1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.107 OF 1993 1. Arun Santosh Patil (Chavan Age 29 years, Occ.Service, R/o Diksai, Taluka and Dist.Jalgaon, At present residing at Nawpada Police Station, Thane. 2. Nirmala Bhaskar Patil, Age 26 years, Occ.Household work, R/o Karmali, Post Khondamali, Taluka Nandurbar, Dist.Dhule. ... Appellants. Versus 1. Santosh Totaram Patil, Age 53 years, Occ.Nil, R/o Dikssai, Taluka and Dist. Jalgaon. 2. Gangubai Kashiram Koli, Age 65 years, Occ.Household work. 3. Nilkanth Kashiram Koli, Age 38 years, Occ.Labour. 4. Ramdas Kashiram Koli, Age 32 years, Occ.Labourer. 5. Ashok Kashiram Koli, Age 27 years, Occ.Labour Work. 2 6. Damu Kashiram Koli, Age 19 years, Opponents No. 2 to 6, All resident of Ridhur, Post Nandra, Taluka and Dist.Jalgaon. 7. Mathurabi Onkar Koli, Age 76 years, Occ.Household work, R/o Maharshi Walmik, Nagar, Jainabad, Jalgaon. 8. Ahilyabai Santosh Patil, Age 52 years,Occ. Household work, R/o Diksai, Taluka and District Jalgaon. ... Respondents. ... Mr.V.J.Dixit, Sr. Counsel instructed by Mr.L.V.Sangit, advocate for the appellants. Mr.P.R.Patil, advocate for the Respondent No.7. Mr.N.K.Tungar, advocate holding for Mr.M.K.Deshpande, advocatefor Respondent Nos.3,4 and 6. ... WITH SECOND APPEAL NO.108 OF 1993. 1. Arun Santosh Patil (Chavan Age 32 years, Occ.Service, R/o Diksai, Taluka and Dist. Jalgaon, At present residing at Nawpada Police Station, Thane. 2. Nirmala Bhaskar Patil, Age 26 years, Occ.Household work, R/o Bhaskar Chintaman Patil, At Karmali, Post Khandamali, Taluka Nandurbar, Dist.Dhule. ... Appellants. 3 Versus 1. Santosh Totaram Patil, Age 55 years, Occ.Nil, R/o Diksai, Taluka and District Jalgaon. 2. Gangubai Kashiram Koli, Age 78 years, Occ.Household work, R/o Walmiknagar, Jainabad, Jalgaon. 3. Ahilyabai Santosh Patil, Age 46 years, Occ.Household work, R/o Diksai, Taluka and District Jalgaon. 4. Gangabai Kashiram Koli, Age 69 years, Occ.Household work. 5. Neelkanath Kashiram Koli, Age 38 years, Occ. Labour. 6. Ramdas Kashiram Koli, Age 34 years, Occ.Labourer, 7. Ashok Kashiram Koli, Age 27 years, Occ.Labourer. 8. Damu Kashiram Koli, Now Major, 19 years, Respondent Nos.4 to 8 All R/o Ridhur, Post Nandra, Taluka and Dist. Jalgaon. ... Respondents. ... Mr.V.J.Disit, Sr. Counsel instructed by Mr.L.V.Sangit, advocate for the appellants. Mr.P.R.Patil, advocate for the Respondent No.2. Mr.N.K.Tungar, advocate holding for Mr.M.K.Deshpande, advocate for the Respondent 4 Nos.5,6 and 8. ... CORAM : V.R.KINGAONKAR,J. Reserved on :04.11.2009. Pronounced on :12.11.2009. JUDGMENT : 1. These two appeals are being decided together inasmuch as they arise out of common judgment rendered by learned Additional District Judge, Jalgaon in two connected appeals (RCA No. 97/1988) and RCA No.120/1988). The appellants are brother and sister interse. They are original plaintiffs. Admittedly one Totaram Patil (Chavan) held lands bearing old S.No.37/2A and S.No.37/2B situated at village Diksai. These two parcels of the lands have been consolidated as Gat No.87 after implementation of the Consolidation Scheme. 2. There is no dispute about the fact that said Totaram was having three sons, namely, Baburao, Deorao and Santosh i.e. defendant No.1. The above two parcels of the land were allotted 5 to the share of defendant No.1 Santosh during family partition. He had separated from his two brothers and was residing with original defendant No.8 Ahilyabai (wife) and the plaintiffs. 3. Briefly stated, the plaintiff's case, in the trial Court was that defendant No.1 Santosh was addicted to several vices. Deceased Kashiram, who was predecessor of the defendant Nos.2 to 6 obtained a sale agreement from defendant No.1 Santosh by taking undue advantage of his addiction to vices. There was No legal necessity to alienate the land bearing S.No. 37/2B. Said Kashiram Koli was a money lender. The agreement of sale dated 6.10.1965 was executed by defendant No.1 Santosh in lieu of money lending and was a nominal transaction. The document was obtained by said Kashiram by playing fraud on defendant No.1 Santosh. 4. The plaintiffs (appellants) further alleged that defendant No.7 Mathurabai got executed a sale deed in respect of S.No.37/2A admeasuring 3 acres for Rs.1,000/- (Rupees one 6 thousand from defendant No.1 Santosh. The transaction of sale was without any legal authority and without obtaining consent of the other members of the family. There was no benefit derived by the joint Hindu family on account of either of the transactions of sale. The transactions entered into by defendant No.1 Santosh are, therefore, not binding on their rights. Both of them were minors at the relevant time. After attaining majority, they filed the suit within prescribed period of limitation. Consequently, they sought declaration that they are the owners of the suit land whereas the defendant Nos.2 to 7 are not owners and have no right or concern with the same. They sought recovery of possession of the lands in question on the basis of such averments. 