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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
R.K. DESHPANDE, J.
Amruta Kaluji Shejul & Ors. - Appellants
Versus
Vithal Ganpat Wadekar & Ors. - Respondents
Second Appeal No. 359 of 2001
Decided On : 15-07-2016
The main object of interrogatories is to enable a party to obtain from his adversary, the information as to facts which relate to the matters in question. This helps in reducing the burden in respect the facts which are within the special knowledge of adversary. The another source of obtaining such information is the cross-examination of party having special knowledge of such information.
It is possible that the person or party having knowledge of such information avoids in cross-examination to part with it and that will show the conscious withholding of information, requiring the Court to draw an adverse inference against such person or party. Drawing of an adverse inference is a matter of discretion, which has to be exercised in the facts and circumstances of the case. In the absence of such conscious withholding of information, it may not be proper for the Court to draw an adverse information.
Specific Relief Act, 1963 - Section 31(1)-Limitation Act, 1963, Article 59-Suit for cancellation of written instrument.-Suit for cancellation of voidable written instrument has to be filed within a period of 3 years as prescribed under Article 59 of Act.
The filing of suit by any person for cancellation of written instrument operating against him is discretionary and depends upon the reasonable apprehension of such person that if such instrument is left outstanding, it may cause him serious injury. If a written instrument is void ab initio, a suit for getting such a declaration from the Court of competent jurisdiction is not required to be filed, and even if such instrument remains outstanding, a plea that such instrument is void can be raised anywhere in any proceedings by way of defence and the bar of limitation to raise such challenge would not arise.
In a suit based on title claiming the relief of possession, any written instrument putforth in defence considered to be void, need not be challenged and the limitation for filing such a suit would be of twelve years from the date when it becomes adverse to the plaintiff and it shall be governed by Article 65 of the Limitation Act. But this is not true in a case where a written instrument operating against a person is voidable. It has to be necessarily, challenged within a period of limitation of three years, as prescribed by Article 59 of the Limitation Act and the period of limitation starts running from the date when such an instrument first become known to him.
Specific Relief Act, 1963 - Section 31(1)-Limitation Act, 1963, Articles 59 and 65-Suit for cancellation of sale-deed.-Suit for cancellation of sale-deed to be filed within 3 years from date of knowledge of sale-deeds by plaintiff.
The burden of proof that the suit filed is within a period of limitation, is upon the plaintiffs, who have come before the Court to get the same set aside or cancelled. It is not the case of plaintiffs that these sale-deeds were obtained from `L` by practising misrepresentation and/or fraud. The challenge to the sale-deeds cannot be said to be on the ground of voidness. In the present case, the sale-deeds at Exhibits 74, 76 and 78 are covered by Section 41 of the Transfer of Property Act and the transactions become voidable at the instance of the plaintiffs. It is not the pleading in the plaint that the plaintiffs filed the suit challenging the sale-deeds, within a period of three years from the date of their knowledge about execution of such sale-deeds. This is also not the evidence brought on record by the plaintiffs.
On the contrary, the evidence brought on record and the findings recorded in earlier paras clearly establish the knowledge of the plaintiffs about the possession of the defendants and the execution of sale-deeds on 4.6.1974, 13.4.1976 and 19.7.1976 itself. These instruments stand as insurmountable obstacle and binds them. In fact, they have made a prayer for setting aside these instruments. The limitation is, therefore, governed by Article 59 of the said Act and the suit should have been brought within a period of three years, as contemplated by Article 59 of the Limitation Act, from the date of knowledge of these sale-deeds to the plaintiffs. The suit filed on 11.2.1986 was, therefore, clearly barred by the law of limitation, as prescribed under Article 59 of the Limitation Act.
Transfer of Property Act, 1882 - Section 41-Evidence Act, 1872, Section 115- Bona fide purchaser.-Where suit property was sold by plaintiffs, real owners to defendants for valuable consideration therefore defendants are bona fide purchaser.
The document is registered and it carries a presumption of its genuineness. It was a specific stand taken in the written statement by the defendants that the plaintiff No. 1 had attested the sale-deed dated 4.6.1974 at Exhibit 74. The defendant No. 1, the purchaser of the suit property under the sale-deed at Exhibit 74, entered the witness-box and stated on oath that both the plaintiffs were present at the time of execution of the sale-deed and the plaintiff No. 1 signed it as an attesting witness. There is no cross-examination of the defendant on this aspect of the matter by the plaintiffs. This evidence, therefore, has to be accepted as sufficient to shift the onus upon the plaintiffs for the reason that the plaintiff No. 1 is presumed to know the contents of the document at Exhibit 74 representing the defendants that, the suit property is owned and possessed by `L` and though the sale was against his own interest, he does not have any objection for such sale.
