Case: Prabhakar Gones Prabhu Navelkar through L.Rs. and Ors Vs. Saradchandra Suria Prabhu Navelkar through L.Rs. and Ors

our view has resulted in a decision which is otherwise just. In Taherakhatoon (D) by LRs v. Salambin Mohammad 1999(2) SCC 635 , it has been held that even after the grant of special leave in an appeal this Court is not bound to interfere. This Court inter alia held as follows: "15. It is now well settled that though special leave is granted, the iscretionary power which vested in the Court at the stage of the special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. It was so laid down by a Constitution Bench of five learned Judges of this Court in Pritam Singh v. State [AIR 1950 SC 169 : 1950 SCR 453 ]. In that case, it was argued for the appellant that once special leave was granted and the matter was registered as an appeal, the case should be disposed of on merits on all points and that the discretionary power available at the stage of grant of special leave was not available when the appeal was being heard on merits. 16. This Court rejected the said contention and referred to the following dicta of the Privy Council in Ibrahim v. R. [AIR 1914 PC 155] :?[T]he Board had repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Reil case [Riel v. R., (1885) 10 AC 675 : 58 LJPC 28] ; Deeming, ex p [1892 AC 422 : 8 TLR 577]. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it.? This Court observed that the rule laid down by the Privy Council is based on sound principle and only those points could be urged at the final hearing of the appeal which were fit to be urged at the preliminary stage when leave to appeal was asked for and it would be illogical to adopt different standards at two different stages of the same case. This Court observed (para 8) that, so far as Article 136 was concerned, it was to be noted firstly that it was very general and was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the Court was concerned was applicable to all types of cases. The power under Article 136 according to this Court,?is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases?. (emphasis supplied) This Court emphasised:?The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal in those cases where special circumstances are shown to exist.? This Court then concluded:?Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.? 20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error — still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion... ? (emphasis supplied) In this case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]37. Parties cannot go beyond their pleadings, runs another argument on behalf of the respondents. This is in context of the argument of the appellant that Shantibai (wife of Suriaji) continued to hold the property in trust for Gones.As we have noticed in the beginning of our judgment, property ‘M? consisted of about 90 hectares whereas property ‘B? consisted of about 31 hectares. By the Gift Deed of 1913, the grandfather of Suriaji and Gones had gifted one-half right in property ‘M? to both Suriaji and Gones. Thereafter, the one-half share in property ‘M? and the whole of property ‘B? came to vest with the aunt (father?s sister) of Suriaji and Gones. It is in 1915 that the aunt along with her husband executed the sale deed conveying the rights to Suriaji and to the other branch, viz., Vitol. Thereafter, in 1919, the deed of dissolution, which is the sheet anchor of the appellant?s case came to be executed. It is thereunder that acknowledgment of title, as contended by the appellants, of Gones over the property, which his subject matter of the sale in favour of Suriaji, is made.Still further, in 1925, Suriaji along with wife, executed a Gift Deed. Under the same, the donors have gifted the rights obtained by Suriaji under the Gift Deed executed in his favour under the document of 1913 by his grandfather. There is no dispute that in 1937 the rights of Gones as acquired under the Gift Deed executed in his favour by his grandfather in 1913 and also the property acquired by him under the Gift Deed by his brother and sister-in-law in 1925 came to be sold in auction in execution of decree obtained against Gones. The present suit is filed based on the sale deed executed by the paternal aunt of Gones and her husband expressly in favour of Suriaji and his wife and the otherentire case of appellants is based on right in the plaint schedule property, based in turn on the right which Gones acquired under the sale deed dated 17.1.1915. Under the sale deed dated 17.1.1915, 1/4 th share of property ‘B? and 1/2 right in property ‘M? came to be conveyed to Suriaji, the other part being conveyed to the Vitol branch. It is undisputed that Gones does not figure as a transferee in the sale deed. There is nothing left to even construe as there is not even a whisper of the name of Gones in the sale deed dated 17.1.1915. It is a case of outright sale of share of property as we have mentioned in favour of the named