Prabhakar Gones Prabhu Navelkar . vs S.S.Prabhu Navelkar(D) By Lrs..

3. As can be noticed, the litigation concerns the properties of the Navelkar family. Parties are referred to with reference to the position in the trial Court. Venctexa Suria Porobo Navelkar was married to one Padmavati. They had one son by name Ramchandra Porobo and a daughter by name Piru. 2 Ramchandra in turn had two sons, namely, Suriaji and Gones. The plaintiffs no. 1 and 3 are sons of Gones. The 2nd plaintiff is the wife of the first plaintiff and the 4th plaintiff is the wife of the 3rd plaintiff. Defendants no. 1 and 3 are the sons of Suriaji.

5. The said suit was resisted. The defendants (as noted by the trial Court) can be classified in four groups, one group consisted of defendants no. 1, 2, 30 and 31, second group consisted of defendants no. 3 to 6, third group consisted of defendants no. 7 to 27 7 and fourth group consisted of defendants no. 28 and

There was no time limit for Gones to exercise his option under the settlement deed. The suit properties were enjoyed jointly at least until the deed of partition 1969. The deed of partition was not entered into with the plaintiffs and defendants no. 28 and 29 who were cousins. Therefore, it was found to be null and void.”

10. The First Appellate Court found that the trial court had misread the relevant portions of the settlement deed. It was, inter alia, found that the settlement deed spoke of transfer of half the properties which meant transfer of title to the properties which was not to be read as transfer of registration/ mutation. The benefit of reimbursement was to Gones as it was for him to fulfill the said condition. The First Appellate Court describes it as absurd to say that the time for option is unlimited. The condition had to be complied within a reasonable time at least before the death of Gones. The deed of sale dated 17.11.1915 did not mention the name of Gones as one of the purchasers or that he had paid the half of price. There is no evidence to show that Gones had money, on his own, to pay half of price. 11 The mere assumption, in the settlement deed, cannot be taken as gospel truth. There may have been some understanding between the two brothers. Condition had to be fulfilled by Gones by reimbursing half of the amount paid to Laxmi. The First Appellate Court appreciated the oral evidence and found that the plaintiffs have no right in the property. As they were not co-owners, it was found that deed of partition being entered into without the junction of Gones, would not make it illegal or invalid. It was further found that the suit was barred by law of limitation. It is still further found that the suit had abated on account of non-impleadment of legal representatives of certain parties. Two appeals were, accordingly, allowed and suit came to be dismissed with cost.

14. Resultantly, the questions of law were answered against the appellants and the appeals were dismissed.

44. 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 42 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 other branch. The appellants claim one-eighth share being one-half of one-fourth of property ‘M’ conveyed under a sale deed to Suriaji and his wife. The appellants also claim one-fourth share being one-half of one-half in property ‘B’ conveyed to Suriaji and his wife under the sale deed of 1915.

The document 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 65 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. Whether it amounts to an admission or acknowledgment by Suriaji that Gones his younger brother, had half right over the property acquired by Suriaji under the sale deed dated 17.11.1915? Whether on the other hand, the document is of executory nature and contemplating Suriaji executing a transfer in favour of Gones? Whether it contemplated only a transfer of mutation, the title being admitted? Whether the clause contemplated a transfer on the 66 occasion of which Gones was to indemnify Suriaji, half the amount which stood paid to Laxmi that money coming from dowry of Suriaji’s wife?

Therefore, we 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.

12. Therefore what follows from the above, is that the inventory proceedings are “suits” for the purpose of Section 22 of the Civil Courts Act and therefore the appeal against order in inventory proceedings where the value of the assets exceeds Rs. 1,00,000/- would lie to the High Court. The point for consideration is therefore, answered accordingly.” ABANDONMENT AND ESTOPPEL

Mere laches would not, therefore, disentitle him to equitable relief:

second, that the other party, believing it, must have been induced to act on the faith of it; and third, that he must have so acted to his detriment.”

85. 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. 100 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.

DISCRETION IN AN APPEAL GENERATED BY SPECIAL LEAVE

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] ;

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. Consequently, the Civil Appeals stand dismissed. Parties to bear their own costs.

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