Dismissed

Vimal Ramchandra Ghumre v. Ashruba Eknath Sawase and Ors.

Bombay HC18 Jan 2012WP/4646/2011

Case brief

AI extract

What is this about?

In a writ petition under Article 227 challenging the rejection of a civil application claiming a partition compromise was obtained by fraud, the court held that evidence appreciation is immune to interference unless perverse. The court upheld the Trial Court's finding that registration was not required under the Registration Act. The writ was dismissed.

What did the court decide?

The writ petition is dismissed with no order as to costs.

Vimal Ramchandra Ghumre Vs Ashruba Eknath Sawase and Ors. — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 4646 OF 2011

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Vimal Ramchandra Ghumre .. Petitioner

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Versus

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Ashruba Eknath Sawase and others .. Respondents

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Shri B. S. Kudale, Advocate for the Petitioner. Shri V. S. Undre, Advocate for Respondent Nos. 2 to 5.

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CORAM : S. V. GANGAPURWALA, J. DATE : 18TH JANUARY, 2012.

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PER COURT :

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. Heard Shri Kudale, the learned counsel for the petitioner and Shri Undre, the learned counsel for respondent Nos. 2 to 5.

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The suit bearing R.C.S. No. 81/2005 was filed by the petitioner against the respondents for partition and separate possession. The parties arrived at compromise vide Exhibit 46. The petitioner relinquished her share by the said compromise for consideration of Rs. 1,50,000/-. It is the contention of the petitioner that as stated in the compromise said amount was not

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mentioned in the compromise taking into account the relations between the parties. The petitioner filed Civil M. A. No. 11/2009 challenging said compromise on the ground that it was obtained by fraud and compromise is not lawful. It was not registered. The learned Trial Court has rejected the civil miscellaneous application. Aggrieved thereby the present writ petition is filed.

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Shri Kudale, the learned counsel for the petitioner submits

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that the compromise is not lawful. The same is also obtained by fraud. The petitioner had given details of the fraud, but the same has not been considered. The oral evidence to that effect was also led. The evidence has not been properly appreciated by the Court. The learned counsel contends that there was misrepresentation on the part of the respondent. A separate agreement was executed regarding payment of Rs. 1,50,000/- and that was not complied. According to the learned counsel the notice is also issued to the non applicant to pay the remaining amount which would substantiate the case. The execution of the bond is also not properly considered. According to the learned counsel as per Sec. 17 of the Indian Registration Act the said compromise deed is required to be registered, as the same is in respect of an immovable property valued more than Rs. 100/-.

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The law in this regard has not been properly considered by the Trial Court.

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The learned counsel for respondents supports the order and submits that in view of provisions of Sec. 17(2)(vi) of the Indian Registration Act, the said compromise decree is not required to be registered. The evidence has been properly appreciated by the Court and has rightly rejected the theory of fraud put forth by the petitioner.

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With the assistant of learned counsel I have gone through the order and documents placed on record. The execution of compromise is not disputed. It is only submitted that said compromise is obtained by fraud. The element of fraud has to be specifically pleaded. The details of fraud have to be specifically mentioned. Though the evidence has been led, the Trial Court has appreciated the evidence and the admissions given by the petitioner that after the compromise terms were read over the petitioner has put her thumb impression on the said compromise terms. So also the bond was executed. This Court in its writ jurisdiction under Article 227 of Constitution would not reappreciate the whole evidence and would interfere in the

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appreciation of evidence only if it is perverse. On perusal of the order it appears that the Court has properly appreciated the evidence.

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As far as the aspect of registration of said compromise or decree is concerned, the Court has properly appreciated the provisions of Sec. 17(2)(vi) of the Indian Registration Act. The said provisions exempt the operation of Sec. 17(1)(b) and (c) of the Indian Registration Act to the said compromise decree.

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In view of the above no case for interference is made out. As such, the petition is dismissed, however, with no order as to costs.

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[ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 12

Vimal Ramchandra Ghumre v. Ashruba Eknath Sawase and Ors.

Case brief

What is this about?

What did the court decide?

Vimal Ramchandra Ghumre v. Ashruba Eknath Sawase and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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