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2006 Supreme(Bom) 948
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Desai Ranjana (Smt.)., J.
Ana Praxedes da Piedade Pinto @Anita Pinto ... Petitioner.
Versus
Joaquim Filipe Afonso @ Felix Afonso & ors . ... Respondents.
Writ Petition No. 150 of 2006,
decided on 23-6-2006.
Advocates appeared:
A.F. Dinez, for petitioner.
Shiven Dessai, for respondents.
Headnote:Transfer of Property Act, 1882 - Section 111(d) - Suit for declaration. - Where in a suit for declaration that sale deed was illegal, null and void, defendants taken plea of tenancy which is found to be vague, vexatious or mala-fide, Court can reject application for framing issue of tenancy.
CONSTITUTION OF INDIA, 1950 - Article 226 Filing of petition by a person of unsound mind Person senior citizen of 87 years Order of Second Additional Civil Judge under challenge Inquiry about insane person Owner of property held to be of unsound mind Appointments of one Louis as guardian to manage and administer her properties Execution of sale deed in favour of defendants 1 and 2 Registration of sale deed Question of right to execute sale deed Filing of written statement Contention defendants 1 and 2 are agricultural tenant Framing of issue Whether defendants 1 and 2 prove that they are agricultural tenant and thus deemed purchasers of suit property Prayer for deletion of issue Plea taken by defendant if is vague, issue of tenancy framed should not be allowed Particulars as to who created tenancy necessary Agricultural operation was entrusted to defendant since 1969 Sharing of produce with said Louis Applicability of Goa Tenancy Act Use and occupation does not include rendering of any personal service Revenue record in favour of Louis as owner Defendant did not press for deemed purchaser Plea is untenable not proper If there is fraud with petitioner, trial Court to look into matter Framing of issue cannot be disallowed Direction to decide suit at earliest.
The petitioner is a person of unsound mind. She is aged about 87 years. She has filed this petition through Sr. Zeena Fernandes, In-charge of Old Age Home run by the Nuns of the Society of St. Joseph of Cluny. In this petition, the order dated 7/3/ 2006 passed by the IInd Additional Civil Judge, Senior Division at Margao in Special Civil Suit No. 94/2004/11 is under challenge.
2. The facts which give rise to the petition may be shortly stated:
By an order dated 14/11/1969, the District and Sessions Court of Goa, Daman and Diu at Panaji, had ordered that an inquiry be held as to whether the petitioner is of unsound mind and is incapable of managing her affairs. Accordingly, an inquiry was held and witnesses were examined. Dr. Adelia Costa, a specialist in mental deceases, was also examined. After the conclusion of the inquiry, the petitioner was held to be a person of unsound mind. Thereafter, by order dated 30/4/1970, one Louis Gonzaga, Antonio DSao B. Pinto (for convenience, "the said Louis") was appointed to be the manager of the properties of the petitioner.
3. The petitioner filed Special Civil Suit No. 94/2004/II. In the suit. the case of the petitioner was that she is the owner of the properties described in paragraph 1 of the plaint; that the said Louis was appointed as t her guardian to manage and administer her properties; that the petitioner was admitted in an old age home at Salcete and that taking advantage of the situation, the said Louis executed a sale deed in respect of the suit property in favour of respondents 1 and 2/ defendants 1 and 2 respectively. The said sale deed is dated 9/6/2000 and is registered in the Office of the Sub-Registrar of Salcete at Margao. The said Louis died on or about 6/ 5/2003. According to the petitioner, she was not aware of the said sale deed. She came to know about it only in the month of July, 2004. It is her case that the said Louis had no right to the suit property and that the said sale deed is illegal, null and void and without any legal effect. In the suit, the petitioner prayed for a declaration that the sale deed dated 9/6/2000 is illegal, null and void and for other consequential reliefs.
4. A written statement came to be filed by defendants 1 and 2. In the written statement, defendants 1 and 2 contended that they are the agricultural tenants of the suit property and, therefore, are the deemed purchasers. In view of the said averments, the trial Court framed an issue regarding tenancy of defendants 1 and 2. It reads thus:
"Whether defendants 1 and 2 prove that they are agricultural tenant and thus deemed purchasers of the suit property ?"
5. The plaintiff moved an application praying that this issue be deleted. By the impugned order, the learned trial Judge rejected the prayer and, hence, this writ petition.
6. I have heard, at considerable length, the learned Counsel appearing for the petitioner. The learned Counsel contended that the plea of tenancy is taken by the defendants just to delay the proceedings. He submitted that the plea is vague, frivolous and vexatious. According to the learned Counsel, the said plea is not borne out by the averments made in the written statement and, hence, the learned Judge ought to have deleted the issue. In support of his submissions, the learned Counsel relied on the judgment 0 of the Supreme Court in (Thomas Antony v. Varkey Varkey)1, (2000) 1 S.C.C. 35; the judgments of this Court in (Pandu Dhondi n Yerudkar and another v. Ananda Krishna Patil)2, A.I.R. 1975 Born. 52; (Uttam Sambha c Deshmukh and others v. Yamunabai w/o. Chandrabhan Bhoyar and others)3, 1998(4) Bom. C.R. 441 (Nagpur Bench) and (Ramu Shivappa Agalgave and others v. Imam Kashim Pathan and others)4, 1992(3) Bom.C.R. 560.
7. The learned Counsel contended that the intention of the defendants is to delay the suit because once tenancy issue is framed it will have to be referred to the t