Hindu Succession Act, 1956 - Section 14(2)-Hindu Adoption and Maintenance Act, 1956, Sections 20(1)(3) and 22(1)-Absolute ownership.-When plaintiff-2 has discharged his obligation to maintain his adoptive mother till her life time then adoptive mother cannot become absolute owner of suit property upon death of plaintiff.
In the present case, the plaintiff No. 2 has discharged his obligation to maintain `L`, the adoptive mother, till her lifetime, and the document created at Exhibit 66 created for the first time on 9.6.1965, making a provision for maintenance of `L` would not be enough to convert her limited right into one of the absolute ownership in respect of the suit property, as contemplated by sub - Section (1) of Section 14 of the Hindu Succession Act. She would not, therefore, become an absolute owner of the said property, and by virtue of sub- section (2) of Section 14 of the said Act, the property under Exhibit 66 shall revert back to the plaintiffs upon her death.
Hindu Succession Act, 1956 - Section 14(2)-Hindu Adoption and Maintenance Act, 1956, Sections 20(1)(3) and 22(1)-"Maintenance".-Grant of life interest in suit property to widow for her maintenance, cannot be said that there was pre-existing maintenance right of widow that can be enforced against suit property.
Under sub - Section (1) of Section 22 of the said Act, the obligation of the heirs of the deceased Hindu to maintain the dependents of the deceased is only out of the estate inherited by him from the deceased. This is a matter of fact, which is required to be pleaded and proved, and the obligation is not automatic. In the absence of evidence of existence of such estate, the right of heirs of the dependents of the deceased shall not survive. The obligation so created in respect of parents is only during the lifetime without creating any right or interest, as contemplated under sub - Section (1) of Section 14 of the Hindu Succession Act, to dispose of the property given for maintenance.
Limitation Act, 1963-Article 59-Limitation period.-Limitation for filing a suit for cancellation of instrument starts running from date of knowledge of such instrument.
The question as to whether a document/written instrument is void or voidable, depends upon the nature of such document and the challenges raised. It has to be decided in the facts and circumstances of each case. Normally, Article 59 of the Limitation Act is attracted where a suit has been filed by a party to such an instrument.
This is a Second Appeal (No. 359 of 2001) decided by the Bombay High Court (Nagpur Bench) on 15-07-2016 in a property dispute over 12 acres of land in Survey No. 117 at Mouza Belgaon, Tq. Mehkar, District Buldana. The original plaintiffs (respondents here: Vithal Ganpat Wadekar and Mahadeo Ganpat Surve, real brothers, with Vithal as Laxmibai's son-in-law and Mahadeo as her adopted son) claimed ownership and possession against the defendants (appellants: Amruta Kaluji Shejul and others), who had purchased portions of the land from Laxmibai via registered sale deeds dated 04-06-1974 (Ex. 74), 13-04-1976 (Ex. 76), and 19-07-1976 (Ex. 78). Laxmibai died on 04-05-1983. The suit (Regular Civil Suit No. 22 of 1986, filed 11-02-1986) sought declaration that the sale deeds were not binding and possession. Trial and first appellate courts decreed for plaintiffs; High Court reversed on appeal. (!) (!) (!) [4000520690001][4000520690002]
The High Court framed substantial questions of law and answered them as follows:
Benami Transaction and Ancestral Property: Defendants failed to prove the 1965 purchase (Ex. 65) was benami for Laxmibai or funded from joint family nucleus (e.g., sale of Survey No. 12/2 at Belgaon or Laxmibai's 18 acres at Pangarkhed). No evidence of joint family property or nucleus income shifting burden to plaintiffs. Plaintiffs proved title via Ex. 65.[4000520690005][4000520690007][4000520690010][4000520690011][4000520690012] (!) (!)
Nature of Laxmibai's Interest (Hindu Succession Act, S.14): Settlement deed (Ex. 66) created limited life interest for maintenance, not converting to absolute ownership under S.14(1). No pre-existing enforceable maintenance right against suit property (not ancestral/joint family land; statutory obligation under Hindu Adoptions and Maintenance Act, Ss.20/22 not "inherent" like widow's spousal right). Property reverted to plaintiffs on her death per S.14(2).[4000520690018][4000520690022][4000520690023][4000520690025][4000520690026][4000520690027] (!)
Estoppel (Evidence Act, S.115) and Ostensible Owner (Transfer of Property Act, S.41): Plaintiff No.1 attested sale deed Ex. 74 (04-06-1974) as witness; both plaintiffs present at execution (unrebutted evidence). This represented Laxmibai as owner with their consent, estopping challenge. Defendants were bona fide purchasers for value; no need for further title inquiry once real owners induced belief. Transactions protected; voidable only at plaintiffs' instance.[4000520690028][4000520690035][4000520690036][4000520690038] (!) (!) (!) (!) (!) (!)
