1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 310/2006 ( Bapurao s/o Lahanuji Vahade (Deceased) Through LRs: (1) Janabai wd/o Bapuraoji Vahade and 5 others vs. Jagannath s/o Rodba Vahade (Dead) Through LRs (1) Ramdas Jagannath Vahade and 3 others) ------------------------------------------------------------------------------------------------ Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... Mr. M. P. Khajanchi, Adv. for appellants Mr V. G. Wankhede, Adv.for R-1 & 2 CORAM: Smt. VASANTI A. NAIK,J. DATED: 18th July, 2008. *** P.C.: Heard Shri M P Khajanchi, learned counsel for appellants and Shri V.G. Wankhede, learned counsel for Respondent Nos. 1 and 2. 2. Appellants are the legal heirs of the deceased plaintiff. Similarly, respondents are the legal heirs of deceased-defendant. Plaintiff-Bapurao was the son of one Lahanu. Defendant-Jagannath, was the son of one Rodba. Lahanu and Rodba were the real brothers. Plaintiff-Bapurao had filed the suit against Jagannath for partition and separate possession of his share in the suit properties. According to the plaintiff, the suit properties originally belonged to one Lahanu and Rodba and, after the death of Lahanu and Rodba, Jagannath was managing the 2 properties as the Karta of the Hindu joint family. Since the plaintiff and the defendant had half share in the joint family property, the plaintiff instituted the suit for partition, after issuing registered notice dated 5.1.1987. 3. Jagannath denied the claim of the plaintiff. He admitted relationship between the plaintiff and himself. It was admitted by the defendant that the family was joint in mess and estate during the lifetime of Lahanu and Rodba. It was, however, denied that for want of knowledge that there was any joint family property. The defendant specifically denied that the plaintiff had half share in the suit property. It was admitted that the entire property was tin possession of the defendant. The defendant denied that he was managing the property as a Karta of the joint family. It was specifically pleaded by the defendant that the plaintiff had obtained a loan and for the satisfaction of the said loan, the plaintiff had mortgaged and given a part of the suit property to one Ramdin and the said Ramdin had sold the field property (a part of the suit property) to one Ramchandra. Ramchandra had sold the said field to the defendant vide registered sale deed dated 10.4.1951. It was then pleaded by the defendant that yet another suit field was gifted by the plaintiff to the defendant, by gift deed dated 5.2.1942. It was also pleaded by the defendant that there was an oral partition between the plaintiff and the defendant prior to 50-years and separate properties were allotted to the share of the plaintiff and the defendant. The defendant pleaded that he was in lawful possession of the suit property in pursuance of the sale-deeds and gift-deed executed by the plaintiff as an owner thereof. The defendant also pleaded that the 3 plaintiff had himself sold a part of the suit property to the defendant by the registered sale deed dated 6.8.1949. 4. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence on record, held that the properties were ancestral properties in the hands of Lahanu and Rodba. The trial Court, further, held that the defendant succeeded in proving that there was a partition between the plaintiff and the defendant some 50-years back. The Court also held that the defendant had succeeded in proving that he had purchased part of this suit property under the registered sale deed dated 6.8.1949 executed by the plaintiff in his favour. The Court also held that the gift-deed was proved by the defendant. Consequently, the trial Court dismissed the suit of the plaintiff. The findings recorded by the trial Court came to be affirmed by the the first Appellate Court in an appeal filed by the plaintiff. Both the judgment are challenged in the instant appeal. 5. It is submitted on behalf of the appellants by the learned counsel that the Appellate Court failed to consider that the gift-deed executed by the plaintiff in the year 1942 was void, as the plaintiff was a minor at the time of the alleged execution of the gift-deed. It is further submitted on behalf of the appellants that the Courts committed a serious error in holding that presumption u/s 90 of the Indian Evidence Act was available in favour of the defendants in this case as the sale deeds and gift-deed were more than 30-year old documents. It was submitted on behalf of the appellants that the proof of the attestation and the execution of the 4 sale -deeds and gift-deed would not mean that the contents of the documents were proved and hence the Court ought not to have held that the defendant had succeeded in proving the documents. Counsel for the appellants relied on the judgments reported in 2005 (9) SCC 459; 2005 (1) Mh.L.J . 306 and 1967 Mh.L.J . 341 to substantiate this submission. Lastly, it was submitted on behalf of the appellants that the documents allegedly executed in the years 1943, 1949 and 1951 were fraudulent and forged documents. 6. Per contra, it was submitted on behalf of the respondents 1 and 2 by Shri Wankhede, that both the Courts have concurrently recorded a clear finding of fact that the defendant had succeeded in proving the sale -deeds and gift-deed and had, therefore, rightly recorded the finding that the defendant was the owner of the suit property. It was further submitted on behalf of the respondents that the Court had concurrently held that there was a partition between the two brothers, 50 years back and this finding is also a pure finding of fact. It was, then, submitted on behalf of the respondents that the Courts have rightly relied on the provisions of Section 90 of the Indian Evidence Act to presume the execution of the gift-deed and the sale-deeds. Learned counsel, therefore, sought for dismissal of the appeal. 7. The first submission on behalf of the appellants is totally misconceived and ill-founded. It is not the case of the plaintiff in his pleadings that the gift-deed was void and not binding on the plaintiff as Bapurao was minor at the time of execution thereof. Merely, a ground has been raised for the first time in the 5 memorandum of First Appeal to raise this submission, which could be based purely on facts and which could have been dealt with only after tendering of evidence on record. In the absence of such a plea, it cannot be now said by the appellants specially, without amending their plaint after the written statement was filed, that the plaintiff had not attained majority at the time of the execution of the gift deed. 8. Similar is the reason, for discarding the last submission as regards validity of the sale deeds and gift deed on the ground of fraud and forgery. The plaintiff has neither pleaded fraud nor given any details of facts to justify the same. In the absence of any pleadings about fraud and forgery, this submission has to be rejected at the threshold. 9. On the other submission made on behalf of appellants, it is necessary to note that there was a presumption under section 90 of the Act that Bapurao, the executant and the attesting witnesses had executed and signed the document. There is no evidence whatsoever in this case to rebut that presumption. The suit properties were recorded in the name of the defendant since long. The Courts had also concurrently held that there was a partition between brothers, 50-years back. In the backdrop of the aforesaid facts and the other relevant evidence tendered by the defendant, both the Courts rightly came to the conclusion that the defendant had succeeded in proving the sale deeds and the gift deed. The judgments referred to hereinabove, cannot be made applicable to the facts of the present case. The judgment reported in 1987 Mh.L.J . 341 considers a case where the validity of the 6 will was in question and in the facts and circumstances of that case, this Court rightly held that the trial Judge had rightly exercised his discretion in not presuming that the will was executed and had rightly called for the proof of it. In the instant case, it was not the case of the plaintiff that he had not executed those documents; the plaintiff had not amended the plaint after filing of the written statement and had also not challenged the three documents and the validity thereof for more than 40-years. On the basis of the evidence on record, the Courts held that the deeds were proved. 10. It is, thus, clear that the findings recorded by both the Courts are pure findings of facts, based on a proper appreciation of the material evidence on record. Since they do not give rise to substantial question of law, the Second Appeal is dismissed with no order as to costs. JUDGE sahare