Bombay High Court
Smt. Anjanabai W/O Vivekanand Kothare ... vs Smt. Jaswantibai W/O Anantram Parekh ... on 7 October, 1992
Equivalent citations: AIR1993BOM134, 1994(1)BOMCR253, 1993(1)MHLJ523
ORDER H. D. Patel, J.
1. The two judgments which are under challenge in the aforesaid two appeals arise from common evidence both documentary and oral led in the two cases before the learned trial Court. It will be convenient to dispose of these appeals by a common judgment. Both the appeals were heard together and are being disposed of accordingly.
2. Civil Suit No. 177 of 1975 was filed by the three daughters of Durgaji Bhange, namely, Anjanabai, Bhimabai and Chindha-bai for declaration and partition of Khasra Nos. 72, 73, 74/1 and 76/1 situated at Mouza Parsodi, Tq. and District Nagpur. It is alleged in the plaint that the said Durgaji died in the year 1962 leaving behind the three daughters who are the plaintiffs and five sons, namely, Ganashyam, Narayan, Shamrao, Sitaram and Ramdas -- the defendants Nos. 8 to 12. The plaintiffs are all married. After the death of Durgaji, the suit fields were inherited by the plaintiffs and defendants 8 to 12. It is further alleged in the plaint that Durgaji and his sons managed the property in suit. Durgaji himself was indebted to the extent of Rs. 2550/-or so. This debt could have easily been paid by defendants Nos. 8 to 12 from and out of the income of the agricultural property. The sons of Durgaji, that is the defendants Nos. 8 to 12, at the instance of one Mithalal Maheswari, who was a friend of defendant No. 8, prevailed upon him and his brothers to sell away the suit fields representing that they would get purchasers who could pay a good price. The suit fields were hence sold to Jaswantibal --defendant No. 1, Tarabai - defendant No. 5, Hansagauri -- defendant No. 6, Dhirajbai --defendant No. 6(a), Narmadabai -- defendant No. 7 and one Kashibai for consideration of Rs. 24,000/- only. The plaintiffs claimed 1/8th share each in the suit fields. The three plaintiffs together claimed 3/8th share in the suit fields. The plaintiffs claimed that the sale of suit fields in respect of their share is not binding upon them and the saledeed is void. The 3/8th share in the suit fields would be 5.40 acres. They claimed that they are in possession of the suit fields. The plaintiffs prayed for a declaration that the alleged sale-deed registered on 25-2-1963 in respect of 3/4 th share is not binding on them apart from the claim for preliminary decree of partition in 14.99 acres of the suit fields.
3. The sons of Durgaji Bhange remained absent. They were hence proceeded ex parte. The defendants 1 to 8, however, contested the suit. They denied that the deceased Durgaji alone owned the suit fields. Durgaji Bhange held extensive immovable and movable property. The plaintiffs are the daughters of Durgaji and the defendants Nos. 8 to 12 are his sons. Durgaji lived with his five sons and the whole unit formed a joint Hindu family. Even after the death the family continued to be joint, holding joint family property, including the suit fields. The answering defendants denied that the plaintiffs and her five brothers are the joint owners of the suit property. Initially Durgaji and his five sons managed the joint family property and after the death of Durgaji, the defendants Nos. 8 to 12 managed the same and Narayan the defendant No. 8 was the manager. The answering defendants denied that the income from the property was sufficient to meet the expenses of the family, particularly during 1960to 1962 when there was no agricultural income. The indebtedness to the extent of Rs. 2250/- only was emphatically denied. There were many other liabilities which are well described in the saledeed executed by defendants Nos. 8 to 12 in favour of other defendants. All these liabilities were incurred for the maintenance of the family and defraying debts incurred in the interest of the family. Durgaji was III prior to his death and the family went through great financial difficulties.
4. Regarding the claim of the plaintiffs that they each had 1/8th share in the property was denied by the answering defendants. Altogether they could not have 3/8th share as alleged. Durgaji purchased the suit property out of the income derived from other joint family property. Durgaji had only 1/6th share in the whole of joint family property including the property in suit. The plaintiffs cannot have share more than 1/16th in the whole of joint family property. The suit for partial partition of one item is not maintainable. The plaintiffs can bring a suit for general partition of the suit property after putting into hotch pot the whole of joint family property existing on the date of the suit.
