1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL APPEAL APPEAL NO.841 OF 2002 NO.841 OF 2002 NO.841 OF 2002 IN IN IN SUIT SUIT SUIT NO.2920 OF 1989 NO.2920 OF 1989 NO.2920 OF 1989 1. Vasant Dhundiraj Phalnikar 2. Hanumant Dhundiraj Phalnikar (deceased):- 2(a) Saroj Hanumant Phalnikar 2(b) Sanjeev Hanumant Phalnikar 2(c) Hitendra Hanumant Phalnikar All of Bombay, Indian Inhabitant, residing at 37, Geeta, Ground Floor, Dr.M.B.Raut Road, Shivaji Park, Dadar, Mumbai 400 028. Appellants Plaintiffs vs. 1. Madhav Dhundiraj Phalnikar (deceased):- 1b) Padma Shivnarayanprasad Phalnikar of Pune, residing at Athurva Classic, Paud Phata, Karve Road, Pune-29. 1(c) Sharayu Shamrao Gurjar, of Pune, Indian Inhabitant, residing at Sailee Apartment 1st Floor, Gangote Marg, Opp. Kamla Nehru Park, Pune-4, For self and as the heir and legal representative of deceased Respondents 1(a) 1(d) Sunanda Suresh Sardesai 2 of Dombivli, Indian Inhabitant, residing at Bell House Society, Manpada Road, P & T Quarters, Dombivli (East) For self and as the heir and legal representative of deceased Respondents 1(a) 1(e) Asha Satish Davdhar of Nasik Indian Inhabitant, residing at 3, Seeta Apartment, Patel Lane No.2, College Road, Nasik-422005. For self and as the heir and legal representative of deceased Respondents 1(a) 1(f) Anjali Arun Tagare of Sangli, Indian Inhabitant residing at Sargarm, Asha Rani, Civil Hospital, Vakil Colony, Sangli. For self and as the heir and legal representative of deceased Respondents 1(a) 2. Arvind Dhundiraj Phalnikar of Bombay, Indian Inhabitant, residing at 37, "Geeta", 1st Floor, Dr.M.B.Raut Road, Shivaji Park, Dadar, Bombay-28. Respondents Defendants ALONG ALONG ALONG WITH WITH WITH CROSS CROSS CROSS APPEAL (LODGING) NO.829 OF 2002 APPEAL (LODGING) NO.829 OF 2002 APPEAL (LODGING) NO.829 OF 2002 IN IN IN APPEAL APPEAL APPEAL NO.841 OF 2002 NO.841 OF 2002 NO.841 OF 2002 IN IN IN SUIT SUIT SUIT NO.2920 OF 1989 NO.2920 OF 1989 NO.2920 OF 1989 1. Madhav Dhundiraj Phalnikar (deceased):- 3 1(c) Padma Shivnarayanprasad Phalnikar,adult,Indian Inhabitant, residing at Atharve Classic, Paud Phata, Karve Road, Pune-411 029. 1(d) Sharayu Shamrao Gurjar, of Pune, Indian Inhabitant, residing at Sailee Apartment 1st Floor, Gangote Marg, Opp. Kamla Nehru Park, Pune-411004, 1(e) Sunanda Suresh Sardesai of Dombivli, Indian Inhabitant, residing at Bell House Society, Manpada Road, P & T Quarters, Dombivli (East) 1(f) Asha Satish Davdhar of Nasik Indian Inhabitant, residing at 3, Seeta Apartment, Patel Lane No.2, College Road, Nasik-2. 1(g) Anjali Arun Tagare of Sangli, Indian Inhabitant residing at Sangram, Asha Rani, Civil Hospital, Vakil Colony, Sangli. Appellants Defendants Vs. 1. Vasant Dhundiraj Phalnikar 2. Hanumant Dhundiraj Phalnikar (deceased):- 2(a) Saroj Hanumant Phalnikar 2(b) Sanjeev Hanumant Phalnikar 2(c) Hitendra Hanumant Phalnikar All of Bombay, Indian Inhabitant, residing at 37, Geeta, Ground Floor, Dr.M.B.Raut Road, Shivaji Park, Dadar, Mumbai 400 028. 4 3. Arvind Dhundiraj Phalnikar, of Bombay, Indian Inhabitant, residing at 37, Geeta, 1st Floor, Dr.M.B.Raut Road, Shivaji Park, Dadar, Mumbai 400 028. ...Respondents Plaintiffs. Mr.Rajesh Shah for the Appellants. Mr.S.D.Mogre for Respondent Nos. 1(a) to 1(f) and Respondent Nos. 3 to 6 in Cross Appeal. Ms.Ashlesha Pandya for Respondent No.2 and Respondent No.7 in Cross Appeal. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. JUDGMENT RESERVED ON: 28th February, 2008 JUDGMENT PRONOUNCED ON: 2nd July, 2008 ORAL JUDGMENT (Per Anoop V. Mohta,J.): Appellant No.1, original Plaintiff No.1, original Plaintiff No.2, original Defendant No.1 and Respondent No.2 are brothers being sons of one Dhundiraj Phalnikar. Dhundiraj also had a daughter who married during his life time. 2. According to Appellant No.1 and original Plaintiff No.2, a plot of land situate at Shivaji Park, Dadar, being plot No.37, together with building standing thereon consisting of ground plus three upper floors, 5 two garages, pump house and underground water tank standing thereon and known as "Geeta", and a plot of land bearing survey No.4, Hissa No.2, situate at Munjeri, Pune, admeasuring 22 gunthas given to Shivaji Preparatory Military School are the joint family properties in which they are along with original Defendant No.1 and Respondent No.2 have equal share. The suit was filed, inter alia, for partition of the said property. 3. It is the case of original Defendant No.1 that three upper floors i.e. 1st, 2nd floor and 3rd floor on ground floor of the said plot, two garages, pump house and underground water tank are constructed by the original Defendant No.1 from out of his own funds and hence Appellant No.1, original plaintiff No.2 and Respondent No.2 has no right, title or interest of any nature whatsoever in the said additional construction. 