1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 249 OF 1991 SECOND APPEAL NO. 249 OF 1991 SECOND APPEAL NO. 249 OF 1991 1) SHANTABAI YESHWANT JADHAV ) Age 53, Occ.Household work ) 2) Shankar Yeshwant Jadhav ) Age 25, Occ.Agriculturist ) 3) Maruti Yeshwant Jadhav ) Age 19, Occ. Agriculturist ) 4) Ratnabai Yeshwant Jadhav ) Age 15 years, minor ) through No.1 above. ) 5) Kondabai Kerappa Shinde ) Age 30, Occ.Household work ) Resident of Tuljapur Dist. ) Osmanabad No.1 to 4 residents ) of Kini, Tal. Akalkot, ) District Solapur. )..Appellant 2 (Orig. Defendants) Versus Ramchandra Apparao Jadhav, ) Since deceased, through his heirs ) and legal representatives :- ) 1. Smt. Bhagirathibai Ramchandra ) Jadhav, Age 60 years, ) Occupation: Agriculture. ) 2. Shri Tatya Ramchandra Jadhav ) Age 38 years, Occu: Agriculture,) 3. Shri Sudhakar Ramchandra Jadhav ) age 35 years, Occu: Agriculture,) Respondents Nos. 1 to 3 are ) R/o. Kini, taluka Akkalkot, ) District Solapur. ) 4. Sou. Suman Ambadas Pawar, ) Age 40 yrs, Occu: Agriculture, ) R/o At & Post Patwada, ) Taluka Tuljapur, District ) Osmanabad. ) 3 5. Sou. Kamabai Sudhakar Khatare, ) Age 30 yrs, Occu: Agriculture, ) R/o. At & Post Jewari, Taluka ) Nilanga, District Latur. )..Respodnents (Nos. 1 to 5 heirs of Deceased orig.Plaintiff) Mr. K.B.Sonwalkar, Advocate, for the appellant. Smt. S.A.Mudbidri, Advocate, for the respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th July, 2008. DATE: 16th July, 2008. DATE: 16th July, 2008. JUDGMENT JUDGMENT JUDGMENT 1. The appellants before this Court are the original defendants and the respondents are the legal heirs of the original plaintiff. For the sake of convenience, the parties shall be addressed as the plaintiff and defendants. 2. To state in brief, the deceased plaintiff Ramchandra Jadhav filed Regular Civil Suit No.62 of 1981 in the Court of Civil Judge, Junior Division, Akkalkot, 4 District Solapur, for specific performance of the contract for sale of the suit land bearing Gat No.316 admeasuring 1 hectare and 65 Ares situated at Mouje Kini, Taluka Akkalkot. The suit land was a joint family property of deceased Yeshwant Jadhav and the defendants. According to the plaintiff, Yeshwant Jadhav was in need of money to meet the daily household expenses and the joint family was heavily indebted. therefore, on 8.12.1974, Yeshwant had agreed to sell the suit land to the plaintiff for consideration of Rs.4,000/-. On the same day, the plaintiff paid an amount of Rs.1,000/- to Yeshwant as earnest money. Yeshwant was to clear Society and Tagai dues and obtain necessary receipts for the same and the sale deed was to be executed within a period of six months after that. It was also necessary for Yeshwant to obtain permission from the competent authorities under the Bombay Prevention of Fragmentation & Consolidation of Holdings Act (Consolidation Act in brief). As per the agreement, Yeshwant put the plaintiff in possession of the suit land and since then the plaintiff was in possession of the same. He made substantial improvements in the land and for that purpose he had spent huge amounts. According to the plaintiff, he had requested Yeshwant to execute the sale deed. However, on 28.9.1978, Yeshwant died and thereafter the plaintiff repeated the request to his 5 L.rs., who are the defendants, to execute the sale deed. Yeshwant had not obtained necessary permission from the Competent Authority under the Consolidation Act to sell the property nor he had cleared the dues. The plaintiff paid an amount of Rs.628/- towards dues of the Society because the Society had threatened to put the land to auction for recovery of the dues. The plaintiff also paid the Government dues against the land. The plaintiff was ready and willing to perform his part of the contract. As after the death of Yeshwant, the defendants avoided to execute the sale deed, the plaintiff filed the suit for specific performance of the contract. Alternatively, he prayed for refund of earnest money with interest thereon. 