Bombay High Court
Basantilal S/O Motilal Tiwari vs Ramashankar S/O Kamtaprasad Tiwari on 6 February, 2014
Author: A. P. Bhangale
Bench: A. P. Bhangale
1 sa164.02, sa198.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.164 of 2002
with
Second Appeal No.198 of 2002
Second Appeal No.164 of 2002
Basantilal S/o Motilal Tiwari,
Aged about 70 years,
Occupation Business,
Resident of 280,
Central Bazar Road,
New Ramdaspeth, Nagpur,
Tahsil and District Nagpur. ..... Appellant.
(Orig. Defendant No.1)
:: versus ::
1. Ramashankar S/o Kamtaprasad Tiwari,
Aged about 64 years,
Occupation Business,
Resident Block No.MA 22,
Laxmi Nagar, Nagpur,
Tahsil and District Nagpur. ..... (Orig. Plaintiff)
2. Umashankar S/o Kamtaprasad Tiwari,
Aged about 50 years,
Occupation Business,
Resident of Old Lakh Karkhana Building,
Surya Tola Road,
Ram Nagar, Gondia,
Tahsil Gondia, District Bhandara. ..... (Orig. Defendant No.2)
3. Sushilkumar S/o Kamtaprasad Tiwari,
Aged about 33 years,
Occupation Business,
Resident of Tiwari Colony,
Bajaj Ward, Gondia,
Tahsil Gondia, District Bhandara. ..... (Orig. Defendant No.3)
.....2/-
::: Downloaded on - 13/02/2014 23:13:35 :::
2 sa164.02, sa198.02.odt
4. Chandrakalabai Wd/o Kamtaprasad Tiwari,
Aged about 72 years,
Occupation Household,
Resident of Tiwari Colony,
Bajaj Ward, Gondia,
Tahsil Gondia,
District Bhandara. ..... (Orig. Defendant No.4)
Respondents.
===============================================
S'Shri S.V.Manohar, Senior Counsel for the Appellant.
Shri S.R.Deshpande, Counsel for Respondents.
===============================================
ig With
Second Appeal No.198 of 2002
Ramashankar S/o Kamtaprasad Tiwari,
Aged about 64 years,
Occupation Business,
Resident of Block No.M.A.22,
Laxminagar, Nagpur,
Tahsil and District Nagpur. ..... Appellant.
(Orig. Plaintiff)
:: versus ::
1. Basantilal S/o Motilal Tiwari,
Aged about 70 years,
Occupation Business,
Resident of 280,
Central Bazar Road,
New Ramdaspeth, Nagpur,
Tahsil and District Nagpur. ..... (Orig. Defendant No.1)
2. Umashankar S/o Kamtaprasad Tiwari,
Aged about 50 years,
Occupation Business,
Resident of Old Lakh Kharkhana Building,
Surya Tola Road, Ramnagar,
Gondia, Tahsil Gondia,
District Bhandara. ..... (Orig. Defendant No.2)
.....3/-
::: Downloaded on - 13/02/2014 23:13:35 :::
3 sa164.02, sa198.02.odt
3. Sushilkumar S/o Kamtaprasad Tiwari,
Aged about 33 years,
Occupation Business, ..... (Orig. Defendant No.3)
R/o Tiwari Colony,
Bajaj Nagar, Gondia,
Tahsil Gondia, District Bhandara.
4. Chandrakalabai Wd/o Kamtaprasad Tiwari,
Aged about 72 years,
Occupation Household,
Resident of Tiwari Colony,
Bajaj Ward,
Gondia, Tahsil Gondia,
District Bhandara. ..... (Orig. Defendant No.4)
Respondents.
===============================================
Shri S.R.Deshpande, counsel for the Appellant.
S'Shri S.V.Manohar, Senior Counsel for Respondents.
===============================================
CORAM : A. P. BHANGALE, J.
RESERVED ON : 23rd January, 2014.
PRONOUNCE ON : 06th February, 2014.
JUDGMENT.
