Back
2008(4) ALL MR 567
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C.L. PANGARKAR, J.
Shri. Mohd. Habib s/o. Mohd. Ishaque - Appellant
Versus
Shri. Abdul Aziz & Ors. – Respondents
Second Appeal No.211 of 1996
Decided on : 11th April, 2008.
Transfer of Property Act, 1882 - Section 45 - Suit for eviction of brother from premises - Plaintiff and defendants were brother getting nothing from father - Premises purchased by plaintiff but name of defendant also got entered in deed wrongly - Suit for eviction filed - As defendant submits that they contributed in the purchase money - Plaintiff claimed to be sole owner as defendants were minor and unable to earn anything - Suit dismissed - Appeal preferred against dismissed - Second appeal - Held - Courts below have not considered evidence on record properly at all - Findings of Court below set aside - Appeal allowed. - This takes Court to consider the question of payment of consideration. The sale-deed (Exh. 64) is dated 1.10.1957. The ages of the defendants on that date are shown as 12, 9 and 3. In no case it could be said that any of the defendants was in a position to earn and save anything out of it. What is alleged in the written statement is that defendants were quite grown-up when the property was purchased and they contributed. The ages do not show that they were so grown-up as to earn and save and contribute. It is admitted by DW 1 Abdul Ajij that after death of father, they were maintained by one Haji Khaliq for six years. The father died on 8.9.1952 as is stated by PW 1 thus, the defendants were maintained for six years by Haji Kaliq after death of their father and the defendants were under care of Haji Khaliq up to 1958. There was, therefore, no question of defendants earning during the period of 1952 to 1958 since they were actually being maintained by Haji Haliq.
This section has no application for the simple reason that section part of the second says that in the absence of evidence as to the interest in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be equally presumed to be interested in the property. In the instant case, there is no evidence of contribution at all. Hence, Section 45 of the Transfer of Property Act is of no help. Undisputedly, the house is mutated in the name of the plaintiff alone. None of the defendants had ever tried to mutate his name. Although electric meter is in the name of defendant No. 2, it could be due to the fact that the defendants are residing in the suit house. That is an insignificant circumstance. The Courts below have not considered the evidence on record properly at all. There was overwhelming evidence in favour of the plaintiff about the contribution by him alone. On the other hand, there is no evidence whatsoever showing any contribution by defendants. The Courts below had ignored the evidence tendered by the plaintiff. The finding of the Courts below, therefore, can be said to be perversed and that needs to be set aside. The appeal is, therefore, allowed. The judgment and decree passed by the Courts below are set aside. The suit is decreed. The defendants shall hand over the vacant possession of the suit premises to the plaintiff forthwith. Enquiry into future mesne profit be held from the date of the suit till realization of the possession. The defendant shall pay costs throughout.
Decree be drawn up accordingly.
At the request of the learned counsel for the respondents, two months’ time is granted to vacate the premises.
2. The facts giving rise to the appeal are as follows-
The plaintiff and the defendants are the real brothers. The plaintiff was living separately from his father after his father had remarried. When the plaintiff had once come to the house of his father, he saw that his brothers were being ill-treated by his step-mother. He, therefore, brought all the defendants to his own house. The defendants started residing since then with the plaintiff. The plaintiff brought them up. The father of the parties died without leaving behind him any property. Whatever movable property was available, was taken away by the stepmother after the death of the father. The plaintiff submits that he purchased the suit house by a registered sale-deed dated 1-10-1957 from one Haji Abdul Khaliq for consideration of Rs.1000/- He submits that he purchased it from his own funds. The plaintiff further submits that the sale deed was actually written on 01-10-1957 but was registered on 04-10-1957. During this period, the sale-deed was lying with the scribe of the sale-deed. The vendor, who was interested in the defendants surreptitiously got the names of the defendants entered in the sale deed as purchasers along with the plaintiff. In fact, the defendants were minors and did not contribute even a single pie towards the consideration. The plaintiff had allowed the defendants to reside in the suit house since they were minor. The plaintiff is practically illiterate and did not have any idea that the names of the defendants were surreptitiously introduced in the sale-deed. When the plaintiff's family increased he asked the defendants to vacate the premises. The defendants refused and claimed title in themselves. The plaintiff therefore, submits that he has terminated the licence of the defendants and the defendants should vacate the house.
3. The defendants filed their written statement and admitted the relationship. The main contention of the defendants is that they have contributed towards the consideration of the suit property from their own earnings as well as after sale of certain ornaments left behind by their father. They deny that the plaintiff is the sole owner of the property. The defendants. therefore, contended that they are the owners of the suit propelty and the plaintiff has no right to evict them.
4. The learned Judge of the Trial Court found that the plaintiff was not the sole owner of the suit property. He also found that the names of the defendants were not fraudulently introduced in the sale-deed. He further found that the plaintiff's contention that the defendants did not contribute anything was not correct and therefore the defendants could not be said to be the licensees and the plaintiff the sole owner. He. therefore. dismissed the suit.
5. The learned Judge of the Appellate Court concurred with the findings of the Trial Court and dismissed the appeal.
6. The appeal was admitted by Wahane. J. on ground nos. ii, iii and v as substantial questions of law. They are as follow-
ii) That, the learned Trial Court including the learned First Appellate Court, both admitted the facts regarding the interpolation of the names of the Respondents in the page of the registered sale-deed, dated 04-10-1957, filed at Exh.64, for which the whole sale consideration was paid by the appellant/plaintiff himself alone and not by the Respondents and also since the respondents nos. 1 to 3 were minors, and yet they gave the illegal findings of the relevant issues, and the points against the appellant/plaintiff, which are totally not only erroneous but also perverse in all respect
iii) That, the learned Trial Court, as well as the learned First Appellate Court further committed great errors of law by totally ignoring the other documentary evidence adduced and produced on record by the Appell
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
