2008(4) ALL MR 316
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

B.P. DHARMADHIKARI, J.

Parwatibai Ramaji Kale Vs. Kisan Vithoba Kale (Lrs Of Deceased Respondent) & Ors.

Second Appeal No. 8 of 1993,Second Appeal No. 9 of 1993

22nd April, 2008

Petitioner Counsel: Shri. P. A. DESHMUKH
Respondent Counsel: Shri. S. R. DESHPANDE

Civil P.C. (1908), S.100 - Transfer of Property Act (1882), S.54 - Second appeal - Sale transaction - Challenge to - Sale transaction between husband and wife - Transaction not registered at a place where it ought to have been registered normally, but, got registered at a distant place - Appellate Court disbelieving the evidence - Due care and discretion exercised by lower appellate Court, held, just and proper - View of lower appellate Court cannot be labelled either as erroneous or perverse - No interference in second appeal.(Paras 8, 10)

JUDGMENT

JUDGMENT :- By these Second Appeals, Parwatibai wife of Ramaji Kale, who was plaintiff in one suit and defendant No.4 in another suit has challenged the reversing judgments delivered by lower appellate Court in appeal filed by original Respondent No.1 - Vithoba. Two civil suits i.e. Regular Civil Suit No.47 of 1981 and Regular Civil Suit No.49 of 1981 have been decided together by Civil Judge, Senior Division, Washim on 31.3.1988. Regular Civil Suit No.49 of 1981 was filed by Vithoba against Ramaji, his wife Parwatibai (present appellant) and others for declaration and permanent injunction on the basis of sale deed (Exh. 76) executed on 3.11.1980 by Ramaji in his favour. He sought recovery of possession also in that suit. Regular Civil Suit No.47 of 1981 was filed by Parwatibai against Vithoba and Ramaji for declaration that registered Sale Deed dated 3.11.1980 executed by Ramaji in favour of Vithoba was illegal and not binding on her. The trial Court framed various issues and decreed the suit filed by Vithoba partly by asking Ramaji to refund to him amount of Rs.10,000/-. The copy of said judgment was directed to be placed on record as judgment in Regular Civil Suit No.47 of 1981. The trial Court held that Ramaji had, prior to Exh. 76, sold suit property on 16.10.1980 to his wife Parwatibai and therefore Parwatibai was legal owner and entitled to remain in possession. Vithoba filed Regular Civil Appeal No.213 of 1989 against the judgment and decree in Regular Civil Suit No.49 of 1981 and Regular Civil Appeal No.212 of 1989 was filed against the adjudication in Regular Civil Suit No.47 of 1981. Both these appeals have been decided together by judgment dated 12.11.1992 by Additional District Judge, Washim. The Additional District Judge, Washim, found that sale deed dated 16.10.1980 executed by Ramaji in favour of his wife Parwatibai was only with a view to dupe Vithoba and it therefore decreed the suit of Vithoba and dismissed suit filed by Parwatibai. Against this common judgment of lower appellate Court, Parwatibai has filed these two Second Appeals. Second Appeals have been admitted on 16.3.1993 by mentioning that ground Nos.2 & 6 in appeal memo shall be substantial questions of law.

2. In this background, I have heard Shri. P. A. Deshmukh, learned counsel for the appellant and Shri. Deshpande, learned counsel for the respondents.

3. Shri. Deshmukh, learned counsel has contended that the lower appellate Court has approached the controversy with prejudiced mind. According to him, the trial Court has considered the questions with open mind. He states that as sale deed dated 16.10.1980 (Exh. 100) was first in point of time, its validity ought to have been examined first by lower appellate Court also as has been done by trial Court. He states that if said sale deed is found to be valid, nothing was left with Ramaji to transfer to Vithoba on 3.11.1980 vide Exh. 76. He contends that in view of this finding delivered by the trial Court, it is apparent that controversy regarding real nature of transaction between Ramaji and Vithoba becomes irrelevant. He further contends that question whether any consideration was paid by Vithoba to Ramaji also becomes irrelevant. He argues that sale transaction or money lending transaction between Ramaji and Vithoba is totally independent of sale deed between Ramaji and Parwatibai and by mixing these two events together, because of its prejudice, lower appellate Court has avoided to exercise jurisdiction available to it under Section 96 of Civil Procedure Code. He further contends that evidence on record clearly established need of Ramaji and also fact of advance of Rs.5,000/- to him by brother of Parwatibai and condition imposed by said brother that suit land should be transferred by Ramaji in the name of his sister Parwatibai. He points out that such insistence of brother of Parwatibai is found to be natural by trial Court and sale transaction Exh. 100 is the result of such insistence. He states that once sale deed (Exh.100) is accepted to be legal and valid, the sale deed of Vithoba (Exh. 76) has to fall to ground.

