PRABHAKAR GONES PRABHU NAVELKAR (DEAD) THROUGH LRS & ORS. versus SARADCHANDRA SURIA PRABHU NAVELKAR (DEAD) THROUGH LRS. & ORS.
[2019] 14 S.C.R. 859, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Body
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PRABHAKAR GONES PRABHU NAVELKAR (DEAD)
THROUGH LRS & ORS.
v.
SARADCHANDRA SURIA PRABHU NAVELKAR (DEAD)
THROUGH LRS. & ORS.
(Civil Appeal Nos.10501-10502 of 2014)
     AUGUST 21, 2019
      [NAVIN SINHA AND K.M. JOSEPH, JJ.]
Hindu Law: Property rights – Dispute related to the two
properties ‘M’ and ‘B’ situated in the village of Bainguinim in Goa
– Suriaji and Gones were brothers – The properties in dispute
originally belonged to their grandfather – Plaintiffs-appellants are
heirs and successors in interest of Gones – 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 – The other half
share in property ‘M’ and the whole of property ‘B’ vested with the
aunt (father’s sister) of Suriaji and Gones – It was in 1915 that the
aunt executed sale deed conveying the rights to Suriaji and to the
other branch, viz., Vitol – A deed of dissolution of accounts,
payments and obligation was executed on 21.01.1919 in which
Suriaji and Gones appeared as parties on the one side represent-
ing the Venctexa branch and other branch of Vitol came to be rep-
resented by his wife along with her four sons – In deed dated
21.01.1919, Suriaji admitted that the purchase of one-fourth in the
property of ‘M’ and half of property ‘B’ by sale deed dated
17.11.1915 was for self and for his brother Gones who paid half
the price – Suriaji and his wife Shantibai undertook to effect the
transfer of registration in
the name of Gones, half of the property
purchased in his name – Gones was on the occasion of transfer to
make reimbursement of the half of money paid by Suriaji – In 1925,
Suriaji and his wife Shantibai gifted in favour of Gones one-fourth
of property ‘M’ acquired by Suriaji from his grandfather under the
gift deed dated 09.03.1913 – Gones, thus, became entitled to
one-eighth of the property ‘M’ and one-fourth of the property ‘B’
as a result of purchase made under deed of sale dated 17.11.1915
– In 1937, half share of Gones in property ‘M’ was sold in public
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auction in execution proceedings against Gones – Despite the
dissolution of the Hindu undivided family, the families of Gones
and his brother Suriaji and the other branch always lived together
– In 1949, Gones proceeded to Daman on account of his
employment – He received his share from the suit property until his
death which took place in December 1978 – After his death,
appellants were not given their share and when they found that
their names were not included in the Survey records, they made
application to the survey authorities and came to know for the first
time about the partition deed dated 13.03.1969 and found that they
were excluded – Appellants  filed suit for declaration that they were
entitled to one-eighth share in the property ‘M’ and one-fourth share
in the property ‘B’; that the Deed of Partition dated 13.03.1969
executed by the concerned defendants was null and void and not
binding on them – Trial Court decreed the suit – However, First
Appellate Court set aside the order of trial court – High Court by
impugned order dismissed the appeal, holding that whatever right
or interest may have survived with Gones, was lost, as Gones did
not at any point of time challenge the allotment of property to
Shantibai which allotment in the Inventory Proceedings and
recording/ registration of rights in her favour has attained finality
for want of challenge – On appeal, held: By virtue of sale deed of
1915 and
settlement deed of 1919, it cannot be concluded that Gones
acquired title as such in the plaint schedule property – Not only did
Gones not object  during or immediately after inventory
proceedings but though he lived till the year 1978,  he never raised
any claim in regard to the plaint schedule property – Equally as
found by the High Court and the first appellate  Court, there was
no material to show that Gones was in receipt of income from
property which was specific case of the appellants – Property was
shown in the name of Shantibai – Still further in 1969, Shantibai
executed a gift deed of the plaint scheduled property –
Immediately thereafter partition deeds were executed between
Shantibai and children –  Thus, Shantibai treated the property as
belonging to her – 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
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have any right – Thus there was representation by conduct of Gones,
that he acknowledged the right of Shantibai – Further there was no
defence pleaded as to estoppel or abandonment – Thus,
interference with the impugned order of High Court is not
called for.
Dismissing the appeals, the Court
HELD:  1. Under the sale deed dated 17.1.1915, 1/4th 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. The document dated 21.1.2019 is described as a deed of
declaration, fixation of balance of accounts, payment and
obligation.  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 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  Gones, his
brother and that he has paid for half of the price of the said
purchase, therefore he undertakes alongwith Shantibai to
transfer in the name of 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. There is no denial of the
averment of Gones having paid the consideration. 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. A sum of Rs.1000/- was a
considerable sum of money in 1919. No doubt it could have been
made prior to demanding the transfer. The clause cannot be
understood to mean that either it need not be paid or the
payment could be deferred. There is no case that Gones offered
Rs.1000/- to Suriaji during his lifetime and the transfer of
mutation or of right was refused.   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
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)
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nor even the appellants paying or even offering to pay the sum
mentioned in the deed of 1919. [Paras 50, 58, 61, 62, 63] [898-H;
899-A; 904-H; 905-A-D; 907-G-H; 908-A, F-H; 909-A-B]
Syndicate Bank v. Prabha D. Naik (2001) 4 SCC 713 :
[2001] 2 SCR 714 – distinguished.
Hardevinder Singh v. Paramjit Singh and Others
(2013) 9 SCC 261 : [2013] 1 SCR 903; Justiniano
Augusto De Piedade Barreto v. Antonio Vicenta Da
Fonseca and Others (1979) 3 SCC 47 : [1979] 3 SCR
494  – referred to.
2.  There is another perspective. In the plaint, at para ‘9’,
what is stated is that 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 1/4th 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 purchase and therefore, it was
undertaken to transfer the registration, upon Suriaji being
reimbursed by Gones in the payment of 1/2. It is admitted that
the sale deed is in favour of Suriaji. It is nearly 4 years thereafter
in the document 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 transaction being a
benami transaction. If benami was recognized 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. Thus, a
purchase which is made benami, leads to a resulting trust.  At
least the appellants have no case that it did apply.  They have not
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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 approved of.  Section 82 of the Trust
Act recognized that when a person transferred property to another
for consideration, which is paid by a third party then the said
person would be the beneficial owner. The transferee in name or
Benamidar would hold the property in trust for the person who
has actually provided consideration.  There is, no case based on
benami ever set up by the appellant. Therefore, 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, no finding is rendered as regards
adverse
possession or ouster. [Paras 64, 65, 67, 68] [909-C-G;
911-C-H; 912-A-E]
Controller of Estate Duty, Lucknow v. Alok Mitra
AIR 1981 SC 102 : [1981] 1 SCR 943 – referred to.
3.  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. 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.  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
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)
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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. [Para 69] [912-F-G; 913-A-C]
4.  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. 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. [Paras 79-80] [921-D-G]
Dilboo (Smt.)(Dead) by LRs. and Others v. Dhanraji
(Smt.)(Dead) and Others (2000) 7 SCC 702 : [2000]  3
Suppl.  SCR  214 ; Damodar Ramnath Alve v. Gokuldas
Ramnath Alve and Others MANU/MH/0535/1996;
Zacarias Durate Domingos Pereira v. Camilo Inacio
Pereira
1990 (1) Goa LT 174 ; Sha Mulchand and
Co.Ltd. v. Jawahar Mills Ltd, Salem  AIR 1953 SC 98 :
[1953] SCR  351 ; Dr. Karan Singh v. State of J & K
and Another (2004) 5 SCC 698 : [2004] 1 Suppl.  SCR
43  –  referred to.
5. In regard to the inventory proceedings, no doubt, it is
true that the inventory proceedings per se are not produced.  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.  Under sale deed
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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.  Gones was 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. 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.  It would not 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.  The concept of trust may be inapplicable.  [Paras 81,  82,
84, 85] [922-A-D; 923-A-E]
6.   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. 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
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)
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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, 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.  There
appears to be 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. [Paras 87, 88]
[923-G-H; 924-D-F]
Taherakhatoon (D) by LRs v. Salambin Mohammad
(1999) 2 SCC 635 : [1999] 1 SCR 901 – relied on.
Mohammad Ali (Dead) by LRs. v. Jagadish Kalita and
Others (2004) 1 SCC 271 : [2003] 4 Suppl. SCR
325 ; Jai Singh and Others v. Gurmej Singh (2009) 15
SCC 747 : [2009] 1SCR 413; P. John Chandy and Co.
(P) Ltd. v. John P. Thomas (2002) 5 SCC 90 : [2002] 3
SCR 549 ; L. N. Aswathama and Another v. P. Prakash
(2009) 13 SCC
229 : [2009] 10 SCR 615 ; Kuldip
Mahaton and Others v. Bhulan Mahato (Dead) by LRs.
and Others (1995) 2 SCC 43  : [1994] 6 Suppl. SCR
220 ;  P.T. Munichikkanna Reddy and Others v. Revamma
and Others (2007) 6 SCC 59 :  [2007] 5 SCR 491;
State of U.P. Another v. Universal Exporters and An-
other  (1997) 7 SCC 531 : [1997]  4 Suppl. SCR 49;
Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204:
[2003] 2 Suppl. SCR 743; Sankalchan Jaichandbhai
Patel and Others v. Vithalbhai Jaichandbhai Patel and
Others (1996) 6 SCC 433 : [1996] 6 Suppl. SCR 333;
Mohinder Singh and Another v. Kashmira Singh
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AIR 1985 P&H 215; Ashok Kumar and Others v.
Gangadhar and Another AIR 2007 AP 145 ; Banarsi
and Others v. Ram Phal (2003) 9 SCC 606 : [2003] 2
SCR 22; Mohan Lal (deceased) Through His LRs.
Kachru and Others v. Mirza Abdul Gaffar and Another
(1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638 ;
Sheela Rodrigues and Another v. Lourencinha Ana
D’Cruz Rodrigues Fernandes (1999) SCC Online
Bombay 109; Raj Narain Pandey and Others v.
Sant Prasad Tiwari and Others  (1973) 2 SCC 35:
[1973]  2  SCR  835 ;  Jay Laxmi Salt Works (P) Ltd. v.
State of Gujarat (1994) 4 SCC 1 ; Vishram alias Prasad
Govekar and Others v. Sudesh Govekar (Dead) by
Legal Representatives and Others (2017) 11 SCC 345 :
[2016] 12 SCR 174 ; Eurekha Builders and Others v.
Gulabchand, S/o Veljee Dand Since Deceased by
Legal Representatives and Others (2018) 8 SCC 67 :
[2018] 4 SCR 779 ; Khatri Hotels Private Limited and
Another v. Union of India and Another (2011) 9 SCC
126 : [2011] 15 SCR 299  – referred to.
Case Law Reference
[2003] 4 Suppl. SCR 325    referred to
Para 20
[2009] 1 SCR 413
     referred to
Para 21
[2002] 3 SCR 549
     referred to
Para 23
[2009] 10 SCR 615
     referred to
Para 24
[1994] 6 Suppl. SCR 220   referred to
Para 25
[2007] 5 SCR 491
     referred to
Para 26
[1997] 4  Suppl. SCR 49    referred to
Para 27
[2003] 2 Suppl. SCR 743   referred to
Para 28
[1996] 6 Suppl. SCR 333   referred to
Para 29
[2003] 2 SCR 22
     referred to
Para 32
[1995] 6 Suppl. SCR 638   referred to
Para
33
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [
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[1973] 2 SCR  835
     referred to
Para 35
(1994) 4 SCC 1
            referred to
Para 35
[2000] 3 Suppl.  SCR  214        referred to      Para 36
[2016] 12 SCR 174
           referred to
Para 36
[2018] 4 SCR 779
           referred to
Para 38
[2011] 15 SCR 299
           referred to
Para 39
[2001] 2 SCR 714
           distinguished
Para 46
[1979] 3 SCR 494
           referred to
Para 47
[2013] 1 SCR 903
           referred to
Para 53
[1981] 1 SCR  943
          referred to
Para 64
[2003] 2 Suppl. SCR 743        referred to
Para 71
(1999) SCC Online Bom 109    referred to
Para 72
[2000] 3 Suppl.  SCR  214      referred to
Para 73
[1953] SCR 351
          referred to
Para 77
[2004] 1 Suppl. SCR 43          referred to
Para 78
[1999] 1 SCR 901
         relied on
Para 89
CIVIL 
APPELLATE 
JURISDICTION: 
Civil
Appeal Nos. 10501-10502 of 2014
         From the Judgment and Order dated  20.11.2009 of the High Court
of Bombay at Goa in Second Appeal Nos. 16 and 17 of 2004
J. P. Cama, Sr. Adv., Sumit Goel, Sarthak Gaur, Raghav Bansal,
Ms. Suruchi Kumar, M/s. Parekh & Co.,  Advs. for the Appellants.
