Second Appeal no.211 of 1996. 1 IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY, NAGPUR BENCH NAGPUR. SECOND APPEAL NO. 211 OF 1996. APPELLANT: Shri Mohd.Habib s/o Mohd.Ishaque. : VERSUS : RESPONDENTS: 1. Shri Abdul Aziz, 2. Shri Abdul Hafiz, 3. Mohd.Hanif. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.Shabbir Hussain, Advocate for the appellant. Mr.M.R.Joharapurkar, Advocate for the respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: C.L.PANGARKAR,J DATED : 11th April, 2008. ORAL JUDGMENT: 1. This second appeal is filed by the plaintiff who was unsuccessful in both the courts below. The parties shall hereinafter Second Appeal no.211 of 1996. 2 be referred to as plaintiff and defendants. 2. The facts giving rise to the appeal are as follows - The plaintiff and the defendants are the real brothers. The plaintiff was living separately from his father after his father had remarried. When the plaintiff had once come to the house of his father, he saw that his brothers were being ill-treated by his step-mother. He, therefore, brought all the defendants to his own house. The defendants started residing since then with the plaintiff. The plaintiff brought them up. The father of the parties died without leaving behind him any property. Whatever movable property was available, was taken away by the step-mother after the death of the father. The plaintiff submits that he purchased the suit house by a registered sale-deed dated 1/10/1957 from one Haji Abdul Khaliq for consideration of Rs.1000/-. He submits that he purchased it from his own funds. The plaintiff further submits that the sale-deed was actually written on 1/10/1957 but was registered on 4/10/1957. During this period, the sale-deed was lying with the scribe of the sale-deed. The vendor, who was interested in the Second Appeal no.211 of 1996. 3 defendants surreptitiously got the names of the defendants entered in the sale-deed as purchasers along with the plaintiff. In fact, the defendants were minors and did not contribute even a single pie towards the consideration. The plaintiff had allowed the defendants to reside in the suit house since they were minor. The plaintiff is practically illiterate and did not have any idea that the names of the defendants were surreptitiously introduced in the sale-deed. When the plaintiff's family increased, he asked the defendants to vacate the premises. The defendants refused and claimed title in themselves. The plaintiff, therefore, submits that he has terminated the licence of the defendants and the defendants should vacate the house. 3. The defendants filed their written statement and admitted the relationship. The main contention of the defendants is that they have contributed towards the consideration of the suit property from their own earnings as well as after sale of certain ornaments left behind by their father. They deny that the plaintiff is the sole owner of the property. The defendants, therefore, Second Appeal no.211 of 1996. 4 contended that they are the owners of the suit property and the plaintiff has no right to evict them. 4. The learned Judge of the Trial Court found that the plaintiff was not the sole owner of the suit property. He also found that the names of the defendants were not fraudulently introduced in the sale-deed. He further found that the plaintiff's contention that the defendants did not contribute anything was not correct and therefore the defendants could not be said to be the licensees and the plaintiff the sole owner. He, therefore, dismissed the suit. 5. The learned Judge of the Appellate Court concurred with the findings of the Trial Court and dismissed the appeal. 6. The appeal was admitted by Wahane, J. on ground nos. ii, iii, iv and v as substantial questions of law. They are as follow - ii) That, the learned Trial court including the learned First Appellate Court, both admitted the facts regarding the interpolation of the names of the Second Appeal no.211 of 1996. 5 Respondents in the page of the registered sale-deed, dated 4/10/1957, filed at Exh.64, for which the whole, sale consideration was paid by the appellant/plaintiff himself alone and not by the Respondents and also since the respondents nos.1 to 3 were minors, and yet they gave the illegal findings of the relevant issues, and the points against the appellant/plaintiff, which are totally not only erroneous but also perverse in all respect. (iii) That, the learned Trial Court, as well as the learned First Appellate Court further committed great errors of law by totally ignoring the other documentary evidence adduced and produced on record by the Appellant/plaintiff by filing several documents vide Exhs.46 to 51 and from Exh.s52 to 61, including other documents filed at Exhs.42,43 and 44, which clearly establish the title and ownership of the appellant/plaintiff over the suit house property purchased by him alone vide registered sale-deed, dated 4/10/1957, filed at Exh.64. iv) That, the both the learned trial court and the first appellate court, particularly disregarded not only the oral but also relevant facts at material documentary evidence adduced and produced by the appellant/ plaintiff on the record of the case, which clearly proved Second Appeal no.211 of 1996. 