4. In relation to sale deed between Ramaji and Vithoba, learned counsel points out that defence of Ramaji was that of money lending transaction and Ramaji specifically stated that he received only Rs.4,250/-. He contends that lower appellate Court has refused to look into the question of passing of amount of consideration as stipulated in Exh. 76 by observing that such an attempt is prohibited by Section 91 of Indian Evidence Act. He states that thus again there is failure on the part of lower appellate Court to exercise jurisdiction available to it. He further points out that trial Court has ordered Ramaji to refund Rs.10,000/- to Vithoba only because said amount is mentioned in Exh. 76 as paid to Ramaji before Sub-Registrar. He contends that story of payment of balance amount of Rs.7,000/- by Vithoba to Ramaji is clearly an after thought because there was no pleading in relation thereto and only with a view to get over the sale deed Exh. 100, Vithoba has stated that there was oral agreement between him and Ramaji on 12.10.1980 i.e. prior to 16.10.1980. He contends that story of payment of Rs.7,000/- as earnest on that day is introduced only to defeat otherwise valid sale deed executed by Ramaji in favour of Parwatibai. According to him, this question of law also falls for consideration and in view of provisions of Section 100(5) of Civil Procedure Code, this Court is competent to consider it while deciding Second Appeal.

5. Shri. Deshpande, Advocate for the respondents, on the other hand, states that view taken by lower appellate Court is just and proper. He contends that Exh. 100 though dated 16.10.1980, was registered and executed at some other place i.e. at Akola, not in the office of Sub-Registrar at Washim. He further contends that this was done deliberately only with a view to conceal it from present Respondent No.1 - Vithoba. He points out that the document Exh. 76 clearly mentions that amount of Rs.10,000/- was paid before the Sub-Registrar by Vithoba to Ramaji and trial Court has accepted that payment. He further states that defence of Ramaji that it was money lending transaction has been found to be incorrect by both courts and in such circumstances other stipulation in sale deed i.e. payment of earnest money of Rs.7,000/- before execution of sale deed ought to have been accepted by the trial Court as also by appellate Court. He contends that perusal of sale deed itself shows that total sale consideration of Rs.17,000/- was received by Ramaji from Vithoba and lower appellate Court has, therefore, correctly appreciated this position by noticing provisions of Section 91 of Indian Evidence Act. He contends that the date of payment of said earnest amount or the date on which oral agreement between Vithoba and Ramaji was arrived at are matters pertaining to domain of evidence and as basic facts are on record, it is not essential to plead all these on record. Shri. Deshpande, Advocate further points out that present appellant - Parwatibai has not explained the need to obtain sale deed on 16.10.1980 when the loan as alleged was advanced by her brother to Ramaji in March, 1980. He contends that there is no evidence in writing about any such advance to Ramaji or even of repayment of loan of Co-operative Society by Ramaji. He invites attention to Receipt at Exh. 101 to state that said receipt nowhere shows that amount of Rs.5,000/- was paid by Ramaji to co-operative society. He further states that partition deed on the basis of which responsibility to pay loan was being claimed by Ramaji was itself not produced and in these circumstances, view taken by lower appellate Court does not call for any interference.

6. Though Shri. Deshpande, Advocate for the respondents does not dispute jurisdiction of this Court to decide any other substantial question of law which it may find to arise in Second Appeal, Shri. Deshpande states that respondents are entitled to notice of such question in advance. He further argues that in present case the question really does not arise because concurrently the defence of Ramaji of money lending transaction has been found unsustainable. He states that there is no evidence that Vithoba was money lender and as such Vithoba had no reason to record any incorrect consideration in Exh. 76.

