1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 306 OF 1990 1. Gopichand s/o Dagduba More age 40 years, occup. agril. r/of Kari Tq. M'gaon, Dist. Beed. 2. Mahadu s/o Hanwata Shindge, age 40 years, occupation & resident of as above. 3. Dattatraya s/o Eknath More, age 8 years, minor, deceased by Legal representatives:- 3-A. Eknath s/o Bajirao More, (since deceased through his legal representatives):- 3A-1. Sakharam s/o Eknath More, age 65 years, occup. Agril. r/of Kari, Taluka Dharur, District Beed. 3A-2. Pralhad s/o Eknath More, age 58 years, occup. Agril. r/of as above. 3A-3. Anant s/o Eknath More, age 50 years, occup. Agril. r/of as above. 3A-4. Sitabai w/o Baburao Thombre, age 55 years, occupation : household, r/of Dindrud, Tq. Majalgaon, District Beed. 3A-5. Gayabai w/of Balasaheb Misal, age 52 years, occup. Household, r/of Nagapur, Taluka Parali, District Beed. 3A-6. Haribai w/o Trimbak Wagh, Appellants/orig age 47 years, occup.household, Defendants No.1 r/of Pokharni, Taluka Gangakhed, Appellants/orig. District Parbhani. 3 and L.Rs. of Deft. No.3. 2 versus 1. Nivrutti s/o Rambhau Mali age 22 years, occupation: and resident of as above. 2. Sopan s/o Rambhau Mali age 20 years, occup. and r/o as above. 3. Indrabai w/o Rambhau Mali, age 44 years, occup. and r/of as above. 4. Kishan s/o Rambhau Mali, Respondents/orig age 25 years, occup. and pltffs. No.1 to 3 r/of as above. and deft. No. 4 respectively. ----------------------------------------------------------- Shri R.B.Deshmukh, Advocate, holding for Shri A.R. Kale Advocate for the appellants. Shri K.M. Babhulgaonkar, Advocate, holding for Shri R.S.Deshmukh, Advocate for Respondent Nos. 1 and 2. Appeal abated against Respondent No.3 vide Registrar's order dated 22.09.1993. Respondent No.4 served. ----------------------------------------------------------- Coram : P.R. Borkar, J. Judgment reserved on : 06.04.2010 Judgment pronounced on : 09.04.2010 Judgment 01. This second appeal is filed by original Defendant Nos. 1 to 3, being aggrieved by the judgment and decree passed by III Additional District Judge, Beed in Regular Civil Appeal No. 172 of 1981 decided on 31.7.1990 thereby reversing 3 the judgment of dismissal of suit bearing R.C.S. No.53 of 1977 decided on 24.8.1981 by Civil Judge, Junior Division, Majalgaon and declaring that the alienation by original Defendant No.4 (Respondent No.4) in favour of present appellant Nos. 1 and 2 and subsequent alienation by appellant No. 2 in favour of appellant No. 3 (who all are original defendants Nos. 1 to 3) are not binding on the plaintiffs (respondent Nos. 1 to 3) to the extent of their shares and further declaring that each of plaintiffs (respondent Nos. 1 to 3) had 1/4th share. 02. Briefly stated, the facts giving rising to this second appeal are as below; One Rambhau was the original owner of lands bearing survey Nos. 121 and 123 situated at village Kari Taluka Majalgaon. Rambhau expired about 25 years prior to filing of the suit. He was survived by his wife Indrabai(respondent No.3- plaintiff No.3 since deceased, three sons Nivrutti, Sopan and Kishan (Respondent Nos. 1, 2 4 and 4.). On 3.9.1971, Respondent No.4 Kisan, who was the eldest son of Rambhau, executed sale deed in favour of present appellant No.1 Gopichand (defendant No.1) in respect of Survey No.121. On 26.10.1971, respondent No.4 Kisan and appellant No.1 Gopichand executed joint sale deed in favour of appellant No.2 Mahadu (defendant No.2) in respect of both suit properties. On 14.2.1974, appellant No.2 Mahadu sold suit lands to appellant No. 3 Dattatraya (defendant No.3). On 2.4.1977, present respondent Nos. 1 to 3 filed suit alleging that it was their mother-Respondent No.3 Indrabai who was looking after the lands after death of her husband Rambhau. After Respondent No.4 attained majority, his name was mutated in the record of rights of the suit land. 03. It is the case of the plaintiffs that defendant No.4 Kisan (Respondent No.4) was illiterate and minor. In 1972-73 there was famine, but respondent No.4 was not in need of money and in spite of that, the sale-deed was obtained from him. In paragraph 5 of the plaint, 5 it is stated that defendant No.4 was addicted to various vices and was debauchrous; and without legal necessity he disposed of suit lands and therefore those transactions are not on binding on plaintiffs-respondents No.1 to 3. So, the suit was filed for partition and declaration that the sale deed executed by Defendant No.4-respondent No.4 is not binding on plaintiffs. 