1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.13 of 1993 Baswantappa s/o Apparao Chinchore age 31 years, occup.agriculutre r/of Keshar-Jawale, Taluka Umerga Appellant District Osmanabad. ori.deft. No.1. versus 1. Mahadu s/o Ramchandra Teli, age 14 years, 2. Mollinath s/i Ramchandra Teli, age 12years, Both u/g of real mother - Respondent No.3. 3. Kashibai w/o Ramchandra Teli, age 46 years, occup.household r/of Belumb, Taluka Omerga, District Osmanabad, now at Khandale, Tq.Aland,Dist.Gulberga. 4. Sharanappa s/o Ramchandra Teli, age 18 years, occup.agriculture, r/o Belumb, Taluka Umerga, Respondents/ District Osmanabad. ori. pltffs. 2 Shri N.P.Patil(Jamalpurkar) Adv. for appellant. Smt.M.A.Kulkarni,Adv.,for respondents 1 and 2. Shri M.D.Shinde, Advocate,for respondents 3 & 4. Coram: P.R.Borkar J. Date : July 16, 2009 Oral Judgment 01. This second appeal is preferred by original Defendant No.1, being aggrieved by the judgment and order passed by the learned Civil Judge, Junior Division, Omerga on 28.2.1983, decreeing the suit bearing Regular Civil Suit No. 37 of 1977 for partition and separate possession to the extent of 3/4th share, which judgment and decree is further confirmed by Additional District Judge, Osmanabad, by dismissing Regular Civil Appeal No.71 of 1983 decided on 13.11.1992. 02. Briefly stated, the facts giving rise to this second appeal are that present respondents are the original plaintiffs and present appellant is original defendant no.1. Original defendant No. 2 Ramchandra Teli was husband of Respondent 3 No.3 Kashibai who was original plaintiff No.3 and Respondent Nos. 1, 2 and 4 are sons of said Ramchandra and Kashibai. Suit was filed by Respondent No.3 Kashibai for herself and on behalf of Respondent Nos.1, 2 and 4 who were then minor sons, for recovery of possession to the extent of 3/4th share by way of partition. Ramchandra died pending the suit and his name is deleted vide order dated 24.9.1981 03. Now, it is an admitted position that Defendant No.2 Ramchandra Teli had executed sale deed dated 28.3.1973 in respect of land survey No. 44/A ad-measuring 7 acres 18 gunthas situated at village Belamb Taluka Omerga, District Osmanabad for consideration of Rs.2,000/= in favour of the appellant. 04. It is the case of Respondents-plaintiffs that the said property was ancestral property and was sold by Defendant No.2 without any legal necessity. Defendant No.2 Ramchandra had obtained loan from the cooperative society at Belamb and 4 the suit land was mortgaged to the said society and therefore transaction of sale between the defendants was illegal. The plaintiffs and defendant No.2 were members of the joint family and each of them had 1/4th share therein. Under said circumstances, the suit for possession was filed. 05. Defendant No.1 Baswantappa appeared and resisted the suit, by contending that the property was not ancestral property, but it was his self acquired property and as such,there is no question of sale being void for want of legal necessity. It is also stated that survey No.44 ad-measuring 31 acres 12 gunthas land was purchased by Defendant No.2 and his two brothers Annappa and Sharnappa Teli. Thereafter they partitioned the land and Defendant No.2 Ramchandra got 7 acres 18 gunthas land to his share which was later on sold by him to present appellant-defendant No.1. In the circumstances, it is prayed that the suit deserves to be dismissed. It is also said that the land was sold for legal necessity, inasmuch as 5 there were debts raised for bunding, loan owed to society and also private loan owed by Defendant No.2 Ramchandra. There was drought in 1973 and therefore transaction is binding even assuming that the property was ancestral. 06. The trial court, so also the first appellate court, concurrently held that the defendants failed to prove that the property is self acquired property of original defendant No.2 Ramchandra. However, both courts held that the transaction was void under Sections 47 and 48 of the Maharashtra Cooperative Societies Act, 1960 ("MCS Act" for short). 07. This appeal is admitted on 28.1.1993, after hearing Shri N.P.Patil Jamalpurkar Advocate for the appellant and Smt.M.A.Kulkarni Advocate for the Respondents, on substantial questions raised in ground Nos. 2 and 3 in the appeal memo which are as follows;. "II. Whether the courts below are 6 right in decreeing the suit of the plaintiff for partition and separate possession to the extent of their 3/4th share only on the ground that the alienation made by the Karta of their family original defendant no.2 (now deceased) is void in view of Section 47 & 48 of the Maharashtra Co-operative Societies Act when and where as the Cooperative Bank is not party to the suit and not came finally before the Court as a witness. III. Whether the Courts below are right in holding that the sale transaction dated 28/3/83 is void and the same was execution in contravention of Section 47 & 48 of the Maharashtra Co- operative Societies Act when and where as, the Co-operative Bank from who, deceased defendant no. 2 was alleged to have taken loan by keeping charge on the suit property. At the most, the sale transaction is void against the Co- operative Bank, but the effect of its nullity cannot be operated against third person like plaintiff." 08. At the time of arguments, Advocate Smt.M.A. Kulkarni for Respondents No.1 and 2 cited 7 two cases. First is Chandrakant vs Shrinivasrao 2005 (3) Mh.L.J.82. In the said reported case, the court was dealing with Second Appeal and it was observed in paragraph 16 thus : " In the matter at hands, there was no part of the decree which the Respondents could have challenged by way of appeal or cross objections. There are only findings on issue of "legal necessity" and "bona-fide purchasers" which are recorded against defendants/respondents. They could not have appealed against the dismissal of suit on the ground of limitation. They are also not in a position to prefer any cross-objection, which is also available only against a decree and not against a finding on particular issue." In the circumstances, the Respondents were allowed to argue on the questions of "legal necessity" and "bona-fide purchasers". 