3. The defendants contested the suit by filing written statement Exhibit 20, wherein they denied that Yeshwant had entered into an agreement for sale and that he had executed any such agreement on 8.12.1974 in favour of the plaintiff. They also denied that the joint family was heavily indebted and that they needed money for household expenses. They also denied that Yeshwant had received Rs.1,000/- as earnest money and had put the plaintiff in possession of the land. According to them, the plaintiff had illegally dispossessed Yeshwant from the suit land in the year 6 1975 and his possession over the land is unlawful. According to the defendants, they had filed Regular Civil Suit No.58 of 1981 against the plaintiff for possession of the suit land. After filing of that suit by the defendants, the plaintiff filed this suit for specific performance of the contract. They also contended that the value of the suit land was about Rs.25,000/- and the alleged consideration of Rs.4,000/- was grossly inadequate and, therefore, the agreement is sham and bogus. They also denied that the plaintiff was ready and willing to perform his part of the contract. With these contentions, the defendants prayed for dismissal of the suit. 4. Several issues were framed by the learned trial Court and after hearing evidence led by the parties, the trial Court dismissed the suit holding that the plaintiff had failed to prove any agreement for sale for consideration of Rs.4,000/- and receipt of Rs.1,000/- as earnest money. The learned trial Court also rejected the contention of the plaintiff that the joint family was heavily indebted and to clear the said dues, Yeshwant was required to sell the land. The learned trial court also came to the conclusion that the plaintiff had failed to prove that he was put in possession of the land in pursuance of the said 7 agreement and that he had repaid the dues. The learned trial Court did not accept the contention of the defendants that market value of the land was Rs.25,000/-. 5. Being aggrieved by dismissal of the suit, the plaintiff preferred Regular Civil Appeal No.435 of 1986 in the District Court at Solapur. The learned appellate Court came to the conclusion that the plaintiff had proved that Yeshwant had agreed to sell the suit property vide the agreement for sale Exhibit 40 for legal necessity and for the benefit of the joint family. The learned appellate Court also held that the plaintiff had proved that he was ready and willing to perform his part of the contract. With these findings, the learned appellate Court allowed the appeal and granted the decree for specific performance of the contract in favour of the plaintiff. In view of this, the defendants have preferred the present Second Appeal. 6. The Second Appeal was admitted on the grounds (b) to (f) raised in the Appeal Memo. The said grounds read as follows :- "b) Whether the onus is on the respondent plaintiff who is claiming specific performance of 8 this agreement of sale to prove that the transaction is for legal necessity of benefit of the joint estate of the Appellant-defendant in view of the fact that there is no evidence that the deceased Yashwant had borrowed any monies nor was there any compelling necessity to dispose of the suit properties and in total absence of any enquiry made by the plaintiff as regards the legal necessity whether the appellant defendants have discharged burden cast on him ? c) Whether the lower Appellate Court is justified in reversing the finding of the trial court on the aspect of the legal necessity merely on the basis that some government dues were to be paid by the deceased Yashwant specially when the government dues amounted to only about Rs.700/- and there was no necessity to sell off the lands for such a meagre amount ? d) In view of the fact that since Yashwant was an illiterate person and in absence of oral evidence of scribe Bandu Sakharam Pawar died on 26.5.1982 and in view of the fact that alleged agreement is not written in the manner in which agreement is generally scribed and specially in view of the 9 evidence of plaintiff’s witness Shivappa Gadda that he was not present at time of talks regarding the sale transaction, whether the alleged transaction of agreement of sale has been adequately proved ? e) Whether the possession of the suit property could at all have been delivered to the respondent in view of the provisions of Consolidated Act which require prior permission of the Competent Authority under Section 31 of the Act, as admittedly there was no such permission at the relevant time ? f) Whether any possession alleged by the plaintiff amounts to illegal possession in view of the fact that it would have been a violation of provisions of Consolidation Act and specially in view of the fact that the plaintiff has illegally obtained an entry in the onus column in 7x12 extract when he could not have been an owner merely on the basis of the agreement of sale ?" 7. Heard the learned Counsel for the parties. I have carefully perused the oral and documentary 10 evidence led by the parties before the trial Court as well as the reasons given by the Courts below and the findings given in their Judgments. 