First Appeal No.1479 of 2008,First Appeal No.1744 of 2008

7th May, 2009

Petitioner Counsel: Mr. ABHISHEK PUNGLIYA,Mr. MOHAN PUNGLIYA,Mr. NEEL M. PUNGLIYA
Respondent Counsel: Mr. G. S. GODBOLE,Mrs. JAI V. KANADE,Mr. MOHAN PUNGLIYA,Mr. G. S. GODBOLE,Mrs. JAI V. KANADE,Mr. ABHISHEK M. PUNGLIYA

JUDGMENT

R. P. SONDURBALDOTA, J. :- Heard counsels for both sides.

2. This is a common order on the above two appeals arising out of the same judgment and decree dated 19th April, 2008 passed by the court of Small Causes, Pune in Special Civil Suit No.1244 of 1995. The appellant in the first appeal are the original defendants no.1 and 2. The appellants in the Second Appeal are original defendants no.4, a proposed society through its members. The original plaintiff is respondent no.1 in both the appeals and original defendant no.3 is respondent no.2. The parties will hereinafter be referred to by their original nomenclature.

3. One Kashinath Siddaram Petkar @ Pantnath Prabhu was the owner of the properties described at Schedule A to E to the plaint, all the properties being his self-acquired properties. He was a staunch worshipper of 'Gurudatta' and was religious/spiritual guide to several. He died on 23rd June, 1967 at his ashram called 'Gurutvalaya'. The father of the plaintiff, Baburao is the elder brother of Pantnath Prabhu. After the death, the last rites of Pantnath Prabhu were performed by Baburao and the plaintiff.

4. One P. K. Deo, R. D. Patil and Y. G. Bokil the disciples of Pantnath Prabhu claimed that Pantnath Prabhu had left will dated 6th May, 1967 and filed Misc. Application No.439 of 1967 in the court of Civil Judge Senior Division, Pune for grant of probate. Originally, Baburao father of the plaintiff was the only party to the application. Later, defendants no.1 and 2 alongwith their mother Bagirathibai and defendant no.3, on their application were impleaded to the application. It was claimed by Bagirathibai that she was the legally wedded wife of Pantnath Prabhu and defendants no.1 and 2 were the children born in the wedlock. Defendant no.3 also claimed to be the son of Pantnath Prabhu. During pendency of probate proceedings, Bagirathibai expired. Later, the probate proceedings came to be dismissed by the judgment and order dated 30th December, 1993. The said judgment and order has not been challenged by any of the parties.

5. The plaintiff filed Special Civil Suit No.1344 of 1955 contending that Pantnath Prabhu had renounced world at a young age and was a Bachelor throughout his life. He died intestate. The plaintiff being his only heir is entitled to all the properties described at Schedule A to E to the plaint. By the suit, he sought four declaratory reliefs i.e. (i) that he is the only lawful heir and successor of deceased Pantnath Prabhu to the properties described at Schedule A to D to the plaint, (ii) as a lawful heir and successor he alone is entitled to possess, use and enjoy the properties; (iii) the defendants have no right, title and interest in any of the properties; and (iv) for a declaration that the agreement dated 4th February, 1985 and sale deed dated 26th March, 1987 by defendants no.1 and 2 in favour of defendant no.4 are illegal, null and void. The plaintiff also sought permanent injunction to restrain defendants no.1, 2 and 4 inter-alia from creating any third party rights over the suit properties. He further sought possession of the suit properties from defendants no.1, 2 and 4 and mesne profits.

6. During the pendency of the probate proceedings, defendant no.1 had made an application to the probate court that he be appointed Receiver of the suit properties. That application was allowed by the order dated 20th March, 1987 and defendant no.1 in his capacity as the Receiver was put in possession of the movable and immovable properties described in Schedules to the plaint. Thereafter, defendant no.1 executed sale deed dated 26th March, 1987 in respect of the property described at Schedule-B to the plaint in favour of defendant no.4 - the proposed society. According to the plaintiff as receiver of the suit properties, the authority of defendant no.1 was limited to managing the same under directions of the court, the property being custodia legis. The authority did not extend to sale or transfer or create any third party rights over the same. Therefore, sale of the property at Schedule 'B' to defendant no.4 is illegal, null and void.