transferees. It is 4 years thereafter however that document dated 21.1.1919 styled as a dissolution deed is executed which contains the controversial clause which we have already sethave already referred to the law laid down by this Court in regard to Order XLI Rule 22 of the Code of Civil Procedure. In an appeal if the respondent does not want any change in the decree of the lower court, it is not necessary for him to file an appeal or cross objection to merely support the decree already passed without any variation in the decree but by challenging the correctness of the findings in the judgment. The appellants are correct in contending that if a challenge is made to a decree by a respondent then necessarily the respondent must file either an appeal or a cross objection. In this case however, the suit filed by the appellants stood dismissed by the first appellate court. The two appeals which were carried by the appellant before the High Court were dismissed. Resultantly, the decree of the first appellate Court dismissing the suit came to be confirmed. Before this Court the respondents are not seeking to challenge the decree. They do not wish any variation of the decree. They seek to have the decree confirmed. They support the decree entirely. The decree is one dismissing the suit. They are only seeking to support the said decree by challenging one of the findings namely the finding relating to title. For doing the same, it is not necessary for them to file an appeal or cross objection as by having the finding overturned in regard to title they are not seeking to have a different decree passed in any manner. Hence we reject the contention of the appellants that it is not open to the respondents to contest the finding on title without filing cross57. We have set out two broad findings by the High Court. The first relates to the question whether Gones had acquired any right. The second part relates to whether he has lost the right. The High court finds that Gones indeed had a right but he has lost it and the right should have been enforced latest byto the first part namely whether Gones had a right the most important part is finding that Suriaji admitted that 1/8 of ‘M? and 1/4 of ‘B? was purchased by him for Gones.The case of the appellants appears to be that when 1/2 of the price was paid by Gones in terms of the acknowledgement contained in the document of 1919, all that remained to be paid was 1000 rupees for reimbursing Suriaji having paid the amount to Laxmi towards dowry. There can be no dispute that the sale deed does not show Gones as adocument dated 21.1.2019 is described as a deed of declaration, fixation of balance of accounts, payment and obligation. Parties of the first part are described as Suriaji and his wife Shantibai aged 15 and minor aged 16. Gones is shown as aged 14 years assisted by his mother. Parties on the second part are described as Laxmi, widow of vitol (the other party) and her sons etc. The deed appears to provide for distribution of joint family and for settlement of accounts of the family which lasted only 3 years. It is inter alia stated further that the parties of the first part owed to the parties to the second part a sum of Rs.2000/-. It is inter alia stated therein that parties of the first part Suriaji stated that the purchase made by him by the sale deed dated 17.11.1915 was made for himself and for the party of the first part Gones, his brother and that he has paid for half of the price of the said purchase, therefore he undertakes alongwith the said Shantibai to transfer in the name of said Gones the half of the properties purchased in his name by the aforesaid deed at any time he may desire, to have it transferred and on the occasion of this transfer, the said Gones will have to indemnify him with half of the amount which has now been paid to the party of the second part Laxmi from the money of the dowry of his wife. It is the aforesaid provision which is at the heart of the controversy. We are to unravel its true scope and import.There is no denial of the averment of Gones having paid the consideration. We would think that it would be a safe conclusion to reach that consideration was partly paid for at least on behalf of Gones. Case of the respondents that no part of the consideration moved from or on behalf of Gones in regard to the sale deed dated 17.11.1915 cannot beview we have taken finds reinforcement from the words that follow immediately in the sale deed 21.1.1919. It is stated immediately after stating that he has paid for half of the price for the said purchase, therefore, he has undertaken alongwith the said Shantibai to transfer to Gones, the half of the properties purchased in his name etc. In this behalf the word being in conjunction with his wife Shantibai can only refer to Suriaji. Therefore, the interpretation would be assale deed dated 17.11.1915 was executed in respect of 1/4 th of property ‘M? and 1/2 of property ‘B? in favour of Suriaji. Another 1/4 th of property ‘M? and other half of