5. Because of the financial difficulties faced by the family of Durgaji, Narayan -- defendant No. 8 with the consent of other coparceners decided to sell fields in suit measuring 14.99 acres out of 22.97 acres and accordingly the answering defendants came in possession of the land vide sale dated 31st October, 1962. The sale was for the benefit of the members of the joint family as a whole. The share of the plaintiffs, if any, could be met from the remaining joint family property about 5.98 acres still in possession of defendants Nos. 8 to 12.
6. The property in suit was sold to the answering defendants on 31st October, 1962 and were duly placed in possession on that very date. The interest of the defendants I to 7 became adverse to those of the plaintiffs from 31-10-1962. The plaintiffs all along knew that time started running against them from 31-10-1962 for filing a suit for partition and possession which is the date of the ouster and because the suit is filed on 21-2-1975, it is barred by time.
7. Special Civil Suit No. 285 of 1975 was filed by the answering defendants in the earlier instituted suit, namely, Special Civil Suit No. 177 of 1975 including the heirs of Kashibai for possession of the land purchased by them vide saledeed dated 31st October, 1962. The suit was filed against Anjanabai, Chindhabai and Bhirnabai the three daughters of Durgaji Bhange who are the plaintiffs in the earlier suit. Other heirs of Kashibai were joined as defendants 4, 5 and 6.
8. The case of the plaintiffs was that they purchased the suit fields (already described above) vide saledeed dated 31-10-!962 from Narayan, Ghanshyam, Shamrao, Sitaram and Ramdas - the five sons of Durgaji Bhange. They were duly put in possession after partitioning the fields. The suit belonged to the joint family consisting of Durgaji and his sons and grandsons and the family held the suit fields as ancestral joint Hindu family property since purchased out of funds belonging to the joint family. Durgaji purchased those fields on behalf of the joint family by registered saledeed dated 9-2-1959. Even during the lifetime of Durgaji, the fields were a burden to the family. Durgaji Bhange, died on 19-8-1962 after a long illness. The vendors of the suit field and the defendants 1 to 3 were the heirs of Durgaji. The defendants 1 to 3 claimed partition of the suit fields by filing a suit. As the property was joint, the coparceners, who are the vendors of the plaintiffs, had full and absolute right to alienate the property in suit for the benefit of the family. The share of defendants, if there be any, could be satisfied from the remaining joint family property left by Durgaji. This satisfaction could be met even from the property purchased by Durgaji in the year 1959.
9. Further allegation in the plaint was that the plaintiffs in the suit continued to be in possession of the suit fields purchased by them from 31-10-1962 to June, 1975. In June, 1975 the defendants 1 to 3 dispossessed the plaintiffs when the suit fields were lying fallow. These defendants had no right, title and interest in the suit fields and are in possession without any entitlement. Hence, the plaintiffs suit for possession. They also claimed enquiry into the mesne profits.
10. The defendants 1 to 3 came forward to contest the suit mainly on averments made by them in Special Civil Suit No. 177 of 1975 in the plaint. Briefly, their defence was that the vendors of the suit property had no right to transfer their shares or even joint share in the absence of legal necessity or benefit of the family. The sons of vendors have already filed the suit. Even the suit filed by the answering defendants was then pending. They denied that the plaintiffs are duly placed in possession of the suit property, and more so after partitioning the fields in terms of the sale deed. Regarding the debts incurred by the family the defendants 1 to 3 admit the same but that liability was only to the extent of Rs. 2000/- to Rs. 3000/-. Since the plaintiffs were never placed in possession of the suit fields, the question of dispossession does not arise at all.
11. From the pleadings in the two suits, it is clear that the suit property involved is the same. The three daughters of Durgaji Bhange are claiming their share in the suit property, a part of which is transferred by the five sons of Durgaji. The purchasers on the other hand are seeking possession of suit property which, according to them, was lost after title was perfected by prescription. For the sake of convenience, the daughters of Durgaji will hereinafter be referred to as 'the plaintiffs', the five sons of Durgaji as 'the vendors' and the purchasers as 'the defendants'.