1. Second Appeal No.164 of 2002 is filed by Basantilal Motilal
Tiwari and Second Appeal No.198 of 2002 filed by Ramashankar
Kantaprasad Tiwari are directed against Judgment and order dated
10-12-2001 passed by 3rd Additional District Judge, Nagpur in
Regular Civil Appeal No.283 of 2000 which was partly allowed
allowing one-third share to the Ramashankar (Original Plaintiff)
and one-third share each to Basantilal (Ori. Defendant No.1) and
.....4/-
::: Downloaded on - 13/02/2014 23:13:35 :::
4 sa164.02, sa198.02.odt
Umashankar (Ori. Defendant No.2). Both the appeals arose out of
the Judgment and order dated 14-01-2000 passed by the 5 th Joint
Civil Judge Senior Division at Nagpur in Special Civil Suit No.692
of 1988 whereby the suit was dismissed by the trial Court.
2. Second Appeal No 164 of 2002 was admitted by this Court on
2nd May 2005 on the following substantial Questions of law:-
i) Whether the suit was not tenable and was
liable to be dismissed for misjoinder of causes
of action?
ii) Whether the First Appellate Court was
justified in declaring the shares of the parties
in the absence of any prayer to that effect by
the plaintiff?
My answers for (i) Suit was tenable and ought
to have resulted in conditional preliminary
decree as under (ii) is affirmative to avoid
multiplicity of the judicial proceedings in the
larger interest of justice.
3. Second Appeal No.198 of 2002 was admitted by this Court
upon following substantial questions of law :-
i) Whether the Lower Appellate Court was right
in assuming that the suit plot was vested in the
Government in the absence of any pleadings?
Answer:- The First appellate Court was justified
to reach and record finding as to title of the
suit property as last court of facts.
ii) Whether the agreement (Ex 108) amounts to
.....5/-
::: Downloaded on - 13/02/2014 23:13:35 :::
5 sa164.02, sa198.02.odt
transfer and is hit by Nagpur Improvement
Trust Land disposal Rules 1983?
Answer:- So far as the right to possess the
construction made upon the leasehold land
with the Sanction of the NIT, the agreement
entered in to between the private parties as
co-sharers would bind them to effect the
transfer of right to possession of the
construction made upon the leasehold land as
between the parties to the agreement and/or
the suit. Upon such agreement the private
parties must inform the NIT and other
competent local Authority to save the
agreement from being hit by law or from
being invalidated under the NIT Land disposal
Rules, 1983.
iii) Whether the first appellate court failed to
follow the procedure in Order 41 rule 2 of the
Code of Civil Procedure?
Answer:- No. The First appellate court, in the
larger interest of justice as final court of facts,
can decide the first appeal without being
confined to the grounds set out in the
memorandum of the appeal by the appellant.
4. Substantial questions of law are answered accordingly for the
following reasons.
5. Briefly stated facts are :
Subject matter of the dispute is leasehold interest in Plot No.
280 having total area of 9828.22 Sq. Feet owned and disposable by
the Nagpur Improvement Trust. The plot has construction of
4905.80 Sq. Feet sanctioned by the Nagpur Improvement Trust
(NIT) out of total buildable area of 8914.11 Sq. feet. The leasehold
.....6/-
::: Downloaded on - 13/02/2014 23:13:35 :::
6 sa164.02, sa198.02.odt
interest in the suit plot was not capable of sub-division under the
rules of NIT. Basantlal Motilal Tiwari, (the first defendant) had
constructed residential Block with a staircase on the North side
while the plaintiff was allotted the western portion which he had
constructed to the west of' AB' line shown in the Map. Remaining
portion was allotted to Basantlal Motilal Tiwari.
Family Genealogical tree is as under:-
(Kantaprasad) = Chandrakalabai ( Deft no. 4)
Died on 30-10-1981
|_______________________________|
|
Ramashankar Umashankar Sushilkumar
(Plaintiff) (Def.No.2) (Def.No.3)
Basantlal Motilal Tiwari (first defendant) is nephew of
Kantaprasad and used to look after family's business along with
Kantaprasad.
The parties are referred to by their nomenclature as stated in
the title to the suit in trial Court.
The plaintiff in the suit filed in the trial Court had claimed two-
third share in the suit plot no.280 with construction thereon.
