Bombay High Court
Avinash Trimbakrao Ingole vs Nathmal Motilal Kasat(D) Thr.L.Rs. & ... on 27 September, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
J-SA-141-03-- 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.141 OF 2003
Avinash s/o Trimbakrao Ingole,
Aged about 22 years, Occupation : Student
R/o Laxminagar, Amravati,
Tq. and Dist. Amravati. ... Appellant.
-vs-
1. Nathmal s/o Motilal Kasat
(since deceased) Through his
Legal heir Madhuri Nathmal Kasat,
Aged 25 years, R/o Sharda Udyog Hostel,
Amravati, Tq. & dist. Amravati.
2. Dilipkumar s/o Hiralal Shah
aged about 46 years, Occupation : Business
R/o Maltekdi Road, Amravati,
Tq. & Dist. Amravati.
3. Urmilabai w/o Dilipkumar Shah
Aged about 45 years, Occupation Household
work, R/o Maltekdi Road, Amravati,
Tq. & Dist. Amravati
4. Saraswatibai w/o Nathmalji Kasat,
Aged about ... years, Occupation Household
work, R/o Vilas Nagar, Amravati,
Tq. & Dist. Amravati (Died during
pendency of the suit)
5. Trimbakrao s/o Rupraoji Ingole
(since dead) Thr. Lrs
5(1) Sushilabai wd/o Trimakrao Ingole
aged about 76 years, Occupation-Household
work, R/o at post Dabha Tq. Nandgao
Khandeshwar, Dist. Amravati
(Maharashtra State)
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J-SA-141-03-- 2/12
5(2) Jayant s/o Trimakrao Ingole
aged about 51 years, Occupation Service,
R/o Laxminagar New Cotton Market Road,
Amravati, Tq. And Dist. Amravati.
5(3) Vandana d/o Trimakrao Ingole
aged about 45 years, Occupation Household
work, R/o Plot No.37, Mhada Colony,
Badnera (Railway), Tq. and Dist. Amravati.
Shri A. N. Ansari, Advocate for appellant.
Shri J. B. Kasat, Advocate for respondent No.1.
Shri B. N. Mohta, Advocate for respondent No.2.
CORAM : A. S. CHANDURKAR, J.
DATE : September 27, 2018.
Oral Judgment :
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the original plaintiff who is aggrieved by the dismissal of the suit by him for a declaration that the sale-deeds executed by his father in favour of defendant Nos.1 to 4 were null and void and executed without there being legal necessity.
2. The facts in brief are that according to the plaintiff he was born on 01/08/1976 and he is the son of one Trimbak Ingole-defendant No.5. On 03/11/1983 the plaintiff's father executed a gift-deed of land admeasuring about 1 hectare 62 acres in his favour and the plaintiff's mother was appointed as guardian as he was a minor. The plaintiff was in possession of ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 3/12 the suit property through his mother. However, his father without there being any legal necessity executed sale-deeds dated 12/12/1984 and 16/02/1985 in favour of defendant Nos.1 to 4 with regard to the entire suit field. According to the plaintiff he was the absolute owner of the suit field and without obtaining permission of the District Court as required by law, those sale-deeds could not have been executed. The suit was accordingly filed on 30/10/1985 seeking a declaration that the aforesaid sale-deeds were null and void alongwith the relief of permanent injunction.
3. The defendant Nos.1 to 4 in whose favour the aforesaid sale- deeds were executed filed their written statement at Exhibit-52. It was pleaded that said defendants were bonafide purchasers for value and that after paying the necessary consideration they were put in possession of the respective fields. They further pleaded that their vendor-defendant No.5 had told them that the gift-deed executed in favour of the plaintiff was a nominal document which was not to be acted upon. Accepting that statement the transactions were entered into. It was pleaded that on 27/02/1984 and 17/12/1984 the defendant No.5, his wife and another son entered into agreements to sell various lands and on that basis the sale-deeds in favour of defendant Nos.1 to 4 were executed.
4. The defendant No.5 in his written statement at Exhibit-26 ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 4/12 admitted execution of the sale-deed in favour of defendant Nos.1 to 4. He further pleaded that the consideration mentioned therein was not received by him. He further admitted that he did not obtain necessary permission from the District Court before executing the sale-deeds.
5. The trial Court after considering the evidence on record held that the plaintiff had not proved his ownership over the suit fields by virtue of the gift-deed dated 03/11/1983. It further held that the plaintiff failed to prove that the sale-deeds executed by defendant No.5 in favour of defendant Nos.1 to 4 were illegal. On that basis the suit as filed came to be dismissed. The appeal preferred by the original plaintiff was also dismissed. Being aggrieved, the original plaintiff has filed this Second Appeal.
6. While admitting the Second Appeal the following substantial questions of law were framed :
(1) Whether the decision of the Court below that the gift-deed dated 03/11/1983 was not valid and the plaintiff/appellant had not proved their title is perverse ?