property ‘B? was sold under the sale deed to the other branch represented by Laxmi Bai. It is obvious that under the sale deed for his share, Gones would have made part of the payment. What is acknowledged in the dissolution deed is that 1/2 of the said consideration emanated fromquestion is what is the nature of theright, if any, which is acquired by Gones on the basis of the undertaking recorded in the document dated 21.1.1919 that Suriaji and his wife Shantibai will transfer in the name of Gones the half of the properties purchased in his name at any time he may desire to have it transferred and further that on the occasion of the transfer Gones will have to indemnify him with half the amount which has been paid the party of the second part, namely, Laxmi bai who represented the other branch in Navalkar family. The undertaking to transfer in the name of Gones, the half of the property is according to the appellants only transfer of mutation. On the other hand, according to the respondents it involved a transfer accompanied by registration. In conjunction with the same, the further question is of the meaning of the words ?that on the said occasion? that is when the transfer is effected Gones will have to indemnify the Suriaji with half the amount which stood paid to Laxmi from the dowry amount of Suriaji?s Wife. We cannot be oblivious to the fact that a sum of Rs.1000/- was a considerable sum of money in 1919. It is not to be confused with Rs.1000/- as on the date of the suit much less as of today. It was not meant to be a empty formality. We are unable to subscribe to the reasoning of the High Court when it holds that it is not a condition precedent. The payment was to coincide with transfer. No doubt it could have been made prior to demanding the transfer. We cannot understand the clause as meaning as either it need not be paid or the payment could bedo not see any such case at all. When the appellants are seeking the right solely based on the recital in the deed of dissolution dated 21.1.1919 we fail to see how when complying with the condition for seeking transfer it could be maintained by them that they are entitled without anything more to rights as co-owners. In fact, there is no case that the appellants have paid or offered the amount to the successors-in- interest of Suriaji. As already noticed, PW 1 goes to the extent of deposing that the ‘obligation to reimburse Suriaji did not devolve upon the heirs of Gones?. Thus the suit is filed with neither Gones nor even the appellants paying or even offering to pay the sum mentioned in the deed of 1919.We would also have a look at it from another perspective. In the plaint, at para ‘9?, what is stated is in the year 1915, Piru and her husband sold the property by deed of sale dated 17.11.1915 in equal parts to Suriaji and to Laxmi. Thereafter, in para ‘11?, Suriaji in the deed dated 21.01.1919 is stated to have expressly admitted that the purchase of 1/4 th of ?M? and 1/2 of ?B? made under sale deed dated 17.11.1915, was for himself and his younger brother and who paid its price at the time of pur- chase and therefore, it was undertaken to transfer the registration, upon Suriaji being reimbursed by Gones in the payment ofis admitted that the sale deed is in favour of Suriaji. It is nearly 4 years thereafter in the docu- ment of 1919 that the admission by Suriaji about 1/2 price, being paid and about the undertaking is setup. There is no case for the appellants in the plaint that Suriaji was benamidar or a name lender. The principle of resulting trust underlies Section 82 of the Trust Act. There can be no doubt that Trust Act was inapplicable to Goa in 1915 and in 1919 as Goa was not part of British India. Certain tests are propounded in determining whether a transaction is benami which have to be fulfilled. No doubt, the most important test is who provided consideration. There is no pleading in the plaint about the transac- tion being a benami transaction. If benami was rec- ognized in Goa under Portuguese rule then it could be said that Gones would become the owner provided the transaction is treated as a benami transaction. But there is no case of benami set up.The law of trust, as such, did not apply to Goa under the Portuguese Rule. At least the appellants have no case that it did apply. They have not produced anything to show that it applied. If the Trust Act which, undoubtedly, did not apply to Goa in 1915 or even in 1919 and in Section 82 thereof, lay embedded the principle of benami or resulting trust, how can appellant claim that Gones became entitled as owner under the document of 1915 read with the document of 1919. If it was reduced to a contract executory in nature, to perform an obligation upon which alone the title would vest, it was subject to the condition precedent of payment of Rs. 1000/- by Gones. Even according to the appellants obligation to pay Rs. 1000/-, did not pass to them. This conduct of the appellant?s, in seeking to derive rights under the document of 1919, even