12. The trial Court framed issues in both the cases, but the reasonings are to be found only in the judgment of Special Civil Suit No. 285 of 1975. It was found that the suit property was purchased by the defendants vide sale deed dated 31-10-1962 and they were put in possession of suit fields. The Vendors sold the property to the defendants for legal necessity and for the benefit of the family. The plaintiffs' share can be satisfied from remaining land of Khasra Nos. 74 and 76. The learned Trial Judge also held that the defendants were in continuous possession till June 1975 when they were dispossessed by the plaintiffs. The plaintiffs' share was found to be 1/16th in the suit property. The sale in favour of defendants was not void and whatever has been sold is their share in the property. The suit filed by the plaintiffs is not barred by limitation. The Civil Suit No. 177 of 1975 filed by the three daughters of Durgaji (the plaintiffs) came to be dismissed whereas Civil Suit No. 285 of 1975 filed by the purchasers (the defendants) for possession and mesne profits came to be decreed. The three daughters of Durgaji, viz. the plaintiffs feeling aggrieved have preferred the aforesaid two appeals.
13. One aspect is clear that the five sons of Durgaji who are parties to the suit filed for partition, have remained absent in the trial Court. There is no appearance even on their behalf before this Court. The contesting parties are the three daughters of Durgaji (the plaintiffs) and the purchasers of the suit property (the defendants).
14. Both sides advanced exhaustive arguments and various points arise for determination. We, however, take up the first point dealing with limitation. According to the defendants, the suit filed by the three daughters of Durgaji, the plaintiffs for partition and possession is barred by limitation they having perfected their title by prescription before they were dispossessed in June 1975. Since the point goes to root of the case, it is taken up first for decision.
15. It will be of interest to note that though the sale in favour of the defendants is challenged by the plaintiffs in the suit filed by them for declaration, partition and possession, no date of, sale is disclosed in the pleadings. In the relief clause the declaration is claimed in the following words:--
"Plaintiffs pray for following reliefs:
(a) Declaration that the alleged sale deed registered on 25-2-1963 in respect of 3/8th share of the plaintiffs is not binding on the plaintiffs and the defendants 8 to 12 had no right to transfer the plaintiffs' share and the defendants 1 to 8 get no title to 3/ 8th share in the suit property, and
(b)..........."
16. It will also be worthwhile to note paragraph 15 of the plaint which deals with the cause of action. It reads as under:--
"That, the cause of action arose on 25-2- 1963 when the alleged sale deed was obtained and registered within jurisdiction of this Court."
17. The plaintiffs obviously rely upon a sale in favour of the defendants which is said to have been registered on 25-2-1963. Such a document has not seen the light of the day. This date was not changed even though the correct date was disclosed not only in the Writien Statement filed, by the purchasers (the defendants) in that very suit, but also in the plaint filed by them in the connected suit. Unless the transfer of right, title and interest is proved by the plaintiffs, their suit claiming declaration against the purchasers to the extent of 3/8th share and consequent partition and possession is not liable to succeed and must be dismissed outright.
17A. It was contended on behalf of the plaintiff that the date given is obviously an error and much reliance cannot be placed thereon. We do not agree that the date 25-2-1963 appearing in the plaint was an error. It was deliberately written with the intention to avoid the defence which would have been taken in respect of limitation. The suit is admittedly filed on 21-2-1975, that is, within 12 years from 25-2-1963. However, the purchasers were vigilant enough not falling prey to the mischief of the plaintiffs and pleaded the bar of limitation.
17B. In order to decide the limitation, it is first necessary to find out whether possession was delivered to the purchasers simultaneously with the sale deed dated 31st October 1962. The sale deed Exhibit 43 itself recites that possession of the land is delivered. Though the plaintiffs deny in their pleadings that the defendants were placed in possession, the evidence of Chindhabai (D. W. 2) is quite to the contrary. She states in her deposition in clear terms that possession of the suit land was delivered to the plaintiffs by her brothers after the sale deed. Therefore, no doubt is left that defendants entered into the possession of suit land on 31st October 1962.
18. The knowledge to the plaintiffs about the possession having been taken is again an important ingredient to be established.
Chindhabai in her cross-examination accepts that her father died first and she came to know about the sale deed 2 to 3 months after the death of her father. It is not in dispute that Durgaji died on 19-8-1962 which is the date disclosed in the suit filed by the purchasers for possession and not disputed by the plaintiffs. The knowledge to Chindhabai (D. W. 2) can be attributed from the third week of November 1962.