(2) Whether the signing of sale-deed or agreement to sale by natural guardian of a minor either as a vendor, as a consenting party or as a witness would validate for sale-deed ?::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 5/12
7. Shri A. N. Ansari, learned counsel for the appellant submitted that both the Courts committed an error in holding that the title of the plaintiff by virtue of the gift-deed dated 03/11/1983 was not duly proved. The execution of that gift-deed was admitted by defendant No.5 and the said document was duly registered. The title of the suit property vested in the plaintiff and hence the sale-deeds executed subsequently by the defendant No.5 had no legal effect. The same would not bind the plaintiff. In any event it was submitted that the plaintiff being a minor, in the light of provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 (for short, the Act of 1956), no permission of the District Court was obtained before executing the sale-deeds. The sale-deeds were therefore not valid and binding on the plaintiff. In that regard the learned counsel placed reliance on the decisions in Saroj vs. Sunder Singh and ors. 2013 (15) SCC 727 and Panni Lal vs. Rajinder Singh (1993) 4 SCC 38. It was then submitted that merely because the plaintiff's mother had signed some of the sale-deeds as a witness and had also signed the agreements of sale, the same would not amount to the minor's guardian consenting to the said transaction. Such act on the part of the guardian would not validate the transactions effected without obtaining due permission of the District Court. It was submitted that both the Courts committed an error in that regard while refusing relief to the plaintiff. The learned counsel also submitted that both the Courts drew unnecessary inference from the fact that the gift-deed ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 6/12 was executed when the plaintiff was only seven years old. There was no reason to doubt the bonafides behind executing that gift-deed and moreover the defendant Nos.1 to 4 did not file any counter-claim for challenging the gift-deed. The findings recorded by both the Courts in that regard were based on surmises and hence perverse. Similarly the ground of challenge as raised that execution of the sale-deeds resulted in creation of fragments was also not considered by both the Courts. It was thus submitted that the judgments dismissing the suit were liable to be set aside and a decree ought to be passed in favour of the plaintiff.
8. Shri J. B. Kasat, learned counsel for respondent No.1 and Shri B.N. Mohta, learned counsel for respondent No.2 supported the impugned judgments. It was submitted that both the Courts had concurrently found that the plaintiff had no title in the suit properties. Those properties belonged to the defendant No.5 and he was competent as the head of the family to execute the sale-deeds. The provisions of Section 8 of the Act of 1956 would also not apply in the facts of the case. The plaintiff failed to examine his father in support of his case and therefore the finding as recorded with regard to the nominal nature of the gift-deed was correct. In any event it was submitted that the plaintiff would not have absolute right in the suit property and he may only have a joint right along with other family members. The conduct of the mother who was the guardian of the plaintiff ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 7/12 of signing the sale-deeds as well as the agreements of sale clearly indicated that she as guardian had consented to the aforesaid alienation. It was thus submitted that both the Courts rightly held against the plaintiff and no interference was therefore called for.
9. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case. The evidence on record indicates that initially land admeasuring about 12 acres came to be purchased by defendant No.5 alongwith his wife and elder son Jayant. 3 acres of land was purchased in the name of elder son Jayant and 5 acres came to be purchased in the name of his wife, Sushilablai. The suit land which admeasures about 4 acres was purchased in the name of the father- Trimbakrao, defendant No.5. It is with regard to this land the defendant No.5 on 03/11/1983 executed a gift-deed in favour of the plaintiff. That gift-deed is at Exhibit-45. Same has been duly registered. The defendant No.5 in his written statement has admitted the due execution of that gift- deed and hence the same has been duly proved. It is thereafter that on 12/12/1984 and 16/12/1985 the suit lands were sold in favour of defendant Nos.1 to 4. The said sale-deeds have been executed by defendant No.5 and his wife- guardian of the plaintiff has signed some of the sale-deeds as a witness to sale-deed. It is on these facts that the plaintiff has sought declaration that aforesaid sale-deeds in respect of the suit lands which were ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 8/12 gifted to the plaintiff were not binding on him and were null and void. One of the grounds for such challenge was by relying upon the provisions of Section 8 of the Act of 1956.
10. For considering the aspect as to voidness of the sale-deed executed by defendant No.5 in favour of defendant Nos.1 to 4, the provisions of Section 8 of the Act of 1956 can be taken into consideration. It is undisputed that the plaintiff was born on 01/08/1976 and the gift-deed in his favour was executed on 03/11/1983. The sale-deeds in question have been executed when the plaintiff was a minor and his interests were being looked after by his mother. Under provisions of Section 8 of the Act of 1956 the natural guardian of a Hindu minor has a power to do all acts that are necessary or reasonable and proper for the benefit of the minor. However without previous permission of the Court the immovable property of the minor cannot alienated either by transfer, gift, exchange or otherwise nor can be same be mortgaged or charged. Any such disposal of immovable property is voidable at the instance of the minor or any person claiming under him. The provisions of Section 8 of the Act of 1956 have been considered in Pannilal (supra) wherein it has been held that sale of immovable property of a minor by the mother as a guardian with attestation of the sale-deed by the father would render the sale void in absence of any permission of the Court. Similarly in Saroj (supra) the aforesaid legal ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 9/12 aspects have been reiterated.