7. Defendants no.1 and 2 filed common written statement. They contend that the suit is barred by the law of limitation and that the issue of they being legal heirs of Pantnath Prabhu is barred by constructive resjudicata. According to them, this issued was decided by the probate court in the probate proceedings. As far as merits are concerned, the written statement is nothing but denial of the allegations in the plaint. There are no pleadings as regards the marriage of Bhagirathibai to Pantnath Prabhu, birth of these defendants, their residence together and several other possible attending circumstances. Without setting out the facts of their case, they seek to merely rely upon school leaving certificates, decree passed in original Suit No.62 of 1979 and Misc. Application No.16 of 1956 filed by Bhagirathibai for maintenance in Dharwad Court. The pleadings do not contain any information or details about any of these documents. As regards relationship of the plaintiff to Pantnath Prabhu, these defendants admit the same at paragraph 14 of the written statement.

8. Defendant no.4 filed it's written statement contending that the transfer of the property at Schedule-B in its favour is legal and void. They alleged that the suit is filed by the plaintiff with malafide intentions to deprive these defendants of the said property. According to these defendants, the suit is barred by the law of limitation.

9. On the above pleadings between the parties, the trial court raised issues as regards the heirship of Pantnath Prabhu, validity of the agreement dated 4th February, 1985, the question of limitation and the contention of the defendants based upon the principle of resjudicata. On both the sides, there was only one witness examined. The plaintiff examined himself and defendants no.1 and 2 examined defendant no.1. Defendant no.4 did not enter into the witness box. The plaintiff produced certified copies of the probate proceedings, orders passed therein, certified copy of the decree in Original Suit No.62 of 1979 in the court of Dharwad, mutation entry in respect of the property at Schedule-B and report of the receiver in the probate proceedings. Defendants no.1 and 2 filed letters allegedly written either by Pantnath Prabhu or his disciples and some photographs. There is no reference to these documents in the plaint. The letters and the photographs were taken on record as the documents being ancient documents, were admissible in evidence under Section 90 of the Evidence Act. These defendants also produced copies of the three books written by Pantnath Prabhu by name Gurugatha, Gurutatva and Trigungurugatha.

10. On appreciation of the oral and documentary evidence, the trial judge held that defendants no.1 and 2 failed to establish that they are class one heirs and successors of deceased Panthnath Prabhu and that the plaintiff is his only heir. As regards the agreement dated 4th December, 1985 and the sale-deed dated 26th March, 1985, the court held that the same are not legal and valid. The two preliminary contentions of limitation and constructive resjudicata were also negatived by the trial court. With these findings, the trial court decreed the suit in favour of the plaintiff. Defendants no.1 and 2 challenge the judgment and decree contending that the trial court failed to properly appreciate the evidence led before it, and has arrived at incorrect findings as regards the heirship and validity of the documents. It also erred in holding that the suit is not barred by the law of limitation and the principles of res-judicata. The challenge of defendant no.4 to it's appeal is on similar grounds.

11. It will be convenient to recapitulate at this stage the facts that stand undisputedly proved. Pantnath Prabhu at the age of 20 got siddhi. Thereafter, he left the house and started delivering religious discourses to the public. He used to move from place to place. He had established ashrams and used to reside in ashram with his disciples. He had purchased the properties described in the schedule to the pliant. He died on 23rd June, 1967 while in ashram Gurutvalaya. His last rites were performed by the plaintiff who is his nephew. At that time, neither the defendants no.1 and 2 nor their mother Bhagirathibai were present. Three of the disciples had filed proceedings contending that Pantnath Prabhu had left a will appointing them executors of the will. To the said probate proceedings, neither of the defendants nor Bhagirathibai were made parties. Only father of the plaintiff, Baburao was made the opponent. Defendants no.1 to 3 and Bhagirathibai got themselves impleaded to the proceedings by filing an application therefore. Later, the probate proceedings were dismissed on merit by the order dated 30th December, 1993.

