1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 210/2004 (Premrao Shekorao Maske & 3 others VERSUS Narayan Mohnaji Sargar (Dead) Thr. L.R's (a) Ganesh Narayan Sargar & 9 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri Ghuge, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 2, 2008. Heard the learned counsel for the appellant. The appellant is the original defendant no.1. A suit was filed by the plaintiff Narayan, his two sons Bapurao & Pandit, and his wife Indubai for a declaration that certain sale-deeds were null and void and were not binding on them. Plaintiff no.1 Narayan is adopted son of one Mohnaji and Chandrabhagabai. Mohnaji was the owner of the properties bearing survey No.42, 43 and 13/2 as also a house property. Mohnaji died in the year 1964. After the death of Mohnaji, a partition was effected on 03.02.1977 between Narayan and his two sons Bapurao & Pandit. Bapurao was allotted field survey no.42/1 and Pandit was allotted field survey no.42/2 in the partition. Field survey no.43/1 was retained by Narayan in the partition. We are not concerned with the field survey no.13/2 in the instant matter. 2 Chandrabhagabai, mother of Narayan, challenged the partition dated 03.02.1977 and a compromise decree was recorded therein. In terms of the compromise decree, Narayan was allotted entire field survey no.42 which included survey nos.42/1 and 42/2. The house property and field survey no.43/1 were to be used by Chandrabhagabai during her lifetime towards maintenance in terms of the compromise decree. The compromise decree was effected on 04.08.1978. On 04.05.1981, Chandrabhagabai died. Prior to her death i.e. on 04.08.1978, a sale-deed was executed by Narayan selling field survey no.43/1 in favour of Indubai. Similarly, by sale-deed dated 04.08.1980, field survey no.43/1 was sold by Indubai to Chandrabhagabai and on that very day field survey nos.42/1 and 42/2 were sold by Narayan to Chandrabhagabai. On 11.08.1980, Chandrabhagabai sold field survey no.42/1 to defendant nos.2 and 4 and on 13.02.1981, Chandrabhagabai executed a gift deed gifting field survey no.43/1, 42/2 and the house properties to defendant no.1 Premrao, who was her grandson. As pointed out hereinabove, Narayan, his two sons and his wife had challenged the transactions dated 04.08.1980, 11.08.1980 and 13.02.1981. 3 The defendant no.1/present appellant denied the claim of the plaintiffs but, admitted the relationship between the parties inter se. though the defendant no.1, the grandson of Chandrabhagabai, was a party to the Regular Civil Suit No.99/1977 and the compromise effected therein, according to the defendant no.1, the compromise was not in his interest and was not binding on him as he was a minor at the relevant time. It was also pleaded by defendant no.1 that the gift deed executed by Chandrabhagabai in his favour was absolutely legal and valid. The trial Court, on an appreciation of the evidence on record, held that the plaintiffs had succeeded in proving the partition of the year 1977 and the entries in the mutation register. It was also held that the plaintiff succeeded in proving that in Civil Suit No.99/1977, it was held in terms of the compromise that Chandrabhagabai would have no right over the suit property. The Court also held that Chandrabhagabai has no right to gift the field survey no.43/1 & 42/2 and certain other land to defendant no.1 Premrao. The Court, however, held that the defendants failed in proving that the compromise effected between the plaintiff no.1 4 and Chandrabhagabai on 15.12.1977 was illegal. Aggrieved by the judgment and decree passed by the trial Court partly decreeing the suit filed by the plaintiff, the appellants preferred an appeal. The first appellate Court held that the partition between the plaintiff nos.1 and 3 was not a legal one and the compromise decree in Regular Civil Suit No.99/1977 was binding on defendant no.1. The Court also held that the plaintiffs had failed to prove that the sale-deeds were executed by the plaintiff on 04.08.1980 under coercion. The Court then held that the gift deed executed by Chandrabhagabai in favour of defendant no.1 was valid and legal in respect of house property and field survey no.43/1 but, was not valid in respect of field survey no.42/1 and 42/2. The Court also held that the sale-deed dated 04.08.1980 and gift deed dated 13.02.1981 were binding on the plaintiff so far as field survey no.43/1 was concerned but, were not binding so far as survey no.42/1 and 42/2 were concerned. The first appellate Court, therefore, partly allowed the appeal filed by the appellants. The