IN THE HIGH COURT OF BOMBAY
Second Appeal No. 324 of 2002
Decided On: 23.03.2018
Naresh and Ors.
Manish Pitale, J.
Citation: 2018(5) MHLJ 246
1. The appellants herein are the unsuccessful plaintiffs who have challenged concurrent findings rendered against them by the two Courts below.
2. The facts leading up to the fling of the present appeal are that the appellants-plaintiffs are the descendants of one Ramchandra Ingole while the respondents-defendants are the descendants of Trimbakrao Ingole, the elder brother of the aforesaid Ramchandra. It is an admitted position that there was partition of joint family property between the aforesaid two brothers in the year 1952 and that thereafter they started residing separately. It is the contention of the appellants-plaintiffs that in the year 1957 the aforesaid Ramchandra and Trimbakrao jointly purchased suit property, being plot at F.S. No. 42, mouza Rajapeth Bhargare, Badnera, district Amravati in Ward No. 40 admeasuring 7011 sq.ft. with house No. 240 thereon. The plaintiffs claimed that sale deed in respect of the said property was executed in favour of Ramchandra and Trimbakrao on 29.03.1957 and it was presented for registration in the office of the Registrar on the same day and that thereafter on 03.05.1957, the aforesaid sale deed stood registered.
3. The said registered sale deed (Exh. 31) bears the signature of the vendor as the person who has executed the document, as also the signatures of two witnesses. The name of both Ramchandra and Trimbakrao are stated in the sale deed as that of the purchasers. Interestingly both the brothers have not signed the said registered sale deed and only the signatures of Trimbakrao are found on the reverse of the stamp papers as the person who presented the said document for registration on 29.03.1957.
4. It is the case of the appellants that their predecessor Ramchandra died on 22.03.1995 and that after his death they approached the respondents to effect partition of the suit property and to give possession of their half share. Upon refusal by the respondents to do so, the appellants issued a notice by registered A.D. dated 15.06.1995 through their counsel to the respondents. It is submitted that while the defendant Nos. 2 and 3 before the Court below received the notice, the defendant No. 1 refused to accept the same. According to the appellants, this gave them a cause of action to approach the trial Court to file suit for declaration, partition and possession. The appellants claimed that since the suit property was purchased jointly by their predecessor and the predecessor of the respondents, they were entitled to half share in the same. They also prayed for appointment of Commissioner for effecting partition of the suit property.
5. The respondents-defendants resisted the claim made by the appellants in their suit and claimed that although initially the two brothers Ramchandra and Trimbakrao had decided to jointly purchase the suit property, later Ramchandra backed out and the entire consideration for the said transaction was paid by Trimbakrao and that therefore, there was no substance in the claim raised on behalf of the appellants. It was contended that the respondents had been paying the non-agricultural assessment tax as also the Municipal Corporation tax for the suit property and the construction thereon and that Ramchandra during his life time had never made any such claim as was now being raised by the appellants.
6. On the basis of the pleadings of the parties, the trial Court framed issues, including issue pertaining to as to whether the appellants had proved that Ramchandra and Trimbakrao had equal share in the suit property and whether the construction made thereon by them was undertaken jointly. An issue of limitation was also framed by the trial Court. Both parties led oral and documentary evidence before the trial Court. Insofar as the oral evidence is concerned, it is relevant that none of the parties had any personal knowledge as regards the aforesaid transaction and, therefore, it was the word of one party against the other. As regards documentary evidence, the respondents heavily relied upon the registered sale deed at Exh. 31 pointing out that other than the name of Ramchandra being mentioned in the document, there was nothing to show that he had indeed jointly purchased the said property with Trimbakrao. It was contended that there was signature of Trimbakrao as the person who had presented the document for registration and that two of the four stamp papers were purchased in the name of Trimbakrao. Apart from this, both parties produced receipts issued by the concerned authorities regarding payment of non-agricultural assessment tax for different periods of time in respect of the suit property.
7. The trial Court took into consideration the aforesaid findings and material on record and held in favour of the respondents, thereby dismissing the suit filed by the appellants. The trial Court emphasized on the fact that there was absence of signature of Ramchandra on the registered sale deed at Exh. 31 and that it was signed only by Trimbakrao, which according to the trial Court demonstrated that Ramchandra may have been either unable or unwilling to contribute a share towards consideration for purchasing the suit property. The trial Court further gave a finding that sale deed was executed on 29.03.1957 and registered on 03.05.1957, while the suit was filed about 38 years later in the year 1995 and that therefore, it was barred by limitation. On this basis, the trial Court dismissed the suit.
