BOMBAY HIGH COURT
R.K. Deshpande, J.
Amruta Kaluji Shejul and Ors. —Appellants
versus
Vithal Ganpat Wadekar and Ors. —Respondents
Second Appeal No.359 of 2001
Decided on 15.7.2016

Headnote:(a) Benami Transactions (Prohibition) Act, 1988 – Section 4(3) – Property purchased in 1965, much before enactment of the Act – Purchase made by adopted son an son-in-law (both real, brothers) of a lady – Given to her by family settlement with life interest – Act, 1988 does not apply. (Para 5)

       (b) Property law – Existence of a joint family does not mean that property held by any member of the family is joint – Burden to establish that any item of property was joint rests upon the person asserting it – When a family possessed sufficient nucleus, the law raises a presumption that an acquisition made by a member of the joint family was with the aid of such nucleus – Onus then shifs to the individual member to establish that the property was acquired by him without the aid of the said nucleus. (Para 9, 10)

       AIR 1954 SC 379; AIR 1966 SC 411 – Relied upon

       (c) Property law – Pliantiffs establishing, on basis of sale deed in theior exclusive name, their ownership on the property – It is for defenedants, claimimg the purchase to be out of joint ancestral family property to prove the same. (Para 11)

       (d) Property law – Laxmibai and aplainbtiifs 1 and 2 selling some ancestral property and plaintiffs no. 1 and 2 purchasing another property the same day – Again a settlement was registered the same day for maintenance of Laxmibai – In absence of anything more, it cannot be said that plaintiffs had purchased the suit property with the aid of the funds provided by Laxmibai and in consideration of that, the deed of settlement was executed. (Para 13)

       (e) Indian Evidence Act, 1872 – Sections 103, 106 and 114(g) r/w Order Order XI, Rule 1, Code of Civil Procedure, 1908 – Defendants cointeding that the plaintiffs being in possession of the information as to the nature of property in the hands of Laxmibai and the sources of her income, the burden shall be upon them to bring on record such facts – Defendants not invoking provisions of Order Order XI, Rule 1 to tender interrogatories to the plaintiffs to seek information – Defendants not nmaking any effeort during cross-examination of plaintiff 2 to elicit information about the nature of the property in the hands of Laxmibai which was sold by her and the plaintiffs and the source of her income to purchase that property – Contentuion rejected. (Para 18)

       AIR 1968 SC 1413 – Distinguished

       (f) Hindu Succession Act, 1956 – Section 14 – Subsection (1) applies to the cases of inherent or preexisting right of maintenance – In such cases, applicability of subsection (2) is excluded. (Para 22)

       AIR 1998 SC 2401; 2015 AIR SCW 6258 – Relied upon

       (g) Hindu Succession Act, 1956 – Section 14 – Instantly, Laxmibai could enforce the right of maintenance only against the ancestral or joint family property, or the property of the husband in the hands of the plaintiffs – Defendants not able to show that the landed property in the hands of Laxmibai was an ancestral or joint family property or the property of her husband – Nor it was shown that the said land was ever sold by Laxmibai during her lifetime – Laxmibai jointly selling the land at Belgaon with plaintiffs –Availability of fund with Laxmibai to jointly purchase this property not shown – Defendants also failing to establish that the suit land was purchased out of the nucleus of the joint family property or out of the sale proceeds of the land at Belgaon – Held, Laxmibai did not have preexisting right of maintenance against the suit property – Settlement deed, hled, not covered by subsection (1). (Para 24)

       (h) Hindu Adoptions and Maintenance Act, 1956 – Section 20(1) and (3) r/w section 14(1), Hindu Succession Act, 1956 – Obligation of son or adopted son to maintain his parents – Cannot be equated with obligation of husband to maintain his wife – Right of maintenance of mother against a son is not personal obligation to be enforced against the son – It is statutorily created – Such limited or restricted right cannot be coverted into one of absolute ownership under subsection (1) of Section 14, Act 1956. (Para 26)

       (i) Hindu Adoptions and Maintenance Act, 1956 – Section 22(1) – Obligation of heirs of the deceased Hindu to maintain the dependents of the deceased – Limited to out of the estate inherited by him from the deceased – Obligation is not automatic – In absence of an estate the right of heirs of the dependents of the deceased shall not survive – Such obligation in respect of parents – Only during the lifetime without creating any right or interest – Section 14(1), Hindu Succession Act not attracted. (Para 27)

       (j) Transfer of Property Act, 1882 – Section 41 r/w section 115, Indian Evidence Act, 1872 –Registrered sale deed carrying presmption of genuineness clearly reciting part of the property to be ownd and possessed by Laxmibai – Plaintiff 1 signing as attesting witness – Plaintiff 1 not entering witness box – Not denying his signature on the sale deed – Section 114, Illustration (g) of Evidence Act coming into play – Makes the sale deed bonafide in terms of section 115 Evidece Act – Thus the transaction by the bona fide sale deed being by ostensible owner with consent of real owners is protected by section 41, Transfer of Property Act. (Para 38, 39)

       2010 AIR SCW 232: (AIR 2010 SC (Supp) 291); AIR 1971 SC 2548; AIR 1995 SC 1205; AIR 2009 SC (Supp) 1550 – Relied upon

       (k) Specific Relief Act, 1963 – Section 31(1) – Declaration of cancellation od written statement is discretionary – In case of a written statement void ab initio no court action is required – No bar of limitation for challenging a void written statement – Limitation of 12 years from the date such written statement becoming adverse to the plaintiff – Article 65, Limitation Act, 1963 – A voidable written statement, on the other hand, has to be challenged within 3 years from date of knowledge – Article 59, Limitation Act, 1963. (Para 42)

       (l) Limitation Act, 1963 – Sectio 59 – Suit filed by a party to an instrument – Limitation starts from the date of his knowledge – In case where suit to avoid such instrument is filed by a person not party to such instrument, which otherwise binds the plaintiff, though not a party – Test laid down by Supreme Court in (1996) 7 SCC 767 – Answer being in the negative, limitation shall start running from the date of knowledge of such instrument to the party challenging it. (Para 45)

       (1996) 7 SCC 767; AIR 2010 SC 211 – Relied upon

       1984(2) Bom.C.R. 50; (1993) 2 SCC 405: (AIR 1993 SC 1628); AIR 2000 SC 1099; AIR 2003 SC 1858; AIR 2006 SC 3608; (2008) 4 SCC 594: (AIR 2008 SC 2033) – Referred

       (m) Limitation Act, 1963 – Sectio 59 – Plaintiffs challenging the sale deeds covered by section 41, Transfer of Property Act, 1872 – Plaintiffs making a prayer for cancellation of the sale deeds – Limitation governed by Article 59 – Suit ought to be filed 1974 and 1979, instead filed in 1986 – Barred by limitation. (Para 46)

       Result: Suit dismissed.