1 fa192-01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION rpa FIRST APPEAL NO. 192 OF 2001 Smt. Anjanabai Kaluram Mapare & Ors. .. Appellants V/s. Shri Dhananjay Shivram Mapare & Ors. .. Respondents .... Mr. R. N. Sanghvi for the appellants. Mr. Javeed Husan for respondent Nos. 1 and 2. Mr. Rahul S. Kate for respondent Nos. 3 and 4. .... CORAM : A. S. OKA, J. DATE : FEBRUARY 3, 2011. JUDGMENT The Appeal is preferred by the unsuccessful plaintiffs in a suit for general partition. 2. According to the plaintiffs, one Shivram was the original head of the family and Manjulabai was his wife. One Kaluram was the son of Shirvam who predeceased Majulabai. The first appellant Anjanabai is a widow of Kaluram . Kaluram had a son by name Shivram who died in the year 1987. Shivram was 2 fa192-01 survived by Vijaya who is the second plaintiff/second appellant. The first and second respondents are the sons of Shivram. 3. In the plaint, it is asserted that a part of the suit property admeasuring 40 Ares was purportedly sold by the deceased Shivram by registered sale deed dated 20th January, 1984 to the third respondent (third defendant). The said Shivram also executed a registered sale deed dated 23rd November, 1984 in respect of area of 60 Ares in favour of the third respondent. On 20th February, 1986, third sale deed was executed in respect of area of 2H and 42R by the said Shivram in favour of the fourth respondent. It is contended in the suit that Shivram had no authority to sell the said share of the appellants and first and second respondents. A declaration was claimed in the suit that the first appellant has ½ undivided share in the property and the second appellant has 1/8th share in the suit property. A declaration is also claimed that deceased Shivram had only 1/8th share in the suit property which could have been sold to third and fourth respondents. Declaration has been also claimed as regards the aforesaid sale deeds by contending that the sale deeds were not binding on the appellants. A prayer for general partition and 3 fa192-01 separate possession has been made. 4. Written statement was filed by third and fourth respondents in which it was contended that the properties purchased by them were ancestral properties in possession of Shivram which were sold by Shivram for legal necessity i.e. for meeting the needs of the family. The said respondents denied the contention of the plaintiffs that the first sale deed was not an absolute sale. It was contended that the sale deeds are binding on the legal representatives of Shivram. It was contended that as Shivram has sold the properties for legal necessity, the plaintiffs are not entitled to challenge the alienation. 5. The parties adduced evidence, both oral and documentary. By the impugned decree, the trial Court dismissed the suit. The trial Court held that the suit was barred by limitation. The trial Court held that Shivram was Karta of the joint family and the sale deeds have been executed by Shivram for legal necessity. As far as the contention regarding bar of limitation is concerned, it was held that in view of the date of the first sale deed, the suit ought to have been filed on or before 20th January, 1996 in view of 4 fa192-01 Article 109 of the Limitation Act, 1963, but the same is filed one month thereafter. 6. The learned counsel appearing for the plaintiffs after inviting the attention of the Court to the pleadings and notes of evidence submitted that going by recitals in the sale deeds, in fact, Shivram has purported to sell his own undivided share .He urged that in the absence of plea of ouster, the suit was within limitation. He submitted that even assuming that Shivram had even sold the shares of the others under the sale deed dated 20th January, 1984, it was not a transaction of out and out sale and in fact the purchaser i.e the third respondent had executed a document in favour of the deceased Shivram to reconvey the property subject matter of the sale deed. He pointed out that the said agreement dated 21st February, 1984 was produced and proved on record and, therefore, on the basis of the sale deed dated 20th January, 1984, a finding could not have been recorded of bar of limitation. He also invited the attention of the Court to the cross examination of third defendant in which he has given important admissions. 5 fa192-01 7. The learned counsel appearing for the third and fourth respondents supported the impugned Judgment and decree and submitted that the suit was barred by the limitation. 8. I have given careful consideration to the submissions. The first issue decided against the plaintiffs/appellants is that Shivram executed three sale deeds for legal necessity in his capacity as a Karta of a joint family. The judgment proceeds on the footing that what was sold by the Shivram under the said sale deeds was the entire property including the shares of all the members of the family. The third respondent stepped into witness box. He deposed for himself and for fourth respondent, who is his wife. The deposition of the said respondent is a part of the paper book. He categorically admitted that he has not purchased the shares of the first and second plaintiffs as well as the first defendant. He stated that under the sale deed Exhibit-42, only the share of Shivram has been purchased. 9. Perusal of the three sale deeds on record shows that there are clear recitals therein that what was sold was the share of the said Shivram. The learned counsel appearing for the third and 6 fa192-01 fourth defendants after perusing the sale deeds could not dispute this factual aspect. In any case, even the third respondent admitted in evidence that what was purchased under the sale deeds was undivided share of Shivram. It is an admitted position reflected from the written statement of the third and fourth respondents that the property was ancestral property in the hands of Shivram. Thus, the basic error committed by the trial Court is that the Court completely ignored that what was purchased by the third and fourth respondents was only the undivided share of Shivram. Thus, the share of the plaintiffs and first and second defendants was not at all sold under the sale deeds and therefore, the plaintiffs/appellants could have filed the suit for partition even without challenging the sale deeds. It must be noted here that there is no specific plea of ouster of the present appellants. As stated earlier, the suit has been dismissed on the ground of bar of limitation and on the ground that the sale by Shivram was for legal necessity. The finding of issue of bar of limitation is completely illegal and same will have to be set aside. As the said Shivram has purported to sell his own share under the sale deeds, the issue nos.4 and 5 have become redundant. There is apparently no dispute regarding description of the suit land and a finding has 7 fa192-01 been accordingly recorded in favour of the appellants on issue no. 1(a). However, the issue no.6 regarding the extent of the shares of the appellants and the first and second Respondents has not been decided. The said issue cannot be decided for the first time in this first Appeal and therefore, the suit will have to be remanded back to the trial Court. Hence, even the issue nos. 7 to 10 will have to be decided afresh. 10. Hence, I pass the following order : :: OR D E R :: i. The impugned Judgment and decree are quashed and set aside. ii. Special Civil Suit No. 76 of 1996 is remanded to the Trial Court. It is made clear that the issue of description of the suit property and issue of bar of limitation will not survive for consideration as the same issues have been answered in favour of the appellants. It must also be clarified that issue nos. 4 and 5 are irrelevant and do not survive for consideration . 8 fa192-01 iii. Trial Court shall decide the rest of the issues being Issue nos.6 to 10 afresh after hearing the parties. iv. Since the suit is of the year 1996, the suit shall be decided within a period of eight months from the date on which writ of Judgment is received. v. Appeal is partly allowed in the above terms with no order as to costs. JUDGE