8. Aggrieved by the same, the appellants filed an appeal before the District Court, which has been dismissed by the impugned judgment and order. It is before the appellate Court that a point pertaining to Section 45 of the Transfer of Property Act, 1882 (for short “the Act”) was argued on behalf of the appellants in order to contend that in the absence of evidence regarding the extent of share of consideration amount advanced by the parties, it was to be presumed that both parties had equal share in the property which was subject matter of such a transaction. The appellate Court rejected the aforesaid contention on the ground that the appellants had failed to place on record any material to show that their predecessor Ramchandra had borne the burden of half share of consideration paid for the aforesaid transaction. At the same time the appellate Court did note the fact that even the respondents had failed to adduce satisfactory evidence to show that their predecessor Trimbakrao had paid the entire consideration. But, the appellate Court placed the entire burden on the appellants to prove their case of Ramchandra having at least paid half share of the consideration. On the question of limitation, the appellate Court held that it no longer survived in the light of findings rendered by it on the merits of the matter against the appellant.
9. Aggrieved by the impugned judgment and order dismissing their appeal, the appellants filed this second appeal, which was admitted on 05.02.2003 on a specific question of law framed by this Court. Later by an order dated 12.07.2017, by exercising power under Section 100 (5) of the CPC, this Court framed another question of law for consideration. Thus, this appeal is to be considered on the following two substantial questions of law that were framed by this Court:-
“(i) When the property in suit i.e. the plot was purchased for consideration by Ramchandra, the predecessor of plaintiffs-appellants and Trimbakrao, the predecessor of defendants-respondents, whether the Courts below were right in casting the burden of proving the title to the extent of half share on the plaintiffs-appellants contrary to the provision of Section 45 of the Transfer of Property Act, which speaks that in absence of evidence as to the shares which the respective parties advanced, there would be a presumption that such persons would be equally interested in the property?
(ii) Whether the plaintiffs have proved that the suit for partition and separate possession was filed within limitation?
10. I have heard the learned counsel for the parties exhaustively on the above mentioned two substantial questions of law. Mr. R.M. Bhangde, learned counsel appearing on behalf of the appellants contended that although the two Courts below have concurrently held against the appellants, the findings rendered by the Courts below were perverse and the true purport of Section 45 of the Act, was not appreciated by the Courts below. It was contended that once the name of the purchaser of the appellants i.e. Ramchandra was stated in the registered sale deed at Exh. 31 along with his brother Trimbakrao as the persons in whose favour the said document was executed by the vendor, the share of the appellants could not be refuted only on the ground that the said document did not bear the signature of Ramchandra. It was contended that it was not mandatory in law for the purchaser to sign on such a document, because it was executed by the vendor in respect of sale of immovable property. It was further contended that since Trimbakrao had signed only as a person who presented the same for registration and as a person in whose name two of the four stamp papers were purchased, it did not give the respondents, as descendants of the said Trimbakrao, any higher right than that of the appellants in the suit property. It was further contended that Section 45 of the Act specifically addressed a situation that has arisen in the present case. The second part of the said provision stipulates that in the absence of any evidence as to the shares which purchasers have respectively advanced, it shall be presumed that such persons have equal interest in the property in question. It was contended that once such presumption arose in favour of the appellants in the present case, the burden was on the respondents to prove that their predecessor Trimbakrao had paid the entire consideration for the execution of the registered sale deed at Exh. 31. As regards limitation, the learned counsel appearing on behalf of the appellants contended that period of limitation stood triggered upon the respondents showing an adverse interest to the right claimed in the suit property by the appellants. According to him, this occurred when they refused to acknowledge the half share of the appellants in the suit property upon the death of Ramchandra in the year 1995. The learned counsel further submitted that the Courts below had ignored the documentary evidence, which demonstrated that both the parties were jointly having interest in the suit property. According to him this demonstrated that the findings rendered by the Courts below were perverse. In support of his contention, the learned counsel relied upon judgments of the Hon’ble Supreme Court in the case of Aloka Bose vs. Parmatma Devi and ors. – MANU/SC/8475/2008 : (2009) 2 Supreme Court Cases 582 and State of Maharashtra vs. B.E. Billimoria -MANU/SC/0597/2003 : (2003) 7 Supreme Court Cases 336 and judgment of the Andhra Pradesh High Court in the case of Fazal Ullah Khan vs. State of Andhra Pradesh – (2012) 2 ALT 728.