19. It is the case of the purchasers, viz. the defendants that they were dispossessed by the plaintiffs in June 1975 and that was the period when cause of action arose to them to file the suit. Chindhabai (D. W. 2) admits that she took possession of suit land in June, 1975. It is hence clear that the purchaser remained in possession from the date of saledeed, that is, 31-10-1962 till they were dispossessed in June, 1975. Even if the time is computed from the date of knowledge, that is, somewhere in November, 1962 then the purchasers were in uninterrupted possession for the period of twelve years. The suit of declaration, partition and possession is filed on 21-2-1975, that is, after a period of 12 years from the date the defendants were placed in possession and to the knowledge of the plaintiffs. It was hence contended on behalf of the purchasers (defendants) that they have perfected their title by prescription against the plaintiffs and we find that the contention needs to be upheld.
20. A controversy is raised in respect of the date of ouster. The plaintiffs allege by placing reliance on the decision of this Court in Vishwanath Krishna Gokhale v. Mahadeo Arjun Kokata," AIR 1960 Bombay 50, that the starting point of limitafion would be the date on which the title is actually denied. In the case cited, a suit for possession is filed by the purchaser of undivided interest of the separated member of the Hindu family, his rights would be governed by ordinary law. By his purchase, he acquires all the rights of his vendor, including his right as a co-owner to the joint possession of the property jointly held and also his right to obtain by partition separate possession of his share in the property. The suit for possession would be governed by Article 144 of the Indian Limitation Act and the starting point would be as stated above.
21. The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this Court in Bhavrao v. Rakhmin, (1899) 1LR 23 Bom, 137 Where coparceners have alienated their shares in the joint family property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition, as against such alienees, is barred by limitation under Article 144 of the Limitation Act. We have extracted the relevant portion as under :---
"What, then, is the purchaser's position with reference to the coparceners of his vendor or mortgagor? The answer, we think, must be that, as he enters as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alienated portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good title to the land conveyed to him by a single coparcener, but only the qualified right laid down in Pandurang v. Bhaskar, (1874 , (11) Bom HCR 72) (supra), and he is liable under some circumstances even to be evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his exclusive possession does not on that account cease to be adverse. He, entering as owner, his possession must, we think, necessarily be adverse to the true owners. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested -- whether in a single person or in many jointly. "Adverse possession is possession by a person holding the land, on his own behalf, or of some person other than the true owner" -- Per Mark by, J., in Bejoy Chunder v. Rally Prospnno, (1879 ILR 4 Cal 327). In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing."
22. The decision of the Full Bench in Bhavro's case (1899 ILR 23 Bom 137) would squarely apply to the facts involved in the present case. The very fact that the stranger has been jnducted into possession and con-sequently, the possession of the co-owners terminated would be sufficient to put the other co-owners to notice of the conduct of the alienating co-owners. Therefore, ouster would be to their notice and the possession of transferee would be adverse from the date of possession. In this connection, it will also be worthwhile to refer to the case of Khato Lal Das v. Mohd. jehiruddin Babar. or even Full Bench decision of Madras High Court in T.P.R. Palania Pillai v. Amjath Ibrahim Rowther, AIR 1942 Madras 622. It is thus apparent that Vishwa-
nath Gokhale's case AIR 1960 Bombay 50, relied upon by the plaintiffs, is distinguishable on facts and can be of no assistance to the plaintiffs. In our view, the suit filed by the plaintiffs -- the three daughters of Durgaji is clearly barred by limitation. Civil Suit No. 177 of 1975 hence deserves to be dismiss ed on this ground alone. Fearing this out come, the plaintiffs deliberately disclosed the date of registration of the saledeed as 25-2- 1963 in their plaint for misleading the other parties as well as the Court while deciding this point.
23. Based, on the aforesaid finding, the suit filed by purchasers can instantaneously be decreed and accordingly both the appeals can be disposed of. There are, however, other points which have been elaborately argued and we feel it proper at least to dispose of the material ones.
24. The first challenge refers to the admissibility of the certified copy of the saledeed which is marked Exh. 43. A contention is raised that unless the executant is examined the truthfulness of the document or contents thereof cannot be looked into. The proposition as laid cannot be disputed but does this proposition arise in the present case? Our answer is in the negative for more than one reason.
