1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.25 OF 2006 The Goa State Co-operative Bank Ltd., Through its Manging Director (In-charge) Shri A.V. Shinde, Having Head Office at “Sahakar Sankul” Plot No.30, EDC Complex, Patto Plaza, Panaji-Goa. … Appellant V/s 1. Smt. Olinda Fernandes, W/o. Peter Fernandes, R/o. House No.214, Cansaulim, Salcete, Goa. 2. Shri Paul Joseph, Joint Secretary to the Government of India Ministry of Agriculture, Dept. of Agriculture and Co-operation, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi 110 001. 3. The State of Goa, Through the Chief Secretary, Secretariat, Panaji-Goa. 4. The Registrar, Registrar of Co-operative Society's, Government of Goa, Panaji-Goa. 5. Shri Y.S. Manerikar, Recovery Officer/Asst. Registrar of Co-operative Society's, Head Quatar, Camp Court, Panaji, Goa. 6. Shri Mario Francisco Fernandes, S/o. Late Luis Fernandes, Major in age, occupation business and his wife, 7. Smt. Judicia Fernandes, d/o. late Leo Fernandes, Housewife, major in age, All r/o. H.No.104, Shellim-Loliem, 2 Canacona-Goa. 8. Smt. Milagrina Fernandes, W/o. Late Luis Fernandes, housewife, major in age, all r/o. H.No.104, Shellim-Loliem, Canacona-Goa. 9. Miss Alda Fernandes, D/o. late Luis Fernandes, Major in age, C/o. Dept. of Neurology, School of Medicine, University of North Caroline, At chapel Hill, C.B. 7025, 551 Clinical Science Building, Chapel Hill, North Caroline, 27599 – 7025 U.S.A. ....Deleted 10. Mrs. Angela D'Silva, Major in age, D/o. late Luis Fernandes, C/o. Mr. Julio D'Silva, Sunder Peth, H.No.808, Bicholim-Goa. 11. Mrs. Maria C. Fernandes, major in age, C/o. Dr. Ulhas Naik, 100 Richard Dickson Court, Carroborro, North Caroline, 27510 U.S.A. …. Deleted 12. Mr. Sadik Noorani, VIP Arcade, Aponsa Housing Co-op. Society, near Hotel Nova, Panaji-Goa. …. Respondents Mr. S.R. Rivonkar, Advocate for the Appellant. Mr. R.G. Ramani, Advocate for Respondent No.1. Mr. G. Shirodkar, Government Advocate for Respondents Nos.3 & 4. Mr. S.G. Dessai, Senior Advocate with Mr. A. Gaonkar, Advocate for Respondent No.12. CORAM : N.A. BRITTO, J. DATE : 15th SEPTEMBER 3 JUDGMENT : This appeal is filed by defendant no.5 in Special Civil Suit No.55/99/III (old) and is directed against judgment/decree dated 17/10/2005 by which the suit filed by respondent no.1 (plaintiff) has been decreed with costs. 2. The parties hereto shall herein after be referred to in the names as they appear in the cause title of the suit. 3. There is no dispute that the mortgaged property surveyed under No.297/3 of Village Loliem in Canacona Taluka, was purchased by defendant no.8 Milagrina Fernandes on 1/02/1959 during the subsistence of her marriage with Luis Fernandes, who expired on 6/04/1973, leaving behind the plaintiff - Smt. Olinda Fernandes, the defendant no.9 – Alda Fernandes, defendant no.10 - Angela D'Silva, defendant no.11 – Maria Fernandes, as their daughters, defendant no.7 – Judicia Fernandes as the daughter in law, and defendant no.6 – Mario Fernandes as the son, besides the said defendant no.8 - Milagrina, the widow. 4. Defendant no.8 - Milagrina along with her son defendant no.6 Mario and her daughter in law defendant no.7 – Judicia, mortgaged the 4 said property in favour of defendant no.5, the Goa State Co-operative Bank Ltd. on account of loan of Rs.2 lacs taken by defendant no.6, the said Mario by a deed of mortgage dated 2/08/1993 to secure the repayment of the said loan. As the loan was not repaid by defendant no.6 - Mario, the loan was recalled by letters dated 15/12/1994 and 6/2/1998 and defendant no.6 - Mario was informed that mortgaged property would be sold in public auction. The mortgaged property was put to auction by publishing notices on daily newspapers and as on 16/04/1998 there were no bidders, the auction was adjourned to 16/06/1998 and it was adjudged in favour of respondent no.12, being the highest bidder, for a sum of Rs.5,50,000/-. 