Mukul Rohatgi, Dhruv Mehta, Sr. Advs., Yashraj Singh Deora,
Shyam Agarwal, Anmol Mehta, Ninad Laud, Ivo D’costa, M/s. Mitter
& Mitter Co., Sahil Tagotra, Advs. for the Respondents.
The Judgment of the Court was delivered by
K.M. JOSEPH, J.
1. Civil appeals by special leave are directed against the judgment
of the High Court of
Bombay at Goa in Second Appeals Nos. 16 of 2004

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and 17 of 2004. The appellants are the plaintiffs. By the impugned
judgment, the High Court has dismissed the appeals. The trial Court in
fact had partly decreed the suit. However, the First Appellate Court
reversed the judgment of the trial Court and dismissed the suit. By the
impugned judgment, the High Court affirmed the decision of the First
Appellate Court.
2. We may refer to following genealogy chart, which will
facilitate better understanding of the issues involved:
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
NAGENDRA
ANNEXURE P-1
NAVELKAR FAMILY
VINTECTEXA POROBO NALVELKAR
(WIFE: PADMAVATI PORBINI)
NAVELKAR)
 (WIFE:  LAXIMI  VINTOLA  POROBO
(SONS)
VINTOLA POROBO NAVELKAR
RAMACHANDRA
POROBO NALVELKAR
GROUP P/BRANCH OF VENKTEXA
(SON)
(DAUGHTER)
BALAKRISHNA PORSHOTTAMA SRNIVAS
PIRU ALIAS
SOROSPATI
POININ
(SON)
SURIAJI POROBO
NAVELKAR
(WIFE : SHANTIBAI)
(SON)
GONES POROBO
NAVELKAR
(WIFE :
PREMAWATI)
GROUP/BRANCHES OF VITOL
DF.7
TO
DF.27
P1
PRABHAKAR
P3
PREMANAND
D28
SMT. JAISHREE
(HUSBAND : VISHNU KAMAT) D 29
D5
VENCTEXA
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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. 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. Defendant
no. 2 is the wife of  1st defendant. Defendant no. 4 is the wife of
3rd defendant. Defendant no. 5 is the sister of the defendants no. 1 and
3. Defendant nos. 7 to 27 are drawn from the other branch of the
Navelkar family. As noticed from the genealogy chart Venctexa
Navelkar’s brother was Vitol Porobo. The wife of Vitol Porobo was
Laxmi. They had four sons. Defendants no. 7 to 27 represent the branch
of late Vitol. Defendant no. 28 is the sister of plaintiff nos. 1 and 3
and29th defendant is her husband.
4. The case set up by appellants in short is as follows. There exist
two properties known as “Mallons” (hereinafter referred to as “M”)
and “Bainguinim” (hereinafter referred to as “B”) situated in the village
of Bainguinim in Goa. The properties lie adjoining to each other. M is
admeasuring 90 hectares (approximately).B admeasures 31 hectares
(approximately).
Together they constitute the plaint schedule properties.
By a deed of gift, dated 09.03.1913, Venctexa gifted half of the property
of M to his grandsons, namely, Suriaji and Gones. In the inventory
proceedings, held upon the demise of Padmavati, wife of Venctexa, the
remaining half of the property of M and the entire property of B was
allotted to their daughter named Piru. In the year 1915, Piru along with
her husband, by a deed of sale dated 17.11.1915, sold in equal parts the
remaining half in the property M and the entire property B to Suriaji and
Laxmi. This meant 1/4th right in property ‘M’ and 1/2 right of ‘B’ was
sold to Suriaji. Later on a deed styled as a deed of dissolution of
accounts, payments and obligation came to be executed on 21.01.1919.
In the said deed Suriaji and Gones appeared as parties on the one side
representing the Venctexa branch and other branch of Vitol came to be
represented by his wife Laxmi along with her four sons. In the said deed
dated 21.01.1919 Suriaji admitted that the purchase of 1/4th in the
property of M and half of property B by the sale deed dated 17.11.1915
was for self and for his brother Gones who paid half the price.
Therefore, Suriaji and his wife Shantibai undertook to effect the transfer
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of registration in the name of Gones, half of the property purchased in
his name at all time if so desired. Gones was on the occasion of transfer
to make reimbursement of the half of money paid by Suriaji to Laxmi
towards the dowry account to his wife. In the year 1925 Suriaji and his
wife Santibai gifted in favour of Gones the 1/4th of property M acquired
by Suriaji from his grandfather under the gift deed dated 09.03.1913.
Therefore, Gones became entitled to 1/8th of the property M and 1/4th of
the property B as a result of purchase made under deed of sale dated
17.11.1915. The further case of the plaintiffs is that half share of Gones
in property M came to be sold in public auction in execution proceedings
against Gones. Despite the dissolution of the Hindu undivided family of
Navelkars, the two branches continued to live in their own ancestral
house under the same roof. Annual income from the property in or about
1940 hardly exceeded Rs. 1000/-. The families of Gones and his brother
Suriaji always lived continuously together. In 1949 Gones proceeded to
Daman on account of his employment. He used to get his share from
the suit property until his death which took place in December 1978.
After death of Gones, plaintiffs were not given their share. Plaintiffs
found that their names were not included in the Survey records. They
made an application to the survey authorities. They came to know
somewhere in 1983 that one or two junior members of the
Navelkar’s
family are making preparations to dispose of some portion of the suit
property. There is reference to proclamation of sale by the Assistant
Registrar informing bidders in respect of portion of suit properties. They
came to know for the first time about the partition deed dated 13.03.1969
and found that the plaintiffs and other co-owners are excluded.
Accordingly, they filed a suit for following relief:
“(a) For a decree to declare that the plaintiffs together with the
defendant Nos. 28 and 29 are entitled to 1/8th share in the
property Mollans and 1/4th share in the property Bainguinim. The
shares of the defendant Nos. 1 to 6 in the said two properties
being 3/8th and 1/4th respectively and the share of the remaining
defendants of the Branch of Vitol Porobo being ½ each in the suit
properties.
(b) For a decree to declare that the Deed of Partition dated
13.03.1969 executed by the concerned defendants is null and void
and not binding on the plaintiffs and for cancellation of the said
deed;
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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(c) For a decree against the defendant Nos. 1, 3 and 5 jointly and
severally, to pay to the plaintiffs their share of income in
proportion to their share of income in proportion to their
aforementioned right in the suit properties since 1979, the share
which the said defendants have no right to retain with them.
(d) For a decree to partition the suit properties to separate the
plaintiffs’ rights and shares in the proportion stated specifically
herein above.
(e) For a decree to rectify the survey records to include their
names together with the names of defendant Nos. 28 and 29 by
directing resurvey in relation to the suit properties.
(f) For a decree of permanent injunction to restrain the defendants
in general and the defendant Nos. 1 to 6 and the defendant Nos.
30 and 31 in particular from negotiating deal of any type in respect
of the suit properties and/or portion thereof and/or restrain them
from disposing off the same by or in any manner whatsoever.”
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 and fourth group
consisted of defendants no. 28 and 29.
6. The contesting defendants denied the case of the plaintiffs that
they have any right in the property.
7. In the year 1919, it was pointed out that
the undivided joint
family of the Navelkar’s came to be dissolved. As far as the condition of
settlement deed dated 21.01.1919, it is contended that the payment of
Rs. 1000/- by Gones to Suriaji was condition precedent to effecting
transfer of undivided shares in the two properties to Gones. The period
of payment could not be unlimited. A gift was made by Suriaji and his
wife. The gift deed came to be executed in due performance of the
acknowledgment. There is reference to inventory proceedings taking
place on 07.05.1925 after the death of Suriaji and by order dated
16.12.1925, 1/4th of the property of M and ½ of the property of B was
confirmed and allotted to the widow of Suriaji, Smt. Shantibai. Gones
intervened as a “Vogal”. Thus, in 1925 in relation to suit properties, 1/4th
of M and ½ of B belonged to Shantibai, 1/4th of M and ½ of B belonged
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to Laxmi and ½ of M only belonged to Gones. Property belonging to
Gones came to be sold in 1937. In the said execution sale 1/4th of the
said half was purchased by defendants no. 1,3 and 5 and the remaining
1/4th was purchased by the sons of Laxmi and deceased father of
defendants no. 7, 20, 23 and 25 respectively. Thus, Gones had no right in
the properties B and M.
8. After framing appropriate issues, the trial Court partly decreed
the suit and a preliminary decree of partition was ordered to be directed
to drawn up. The actual decretal portion reads as follows:
“The suit is partly decreed, whereby it is held and declared that
the plaintiffs together with defendants No. 28 and 29 are entitled
to 1/8th share in the property Mollans and 1/4th from the property
Bainguinim; and that the defendants 1 to 6 are holders of 3/8th
and 1/4th share respectively and the share of the remaining
defendants representing the branch of Vitol Porobo is one half
each in the properties Mollans and Bainguinim. Consequently the
Deed of partition dated 31.3.1969 by which the two properties
were divided by and between the concerned defendants including
the plaintiffs, defendants no. 28 and 29, is declared null and void
as such is liable to be cancelled.
          The plaintiffs’ prayer for partition in prayer (d) is allowed
to the area of the land from the suit properties allotted to the
branch of Vencatoxa Porobo, represented by defendants 1 to 6
under the Deed of partition
dated 31.3.1969. Hence preliminary
decree is passed for separation of the plaintiffs and defendants
28 ad 29 share of 1/8th in Mollans and 1/4th from Bainguinim to be
demarcated with the help of Collector or any gazette subordinate
of the Collector as provided under Sec. 54 C.P.C. r/w O. XX  R.
18(1) of C.P.C. respecting the possession of the third parties as
far as possible from the area under alphabetical letters C,B & F
of Deed of Partition dated 31.3.1969 and the corresponding
survey numbers given to the said portion C, B & F viz. No. 17/1,
27/1, 25/1, 23/1 and 24/1. Collector to comply within six months
as far as possible.
         Survey Authorities directed to carry out mutation of the
plaintiffs claim in respect of Survey Numbers fallen to portions C,
B & F viz. 17/1, 27/1, 25/1, 23/1 and 24/1.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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          The defendants 1 to 6 are permanently restrained from
dealing with and/or disposing in any manner any further portion of
properties delineated as C, B & F in Deed of Partition dated
31.3.1969 and the corresponding survey numbers thereto viz.
17/1, 27/1, 25/1, 23/1 and       24/1, till the partition is effected and
confirmation by this Court.
          Preliminary decree be drawn accordingly.
          Pronounced in Open Court.”
9. The trial Court in decreeing the suit proceeded to employ the
following reasoning:
“The settlement deed dated 21.01.1919 confers title on Gones in
respect of the property covered by sale deed dated 17.11.1915
the payment of Rs. 1000/- and nothing to do with consideration.
The consideration was acknowledged as paid in the settlement
deed dated 17.11.1915. The transfer by registration was only
secure and guarantee rights and absence of Gones. 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. 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
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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.
Impugned Judgment of the High Court in the Second Appeal
11. The High Court noted that the appeal had been admitted on
the following substantial questions of law:
“(1) Whether by virtue of Sale Deed dated 17.11.1915 read with
the Deed of Declaration dated 21.1.1919, ownership of Gones to
one-eight of the property Mollans, and one-fourth of the property
Bainguinim, stood established or whether the declaration dated
21.1.1919 was merely an agreement, to sell half of what Suryaji
had purchased under Deed dated 17.11.1915 in favour of Gones?