According to the Plaintiff there was partition of the suit property
under the agreement dated 15-07-1982. The plaintiff also prayed
.....7/-
::: Downloaded on - 13/02/2014 23:13:35 :::
7 sa164.02, sa198.02.odt
for an injunction to restrain Tenants of the shops in the suit plot
from paying rent to Basantilal,(the first defendant), requiring the
shopkeepers to deposit it in the Court. It is case of the Plaintiff that
his Father Kantaprasad died on 30-10-1981. On the first death
anniversary of Kantaprasad, there was Partition on 30-10-1982
between Ramashankar and defendant nos.2,3,4. List of shares
prepared was signed. Accordingly the Partition was effected in
writing dated 28-05-1983 on a Stamp Paper of the denomination of
Rs. 5/-. According to the Plaintiff, Basantilal Motilal Tiwari (first
defendant) is nephew of Kantaprasad resided by the side of the suit
plot .Umashankar (2nd defendant) had released his share in the suit
plot in favour of the Plaintiff by an affidavit while the plaintiff had
released his share in the joint family property by an affidavit. List of
Partition was prepared on 28-05-1983 and acted upon by the
parties, taking actual possession of their shares accordingly. The
Plaintiff had entered in to an agreement with the Basantlal (first
Defendant) and Umashankar (Second defendant) on 15-07-1982.
The Plaintiff and the first defendant had agreed to share the suit
plot and pay the dues of the ground Rent to NIT by getting their
names mutated in the record of the NIT. On 4-7-1958 the plaintiff
and the defendant no.1 and 2 applied to NIT for the transfer of the
leasehold interest in the suit plot. Deletion of the name of
Umashankar, second defendant was sought. On 11-06-1972
Basantlal moved an application to the Nagpur Municipal
Corporation (NMC) and informed by an affidavit dated 5-06-1974
.....8/-
::: Downloaded on - 13/02/2014 23:13:35 :::
8 sa164.02, sa198.02.odt
that it was he who had constructed the building on the half portion
of the land. NIT by Memo dated 05-09-1989 issued to the plaintiff
and first and second defendant demanded sum of Rs 683/- which
was deposited by the plaintiff on 21-09-1989. The plaintiff had on
30-09-1989, also applied to NIT for renewal of the leasehold
interest with effect from 01-04-1989 for the term of 30 years. The
first defendant had resisted the suit claiming that entire ground
rent, premium, municipal Taxes etc. payable were paid by him .
6.
Learned Counsel Shri Manohar alleged that there was
collusion between the first and second Defendants on the pretext
of alleged relinquishment of his share by the second defendant in
favour of the Plaintiff Ramashankar. Shri Manohar submitted that
as against the first Defendant, no any evidence was led in respect
of the contribution for the construction by the Plaintiff.
Ramashankar had shared the contribution but had never paid the
entire ground Rent. No any general suit was filed for the Partition.
Share on Partition would be different than share in leasehold.
Relinquishment of his share by Umashankar was for consideration
as per Ex 91. With reference to the ruling in Mahadeo Tulsiram
Pathade through L.R.s Vs. Vatsalabai Shamrao Pathade
reported in 2008 (6) Mah L J 496 that in a suit for Possession
when Memorandum of the partition was relied upon in evidence
which was a document in the nature of family arrangement or sort
of compromise or settlement but which could not be construed as
.....9/-
::: Downloaded on - 13/02/2014 23:13:36 :::
9 sa164.02, sa198.02.odt
a Partition deed by which any right was created, extinguished or
declared so as to render it as compulsorily registrable. It was held
by this court as merely memo of Partition and it was not a deed
required to be registered compulsorily. True it is that a family
arrangement by which the property is equitably divided between
the various contenders so as to achieve an equal distribution of
wealth instead of concentrating the same in the hands of a few is
undoubtedly forms a milestone in the administration of social
justice. That is why the term 'family' has to be understood in a
wider sense so as to include within its fold not only close relations
or legal heirs but even those persons who may have some sort of
antecedent title, a semblance of a claim or even if they have a spes
successionis, so that future disputes are sealed for ever and the
family instead of fighting claims inter se and wasting time, money
and energy on such fruitless or futile litigation is able to devote its
attention to more constructive work in the larger interest of the
country. The Courts have, therefore, leaned in favour of upholding
a family arrangement instead of disrupting the same on hyper
technical or trivial grounds. Where the Courts find that the family
arrangement suffers from a legal lacuna or a formal defect the rule
of estoppel is pressed into service and is applied to shut out plea of
the person who being a party to family arrangement seeks to
unsettle a settled dispute and claims to revoke the family
arrangement under which he has himself enjoyed some material
benefits.