8. The learned trial Court rejected the contention of the plaintiff that Yeshwant had entered into an agreement for sale mainly on the ground that the author of the agreement for sale Exhibit 40 had already died and was not available to give evidence. The trial Court observed that Yeshwant was illiterate and therefore he was unable to read and write and therefore, he was not expected to know the contents of the agreement. The trial Court noted that as per the evidence of the plaintiff, the agreement was engrossed on the day on which the talks took place and on the same day, the agreement was executed however, the stamp papers used for the purpose of preparing the agreement for sale appear to have been purchased on 4.12.1974, while the agreement was entered into on 8.12.1974. According to the trial Court, there was no reason why Yeshwant had purchased the stamp papers on 4.12.1974 i.e. even before the talks for agreement for sale had taken place. The trial Court also noted that one of the attesting witnesses Shivappa had deposed that when he was called as witness of this contract, the talks was already completed and he was not present at the time when talks 11 took place between the plaintiff and Yeshwant. Another attesting witness Shivaji Jadhav was not examined. According to the plaintiff, he had paid an amount of Rs.1,000/- as earnest money and this was supported by Shivappa. However, the learned trial court noted that the plaintiff has not stated who had counted the currency notes on behalf of Yeshwant. The learned trial Court also noted that mutation entry No.14 at Ex.51 appears to have been taken long before the agreement for sale to show that the suit land had fallen to the share of the plaintiff on account of family partition, while it is not the case of any of the parties. In view of this, the trial Court noted that the plaintiff had got his name entered in the Record of Rights as owner of the land by dubious methods. The learned appellate Court however held that the attesting witness had fully supported the plaintiff about execution of the agreement and also about payment of Rs.1,000/- as earnest money. According to the appellate Court, even if there were some drawbacks, this evidence could not be overlooked. 9. The plaintiff deposed about the contract in detail. The attesting witness Shivappa supported the plaintiff that the agreement for sale had taken place between the plaintiff and Yeshwant and the document Exhibit 40 was executed by Yeshwant in presence of Shivappa. He also 12 put the signature on it. He also deposed that the plaintiff had paid an amount of Rs.1,000/- to Yeshwant as earnest money. Merely because the witness did not depose as to who had the notes, his evidence cannot be disbelieved. As per the evidence, author of document was not alive. Another attesting witness was not examined. When one of the attesting witness was examined and had supported the plaintiff, it was not necessary to examine another attesting witness also. 10. After going through the evidence carefully, it appears that the plaintiff had tried to create false record about his ownership over the suit property. But at the same time, it is also necessary to look to the conduct of deceased Yeshwant and his family members. According to the plaintiff, this agreement for sale took place on 8.12.1974 and under that agreement, he was put in possession of the property. It is material to note that even according to the defendants, the plaintiff was in possession of the property since 1975. Yeshwant died on 28.9.1978. Admittedly, Yeshwant did not take any steps against the plaintiff to take back possession nor he ever issued any notice to him that he had forcibly or illegally taken possession of the same. It is material to note that according to the defendants, this was the only property which Yeshwant was holding. The area of 13 the land was 1 hectare and 65 Ares i.e. about 4 acres. If the family holding only about 4 acres land, had lost possession of the same, it is surprising that Yeshwant or his family had not taken action against such illegal dispossession. It is material to note that the defendants had filed the suit for possession of that property only in 1981 only a few days before the plaintiff filed the suit for specific performance of the contract. It means for more than six years, Yeshwant and his family members kept silent. This conduct of the defendants goes against them and provides corroboration to the plea of the plaintiff that under the agreement for sale, he was put in possession. Taking into consideration this nature of evidence, I find that the agreement for sale had taken place and the plaintiff was put in possession of the land under that agreement. 