5. The plaintiff claiming that she read the notice published on “Gomantak” that the suit property would be auctioned on 16/06/1998 at 11.00 p.m., she made inquiries with defendant no.5 and she came to know that the suit property was mortgaged by defendants nos.6,7 & 8 in favour of defendant no.5 and, therefore, she sent a notice to defendants nos.2,3 & 4 (Recovery Officer) on 13/04/1998 objecting to the proposed sale which they received, and she again learnt on 6/06/1998 that the suit property would be again put to public auction on 16/06/1998 and therefore, she filed special civil suit no.100/98/II and when the defendant no.5 objected on 30/07/1998 that the said civil suit was not maintainable in the absence of the notice to defendant no.5, the plaintiff 5 withdrew the said suit with liberty to file a fresh suit and after serving a notice as required under Section 101 of the Multi-State Co-operative Societies Act, 1984, she filed the present suit on 21/01/1999. By then the plaintiff was informed by defendant no.5 by letter dated 3/10/1998 that the suit property was already attached and sold. 6. Contending that the plaintiff was a co-owner of the suit property and, as such, defendants nos. 6 to 8 could not have mortgaged the suit property in favour of defendant no.5, the plaintiff filed the suit for (a) declaration that the deed of mortgage dated 2/08/1993 registered with the sub-registrar on 23/08/1993 be declared as null and void; (b) for direction to cancel the registration of the said mortgage; (c) for declaration that the auction held be declared null and void; (d) for injunction against defendants nos.1 to 5 from interfering with the suit property; and (e) any other order which the Court may deem fit and proper. 7. The suit was contested only by defendants nos.5 & 12; by defendant no.5 stating that the sale was already confirmed by defendant no.4 by his order dated 20/07/1998 and the suit property was transferred to defendant no.12 by execution of sale deed dated 13/10/1998. Defendant no.5 also pleaded that the defendants nos.10 & 11 were married women, who had husbands and children and they were 6 necessary parties to the suit. The defendant no.5 also stated that the mandatory provisions of Section 101 of the Act of 1984 were not complied with before filing of the suit. Defendant no.5 stated that the plaintiff nor the other so called heirs showed any interest or gave any information to defendant no.5 or defendant no.4, the Recovery Officer, at the time of attachment or public auction of the suit property and that defendant no.5 by its letter dated 3/10/1998 had informed the plaintiff about the public auction and confirmation of sale. Defendant no.5 stated that it had taken maximum care and precaution to find out whether there were any more heirs to the suit property and that defendants nos.6,7 & 8 had declared that they were the only heirs and there were no other heirs to the suit property and the suit property was in the name of defendant no.8 in the title deed and in Form No.I and XIV of the survey records. Defendant no.5 stated that the plaintiff could not seek the relief of permanent injunction as the suit property was already transferred by defendant no.4 in the name of defendant no.12. 8. Defendant no.12 in turn stated that he was bonafide purchaser of the suit property having purchased the same in public auction which was not objected to by the plaintiff and that he has been issued a sale certificate which is duly registered in the office of the sub-registrar, Canacona and which has not been challenged. Defendant no. 12 stated that the plaintiff had no cause of action against defendant no.12 and that 7 defendants nos.3 to 5 had not informed the defendant no.12 about filing of the suit, withdrawal of the suit with permission to file a fresh suit, etc. Defendant no.12 reiterated that he had purchased the suit property in public auction and that he is the bonafide purchaser. 9. Other defendants did not contest the suit. The learned trial Court framed several issues in the trial which followed. Only the plaintiff and defendant no.5 gave their evidence. Defendant no.12, who had contested the suit did not give any evidence. The learned trial Court, as regards issue no. 2, held that the suit property was jointly owned by plaintiff and other legal heirs of late Luis Fernandes and defendant no.8 and, in my opinion, the said finding cannot be faulted. As already observed, the suit property was acquired, by sale by defendant no.8 while she was married to the said Luis Fernandes and if upon the death of the said Luis Fernandes, their son defendant no.6 - Mario could inherit the same likewise the plaintiff, who was one of the daughters had also inherited the same and thus she was a co-owner of the suit property which was mortgaged by defendants nos.6,7 & 8 in favour of defendant no.5. Learned trial Court also referred to the provisions of Article 2177 of the Civil Code, 1867 and observed that the co-owner of a common and an undivided property had a right to enjoy the whole property along with other co-owners and no co-owner could restrict his/her enjoyment to