04. Appellants-original defendant Nos. 1 to 3 filed their written statement at Exhibit 30 and denied that Respondent No.4, who was the eldest son of Rambhau, was addicted to any vices or that the sale by him was not for legal necessity. It is stated that after death of Rambhau, name of his eldest son Kisan was entered in the revenue record as Karta of the family. Rambhau died two years before preparation of Khasra Patrak and as per Pahani Patrak, name of Respondent No.4 was entered in Khasra Patrak, by talathi. Respondent No.3 (pltff.No.3) could not have been the manager of the family as she is a lady. The ages of plaintiff Nos.1 to 3 (Respondents 1 to 3) were respectively 6 30, 27 and 60 years and that of Defendant No.4- Respondent No. 4 was 33 years when the written statement was filed on 6.6.1978. However, in the plaint ages of plaintiffs and defendant No. 4 (Respondent Nos. 1 to 4) were wrongly and falsely shown to be 22,20, 55 and 25 years respectively. It is further stated that until respondent No. 4 became major, respondent No. 3 Indrabai was looking after family property, but being a lady, she was not able to cultivate land properlyand respondents were not able to earn sufficient income. As a result, their financial condition was deteriorating. They were unable to meet even daily expenses and therefore they were indebted. The suit lands had become fallow for want of cultivation and, therefore, Respondent no.4 sold the properties with consent of Respondent Nos. 1 to 3 for improvement of lands and for meeting daily expenses and for satisfying loans. Amount of Rs.1000/= was paid and survey No.121/AA admeasuring 6 acres 35 gunthas was sold by sale deed executed on 3.1.1971 It is also contended that since the land was fallow and no income was 7 received from it, no one was ready to purchase the land. It is also stated that Respondent Nos.1 and 2 have put their respective thumb impression and signature on the sale deed. There are other witnesses on the sale deed and, therefore, respondent Nos. 1 and 2 are estopped from challenging legality and validity of the sale as they have consented to the sale. The suit by plaintiffs is false. The sale was not for satisfying any vices of Respondent No.4, but for legal necessity. 05. The trial court held that the sale was for legal necessity and dismissed the suit, whereas the first appellate court came to a conclusion that the sale was not for legal necessity. 06. This second appeal is admitted on following substantial questions of law. (1) Whether the conclusion regarding absence of legal necessity is a reasonable conclusion based on evidence 8 on record ? (2) Whether the signatures of plaintiff Nos. 1 and 2 (Respondent Nos.1 and 2) on the sale deed dated 26.10.1971 (Exh.34) amounts to representation and as such estoppel against Respondent Nos. 1 and 2. (3) Whether the suit is barred by limitation on the ground that the ages of Respondent Nos. 1 and 2 given in the plaint are wrong and on that count the suit is barred by limitation ? 07. Shri R.B.Deshmukh, learned Counsel for the appellants argued that the first appellate court, ignored other circumstances and evidence on record, made much capital of the fact that Defendant Nos. 1 and 2 did not enter into the witness box and thus they did not prove the legal necessity. Thus, it is argued that even in the plaint it is specifically mentioned that there was famine in the year 1972-73. In the sale deed (Exh. 34) executed by Defendant No.4 (Resp. No.4), it is specifically mentioned that the sale deed was being executed for development of land and for household expenses. It is also argued that in this case, though Appellant Nos. 1 and 2 have not entered into witness box, Eknath More-father of 9 appellant No. 3 (ori.deft.No.3)-is examined as DW-1, so also attesting witness is examined and even the plaint indicates that all these persons were from the same village and therefore they would know the difficulties of each other and so their evidence cannot be brushed aside lightly. DW-1 Eknath More is examined at Exh.37. He deposed that Respondent No.4 Kishan sold survey No.121 to Defendant No. 1 for Rs.1000/- in order to maintain his family. Kishan also gave possession of the property to defendant No.1. After two months, Defendant Nos. 1 and 4 sold jointly both the suit lands to Defendant No.2. Defendant No. 4 was in need of money to maintain his family. He was not able to cultivate the land. DW-1 Eknath is an attesting witness. He specifically stated that he was not knowing if Defendant no.4 was indebted, but he had heard about it. 08. DW-2 Kishan Deshmukh examined at Exhibit 39 stated that the family of the plaintiffs was poor. In order to maintain the family and clear 10 up small debts, Respondent No.4, who was the Karta of the family had sold the suit land to appellant No.1. He has attested the sale deed. According to this witness, the land has become fallow due to negligence. The witness has also stated that Respondents Nos. 1 and 2 (pltffs. No. 1 and 2) had come to Kaij along with Respondent No.4 at the time of execution of the sale deed and they had also attested the sale deed (Exh.34). This witness has his own lands on northern and southern sides of the suit land. He admitted that he had not enquired if Respondent No. 4 was really indebted. He did not ask the names of creditors of defendant No.4. 