though, their predecessor in interest has failed either deliberately or otherwise to perform his obligation during his entire life time cannot be approvedtransferee in name or Benamidar would hold the property in trust for the person who has actually provided consideration. There is, we reiterate no case based on benami ever set up by thewe would come to the conclusion that by sale deed of 1915 and the settlement deed of 1919 it may not be safe to conclude that Gones acquired title as such in the plaint schedule property. In the light of this, we need not render any finding as regards adverse possession or ouster.It is worthwhile to note that after dissolution deed dated 21.1.1919 there took place, another development in the form of execution of gift deed by Suriaji in the year 1925. The case which the defendants had set up about gift deed include the allegation which tends to question the circumstances surrounding the execution of the gift deed. They have a case also that the gift deed was executed pursuant to the acknowledgment in the 1919 document. Before this Court respondents would seek to take advantage of it inasmuch as the contention is taken that the gift deed must be treated as executed in fulfilment of acknowledgment in the dissolution deed dated 21.1.1919. Under the gift deed of 1925 Suriaji has gifted Gones his ¼ right in property ‘M? which he acquired under the gift deed executed by his grandfather in the year 1913. Be it remembered that in 1913, the grandfather has also executed gift of another ¼ of property ‘M? in favour of Gones. Property ‘M? consisted of roughly 90 hectares. Thus, under both the gift deeds together 1/2 of property ‘M? or 45 hectares approximately came to be vested with Gones in the year 1925. Suriaji passed away in the year 1925 after the gift. It is thereafter that inventory proceedings took place in regard to the properties of Suriaji under the Portuguese Civil Code. Gones stood as vogal apparently on behalf of the minor children of Suriaji under the Portugues Civil Code. The documentary evidence is found by the first appellate Court to establish that ¼ of property ‘M? and ½ of property ‘B? stood allotted in the name of Shantibai, the widow of the Suriaji. This is borne out by the inscription which we have referred to of the year 1937. It is here that the question arises as to correctness of the findings that having participated in the inventory proceedings which culminated in the property being allotted to the Shantibai, the rights of Gones stood extinguished.We will proceed on the basis that interpretation of clause of the dissolution deed leads us to hold that Gones having paid ½ of the purchase price what is contemplated by the undertaking was that Suriaji and his wife Shantibai were to transfer the mutation. Gones acquired title in the property. We proceed further on the basis that payment of Rs.1000/- was not a condition precedent as found by the HighHigh Court finds that having acquiesced in the inventory proceedings Gones and his heirs are estopped from opening of succession after about two decades. It is further found that whatever right and interest may have survived with Gones was lost as he did not challenge the allotment of property to the Shantibai. The High court has therefore employed the principle of acquiescence, estoppel and loss of right.Therefore, we would hold that a when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view is Mulchand (supra) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppel is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law.In the facts of this case there is an added feature. Under the document dated 21.1.1919 Gones was to make a reimbursement of Rs.1000/- as it turns out being half the amount paid by his brother Suriaji from out of the proceeds of his wife?s dowry to Laxmi who represented the other branch. Something remained to be done on the part of Gones and thereupon it was for Suriaji to transfer. In that sense it could be described as an executory contract. Even proceeding on the basis that it is understood that Gones has 1/2 right of over the rights, transferred in favour of Suriaji under the sale deed dated 17.11.1915, the question arises what is the effect of the inventory proceedings of which Gones was certainly aware of and admittedly he was a vogal.In regard to the inventory proceedings, no doubt, it is true that the inventory proceedings per se are not produced. The plea relating to inventory proceedings are undoubtedly taken by the contesting respondents. It may be true that burden of adducing evidence relating to inventory proceeding was on the contesting defendants but it is equally true that they have produced final inscription which manifest the culmination of the inventory proceedings and shows that plaint schedule property stood allotted to Shantibai.It is true that under the sale deed dated 17.11.1915 Suriaji was a transferee of 1/4 share of property ‘M? and 1/2 in property ‘B?. When Suriaji died, the inventory proceedings was to