11. It is material to note that when the agreement for sale had taken place under the provisions of Section 31 of the Consolidation Act, no agricultural land could be sold without prior permission from the competent authority. Inspite of this legal requirement, this agreement had taken place and possession was also delivered without such permission. It is an admitted fact that in the year 1977, the Consolidation Act was amended and the condition of prior permission for sale 14 of the land was deleted. Therefore, after that amendment, there was no need of obtaining permission for sale of the land. In view of the amendment, merely because initially he was put in possession without permission, it cannot be said that his possession continued to be illegal. 12. Inspite of this amendment, till the death of Yeshwant and for 3-1/2 years thereafter, the plaintiff had not taken any steps to get the sale deed executed. He had never issued any notice to Yeshwant nor he had taken any steps for about 3 years after his death. It appears that when he filed the suit for specific performance of contract on 3.4.1981, the plaintiff was apprehensive that suit could be beyond limitation and therefore he had tried to forge and create some false record. Firstly, in the agreement for sale, portions marked "A" & "B" appear to have been added by interpolation later on. The portion marked "A" is added immediately after the name and address of Yeshwant to show that he was manager of the joint family and portion marked "B" was interpolated in-between the last sentence of the agreement whereby the words were added to the effect that the sale deed would be executed within six months after the plaintiff would be informed in writing that the loan was repaid and receipts were obtained. In 15 his cross-examination, the plaintiff admitted that portions marked "A" & "B" in the document are written in different ink. If the document is carefully perused, it becomes clear that these portions marked "A" & "B" were written later on and they were not part of the agreement when it was executed. The portion marked "A" appears to have been added because when the agreement for sale was executed, there was no mention in the document that Yeshwant was acting as manager of the joint family. This addition was made to show that he had agreed to sell the land as Manager of the joint family and not merely in his individual capacity. If the last sentence is translated into English, it would read as follows :- "After obtaining permission of the Sub-Divisional Officer, Solapur, and on payment of balance amount of Rs.3,000/- in presence of the Sub-Registrar, the sale deed would be executed." However, in-between the words of that sentence, portion marked "B" was interpolated which would put additional condition that the sale deed was to be executed within six months after giving written intimation to the plaintiff that loan was repaid and receipts were obtained. Admittedly, Yeshwant had never repaid any of the loans which were allegedly due from him and, 16 therefore, the question of portion marked "B" for obtaining receipts would not arise. This was an attempt to bring the suit within limitation. 13. Exhibits 50 and 52 are also important documents. Exhibit 51 is a mutation entry No.14 which purports to have been taken by Talathi and it was approved by the Revenue Inspector on 21.1.1975. This mutation entry, pertaining to the suit property bearing Gat No.316, shows that on 1.9.1974, Yeshwant had informed that this land had gone to the share of Ramchandra Apparao Jadhav i.e. the plaintiff in the family partition and accordingly he was put in possession of the same. On the basis of this, Form No.8A Exh.50 showing the holdings of plaintiff Ramchandra was prepared and land Gat No.316 was shown as his property. In view of this, name of the plaintiff was recorded in the Record of Rights i.e. 7 x 12 extracts Exh. 52 as holder. If this record would show only possession of the plaintiff, that would be acceptable because he was cultivating the land. But on the basis of the agreement for sale, mutation entry could not be taken in his favour nor his name could be recorded in Form No.7 as owner of the land. At the most, an endorsement could be made in the column of other rights to show that he was in possession on the basis of the agreement for sale. However, in the 17 present case, straightaway his name was recorded as owner of the property. The most important aspect is that while according to the plaintiff, the agreement for sale had taken place on 8.12.1974, the mutation entry reveals that on 1.9.1974 i.e. almost 3 months before the