11. From the aforesaid decisions it is clear that the provisions of Section 8 of the Act of 1956 protect the interest of a minor from alienation even by the natural guardian if the same is without previous permission of the Court. Such disposal in contravention of sub-section (1) or (2) of Section 8 of the Act of 1956 has been made voidable at the instance of the minor. Thus the effect of Section 8 of the Act of 1956 on the alienation made by defendant No.5 would have to be considered in the light of aforesaid legal position.
12. It has been found by both the Courts on the basis of evidence on record that though the suit land was gifted to the plaintiff by the defendant No.5, the gift-deed was held to be a nominal document not intended to be acted upon. For arriving at that finding the circumstances taken into consideration are that : (a) The recital in the gift-deed that it was being created for the minor's education was found improbable considering the age of the plaintiff and (b) The suit property was sought to be saved from the clutches of one Indubai who according to defendant nos.1 to 4 was the keep of defendant No.5. It is on that basis the Courts have recorded a finding that the gift-deed was not intended to be acted upon and hence did not confer any title in favour of the plaintiff. It is to be noted that the gift-deed was a ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 10/12 registered document and if it legal effect was to be taken away it was necessary for defendant Nos.1 to 4 to have sought a declaration in that regard. However, without seeking any such declaration only a defence has been raised that the said gift-deed was not intended to be acted upon. In absence of any such relief being sought by defendant Nos.1 to 4 it will not be permissible for said defendants to avoid the legal effect of the said gift-deed merely on the premise that it was a document not intended to be acted upon. In the present facts it is found it was necessary for defendant Nos.1 to 4 to have challenged that gift-deed by seeking appropriate declaration in that regard.
13. There is no legal basis for the assumption on the part of both the Courts that as the plaintiff was only aged seven years, the object of securing his future education by executing the gift-deed was something very improbable. Similarly, the premise that the gift-deed was executed so as to save the property from the clutches of the keep of the defendant No.5 is based on surmises and by relying upon an application given by the plaintiff's mother to the Naib Tahsildar dated 03/01/1983 at Exhibit-111. However, the record indicates that as per the application dated 03/01/1984 moved by the plaintiff's mother, the suit field was mutated in the plaintiff's name at Exhibit-46. Besides the document at Exhibit-111, there is no other evidence on record to hold that the gift-deed was executed to save the suit field from ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 11/12 the vices of Trimbakrao. That conclusion recorded by the Courts is on a complete misreading of Exhibit-111 resulting in perversity.
14. Even if it is assumed that the gift-deed was executed in collusion between defendant Nos.5 and his family members in favour of the plaintiff, by virtue of the gift-deed as executed the title was created in favour of the plaintiff. His rights could not have been alienated without seeking due permission from the Court as contemplated by provisions of Section 8 (2)(a) of the Act of 1956. It was not permissible for both the Courts to ignore the said mandatory requirements on the premise that the gift-deed was not intended to be acted upon. The finding recorded by both the Courts in that regard is found to be perverse. Substantial question of law No.(1) stands answered accordingly.
15. As regards signing of the sale-deeds and the agreement of sale by the mother is concerned, same would not by itself validate such alienation in absence of any permission from the Court. As noted above, the provisions of Section 8(2)(a) of the Act of 1956 have been held to be mandatory in nature and the aspect of implied consent for alienation cannot act as a substitute for not seeking permission of the Court. Hence the act of the mother signing the sale-deeds or the agreement in question would not validate those transactions in absence of permission of the Court. The ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 ::: J-SA-141-03-- 12/12 finding recorded by both the Courts in that regard cannot be sustained as it is contrary to law. Substantial question of law No.(2) is answered by holding that the act of the mother of signing the sale-deeds and agreements of sale as a consenting party would not validate the same in absence of permission from the Court under Section 8(2)(a) of the Act of 1956.
16. In view of aforesaid discussion it is found that both the Courts erred in holding against the plaintiff. It is found that the plaintiff has proved the case as pleaded. He is thus entitled for appropriate relief.
17. Accordingly the following order is passed :
i) The judgment of the trial Court dated 20/08/1998 in Spl.C.S.No.132/1985 as well as judgment of appellate Court in R.C.A. No.245/1998 is set aside.
ii) Spl.C.S. No.132/1985 is decreed in terms of prayer clauses (a) and (b) in the plaint.
iii) Respondent Nos.1 to 4 are granted time of two months to act according to decree.
iv) It is open for respondent Nos.1 to 4 to proceed against the estate of defendant No.5 for recovery of the sale consideration paid by them.
v) The Second Appeal is accordingly allowed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 00:31:39 :::