11. Per contra, Mr. S.V. Purohit, the learned counsel appearing on behalf of the respondents submitted that the findings rendered by the Courts below were on proper appreciation of the evidence and material on record and that they did not give rise to any substantial question of law warranting interference by this Court exercising jurisdiction under Section 100 of the CPC. According to him, there was nothing to demonstrate that the findings rendered by the Courts below were perverse. The learned counsel appearing on behalf of the respondents further submitted that the absence of signature of Ramchandra on registered sale deed at Exh. 31 was an important circumstance which was taken into consideration by the Courts below and that even if it was presumed for the sake of argument that absence of signature of Ramchandra did not materially affect the claim of the appellants, they could not claim benefit under Section 45 of the Act, without placing some material on record as to their claim about Ramchandra having paid half share or at least some share of consideration in respect of the aforesaid sale deed at Exh. 31. According to him, in the absence of any such material, the Courts below were justified in rejecting the claim of the appellants. It was further contended that the suit was barred by limitation, because there were clear facts demonstrating actions undertaken by the predecessor of the respondents, indicating that the claim, if any, of Ramchandra was being refuted by him. One of such incidents was the construction of structure on the suit property in the year 1974 to which Ramchandra never raised any objection and the fact that the name of Trimbakrao was recorded in the Municipal records as the owner and he had indeed deposited the Municipal Corporation tax in respect of the aforesaid construction made on the suit property. According to him, the cause of action for the appellants had arisen when such incidents occurred and yet the suit was filed in the year 1995, which was hopelessly barred by limitation. In support of his contentions, the learned counsel relied upon judgments of the Hon’ble Supreme Court in the case of Dagadabai vs. Abbas- MANU/SC/0438/2017 : (2017) 13 Supreme Court Cases 705 and Damodar Lal vs. Sohan Devi -MANU/SC/0001/2016 : (2016) 3 Supreme Court Cases 78 and judgments of the Kerala High Court in the case of Vasanthakumary vs. Omanakuttan Nair passed in Mat Appeal No. 217 of 2004 decided on 05.06.2009.
12. Having heard the learned counsel for the parties and having perused the entire material on record, in order to answer the aforesaid substantial questions of law on which this appeal was admitted, it would be necessary to refer to Section 45 of the Act. Since a lot turns on the interpretation of the aforesaid provision in the instant case, it would be necessary to quote the same. It reads as follows:-
“45. Joint transfer for consideration.-Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. ”
13. In the facts of the present case, second part of Section 45 of the Act as quoted above, is relevant. In simple words, the aforesaid provision means that when there is absence of evidence as to the shares which purchasers have respectively advanced for purchasing immovable property, it shall be presumed that they have equal interest in the property. In the present case, it is undisputed that names of both Ramchandra and Trimbakrao, are found on the registered sale deed at Exh. 31 as purchasers of the suit property. This document is signed by the vendor and two witnesses and admittedly neither Ramchandra nor Trimbakrao have signed the said document as persons who have executed the same. This is obviously because the said document is executed by the vendor in their favour. In this context, the question that arises for consideration is, as to whether it is mandatory that purchasers need to sign on sale deeds that are executed in their favour by the vendor. In the context of agreement of sale, the Hon’ble Supreme Court in its judgment in the case of Aloka Bose (supra) has held as follows:-
“16. On the other hand, the observation in S.M. Gopal Chetty, MANU/TN/0069/1997 : AIR 1998 Madras 169 that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it.”
In the context of execution of sale deed, the Andhra Pradesh High Court in the case of Fazal Ullah Khan vs. State of Andhra Pradesh and others (supra) has held as follows:-
“11. A party to a transfer can certainly cancel it in case necessary ingredients as provided for under law, are established. Such transaction can be sale or for that matter any conveyance including gift, mortgage, exchange and the like. Though transactions such as sale and gift are brought into existence with unilateral acts of execution of the documents, the legal effect thereof is that the title in respect of the property stands transferred in favour of the transferred name therein, notwithstanding the fact that the transferee may not have subscribed his signature in the documents. From this point of view, the sale deed on the one hand and the gift deed on the other, stand on the same footing.”
14. It appears that in transactions like the sale deed at Exh. 31 in the present case, in the context of sale and purchase of immovable property, it is the signature of the vendor being a person who executes the document that is crucial and absence of signature of purchasers does not render the document defective in any manner. In the present case, the vendor has signed the aforesaid sale deed at Exh. 31 while Trimbakrao is recorded as the person who presented the said document before the Registrar for registration of the same. In this context, Section 32 of the Registration Act, 1908, mandates that some person executing or claiming under a document can present the same before the authority. The material on record definitely indicates that it was Trimbakrao who presented the aforesaid sale deed at Exh. 31 for registration, although it does not ipso facto mean that Ramchandra was not present when such document was presented.
15. In any case, nothing much turns on the signature of Trimbakrao being found on the said document, because the names of both Ramchandra and Trimbakrao are specifically recorded as purchasers of the suit property in the said sale deed at Exh. 31. The mere signature of Trimbakrao as a person who presented the document and as a person in whose names two of the four stamp papers were purchased, does not lead to conclusion that he was the only person in whose favour the said document was executed.