(2) Whether the interpretation placed by the First Appellate Court
on the Deed of Declaration to the effect that it constituted an
agreement to transfer undivided right in the properties Mollans
and Bainguinim in favour of Gones subject to payment of
Rs. 1000/- as a condition precedent reversing the finding of the
trial court that declaration while acknowledging the ownership of
Gones in the two properties merely provided for transfer of
registration in the name
of Gones at any time thereafter, is legal
and sustainable?
(3) Whether in a suit for declaration of share in joint property, and
a partition and separation thereof by metes and bounds, the prayer
for declaration is the principal relief, and partition a subsidiary
one, or the relief of declaration and partition, is the principal relief
and such a suit would be within limitation, if filed within 12 years
of the ouster of the plaintiffs from the common properties and not
within 3 years of the denial of their rights therein?
(4) Whether, on true and correct interpretation of the Deed of
Declaration dated 21.1.1919, the exercise of the option for
transfer in the name of Gones, half of the property purchased
under Sale Deed dated 17.11.1915 could be done without any
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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limitation, particularly in view of the fact that in the Deed it was
specifically stated that the transfer in the name of Gonesh would
be effected “at any time he may wish”?
(5) Whether the suit instituted by the appellants could be declared
to have abated for the alleged non-bringing of some of the heirs
of the deceased defendants, who died during pendency of the
suit, on record in the absence of any objection raised in the
written statement by the defendants, that the suit was bad for
non-joinder of necessary parties, and whether such an objection
could be raised by merely amending the memo of appeal and
when the estate of deceased was substantially represented by
persons already on record?
(6) Whether on the pleadings and the material brought on record
by the defendants First Appellate Court was right in holding that
the suit filed by the plaintiffs was liable to be dismissed as barred
by limitation more so when such finding was aimed in reversal of
the finding of the Court?”
12. It was found, inter alia, that Suriaji had admitted in document
dated 21.01.1919 that 1/8th of property M and 1/4th of property B was
purchased by him for Gonesand Gones was to pay his contribution, as
indicated. No time limit was fixed for payment. The document did not
specify that prior payment should be made by Gones or payment is a
condition precedent. It was further found that acknowledgment of liabil-
ity to part with property is
described as absolute and unambiguous and
the document contains unambiguous recital about the acknowledgment
of existence of right of Gones in the property. It was further found that
right of Gones to receive share is thus crystallized and he had a right
enforceable in law and according to law. If Gones was to exercise and
enforce his rights under the deed dated 21.01.1919, he ought to have
objected to the allotment of share. He did not raise any objection related
to the inventory proceedings in 1925 and it attained finality. Allotment
was not challenged by way of suit which was open to him between 1925
and 1940 or during his life time. Plaintiffs are not witnessing about
allegations that Gones used to receive his share. There is no
documentary evidence. It is a case of oath against oath. Plaintiffs
witnesses did not have knowledge of antecedent facts. The statements
of the plaintiff’s witnesses were found to be vague. The following are
the findings summarized by the Court:
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“40. Collective effect of the pleadings and evidence can be
summarized as follows:-
(a)  Recognition of share of Gonesh is done in the document
dated 21.1.1919;
(b)    In spite of recognition or acknowledgment of share of Gonesh,
the property is given to Shantibai, wife of Suryaji, which
was the only share remaining with the family of Suryaji and
Gonesh, in the  background the auction of share owned by
Gonesh in the  property MOLLANS.
(c)   The fact that share of Gonesh was sold out is not disputed.
(d)   It is also admitted that Gonesh did not dispute the allotmentof
property to the wife of Suryaji.
(e)   Ordinarily Gonesh could have objected to the allotment of
share to Laxmibai, as his property could not have been given
to Laxmibai and could not have been subject matter of in-
ventory, which was not  challenged by Gonesh.
(f)     Having acquiesced with all these, now Gonesh and his heirs
are estopped from opening of the succession after long span
of over two decades.
(g)   Plaintiffs have failed to prove that their right to sue based on
jointness in enjoyment subsisted, and they would be entitled
to sue.
41. It is not the plaintiffs’ case that they had no knowledge of
registration of property in the name of Shantabai way back in
1940 as a final act based on conclusions of inventory proceedings.”
       In the result, conclusion is that whatever right or interest
may have survived with Ganesh, was lost, as Gonesh did not at
any point of time challenged
the allotment of property to Shantibai
which allotment in the Inventory Proceedings and recording/
registration of rights in her favour has attained finality for want of
challenge.”
13. Thereafter the following findings have been entered:
“42. After recording of properties in the name of Shantibai, she
and her heirs have enjoyed suit properties in exclusion to plaintiffs
and supporting defendants openly.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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43. While it is clear that inter-se the co-owners registration of
right by itself would not be a bar for claiming co-ownership,
however, said right of re-opening is not without fetters of
limitation when openly, properties are proved to be in exclusive
enjoyment of contesting defendants in total exclusion of plaintiffs’
predecessors.”
14. Resultantly, the questions of law were answered against the
appellants and the appeals were dismissed.
15. We have heard Shri J.P. Cama, Senior Advocate on behalf of
the appellants, Shri Mukul Rohtagi, Senior Advocate along with Mr. Dhruv
Mehta, Senior Advocate on behalf of the respondents.
16. The learned senior counsel for the appellants would submit
that the High Court having found that there was title in the properties
and there was also no requirement to pay Rs. 1000/- as a condition
precedent, the suit ought to have been decreed. As far as the inventory
proceedings are concerned, his contention is that this was the case which
was set up by the defendants. It was incumbent on the defendants to
produce the inventory proceedings.
17. He would further contend that even if Gones, the
predecessor-in-interest of the plaintiffs, was party to the inventory
proceedings and did not object to the properties being recorded in the
name of his sister-in-law and children, this would not take away the
effect of the acknowledgment of title in the settlement deed dated
21.01.1919. His rights in
the property having been acknowledged by his
sister-in-law and late brother with reference to the sale deed, by merely
recording the properties in the name of his sister-in-law, his half right,
which is acknowledged in the property, in the settlement deed dated
21.01.1919 would not be affected. It was further contended that it is not
open to question that the consideration for obtaining the property in the
sale deed of the year 1915 was acknowledged as paid partly by Gones.
The mere fact that Gones did not, in his life time, bring any proceedings,
would not preclude the plaintiffs,successors-in-interest of Gones, who
were entitled as co-owners of the plaint schedule properties, to seek
relief. When the title had not been extinguished, the Court has gone
wrong in drawing the wrong conclusion about Gones not raising
objection to the recording of the property to Laxmi. There could not be
acquiescence by estoppel. The Court has not comprehended the effect
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of finding title with Gones and according to him if title is not lost, in a
manner known to law, it is always open to enforce the same. The finding
of the court that right arose latest in 1940 and there is limitation in a suit
based on title was challenged. Unless adverse possession is proved irre-
spective of the  period of time taken for the plaintiffs to institute the suit
law does not recognize deprivation of their title.
18. Per contra, the learned senior counsel on behalf of the
respondents/ defendants were at pains to point out that neither in law
nor in equity the appellants have made out a case for interference. The
litigation has been commenced after nearly six decades of the
documents on which the plaintiffs lay store-by. With the inventory
proceedings, the curtains were rung down. Gones stood by and allowed
his sister-in-law and children to be acknowledged as owners of the
property. Gones lived long enough thereafter and yet he did  not raise his
little finger against the possession or right of the defendants. Gones passed
away only in 1978. There is evidence to show that Gones was very
much in the house on the eve of the partition deed and yet he did not
raise any objection either then or even at any point of time thereafter till
his death. They would in fact point out that Gones never contemplated
this litigation launched by his successors-in-interest. This is for the
reason that after this acknowledgment of the right in favour of Gones in
the settlement deed dated 21.01.1919, in 1925 his elder brother Suriaji
and his wife have executed a gift deed and it is pressed before us, that it
resulted in Gones getting more than what he would have got in terms of
the alleged liability to execute the document in terms of the settlement
deed of 1919. Expatiating the argument, it is pointed out that the extent
of property M was approximately 90 hectares, property B consisted of
nearly 31 hectares. Under the gift deed of 1913, executed by the
grandfather of Suriaji and Gones, in their favour 1/4th of M was given to
Suriaji and Gones. This meant both of them obtained 22.5 hectares each.
By the sale deed dated 17.11.1915 Suriaji and Laxmi, wife of Vitol,
obtained 1/4th of M which is equivalent to 22.5 hectares and ½ of B,
which is equivalent to 15.5 hectares. Thus on the aggregate an extent of
38 hectares formed the subject matter of sale deed. As per the deed of
dissolution dated 21.01.1919, Gones would have been entitled to 19
hectares. This figure is arrived at as the half right of 38 hectares as
calculated hereinbefore. However, by gift deed dated 14.04.1925, what
was gifted was no doubt the 1/4th right of M acquired by Suriaji from his
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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grandfather but which consisted of 22.5 hectares. Thus, it is pointed out
after the gift deed dated 14.04.1925, Gones had 45 hectares. It is further
sought to be contended that if the claim of the plaintiffs is countenanced
Gones would get 64.12 hectares leaving 19 hectares alone to the branch
of Suriaji. It is pointed out that this Court is hearing these appeals after
grant of special leave.
19. In an appeal, so sourced, equitable considerations must play a
dominant part. In other words, this is a case where Gones obtained a
larger share than he would have got in terms of the acknowledgment in
the settlement deed dated 21.01.1919. The learned senior counsel
invites us to the conduct of Gones in this perspective. It is contended
that Gones, during his life time, did not have any grievance or cause for
complaint. His conduct is accordingly patterned on his contentment with
having received his legitimate due. This state of fulfillment of his rights
explains his conduct as “Vogal” and acquiescing in the proceedings
whereunder his sister-in-law stands acknowledged as the owner of the
properties. There is reference also to the partition which took place in
1969 i.e. 44 years after the gift deed of 1925. It is further pointed out
that the Court may not overlook that apart from the partition, which took
place in 1969, there were land acquisition proceedings. It was the branch
of Suriaji in recognition of their rights who
were awarded compensation.
There was no objection raised at that time. The suit clearly was time
barred. It is also the case of defendants that they have pleaded adverse
possession. It is contended that plaintiffs have miserably failed to prove
that they were in receipt of any income. We are taken to the evidence in
this regard. Respondent also impugned the finding by the High Court
that Gones had title and contended that the payment of Rs. 1000/- could
not but be a condition precedent. It is also contended that the sale deed
dated 17.11.1915 is executed in favour of Suriaji and Laxmi. There is
absolutely nothing in the sale deed, which would indicate that the sale
deed was also in favour of Gones. What would follow from the
settlement deed dated 21.01.1919 was only that the parties
contemplated the execution of the another document of transfer of
property in terms of the recitals in document dated 21.01.1919 in favour
of Gones. This, in turn, was dependent upon Gones exercising option
and paying Rs. 1000/- which was his share.
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CASE LAW RELIED UPON BY THE APPELLANTS
20. In the case law relied upon by the appellants, in Md. Mohammad
Ali (dead) by Lrs. v. Jagadish Kalita and others1, this Court, dealing with
Article 65 of The Limitation Act, 1963 has essentially reiterated the
principle that long and continuous possession by itself would not
constitute adverse possession. Non-participation in the rents and profits
of the land to co-owner does not amount to ouster. Furthermore, this
Court has noted that in a suit governed by Article 65 of the Act, if the
plaintiff succeeds in proving his title, it is no longer necessary to prove
that he was in possession within 12 years of the filing of the suit. It is for
the defendant to prove animus possidendi.
21. In Jai Singh and others v. Gurmej Singh2, this Court has
articulated the principles relating to the interse rights and liabilities of
co-owners, as follows:
“9. It is to be noted that in the subsequent Full Bench judgment in
Bhartucase [1981 PLJ 204] , the earlier decision in Lachhman
Singh case [AIR 1970 P&H 304] was distinguished on facts.
The principles relating to the inter se rights and liabilities of
co-sharers are as follows:
(1) A co-owner has an interest in the whole property and also in
every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of
the law, possession of all even if all but one are actually out of
possession.