7. After hearing both learned counsel and after perusing the records of both suits with their assistance, I find that the trial Court has not considered the fact that transaction between Vithoba and Ramaji was found to be not a money lending transaction. The moment it was held to be not money lending transaction, it is obvious that sale deed Exh. 76 needs to be given its full effect. It is also obvious that the consideration as stipulated therein therefore ought to have been accepted by trial Court. The contention of Vithoba was that he had received only Rs.4,250/- from Vithoba and as it was money lending transaction, as a security therein, he has executed Exh. 76. As this story was not proved, the trial Court had no other alternative but to accept contention of Vithoba and to hold that sale deed (Exh. 76) was proved. The lower appellate Court, therefore, has considered the issue in relation to Exh. 76 independently and correctly. However, Vithoba cannot get any title if it is shown that Ramaji had earlier sold the property to his wife on 16.10.1980. It is to be noticed that sale in favour of wife Parwatibai is dated 16.10.1980 while sale in favour of Vithoba by Ramaji on 3.11.1980. The explanation for sale dated 16.10.1980 in favour of wife is the alleged loan taken by Ramaji from his brother-in-law i.e. brother of his wife Parwatibai. There is no document evidencing such loan advanced by said brother to Ramaji. The only document pressed into service is a receipt Exh. 101 which shows that said loan was repaid to co-operative society. The lower appellate Court has found it difficult to connect said receipt to Ramaji in any way. The receipt is not issued in the name of Ramaji and it is also not signed by Ramaji. The said connection is sought to be established by examining one witness Shri. Dubey, who was working as Group Secretary of society. Shri. Dubey has stated that Ramaji paid amount of Rs.5,000/- to him and he in turn paid it to Inspector working in the society. He has identified signature of said Inspector Kankale on receipt Exhibit 101 and he has also identified his own signature as person depositing the amount with Shri Kankale. It is obvious that Shri. Dubey could have mentioned the name of Ramaji, if amount was paid to him by Ramaji for depositing on his behalf. The lower appellate Court has, therefore, correctly appreciated the evidence on record and it has found it difficult to accept the story that Ramaji paid loan amount to society.

8. In order to show that loan amount was to be paid to society, Ramaji had contended that there was partition between Ramaji and his brother and the loan which was repayable by their father was apportioned between two brothers. Again the partition deed has not come on record. In these circumstances, the lower appellate Court has viewed the transaction of sale by husband in favour of his wife with circumspection. The sale transaction has taken place months after the alleged loan advanced by brother of Parwatibai to Parwatibai. The care taken by the lower appellate Court, therefore, cannot be labelled as misconceived and in any case it cannot be said that lower appellate Court was prejudiced in the mater. As the transaction was between husband and wife and the transaction was not registered at a place where it ought to have been registered normally, i.e. at Washim but was got registered at a distant place i.e. Akola, due care and discretion exercised by lower appellate Court is just and proper. The said Court has, therefore, correctly found that the story of alleged loan was not substantiated and sale deed executed by Ramaji in favour of Parwatibai was bogus. The lower appellate Court has also found that in spite of said sale deed Ramaji has continued in physical possession of suit field and for that purpose it has also discussed the relevant evidence. In view of this discussion, I find that said view of lower appellate Court cannot be labelled either as erroneous or perverse.

9. The contention that Vithoba did not plead oral agreement between Ramaji and himself in his suit and story about said oral agreement was evolved only to get over the sale deed (Exh. 100) dated 16.10.1980, is also misconceived. The execution of sale deed Exh. 76 is not in dispute. It is apparent that there was a previous oral discussion and thereafter only some contract was entered into. The date of oral agreement is not pleaded by Vithoba anywhere. However, the payment of Rs.10,000/- before Sub-Registrar is accepted by the trial Court as also by lower appellate Court. The evidence on record also shows that total market value of suit field could not have been less than Rs.17,000/-. The sale deed itself mentions that total consideration of Rs.17,000/- is received by Ramaji. The fact that sale deed has been executed by Ramaji in favour of Parwatibai on 16.10.1980 clearly shows that something had occurred in near past which necessitated execution thereof and that event has to be agreement entered into between Vithoba and Ramaji. Though date has not been pleaded by Vithoba, it is obvious that it has to be prior to sale deed dated 16.10.1980. It is apparent that Ramaji received Rs.7,000/- from Vithoba on 12.10.1980 and thereafter he executed sale deed Exh. 100 in favour of his wife Parwatibai with an intention to dupe Vithoba, as has been observed by lower appellate Court. It is apparent that otherwise there was no reason for Vithoba to claim that he has agreed to purchase suit field on 12.10.1980 or to show that he has paid earnest amount of Rs.7,000/- to Ramaji. This assumes importance in view of concurrent findings that Ramaji failed to show that transaction between him and Vithoba was a money lending transaction. I, therefore, find that the fact of previous oral agreement was very much on record in the shape of sale deed (Exh. 76) and hence the other details have been supplied by Vithoba while leading evidence and no objection was raised when he deposed and gave these details in examination-in-chief. Record shows that he was also cross-examined in relation thereto.

10. Considering the market value, the lower appellate Court has found that for Rs.5,000/- only Ramaji could not have transferred suit land to his wife Parwatibai. I do not find anything wrong with this finding of lower appellate Court. In these circumstances, I do not find any merit in any of the questions sought to be raised by the learned counsel for the appellant in both matters. Second Appeals are accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.

Second appeals dismissed.