12. On the above undisputed facts, two questions fall for our consideration in the instant appeal. First question is whether defendants no.1 & 2 have established that they are the children of Pantnath Prabhu. The second is whether transaction of sale between defendants no.1 and 2 and defendant no.4 is valid.

13. Defendants no.1 and 2 claim that they are the children of Pantnath Prabhu through Bhagirathibai and hence are his class one heirs. As already mentioned hereinabove, there are no pleadings as regards the marriage of Bhagirathibai to Pantnath Prabhu, the residence after marriage, birth of children and their residence with the parents. Therefore, the basic information as regards the relationship claimed is missing. It is not known when, how and where was the marriage performed or who were present at the time of marriage. When and where were the children born? Where did they reside after their birth? Who looked after them ? Against the void of the basic material information, the Court is required to appreciate the documents produced by defendants no.1 and 2 to establish their relationship. It may also be noted at this place that these defendants have not adduced evidence by examining relevant witnesses to show that they were treated as children and Bhagirathibai as wife by Pantnath Prabhu, his followers and disciples or the society recognised them as his family.

14. Mr. Pungliya, the learned counsel for defendants no.1 and 2 submits that three court proceedings listed below establish their relationship to Pantnath Prabhu.

1) Miscellaneous Application No.16 of 1956 filed by Bhagirathibai in the Court of Judicial Magistrate, Belgaum for grant of maintenance.

2) Miscellaneous Application No.439 of 1967 for grant of probate.

3) Civil Suit No.62 of 1979 by defendants no.1 and 2 against the propounders of the will filed in the Court at Dharwad, Karnataka State.

15. As regards the first proceedings, these defendants have neither produced copy of the application for maintenance, nor any orders passed therein. They have only produced certified copies of two notices purported to have been sent by the court to Pantnath Prabhu. The first notice directs Pantnath Prabhu to appear in the court on 14th July, 1956 and the second notice calls upon him not to make any direct correspondence with the court and to remain present in court on 12th November, 1956. These two notices cannot help the defendants in establishing their relationship to Pantnath Prabhu. The notices will at the highest prove filing of maintenance application by Bhagirathibai against Pantnath Prabhu. However, mere filing of such application will not show that Bhagirathibai was legally wedded wife of Pantnath Prabhu.

16. The second proceedings relied upon is the probate proceedings filed by three disciples claiming that Pantnath Prabhu had left a will. Firstly, Bhagirathibai and these defendants were not made parties to the proceedings. Only Baburao, the brother of Pantnath Prabhu was made the opponent. This would mean that Bhagirathibai and her children were not recognised or treated as family members of Pantnath Prabhu by his followers or disciples. While deciding the application, the probate court has relied upon the judgment and decree passed ex-parte in Dharwad Court to hold that defendants no.1 and 2 are the class one heirs of Pantnath Prabhu. In the circumstances, it was necessary for these defendants to independently establish their alleged relationship to Pantnath Prabhu by pleading the material facts and then bringing in evidence in support of the same.

17. The third proceedings is Civil Suit bearing No.62 of 1979 filed by defendants no.1 and 2 against the three disciples of Pantnath Prabhu who propounded the will. The plaintiff was not impleaded therein. The suit was decreed ex-parte. In these circumstances, the proceeding can be of no assistance to defendants no.1 and 2.