(3) A mere occupation of a larger portion or even of an entire
joint property
does not necessarily amount to ouster as the
possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of
a co-owner by another. But in order to negative the presumption
of joint possession on behalf of all, on the ground of ouster, the
possession of a co-owner must not only be exclusive but also
hostile to the knowledge of the other as, when a co-owner openly
asserts his own title and denies, that of the other.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
1(2004) 1 SCC 271
2(2009) 15 SCC 747
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(5) Passage of time does not extinguish the right of the co-owner
who has been out of possession of the joint property except in the
event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of other
co-owners.
(7) Where a co-owner is in possession of separate parcels under
an arrangement consented by the other co-owners, it is not open
to anybody to disturb the arrangement without the consent of
others except by filing a suit for partition.”
22 The appellants, in short, on the strength of the said rulings,
contend before us that since the High Court has found that Gones had
title in the property, the suit must be decreed. The defendants have failed
to prove adverse possession or ouster.
23. The decision of this Court in P. John Chandy and Co. (P) Ltd.
v. John P. Thomas3  is pressed into service for contending that inaction
in every case does not lead to inference of acquiescence. The said
decision, in fact, was one rendered under the Kerala Buildings (Lease
and Rent Control) Act, 1965. The ground for eviction alleged by the
landlord was sub-lease. The contention of the tenant was there was
implied consent of the landlord. This Court went on to hold that consent
contemplated under the enactment was concerned with some positive
act. It was in the context of the same that the Court, inter alia, made
the observations made in
regard to inaction not amounting to
acquiescence.
24. In L. N. Aswathama and another v. P. Prakash4, this Court
held that the plea of adverse possession is inconsistent with the plea of
title. This Court, in this context, held as follows:
         “16. ... According to them, the two pleas being mutually
inconsistent, the latter plea could not even begin to operate until
the former was renounced. Reliance was placed on the following
observations of this Court in Mohan Lal v. Mirza Abdul Gaffar
[(1996) 1 SCC 639] made while considering a case where the
defendant raised the pleas of permissive possession and adverse
possession: (SCC pp. 640-41, para 4)
3(2002) 5 SCC 90
4 (2009) 13 SCC 229
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         “4. As regards the first plea, it is inconsistent with the second
plea. Having come into possession under the [sale] agreement,
he mustdisclaim his right thereunder and plead and prove
assertion of his independent hostile adverse possession to
the knowledge of the transferor or his successor-in-title or
interestand that the latter had acquiesced to his illegal possession
during the entire period of 12 years i.e. up to completing the period
of his title by prescription nec vi, nec clam, necprecario [not by
violence, not by stealth, not by permission]. Since the appellant’s
claim is founded on Section 53-A [of the Transfer of Property
Act, 1882], it goes without saying that he admits by implication
that he came into possession of the land lawfully under the
agreement and continued to remain in possession till date of the
suit. Thereby the plea of adverse possession is not available
to the appellant.”
17. The legal position is no doubt well settled. To establish a claim
of title by prescription, that is, adverse possession for 12 years or
more, the possession of the claimant must be physical/actual,
exclusive, open, uninterrupted, notorious and hostile to the true
owner for a period exceeding twelve years. It is also well settled
that long and continuous possession by itself would not constitute
adverse possession if it was either permissive possession or
possession without animus possidendi. The pleas based on title
and adverse possession are
mutually inconsistent and the latter
does not begin to operate until the former is renounced. Unless
the person possessing the property has the requisite animus to
possess the property hostile to the title of the true owner, the
period for prescription will not commence. (Vide P. Periasami v.
P. Periathambi [(1995) 6 SCC 523] , Md. Mohammad Ali v.
Jagadish Kalita [(2004) 1 SCC 271] and P.T. Munichikkanna
Reddy v. Revamma [(2007) 6 SCC 59]).
18. We are however of the view that the decision in Mohan Lal
[(1996) 1 SCC 639] relied on by the plaintiffs is inapplicable, as
the defendant therein had pleaded that he was in possession, having
obtained possession in part-performance of a sale agreement. As
the defendant therein admitted that he came into possession lawfully
under an agreement of sale and continued to remain in such
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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possession, there was no adverse possession. This case is
different, as the defendant did not contend that he entered
possession under or through the plaintiffs. His case was that he
was in possession as a tenant under Gowramma from 1962 and
he became the owner by purchasing the plot from Gowramma in
1985. He alternatively contended that if Gowramma did not have
title and consequently his claim based on title was rejected, then
having regard to the fact that he had been in possession by setting
up title in Gowramma and later in himself, his possession was
hostile to the true owner; and if he was able to make out such
hostile possession continued for more than 12 years, he could
claim to have perfected his title by adverse possession. There is
considerable force in the contention of the defendant provided he
is able to establish adverse possession for more than 12 years.
When a person is in possession asserting to be the owner, even if
he fails to establish his title, his possession would still be adverse
to the true owner. Therefore, the two pleas put forth by the
defendant in this case are not inconsistent pleas but alternative
pleas available on the same facts. Therefore, the contention of
the plaintiffs that the plea of adverse possession is not available to
the defendant is rejected.”
   (emphasis supplied)
25. In Kuldip Mahaton and others v. Bhulan Mahato(Dead) by
Lrs. And others5, this Court has reiterated the
principle that in the case
of Joint Hindu Family, there is community of interest and unity of
possession among all members of the Joint Hindu Family. The fact that
one of the coparceners is not in joint possession, does not mean that he
has been ousted. The possession by one, it was found, is therefore,
possession of all. Mutation in the name of elder brother, for the collec-
tion of rent and revenue, does not prove hostile title as against other. It
was further held that where possession can be referred to lawful title, it
would not be decided to be adverse.
26. In P.T. Munichikkanna Reddy and others v. Revamma and
others6, this Court held that there is no equity in favour of a person who
raises plea of adverse possession. Right to property is a human right and
plea of adverse possession is to be viewed in the light of the same.
5(1995) 2 SCC 43
6 (2007) 6 SCC 59
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27. In State of U.P. Another v. Universal Exporters and another7,
this Court emphasized the need to prove the date when the defendant’s
possession became adverse to the plaintiff’s title.
28. Punit Rai v. Dinesh Chaudhary8, is relied upon to contend that
a fact within the knowledge of a person must be proved by the said
person, and if the said evidence is not produced, it would lead to
inference that had the evidence been produced, it would not have
supported the case of the party.
29. Sankalchan Jaichandbhai Patel and others v. Vithalbhai
Jaichandbhai Patel and others9 is relied upon to contend that mutation
entries are only to enable the State to collect revenues from the persons
in possession and that do not create title or interest therein.
30. The decision of the High Court of Punjab and Haryana in
Mohinder Singh and another v. Kashmira Singh10, is relied upon to
contend that there is no period of limitation for filing a suit for possession
on the basis of inheritance and that Section 65 of the Act is not
applicable. In Paragraph 6, this is what was held by the Division Bench:
“6. After hearing the learned counsel for the parties, I find force
in the contention of the learned counsel for the respondent. It is
well established principle of law that inheritance does not remain
in abeyance and the heirs after the death of the last male holder
succeed to the property of the deceased in accordance with law.
Kashmira Singh, being the son of Niranjan Singh
deceased, was
entitled to 1/3rd share in the land in dispute. After the death of
Niranjan Singh, he was not required to file any suit for possession
on the basis of inheritance. He had become full owner of his
share in the property on the death of the last male holder. For
establishing his right as an heir, he was not required to file a suit.
However, a situation may arise when the heir is not in possession
of the property inherited. In that event a suit for possession may
have to be filed and on contest the same may fail on the
defendant proving that he has perfected his title by adverse
possession. It is such type of suit which is governed by the
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
7(1997) 7 SCC 531
8(2003) 8 SCC 204
9 (1996) 6 SCC 433
10 AIR 1985 P&H 215
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provisions of Article 65 of the Limitation Act. In this view of the
matter, with respect, I find that the view taken by R.N. Mittal, J.
in Naginder Singh’s case (1983 Cri LJ 432) (supra) that it is well
settled that a suit for possession on the ground of inheritance should
be filed within a period of twelve years from the date when the
inheritance opens, does not lay down correct law. The decisions
to which reference has been made in para 9 of the judgment by
the learned Judge, do not lay down any such rule. On the other
hand, in all those decisions it was adverse possession of the
defendants which was upheld. Thus I hold that no period of
limitation is prescribed for filing a suit for possession on the basis
of inheritance.”
31. In Ashok Kumar and others v. Gangadhar and another11, the
learned Single Judge has laid down as follows:
“24. In the instant case also, the plaintiffs suit is based on title and
the consequential relief of possession was also sought for. The
plaintiffs in these suits established before the lower Court that it is
the self-acquired property of D-1’s father and they purchased it
under two different sale deeds. In such a case, the suit is
governed by Article 65 of the Act as it was filed within 12 years
of the dispossession. But it is for the defendants to show that the
plaintiff was out of possession for more than 12 years. In the
instant case, there is no such situation and the suit was filed
immediately after completion of three years from the date of
dispossession. If the contention of the defendants that Article 58
applies to the suit for possession based on title where declaration
of title is also sought, is accepted, it would amount to ignoring the
relief for recovery of possession and application of Article 65 to a
suit for possession and taking away the right of the plaintiff to
prove that the suit is within 12 years from the date when the
possession of the defendant becomes adverse to the plaintiff. If
such a suit were to be decided with reference to Article 58 on the
ground that the declaration is sought for, application of Article 65
to the suit for possession would be rendered otiose. Such a con-
struction would be opposed to all principles of interpretation of
statutes. Therefore, different articles of the Limitation Act will
11AIR 2007 AP 145
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have to be interpreted harmoniously. When such an interpretation
is given to Articles 58 and 65 and when the suit is filed for
declaration of title to the suit property with consequential relief of
possession in my humble view Article 65 of the Limitation Act
would apply and not Article 58 of the Limitation Act. Article 58
applies to a case where declaration simpliciter is sought for
without possession in my humble view Article 65 of the Limitation
Act would apply and not Article 58 of the Limitation Act. Article
58 applies to a case where declaration simpliciter is sought for
without any further relief. It appears that this aspect has been the
subject matter of consideration of Law Commission in its 89th
Report on the Limitation Act and the Commission recommended
for the amendment of Article 58 of Schedule I of Limitation Act
by adding “without seeking further relief” after the word
‘declaration’ in the first column of Article 58 of the Schedule.”
32. In Banarsi and others v. Ram Phal12, this Court dwelt upon
the rights of a respondent in an appeal under Order XLI Rule 22 of the
Code of Civil Procedure, 1908 inter alia:
“10. The CPC amendment of 1976 has not materially or
substantially altered the law except for a marginal difference.
Even under the amended Order 41 Rule 22 sub-rule (1) a party in
whose favour the decree stands in its entirety is neither entitled
nor obliged to prefer any cross-objection. However, the insertion
made in the text of
sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference which has
resulted we will shortly state. A respondent may defend himself
without filing any cross-objection to the extent to which decree is
in his favour; however, if he proposes to attack any part of the
decree, he must take cross-objection. The amendment inserted
by the 1976 amendment is clarificatory and also enabling and this
may be made precise by analysing the provision. There may be
three situations:
(i) The impugned decree is partly in favour of the appellant and
partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an
issue has been decided against the respondent.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
12 (2003) 9 SCC 606
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(iii) The decree is entirely in favour of the respondent and all the
issues have also been answered in favour of the respondent but
there is a finding in the judgment which goes against the
respondent.
11. In the type of case (i) it was necessary for the respondent to
file an appeal or take cross-objection against that part of the
decree which is against him if he seeks to get rid of the same
though that part of the decree which is in his favour he is entitled
to support without taking any cross-objection. The law remains
so post-amendment too. In the type of cases (ii) and (iii)
pre-amendment CPC did not entitle nor permit the respondent to
take any cross-objection as he was not the person aggrieved by
the decree. Under the amended CPC, read in the light of the
explanation, though it is still not necessary for the respondent to
take any cross-objection laying challenge to any finding adverse
to him as the decree is entirely in his favour and he may support
the decree without cross-objection; the amendment made in the
text of sub-rule (1), read with the explanation newly inserted, gives
him a right to take cross-objection to a finding recorded against
him either while answering an issue or while dealing with an
issue. The advantage of preferring such cross-objection is spelled
out by sub-rule (4). In spite of the original appeal having been
withdrawn or dismissed for default the cross-objection taken to
any finding
by the respondent shall still be available to be
adjudicated upon on merits which remedy was not available to
the respondent under the unamended CPC. In the
pre-amendment era, the withdrawal or dismissal for default of
the original appeal disabled the respondent to question the
correctness or otherwise of any finding recorded against the
respondent.”
