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2008 Supreme(Bom) 1156
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
P.R. BORKAR, J.
Lachmabai w/o. Hanumant – Appellants
Versus
Vithabai w/o. Laxman Namawar – Respondents
SECOND APPEAL NO. 193 OF 1987
DECIDED ON : 13.08.2008
Shri S.M. Kulkarni, Advocate for the appellants.
Shri M.B. Sabnis with Shri R.L. Chintalwar, Advocates for the respondents.
Headnote:Civil Procedure Code, 1908 - Section 11-Maintainability of subsequent suit-Bar of res judicata-Previous suit was for partition of land-Subsequent suit for perpectual injunction-Simpliciter-Held-No bar of res judicata.
Contract Act, 1872 - Sections 7, 19 and 23-Hyderabad Tenancy and Agricultural Lands Act, 1950, Section 38-A-Invalid transaction.-"Transaction in contravention thereof would be invalid" mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It is clear that invalid transaction is made equivalent to a voidable transaction and not a valid transaction.
Hindu Laws - Joint family property-Benefit of estate-Activity for.-As admitted in the plaint of Regular Civil Suit No. 86 of 1969 Hanumant and Laxman were joint and present respondents were claiming their right through Laxman. It is not disputed that during lifetime of Hanumant, he was manager of the family and as such he had right to dispose of the property for legal necessary and also for benefit of estate. The written statements filed by the defendants which are extensively reproduced earlier clearly show that Hanumant during his lifetime sold various portions of Survey No. 298 by registered sale deeds for different consideration to different persons. He even developed a portion of Survey No. 298, prepared roads and constituted plots and sold them during his life time. Copies of none of those sale-deeds are produced by the plaintiffs/respondents nor any details of those sales are given. Those sale deeds are not challenged. As Karta or manager of the joint family, Hanumant had every right to sell the joint family property for benefit of estate and legal necessity. Developing a land for residential purpose and then selling plots or selling land for development for residential purpose is definitely an activity for benefit of estate. In absence of any challenge to alienations made by Hanumant during his lifetime, in my opinion all those sale-deeds need to be protected and definitely the Additional District Judge has overlooked this aspect.
Hyderabad Tenancy and Agricultural Land Act, 1950 - Sections 50-B and 98-C - Validity of transfer in question - Transfer of land made in violation of Section 50- B(1) - Held - Transfer is not null and void but only invalid.
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
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The appeal is filed against a decree of partition and separate possession, which was initially dismissed by the Civil Court but later reversed by the appellate court, leading to the current second appeal (!) .
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The original parties include Hanumant and Maruti, who are brothers, with Hanumant's widow Lachmabai and their son Laxman involved as heirs or claimants. The land in question includes Survey Nos. 182 and 298 at Tamloor village [4000302540001].
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The suit filed by the respondents seeks partition and possession, and challenges the validity of a sale deed executed by Lachmabai in favor of Maruti, claiming it to be void [4000302540003].
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The land was purchased and managed under applicable tenancy and agricultural land laws, with certain transactions being deemed invalid or only invalid, not null and void, due to contraventions of relevant legal provisions (!) (!) .
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The deceased Hanumant had sold various portions of the joint family property during his lifetime, which were not challenged, and such sales are protected as acts for the benefit of the estate and legal necessity [4000302540023].
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The court recognizes that certain alienations made after Hanumant’s death, especially those executed by Lachmabai, may be invalid if done without proper permission, but these do not automatically render the transactions null and void; rather, they are invalid and subject to further proceedings (!) (!) [4000302540025].
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The prior suit regarding the same property, which resulted in a decree of perpetual injunction, does not amount to a transfer or create an interest, and does not operate as res judicata for the current suit [4000302540012][4000302540022].
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The court emphasizes that the shares of the parties should be properly determined, and that alienations made by Hanumant during his lifetime, which were not challenged, are protected. The shares are to be divided accordingly, considering the death of Laxman and the inheritance rights of Lachmabai and the respondents [4000302540029].
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The sale deed executed by Lachmabai in favor of Maruti in 1968 is not binding on the respondents to the extent of their shares, especially as Lachmabai lacked the authority to sell the property after Hanumant’s death [4000302540027].
