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2009(3) Supreme 811
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Vishwanath Bapurao Sabale — Appellant
versus
Shalinibai Nagappa Sabale & Ors. — Respondents
Civil Appeal Nos. 1782-1783 of 2009
[Arising out of SLP (Civil) Nos. 5595-5596 of 2008]
Decided on : 23-03-2009
(b) Possession – Although Bapurao continued in possession, in view of the settlement, it must be held to be permissive possession. (Para 18)
(c) Adverse possession – Despite the death of his brother, respondent not taking any action for eviction of his brother’s widow – The same by itself would not mean that the appellant started to possess the lands adverse to the interest of the respondent – For claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. (Paras 20 and 23)
(2006)5 SCC 353 – Relied upon.
(d) Specific Relief Act, 1963 – Section 31 – Factum of execution of the documents being not in question, it was also expected that Bapurao and after his death Laxmibai would file suit for cancellation of those documents – That having not been done they cannot claim title by adverse possession. (Para 21)
(e) Adverse possession – A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession. (Para 23)
(2007)6 SCC 59 – Relied upon.
AIR 1964 SC 880 – Distinguished.
Facts of the case :
1. Bapurao and Shivappa were step brothers. Laxmibai was wife of Bapurao. Shivappa married one Parvatibai.
2. Bapurao died in the year 1958. Laxmibai died on 12-12-1978.
3. Appellant Vishwanath is the adopted son of Laxmibai having been adopted on 5-06-1967. Nagubai is the daughter of Shivappa and Parvatibai. Shivappa died in the year 1977. Respondent Nagappa, son of Nagubai is said to have been adopted by Shivappa on 24-01-1969. The parties are governed by Bombay School of Hindu Law. Nagappa was aged about 19 years when he was allegedly adopted.
4. Bapurao and Shivappa were living separately. They had separate businesses. They however had some joint family properties which were acquired prior to 1934. Bapurao had also self acquired properties. Allegedly Bapurao, having suffered substantial loss in his business had incurred loan in the year 1955. He owed a sum of about Rs. 35,000/- to his creditors.
5. Purportedly with a view to save the property from the creditors, on or about 2-07-1955, four registered deeds were executed. The first being a deed of partition, in terms whereof, the joint family properties were divided in equal shares (which was marked as exhibit 36) and Bapurao sold his share of joint family property for a sum of Rs. 5000/- to Shivappa . He also allegedly sold his self acquired property to Shivappa for the said sum. Two deeds of settlement on the same day were executed by Shivappa, in terms whereof, the lands transferred in his favour were settled to Bapurao for enjoyment during his lifetime. However, it was stipulated that Bapurao would not have any absolute right over the properties and were not entitled to alienate the same.
6. Plaintiff after the death of Shivappa filed three suits before the Joint Civil Judge, District Judge, Solapur and Principal District Judge, Solapur.
7. The learned Trial Judge decreed the said suits.
8. Appeals preferred theragainst were dismissed.
Finding of the Court :
There does not seem to have any apparent reason to hold that the deed of sale was sham or nominal in character.
Result : Appeal dismissed with cost.
Section 49 of the Registration Act emphasizes that a registered document is admissible as evidence of the transaction it records. However, the registration of a document does not automatically affect the validity or invalidity of the transaction itself. Instead, registration serves primarily as a means of establishing the existence and details of the transaction, making the document suitable for use in legal proceedings. The primary purpose of this section is to ensure that registered documents are recognized as valid evidence, while the substantive validity of the transaction depends on other legal requirements and principles (!) .
This provision highlights the importance of registration in providing legal proof and facilitating transparency in transactions, especially in matters related to property and other significant dealings. Nonetheless, it clarifies that registration alone does not determine the legal rights or obligations of the parties involved; it merely records the transaction for evidentiary purposes (!) .
In essence, Section 49 underscores the role of registration as a crucial evidentiary tool, without impacting the substantive legality of the recorded transaction.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. These appeals are directed against a judgment and order dated 22-01-2008 passed by a learned Single Judge of the High Court of Judicature at Bombay in Second Appeal No. 105 of 2007 and Civil Application No. 280 of 2007 with Second Appeal No. 107 of 2007 and Civil Application No. 284 of 2007.
3. Bapurao and Shivappa were step brothers. Laxmibai was wife of Bapurao. Shivappa married one Parvatibai.
Bapurao died in the year 1958. Laxmibai died on 12-12-1978. Appellant Vishwanath is the adopted son of Laxmibai having been adopted on 5-06-1967. Nagubai is the daughter of Shivappa and Parvatibai. Shivappa died in the year 1977. Respondent Nagappa, son of Nagubai is said to have been adopted by Shivappa on 24-01-1969. The parties are governed by Bombay School of Hindu Law. Nagappa was aged about 19 years when he was allegedly adopted.
4. Bapurao and Shivappa were living separately. They had separate businesses.
They however had some joint family properties which were acquired prior to 1934. Bapurao had also self acquired properties. Allegedly Bapurao, having suffered substantial loss in his business had incurred loan in the year 1955. He owed a sum of about Rs. 35,000/- to his creditors.
5. Purportedly with a view to save the property from the creditors, on or about 2-07-1955, four registered deeds were executed. The first being a deed of partition, in terms whereof, the joint family properties were divided in equal shares (which was marked as exhibit 36) and Bapurao sold his share of joint family property for a sum of Rs. 5000/- to Shivappa. He also allegedly sold his self acquired property to Shivappa for the said sum. Two deeds of settlement on the same day were executed by Shivappa, in terms whereof, the lands transferred in his favour were settled to Bapurao for enjoyment during his lifetime.
However, it was stipulated that Bapurao would not have any absolute right over the properties and were not entitled to alienate the same.
6. Plaintiff after the death of Shivappa which as noticed hereinbefore took place on 20th November, 1977 filed three suits before the Joint Civil Judge, J.D. Mohol, District Judge, Solapur and Principal District Judge, Solapur.
The first one marked as Regular Civil Suit No. 81 of 1978 was filed for declaration that 22 tin sheets in the possession of the appellants were owned by him and for mandatory injunction directing him to handover the same. Regular Civil Suit No. 85 of 1978 was instituted in the court of Joint Civil Judge J.D. Mohol for declaration of his title over the suit properties and possession claiming the same as the heir and legal representatives of Shivappa.
Regular Civil Suit No. 20 of 1979 was instituted with a prayer for grant of a decree for permanent injunction pertaining to the suit property.
7. Before the Trial Court, Plaintiff-Respondent No. 1 raised another contention that Shivappa executed an agreement in favour of Laxmibai allowing her to take the income from the property. According to him, the said agreement which was an unregistered one was executed out of love and affection toward Laxmibai (original defendant No. 1). On the allegation that she did not take care of the property and a wall collapsed; and, thus, breach of terms of the agreement had taken place, a mandatory decree for injunction was sought for directing handing over the possession of the property to the plaintiff. It was furthermore contended that as upon death of Laxmibai during pendency of suit, the said agreement came to an end, the plaintiff even otherwise became entitled to possession.
8. Appellant however in his written statement inter alia contended that:
(1) the suit property was the self acquired property of Bapurao Sabale.
(2) the documents executed on 2-07-1955 were sham and nominal ones which were not meant to be acted upon, having been executed for the purpose of saving the property from the creditors.
(3) The fact that as despite death of Bapurao Sabale
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