               (emphasis supplied)
This position has been reiterated in Hardevinder Singh v. Paramjit
Singh and others13.
33. In Mohan Lal (deceased) Through His Lrs. Kachru and
others v. Mirza Abdul Gaffar and another14, this Court held that the
13(2013) 9 SCC 261
14(1996) 1 SCC 639
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appellant’s first plea of adverse possession was inconsistent with the
second plea of possession being retained under Section 53A of the
Transfer of Property Act, 1882. It was further held that having coming
into possession under the agreement, he must disclaim his right
thereunder and plead and prove assertion of independent hostile
adverse possession to the knowledge of the transferor.
THE CASE LAW RELIED UPON BY THE RESPONDENTS
34. Reliance is placed on the decision of the High Court of Bombay
at Goa in Sheela Rodrigues and another v. Lourencinha Ana D’Cruz
Rodrigues Fernandes15 for the view that inventory proceedings are in
the nature of a declaration of ownership rights and that it is like a
judgment in rem. This is to apparently contend that it was necessary for
Gones to object at the given time.
35. The decision of this Court in Raj Narain Pandey and others v.
Sant Prasad Tiwari and others16, is relied upon to contend that in the
matter of a local law, the view taken by the High Court over a number of
years should normally be adhered to. This has been reiterated and pointed
out by this Court in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat17.
36. The decision of this Court in Dilboo (Smt.)(Dead) by Lrs. and
others v. Dhanraji (Smt.)(Dead) and others18, is relied upon to contend
that once there was registration of a document, there is deemed
knowledge regarding the same and limitation would begin to operate.
Respondents also seek support from
the judgment of this Court in Vishram
alias Prasad Govekar and others v. Sudesh Govekar (Dead) by Legal
Representatives and others19  wherein this Court held as follows:
“18. We have already noticed above, the basis on which the first
appellate court as well as the High Court has held that the plaintiffs
are the owners of the suit property, which rights they have inherited
from Vassudev Govekar, father of Plaintiffs 1 to 3. Findings of
the courts below are that the suit property viz. Talhao No. 168 of
Communidade of Anjuna, was acquired by VassudevGovekar from
Communidade of Anjuna under No. 131/1963 on 24-2-1970 as a
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
15(1999) SCC ONLINE Bombay 109
16(1973) 2 SCC 35
17(1994) 4 SCC 1
18(2000) 7 SCC 702
19(2017) 11 SCC 345
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permanent grant for the construction of the house. In order to
prove this ownership, not only the said grant was produced on
record, the plaintiffs also filed evidence of the inventory
proceedings initiated upon the death of Vassudev Govekar which
described the suit property. Additionally, duly promulgated survey
records showing the property standing in the name of
VassudevGovekar were also produced.
       xxx
xxx
xxx
20. Pertinently, the learned counsel appearing for the appellants
could not contest the aforesaid approach of the courts below. It is
for this reason, he took an altogether different route by arguing
that joint ownership in the property in question was admitted by
the plaintiffs themselves for which purpose he referred to the
averments made in the plaint filed by the plaintiffs. In the first
instance, we find that no such argument predicated on such
pleadings have been taken in the courts below. Be that as it may,
since the defendants rely upon the pleadings of the plaintiffs
themselves, we proceed to examine the weight in this submission.
A closer and minute look into the pleadings would show that there
is no admission on the part of the plaintiffs about the co-ownership
insofar as the suit property is concerned. In Para 3 of the plaint,
the plaintiffs have given the description of the suit property which
is popularly known as “Devalvadi” bearing Survey No. 251/2
situate at Chinvar in the village of
Anjuna, Bardez, Goa, having an
area of 1000 sq m. What is significant is that this property bears
Survey No. 251/2 and the plaintiffs described the same as the
“suit property”. In Para 4, it is mentioned that Vassudev Govekar
acquired this property from Communidade of Anjuna. In Para 6 it
is mentioned that on this suit property, incomplete structure was
raised by Vassudev Govekar which the plaintiffs referred to as
the “suit house”. Thus, the ownership is claimed by the plaintiffs
through Vassudev Govekar who acquired the property bearing
Survey No. 251/2 (the suit property) on which he constructed
incomplete structure (the suit house). At the same time, in Para 5,
which is relied upon by the defendants in their attempt to show
admission of the plaintiffs as to co-ownership, the plaintiffs have
stated that towards the eastern side of the suit property, there
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exists another property bearing Survey No. 251/4. The plaintiffs
pleaded that on this land, whereupon a house is also constructed,
belonged to their grandfather Jagannath Govekar (father of
Defendant 1) and it is this property which the plaintiffs say is in
the co-ownership of the plaintiffs and the defendants. Thus, the
statement about the plaintiffs and the defendants as co-owners in
title and in possession pertains to property bearing Survey No.
251/4 which is not the subject-matter of the suit.”
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. The respondents contend that there
is no concept of trust in civil law system which prevailed in Goa under
the Portuguese Code. The case based on trust was never pleaded in the
plaint.
38. Eurekha Builders and others v. Gulabchand, S/o Veljee Dand
Since Deceased By Legal Representatives and others20  is relied upon
to contend that rights, including title, can be extinguished by the passage
of time. Article 505 read with Article 535 of the Portuguese Code
resulted in extinguishing the right of Gones. Assuming for argument sake
that there existed certain rights with Gones under the Settlement Deed
of 1919, it is said that all such rights stood extinguished in 1939, i.e., 20
years from 1919 or in 1949, i.e., 30 years from 1919 under
Article 535.
Even before Goa became territory of Indian Union, the rights of Gones
had already been extinguished.
39. Reliance is also placed on paragraph 30 of the judgment of
this Court in Khatri Hotels Private Limited and another v. Union of India
and another21  in regard to the effect of Article 58 of the Act. Therein,
this Court held as follows:
“30. While enacting Article 58 of the 1963 Act, the legislature has
designedly made a departure from the language of Article 120 of
the 1908 Act. The word “first” has been used between the words
“sue” and “accrued”. This would mean that if a suit is based on
multiple causes of action, the period of limitation will begin to run
from the date when the right to sue first accrues. To put it
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
20 (2018) 8 SCC 67
21 (2011) 9 SCC 126
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differently, successive violation of the right will not give rise to
fresh cause and the suit will be liable to be dismissed if it is
beyond the period of limitation counted from the day when the
right to sue first accrued.”
40. It is their case that the suit being one for declaration of title
also, the suit is clearly barred as the right to sue first accrued in 1925.
41. Lastly, it is contended that the Court may take notice of the
law laid down by this Court in Taherakhatoon (D) by Lrs. v. Salambin
Mohammad22 and refuse to exercise discretion in favour of the
appellants, having regard to the various facts, the long lapse of time,
after the documents of the year 1913,1915, 1919, 1925, and the
developments which have taken place in the meantime.
42. The first question we must pose and consider is what exactly
is the property which is involved in the litigation.
43. 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.
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 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
22(1999) 2 SCC 635
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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.
PRESCRIPTION UNDER THE PORTUGUESE CIVIL CODE
45. Undoubtedly, the properties being located within the present
Union territory was governed by the Portuguese till 20.12.1961.  On
20.12.1961, the territories of Goa, Daman and Diu were included as
Union territories.  Article 505 relied upon by the respondents defines
prescription.
“Article 505 – Things and rights are acquired by virtue of
possession, just as obligations are extinguished by the fact
of not demanding their fulfilment.  The law lays down
conditions and the period of time, that is necessary, for one,
as well as for the other.  This is called prescription.
Sole Paragraph: The acquisition of things or rights by
possession is known as positive prescription; the discharge
of obligations by reason of not demanding their fulfilment is
known as negative prescription.”
Article 535 is also relied upon by the contesting respondents.  The
same reads as follows:
Article 535 -Whoever has incurred in an obligation, or to do
something to another, stands relieved of the obligation, if its
performance is not demanded for a period of 20 years, and
the obligant is in good faith, at the end of the prescription
period, or when the performance is not demanded for a period
of 30 years, regardless of good faith or bad faith, except
where special prescription are provided in law.
Sole paragraph: Good faith in the case of negative prescription
consists in the ignorance of the obligation.  This ignorance is not
to be presumed in case of persons who originally contracted the
obligation.”
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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46. A Bench of three learned Judges in Syndicate Bank vs. Prabha
D. Naik 2001 (4) SCC 713 had occasion to consider the Portuguese
Civil Code.  In the said case the appellant Syndicate Bank instituted a
special suit for recovery of money advanced.  The loan was granted in
July 1978.  The respondents agreed to pay the amount by December,
1978.Loan was granted on execution of promissory note and a deed of
hypothecation. Plea of bar of limitation was raised as suit was filed in
1985.  The appellant thereupon relied upon Article 535 which we have
adverted to above.  It was contended by the appellant Bank that the law
of limitation in Goa was to be treated as the law under Portuguese Civil
Code.  Therefore, the period of limitation as prescribed under the
Schedule I of the Indian Limitation Act would not apply.  This Court
referred to Section 5 of the Goa, Daman and Diu (Administration) Act,
1962 which contemplated continuance of laws in force before the
appointed day in Goa, Daman and Diu or any part thereof until amended
or repealed by a competent legislature or other competent authority.  It
is relevant to refer to para 13, 14 and 16, the same reads as under:
“13. Admittedly, the Portuguese Civil Code continued in the Union
Territory of Goa, Daman and Diu by virtue of Section 5 of the
Goa, Daman and Diu (Administration) Act, 1962 which provides
that the existing laws shall be continued in force in the Union
Territory
until amended or repealed by a competent legislature.
We may also note Regulation 12 of 1962 which provides for
extension of certain laws mentioned in the Schedule to the
Regulation, to wit: The Negotiable Instruments Act, 1881 and the
same was brought into effect in the Union Territory of Goa, Daman
and Diu with effect from 1-12-1965. In Goa, Daman and Diu
(Laws) (No. 2) Regulation, 1963 (Regulation 11 of 1963), provisions
akin to those contained in Regulation 12 are found under which
the Indian Contract Act, Sale of Goods Act and Transfer of
Property Act were brought into force in the Union Territory from
1-11-1965 and 1-12-1965 respectively. The situation thus emerges
having regard to the two regulations noticed hereinbefore
(Regulation 11 and Regulation 12) that both the Negotiable
Instruments Act and the Contract Act together with some other
statutes have been made applicable to the State by appropriate
legislative authority. The promissory note signed by Respondent 1
herein and the guarantor issuing a guarantee thereof cannot but
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be termed to be the subject within the meaning of the Negotiable
Instruments Act. In any event, and obviously on the factual score,
there was also existing a deed of hypothecation which cannot
also but be termed to be a contract within the meaning of the
Indian Contract Act which stands applied in the State of Goa,
Daman and Diu. It is, therefore, to be seen as to whether specific
legislations containing the subjects under which the cause of action
had arisen, would govern the field or the procedural law assuming
it would have its due application in replacement of the governing
statute. This however, involves a wider debate and this Bench
has not been called upon to answer the same, as such we refrain
ourselves from expressing any opinion in regard thereto but the
fact remains that both the Negotiable Instruments Act and the
Contract Act have been included in terms of the Regulations
noticed above and as such, made applicable in the State of Goa,
Daman and Diu.
14.Be it noted that Article 535 containing the provisions of limitation
in Chapter III regulating the contracts in the Portuguese Civil
Code, which however stands replaced by the Indian Contract Act.
The prescribed period for limitation pertaining to the contracts
being in the same Chapter under the Contract Act cannot be said
to be surviving as an independent provision rather than going along
with the other provisions of the contract which by reason of
adaptation of the Contract Act stand
replaced. It thus cannot but
be said to be an implied repeal. The necessity of having an express
repeal was never felt by reason of the factum of adaptation of the
Indian Contract Act insofar as Chapter III is concerned. Either
the Chapter survives in its entirety or it perishes in all its spheres
— it is one Chapter dealing with contract and prescribes the period
of enforcement of the same, no dissection is possible.