4. Dhundiraj had made a family arrangement regarding his ancestral property, as well as, his self acquired properties. 5. The appellant and original Plaintiff No.2 learnt about the said family arrangement made by Dhundiraj only when the original Defendant No.1 filed a suit against Appellant No.1, original Plaintiff No.2 and Respondent 6 No.2 in the City Civil Court in 1988. 6. On 9.10.1939 Dhundiraj died intestate, inter alia, leaving Appellant No.1, original Plaintiff No.2, Respondent No.2 and his widow. 7. On 5.9.1953, a registered family arrangement, which is signed by Appellant No.1, original Plaintiff No.2, original Defendant No.1, Respondent No.2 and the widow i.e. the mother of Appellant No.1, original Plaintiff No.2, original Defendant No.1 and Respondent No.2. 8. According to Appellant No.1 and original Plaintiff No.2, their signatures on the said document of 1953 were obtained by original Defendant No.1 by exercising undue influence. According to Appellants and original Plaintiff No.2 the said family arrangement is voidable at the instance of Appellant No.1 and original Plaintiff No.2. 9. On 27.12.1957, the mother of Appellant No.1, original Plaintiff No.2, original Defendant No.2 and Respondent No.2 died intestate. 10. On 24.9.1960 three deeds of lease in which original Defendant No.1 has been shown as landlord, the prospective tenant is shown as a tenant and Appellant 7 No.1, original Plaintiff No.2 and Respondent No.2 are shown as confirming party. 11. In 1985 it is the case of Respondent No.2 that he occupied first floor flat in building situate at Shivaji Park as tenant of Defendant no.1. 12. On 6.6.1988-Original Defendant No.1 filed a Suit in City Civil Court being Suit No.4458 of 1988 for a declaration that family arrangement dated 5th September 1953 is binding on the parties to the said suit and for a declaration that the defendants in the said suit has no right, title or interest of any nature whatsoever in respect of the newly constructed floors, being 1st, 2nd and 3rd floors and two garages at plot No.37, Geeta building, Shivaji Park, Dadar, Mumbai-400 028 and for recovery of rent and arrears of taxes from the defendants in the said suit. 13. On 19.7.1989, an order came to be passed in Notice of Motion No.3657 of 1988 in the said City Civil Court Suit. 14. In 1989, in said City Civil Court Suit, Appellant No.1 and original Plaintiff No.2 filed their written statement. 8 15. On 8.8.1989 Notice issued by Advocate for Appellant No.1 and original Plaintiff No.2 to original Defendant No.1 and Respondent No.2, inter alia, claiming that plot bearing No.37, together with building thereon consisting of ground plus three upper floors, two garages, pump house and underground water tank thereon, and the plot of land bearing survey No.4, Hissa No.2 situate at Munjeri, Pune, admeasuring 32 gunthas and given to Shivaji Preparatory Military School are the joint family properties of Appellant No.1, original Plaintiff No.2, original Defendant No.1 and Respondent No.2 and that each of them have equal share therein and claiming partition of the said property. 16. In the notice, it was further contended that the signatures of Appellant No.1 and original Plaintiff No.2 on the family arrangement of 1953, three deeds of lease and 3 deeds of charge have been obtained by original Defendant No.1 by using his position to dominate the will of Appellant No.1 and original Plaintiff No.2 and by exercising undue influence and asking in the said notice original Defendant No.1 to render account and partition of the joint family property was sought for. 17. In September, 1989 reply sent by the Advocate for original Defendant No.1 to the said Notice of Appellant No.1 and original Plaintiff No.2 in which it is admitted 9 by; original Defendant No.1 that plot of land at Shivaji Park and ground floor structure standing thereon and the plot of land at Pune are joint family properties. Original Defendant No.1 contended that newly constructed floors on the said property "Geeta" have been developed by original Defendant No.1 alone and Appellant No.1, original Plaintiff No.2 and Respondent No.2 have no rights therein. 18. It was denied by original Defendant No.1 that signatures of Appellant No.1, original Plaintiff No.2 on the said family arrangement, 3 deeds of lease and 3 deeds of charge were obtained by undue influence. 19. Respondent No.2 has not sent any reply to the said notice. 20. On 28.9.1989 present Suit came to be filed by Appellant No.1 and original Plaintiff No.2. 21. On 23.4.1992 in Notice of Motion No.2657/1989 by an interim order dated 16.10.1989, this Court has granted ad-interim order that Defendant No.1 would carry on the management of the property save and except transfer of tenancies. Defendant No.1 would be at liberty to transfer a tenancy after obtaining previous leave of the Court. 