Dismissed

Shri Ramesh Madhukar Pawar v. Shri Chhaganlal Sohanlal Agarwal

Bombay HC14 Jan 2013SA/141/2012

Case brief

AI extract

What is this about?

In the second appeal challenging a dismissal of a suit seeking declaration that a sale of ancestral property was void, the court held that Article 59, not Article 109, of the Limitation Act applies since the vendor was a manager. Consequently, the appeal was dismissed as being barred by limitation.

What did the court decide?

The second appeal is dismissed. There shall be no order as to costs. C.A.No.254 of 2012 is also dismissed.

Shri Ramesh Madhukar Pawar Vs Shri Chhaganlal… — Matrimonial and Divorce | Bombay HC (2013)

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RNG 1 sa141.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION SECOND APPEAL NO.141 OF 2012

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Ramesh Madhukar Pawar & ors

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.. Appellants

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vs.

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Chhaganlal SohanlalAgarwal & ors ..

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Respondents

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Mr.M.M.Sathaye for Appellants Mr.Tushar Sonawane for Respondents

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CORAM : R.Y.GANOO, J DATED : 14.1.2013

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P. C.

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The Appellants herein filed a Special Civil Suit No.368/2002 in the Court of 6th Jt.C.J.S.D.Nasik to seek a declaration that the transaction of sale deed between the Original Respondent no.8 who happened to be father of the present Appellant and present Respondent to.1 as the purchaser being Sale deed dated 22.3.1994 coupled with Deed of Rectification dated 19.5.1999 is bad in law. The learned trial Judge by a Judgment and decree dated 5.3.2011 dismissed the suit. Regular Civil Appeal filed by the present Appellant being Appeal No.81/2011 in the District Court at Nasik was also dismissed. Hence, this Second Appeal.

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RNG 2 sa141.12

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The Appellants have not disputed in the Plaint the status of Respondent no.8 as a Manager. The Rectification Deed was required to be executed as there was some mistake in the description of the land sought to be sold.

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Learned Advocate for the Appellants took me through the relevant paras of the District Court Judgment wherein the learned District Judge has in terms held that the transaction will be binding upon the Appellant no.1 and the Respondent no.1. According to the learned Advocate for the Appellants if this finding is seen, one may have to come to the conclusion that the learned District Court agreed with the stand of the Appellants that the transaction is bad-in-law as regards Appellant nos. 2 and 3 and Respondent no.8. It was pointed out that after recording a finding as aforesaid the learned District judge has dismissed the Appeal. According to the learned Advocate Mr. Sathe for the Appellants the Appeal ought to have been appropriately disposed of by keeping in view para no.58 of the Judgment of the District Court. I will deal with this argument only after dealing with the the point on limitation.

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RNG 3 sa141.12

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Learned Advocate Mr. Sathe appearing for the Appellants contended that according to him in the facts and circumstances of the case, Article 109 of the Indian Limitation Act, 1963 (for short referred to as said Act) applies and that the Courts below have wrongly applied Article 59. Learned Advocate for Appellants pointed out that in the present case parties were governed by Mitakshara law and that Respondent no.8 father of the present Appellants had entered into a transaction of sale of the ancestral property. He submitted that as per Article 109 of said Act period of limitation would be 12 years from the time a transferee is put in possession of the property. He submitted that the transferee had taken possession in 1994 and therefore institution of the suit in the year 2002 was within the period of limitation.

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Learned Advocate Mr.Tushar Sonawane appearing on behalf of the Respondents submitted that it is a matter co-incidence that Respondent no.8 happened to be father of the present Appellants. He submitted that in the document executed on 22.3.1994 an averment is found in the said document that the property is sold for legal necessity and benefit of estate.

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RNG 4 sa141.12

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According to him the property was sold by Respondent no. 8 in his capacity as a Manager and therefore Article 109 of the said Act would not be applicable and Article 59 of said Act would be applicable as has been applied by the Courts below.

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I am inclined to accept the argument of learned Advocate Mr Sonawane. In the entire trial, no where question of status of Respondent no.8 as Manager was agitated by any of the parties. If Respondent no. 8 has in his document mentioned that the property is sold for legal necessity and for benefit of the estate, it will have to be taken that Respondent no.8 was manager of the said co-parcenery. Once it is noted that Respondent no.8 has sold the property in his capacity as a Manager, Article 109 of said cannot be applied to the facts of this case. Respondent no. 8 in my view incidently happened to be father of the Appellants. For the aforesaid reasons view taken viz Article 59 of said Act will be attracted is correct.

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Once it is accepted that the finding given by the District court that the suit is beyond the period of limitation the suit has to be dismissed against all the plaintiffs i.e. the Appellant. Hence even if the District Court

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RNG 5 sa141.12

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has expressed that the transaction is bad between Appellant nos.2 and 3 and Respondent no.8 still the dismissal of suit as a whole cannot be faulted.

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In the present case, the Respondent no.8 who is said to have entered into transaction has at the trial stage come out with the case that he did not receive money mentioned in the transaction. No suit is filed by Respondent no. 8 to challenge the said transaction on the ground that actual consideration has not being parted with by Respondent no.1 in favour of Respondent no.8. If this is so, it is apparent that the Respondent no. 8 wanted to support the stand of the present Appellants in a way to see that the transaction does not materialize. It is apparent that the Appellant no.1 has tendered his signature on the document dated 22.3.1994 and it is on that count the learned District Judge has treated transaction as good as between the Appellant No.1 and Respondent no.8. On account of the peculiar stand taken by Respondent no. 8 namely he did not receive any consideration the Courts below were required to check up whether the transaction was for legal necessity or for benefit of the estate. In so far as this aspect is concerned, the Respondent no.8 has relied upon the averments in the document which states that the property was sold for legal

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RNG 6 sa141.12

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necessity and for benefit of estate. The sale deed is duly proved. In my view, if in the document it is mentioned that the property is sold for legal necessity and for benefit of estate and if parties have proceed further it is not expected of the purchaser to fathom what was legal necessity or the benefit of estate as in a given case a vendor may not like to disclose all the facts leading to sale of property. It is noted that Respondent no.1 has discharged the burden on the question of legal necessity or benefit of estate. Hence challenge on that ground has to fail. It is clarified that I have not gone into the facts viz as to who is in possession of suit property.

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For the aforesaid reasons, Second Appeal cannot be admitted. The same is dismissed. However, there shall be no order as to costs. C.A.No.254 of 2012 is accordingly dismissed.

Shri Ramesh Madhukar Pawar v. Shri Chhaganlal Sohanlal Agarwal

Case brief

What is this about?

What did the court decide?

Shri Ramesh Madhukar Pawar v. Shri Chhaganlal Sohanlal Agarwal

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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