16. Article 505 of the Civil Code provides for acquisition of things
and rights by possession and the same is ascribed to be positive
prescription and discharge of obligations by reason of not
demanding their fulfilment is known as negative prescription. The
word “prescription” is in general a mode of acquiring title to
incorporeal hereditaments by continued user, possession and
enjoyment during the time. Article 535 prescribes a negative
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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element of prescription which is akin to adverse possession. A
prescriptive right however, differs from adverse possession, since
prescription relates to incorporeal rights while adverse possession
applies to an interest in the title to property. “Prescription” is usually
applied to acquisition of incorporeal hereditaments and negative
prescription obviously is a negation of such an acquisition.
“Prescription” admittedly, is a part of substantive law but limitation
relates to procedure, as such prescription differs from limitation.
The former is one of the modes of acquiring a certain right while
the latter viz. the limitation, bars a remedy, in short, prescription is
a right conferred, limitation is a bar to a remedy. Chapter II of the
Portuguese Civil Code provides detailed articles pertaining to
prescription. Corpus Juris Secundum, Vol. 72 described the word
“prescription” as below:
“In law prescription is of two kinds: it is either an instrument for
the acquisition of property or an instrument of an exemption only
from the servitude of judicial process. In the first sense, as relat-
ing to the acquisition of property, prescription is treated in adverse
possession. In the second sense, as relating to exemption from
the servitude of judicial process, prescription is treated as Limita-
tion of Actions.”
               (emphasis supplied)
47. The Court proceeded to take the view that having regard to
the
applicability of the Indian law namely the Contract Act, Negotiable
Instrument Act, the extinction of remedy under the Portuguese law can-
not but be deemed to be impliedly repealed.  It was further held that
“having regard to the factum of Article 535 being a procedural aspect
and not being a substantive right, the Court was not contemplating the
situation under the Private International Law, but the distinction between
substantive and procedural law has a meaningful existence herein.
The Court approved the earlier view taken by this Court in
Justiniano Augusto De Piedade Barreto v. Antonio Vicenta Da
Fonseca and Others 1979 (3) SCC 47 as laid down.  As can be seen
from the facts the transaction of loan arose in the year 1978 after the
contract Act and the Negotiable Instrument Act were made applicable
in Goa.
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In this case the respondents relied upon Articles 505 and 535 to
contend that the right of Gones was extinguished, by virtue of Article
505 and 535.  The argument is on the following basis.  Gones did not
figure as a transferee in the sale deed dated 17.11.1915 executed in
favour of Suriaji and Another.  Four years thereafter, the document styled
as settlement deed came to be executed on 27.1.1919.  It is solely based
on the clause in the same that the entire suit is apparently filed by the
appellant.  The clause reads as follows:
“…Further the party of the first part Suriaji stated that the
purchase made by him by the aforesaid sale deed dated 17th
November, 1915, was made for himself and for the said 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 along with
the said Shanntibai to transfer in the name of the said Ganesa 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 the
half of the amount which has now been paid to the party of the
second part Locximii from the money of the dowry of his wife...”
48.  It is, therefore, the contention that at best Suriaji came under
an obligation within the meaning of Article 505 read with Article 535, to
transfer in favour of Gones as contemplated under the clause in the
document
dated 21.1.1919.  It is their case that calculated from 21.1.1919
the period of 20 years would end in 1939 and at any rate the period
certainly would end in 1949 on the expiry of 30 years from 21.1.1919.
On the expiry of the period of 30 years from 1919, therefore, the case of
the respondents is that under Portuguese law which undoubtedly held
the field before the Limitation Act of 1963 was made applicable with
effect from 1.4.1964 the negative prescription extinguished whatever
right, if any Gones had in the property.
49. We must at once consider the request of the appellant to apply
the principle laid down in the decision of this Court in the case of Syndicate
Bank vs. Prabha D. Naik(supra).  If the argument based on Articles
505 and 535 is accepted, then it would be found that the obligation in
regard of Suriaji would be extinguished. The decision in Syndicate Bank
(supra)relied on by the appellants is clearly distinguishable. In the said
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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case, as noticed, the transaction was entered into in the year 1978. A
promissory note which is a negotiable instrument came to be executed.
At the time when it is so executed, the contract entered into, provided
for repayment of the amount by the debtor, the Contract Act and the
Negotiable Act were made applicable to the State of Goa, Daman and
Diu. This formed the fundamental basis for the Court’s finding that the
extended period of limitation available under Article 535 of the Portuguese
Civil Code would no longer be available. Unlike the fact situation in the
said case, we are in this case called upon to pronounce upon whether
there was extinguishment of the obligation and consequential right under
the obligation. At the time when Portuguese Civil Code was the only law
which is applicable, the appellant relied upon the document of 1919.If
the case is to be resolved on the basis that Suriaji was under an obligation
to do something that is transferring the property certainly such an
obligation would stand extinguished at the latest on the expiry of 30
years, namely, on 21.01.1949 and earliest by 21.01.1939.If that is the
position then when the Limitation Act of 1963 came into force on
01.04.1964 and under the erstwhile law, viz., Portuguese Civil Code,
Suriaji and the contesting defendants stood freed from the obligation
under the negative prescription contained under Article 535, then Articles
505 and 535 would be
fatal to the appellants.
What however, is the effect of Article 537?.  According to the
appellants in the Settlement deed dated 21.1.1919 the word used are ‘at
any time’.  In view of the same Article 537 stood attracted.  Article 537
is an exception to Article 535 runs the argument of the appellants.  Article
537 reads as follows:
Article 537-Obligations attached to non transferable rights or to
those not subjected to time limitations, do not attract prescription”.
When any time limit is not attracted the obligation under the
Portuguese law it could be enforced at any time, runs the argument.
50. It is necessary also to consider the question relating to title
sought to be set up by the appellants.
The entire 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, 1/4th share
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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 set out.
51. According to the respondents the following is interpretation to
be placed on the same.  A document was executed for settlement of
accounts of sociedade between the vitol and the venctexa branches of
the Navelkar family.  Breaking down the controversial clause(See para
47), it is the contention of the respondents that it was Suriaji who has
actually paid for the purchase of the property in question.  In this regard
reliance is placed on the expressions ‘he/his and himself’.  Except for
the use of the word ‘he’ in the underlined portion it is their case that the
words ‘he, his and himself’ have been used to refer to Suriaji.  It is only
the word ‘he’ which is underlined  that has been used to refer to Gones.
The case is that the documents were drawn in Portuguese and there
was lack of clarity in translations.  It is further contended that the
Gones
was a minor when the property was purchased and he started earning
only in 1925 which is admitted by PW1 when he stated that Gones was
Puberto in 1919 and he started earning after 1925.They have a definite
case that the civil law system prevalent in Goa till 19th December, 1961
when it became an Union territory did not recognize equitable title and
unless a proper document of transfer was executed Gones could not
derive any title.  It is their further case that the deed dated 21.1.1919
was at best in the nature of an agreement to sell.  Such a promise to sell
is governed by Article 1548 of the Civil Code.  Article 1548 of the Civil
Code is as follows:
“Article 1548: A simple reciprocal promise of purchase and sale,
being accompanied by specification of price and description of
thing constitutes a mere agreement to perform a fact, which shall
be governed by general terms of contract, with the difference,
however, that where the earnest money is paid, i.e. any amount
received by the promissory vendor, forfeiture of the same or its
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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restitution in double shall be the compensation for loss and
damages.
Sole paragraph: In case of immovable properties, the contract
must be drawn in writing and, if made without consent of the wife
of prominent promisor vendor, the later shall be liable to compensate
the promise purchaser for loss and damages.”
This is the submission of the respondents. The following testimony
of P.W.1 may be relevant:
“……I now say that the said agreement to transfer agreement
was conditional depending on the exercise of the option by Gones.
It is true that the agreement of Exh.F, namely the said Deed is a
conditional agreement to transfer the registration in the name of
Gones by said Suryaji…..”
“……..The said Gones never exercised to have the registration
of the property or even transfer the property in his name during
the entire 60 years period beginning from 1919 till 1978…..”
“….the obligation to reimburse Surya did not devolve on the heirs
of Gones…..”
“I also do not know what was the exact amount which had to be
paid by Gones to Suriyaji to effect registration of the property.”
52. Respondents would further contend that the sale deed in terms
of Article 1519 must be reduced to writing and if the value exceeded
1000 excudos it had to be registered under Article 949.  Respondents
would contend that finding of the High Court in regard to title is erroneous
and cannot be sustained.  The High Court has found inter alia as follows:
“Admittedly, no time limit is fixed for the payment of the share or
exercise of right in the Deed dated 21.1.1919.  This document
also does not specify that a prior payment should be made by
Gones due to be made thereunder, or that such payment is a
condition precedent..”
The respondents further contended that under Article 949 of the
Civil Code, certain documents where rights in immovable property were
created have to be registered. They included transfers of immovable
property gratuitously, onerously and all transmission of properties or
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corporeal immovable property and mere possession were acts which
were subject to registration under Article 949.  Article 960 is also relied
upon which provides that the registration record is also to be maintained
in whose favour the transmission is made.  It reads as under:
“Article 960: The extract, of inscription against the description
besides serial number and date of the year, month and day and
the date of the title deed as the date its presentation for registra-
tion shall contain:
Paragraph 1; xxx
Paragraph 2 : the name, status, profession and domicile:-
1. xxx
2. Of the person in whose favour the transmission is made in the
cases of transmission of immovable properties”
It is their case that such transmission was made only in favour of
Suriaji and Laxmi under the sale deed dated 17.11.1915.
53. The appellants no doubt would contend that the High Court
had found title with Gones and there is no cross objection filed by the
contesting respondents.  It is their case that without cross objection it
would not be open to the respondents to ask this Court to interfere with
the finding of title.  In this regard they placed reliance on the judgment of
this Court in Hardevinder Singh v. Paramjit Singh 2013 (9) SCC 261.
The appellants would contend that Gones paid half the price for the
purchase dated 17.11.1915 which too stood acknowledged in the deed
of dissolution dated 21.1.1919.  There is a solemn undertaking to transfer
Gones share whenever he paid
Rs.1000/- as his half share of the dowry
amount of Rs.2000/- paid by Suriaji.  The gift made on 14.4.1925 by
Suriaji does not take away the rights of Gones under the sale deed dated
17.11.1915 as acknowledged in the dissolution deed dated 21.1.1919.
Reference is made to the finding by the trial court that Gones has
admittedly paid half of the purchase price out of Rs.13022/- for the
purchase of the suit property.  Therefore, the amount of Rs.1000/- was
over and above the purchase price and resultantly non-payment of
Rs.1000/- had no bearing on the title of Gones which he derived from
the purchase.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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54. Before we consider the question, it is necessary to enter the
actual findings rendered by the High Court in regard to the title.  The
High Court finds that recognition of share of Gones is done in document
dated 21.1.1919.  It is further found as under:
“31. Admittedly, no time limit is fixed for the payment of share or
exercise of right in the Deed dated 21.1.1919. This document
also does not specify that prior payment should be made by Gonesh
due to be made thereunder, or that such payment is a condition
precedent. Thus, acknowledgment of liability to part with property
described therein is absolute and unambiguous. This document
contains an unambiguous recital about acknowledgment of
existence of right of Gonesh to the properties.”
Right of Gonesh to receive share, is thus, crystalized, and he has
derived a right enforceable in law and according to law.”
We have 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 cross objection.
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QUESTION RELATING TO TITLE
55. The findings of the High court can be culled out as follows:
1.  Suriaji has admitted that 1/8th of ‘M’ and ¼ of ‘B’ was
purchased by him for Gones and Gones was supposed to pay
his contribution as indicated therein.
2.  No dispute can be raised as regards this promise or
declaration in the deed.
3.   Admittedly no time limit is fixed for the payment of share or
exercise of right in the deed dated 21.1.1919.
4.   The document does not specify that prior payment should be
made by Gones or that the payment is a condition precedent.