16. As regards the question as to whether both Ramchandra and Trimbakrao had equal share and who bore the burden of payment of consideration or the proportion of consideration paid by each or whether only Trimbakrao exclusively paid the entire consideration, there is no evidence on record. The appellate Court is right in concluding that insofar as the oral evidence is concerned, it is oath against oath and the word of one party against the other. The documentary evidence is the aforesaid sale deed at Exh. 31, which appreciated from any angle, gives no clue as regards the fact as to which of the two brothers or only one of them paid the entire consideration. The other documentary evidence, is in the form of receipts towards payment of Corporation Tax and non-agricultural assessment tax paid by the parties. These documents have been brought on record by both parties for different points of time and, therefore, if at all, they indicate that both parties were jointly asserting their rights in the suit property and that authorities dealing with them likewise proceeded on that basis. Even otherwise, such documents constituting revenue record would not be of any assistance to arrive at a conclusion as regards the right, title or interest claimed by the either party in the suit property. In this context, the trial Court clearly erred in holding that since the aforesaid registered sale deed at Exh. 31 had the signature only of Trimbakrao, Ramchandra may have been either unable or unwilling to contribute a share in the consideration amount paid, in respect of the suit property.
17. The Courts below have also recorded that even the respondents failed to place on record cogent material to support their contention that Trimbakrao had exclusively and entirely paid consideration amount in respect of the suit property. Therefore, even going by the facts recorded by the Courts below, as they are manifested by the documentary evidence on record, there is no evidence to show as to the extent of share or portion of consideration borne by the brothers Ramchandra and Trimbakrao. This indicates that the presumption under Section 45 of the Act, as stated above, is triggered in the facts of the present case and it has to be presumed that both Ramchandra and Trimbakrao had equal interest in the suit property. It was for the respondents to rebut this presumption with cogent material on record to show that even if the name of Ramchandra was stated in the registered sale deed at Exh. 31, it was only Trimbakrao and his descendants (respondents) who had the exclusive right, title or interest in the suit property. The judgment of the Kerala High court in the case of Vasanthakumary (supra) relied upon by the counsel appearing on behalf of the respondents, in fact, lays down this very proposition that if it is proved by cogent evidence that only one party had paid consideration, even under Section 45 of the Act, it could be demonstrated that only such party had interest in the suit property and that other party which had contributed nothing towards consideration would not be entitled to claim any interest, despite its name being recorded in the registered document. In the present case, the aforesaid burden has not been discharged by the respondents and therefore, the presumption under Section 45 of the Act applies in full force, leading to the conclusion that the appellants are justified in claiming half share in the suit property. This being a pure question of law, which was sought to be addressed only by the appellate Court and not even discussed by the trial Court, has been considered by this Court on the basis of evidence and material on record.
18. As regards the question of limitation, the appellants have contended that the cause of action was triggered in the year 1995, when their predecessor Ramchandra expired and they claimed half share in the property, while the respondents have contended that the appellants should have rushed to the Court when house was constructed by Trimbakrao, their predecessor, in the year 1974 and when his name was reflected in the Corporation records as the owner of the house. It is to be appreciated that Ramchandra and Trimbakrao were brothers and it is conceded even by the respondents that relations between them were cordial throughout. The construction of a structure of only about 600 sq.ft. on the suit property was not an event that would demonstrate that the rights of Ramchandra were being refuted by Trimbakrao. In any case, there is no evidence on record to show that the aforesaid structure was constructed exclusively by Trimbakrao or the expenses were jointly borne by the two brothers or that Ramchandra had exclusively paid the expenses for the same. Mere recording of the name of Trimbakrao in the Corporation record, would be of no avail because the authorities had issued notices and recovered non-agricultural assessment tax even from Ramchandra and at best such documents demonstrated that both parties were jointly in ownership and possession of the suit property. The appellants are, therefore, justified in claiming that the cause of action was actually triggered when the respondents acted in a manner which signified that they were refuting the claim of half share in the suit property made by them in the year 1995 upon demise of their predecessor Ramchandra. Therefore, the trial Court erred in holding that the suit filed by the appellant was barred by limitation.
19. The documentary evidence on record, was obviously not properly appreciated by the Courts below in jumping to the conclusion that it was Trimbakrao who had exclusively paid consideration when the aforesaid sale deed at Exh. 31 was executed. It was also erroneously concluded on the basis of the documents on record that Trimbakrao and through him the respondents were the exclusive owners of the suit property. The effect of Section 45 of the said Act on the facts of the present case was also not appreciated in the correct perspective by the Courts below, thereby demonstrating that the findings rendered in favour of the respondents were perverse. In this situation, this Court, exercising jurisdiction under Section 100 of the CPC, is empowered to interfere with concurrent findings. Accordingly, it is found that the Courts below erred in holding against the appellants and that the suit filed by them deserves to be decreed.
20. Accordingly, the aforesaid substantial questions of law are answered in favour of the appellants and against the respondents. The instant appeal is allowed, the judgments and orders passed by the two Courts below are set aside and the suit filed by the appellants is decreed in terms of the prayers made by them. There shall be no order as to costs.