5. Original defendant No.1 Santosh resisted the suit by filing written statement (Exh.26). He admitted that he was convicted by the Court of Judicial Magistrate for offence of disorderly behaviour under influence of liquor. He partly admitted the allegations regarding his 7 being debaucherous. He denied, however, that he was indulging in gambling. He gave no reply as regards averments in respect of the absence of legal necessity at the time of either of the transactions. He vaguely asserted that the transactions entered into by him are binding on the joint Hindu family because he was the full owner of the suit land. 6. Original defendant N.8 Ahilyabai (mother of the plaintiffs) supported the plaintiffs' contentions by filing her written statement (Exh.27). 7. By filing their common written statement (Exh.42) original defendant Nos.2 to 6, who are the legal representatives of deceased Kashiram Koli, resisted the suit. They submitted that the defendant Nos.1 and 8 and the plaintiff No.1 are still members of the joint family. They submitted that the suit is collusive. They denied that defendant No.1 Santosh is addicted to vices. They denied that deceased Kashiram Koli obtained nominal agreement of sale from defendant 8 No.1 Santosh. They submitted that the agreement of sale was entered into by defendant No.1 Santosh for the benefit of the then minor plaintiffs. According to them, land S.No.37/2B was agreed to be purchased by deceased Kashinath from defendant NO.1 Santosh for consideration of Rs.2,000/- (Rupees two thousand). He improved the quality of the land by proper cultivation and supply of manure. They submitted that the transaction of sale agreement is genuine. They further contended that the suit was bad for non- joinder of necessary parties as well as mis- joinder of necessary parties. They urged to entertain their counter claim for specific performance of the agreement of sale because the defendant No.1 - Santosh did not execute the sale deed in their favour though had agreed to do so. They sought compensatory costs of Rs.1,000/- (Rupees one thousand) on the ground that the suit is false and vexatious. On these premises, they sought dismissal of the suit. 8. Original defendant No.7 Mathurabai resisted the suit by filing written statement 9 (Exh.28). She submitted that western three (3) acres land bearing S.No.37/2A was sold by defendant No.1 Santosh in her favour by virtue of sale deed dated 28.3.1963 for the purpose of repayment of debt which was outstanding against the joint Hindu family of which he was the Karta. She alleged that the suit can not be entertained because the sale deed is binding on the plaintiffs. She contended further that the suit is barred by limitation. It is denied that the defendant No.1 is addicted to vices including that of liquor drinking and alienated the said land without having any legal necessity. On the basis of such pleas, defendant No.7 Mathurabai sought dismissal of the suit. 9. The parties went to trial over issues framed below Exh.43 by the learned Civil Judge. They adduced oral and documentary evidence in support of the rival contentions. 10. The learned Civil Judge held that the suit could not be treated as collusive action. The learned Civil Judge further held that the 10 transaction between deceased Kashiram Koli and also with defendant No.7 Mathurabai are illegal and were without any lawful reason. The learned Civil Judge further came to the conclusion that both the said transactions were out-come of loan obtained by defendant No.1 Santosh from deceased Kahiram and defendant No.7 Mathurabai and the agreement of sale as well as the sale deed are void documents. The learned Judge further held that the suit was not bad for non-joinder or misjoinder of the necessary parties nor it was barred by limitation. The learned Judge held that the plaintiffs were entitled to seek declaration that the transactions were void and they were entitled to recover possession of the suit land. Consequently, the suit came to be decreed and the contesting defendants were directed to deliver possession of the suit land to the plaintiffs. 11. Feeling aggrieved, original defendant No.7 Mathurabai preferred appeal bearing RCA No. 97/1988, whereas original defendant Nos.2 to 6, who claimed their rights through deceased 11 Kashiram Koli, preferred another appeal bearing RCA No.120/1988. Both these appeals were heard together and have been decided by common judgment which is impugned in these two appeals. The learned Additional District Judge held that the suit in its present form was not maintainable. The learned Additional District Judge further held that the suit was barred by limitation. He further held that the mis-joinder of different causes of action could not be permitted. He reversed the judgment and decree rendered by the trial Court. 12. Heard learned counsel for the parties. 