5. Acknowledgment of liability to part with property is absolutely
unambiguous and the document contains an ambiguous
recital about acknowledgment of existence of right of Gones
to the property.
6.   Finally it is found that the right of Gones to receive share, is
thus, crystallized and he has derived a right enforceable in
law and according to the law.
56. Let us also see how the High Court finds that the appellants
are not entitled to relief.
i.
   Gones was a vogal in inventory proceedings. In the said
proceedings property ‘M’ and ‘B’ were allotted to widow of
Suriaji, viz., Shantibai. If Gones has to enforce his right under
the deed, he had to object the allotment of share in view of a
document dated 21.01.1919. He did not object. Event relates
to 1925 which attained finality when rights accrues to Shantibai
in the inventory proceedings which were registered into
records around 1940.
ii.    The
allotment of share in inventory was not challenged by
Gones by way of suit between 1925 and 1940 or at any time
during his lifetime. The court does not accept the case of the
appellants that though there was separation of family and a
partition, the parties continued in joint enjoyment and the share
of income was initially given to Gones and then the wife of
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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Gones. Having acquiesced with the allotment of share to the
wife of Suriaji though his property could not have been given
to Laxmibai (this must be Shantibai), Gones and his heirs are
estopped from opening up the succession after long span of
over two decades.
iii
   It is not the plaintiff’s case that there was no knowledge of
registration of property in the name of shantibai way back in
1940.Therefore it is found that whatever right or interest
survived with Gones was lost as he did at any point of time
challenge the allotment of property of Shantabai which has
become final for want of challenge.
iv.       After recording the property in the name ofShantibai and her
heirs enjoyed the property in exclusion to plaintiff and
supporting defendants openly.  Denial of right of Gones or his
exclusion and ample denial relates back to 1925 and it has
culminated by absoluteness in 1940.  Right of Gones to have
separate possession by partition or otherwise if he wanted to
assert it on the basis of settlement deed that arose latest in
1940.   As he did not enforce his right to seek partition and
enforcement of the right under the settlement deed of 1919
was lost.
57.  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 by 1940.
Coming to 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.
58. 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 showGones as a transferee.
The document dated 21.1.2019 is described as a deed of
declaration, fixation of balance of accounts, payment and obligation.
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Parties of the first part are described as Suriaji and his wife Shantibai
aged15  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.  Whether it amounts to an admission
or acknowledgment by Suriaji that Goneshis 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 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?
59. The first thing we have to consider in this regard is the
argument raised by the respondents that the words ‘he’ has paid for half
the price for the said purchase should be understood as meaning Suriaji
has paid for half of the price of the said purchase and this means that
Suriaji was the full owner under the sale deed and Gones did not acquire
any right as such.  This is supplemented by the submission that Gones
was a minor in 1915.  He began to earn only in 1925 and therefore, there
is no question of his having paid any part of the consideration for the sale
dated 17.11.1915. On the other hand, it is the case of the appellants that
one half of the consideration was paid by Gones.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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60. In resolving this controversy, it is but apposite that we may
refer to the pleadings of the parties.  We may refer to para 11 of the
plaint.  The same reads as under:
“11. It is in the said Deed of 21.1.1919 that Suria alias Suriaji
Porobo expressly admitted that the purchase of the 1/4th of the
property Mollans and ½ of the property Bainguinim made under
the Deed dated 17.11.1915 was for self and for his brother Gones
who paid its price at the time of the purchase and therefore Suria
and his wife Shantibai undertook to effect the transfer of
registration in the name of Gones upon Suria being reimbursed by
Gones in the payment of ½ of the amount paid by Suria to Loximi
(widow of Vitol Porobo) in consequence of the settlement of
accounts made at the time of dissolution of Society. The period
for exercising of option by Gones to make the reimbursement
was however unlimited.”
The contesting respondents-defendants 1,2,30 and 31 in their
written statement inter alia stated as follows:
“In the year 1919, the undivided joint family of Navelkars came to
be dissolved and in the Deed of Dissolution and Settlement dated
21.01.1919, there is a mention that the said Surya had purchased
the properties i.e. half of ‘Bainguinim’ and 1/4th of ‘Mollans’ and
also on behalf of his brother Ganesh and had agreed to transfer a
share of the said two properties in favour of the said Ganesh
provided the said Ganesh pays to him Rs. 1000/-
being
reimbursement towards the amount paid by him on behalf of
Ganesh to Laxmibai. However, it is not on record that the said
Ganesh ever paid the said amount of Rs. 1000/- to the said Surya,
which was a condition precedent for effecting transfer of undivided
share in the said two properties, in favour of the said Ganesh and
it cannot be said that the period for payment of the said amount
was unlimited.”
The reply to the averment in para 11 of the plaint are contained in
para 25 and it reads as follows:
“25. The contents of para 11 of the plaint are partially admitted.
These defendants deny that the period of exercising of option by
Ganesh to make the reimbursement was unlimited as alleged. The
acknowledgement as mentioned in the said deed dated 21.1.1919
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by the said Surya and conditional and it appear that the said Surya
performed the said acknowledgment by making a Gift Deed dated
14.04.1925 which was pursuant to the said acknowledgment apart
from the fact that the said Gift Deed dated 14.4.1925 also appears
to be shaddy document, the same having been executed a little
before the death of the said Surya, thereby reflecting on its
authenticity on the point of the same being a voluntary act. It is
quite possible that the said Surya and his widow were coerced
into making the said Gift Deed dated 14.4.1925 reminding them
of the acknowledgment expressed by the said Surya in the
Dissolution Deed dated 21.1.1919.”
In the written statement filed by defendants 3,4,5 and 6 also, the
reply to the averment contained in para 11 of the plaint is contained in
para 7 of the written statement and the same are extracted below:
“With further reference to para 11 of the Plaint these defendants
say that the subsequent conduct of both Suriaji and Ganesh shows
that the idea of transfer in the name of Ganesh ½ of the property
purchased by Suriaji by deed dated 17.11.1915, was given up and
consequently the said Ganesh never expressed any desire to have
the transfer made in his favour nor did he pay any amount
concerning the dowry of Shantibai, and no transfer mentioned in
the said Deed dated 21-1-1919 was effected. These defendants
say that the said statement of Suriaji regarding the transfer was
never acted upon either by
Suriaji or by Ganesh. The said statement
made in the said deed dated 21-1-1919 should at the most amount
to a simple promise for the sale on the part of Suriaji in terms of
Article 1548 of Portuguese Civil Code, and would not confer in
the said Ganesh any right or interest in respect of the suit
properties.”
61. 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 be
accepted.
The view we have taken finds reinforcement from the words that
follow immediately in the sale deed 21.1.1919.  It is stated immediately
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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[2019] 14 S.C.R.
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 as follows:
The sale deed dated 17.11.1915 was executed in respect of 1/4th
of property ‘M’ and 1/2 of property ‘B’ in favour of Suriaji.  Another
1/4th 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 from Gones.
62.  The next part is where the matter becomes more vexed.  The
question is what is the nature of the right, 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 be deferred.
63. In the above perspective, let’s consider whether there is a
case that Gones offered Rs.1000/- to Suriaji during his lifetime and the
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transfer of mutation or of right was refused.  We do 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.
64. 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 1/4th 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 purchase and therefore, it was undertaken to transfer the
registration, upon Suriaji being reimbursed by Gones in the payment of
1/2.
It is admitted that the sale deed is in favour of Suriaji. It is nearly
4 years thereafter in the document 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 benamidaror 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
transaction being a benami transaction.  If benami was recognized 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.  In this regard we notice the
following discussion in Controller of Estate Duty, Lucknow v.Alok
Mitra in AIR 1981 SC 102:-
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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31. ..In Petheperumal Chetty v. MuniandyServai (1908) 35 Ind
App 98, the Judicial Committee quoted with approval the following
passage from Mayne’s HINDU LAW, 7th ed., para 446:
“Where a transaction is once made out to be a mere benami, it is
evident that the benamidar absolutely disappears from the title.
His name is simply an alias for that of the person beneficially
interested.”
The cardinal distinction between a trustee known to English law
and a benami darlies in the fact that a trustee is the legal owner
of the property standing in his name and cestui que trust is only a
beneficial owner, whereas in the case of a benami transaction
the real owner has got the legal title though the property is in the
name of the benamidar. It is well settled that the real owner can
deal with the property without reference to the latter. In Gur
Narayan v. Sheo Lal Singh, 46 Ind App 1: (AIR 1918 PC 140),
the Judicial Committee referred to the judgment of Sir George
Farwell in Bilas Kunwar v. Dasraj Ranjit Singh 42 Ind App
202: (AIR 1915 PC 96), where it was observed that a benami
transaction had a curious resemblance to the doctrine of English
law that the trust of the legal estate results to the man who pays
the purchase-money, and went on to say:
“... the benamidar has no beneficial interest in the property or
business that stands in his name; he represents, in fact, the real
owner, and so far as their relative legal position is
concerned, he
is a mere trustee for him.”
In Guran Ditta v. Ram Ditta, 55 Ind App 235: (AIR 1928 PC
172) the Judicial Committee reiterated the principle laid down in
Gopeekrist Gosain case (1854) 6 Moo Ind App 53 (PC) and
observed that in case of a benami transaction, there is a resulting
trust in favour of the person providing the purchase-money.”
Reference may also be made to para ‘33’, which reads as
follows: -
“33. The law is succinctly stated by Mayne in his TREATISE ON
HINDU LAW, 11th Edn., at p. 953, in the following terms:
“A benami transaction is one where one buys property in the
name of another or gratuitously transfers his property to another,
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without indicating an intention to benefit the other. The benamidar,
therefore, has no beneficial interest in the property or business
that stands in his name; he represents in fact the real owner and
so far as their relative legal position is concerned, he is a mere
trustee for him. In other words, a benami purchase or conveyance
leads to a resulting trust in India, just as a purchase or transfer
under similar circumstances leads to a resulting trust in England.
The general rule and principle of the Indian law as to resulting
trusts differs but little if at all, from the general rule of English law
upon the same subject.”
65. Thus, a purchase which is made benami, leads to a resulting
trust.
Goa continued under Portuguese Rule and it was not a part of
British India. There is a definite case for the respondents that the law of
trust, as such, did not apply in Civil Law countries and the portuguese
who were governed by Civil Law did not recognize the law of trust.
66. Incidentally we find that in eBook nº 32 Trusts, Foundations
and Fiduciary Structures by Dennis Swing Greene, we may incidentally
notice in Part 2: Portugal and Trusts under the head IV. Trusts under
Portuguese Law, the same reads as under:
“Trusts as a Contract
With the exception of the Madeira Free Trade Zone (where trusts
are recognized when created under the laws of another
jurisdiction), Porgtuguese law does not formally acknowledge the
fiduciary concept implicit in a Trust whereby the
rights are divided
between the legal title in the hands of the trustees and the equitable
rights with the beneficiaries.  This lack of legal recognition raises
several questions as to their tax and legal treatment.
Portuguese law views a trust as a contract.  All transactions
involving trusts are deemed to be made with the trustees – the
legal owners of the trust’s assets – rather than with the entitled
beneficiaries under the terms of the trust.  Beneficial interest is
not a right formally recognized under Portuguese legislation…”
67. 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.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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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
approved of.
68.  In law, how can Gones claim to be a co-owner? He must first
become an owner. Section 82 of the Trust Act recognized that when a
person transferred property to another for consideration, which is paid
by a third party then the said person would be the beneficial owner. The
transferee 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 the appellant.
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.
69. 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
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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 asvogal 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.
70.  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 High Court.
The question is whether the High Court is right in its findings based on
no objections being taken to the property being allotted to Shantibai.  We
have already extracted the findings of the first appellate Court in this
regard. We may at this juncture consider the contentions based on
inventory proceedings held upon the death of Suriaji.
INVENTORY PROCEEDINGS
71.  According to the appellants, inventory proceedings arise out
of the inheritance by partition among the heirs of the deceased person.
