Dismissed

Shankar Tulshiram Pawar v. Haridas Jivdas Kshirsagar

Bombay HC22 Mar 2012SA/289/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeals filed by appellants challenging the confirmation of trial court decrees in two regular civil suits involving a sale deed. The court held that no substantial question of law arose from the proceedings.

What did the court decide?

No order needed as appeals and civil applications were dismissed.

Shankar Tulshiram Pawar Vs Haridas Jivdas Kshirsagar — Property and Title | Bombay HC (2012)

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jpc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 289 OF 2012 WITH CIVIL APPLICATION NO. 531 OF2012 IN SECOND APPEAL NO. 289 OF 2012 WITH SECOND APPEAL NO. 290 OF 2012 WITH CIVIL APPLICATION NO. 532 OF2012 IN SECOND APPEAL NO. 290 OF 2012

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Shankar Tulshiram Pawar and others

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... Appellants

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Versus

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Haridas Jivdas Kshirsagar

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.. Respondent

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Mr. G. M. Savagave with Mr. Sachin Dhakephalkar for the Appellants None the Respondents

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CORAM: R. M. SAVANT, J.

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DATED : 22^nd March, 2012

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P.C. :

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The above Second Appeals arise out of the judgment and order dated 13^th February, 2012, passed by the learned District Judge-2, Kolhapur by which the Appeals filed by the Appellants i.e. Civil Appeal Nos.30 of 2006 and 42 of 2006 came to be dismissed and resultantly, the decree passed by the trial Court in Regular Civil Suit No. 93 of

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1999 filed by the Respondent, as also the decree of dismissal passed in Regular Civil Suit No. 294 of 1999 filed by the Appellants herein came to be confirmed.

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There is a concurrent finding recorded by both the Courts below as regards the validity of the sale deed dated 16th October 1996 as also as regards the fact that the said sale deed is binding on the Plaintiffs in Regular Civil Suit No. 294 of 1999 i.e. the Appellants herein. Regular Civil Suit No. 93 of 1999 is filed by the Respondent herein seeking perpetual injunction in respect of the land bearing Gat No. 75, admeasuring 81 R which is covered by the said sale deed dated 16th October 1996. The Plaintiff in the said suit also claimed declaration that the said sale deed is binding on the Plaintiffs in Regular Civil Suit No. 294 of 1999.

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The plaintiffs in Regular Civil Suit No. 294 of 1999 have challenged the sale deed dated 16th October 1996 inter alia on the grounds mentioned in the said suit and have claimed declaration that the said sale deed is void ab initio and not binding on the Plaintiffs in the said suit.

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At this stage it would be relevant to note that the said sale deed

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was challenged on the grounds that the same was executed as and by way of security for the loan taken by the Defendant No.1-Shankar, that the same was executed under coercion, that the same was void as the permission under Section 8 of the Hindu Minority and Guardianship Act 1956 was not obtained before executing the said sale deed.

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The parties went to trial and led evidence in support of their respective cases. The trial court on the basis of the material on record held that the said sale deed cannot be said to be executed under coercion and recorded a finding that the Defendant No.1 Shankar had voluntarily executed the sale deed. Insofar as the theory of it being a loan transaction was concerned, the trial Court, took into consideration the fact that the alleged loan taken was only of Rs.2000/- and therefore found it unbelievable that the Plaintiff in Regular Civil Suit No.93 of 1999 would demand an amount of Rs.40,000/-, for which the said sale deed was executed. The trial Court held that there was no material placed on record by the Plaintiffs in Regular Civil Suit No. 294 of 1999 to substantiate the said case.

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Insofar as the issue of permission having not been taken under Section 8 of the Hindu Minority and Guardianship Act 1956 is concerned, the trial Court held that the said permission is not necessary if the

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property sold is an undivided share of a minor, as the Karta has undoubtedly the power to sell it for the legal necessity. In so far as the aspect of possession is concerned, the trial Court, on the basis of the revenue record, held that the Plaintiffs in Regular Civil Suit no. 93 of 1999 in lawful possession of Gat No. 75 admeasuring 81 R which is the southern side portion.

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The trial Court therefore decreed the suits in question which has been questioned by the Appellants above named by filing the said two Appeals. The lower Appellate Court, by the impugned judgment & order, confirmed the decree passed by the trial Court. Hence, as indicated above, both the Courts have concurrently ruled against the Appellants herein on the aspects which have been adverted to hereinabove.

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The learned counsel Shri Savagave appearing for the Appellants would contend that the issue of permission having not been obtained under Section 8 of the Hindu Minority and Guardianship Act 1956 has been lost sight of by both the Courts below. The learned counsel would contend that the fact that the sale deed has been executed of a land which is worth Rs.60,000/- at the relevant time for an amount of loan taken which is only Rs. 2,000/- has also been lost sight of both the Courts below.

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Insofar as the first contention of Shri Savagave is concerned, it is required to be noted that the Courts below have held that the Karta is sufficiently empowered to sell the undivided share of a minor, if it is for the legal necessity. In the instant case it is required to be noted that virtually all the elders of the family including the Defendant No.1 who was the Karta has executed the sale deed in favour of Plaintiff Haridas. The said fact, in my view, further would lend credence to the aspect as regards the legal necessity for sale of the property. In so far as the second contention of the learned counsel is concerned, both the Courts below have rejected the said theory propounded by the Plaintiffs in Regular Civil Suit No. 294 of 1999, as according to the Courts below, there was no material to substantiate the said case.

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Having heard the learned counsel appearing for the Appellants at some length and having considered the papers and proceedings, no substantial question of law arises in the above Second Appeals for consideration of this Court, which are accordingly dismissed.

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In view of the dismissal of the Second Appeals, the Civil Applications do not survive and are accordingly disposed of as such.

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( R. M. SAVANT, J.)

Shankar Tulshiram Pawar v. Haridas Jivdas Kshirsagar

Case brief

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What did the court decide?

Shankar Tulshiram Pawar v. Haridas Jivdas Kshirsagar

Case brief

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