18. Defendants no.1 and 2 contend that the instant suit is barred by the principle of res-judicata or constructive res-judicata in view of the decree in Civil Suit No.62 of 1979 filed in the court of Dharwad, Karnataka State. Section 11, CPC precludes the court to try any suit or issue in which a matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them litigate under the same title, and such matter has been heard and finally decided by the competent court. It is already seen that the plaintiff was not a party to the proceedings in the court at Dharwad. Mr. Pungliya then submits that the plaintiff was aware of filing of such a suit by defendants no.1 and 2 in the court at Dharwad. According to him, the plaintiff could have filed an application for impleading himself to the suit. In our opinion, the submission travels beyond the ambit of Section 11, CPC. One of the pre-conditions for attraction of Section 11 for an issue to be barred by res-judicata, is that, it must arise between the same parties and decided by a court of competent jurisdiction. Section 11 does not encompass a situation where one of the parties to the subsequent suit was aware of the earlier suit and the question arising therein. It is also futile to submit that the plaintiff ought to have got himself pleaded to the earlier suit. There is no compulsion on a person to get himself impleaded to any court proceedings. As such, there cannot be any consequence of a person not volunteering for being impleaded to a suit. But, there are definite consequence provided for in the CPC for not joining a proper or a necessary party to the proceedings. If these defendants no.1 and 2 desired that any decision in a proceeding filed by them be binding on the plaintiff, they ought to have impleaded the plaintiff as a party defendant to the suit. Not having done that, they cannot turn around and contend that the plaintiff ought to have got himself impleaded to the suit. Defendants no.1 and 2 were aware that Baburao the father of the plaintiff, was made an opponent to the probate proceedings. Therefore, they knew that the plaintiff would be a person interested in denying their title to the suit property or the status claimed by them, qua, Pantnath Prabhu. Thus, since the plaintiff was not a party to the suit in the court at Dharwad, the provisions of Section 11, CPC are not attracted to the facts of the case. We have no hesitation in holding that the suit is not barred by the principles of res-judicata.

19. Mr. Pungliya, then submits that the correspondence together with the photographs, produced by defendants no.1 and 2 would definitely establish their relationship with Pantnath Prabhu. The photographs produced are group photographs, showing several disciples of Pantnath Prabhu alongith him. No inference of status or relationship can be drawn based on such photographs. Besides, the photographs have not been proved. It is not known when they were taken out. As regards the correspondence produced by defendants no.1 and 2 at Exhibits-115 to 126, the same were taken on record as ancient documents admissible under Section 90 of Evidence Act. The trial judge in his judgment, has however observed that, for drawing the presumption of correctness and genuineness of ancient documents, it is necessary that the documents must come before the court from proper custody. He has demonstrated that, there is no evidence before the court to show that the custody of defendant no.2 of these documents, is proper custody. The letters at Exhibits-115 and 116 were written by Pantnath Prabhu to one Rakumabai. Defendants no.1 and 2 have not bothered to establish the identity of Rakumabai to whom, the letter was addressed. There is also no evidence as to how the letter addressed to Rakumabai came into custody of these defendants. Out of the remaining correspondence, some have been addressed by disciples Suntankar, Anna Khanolkar and Mahadeshwar to Pantnath Prabhu and some to Bhagirathibai by Rakumabai, Ramchandra and Maalu. It is also not disclosed as how the letters came into custody of these defendants. One of the pre-conditions for raising presumption as regards thirty years old documents under Section 90 of the Indian Evidence Act, is that the same is produced from custody, which the court in the particular case considers proper. The explanation to Section 90 prescribes the test for proper custody. Under the explanation, documents are said to be in proper custody, if they are in the place in which and under the care of a person with whom, they would naturally be, but, no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. In the instant case, defendants no.1 and 2 do not explain as to how they got custody of the letters that were not addressed to them. Therefore, it cannot be said that these letters have come from proper custody and no presumption under Section 90 can be raised. There is one more aspect of the matter and that is the presumption to be drawn under section 90 of the Evidence Act is not a mandatory presumption. The words used in the section are 'court may presume'. This means that even if all the pre-condition required by Section 90 are satisfied, the court does not necessarily have to draw the presumption, if it is satisfied otherwise. Since defendants no.1 and 2 have not been able to examine the authors of any of the letters, therefore, the truth of contents of the letters remains unestablished. The presumption to be drawn under Section 90 of the Evidence Act is limited to the signature on the document, hand writing of the document and execution or attestation of the document. Next, are the three books relied upon by these defendants. Mr. Pungliya draws our attention to experts from the books wherein, there is a reference of Narendra Swami and Niranjana who according to him are defendants no.1 and 2. At one place, Narendra Swami is hinted as successor to Pantnath Prabhu. However, at no place it is stated that they are the children of Pantnath Prabhu. As has been rightly observed by the learned trial judge, the stray references are not acknowledgement of paternity by Pantnath Prabhu and at the highest they can be corroborative piece of evidence.

