Bombay High Court
Ganesh Shivaji Sutar vs Vishwanath Chinmaya Sherigar ... on 12 July, 2013
Author: R M Savant
Bench: R M Savant
sa-122-10.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.122 of 2010
WITH
CIVIL APPLICATION NO.306 OF 2010
WITH
CIVIL APPLICATION NO.1397 OF 2012
Ganesh Shivaji Sutar : Appellant
versus
Vishwanath Chinmaya Sherigar (deceased) through LRS: Respondents
Mr. A. A. Kumbhakoni with Mr. Roshan Tanna for the Appellants Mr. N. V. Walawalkar Senior Advocate with Mr. Umesh Mankapure for the Respondent No.1 ig CORAM:- R M SAVANT, J DATED :- 12th JULY, 2013.
P.C. 1 The above Second Appeal arises out of the Judgment and order dated 2-11-2009 passed by the Learned District Judge-1 Sangli, by which, the Appeal filed by the Appellant herein being Regular Civil Appeal No.7 of 2004, came to be dismissed and resultantly the decree of dismissal of the Suit dated 2-11-2009 passed by the Trial Court came to be confirmed.
2 The Suit in question being Regular Civil Suit No.382 of 1999 was filed by the Appellant/original Plaintiff for a declaration that the sale deed executed by the Defendant No.3 to the Suit i.e. his mother and Shivaji who was his father in favour of the Defendant Nos.1 and2 in respect of CTS mmj 1/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw Nos.954, 955 and 956 and municipal house No.2338/1 in Revision Survey 450/2 situated at Vita Taluka Khanapur is null and void. The Plaintiff had also prayed for possession of the suit property as also for injunction restraining the Defendants from carrying out any construction. It is not necessary for this Court to go into details of the antecedent ownership of the said property. For the purposes of the present Appeal, suffice it to say that Shivaji the father of the Plaintiff became one of the owners of the suit property and got the same mutated in the name of the Plaintiff in the City Survey record in the year 1982. The Suit filed by the Plaintiff for the relief which has been adverted to herein above was founded on the fact that he is the owner of the suit property. The sale deed was questioned on the ground that it is hit by the provisions of the Hindu Minority and Guardianship Act, as permission of the District Court was not sought by his guardian i.e. his mother prior to entering into the transaction with the Defendant Nos.1 and 2. The Plaintiff has therefore sought a declaration that the sale deed was not binding on him and since he required the property for business purposes and since the possession was denied by the Defendants that the Plaintiff had sought the relief of possession. The Defendant No.2 filed his Written Statement and set up a defence that the Suit is barred by limitation in view of the fact that it has not been filed mmj 2/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw within the period mentioned in Article 60 of the Limitation Act. It was averred that the Plaintiff has no exclusive right, title and interest in the suit property and that only on the basis of the City Survey record the Plaintiff could not claim to be the owner of the Suit property.
The mother who is the Defendant No.3 to the Suit also filed her Written Statement which Written Statement was in favour of the Plaintiff.
It was averred by her that the sale deed was got executed from her without bringing to her knowledge the nature of transaction. It was further averred by her that the entry made in favour of the Plaintiff was on account of the family arrangement. It was further averred by her that the Plaintiff is entitled to the relief sought in the Suit and therefore the Suit be decreed.