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The court modifies the decree, ordering partition of the specific land, with each respondent receiving a 1/6th share, and the remaining 4/6th share allocated to the legal representatives of Maruti. The sale deed in favor of Maruti is declared not binding to the extent of the respondents' shares (!) (!) .
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The parties are directed to identify and partition the land as per the court’s instructions, and the sale deeds executed prior to the suit are protected unless challenged within the prescribed period [4000302540024].
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The appeal is partly allowed, and the decree of the lower appellate court is modified accordingly, with each party bearing their own costs (!) .
Please let me know if you need further analysis or clarification on any specific aspect.
This is an appeal preferred by the original defendants being aggrieved by the decree of partition and separate possession passed by the III Additional District Judge, Nanded while deciding Regular Civil Appeal No.174 of 1981 on 17th June, 1987. By the said decree the learned Additional District Judge reversed the judgment and decree passed in Regular Civil Suit No.53 of 1974 decided on 30th March, 1981, whereby the original suit for partition was dismissed by the learned Civil Judge.
2. Some of the facts giving rise to this appeal are admitted at this stage and it is preferable to set them out at the outset. . One Piraji Koli had two sons Hanumant and Maruti. Maruti is present appellant No.2 who was also original defendant No.2. He died on 31.07.1987 after decision of first appeal. Hanumant expired on 23.09.1968. Appellant No.1 Lachmabai was his widow. She died pending this appeal on 11th June, 1999. Lachmabai had a son Laxman who has been missing since about 3-4 years prior to 1969. It is also said that he was lunatic. Present respondent No.1 Vithabai is wife of Laxman and present respondent No.2 Gangabai is his daughter. Vithabai and Gangabai are original plaintiffs. Defendant Nos. 3 to 21 are various persons who have purchased various plots out of Survey No.298 situated at Tamloor, Tal. Degloor, Dist. Nanded. Many of them have purchased plots from Hanumant and some from original respondent No.1 Lachmabai prior to the filing of suit.
3. It may be mentioned that there were 21 defendants when the suit was decided. When the first appeal was decided by the learned Additional District Judge, the respondents were 24 in number and in this appeal the appellants are shown 29. It is mainly because on death of some of the defendants their LRs are brought on record and they are shown separately. In this Second Appeal the original defendants and L.Rs. of deceased defendants are the appellants and original plaintiffs are respondents.
4. The suit filed by the plaintiff/respondent is for partition & separate possession and for declaration that the sale-deed dated 18.11.1968 by original appellant No.1-Lachamabai in favour of original appellant No.2 Maruti for Rs.7000/- in respect of Survey No.182 is void and not binding. The suit properties are parts of Survey Nos. 182 and 298 situated at village Tamloor, Tal. Degloor, Dist. Nanded. In order to avoid confusion, it is necessary to summarise the plaint as it stands today. Just below title, it is stated that the suit was filed for establishing right of share in partition and for possession over 7 Acres 8 Gunthas land out of Survey No.182 and for declaring the sale-deed dated 18th November, 1968 by appellant No.1 in favour of appellant No.2 as null and void. Abuttals of said 7 Acres and 8 Gunthas land allotted to the share of Hanumanta are mentioned. It is said that on Eastern side there was share of original appellant Lachmabai, on Western side there was land of Dakaji s/o. Nagappa, on Northern side there was agricultural land of Shankar and on Southern side there was Panand and village boundary. Then it is stated that respondent/plaintiff wanted 1/3 share out of 4 Acres 7 Gunthas land from Survey No.298. No abuttals are given of the 4 Acres 7 Gunthas land. In para 2 it is stated that Survey No. 182, which was 14 Acres 16 Gunthas land, was purchased by joint family of Hanumant and appellant Maruti under Section 38A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as "the H.T. & A.L. Act). It is also said that Hanumant was owner of 4 Acres 7 Gunthas land out of Survey No.298. As per the H.T. & A.L. Act, said land was given to him. It is further stated in para 3 that there was partition between Hanumant and appellant No.2 Maruti in 1964 and Hanumant was allotted 7 Acres 16 Gunthas land on the Western side out of Survey No.182 of which Hanumant was in possession. In order to establish his right over said Western 7 Acres 16 Gunthas land Hanumant had f