appellant defendant no.1 has challenged the judgment of the first appellate Court so far as it rejects the claim of the appellant in part. It is submitted on behalf of the 5 appellant that in view of the compromise effected in Regular Civil Suit no.99/1977, Narayan had become the owner of the suit property bearing survey no.42/1 and 42/2 and he had every right to sell the property to Chandrabhagabai or Indubai. In view of the sale-deeds executed by Narayan, Chandrabhagabai became the absolute owner of the field property bearing survey nos. 42/1 and 42/2, and therefore, she had every right to gift the same in favour of defendant no.1. It is submitted on behalf of the appellant that sons of Narayan i.e. Pandit and Bapurao had not challenged the compromise decree executed in Regular Civil Suit No.99/1977, and therefore, the compromise decree was binding on them. I have considered the submissions made on behalf of the appellant. It appears from the perusal of both the judgments that the trial Court had rightly considered the evidence on record to hold that the plaintiffs were entitled to the reliefs claimed by the plaintiffs, in part. It prima-facie appears that the first appellate Court wrongly applied the provisions of Section 14(1) of the Hindu Succession Act to the facts of the case to hold that Chandrabhagabai became the absolute owner of the field survey no.43/1 and the house property which she had accepted to use 6 towards her maintenance by the compromise decree executed in the year 1978. The appellate Court ought to have considered that only a restricted right of maintenance was createded in favour of Chandrabhagabai. We are, however, not concerned with that aspect of the matter in the instant appeal as the respondent has not filed any appeal challenging the findings recorded by the first appellate Court that Chandrabhagabai acquired absolute ownership in field survey no.43/1 and house properties and the validity of the gift executed by her in favour of Premrao, defendant no.1, in terms of the gift deed. It is necessary to note that both the Courts have concurrently held that though a compromise decree was recorded in Regular Civil Suit No.99/1977, the same was not acted upon by Narayan and his two sons Pandit and Bapurao so far as field survey no.42 is concerned. Even after the compromise of the year 1978, field survey no.42/1 stood in the name of Bapurao in revenue records and field survey no.42/2 stood in the name of Pandit in the revenue records. The Courts further held that the documentary evidence tendered by the parties on record clearly showed that Narayan had decided to keep the properties bearing survey nos.42/1 and 42/2 in 7 the names of plaintiff nos.2 and 3 as owners thereof. Apart from the aforesaid finding which is a pure finding of fact, it is necessary to note that the defendant no.1 has himself pleaded in the written statement that the compromise effected in Regular Civil Suit No.99/1977 was not binding on him as it was not legal and valid and the defendant no.1 cannot now turn back and say that the compromise decree was binding on all the parties and the plaintiff nos.2 and 3 cannot claim that the compromise deed was not acted upon so far as field survey no.42/1 and 42/2 were concerned. In view of the aforesaid pure finding of fact, which is recorded by both the Courts, the first appellate Court rightly held that the gift deed executed by Chandrabhagabai was not binding on the plaintiffs so far as it gifted properties bearing field survey nos.42/1 and 42/2 to the defendant no.1. The first appellate Court rightly held that Narayan, plaintiff no.1, sold the property of his minor sons Bapurao and Pandit without there being any legal necessity for selling the same and without obtaining the permission of the District Court under the provisions of Section 8 of the Hindu Minority and Guardianship Act. The alienations so far as field survey nos.42/1 and 42/2 were concerned, were rightly set aside 8 by the first appellate Court. Since the finding recorded by the first appellate Court on the relief of declaration so far as field survey no.42/1 and 42/2 is concerned, is a pure finding of fact, which is based on a proper appreciation of the material evidence on record, the same cannot be interfered with in this second appeal. The second appeal is, therefore, dismissed with no order as to costs. on an oral request made on behalf of the appellant, the decree passed by the first appellate Court should not be executed for a period of six weeks from today as the appellant is in possession of field survey no.42/1 and 42/2 for long. JUDGE APTE