09. The trial court has observed that witness Kishan (DW-2) has also stated about the sale deed dated 3.9.1971 which was hardly 1-1/2 months prior to the sale deed dated 26.10.1971 (Exh.34). Kishan admitted that there was some transaction between him and Respondent No. 4 in respect of residential house of Respondent No.4. He had obtained sale deed from Respondent No.4 and again re-conveyed 11 the same to Respondent no.4. So, the trial court observed that Kishan is a witness who can be believed and that he may be aware of the family difficulties of the respondents. 10. So far as thumb impression and signature of Respondent Nos.1 and 2(plaintiffs No.1 and 2) on the sale deed (Exh.34) are concerned, PW-1 Sopan was asked about the same and he stated in paragraph 6 of his deposition that on sale deed (Exh.34) he has signed as witness. He also stated that he along with respondent Nos. 1 and 4 had gone for execution of sale deed to Kaij. He further stated that at that time, his signature was taken on a blank paper by giving him threats. Obviously, this must be afterthought since this is not stated in the plaint or in the examination in chief. In examination-in-chief, PW-1 Sopan has stated that Respondent No.4 has sold both the suit lands to the appellants due to his vices and they were in possession of the same. But, in that case, respondent Nos. 1 and 2 would not accompany respondent No. 4 to Kaij for execution of sale and 12 would have opposed sale by respondent No.4 or at least would have refused to sign/put thumb impression on the sale deed. Witness also referred to signature of Rajaram as signature of attesting witness on the sale-deed and said that Rajaram was from relatives of Defendant No.1, but he did not give any explanation about his signature in examination-in-chief in spite of specific averment in the written statement. 11. In written statement, although it is specifically stated that ages of the plaintiffs as given in the plaint are false and even though it is appearing from the evidence that the sale deed executed by Respondent No. 4 was also signed/attested by Respondent Nos. 1 and 2, no attempt was made to lead any evidence to show that the ages of respondent Nos. 1 and 2 as given in the plaint are true. If we are to believe that on 2.4.1977 when the plaint was presented, Respondent No.4 Kishan was 25 years of age, then on the date of sale deed in October 1971, he would have been 20 years of age, but in the sale deed his age is 13 shown to be 27 years. So, if on 26.10.1971, Respondent No. 4 Kisan was 27 years of age, then in 1977 when the suit was filed, he must be aged about 33 years as mentioned in the written statement paragraph 4. That clearly shows that the plaintiffs have not disclosed their true ages in the suit filed by them. If we are to go by the ages given in the plaint, then respondent No. 1 was younger to Respondent No.4 Kisan by three years; and respondent No.2 Sopan as younger to Respondent No.1 Nivrutti by two years or he was younger to Respondent No. 4 Kisan by five years. In that case, Respondent Nos 1 and 2 both were major when the alleged sale deed was executed. We find corroboration to this from the evidence of PW-2 Pandurang who is witness of the respondents- plaintiffs. 12. PW-2 Pandurang in his cross examination has stated that Respondent No.4 was elder to plaintiff No.1 by 5 to 7 years and plaintiff No. 2 (respondent No.2) was younger by 2 to 3 years to plaintiff No.1 (Respondent No.1). Of course, he 14 is a villager and we would believe the difference of ages given in the plaint. If Respondent Nos. 1 and 2 (original plaintiffs No. 1 and 2) are held to be major when the alleged sale deed had taken place then they can very well be held to have consented to the sale deed and now they cannot plead that the sale deed is not binding on them. The District Court committed an error in not appreciating that Respondent Nos. 1 and 2 have signed on the sale deed and they cannot claim ignorance about the contents of the same. They were major persons. They had deliberately given their false ages in the plaint with a view to make the court believe that the suit was within limitation. The District Court in paragraph 21 of its judgment observed that there is nothing on record to show that the sale deed was read over to respondent Nos. 1 and 2 who had attested the