20. Thus, we see that there is no direct evidence of the relationship of Bhagirathibai, defendants no.1 and 2 with Pantnath Prabhu. The circumstantial evidence of joint residence, school record of the children etc. is also missing. Therefore, we have no hesitation in holding that these defendants have failed to establish their relationship to Pantnath Prabhu.

21. This brings us to the transaction of sale of one of the properties to defendant no.4. Since defendants no.1 and 2 have failed to establish their relationship to Pantnath Prabhu, there is no question of they succeeding to the property left by Pantnath Prabhu. Hence, any transfer by them is illegal. Defendants no.1 and 2 after getting themselves impleaded to the probate proceedings filed an application that defendant no.1 be appointed receiver of the suit properties. But, as a Receiver he had no power vested in him to alienate or transfer any of the suit properties. Later, the appointment of defendant no.1 as Receiver was cancelled. He was directed to submit true accounts of the suit property till the date of his removal and also deposit in court Rs.1,12,000/- received by him as price of the land sold to defendant no.4. Therefore, we are of the opinion that the trial court has rightly held that sale of one of the suit properties by defendants no.1 and 2 to defendant no.4 is not valid.

22. Lastly, Mr. Pungliya submits that the suit filed by the plaintiff was barred by the law of limitation. The present suit is for declaration of title of the plaintiff to the suit properties and for possession. The learned trial judge has rightly held that the suit would be governed by Article 65 of the Limitation Act. This article provides for suit for possession of immovable properties or any interest therein based on title. The period of limitation provided therein is of twelve years and the time for filing the suit begin to run from the date on which the possession of the defendant becomes adverse to the plaintiff. Pantnath Prabhu died in the year 1967. In the same year, three of his disciples filed proceedings for grant of probate, contending that he had left a will. The application as filed initially was only against the father of the plaintiff. Later, Bhagirathibai and defendants no.1 and 2 got themselves impleaded to the suit claiming that they are the class-one heirs of Pantnath Prabhu. The probate proceedings were dismissed in the year 1993. During the pendency of the proceedings, by an interim order passed on the application filed by defendant no.1, he was appointed as Receiver of the properties. Thus, the suit properties became custodia-legis and possession thereof by defendant no.1 was on behalf of the court. When defendant no.1 was acting as Receiver, he executed a sale-deed in respect of one of the suit properties in favour of defendant no.1. Thereafter, defendant no.1 was removed from the post of Receiver. He was directed to submit true accounts of the suit property till the date of his removal and also deposit a sum of Rs.1,12,000/- being part of the consideration received under the transaction of sale. After removal of defendant no.1 as Receiver, the property continued to be under the possession of the court, since it had directed the plaintiff to suggest name of another person as Receiver. Defendant no.1 however did not comply with the direction of the court. Unfortunately, as per the record, the probate court did not take any action for non-compliance of its orders against defendant no.1. In any case, possession of defendant no.1 of the suit properties became adverse for the first time in the year 1987. Therefore, the present suit filed in the year 1995 being well within the period of 12 years, must be held to be filed within limitation.

23. In all the above circumstances, we see no merit in the First Appeals filed. Therefore the same are dismissed.

24. At this stage, learned counsel for the appellants requested that the interim relief which was prevailing at the time when the appeals were pending may be continued for three months from today. We have heard the learned counsel for the respondent. He has no objection, if reasonable time is granted in this behalf. In view of the above, the interim relief which was prevailing at the time when the appeals were pending shall continue to operate till 31st July, 2009.

Appeals dismissed.