25. Firstly, the admissibility of the certified copy of the sale was never challenged by the plaintiffs and rightly so because their suit is also based on the very same document though with an ulterior purpose a wrong date of registration is given. In the absence of the saledeed (Exh. 43) the Civil Suit filed by the plaintiff for declaration, partition and possession must fail on this count itself. In this connection, the pleadings of the plaintiffs in paragraphs 7 and 8 arc sufficient. We may say that the saledeed (Exh. 43) is not in dispute at all. Secondly, we do not find any objection being raised to the document being filed along with the application for taking it on record. The objection was not even raised while the document was being exhibited. We also do not find any such ground raised in the memo of appeal. Thirdly, it is not possible to examine the vendors the excutants of the documents who are the opponents in the case and are in collusion with the plaintiffs which is established by their absence in the proceedings. Fourthly, the execution of the document is admitted by Anjanabai as well as by Chindhabai in their statements recorded on oath. In these circumstances, the certified copy of the satedeed (Ext. 43) is good enough to prove the transfer as well as its contents. (See AIR 1934 PC 55).
26. The next question 'that falls for determination is the nature of suit property in the hands of the Durgaji. No doubt the burden to prove that suit property is a joint family property is on the purchasers. Though in examination-in-chief he does assert that the property was joint but in cross-examination he resiles by saying that the property was self-acquired. This statement was taken advantage of by the plaintiffs to urge that their share in the property was 3/8th and not 1/16th as alleged by the purchasers. It must be remembered that Chandrakant was nover the member of the family of Durgaji and he cannot have any personal knowledge about the nature of property held by him. Therefore, the statement of Chandrakant (PW 1) one way or the other is not sufficient to give a finding. In this context, it would be proper to find out what the plaintiffs have to say on that count. Anjanabai (DW I) speaks nothing about the nature of property in the hands of Durgaji during examination-in-chief but she disclosed everything in cross-examination.
According to her, the father Durgaji and her brothers were residing jointly. Durgaji used to cultivate the land and maintain the family. He also performed the marriages of the three daughters. Durgaji owned other lands besides the suit land. Durgaji purchased the suit land from the income of other lands with him.
These admissions clearly go to show that the nucleus of the land in suit was derived from other joint family property. Chindhabai who was examined after Anjanabai tried to im prove their case. She deposed that Durgaji held 7 or 8 acres of ancestral land and he purchased 15 acres of suit land. Barring 7 acres of ancestral land, Durgaji had no ancestral lands. He earned in the business of cotton and oranges. Fifteen acres were pur chased from the income of his business. The ancestral land is situated at Bhamti. From that land Durgaji had no income. The evidence contradicts the deposition of Anjana bai. We will shortly point out that Chindha-
bai's evidence on the point has to be discarded because in cross-examination she comes out to say that her brothers are taking income from the ancestral land at Bhamti since the death of her father. She estimates the income from Rs. 4000/- to Rs. 5000/-. She then denies knowledge if her father was indebted.
She then stated that she never went to her brothers after the death of her father. The witness also clarifies that she had no idea about the affairs of her father. A vital admission follows when she stated that after her marriage, she is residing with her husband and she has no knowledge about anything which happened at her father's house. It may be relevant to observe here that her marriage took place when she was five years old and her age at the time of deposition was 60 years. The cross-examination completely nullifies her earlier deposition in examination-in-chief.
There is thus no doubt left that the suit property was the joint family property of Durgaji and his sons. The share of the three daughters in that property cannot exceed 1/16th share.
27. From the contents of the saledeed (Exh. 43) it can be seen that the Khasra Nos. 74 and 76 were further divided because of the sale. The purchasers (the defendants) were given 2.70 acres from Khasra No. 74 and 0.15 acres from Khasra No. 76, respectively leaving about 1.50 acres and 5.15 acres with the brothers of the plaintiffs. In all, about 7 acres still remain out of which the share of plaintiffs can easily be carved out. Even if it is assumed that the share of the plaintiffs was to the extent of 3/8th on the basis that the property is a self-acquired property of Durgaji, the plaintiffs' share is still intact.
28. In view of the aforesaid findings, it is not necessary for this Court to enter into the controversy whether the sale in favour of the purchasers by their vendors was for legal necessity and the benefit of the estate.
29. In the result, the appeals fail and are accordingly dismissed. The appellants shall pay the costs in either of the appeals to the respondents except respondent Nos. 9 to 13 in First Appeal No. 122 of 1986 and also bear their own.
30. Appeals dismissed.