.....10/-
::: Downloaded on - 13/02/2014 23:13:36 :::
10 sa164.02, sa198.02.odt
Shri Manohar also invited my attention to the view expressed
by this Court in the case of Nilkanth Sampat Khandade Vs.
Bhaurao Sampat Khandade reported in 2008 (4) Mah. L.J.
215. In that case this court found that the Relinquishment of right
in immovable property by deed for disclosed consideration of
Rs.50.000/- by a deed attracted Sections 34, 37 of the Bombay
Stamp Act read with Sections 17 and 49 of the Registration Act and
hence objection as to admissibility was upheld and Relinquishment
Deed was held inadmissible in evidence for reasons stated by this
in the facts and circumstances of that case.
7. On behalf of the appellant Shri Ramashankar Advocate Shri
Deshpande contended that finding by the first appellate court is
wrong as the first appellate court went in to questions which were
neither pleaded nor proved. Shri Deshpande contended that the
fact as to who was paying the ground rent is material. According to
Shri Deshpande in the absence of the evidence the suit was rightly
dismissed. No reference has been made to the Land disposal Rules
formulated by the NIT. According to him the decree could have
been conditional subject to the approval by the NIT and NMC. He
invited my attention to rulings as below :-
It is pointed out that this Court in earlier ruling in Ramdas
Chimna Vs. Pralhad Deorao reported in 1964 Mah. L.J. 736 held
.....11/-
::: Downloaded on - 13/02/2014 23:13:36 :::
11 sa164.02, sa198.02.odt
that the relinquishment or abandonment of interest in the joint
family property can be made orally. It would be valid and effective
in law when proved. In other words if such relinquishment is
executed by the written instrument for to relinquish the interest in
the immovable property worth Rs. 100/- or more then surely it
would be compulsorily registrable document attracting Section 17
of the Registration Act.
In Munna Lal Vs. Suraj Bhan and others reported in AIR
1975 S.C. 1119 Three Judges Bench of Hon'ble Supreme Court
considered admissibility in evidence of the memorandum of the
partition prepared as the memorandum of the past event but not
registered. It is observed in Para 6 thus :-
"The parties appear to have asked a person of
common confidence to effect the partition and
it was not intended to resort to any formal
proceeding under the Arbitration Act. It was
therefore not necessary for the parties to
execute a formal reference or for the Punch to
declare a formal written award. As a
memorandum of a past event, the document
could, therefore, be received in evidence
though it is not registered."
In the ruling of Peddu Reddiar Vs Kothanda Reddy
reported in AIR 1966 Mad 419 Madras High Court answered
question of law thus:-
.....12/-
::: Downloaded on - 13/02/2014 23:13:36 :::
12 sa164.02, sa198.02.odt
"The question of law, however, remains,
whether the arrangement, by which items 1 to
4 of A schedule and one fourth share in the
well in item 6 were allotted specifically to
Ellappa, is valid in law. Ellappa and Peddu
Reddi were co-owners. An oral partition
between co-owners is valid in law. Sec.9 of the
Transfer of Property Act says that a transfer of
property may be made without writing in every
case in which writing is not expressly required
by law. A partition between co-owners it may
perhaps be said to involve a transfer of
property because in the specific properties
allotted to a particular co-owner the interest
which the other co-owners had previous to the
partition is given up and to that extent it may
be said to be a transfer of property. But the
Transfer of Property Act itself does not
expressly require such a partition to be in
writing, and there is no other provision of law
requiring such a partition to be evidenced by
writing."
In Roshan Singh Vs. Zile Singh reported in AIR 1988 SC
881 the Apex Court mentioned that it is well settled that the
document though unregistered can be looked in to for the limited
purpose of establishing severance in status, though that severance
would ultimately affect the nature of possession held by the
separated family as co-tenants.