agreement, Yeshwant himself had told the Talathi that in the family partition, this property had gone to the share of the plaintiff. Admittedly, the plaintiff and Yeshwant were not members of same family and the plaintiff had no concern with that family nor he was entitled to any share in the property of that family and, therefore, it is impossible to believe that Yeshwant had informed the Talathi that in the family partition, this land had gone to the share of the plaintiff. Therefore, there is reason to believe that the mutation entry and other consequential documents were got prepared by the plaintiff by joining hands with the concerned revenue officers. The learned trial court has considered this evidence. This document also shows that the plaintiff forged and prepared false documentary evidence to support his claim based on Exhibit 40 the agreement for sale. This material has been totally ignored by the learned appellate Court. 14. Having come to the conclusion that Yeshwant had, in fact, entered into an agreement for sale and inspite 18 of the prohibition under the Consolidation Act, he had put the plaintiff in possession of the land, the most important question is whether there was any legal necessity for this agreement for sale of the land. There is no dispute that the suit land was the ancestral property in the hands of Yeshwant and, therefore, it was joint family property. The defendants are the wife, sons and daughters of the deceased Yeshwant. Under the agreement for sale, only reason given for sale was that Yeshwant needed money for some family needs. In the agreement, Yeshwant indicated the responsibility to clear Government dues on the land. Besides this, no reason was given for sale of the land. It shows that he had agreed to sell the land for the consideration of Rs.4,000/-, out of which an amount of Rs.1000/- was taken as earnest money and balance amount of Rs.3,000/- was to be received in presence of the Sub-Registratr at the time of execution of the sale deed. Even though the plaintiff contended that Yeshwant was to pay the loan of the society and for that purpose he had agreed to sell his land, there is no pleading that society was going to take immediate action for recovery of the amount by auction of the land or otherwise. The evidence of the plaintiff clearly shows that he had not made any enquiry about any loan or dues against the land or about the family needs of Yeshwant. It is material to note that 19 according to the plaintiff, after the death of Yeshwant, he repaid the dues against the land. As per his evidence, he paid an amount of Rs.588/- to the Co-operative Society from which Yeshwant had taken some loan. He repaid that amount and obtained receipt Exhibit 41. That receipt indicates that principal loan was Rs.400/- and till repayment on 23.1.1980, interest, which had accrued on that loan, was Rs.238/-. Thus, the total dues, including interest upto January 1980 were only Rs.638/-. The amount of Rs.50/- being value of shares held by Yeshwant was deducted from this amount and balance amount of Rs.588/- was paid by the plaintiff. Another document relied upon by the plaintiff is the receipt Exhibit 42 showing that he had paid an amount of Rs.40/- on account of dues of tagai to the Government on 31.3.1979. There is no other evidence to show that Yeshwant or his joint family was indebted either to the Government or any bank or society or any private person. It is not clear since when the amount of Rs.40/- was due to the Government, whether that amount had become due after death of yeshwant or it was due even when he was alive or particularly when he had entered into this agreement for sale. 15. In view of this, at the most, it appears that Yeshwant had taken loan of Rs.400/- and that amount with 20 some interest thereon was due from him. There is no material on record to show that society had issued a notice to Yeshwant about repayment of that amount or that society had initiated any legal action for recovery of that amount. Further, it is difficult to understand how a small loan of Rs.400/- could be treated as sufficient legal necessity for sale of more than 4 acres land, which was the only property and source of livelihood of the joint family. According to the plaintiff, he had agreed to purchase land for Rs.4,000/-. Therefore, it can be presumed that the market value of the property was Rs.4,000/- at that time. It is common knowledge that cultivators normally take loans for purchase of seeds or fertilizers or other agricultural implements from the Co-operative Societies for the purpose of development and cultivation of the land. In view of this,