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2015 Supreme(Bom) 1335
IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Sunder and Ors. - Appellants.
Versus
Shamptrao and Ors. - Respondents.
SECOND APPEAL NO. 106 OF 2011 WITH CIVIL APPLICATION NO. 3135 OF 2011
Decided On : 27.08.2015.
Advocate Appeared:
For the Appellant :Mr. J.M. Murkute, Advocate.
For the Respondents: Mr. B.S. Kudale, Advoate.
The principle of equity cannot be used in favor of a purchaser who was aware of a pending partition suit at the time of purchase.
Headnote:
Property Dispute - Transfer of Property Act, Section 52 - Bombay Prevention of Fragmentation and Consolidation of Holding Act - The court discussed the ownership and legal necessity for selling the property, the binding nature of the decree in a partition suit, and the provisions of lis-pendence. The court also considered the principle of equity and the passing of consideration in the sale deed.
Fact of the Case:
The suit was filed for relief of declaration and temporary injunction in respect of a 4 Acre portion of a property claimed to be joint family and ancestral property. The plaintiffs claimed ownership and possession, while the defendants contested, citing a partition suit and lack of legal necessity for the sale.
Finding of the Court:
The trial Court held that the plaintiffs failed to prove ownership and legal necessity. The appellate Court considered relevant points and answered against the plaintiffs. The Court found that the plaintiffs were aware of the pending partition suit at the time of purchase and that the principle of equity cannot be used in their favor.
Issues: Ownership, legal necessity, binding nature of partition suit decree, lis-pendence, passing of consideration, and equity.
Ratio Decidendi: The plaintiffs failed to prove ownership and legal necessity, and the principle of equity cannot be used in their favor due to their awareness of the pending partition suit at the time of purchase.
Final Decision: The appeal stands dismissed, and the Civil Application stands disposed of.
1) The appeal is filed against judgment and order of Regular Civil Appeal No. 148/2004 (Old No. 117/02), which was pending in the Court of Ad-hoc District Judge-1, Majalgaon and also against the judgment and decree of Regular Civil Suit No. 277/1994 which was pending in the Court of Civil Judge, Junior Division, Majalgaon. The suit filed by the present appellants for relief of declaration and temporary injunction is dismissed. Both the sides are heard.
2) The suit was filed in respect of 4 Acre portion (1 Hector 21 R.) out of Survey No. 182 (Gat No. 488) situated at village Talkhed. It is the case of plaintiffs that Mariba, the father of defendant Nos. 1 to 5, was holding the property and it was joint family and ancestral property. It is contended that Mariba was Karta of the joint Hindu family and in that capacity and for legal necessity, Mariba sold the suit property to the plaintiffs.
3) It is the case of plaintiffs that defendant Nos. 1 to 3 had filed a collusive suit against the father which was bearing No. 100/1979 and they obtained decree of partition against Mariba and that was done only to deceive the appellants. It is contended that in view of the rights given to the plaintiffs, it is not necessary to challenge the decree given in favour of defendants in partition suit. It is contended that the sale deed was executed on 11.12.1981 and on the date of the sale deed, the possession of the suit property was given to the plaintiffs by Mariba. It is contended that the plaintiffs have taken a well in this land and has installed electric motor for irrigation of the land and he has developed the property. It is contended that on the basis of sale deed, mutation is effected in favour of the plaintiffs in revenue record.
4) It is the case of the plaintiffs that defendants, the successors of Mariba have no concern whatsoever with the suit property. It is contended that Mariba was entitled to have share in aforesaid survey number and so that share is purchased by the plaintiffs. Relief of declaration was claimed that plaintiffs are joint owners and they are in possession of the suit property and declaration was claimed that the decree of Civil Suit No. 100/79 is not binding on the plaintiffs. Relief of injunction was claimed to prevent the defendants from interfering in the possession of plaintiffs over the suit property.
5) The defendants filed joint written statement and contested the matter. They contended that Mariba was not the Karta of joint family and defendant Nos. 1 to 3 were living separate from Mariba for about 30 years. It is contended that as Mariba was not effecting partition of the suit property amongst sons, suit No. 100/79 was filed for relief of partition and separate possession of respective shares.
6) It is the case of defendants that defendant Nos. 1 to 3 were living out of station for many years due to their occupation and the plaintiffs deceived Mariba and got executed the sale deed in respect of the suit property. It is contended that the decree in partition suit has become final and as the suit property was shown to be purchased during the pendency of the suit, plaintiffs do not get any right in the suit property. It is contended that for execution of the decree given in partition suit, execution proceeding is already filed and only to protract the execution of the decree, the suit is filed. The execution proceeding is bearing No. 26/1984.
7) It is the case of plaintiffs that partition had not taken place amongst the co-parceners of the suit property and so, Mariba had no right to sell any separate portion of the land. It is contended that no consideration was paid to Mariba by plaintiffs and dividing the land and giving separate possession to the plaintiffs will be against the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holding Act. It is contended that there was no necessity of any kind to Mariba as he was getting more than sufficient income from agriculture and he was cul