In K.K Modi Vs. K N Modi and others reported in (1998) 3
SCC 573 Apex Court laid down the principle that Memorandum of
the understanding arrived at between two groups belonging to the
same family regarding the Assets. Court should not lightly
interfere with it especially when it has been substantially acted
.....13/-
::: Downloaded on - 13/02/2014 23:13:36 :::
13 sa164.02, sa198.02.odt
upon by the Parties. In Bakhtawar Singh Vs. Gurudev Singh
reported in (1996) 9 SCC 370 it was held that the memorandum
of recording the past oral Partition of Joint Hindu Family as a
family settlement is not required to be registered.
8. The evidence led indicated the undivided Hindu family existed
which included Kamtaprasad and Motilal as Brothers at Gondia.
Kamtaprasad came to Nagpur and acquired leasehold interest from
the Nagpur Improvement Trust (NIT) in the suit land admeasuring
9828 Sq Feet for 30 years, lease tenure extendable by the lessor
from time to time. Evidence of PW-1 Ramashankar revealed that
first Defendant Basantlal s/o Motilal came as a student to Nagpur
since the time he was studying in 7 th Standard and resided with
Ramashankar as a member of the family and since 1955-56 was
working with Kamtaprasad sharing business of the family. While
considering the facts and circumstances of the present case, in my
opinion, legally speaking leasehold interest in the open plot of land
belonging to the NIT is basically impartible or indivisible in nature.
A partition inter se amongst several co-sharers in respect of the
building constructed on the plot does not in any way affect the
integrity of the tenancy or leasehold interest of the open plot
owned by the NIT, so as to make each holder of an interest in the
leasehold as a separate holder or entity of a different tenancy, and
notwithstanding such partition amongst the co-sharers or due to
sub-lettings created by them, they remain liable collectively qua
.....14/-
::: Downloaded on - 13/02/2014 23:13:36 :::
14 sa164.02, sa198.02.odt
the lessor (NIT in this case) for the payment of the whole ground
rent of the open leasehold plot payable periodically to the NIT. In
the same manner, they are liable to face lawful termination of the
lease or eviction of the leasees by the NIT as if all the co-sharers in
the leasehold plot deemed to have constituted the single Tenancy.
As held in Rukhmani and others Vs. H.N. Thirumalai Chetttiar
AIR 1985 Madras 283, a co-sharer cannot be allowed to put up
substantial construction to the prejudice of other co-sharers during
the pendency of the suit for Partition filed by co-sharers . This is so
because in a leasehold property from the Municipal Corporation
actual physical division of the super structure may be possible.
The co-sharers would be under obligation to construct in
accordance with the sanctioned plans in their respective portions if
specified as held by the Delhi High Court in Ramlal Sachdev Vs.
Smt Sneh Sinha reported in AIR 2000 Delhi 92. Decree in such
case therefore can be conditional subject to the permission under
the relevant land disposal Rules in the present case by the NIT and
the NMC for sanctioning division of the shares in the construction
by metes and bounds depending upon who applied for the
construction, who spent for it and in what proportion, who paid
ground rents as a lessee and sub-lettings recognised in the
leasehold property, considering the evidence produced in this
regard. It is in the evidence of the Plaintiff Ramashankar that the
NIT had refused the application Ex. 188 made by him for division of
the leasehold plot Plan for the construction over the plot was
.....15/-
::: Downloaded on - 13/02/2014 23:13:36 :::
15 sa164.02, sa198.02.odt
sanctioned by the NIT in the year 1966. Kantaprasad original
lessee died on 30-10-1981. Partition between the co-sharers was
agreed upon on 28-05-1982 and co-sharers decided to effect it on
the occasion of the first death anniversary of Kantaprasad.
Umashankar Kantaprsasad relinquished his share and hence his
name was deleted. There could not be partition of the ascertained
shares in the leasehold plot of land as the leasehold interest is
indivisible. However NIT as lessor can permit shares as
conveniently agreed between the co-sharers for the time being in
respect of the Sanctioned construction made on the plot and
charge proportionate ground rent payable by each of the co-sharers
in respect of the construction made on the suit plot of the land.