the whole property unless and until the property was divided and 8 partitioned. The learned trial Court also noted that the suit property was common and undivided property belonging to the plaintiff and defendants nos.6 to 11 and defendants nos.6 to 8 without the express consent of the plaintiff and other co-owners could not have entered into a mortgaged deed with defendant no.5 as the plaintiff along with other co-owners enjoyed jointly all the rights which were in common and some of the co-owners could not have disposed of any portion of the common object unless the same was assigned to them in partition. In this regard, learned trial Court referred to the case of Shri Joao Manuel Santa Rita Piedade Camara & Anr. V/s. Shri Maruti B. Jamuni & Ors. (1993 (3) Current Civil Cases 133). 10. Shri Rivonkar, the learned Counsel appearing on behalf of defendant no.5 relying on the case of Debi Singh V/s Bhim Singh and others (AIR 1971 Delhi 316) has submitted that the deed of mortgage could have been validated at least to the extent of shares of defendants nos.6,7 & 8. To that, Shri Ramani, learned Counsel appearing on behalf of the plaintiff, submits that if co-owners cannot sell the entire property, unless it is divided, on the same principle, a co-owner could not mortgage the entire property and, I am inclined to accept this submission of learned advocate Shri Ramani. True, Section 58(a) of the Transfer of Property Act defines “Mortgage” to be a transfer of an interest in specific immovable property for the purpose of securing the payment of 9 money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee is called a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed. If a co-owner of a common and undivided property cannot alienate, dispose of or charge the common property without the consent and permission of the other co-owner, as held by this Court in the case of Shri Joao Manuel Santa Rita Piedade Camara & Anr. V/s. Shri Maruti B. Jamuni & Ors. (supra), obviously three mortgagors who were the co-owners of the property could not have charged the interest of the other co-owners of the said property in favour of the Bank and that being the position, the conclusion arrived at by the learned trial Court that the deed of mortgage dated 2/08/1993 executed in favour of defendant no.5 by defendants nos.6 to 8 was bad in law and ab initio void, cannot be faulted. 11. The plea taken by defendant no.12 that he was a bonafide purchaser of the suit property in public auction was subject matter of issue no.11 and the said issue has been held as not proved by defendant no.12. 10 12. Learned Senior Counsel appearing on behalf of defendant no.12 while conceding that the defendant no.12 did not lead any evidence in support of the plea taken by him submits that the finding on issue no.11 can be corrected by this Court in exercise of its powers under Order 41, Rule 33, CPC. Learned Senior Counsel submits that defendant no.12 had no connection either with the Bank or the other defendants and had purchased the suit property in public auction, held pursuant to an advertisement. Learned Senior Counsel submits that the plaintiff at the most would be entitled to be compensated to the extent of the share of the plaintiff. I am unable to accept the submissions made by the learned Senior Counsel. The learned trial Court has observed that defendant no.12 did not step in the witness box to establish his bonafides and his belief to arrive at a conclusion that title of the suit property was clear nor his tenor or trend of cross-examination to DW1 suggested so and there was no iota of evidence in that regard. The learned trial Court has observed that it was expected from defendant no.12 to ascertain the title documents from defendant no.5 concerning the suit property and not to fall prey to the malafides of defendant no.5 and thus defendant no.12 was equally negligent in purchasing the suit property in auction and, therefore, by no stretch of imagination, defendant no.12 could be considered as a bonafide purchaser. In my view, the finding given by the learned trial Court as regards the plea taken by defendant no.12 cannot be faulted. The onus of proving the plea taken by him, was on 11 him and that onus could have been discharged by defendant no.12 by leading his own evidence or through the evidence of the plaintiff. The Decree itself is against the defendant no.12. The Apex Court in S. Nazeer Ahmed V/s. State Bank of Mysore (2007 (11) SCC 75) has held, with reference to Order 41, Rule 22, CPC, that