6 the title and ownership of the appellant/plaintiff in respect of the suit house property in all respect. However, both the learned trial court and the learned first appellate court ignored the same by making surmises and presumptions which cannot be supported under law, in any manner whatsoever. v) That, the learned trial court give his findings on issue No.7, whether the respondents/defendants proved that they were the joint members of the family, when the suit house was purchased in the names jointly with the appellant/plaintiff, which was given in negative i.e. against the respondents and in favour of the appellant/plaintiff, and the judgment and decree passed by the learned trial court was duly confirmed by the learned first appellate court, which clearly goes to show the non-application of the mind by both the courts since the payment of sale consideration was not at all proved by the respondents under law, and as such, findings arrived at, by both the courts below, being totally contradictory and against the oral and documentary evidence on record, they are liable to be quashed and set aside. 7. I have heard the learned counsel for the appellant and the Second Appeal no.211 of 1996. 7 respondents. 8. The case of the plaintiff is that he is the exclusive owner of the suit property having himself purchased it in the year 1957. The defendants claim that they are the co-owners having contributed towards consideration. 9. The undisputed fact is that the names of the defendants appear in the sale-deed as co-purchasers. The plaintiff has specifically pleaded that the sale-deed was written on 1/10/1957 and it was in possession of the scribe till it was actually registered on 4/10/1957. It is also his specific case that the vendor, who was interested in defendants, got their names inserted illegally, wrongly and surreptitiously. Now, this theory is not only admitted by the defendants in their evidence but in pleadings also. It would be necessary to reproduce that pleading of the defendants here. “However at the time of presentation of the sale-deed in the office of the Sub-Registrar due to alterness of the vendor and attesting witnesses the fraud was noticed Second Appeal no.211 of 1996. 8 and the plaintiff was exposed completely. It was thereafter with the consent and connivance of the plaintiff himself the names of the defendants came to be rightly introduced as co-purchases as the suit house was jointly purchased by the plaintiff as well as defendants”. 10. DW 1 Abdul Ajij admits in para no.10 of his deposition the complete theory of the plaintiff. I would once again reproduce part of the deposition here to show how clear is the admission. “It is true that in Exh.64 the age of plaintiff and defendants is shown. It is true that when Exh.64 was scribed only the name of plaintiff was written in it. It is true that the name of defendants no.1 to 3 were inserted in Exh.64 later on when Exh.64 was lying with Mahadeorao Pujari. The name of defendants no.1 to 3 inserted in Exh.64 at the instance of Haji Abdul Khaliq. When the name of defendants no.1 to 3 were inserted in Exh.64 consent was obtained from the plaintiff by vendor Abdul Khaliq. The written consent was obtained from the plaintiff by Haji Abdul Khaliq when the name of defendants no.1 to 3 were inserted. I am not in Second Appeal no.211 of 1996. 9 possession of said documents. It is not true that myself, defendant nos.2,3, vendor and scribe of Exh.64 committed fraud and inserted names of we defendants no.2 and 3 in Exh.64.” It is thus clear that the name of defendants were added by the vendor when the sale-deed was lying with the scribe from 1/10/1957 to 4/10/1957. Obviously, there was no reason for the plaintiff to know such insertion. Further DW 1 says in cross- examination that while adding the names of defendants, written consent of the plaintiff was taken by the vendor. Such written consent is not placed on record and the vendor Abdul Khaliq is not examined by the defendants to prove such consent. The learned Judge of the first appellate court has observed that the plaintiff has admitted that at the time of presentation of the document for registration, he had read the document and signature of defendants were obtained at the time of presentation. The observation made by the learned Judge is absolutely incorrect. It seems, he did not carefully read the evidence. I reproduce here the relevant part of cross-examination. Second Appeal no.211 of 1996. 