same. However, attestation itself means that either the attesting witnesses have witnessed the executant executing the document or that they have obtained acknowledgment of execution of the document from its author. The evidence of PW-1 15 Sopan shows that he had gone with Respondent Nos.2 and 4 for execution of the sale deed. 13. Shri R.B.Deshmukh, learned counsel for the appellants relied upon the case of K.C.Kapoor vs. Smt. Radhika devi AIR 1981 SC 2128 and submitted that in the present case Respondent Nos. 1 and 2 have signed the sale deed and now they cannot turn around and say that they had no knowledge about the sale deed or its contents. It is the contention of appellants-defendants in their written statement that the family of plaintiffs was indebted; there was no income from the land; the land had remained fallow; plaintiffs had no money even to meet family expenses and, therefore, the property was sold. In the sale deed also it is mentioned that the sale was being effected for maintenance of the family and for development of land. There is nothing on record to indicate that the plaintiffs' family had no land other than the suit lands. In the circumstances, in my opinion, having signed the document of sale, respondents No.1 and 2 cannot 16 now challenge the same. 14. In this case, it is argued by learned Advocate Shri R.B.Deshmukh on behalf of the appellants-defendants that as per mandate of Order VII Rule 6 of the Code of Civil Procedure, 1908, the plaintiffs ought to have averred in the plaint how the suit is within limitation if they are claiming any exemption. I reproduce Order VII Rule 6 for ready reference: "Order VII. Rule 6. Grounds of exemption from limitation law.- Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the grounds upon which exemption from such law is claimed. 15. In this case, the plaintiffs have not stated in the plaint how the suit filed by them is within limitation. Obviously, considering ages of respondent Nos. 1 and 2 mentioned in the cause title of the plaint, the question of limitation was not raised. So far as plaintiffs No. 1 and 2 are concerned, they were shown to be aged 22 and 17 20 years respectively. So far as Plaintiff No. 3 is concerned, her suit was clearly time barred. The plaint does not disclose why she did not challenge the sale deed within three years of its execution. It is true that in this case the appellants did not raise issue of limitation in their written statement. However, in paragraph 12 of its judgment, the trial court specifically came to the conclusion that in the plaint, plaintiffs No. 1 and 2 had given their ages falsely and shown themselves to be less aged and while filing the suit they were well aware of their attestation on sale deed Exhibit 34 and have not explained the circumstances in which they attested the said document and this conduct of the plaintiffs speaks volume against them. 16. Learned Advocate Shri R.B.Deshmukh for the appellants relied upon ratio laid down by this court in Second Appeal No.162 of 1989 decided on 28.1.2010 (Coram : A.V.Nirgude, J.) After reproducing section 3 of the Limitation Act in paragraph 5, in paragraph 6 following observations 18 are made. "6. It is clear from the above provisions that, even though defendant fails to take up specific defence based on limitation, it is duty of the Court to frame such issue; if it is found necessary. The question is whether such issue ought to have been framed at the trial stage or at least at first appeal stage ? As said above, the facts are so blatant that any one, who would read the plaint, would question the maintainability of such suit for want of limitation. " 17. The facts of the case cited are similar to be similar to the one before this. In the case cited, alienation by father was challenged by sons and on the face of the plaint, the sons were major when the alienation was effected and the same was not challenged within three years. It is held that under article 58 of the Limitation Act, the suit was time barred. 18. In the present case, one thing is very clear that the alienation on 26.10.1971 was being challenged by filing suit on 2.4.1977. When the alienation was made as stated earlier, all the 19 plaintiffs were major and they ought to have filed suit within three years. Moreover, plaintiffs No.1 and 2 (Respondent Nos.1 and 2) have consented to the sale. In the circumstances, the District Court committed error in allowing the appeal. 19. Considering the facts and circumstances, so also evidence on record, Second Appeal is allowed. The judgment and decree passed by the District Court is set aside and that of the trial court is restored. The suit stands dismissed. Appeal is accordingly disposed of. pnd/SA306.90 (P.R.BORKAR, J.)