3 The parties went to trial and adduced both oral and documentary evidence. In the context of the pleadings of the parties, the Trial Court as can be seen framed issues amongst which were the issues which were at the center of the controversy between the parties. One of the issues, was whether the Plaintiff proves that the sale deed dated 13-7-1989 is obtained by the Defendant Nos.1 and 2 by practicing fraud and is accordingly void and the second issue was whether the Suit was within limitation. The parties adduced both oral and documentary evidence. On behalf of the Plaintiff, the evidence of about 5 witnesses including himself was adduced mmj 3/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw and on behalf of the Defendants the evidence of two witnesses i.e. the Defendant No.2 and the evidence of Balwant Sagare was adduced. The sale deed which was at the center of the controversy was produced as Exhibit
118. The Trial Court as can be seen from its judgment addressed the issue of whether the Plaintiff proves that the sale deed dated 13-7-1989 is obtained by the Defendants by practicing fraud, the Trial Court recorded a finding that entering of the name of the Plaintiff in the City Survey record on account of the family arrangement would not confer title to the Plaintiff. The Trial Court held that the property was of the absolute ownership of Shivaji and though there is a variance in the covenants mentioned in the sale deed, where on the one hand the document is shown as executed by the owner and on the other hand where it mentions that it is executed for the welfare of the minor. The Trial Court was of the view that notwithstanding the said fact the ownership of Shivaji i.e. the father of the Plaintiff could not be denied. If that be so, the Trial Court was of the view that it could not be said that the property of a minor has been disposed of in violation of the Hindu Minority and Guardianship Act. The Trial Court has further observed that the case of the Plaintiff that the said document was executed on account of fraud can also not accepted in view of the fact that the full consideration was paid to the vendor and that the mmj 4/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw document was got executed thereafter. Therefore in so far as the aspect of the sale deed being vitiated by fraud, the Trial Court answered the said issue against the Plaintiff. In so far as the issue of limitation is concerned, the Trial Court held that the Plaintiff was born on 14-7-1975 and therefore had turned major on 14-7-1993 and therefore the Suit filed in the year 1999 questioning the sale deed was beyond limitation in terms of Article 60 of the Limitation Act. The Trial Court therefore dismissed the Suit as filed beyond limitation by its Judgment and Order dated 3-11-2003.
3The matter was carried in Appeal by the Plaintiff by filing Regular Civil Appeal No.7 of 2004. The Lower Appellate Court as can be seen has confirmed the finding of the Trial Court in so far as the issue whether the sale deed was got executed by fraud. However, the Lower Appellate Court has observed that the suit property was a joint family property of the Plaintiff and his parents and as such father of the Plaintiff being Karta of joint family has executed the sale deed in favour of the Defendant No.2.
This observation has to be considered in the context of the fact that the Trial Court had held that the suit property was the exclusive property of Shivaji i.e. the father of the Plaintiff. In so far as the aspect of limitation is concerned, the Lower Appellate Court in the light of Article 60 of the Limitation Act, confirmed the finding of the Trial Court that the Suit filed mmj 5/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw in the year 1999 after the Plaintiff had attended majority in the year 1993, was time barred. The Lower Appellate Court therefore has by the impugned Judgment and order dated 2-11-2009 dismissed the Appeal and thereby confirmed the decree passed by the Trial Court. The Plaintiff has therefore been non suited on the point of limitation. The substantial questions of law which arise for consideration in the above Appeal are to the following effect.
(i) Whether the Courts below erred in holding that the Suit of the Plaintiff is barred by limitation in view of Article 60 of the Limitation Act, 1963.
(ii) Whether the Courts below erred in considering the period of limitation as per Article 60 of the Limitation Act and not Article 109 of the said Act.
4 Heard the Learned Counsel for the parties.
5 The Learned Counsel appearing for the Appellant Mr. Kumbhakoni would contend that once the Courts below had come to a conclusion that the suit property was not the exclusive property of the Plaintiff and since the Lower Appellate Court observed that it is a joint family property, he could not be non suited by applying Article 60 of the Limitation Act. The Learned Counsel would contend that a Suit filed for recovery of a share in mmj 6/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw the joint family property could be filed within 12 years of the cause of action having arisen and therefore the Suit filed in the year 1999 was within time. The Learned Counsel in support of the said contention would seek to rely upon the Judgment of a Division Bench of Karnataka High Court, reported in AIR 1985 Karnataka 143, in the matter of Ganpati Santaram Bhosale Vs. Ramchandra Subbarao Kulkarni. The Learned Counsel would contend that in the said Judgment it is held that the alienation of joint family property by Karta can be challenged and the limitation prescribed therefor is in terms of Article 109 and not Article 60 of the Limitation act. The Learned Counsel would lastly contend that the Plaintiff cannot have the worst of the two bargains namely that he is non suited on account of Article 60 and also non suited on the ground that it is not his exclusive property.
