incumbrances or equities lawfully subsisting in favour of any person (other than the Crown or the occupant) by giving notice in writing to the Mamlatdar or Mahalkari before the 31st March in any year or before such other date as may from time to time be prescribed in this behalf by the Provincial Government, and such relinquishment shall have effect from the close of the current year.
Provided that no portion of land which is less in extent than a whole survey number or sub-division of survey number may be relinquished. The defendants had contended that it was within the power of the crown / government subject to any encumbrances to grant rights. The proviso too records that no portion of the land which is such in extent than the whole survey number may be so relinquished. It is case of the defendant that in pursuance of this provision the transfer to Manohar Gupte and Pramila Manohar Gupte that took place effectively after request dated 17 th April, 1952 forming part of Exhibit P-2. Exhibit P-2 reveals that the original 41/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt allocation to owners G.S. Gupte and S. G. Gupte aka Ms. Saraswatibai Gupte had vide said written dated 17 th April, 1952 addressed to the City Survey Officer requested the transfer of the property to the name of Manohar Gajanan Gupte and Pramila Manohar Gupte. Since the transfer took place during life time of the said Gajanan Gupte and Saraswati Gupte, read with the admission on behalf of PW-1 that the transfer did in fact take place during their life time, consent of the other two sons and the daughter was not essential.
58. In the instant case the consent had been so taken. The only issue to be considered is whether the effect of the challenge to the consent on behalf of the original plaintiff would negate the right vesting in Manohar Gupte and Pramila Gupte. In my view the absence of any challenge to the consent granted by Hemachandra Gupte must be held against the plaintiff inasmuch as save and except for the bare word of the plaintiff there is no evidence at all to effectively challenge the transfer rights. There is no evidence of forgery or fraud. In that light I am of the view that transfer in favour of Manohar Gupte and Pramila Gupte was absolute and could not be challenged especially since this transfer took place admittedly during the life time of the original allottees/ owners Gajanan Gupte and Saraswatibai Gupte. I therefore hold in favour of defendant no. 1. Issue no. 3 is accordingly answered in the affirmative and in favour of defendant no. 1. Once this is so held I am of the view that the transfer onward from defendant no. 4 to defendant no. 5 which 42/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt is by registered document cannot be called into question. Likewise defendant no. 4's transfer to defendant no. 5 also cannot be called into question. Issue no. 4 is therefore answered in the affirmative.
59. That leaves issue nos. 5 and 6 for consideration whether defendant no. 1-Pramila and her husband original defendant no. 1-Manohar were in uninterrupted, unobstructed and adverse possession of the suit property. In my view the plaintiff claim to one fourth of the suit property cannot be sustained for reason that transfer is admittedly during the life time of the original allottee / owners. That the suit property was joint family property and that the transfer itself was illegal. There is no challenge in the suit since the transfer is by Gajanan Gupte and Saraswati Gupte. In the first case if the property was indeed joint family property the first transfer would be challenged. Issue no. 5 must be answered in the negative. It is accordingly answered.
60. As far as issue no 6 is concerned in the absence of any specific evidence of the declaration of 27 th August 1952 was fabricated and in the absence of support from defendant no. 2, I hold that the plaintiff have not succeeded to establish that the said declaration is false, forged or fabricated especially since the document itself is admitted, one of the signatories to the document is original defendant no.1. Once document itself is admitted 43/44 ::: Uploaded on - 20/03/2020 ::: Downloaded on - 24/03/2020 03:07:41 ::: 10-s-1812-1995.odt dispute to the signature of one of the parties cannot be held in favour of the plaintiff. Issue no. 6 is therefore answered in the negative. In view of my conclusions and answers to issue nos. 2 to 6, issue no. 7 does not arise and the plaintiffs' cannot succeed in the suit. I therefore pass the following order :
(i) Suit is dismissed.
(ii) No order as to costs.
(A.K. MENON,J .)
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