the respondent in an appeal is entitled to support the decree of the trial Court even by challenging any of the findings that might have been rendered by the trial Court against himself and for supporting the decree passed by the trial Court it is not necessary for the respondent to file memorandum of cross objections challenging a particular finding that is rendered by the trial Court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which has been negatived to him by the trial Court and in addition to what he has already been given by the decree under challenge. Considering the facts of the case, therefore, in the absence of an appeal or memorandum of cross objections filed by defendant no.12, the finding given by the trial Court on issue no.12 cannot be disturbed. 13. Shri Rivonkar, the learned Counsel on behalf of defendant no.5, has next submitted that the plaintiff had a remedy of filing an objection under Rule 22 (14)(i) of the Multi-State Co-operative Societies (Privileges, Properties, etc.) Rules, 1985 (Rules for short), to set aside the sale and having not availed of the same, the plaintiff could not have 12 challenged the sale certificate dated 13/10/1998, registered on 23/10/1998 by a suit, which has attained finality in terms of Rule 22(14) (vi) and which says that an order confirming the sale is final and is not liable to be questioned in any civil Court. Shri Rivonkar has also referred to Section 105 of the Act of 1984 which bars the jurisdiction of Courts and submitted that by virtue of sub-section (3) of Section 105 r/w Rules 22(14)(i) and Rule 22(14)(vi), the suit of the plaintiff was barred by civil Court. 14. On the other hand, Shri Ramani, the learned Counsel, on behalf of the plaintiff, has submitted that the bar created under Section 105 of the Act of 1984 related to the jurisdiction of the Civil Court only as regards matters which are required to be decided amongst members, past members, etc. as contemplated by Section 74 of the said Act and not matters between persons who were not the members of the defendant no.5. Shri Ramani has submitted that the plaintiff was not the member of the defendant no.5 - the Bank, although the defendants nos.5,6,7 & 8 might have been the members and the issue which has been decided was not a dispute touching the constitution, management or business of a Multi State Co-operative Society arising among members and a Multi State Co-operative Society as contemplated by Section 74 of the said Act. 13 15. In my view the submission made by learned advocate Shri Rivonkar need not detain us for long for the plaintiff has not sought any relief as regards the Sale Certificate dated 13/10/1998 or its registration. Defendant no.5 is not right in questioning the jurisdiction of the civil court in granting the reliefs claimed by the plaintiff. Jurisdiction means authority to decide and unless a statute bars the jurisdiction of the Civil Court, either expressly or impleadly, it will have jurisdiction to try all issues. The plaintiff essentially sought two reliefs mainly for declaration that the deed of mortgage dated 2/08/1993 be declared null and void and, consequently, cancellation of the said mortgage deed. The plaintiff also sought the auction to be declared null and void. The plaintiff also sought permanent injunction. The plaintiff did not seek for declaration that the sale certificate dated 20/07/1998 be declared as null and void nor for cancellation of its registration, and looked from that angle it could not be said that the civil Court had no jurisdiction to grant the reliefs sought by the plaintiffs and which have been granted to the plaintiff i.e. by declaring the deed of mortgage as null and void as well as the auction held by the Recovery Officer but that raises a fundamental defect in the suit of the plaintiff which has been pointed out by Shri Rivonkar on behalf of defendant no.5 and Shri Dessai on behalf of defendant no.12 and that is in relation to Section 34 of the Specific Relief Act. 14 16. The learned trial Court has been unnecessarily harsh to defendant no.5 observing that defendant no.5 was not serious in defending the case. On the contrary, it is seen that it is the plaintiff who having come to know about the auction, remained satisfied by merely sending a notice dated 13/04/1998. Nothing had prevented the plaintiff from filing a proper application to defendant no.4, the Recovery Officer and pursuing the same diligently either under Rule 22(13)(i) or Rule 22(14) (i) of the Rules. 