6 Per contra, the learned Senior Counsel appearing on behalf of the legal heirs of the Respondent No.1 Mr. Walawalkar would contend that the Courts below had to adjudicate the Suit on the basis of the case of the Plaintiff made out in the Plaint. The Learned Senior Counsel would contend that the Plaintiff had filed the Suit, which was founded on his claim of exclusive ownership and therefore the Courts below were required to adjudicate the Suit from the said angle. Merely because the Lower mmj 7/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw Appellate Court has made a stray observation that the property is a joint family property the same would not aid the Plaintiff to bring his Suit within limitation as prescribed by Article 109 of the Limitation Act. The Learned Senior Counsel in support of the said contention sought to rely upon the Judgment of the Apex court reported in 2002(5) Supreme Court Cases, 337 in the matter of A.V.G.P Chettiar & Sons & Ors. Vs. T. palanisamy Gounder wherein the Apex Court has held that the reasoning and conclusions of court should not be far removed from the pleadings of the parties.
7 Having heard the learned Counsel for the parties I have bestowed my anxious consideration to the rival contentions. In the instant case, it is required to be noted that the Plaintiff had founded his Suit on his exclusive ownership of the suit property and the same was claimed on the basis of his name being entered in the City Survey record by an application made by his father. It is in the said context that the case of the Plaintiff has been adjudicated by the Courts below. It is further required to be noted that the Plaintiff had prior to the instant Suit also filed a Suit earlier being Regular Civil Suit No.58 of 1999 which was for the same relief and was founded on the same fact of exclusive ownership. The said Suit was withdrawn by the Plaintiff on 21-9-1999 and thereafter the instant Suit was filed. In so far as mmj 8/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw the Trial Court is concerned, in the process of adjudicating the case of the Plaintiff whether the sale deed in question was vitiated by the fraud, the Trial Court has entered into the arena of the ownership of the suit property and on such consideration has come to a conclusion that the property was an absolute property of the father of the Plaintiff Shivaji and the alienation made by Shivaji along with the Defendant No.3 i.e. the mother of the Plaintiff could not be said to be illegal. The Trial Court also considered the contents of the said sale deeds and on such consideration the Trial Court recorded a finding that since the consideration amount was paid and since the document in question has been executed by the Defendant Nos.1 and 3 having full knowledge of the contents of the said document. It could not be said that the said document was got executed from the Defendants by fraud. In so far as the aspect of the limitation is concerned, the said aspect had to be considered by the Trial Court in the light of the case of the Plaintiff that was made out in the plaint. Since, it was the case of the Plaintiff that he is the owner of the property in question and since the Suit was filed for declaration that the sale deed was null and void and possession of the property was sought, the Lower Appellate Court having regard to the Apex Court Judgment reported in 2001 SCC 163 in the matter of Vishwambhat Vs. Laxminarayan (dead) through LRS. And mmj 9/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw another, recorded a finding that the Suit filed in the year 1999 was time barred as the alienation made by the natural guardian of the property of minor without court sanction and without legal necessity is viodable and not void ab intio. However, the relief in respect thereof must be sought within a period of limitation prescribed by Article 60 of the Limitation Act, i.e. within 3 years of attaining majority and since the Plaintiff had admittedly attained majority in the year 1993 and since the Suit was filed in the year 1999, the Trial Court held that the Suit was beyond limitation.
8A reading of the Judgment of the Lower Appellate court discloses that the Lower Appellate Court has in terms confirmed the finding of the Trial Court, in so far as the aspect of the limitation is concerned and held that the Suit is not maintainable, in view of the fact that it is filed beyond the period mentioned in Article 60. However, the Lower Appellate court has made a stray observation in paragraph 13 that the suit property was the joint family property of the Plaintiff and his parents. The said observations can only be said to be an observation which was de hors the pleadings of the parties and that there was also no necessity for the Lower Appellate Court to record the said finding as the Trial Court as indicated above has recorded a finding that the property was the absolute property of the father of the Plaintiff i.e. Shivaji. The said issue of whether the mmj 10/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw property was a joint family property, did not arise out of the pleadings nor on account of the finding of the Trial Court. In the context of the observations made by the Lower Appellate Court, ground Nos. 10 and 24 of the Appeal memo filed in the Lower Appellate Court are required to be seen and the same are reproduced herein under for sake of convenience:
"10. That the City Survey record is not challenged by the Defendant No.1(A) to 1(C) and 2 hence L.L.C. Ought to have held that the Plaintiff is the actual owner of the suit property as per the City Survey Record.
24.That the L.L.C. Wrongly come to the conclusion that Plaintiff Appellant has no right, title, interest and possession over the suit property."