Evidence of PW-3 Tax Inspector from NMC remained unchallenged
on behalf of the second Defendant in respect of the House
construction. PW-3 deposed about the two house numbers 486 in
the name of B.M.Tiwari and 486 A in the name of the Plaintiff.
Name of the Defendant no.2 was deleted as co-possessor of the
suit construction 486 A. First defendant deposed about the
partition on 30-10-1982 as per Ex 108. First defendant claimed that
he had constructed house Ground + 3 floors and for the 4 th floor
the sanction is pending for further construction on the suit plot on
the suit plot. NIT would know from its record as to whom the
leasehold plot was allotted under its land disposal Rules and who
entered into lease deed; the term of lease; premium or ground rent
fixed or payable; land revenue; N.A. assessment; charges taxes due
.....16/-
::: Downloaded on - 13/02/2014 23:13:36 :::
16 sa164.02, sa198.02.odt
in respect of suit land; specified user permitted for the leasehold
land. The building on it whether it was duly sanctioned and who
constructed it; who is answerable to deliver possession back to NIT
after determination of lease by its termination or forfeiture or
whether lessee is unable to use demised land; effect of holding over
under Section 116 of the Transfer of Property Act, 1882 are all
questions to be considered before passing the final decree as to
whether shares declared by the First Appellate Court can attain
finality in the facts of the case. NIT as an agency or
instrumentality of the State is expected to confer benefit upon
individuals by adopting rational; sound; transparent; fair and
equitable policy to alienate land to any individual; for lawful
consideration - alienation by mode of lease of the suit plot in this
case; to a lessee as agreed between the co-sharers for - to
discharge liability to pay ground rent and taxes payable to the NIT
as lessor. NIT can assist the trial Court before passing the final
decree as to who had applied for the construction, when it was
sanctioned, completed and who shared it with others for the
reasons stated above. Approaching NIT is necessary for the parties
to the suit interested in the leasehold suit plot of land before they
can move the trial court for the final decree which will have to be
passed to settle the real controversy finally between the parties to
the suit after appreciating the facts and circumstances of the case,
I, therefore, think it appropriate that these second appeals can be
disposed of by modification or substituting the decree passed by
.....17/-
::: Downloaded on - 13/02/2014 23:13:36 :::
17 sa164.02, sa198.02.odt
the first appellate Court by a preliminary decree as below:-
ORDER
Impugned Judgment and order is set aside and modified as under -
a) The Plaintiff and defendant no. 1 shall within three months move for the mutation of their names in Municipal records in respect of the construction made on the suit leasehold plot of land as co-sharers in the record of the NIT.
NIT as lessor may in accordance with the Rules and lease deed permit the partition of the construction made, sanctioned and duly completed upon the leasehold plot of land leased by it and consequently by relaxing the Rules may recognize the partition if any between the co-sharers limited to the construction made on the leasehold land.
b) The co-sharers claiming interest in the leasehold plot of the land must get their liability fixed for premium or lump sum payment of the ground rent in respect of the leasehold plot after the previous arrears if any of the ground rent are paid in lump sum.
c) The trial Court may then approve the proportionate liability of each of the co-sharer to pay/share the premium .....18/-
::: Downloaded on - 13/02/2014 23:13:36 :::18 sa164.02, sa198.02.odt and/or ground rent in accordance with law. The total area of construction sanctioned by the NIT on the leasehold suit plot as already made and duly completed can be allowed to be partitioned as agreed between the co-sharers in their family arrangement or settlement as informed to the Lessor NIT and subject to approval by the NIT and relaxation of Rules in favour of lessee holding over the leasehold plot of land.
d) There shall be conditional preliminary decree accordingly.
Parties to the proceedings shall be at liberty to move the trial Court for to draw up the final decree in accordance with law after the compliance of the preliminary decree as ordered.
It is clarified that NIT as lessor can alienate the leasehold plot of land by following procedure in accordance with law.
This preliminary decree shall not affect right of the lessor (NIT) to terminate the lease and to recover back possession of the leasehold plot upon payment of market value of the structure to the co-sharers if they fail to agree with shares determined by the Court.
The Second Appeals are allowed and disposed of accordingly.
JUDGE ...../-
::: Downloaded on - 13/02/2014 23:13:36 :::