13. Though, grounds Nos.7,8 and 10 shown in the Memorandum of appeal were regarded as substantial questions of law, while admitting the appeals, yet, after hearing the learned counsel and on going through the rival contentions, in order to clarify the nature of substantial questions of law involved, I deem it to redraft the substantial questions of law as follows : 12 "(i) Whether in the facts and circumstances of the present case, the first appellate Court committed patent error while holding that the suit in its present form was not maintainable.? (ii) Whether in the facts and circumstances of the present case, the first appellate Court committed patent error while holding that the suit was governed by articles 56 and 57 of the Limitation Act and was barred by limitation and there were two different occasions when right to sue had accrued to the plaintiffs and as such the suit was bad for misjoinder of the causes of action.?" 14. So far as question of limitation is concerned, it may be stated that plaintiff No.1 Anil was born on 1.9.1962 and plaintiff No.2 Nirmala was born on 3.9.1965. The suit was filed on 26.10.1982. The suit was filed within period 13 of three (3) years after attaining majority by plaintiff No.1 Arun. His age at the time of filing of the suit was 20 years. In fact, the question of limitation relates to the age of plaintiff No.1 Arun and has no much concern with the age of plaintiff No.2 Nirmala. For, she is not the coparcener with defendant No.1 Santosh being the daughter. In other words, as on the date of the suit she had no birth right to claim separate share. It is well settled that suit to avoid sale transaction entered into by father can be filed within a period of three (3) years after attaining majority. The first appellate Court committed patent error while holding that the suit was barred by limitation. The first appellate Court seems to have wrongly assumed that the suit ought to have been filed within a period of three (3) years from date of the sale transaction. The first appellate Court erred in holding that the plaintiffs could be attributed knowledge of the transaction when their mother i.e. defendant No.8 Ahilyabai could have gathered the knowledge of such sale transaction. Such finding is erroneous inasmuch the legal 14 disability caused due to minority of the plaintiffs could be regarded as removed only after attainment of the majority. It can not said that they ought to have filed suit for setting aside the sale transactions through their mother within a period of three (3) years after dates of such transactions. 15. The learned Additional District Judge observed : "In this case, on two occasion a right to sue was accrues to the plaintiffs No.l and defendant No.8 in the capacity of natural guardian of the plaintiff, which was legally allowed to file the first suit within three years by taking into consideration the date of execution of saude pauti, dated 6.10.65 and she could have filed the second suit against defendant No.7 within a period of three years, by taking into consideration, the date of sale-deed and its execution vide date 28.3.63. 15 Therefore, for the above said reasons, in my opinion, there was no cause of action available to the plaintiffs to file the present suit in the present form on 26.10.82 by mentioning a cause of action as 1.9.1980. Similarly, the plaintiff No.1 can not say that for the first time, he came to know about transaction on 1.9.80, because prior to it, his mother was well aware about the abovesaid suit transactions. Hence,I answer point No.2 accordingly." These observations would show as to how the learned Additional District Judge misdirected himself on the question of limitation. The suit was not required to be filed by the minors within a period of three (3) years from the sale transaction or the transaction pertaining to agreement of sale between defendant No.1 and deceased Kashiram Koli as well between him and defendant No.7 Mathurabai. 16 16. Mr.Dixit, learned Sr. counsel would submit that the suit could be decreed when there was no proof about presence of legal necessity. He would submit that defendant No.1 Santosh was convicted in a case pertaining to offence under the provisions of the Bombay Prohibition Act and partly admitted his debaucherous character. He invited my attention to the fact that except solitary and vague version of DW Gangubai, there is no other evidence to prove existence of legal necessity. He submitted that the suit could not be dismissed on the basis of the findings rendered by the first appellate Court. As against this, Mr.P.R. Patil, learned counsel appearing for defendant No.7 Mathurabai, supports the impugned judgment and decree. Mr. Tungar, learned advocate appearing for original defendant Nos.2 to 6, also supports the impugned judgment and decree. Both of them have pointed out that the alienations have not been challenged by the plaintiffs. They further pointed out that the prayers in the suit do not indicate that the plaintiffs wanted to seek immunity from the sale transactions. They also pointed out that the suit 17 itself is not for partition and separate possession and, therefore, possession of the entire property could not be claimed and given to the plaintiffs. 