10 22. On 2.2.1993, the Division Bench of this Court in Notice of Motion in Appeal No.493/1992 arising out of Notice of Motion No.2657/1989 (Order dated 23.4.1992) dismissed the Notice of Motion and also the main Appeal itself and not granted Defendant No.1 a blanket permission to sell the flat situated on the 4th floor of Shivaji Park property. 23. On 24.2.1993, in pursuance to the liberty granted, this Court made the Notice of Motion absolute in terms of prayer (a). 24. On 28.7.1993, the Division Bench of this Court in Appeal No.151/1993, confirmed the said order by observing as under: ".....The permission granted to the 1st respondent to create a tenancy is conditional on his filing or getting the proposed tenant to file such an affidavit prior to creating the tenancy and shall stand revoked if such affidavit is not filed. We make it clear that the affidavit is required in order to ensure that the tenant who takes the tenancy is aware of the pending proceedings and is bound by the outcome. The appellants do not have any right to object to such a tenancy being created. ...." 25. On 25.7.1995, this Court refused to grant interim relief to the Plaintiff with regard to the access to the terrace in question. 11 26. On 20.11.1995 while disposing of the Appeal No.769/1995 arising out of Notice of Motion No.2363/1995 granted the relief to the plaintiff in the following terms: "....The impugned order in so far as it denies plaintiff the right of access to the terrace is set aside. There will be an ad-interim order in terms of prayer clause (a) of Notice of Motion No.2363 of 1995. It will be open to the first defendant to hand over duplicate keys of the locks placed on the shutters leading to the terrace, to the plaintiffs and retain the other duplicate keys with himself. Appeal is allowed in the aforesaid terms. ...." 27. The learned Single Judge of this Court has partly decreed the Suit No.2920/1989 and passed the following order: "i) The suit is partly decreed. ii) It is hereby declared that the property described in prayer column (a) (i) excluding the three upper floors and the property described in (ii) are the joint family properties of the parties. iii) It is hereby declared that plaintiff No.1 and Plaintiff No.2 (Plaintiff No.2(a) to 2(c) together) as well as Defendant No.1 (Defendant No.1(a) to 1(f) together) and Defendant No. 2 each has a 1/4 share in the above mentioned 12 joint family properties. iv) The plaintiffs are entitled to get their respective shares in the above-mentioned properties separated on partition. v) Partition of the above mentioned properties shall be done by a court commissioner appointed for that purpose. In case the court commissioner finds that actual partition of the above mentioned properties by metes and bounds as per the respective shares of the parties is not possible then, he shall make or get made the valuation of the above mentioned properties for the purpose of fixing the valuation of the shares of the parties. vi) Defendant No.1(a) to 1(f) shall give account to the plaintiffs in respect of the above-mentioned two properties (excluding the upper three floors of Geeta Building). vii) The plaintiffs claim for cancelling the deed of family arrangement dated 5/9/1953 as well as the three lease deeds dated 24/9/1960 is hereby dismissed. viii) Preliminary decree be drawn accordingly. ix) In the circumstances of the case, parties to bear their respective costs. . At this stage Shri Rajesh Shah for the plaintiffs requested for continuing the relief contained in Clause (b) of the Notice of Motion No.2657 of 1989 for a period of 4 weeks. The said relief has been already granted as per the order dated 23/4/1992. Shri Lad learned advocate holding for Shri Mogre states that what was granted by the court was a relief only in respect of upper 3 floors. However, as plaintiffs propose to file an appeal against the Judgment passed today, ad-interim relief granted on 23/4/1992 is continued for a period of 4 weeks." 28. On 1.7.2003, Suit No.4458/1988 filed by Plaintiff - Madhav in the Bombay City Civil Court was dismissed for want of prosecution by observing as under: 13 . "Adv.Mr.Mogre submits that Suit has become infructuous. He makes the endorsement to that effect on the plaint. . The Suit is dismissed for want of prosecution." 29. In the result, pending the present Appeal the Suit itself was dismissed in view of the impugned Judgment passed by the learned Single Judge in Suit No.2920/1989 in question. 30. By various orders, respective legal heirs have been brought on record in the Appeals as well as in the Suit. 31. This Court had tried and adjourned the matter for settlement but in vain. 32. The following were the issues before the learned Single Judge: ISSUES ISSUES ISSUES FINDINGS FINDINGS FINDINGS 1. Whether the claim in the Yes in respect of the suit is barred by the law relief for cancellation of limitation as stated in of deeds. paragraph 1 of the Written Statement of Original Defendant No.1. 