09. Second case relied upon by Respondents on the same point is Raviner Kumar Sharma v. State of 8 Assam AIR 1999 SC 3571. In that case, it is held in paragraph 22 as follows; " We hold that the respondent- defendant in an appeal can,without filing cross-objection attack an adverse finding upon which a decree in part has been passed against the respondent for the purpose sustaining the decree to the extent the lower Court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory." 10. Relying upon aforesaid two cases, it is submitted by Smt. M.A.Kulkarni, learned Advocate for the respondents that this court can very well consider the question whether the properties were self acquired properties of defendant no.2 or those were ancestral properties in the hands of defendant no.2. 11. Shri N.P.Patil learned Advocate for the appellant, pointed out that when this appeal was admitted on 28.1.1993, he himself and Advocate 9 Smt.M.A.Kulkarni were heard for the appellant and the Respondents respectively and the appeal was admitted only on substantial questions of law raised in ground Nos.2 and 3. In the circumstances, now it cannot be said that any new ground can be agitated at the time of hearing. 12. Advocate Shri N.P.Patil for the appellant also referred to the case of Malhari Gangaram vs. Shenfad Namdeo 2004 (4) Mh.L.J.577, and drew my attention particularly to paragraphs 2 and 3. The facts involved in the said matter are almost similar to the one involved in the present matter. Advocate Shri Patil also pointed out that in the present case, there was concurrent finding of fact recorded by both the courts below that the property sold by Defendant No.2 to Defendant No.1- appellant was his self acquired property and it was not joint family property in which plaintiffs were co-parceners. 13. It may be noted here that in the case of Chandrakant (supra), the substantial questions of 10 law framed were of such a nature that the court felt it necessary to consider additional questions raised by respondents. The powers of the court dealing with second appeal to frame additional substantial question of law at the time of hearing are well recognized. So, merely because such power was used in the case of Chandrakant, it is not necessary to exercise those powers in the present case. Now, it is well settled principle of law that in Second Appeal, the court can deal with only substantial question of law and it is not expected to enter into questions of facts, particularly when there are concurrent findings of fact, unless it is shown that the findings were perverse. In this view of the matter, in my opinion, scope of present appeal cannot be extended beyond the scope of substantial questions of law on which the appeal was initially admitted. Here, I may refer to the principles of law laod down in paragraphs 13 and 14 of the case of Govind Raju vs. Mariaman 2005 (3) Bom.C.R.87. After hearing Smt.M.A.Kulkarni learned counsel for the respondents on the question which she wanted to 11 raise as additional substantial question of law, I am not satisfied that the findings of the courts below were perverse or based on misreading of evidence or no evidence. I also refer to the case of Khatunbi vs Aminabi 2006 (6) Mh.L.J.759. In view of limited scope of second appeal under Section 100 of the Code of Civil Procedure, 1908, in my opinion, the new point sought to be raised as substantial question of law cannot be allowed to be raised, the same does not amount to a substantial question of law. There are concurrent findings of fact based on evidence which cannot be termed perverse. 14. Both, the trial court and the first appellate court, referred to Sections 47 and 48 of the MCS Act and both have held that in view of Section 47(2) and Section 48(d), the sale deed in favour of present appellant-original defendant no. 1, was void. In order to prove that the loan was obtained by defendant no.2 from cooperative society and it was outstanding, the plaintiffs have examined PW-4 Subhash Mane at Exhibit 63 who 12 has stated that original defendant no.2 Ramchandra had obtained loan of Rs.500/= and executed a declaration form (mortgage). There is also evidence of PW-3 Subhash Kardane at Exh.65, who was serving in District Central Cooperative Bank and deposed about declaration form executed by original defendant no.2. 15. Learned Advocate Shri N.P.Patil for the appellant has referred to the case of Malhari (supra) and particularly relied upon paragraph 8 wherein effect of Sections 47 and 48 of the MCS Act is considered in details. Paragraph 8 reads: ". The contention of the learned counsel for the appellants that the provisions will have to be interpreted for advancement of the object and the scheme of the statute, is well founded. Moreover, in view of the ratio as laid down by the Supreme Court in AIR 2001 SC 2552, the effect that the transaction though denoted by law to be void is not per se or ipso facto void. It will have, therefore, to be held that if at all it 13 be so void, it is so only as against the society whose interest is sought to be protected by said provision of law and if need be, society can avoid such transaction as void without any declaration, however, said protection is unavailable to those who wish to use said provision in disguise and their true intentions are to avoid liability incurred under solemn promise. The transaction which violates section 48, has to be viewed in the light of the scheme of sections 47 and 48 together. These sections are placed under the titles "prior claim of society". Though the transactions which violate these sections have been declared void those being void, will have to be construed to be void qua the society. It shall never be allowed to lie in the mouth of the person (or his heir) entering into the said transaction and committing an open act of violating it and transferring the interest in the property adverse to the interest of the society, to say that transaction is void on account of mandatory prohibition contained in section 48. If allowed, this would amount to be abuse of law by granting incentive and bonus on commission of 14 illegality." In above case, this court referred to and relied upon earlier judgments of this court, so also judgment of the Supreme Court. 16. In view of law laid down in the case of Malhari (supra) in my considered opinion, this second appeal deserves to be allowed. I, therefore, answer both the substantial questions of law in favour of the appellant. 17. In the result, the second appeal is allowed. The decree passed by the trial court and the first appellate court is set aside. The suit is dismissed. Parties to bear their own costs. pnd/ sa13.93 (P.R.BORKAR, J.) authenticated copy (P.N.Deshpande) Private Secretary to Hon'ble Shri Justice P.R.Borkar 15