17. As stated before, it is necessary to consider whether the suit, in the form it was filed, was maintainable. The translation of prayers in the suit may be reproduced as follows : "(A) It be decided that the plaintiffs have right of ownership in respect of the suit property and the defendant Nos.2 to 7 have no right of ownership or possession or concern in respect of the suit property and incidentally the possession of the suit property be directed to deliver to defendant Nos.2 to 7 along with mesne profits. (B) Entire costs of the suit be given to the plaintiffs from the defendants. (C) Any other just order may be passed" 18 18. The tenor of the suit would show that the plaintiffs sought recovery of the possession on the basis of ownership rights. The suit is not for partition and separate possession. The plaintiffs can not ignore the fact that defendant No.1 Santosh and defendant No.8 Ahilyabai may get separate shares if the suit land is to be partitioned. Nowhere the plaintiffs submitted that they demanded separate share in the suit property and the defendant Nos.1 to 7 declined to effect the partition. The suit merely for recovery of possession could not be maintained by the plaintiffs. 19. The plaintiffs also did not seek any declaration that the sale deed or agreement of sale executed by defendant No.1 in favour of defendant No.7 Mathurabai and deceased Kashiram Koli are not binding on their rights. The mere suit for recovery of possession with a prayer to determine rights of the plaintiffs to recover possession can not be regarded as proper. The very frame of the suit is incorrect. For, 19 defendant No.1 Santosh, being father of the plaintiffs and husband of defendant No.8 Ahilyabai is the Karta of the Joint Hindu family in the eye of law. His share in the suit land could not be given go by on the basis of averments pertaining to the immoral nature of the transactions or alleged absence of legal necessity. It is true that the plaintiff No.1 was entitled to seek his separate share if the transactions could be invalidated. Still, however, he did not seek any declaration about invalidity of the sale deed and the agreement of sale nor he sought partition of the suit land to the extent of his share. In this view of the matter,the first appellate Court was right in holding that the suit was not maintainable in its present form. 20. It is significant to note that the plaintiffs did not amend their above pleadings and prayers untill now. I do not find it necessary to go into the question of other facts. The evidence tendered by the parties need not be discussed inasmuch as the very nature of the suit 20 was not as required under the law. The findings of facts are likely to prejudice the parties. For, when there was no prayer for declaration that the sale transactions were not binding on the rights of the plaintiffs, due to absence of legal necessity, it was difficult to call upon the contesting defendants to prove the presence of legal necessity. The contesting defendants, however, did not adduce any reliable evidence pertaining to presence of legal necessity in the context of the sale deed in question and the agreement of sale. Moreover, so far as the agreement of sale dated 6.10.1965 is concerned, the alienation is not completed and as such the question of legal necessity would not arise at all. The agreement of sale is not placed on record. There is vague and solitary version of DW 1 Gangabai in support of such agreement of sale. The agreement of sale itself is not proved. Under the circumstances, it would not be desirable to decide the relevant issues which were raised by the trial Court and the first appellate Court. 21 21. The first appellate Court seems to have erred while holding that the two different causes of action had arisen on two different occasions and, therefore, there was misjoinder of the causes of action. In fact, the real cause of action available to the plaintiffs was for relief of partition and separate possession. That was the single cause of action which arose after attainment of majority by the plaintiff No.1 - Anil. He could have filed suit for partition and separate possession within a period of three (3) years after attaining majority with incidental prayer regarding declaration about immunity from the sale transactions. Thus, there were no two different causes of action and there was no misjoinder of causes of action. The finding of the first appellate Court in this context is incorrect and improper. 22. Considering the foregoing discussion and reasons mentioned above, I have no hesitation in holding that basically the frame of the suit itself is improper and, therefore, the suit was not maintainable. Though I do not agree with 22 other findings rendered by the first appellate Court and do not find it necessary to deal with the issue regarding absence of legal necessity, yet, the suit is liable to be dismissed because of improper framing of the same. The parties have created confusion due to wrong pleadings. In this view of the matter,it would be appropriate to direct the parties to incur their costs throughout. 23. In the result, the appeals are dismissed. The parties shall bear their own costs throughout. (V.R.KINGAONKAR,J.) asp/office/sa10793 Authenticated Copy (Pvt.Secy.to Hon'ble Judge)