Limitation (Limitation Act, Art.59 vs. Art.65; Specific Relief Act, S.31(1)): Suit prayed for setting aside voidable sale deeds (not void ab initio; no fraud pleaded). Governed by Art.59 (3 years from knowledge), not Art.65 (12 years for possession on title). Plaintiffs knew of sales/possession by 1974 (admitted no possession since; defendant evidence). Suit (1986) barred by limitation—deeds insurmountable obstacles binding plaintiffs.[4000520690039][4000520690041][4000520690044][4000520690045] (!) (!) (!) (!)
Other Points: - No adverse inference for non-production of related sale deed (Survey No.12/2) or plaintiff No.1 not testifying, absent interrogatories (CPC O.XI R.1) or targeted cross-examination (Evidence Act, Ss.106,114(g)).[4000520690013][4000520690016][4000520690017] (!) (!) (!) - Benami Prohibition Act inapplicable (pre-1988 transaction).[4000520690004]
Appeal allowed; suit dismissed as time-barred. Trial court decree (12-02-1993) and appellate order (31-08-2001) quashed. No costs.[4000520690046] (!)
JUDGMENT :
1. The deceased-respondent No.1 Vitthal Ganpat Wadekar was the original plaintiff No.1, whereas the deceased-respondent No.2 Mahadeo Ganpat Surve was the original plaintiff No.2. Both the plaintiffs were real brothers. The plaintiff No.1 was the son-in-law (husband of the daughter) of one Laxmibai, whereas the plaintiff No.2 was the son of Laxmibai, adopted on 9-5-1952. The dispute in this matter pertains to 12 acres of land out of Survey No.117, situated at Mouza Belgaon, Tq. Mehkar, District Buldana, sold by Laxmibai to the deceased-defendant No.1 Amruta and the defendant No.3 Yashwant by the registered sale-deeds dated 4-6-1974 and 19-7-1976; to the deceased-defendant No.2 Dagdu by the registered sale-deed dated 13-4-1976; and to the defendant No.4 Gajanan by the registered sale-deed dated 24-5-1978.
2. The plaintiffs approached the Civil Court by filing Regular Civil Suit No. 22 of 1986 with the case that they had purchased the land Survey No. 117, admeasuring total 4.86 HR, equivalent to 25 acres and 13 gunthas, out of their own funds by the registered sale-deed dated 9-6-1965 at Exhibit 65 from one Rodji Bajirao; and by executing the registered settlement-deed at Exhibit 66 dated 9-6-1965 the land admeasuring 12 acres out of Survey No.117 was given to Laxmibai for maintenance during her lifetime, and she was not authorized/competent to mortgage or sale the said land to anyone. Laxmibai died on 4-5-1983 and thereupon the plaintiffs became entitled to take over the possession of the said land. The defendants have, however, obstructed them on the ground that they are in possession as the owners of the said land on the basis of the aforementioned sale-deed executed by Laxmibai in their favour. The plaintiffs, therefore, claimed a declaration that the aforementioned sale-deeds are not binding upon them and the defendants have no right to be in possession of the suit property, and hence the decree for possession was also claimed.
3. The Trial Court answered the issue of title in favour of the plaintiffs on the basis of the sale-deed dated 9-6-1965 at Exhibit 65 from Rodji Bajirao. It recorded the finding that the plaintiffs have established that the suit land was transferred by the settlement-deed dated 9-5-1965 at Exhibit 66 to Laxmibai, creating in her a limited interest upto life for maintenance. The Trial Court also held that the instrument at Exhibit 66 is governed by subsection (2) of Section 14 of the Hindu Succession Act, 1956, and the terms and conditions enumerated therein indicate that it was not a transfer in lieu of preexisting right of Laxmibai in the property. The contention of estoppel under Section 115 of the Indian Evidence Act, 1872 read with Section 4 of the Transfer of Property Act, 1882 on the fact of attestation by the plaintiff No.1 on the sale-deed dated 4-6-1974 at Exhibit 74, executed by Laxmibai in favour of the defendant Nos.1 and 3, was rejected by the Trial Court. The Trial Court also rejected the contention of the defendants that it was Laxmibai, who was the real owner and had purchased the suit land benami in the name of the plaintiffs by the registered sale-deed dated 9-6-1965 at Exhibit 65. The contention that the defendants were bona fide purchasers of the suit property under the sale-deeds dated 4-6-1974 at Exhibit 74, dated 13-4-1976 at Exhibit 76, and dated 19-7-1976 at Exhibit 78 from Laxmibai without notice for valuable consideration, was also rejected by the Trial Court. The lower Appellate Court has concurred with these findings and the decree passed regarding ownership of the plaintiffs over the suit property and possession in favour of the plaintiffs, was maintained by dismissing the appeal.
4. This appeal was admitted by this Court on 3-10-2005, framing the following two substantial questions of law :
| Serial Nos. | Substantial questions of law | Findings |
| (i) | ||
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