2. Whether the Plaintiffs No, except Plot No.37, prove that the entire Shivaji Park, with Shivaji Park property ground floor structure 14 consisting of land and and plot bearing Sy. buildings consisting of No.4 Hissa No.2 of ground plus three upper Pune. floors and two garages and underground water tank and Pune property are the joint family properties as stated in paragraph 4 of the plaint? 3. Whether the plaintiffs No, except the prove that both the properties mentioned in Plaintiffs, Original the finding on issue defendant no.1 and No.3. defendant no.2 have equal shares in the entire Shivaji Park property and Pune property as stated in paragraph 4 of the plaint? 4. Whether Original Defendant Yes. No.1 had constructed the three upper floors, two garages and underground water tank and the pump house on the Shivaji Park property entirely at his costs as stated in paragraph 3 of the written Statement? 5. Whether the Plaintiffs No. prove that the signatures of the Plaintiffs in the Family Arrangement dated 6th September, 1953, Three Deeds of Charge dated 24th September, 1960 are obtained by original Defendant No.1 by undue influence as stated in paragraph 7 of the plaint? 6. If answer to Issue No.5 is No. in the affirmative, whether the Plaintiffs are entitled to have the documents referred to in Issue No.5 cancelled as stated in paragraphs 14 and 16 of the plaint? 7. Whether the Original No, except the 15 Defendant No.1 and properties mentioned in Defendant Nos. 1(a) to the finding on issue 1(f) are liable to render No.2. Account of income received from the entire Shivaji Park property and Pune property as stated in paragraph 17 of the plaint? 8. Whether the Plaintiffs are Yes, except the entitled to partition and properties mentioned in separate possession of the finding and issue their respective share in No.2. the said entire Shivaji Park property and Pune property as stated in paragraph 17 of the Plaint? 9. What relief and what Suit is partly decreed. order? 33. Now, after considering the rival submissions as raised by the learned counsel for the Appellants, we have to consider "Whether the impugned judgment and order passed by the learned Single Judge is correct, based upon the evidence and the material available on the record?" 34. There is no dispute that Suit No.4458/1988 which was pending before the Bombay City Civil Court, at the time of trial, was dismissed on 1.7.2003 for want of prosecution on a statement that the Suit became infructuous. In the result, all the controversies and rival contentions with regard to the same also looses its importance. 34(A). Mainly the following documents/deeds are involved 16 in the present dispute between the parties viz.: (a) Family arrangement dated 2.8.1939; (b) Family arrangement dated 5th/6th September, 1953; (c) Three deeds of charges dated 24th September, 1960 out of which there is no dispute between the existence, as well as, the contents of family arrangement dated 2.8.1939 made by their deceased father Dhundiraj. The Suit was filed on 17/26th September, 1989 for declaration about their respective shares of the property. There is a specific prayer for declaration to cancel the family arrangement dated 5th September, 1953 and three deeds of lease dated 24th September, 1960. The learned Single Judge held that the Suit is barred by law of limitation in respect of the relief for cancellation of deeds. However, the suit is partly decreed and ordered to draw preliminary decree accordingly. No relief was sought in respect of three deeds of charges. 34(B). Article 59 of the Limitation Act prescribes a period of three years to cancel or set aside an instrument from the date of knowledge. The present declaration as sought for cancellation of deed of family arrangement dated 24.9.1953, a Marathi registered document, was after 29 years, the burden lies upon the Appellant/Plaintiff to prove that they came to know about the aforesaid documents only before a period of three years prior to the filing of the Suit on 26th September, 17 1989, in spite of the fact that the deed was executed and registered. It means that all the parties thereto have signed it twice. 