17. Section 34 of Specific Relief Act provides that any person entitled to any legal character or to any right as to any property may institute the suit against any person denying or interest to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief; provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief then the mere declaration of title omits to do so. 18. It is well settled that the grant or refusal of the relief of declaration and injunction under the provisions of Section 34 are discretionary and the plaintiff cannot claim the relief as a matter of right. The suit property was mortgaged in favour of defendant no.5 who has caused it to be sold through the Recovery Officer in favour of defendant 15 no.12 at an auction held on 16/06/1998 and thereafter the Recovery Officer has issued a certificate confirming the sale in favour of defendant no.12 which has been registered with the sub-registrar of Canacona. It is safe to infer that pursuant to the mortgage in favour of defendant no.5 and its subsequent sale to defendant no.12, it is defendant no.12, who is in possession of the suit property. The plaintiff neither sought for declaration that the sale certificate was null and void nor for cancellation of its registration. 19. The defendant no.5 had taken a categorical plea that the plaintiff was informed by letter dated 3/10/1998 that the sale was confirmed by sale certificate dated 20/07/1998. It was also stated by the General Manger of defendant no.5 in his evidence that the suit property was auctioned on 16/06/1998 and the sale was confirmed on 20/07/1998 by order of the Recovery Officer, the defendant no.4; that the plaintiff nor other alleged heirs had shown any interest in the suit property; that the plaintiff or other alleged heirs never objected to the attachment, auction or confirmation of sale. It was further deposed by him that there was no prayer in the suit for declaring the sale certificate as null and void. Inspite of that, the plaintiff took no steps either to seek a declaration that the said sale certificate was null and void or for that matter for cancellation of its registration or for the recovery of the suit property from the possession of defendant no.12. Shri Ramani, learned Counsel 16 appearing on behalf of the plaintiff submits that this Court can mould the reliefs and grant the same to the plaintiff by declaring the sale certificate as null and void and directing cancellation of its registration. I am unable to accede to the submission made by Shri Ramani. A similar issue was considered by the Division Bench of this Court in the case of Mr. Guna Krishna Gauns & Anr. V/s. Mr. Antonio Joao Braganza @ Antush Braganza & Ors. (2009 (2) Bom.C.R. 665) (unreported judgment dated 15/12/2008 in First Appeal No.189/2005), to which I was a party and it was stated therein that the object of the proviso to Section 34 of the Specific Relief Act, was to prevent multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking the remedy without which the declaration would be useless and which could not have been obtained in the same suit, in another suit. A claim is said to be consequential only when it cannot be claimed in the absence of a claim for declaration. Otherwise it would lead to multiplicity of litigation for the declaratory suit will have to be followed up with an ejectment action for recovery of possession. It is well settled law that a suit for mere declaration when consequential relief which is available and which is not sought for, is not maintainable. Reference was made to the case of Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) wherein the Apex Court had stated that where the defendant is in possession of the some of the suit properties and the plaintiff in his suit does not seek 17 possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. That was the case where Gangadevi was in possession of suit property and the plaintiffs had not sought the possession of the suit property and had merely claimed declaration that they were the owners of the suit property and it is in that context that the Apex Court had held that the suit was not maintainable. Reference was also made to the case of Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957) wherein it was held that the failure to ask for relief of possession undoubtedly bars the discretion of the Court in granting the decree for declaration. The Apex Court had further observed that merely because the plaint says in the prayer, such other relief be granted to the plaintiff, it does not mean that