Hence it can be seen that all along the Plaintiff has been asserting his right of being the owner of the suit property on the basis of the city survey record.
9 Now coming to the contention of Mr. Kumbhakoni the Learned Counsel appearing for the Appellants that once it was held by the Lower Appellate Court that the Plaintiff was not the owner of the suit property in question and that the property was a joint family property, the Plaintiff ought not to be non suited on the basis of Article 60 of the Limitation Act, as then Article 109 would be applicable. In my view, the said contention on the first blush appears to be attractive but does not hold water. It is mmj 11/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw required to be noted that the Plaintiff had filed the suit in question claiming to be the owner of the suit property and it is on the said basis that the Trial Court has adjudicated the Suit. On such adjudication the Trial Court has reached a conclusion that considering the foundation of the Plaintiff and the relief sought, it would be Article 60 that would apply and the Suit therefore filed by the Plaintiff after 6 years of attaining majority was time barred. Merely because the Lower Appellate court has made a stray observation in the said Judgment that the property is a joint family property of the Plaintiff and his parents, the Plaintiff cannot be heard to contend that it would be Article 109 that would apply and not Article 60.
In the said context it would be gainful to refer to the Judgment in Chettiar's case (supra) which was cited by the Learned Senior Counsel appearing on behalf of the Respondent No.1 paragraph 43 of the said Judgment is material and is reproduced herein under:
43.The High Court's reasoning was far removed from the pleadings of the respondent. The respondent had claimed that Gowthaman was the absolute owner of the suit property and that such absolute interest had been purchased by the respondent. Given this pleading the respondent could not be allowed to set up a different case and take shelter behind the definition of 'landlord' in the Act. The definition of 'landlord' is an enabling provision in the sense that it enables persons who are not the owners to ask for eviction under the Act. But it does not mean that a person who has claimed to be the landlord qua owner can jettison his mmj 12/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw case as pleaded in his eviction petition and establish his claim on the basis that he was otherwise entitled to claim as landlord of the suit premises. As held in M/s Trojan & Co. V. RM N.N.Nagappa Chettiar. "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found".
The Respondent therein who was the Plaintiff had claimed that Gowthaman was the absolute owner of the suit property and such absolute interest has been purchased by the Respondent, in the light of the said pleadings the Apex Court held that the Respondent could not be allowed to set up a different case and take shelter behind the definition of "landlord" in the Act. Meaning thereby that the case has to be adjudicated on the basis of the pleadings of the parties. If the instant case is considered in the said light the Plaintiff cannot be allowed to take advantage of the stray observation made by the Lower Appellate Court that the property is a joint family property and therefore Article 109 would apply to the Suit filed by the Plaintiff and since the period prescribed is of 12 years in terms of Article 109, the Suit filed in the year 1999 was maintainable. In so far as the Judgment of the Division Bench of the Karnataka High Court is concerned, the facts of the said case were that the Division Bench was dealing with a Suit for partition and it is in the said context that the Division Bench had carved out two categories, the mmj 13/14 ::: Downloaded on - 27/08/2013 21:06:11 ::: sa-122-10.sxw alienation made by a karta and alienation made by a guardian. It is in the said context that the Division Bench held that Article 109 would be applicable. The facts of the instant case are distinguishable from the facts before the Division Bench of the Karnataka High Court as in the instant case the Plaintiff had approached the Trial Court with a case that he is an exclusive owner and it is on the said basis that the suit was adjudicated.
10 In so far as the contention of the Learned Counsel appearing for the Appellants that the Plaintiff could not have the worst of the two bargains.
In my view, the said submission can only be stated to be rejected. As the Trial Court has adjudicated the Suit on the basis of the foundation and the relief claimed and therefore for the said reasons, the said submission has no merit. The impugned Judgment and Order passed by the Lower Appellate Court affirming the finding of the Trial Court that Article 60 of the Limitation Act would apply, cannot be faulted with. The questions of law as framed above to stand answered accordingly. The Second Appeal is accordingly dismissed.
11 In view of the dismissal of the above Appeal, the Civil Application Nos.306 of 2010 and Civil Application No.1397 of 2012 do not survive and to accordingly stand disposed of as such.
(R M SAVANT, J) mmj 14/14 ::: Downloaded on - 27/08/2013 21:06:11 :::