35. We have gone through the documents with the assistance of the learned counsel appearing for the parties. We also find that the parties have signed these documents twice. The documents are in Marathi. There are initials on each page by all the parties, including the mother i.e. wife of the deceased Dhundiraj. The present Suit was filed only by Vasant and Hanumant and not by other brothers, including the deceased mother. Except Plaintiff No.1 who deposed that he and other plaintiffs came to know about these documents for the first time when they took inspection of documents in the City Civil Court and in second breath he deposed that he signed all these documents as he had complete faith in his elder brother and that the documents were not read by him and now therefore disputing the contents of these documents. The fact that all the parties along with the Appellant/Plaintiff have admittedly signed the documents now it is too late in the day for them to say after 29 years based upon the averments that they had never read the documents. It is not their case that they are illiterate. The whole submission that the document was got signed by the elder brother by putting undue influence itself also means that the contents of these 18 documents are well within the knowledge of the parties on the date of the signatures. The submission that the documents got signed under influence always presupposes that the parties were aware of the contents as well as execution of the documents. The filing of present Suit in the year 1989 on the foundation that they came to know about the contents only after inspection of documents in the City Civil Court is unacceptable. The submission itself is self-contradictory specially with regard to their case of knowledge about the contents of the documents. The parties, in our opinion, were fully aware of the contents of these documents, basically family arrangement of 1953. 36. The other facet is the deed of 1953, was executed and thereafter registered in the Office of Sub Registrar as per the provisions of Sections 34 and 35 of the Registration Act. The registering officer is presumed to have enquired about the execution of the documents by the signatories. He is presumed to have satisfied as to the identity of the persons appearing before him and accepting to have executed the documents. There is no dispute raised at any time about the execution and registration of the family deed in question. Therefore, heavy burden lies upon the Appellant/Plaintiff to prove that though the documents were signed and executed still they are not aware of the contents of the documents. As 19 noted, when a party puts up a case of undue influence it presupposes the execution and the existence of document and its contents. The challenge remains only with regard to the circumstances under which the document got executed. In the present case, there is no such evidence or material placed on record except by two Plaintiffs by leading evidence of Plaintiff No.1-Vasant. No other brothers supported the case of the Plaintiff. As record shows, during the lifetime of the mother, there was no such objection with regard to the contents of these deeds raised by the plaintiff. 37. Respondent No.1 based upon the family arrangement dated 2.8.1939 read with family arrangement dated 24.9.1953, admittedly constructed first, second and third floors on the existing ground floor by putting his own money. Accordingly, he was getting the income out of the said constructed property as permitted and agreed by the parties in pursuance to the above two deeds. It is difficult to accept the case of the Appellant/plaintiff as there is nothing to show on record that they objected at any point of time to the above construction, no knowledge of the contents as stated and/or came to know about the contents of these documents only in the year 1989, is unacceptable. 38. Defendant No.1 by Advocate’s letter dated 10.2.1986 20 addressed to the Plaintiff and Defendant No.2 and called upon them not to interfere with the repair works of the two garages which were constructed by Defendant No.1 at his own cost. The reference was made about the family deed of 1953. The Appellants/Plaintiffs by their Advocate’s letter dated 18.2.1986 never denied the existence of the said documents/deeds specially the deed of 1953. Therefore, even at least in February, 1986 they were fully aware of the family arrangement of 1953. The Suit therefore as filed on 26.9.1989 after a period of more than three years was beyond the limitation, specifically when the Appellants/Plaintiffs while replying the said legal notice had made positive statement that the family arrangement dated 5.9.1953 cannot be read in isolation without keeping in mind the proper intention of family arrangement of 1939. There is no dispute that Plaintiffs 1 and 2 were about 30 to 32 years of age at the time of execution of deed of family arrangement of 1953. The submission, therefore, no reliance can be placed upon such admission given in the letter, in the facts and circumstances of the case is unacceptable. One cannot overlook the another facet that the document was not signed only by the Plaintiffs and/or by one person. It was signed by all the brothers along with their mother. It is not the case of any fraud or misrepresentation. Plaintiff No.2 did not step into the witness box to support the