10 “The sale-deed was registered at Nagpur Sub- registrar court. The sub-registrar did not inquire about the name of seller and purchasers of the suit house. Sub-Registrar only asked about the consideration. It is not true that defendants no.1 to 3 were with us when sale-deed was registered. Sale deed was not readover to me prior registration of it.” This would clearly show that the learned Judge made observation contrary to the evidence on record. The evidence goes to show that the defendants were not present and the sale deed was not at all readover to the plaintiff when it was registered. The plaintiff has stated that he is almost illiterate. Further, it appears that he has signed in Urdu script and therefore, could be said to be not knowing Deonagari script. It is also stated by PW 1 that after the names were added, his initials were not obtained and there are only the initials of the vendor. Now, this is a fact which is apparent. A bare look will disclose that the names were added subsequently and there is no initial of the purchaser on the sale-deed. If the names were added subsequently, there was no reason not to obtain the plaintiff's Second Appeal no.211 of 1996. 11 initials if he had at all consented. The plaintiff makes a grievance of that thing very rightly. The evidence overwhelmingly shows that names of defendants were added without knowledge or consent of the plaintiff. The defendants could not have been treated as co-purchasers since their names were added in the sale-deed without the consent of the plaintiff and after he had put his signatures on the sale-deed. 11. This takes me to consider the question of payment of consideration. The sale-deed (Exh.64) is dated 1/10/1957. The ages of the defendants on that date are shown as 12,9 and 3. In no case it could be said that any of the defendants was in a position to earn and save anything out of it. What is alleged in the written statement is that defendants were quite grown-up when the property was purchased and they contributed. The ages do not show that they were so grown-up as to earn and save and contribute. It is admitted by DW 1 Abdul Ajij that after death of father, they were maintained by one Haji Khaliq for six years. The father died on 8/9/1952 as is stated by PW 1. Thus, the defendants Second Appeal no.211 of 1996. 12 were maintained for six years by Haji Khaliq after death of their father and the defendants were under care of Haji Khaliq up to 1958. There was, therefore, no question of defendants earning during the period of 1952 to 1958, since they were actually being maintained by Haji Khaliq. 12. Next source pleaded by the defendants was the sale of the gold ornaments left by father. DW 1 Abdul Ajij admits that he does not have any document to show that the ornaments were sold to Haji Abdul Khaliq. It is difficult to accept the version of defendants that they had attained the age of understanding in the year 1957. It is, therefore, also difficult to accept that they could understand the sale of the ornaments and the price of the ornaments and even contribution to be made towards purchase of the house. I find that the courts below have not at all considered these aspects. The evidence as tendered by the defendants does not go to show that any of the defendants had any source of income, and that they had sold any ornaments and contributed anything towards the price of the house. It was contended that the court should rely on the Second Appeal no.211 of 1996. 13 provisions of Section 45 of the Transfer of Property Act, 1882. Section reads as follows - “45. Joint transfer for consideration – Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interest in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.” Second Appeal no.211 of 1996. 14 13. This section has no application for the simple reason that second part of the section says that in the absence of evidence as to the interest in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be equally presumed to be interested in the property. In the instant case, there is no evidence of contribution at all. Hence, Section 45 of the Transfer of Property Act is of no help. Undisputedly, the house is mutated in the name of the plaintiff alone. None of the defendants had ever tried to mutate his name. Although electric meter is in the name of defendant no.2, it could be due to the fact that the defendants are residing in the suit house. That is an insignificant circumstance. To my mind, the courts below have not considered the evidence on record properly at all. There was overwhelming evidence in favour of the plaintiff about the contribution by him alone. On the other hand, there is no evidence whatsoever showing any contribution by defendants. The courts below had ignored the evidence tendered by the plaintiff. The findings of the courts below, therefore, can be said to be perverse and that needs to be set aside. The appeal is, therefore, allowed. Second Appeal no.211 of 1996. 15 The Judgment and decree passed by the courts below are set aside. The suit is decreed. The defendants shall hand over the vacant possession of the suit premises to the plaintiff forthwith. Enquiry into future mesne profit be held from the date of the suit till realization of the possession. The defendant shall pay costs throughout. Decree be drawn up accordingly. At the request of the learned counsel for the respondents, two months' time is granted to vacate the premises. JUDGE. chute