be held only in respect of the properties left behind by him.In regard to the aforesaid contentions when we are dealing with the case with the perspective of acquiescence, abandonment and estoppel we come to the following conclusions. Gones was himself a major, by the time inventory proceedings commenced and culminated. He was aware of his rights under the sale deed of 1915 as declared in the dissolution deed of 1919. We must proceed on the basis that the inventory proceedings culminated with ¼ right in ‘M? and 1/2 in ‘B? being allotted to Shantibai. As to how the said property came to be so allotted despite the settlement deed of 1919 which according to the appellants carved out rights in favour of Gones and towards ½ of the properties ‘B? to the appellants is a matter which this Court is unable to embark upon but it is clear that Shantibai stood allotted the property in tune with the sale deed.What is important is nothing is produced by the appellants to show that Gones protested in any manner either during or at the end of proceedings. Nothing is produced to show that allotment to Shantibai was ever challenged in any manner by Gones. In other words, Gones by his conduct must be treated as having held that he has accepted that the property which was allotted in the inventory proceedings will belong to Shantibai. Since 1937 when the said allotment took place for all purpose, the property stood acknowledged by Gones as property allotted to Shantibai. We are unable to accept the case that it would amount to fraud. There is no case of fraud as such set up by the appellants. There is a definite case for the respondents that there is no concept of trust in the Portuguese law and that there is no distinction between legal and equitable estate. We have taken the view that the concept of trust may be inapplicable.There may be a plausible reason as to why it all happened. After 1919 as we have already noticed Suriaji executed a deed of his entire ¼ right which he acquired under the gift from his grandfather in favour of Gones which translated to roughly 22.5 hectares. There is no case that the said gift was not accepted by Gones. In fact, the property covered by said gift and also the property gifted by the grandfather to Gones with another 1/ 4 right in property ‘M? came to be sold in the year 1937.It is also most significant that not only did Gones did not raise any objection during or immediately after inventory proceedings but though he lived till the year 1978 which is nearly 41 years after 1937 Gones is not shown to have ever raised any claim in regard to the plaint schedule property while he was alive. Equally as found by the High Court and the first appellate Court there is no material to show that Gones was in receipt of income from property which is specific case of the appellants.Thus, Gones was not in receipt of any income. Property was shown in the name of Shantibai. Still further in 1969 Shantibai executes a gift deed of the plaint scheduled properly. Immediately thereafter partition deeds are executed between Shantibai and children. Thus, Shantibai treated the property as belonging to her and she has accordingly executed the Gift deed and subsequently partition deed entered into on the said basis. Still later land acquisition proceedings were held in respect of part of the plaint schedule property. The compensation determined was paid on the basis that Gones did not have any right. When such is the position, we would think that on the face of it abandonment may not be inappropriate in the peculiar facts of this case. If the legal requirement is it must further amount to estoppel, one of the conditions to be fulfilled is acting on the representation, the representee must act to his detriment. We proceed on the basis that there was representation by conduct of Gones, that he acknowledged the right of Shantibai. It may be difficult to establish that Shantibai acted to her detriment. Further there is no defence pleaded as to estoppel or abandonment. No doubt the latter objection may be a milder obstacle if the pleading as a whole could imply such aIN AN APPEAL GENERATED BY SPECIALWe will however assume and proceed on the footing that Gones was entitled for 1/2 share, payment of Rs.1000/- was not a condition precedent in a suit based on title that adverse possession has not been proved (particularly having regard to the inconsistent plea based on title) and since Gones had title and the substantive prayer is to be treated as one for partition [even though the declaratory relief may be barred] and therefore suit is not barred by time and there is no estoppel. Still we would not exercise our discretionary power in an appeal which is generated by special leave. It will be wholly inequitable to intervene in favour of the appellants as successors of Gones. The decree of the first appellate court as confirmed by the High Court in our view has resulted in a decision which is otherwisethis case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter.