IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 311 OF 1990 1. Moreshwar alias Moredev Kalidasrao Joshi 2. Ramkrishnarao Purlikar Ramrao s/o Kalidasrao Joshi APPELLANTS VERSUS Ramesh Raghunathrao Kulkarni RESPONDENT ..... Mr. S.V. Gangapurwala, advocate for the appellants. Mr. D.R. Bhadekar, advocate for the respondent. ..... [CORAM: V.R. KINGAONKAR, J.] DATE OF JUDGEMENT RESERVED : 7th May, 2009 DATE OF JUDGEMENT PRONOUNCED : 10th June, 2009 ---------------------------------------------- JUDGEMENT : 1. This appeal arises out of concurrent judgements rendered by learned IInd Additional District Judge, Latur, in an appeal (R.C.A. No. 84/1984) and by the learned Civil Judge (J.D.), Udgir in a suit (R.C.S. No. 44/1979). 2. Subject matter of the suit is an agricultural land bearing Survey No. 63/A, admeasuring 13 acres 37 gunthas situated at village Mangrul under Udgir Tahsil. 3. The appellants are original plaintiffs. They filed the suit (R.C.S. No. 44/1979) for recovery of possession by way of partition of the suit land to the extent of half share and for declaration to the effect that the sale deed No. 570 dated 06-03-1969 executed by their deceased father, who was original defendant No. 2, in favour of the respondent i.e. original defendant No.1, is null and void and ineffective against them. 4. Original defendants No. 2 and 3 were the father and mother of the appellants/plaintiffs. Both the parents died during pendency of the appeal and their names have been deleted. 5. There is no dispute about the fact that the suit land (Survey No. 63) was recorded in name of the grandfather of the appellants as inamdar. After abolition of the inams under provisions of the Hyderabad Inams Abolition Act, 1954, the occupancy rights of the suit land were granted in their father's name. Their father deposited the occupancy price and was declared as occupant of the suit land. 6. Briefly stated, the appellants' case before the trial Court was that the suit land was a charitable inam. The suit land was recorded in the revenue record of 1954-55 as Survey No. 63/A after the process of inam abolition was completed. Their father was the occupant of the suit land on behalf of the joint Hindu family. He had become pretty old and was unable to move around. So, the appellant No.1/plaintiff No. 1, on his attaining majority, took over management of the affairs of the joint Hindu family. The joint Hindu family consisted of both the appellants and their parents. He gathered information that the suit land was transferred by the father i.e. deceased defendant No. 2 vide a registered sale-deed dated 06-03-1967 in favour of the respondent. There was no legal necessity for such transfer. The joint Hindu family was not indebted. The consideration amount shown in the sale-deed was not utilized for benefit of the joint Hindu family. The deceased defendant No. 2 had no reason, whatsoever, to alienate the suit land. The alienation was not legal and proper in view of the fact that without previous sanction of the Collector, the sale-deed could not be executed. The sale transaction is, therefore, null and void. They are entitled to claim 1/4th share each and, therefore, they demanded partition and separate possession. The respondent refused to effect the partition. Consequently, they filed suit for partition as well as for the declaration that the sale transaction is null and void and that they are not bound by the same. 7 By filing written statement (Exh-22), the respondent/original defendant No. 1 resisted the suit. He submitted that the suit is outcome of collusion between the appellants and their parents. He further alleged that the appellants gave incorrect information regarding their ages and both of them were aged about 37 years and 35 years, respectively at the time of the filing of the suit. He denied that the suit land was charitable inam. He contended that the suit land is carved out from "khalsa" (abolished) portion of the inam land. He contended that the suit land could not be regarded as ancestral property of the grandfather of the appellants/plaintiffs. His submission was that the suit land was self-acquired property of the deceased defendant No. 2 and, therefore, the appellants had no right, whatsoever, to claim any share therein. He asserted that the deceased defendant No. 2 was the Manager of the joint Hindu family and alienated the suit land for the purpose of benefit of the joint Hindu family. He pleaded that the suit land was sold in order to satisfy legal necessities of the joint Hindu family. He contended that for education of the appellants, and to meet out marriage expenditures, etc., the deceased defendant No. 2 alienated the suit land. He contended that he was minor at the relevant time and bonafidely purchased the suit land. He alleged that the sale transaction has been validated by the competent revenue authority. On these premises, he sought dismissal of the suit. 8. The parties went to trial over issues settled below Exh-34. They adduced oral and documentary evidence in support of the rival contentions. The learned Civil Judge came to the conclusion that the suit land could not be regarded as the ancestral property of the appellants and that they have no right to claim partition. The learned Civil Judge further held that the appellants had no locus standi to claim any share in as-much-as the suit land could not be regarded as the ancestral property in the hands of their father. The learned Civil Judge further held that after death of the father, they may get rights by way of succession, but during his lifetime, the suit land being original inam, they could not claim anything by way of partition. The suit was accordingly dismissed. The first Appellate Court confirmed the decree of dismissal. 9. The following substantial questions of law need consideration. (i) Whether, in the facts and circumstances of the present case, the suit land could be treated as the property of the joint Hindu family of the appellants and their father though it was recorded in name of their father and he had deposited the occupancy price, particularly, when the suit land was originally held by the grandfather of the appellants ? (ii) Whether, in the facts and circumstances of the present case, the suit for declaration that the alienation made by the deceased defendant No. 2 is null and void or otherwise not binding on the rights of the appellants is barred by limitation and, hence, the impugned judgements do not require interference ? 10. Before I proceed to embark upon consideration of the rival submissions, let it be noted that the learned Civil Judge as well as the first Appellate Court did not give any finding as regards the issues pertaining to legal necessity for the alienation of the suit land by the deceased defendant No. 2. The Courts below did not give any finding as regards issue of limitation. No finding is recorded as regards plea of the respondent in respect of his bonafide purchase of the suit land. The entire edifice of the findings of the trial Court and the first Appellate Court is based upon conclusion that the suit land could not be regarded as the ancestral property in the hands of the father of the appellants but it was his selfacquired property. 11. The oral evidence of the parties comprised of oath against oath. PW1 Moreshwar entered the witness box on behalf of the plaintiffs/appellants whereas DW Raghunathrao examined himself as the sole witness in support of the case of the respondent. He is father of the respondent and made purchase of the suit land as a guardian of the respondent. It has come on record that deceased defendant No. 2 had deposited the entire occupancy price after the inam was abolished. His version reveals that his birth date is 14-03-1945. The birth date of the appellant No. 2 is shown as 02-04-1953. The birth dates are corroborated by the recitals of the school transfer certificates (Exh-41 and Exh-35, respectively). It is the version of PW Moreshwar that his deceased father had no necessity to alienate the suit land. His version reveals that deceased defendant No. 2 was working as a school teacher at Hyderabad. He admits execution of the sale-deed (Exh-42) in favour of the respondent. 12. The revenue record purports to show that the suit land was recorded in the name of the grandfather of the appellants, namely, More Deo Joshi. A copy of the "shetwar patrak" (Exh-5) and other revenue record reveals that said More Deo Joshi was in cultivating possession of the suit land. There is ample evidence on record to show that the suit land was inherited by father of the appellants from their grandfather. Both the Courts below failed to appreciate this particular aspect regarding nature of the acquisition by the father of the appellants. Once it is found that the suit land was held by grandfather of the appellants, then it would follow that it came in the hands of their father i.e. deceased defendant NO. 2 - Kalidasrao as the ancestral property. It was a charitable inam granted in his favour. In "K.V. Sudharshan v. A. Ramakrishnappa & others" (AIR 2009 S.C. 373), the Apex Court held that where the grant was made in favour of a person for the reason that his father was the archak of the temple and that he being the eldest in the family, there was no objection expressed for granting of the said land, the inam land cannot be regarded as the individual property of the grantee. It has been observed that such grants are meant for the benefit of the family of tiller and not individually to him. The Apex Court observed : "In Nagesh Bishto Desai [(1982) 2 SCC 79], it was held that inam lands granted to a member of joint family upon abolition of inams cannot be considered as individual property of such grantee and should be considered as a joint family property available for partition. In the present case, the grant in favour of respondent No. 1 was made because his father was eldest in the family, there was no objection expressed for granting the land to him. In this view of the matter, we are of the considered opinion that the inam lands cannot be regarded as the individual property of the grantee and the High Court has committed an error by holding that since the appellant has not performed functions as archak, nor cultivated the land personally, he was not entitled to seek partition. We are not inclined to accept the submission of the learned counsel for the respondent Nos. 1 and 3 that the decision in Nagesh Bishto's case (supra) would not apply to the facts of the present case." 13. Considering the legal position enunciated above, it goes without saying that the appellants could not be non-suited only because the deceased defendant No. 2 was declared as occupant of the suit land. The suit land ought to have been held as the property of the joint Hindu family. The appellants were entitled to claim, therefore, individual shares if such right could be exercised by them in the eye of law. It was necessary, therefore, to examine the other issues. 14. The pleadings of the appellants would show that in the prayer clause of the plaint, they did not ask for declaration that the sale-deed (Exh-46) dated 06-03-1967 is invalid and inoperative against them. Still, however, such contentions are raised in the plaint. It also appears that court fees is also paid regarding the declaratory relief. They did not ask for setting aside the alienation. The clinching question is whether the suit is barred by limitation. In the present case, it is explicit that as on the date of the sale-deed dated 6th March, 1967 (Exh-46), the appellant No. 1 was major. He was 22 years old. The appellant No. 2 was, however, minor at the relevant time. Mr. Gangapurwala would submit that the suit for partition is governed by Article 110 of the Limitation Act and, therefore, the plaintiffs could have filed the suit within the period of 12 years after refusal to effect such partition by the respondent. I find it difficult to countenance the argument. The undivided share of the minor appellant No. 2 was alienated by the father. The father also alienated the undivided share of the appellant No. 1 who was major at that time. In such a situation, Article 60 of the Limitation Act would apply. Where alienation made by the father is sought to be set aside, then the suit may be governed by Article 109. However, in the present case, no specific prayer is made in the pleadings of the appellants for setting aside of the alienation. Faced with this difficulty, Mr. Gangapurwala seeks to rely on "Corporation of the City of Bangalore v. M. Papaiah and another" (AIR 1989 S.C. 1809). The Apex Court held that the suit could not have been dismissed where perpetual injunction was sought though relief of declaration of title was not specifically mentioned in the relief portion of the plaint. This authority does not cover fact situation obtained in the present case. It is well settled that in case of suit for injunction simplicitor, the question of title is of incidental nature. So, there is no necessity to seek declaration of title when the main relief claimed in the suit is for injunction. 15. The appellants did not claim relief of cancellation of the sale-deed (Exh-46). They only stated in the body of the plaint that the sale-deeds are not binding on them. This Court in "Kisan s/o Ramji Khandare v. Kausalyabai w/o Gangaram Korde and others" 2007 (4) Mh.L.J. 43, held that the suit for possession without a specific claim for setting aside the sale-deed is not maintainable. The Apex Court in "Nagappan v. Ammasai Gounder and others" (2004) 13 SCC 480 held that a sale-deed effected without obtaining permission of the Court under section 8 (2) of the Hindu Minority and Guardianship Act, 1956, is voidable at the instance of the minor plaintiffs and the plaintiffs are required to get the alienation set aside if they want to avoid the transfer and recover property from purchaser. It has been held that if prayer for setting aside the alienation is not made, then the suit seeking possession would not be maintainable. In the present case too, there is no prayer seeking setting aside the alienation made by the deceased defendant No. 2 (father). In the absence of such a prayer in the plaint, mere averment in the plaint that the sale-deed is not binding on the appellants will not be sufficient. Considering the legal position indicated above, the relief for setting aside the alienation cannot be introduced now, even assuming that Article 109 of the Limitation Act is attracted. For, such a relief is now barred by limitation. 16. For the reasons stated hereinabove, though the dismissal of the suit for the reasons recorded by the Courts below is not legal and proper, yet, the dismissal will have to be upheld since the suit is not properly framed and is barred by limitation. In this view of the matter, the appeal fails and is accordingly dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa311-90