It is treated as a deed of partition and requires registration under Section
45 of the Registration Act but it is not registered under Section 17 of the
Registration Act, 1908. The burden of proving the case based on inventory
proceedings was squarely on the defendants which they have failed to
discharge.  No details of the precise date in 1925 or of the time and
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
12003 (8) SCC 204
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place where the proceedings took place has ever been established. There
is no evidence adduced by the defendants. The inventory proceeding
itself is not produced. The defendants’ witness was 36 years old on the
date of evidence and was, therefore, not alive in 1925. Defendant No. 5
who was alive at the time when alleged inventory proceedings took place
was not examined.  Punit Rai v. Dinesh Chaudhary23,  is relied upon
apparently to contend that the evidence of Defendant No. 5, was not
adduced and it would mean that had the evidence been produced, it
would not have supported the case of the defendants. It is sought to be
contended that, that Gones has intervened as vogal, is not substantiated.
In fact, in this context, reliance is also placed in P. John Chandy and Co.,
(supra) in regard to inaction is concerned. It is also contended that without
prejudice to the aforesaid contention, since Ganesh held property jointly
with his sister-in-law, she could not have inherited more than what Suriaji
possessed. In regard to the enrolment dated 09.10.1937, it is stated to be
wrongly construed as being registration of the inventory proceedings. It
is mere a typed document without signature. The property does not pass
and the inventory could not have been received in evidence.
72. Per contra, the contesting defendants would point to the
evidence of PW-1 himself that Gones was a member of the family council
in the inventory
proceedings on the demise of Suriaji which is gathered
from his records. Reliance is placed in Sheela Rodrigues vs.
Lourenchinha Ana D’Cruz Rodrigues Fernandes24  which has
recognized that the proceedings were in the nature of declaration of
ownership rights to the estate of the deceased. The declaration is like a
judgment in rem and therefore, it was all the more necessary for Gones
to object at the given time, which he admittedly did not. Inventory
proceedings are inevitable under Article 156, Article 2064, upon the
opening of the inheritance. By virtue of marriage, the doctrine of
communion applies and Shantibai was owner of 50% of all properties of
Suriaji and the inheritance was related to the balance 50%. The Family
Council is composed to protect the interests of the minors, and was
constituted under Article 207.  Article 218 prevents any member of the
family council from voting or assisting where there is a conflict of interest.
Thus, if Gones had ever considered as having title to half of the properties
purchased by Suriaji under Sale Deed, it would involve conflict of interest.
In the event of any third party having a right of properties. Article 2078,
241999 SCC Online Bom 109 paras 8-11
252000 (7) SCC 702
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provides listing of such properties separately and the same reads as
follows:-
“Article 2078 – Where there are, in the inheritance some properties
belonging to a third person or which devolve to any heir in
preferential manner, they shall be listed separately, alongwith the
respective documents.
Sole paragraph : The properties belonging to a third person shall
not be delivered to him when there are some doubts, unless the
said third person proves his right.”
Gones would never have silently stood by and allowed the property
to be listed as property of Suriaji and he would have claimed the property
to be listed separately as belonging to a third party, it is contended.
73. Relying on Dilboo (Smt.)(Dead) by Lrs. and others v. Dhanraji
(Smt.)(Dead) and others25,  it is contended that where there is a
registration, there is deemed knowledge and the limitation runs from the
said date. Gones would have objected to the inscription in 1937. He lost
right over half of Mollans which was sold in a public auction. The
properties have to be appraised for licitation and partition as provided
under sub-division V of Article 2126 onwards of the Civil Code.
74.  There would be an appraisal in the case of inventory between
majors and minors which was the case when Suriaji died. The appraiser
is appointed under Article 2091 by the Family Council [of which Gones
was a member].
75. In Damodar Ramnath Alve v. Gokuldas Ramnath Alve and
others26, relied upon by the appellants,
the learned Judge of the High
Court of Bombay, Panaji notes that in inventory proceedings there is no
decree passed as in a suit. In Zacarias DurateDomingos Pereira v. Camilo
Inacio Pereira27, Justice M.D. Kamath had this to say about nature of
inventory proceedings:
“Inventario proceedings are proceedings instituted for the
administration of the estate of the deceased person. They provide
for the preparation of the list of assets of the deceased, payment
of debts, collection of credits of the estate, payment of legacies,
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
242000 (7) SCC 702
25MANU/MH/0535/1996
261990 (1) Goa LT 174
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distribution of liquid assets etc.. These various steps cannot be
carried out under the procedure laid down under the Indian Code,
for suits.”
In Victor de Graca Pinto and ors v.  Lourdes de Graca Pinto e
Nazareth and ors.28, relied upon by the appellants, a learned Judge of
the High Court of Bombay at Panaji held in the context of a decree in
the inventory proceedings that since it not only declared the rights of the
parties but also had divided the shares by metes and bounds, it had to be
registered under Section 17 (2) of the Registration Act, 1908. The learned
Judge proceeded to, no doubt, hold that the decree could be executed
after such registration.
In Sheela Rodrigues and another v. Lourencinha Ana D’Cruz
Rodrigues Fernandes29 relied upon by the respondents, the contention
was taken that inventory proceedings were not suits. Section 22 of the
Civil Courts Act provided the context. After referring to Zacarias Durate
Dorningos Pereira v.Camilo Inacio Evaristo Pereira30, wherein it was
held that inventory proceedings are not suits, it was found that the
discussion in the said judgment was to find out whether an order in
inventory proceedings could be executed under Order XXI of the Code
of Civil Procedure or not. Finally, the Court held as follows:
      “11. As already seen above, the inventory proceedings are
initiated to enforce the remedy available under the law in relation
to right of inheritance. To
enforce the claim of inheritance to the
estate left behind by the ancestors of a party or parties, it is
necessary to have legal recognition to the claim of the party or
parties as regards the ownership of the estate left behind by the
ancestors and the same can be obtained by instituting proper
inventory proceedings in the Court of law.
     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.”
281999(3)ALLMR39
29(1999) SCC ONLINE Bombay 109
30AIR 1984 Bom 295
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ABANDONMENT AND ESTOPPEL
76. The question is however proceeding on the assumption Gones
had acquired title could he be said to have lost the title by his conduct.
The High 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.
77. In Sha Mulchand and Co.Ltd. v. Jawahar Mills Ltd, Salem
AIR 1953 SC98, 500 shares which stood in the name of company stood
forfeited.  One of the contentions which was taken was on principles of
estoppel and laches forfeiture cannot be challenged.  Justice S.R. Das
who wrote the main judgment proceeded to hold as follows inter alia:
“12. The Appeal Court, it will be observed, reversed the decision
of the trial Judge and decided the appeal against the Company on
two grounds only, namely, (1) that the Company had by the conduct
of its two members abandoned its right to challenge the forfeiture,
and (2) that the form of the order could not be supported as one
validly made under Section 38 of the Indian Companies Act. The
learned Attorney General, appearing in support of this appeal, has
assailed the soundness of both these grounds. The learned
Attorney General contends, not without
considerable force, that
having, in agreement with the trial court, held that no plea of
acquiescence, waiver or estoppel had been established in this case,
the appeal court should not have allowed the Mills to raise the
question of abandonment of right by the Company, inasmuch as
no such plea of abandonment had been raised either in the Mills’
affidavit in opposition to the Company’s application or in the Mills’
grounds of appeal before the High Court. Apart from this, the
appeal court permitted the Mills to make out a plea of abandonment
of right by the Company as distinct from the pleas of waiver,
acquiescence and estoppel and sought to derive support for this
new plea from the well known cases of Prendergast v. Turton [1
Y & CCC 111 : 62 ER 807] , Clark & Chapman v. Hart [2 HLC
632 : 10 ER 1443] and Jones v. North Vancouver Land and
Improvement Co. [LR 1910 AC 317] .
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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Further, whatever be the effect of mere waiver, acquiescence or
laches on the part of a person on his claim to equitable remedy to
enforce his rights under an executory contract, it is quite clear, on
the authorities, that mere waiver, acquiescence or laches which
does not amount to an abandonment of his right or to an estoppel
against him cannot disentitle that person from claiming relief in
equity in respect of his executed and not merely executory interest.
See per Lord Chelmsford in Clarke case [2 HLC 632 : 10 ER
1443] at p. 657. Indeed, it has been held in Garden Gully United
Quartz Mining Company v. Hugh McLister [LR 1 AC 39] that
mere laches does not disentitle the holder of shares to equitable
relief against an invalid declaration of forfeiture. Sir Barnes
Peacook in delivering the judgment of the Privy Council observed
at pp. 56-67 as follows:
“There is no evidence sufficient to induce Their Lordships to
hold that the conduct of the plaintiff did amount to an
abandonment of his shares, or of his interest therein, or estop
him from averring that he continued to be the proprietor of
them. There certainly is no evidence to justify such a conclusion
with regard to his conduct subsequent to the advertisement of
30th of May, 1869. In this case, as in that of Prendergast v.
Turton [1 Y & CCC 111 : 62 ER 807] the plaintiff’s interest
was executed. In other words, he had a legal interest in his
shares and did not
require a declaration of trust or the assistance
of a court of equity to create in him an interest in them. Mere
laches would not, therefore, disentitle him to equitable relief:
Clarke and Chapman v. Hart [2 HLC 632 : 10 ER 1443] . It
was upon the ground of abandonment, and not upon that of
mere laches, that Prendergast v. Turton [1 Y & CCC 111 : 62
ER 807] was decided.”
Two things are thus clear, namely, (1) that abandonment of right
is much more than mere waiver, acquiescence or laches and is
something akin to estoppel if not estoppel itself, and (2) that mere
waiver, acquiescence or laches which is short of abandonment of
right or estoppel does not disentitle the holder of shares who has
a vested interest in the shares from challenging the validity of the
purported forfeiture of those shares.
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In his concurring judgment Justice Vivian Bose further took the
following view:
“21.The position is different when the interest is executed and the
man has a vested interest in the right, that is to say, when he is the
legal owner of the shares with the legal title to them residing in
him. This legal title can only be destroyed in certain specified
ways. It is in my view fundamental that the legal title to property,
whether moveable or immovable, cannot pass from one person to
another except in legally recognised ways, and normally by the
observance of certain recognised forms. Confining myself to the
present case, one of the ways in which the title to shares can pass
is by forfeiture; but in that case an exact procedure has to be
followed. A second way is by transfer which imports agreement.
There again there is a regular form of procedure which must be
gone through. A third is by estoppel, though, when the position is
analysed, it will be found that it is not the estoppel as such which
brings about the change. The expressions abandonment, waiver
and so forth, when used in a case like the present, are only synonyms
for estoppel and despite hallowed usage to the contrary, I prefer
to call a spade a spade and put the matter in its proper legal pigeon
hole and call it by its proper legal name. These other terms are, in
my view, loose and inaccurate and tend to confuse, when applied
to cases of the present nature.
A man who has a vested interest and in whom
the legal title lies
does not, and cannot, lose that title by mere laches, or mere standing
by or even by saying that he has abandoned his right, unless there
is something more, namely inducing another party by his words or
conduct to believe the truth of that statement and to act upon it to
his detriment, that is to say, unless there is an estoppel, pure and
simple. It is only in such a case that the right can be lost by what
is loosely called abandonment or waiver, but even then it is not the
abandonment or waiver as such which deprives him of his title
but the estoppel which prevents him from asserting that his interest
in the shares has not been legally extinguished, that is to say, which
prevents him from asserting that the legal forms which in law
bring about the extinguishment of his interest and pass the title
which resides in him to another, were not duly observed.”
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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78.  We may also profitably refer to the judgment of this Court in
Dr. Karan Singh v. State of J & K and Another 2004 (5) SCC 698:
“19. The Division Bench in the impugned judgment, as earlier
noticed, has held that “either there was relinquishment of right or
waiver voluntarily”. Before we examine the facts to decide this
issue, reference may be made to certain decisions on the aspects
of estoppel, abandonment and waiver. The leading case on estoppel
is that of Pickard v. Sears [(1837) 6 Ad & El 469 : 112 ER 179]
wherein Lord Denman, C.J. in delivering judgment, inter alia, said:
(ER p. 181)
“His title having been once established, the property could only
be divested by gift or sale; of which no specific act was even
surmised.
But the rule of law is clear, that, where one by his words or conduct
wilfully causes another to believe the existence of a certain state
of things, and induces him to act on that belief so as to alter his
own previous position, the former is concluded from averring
against the latter a different state of things as existing at the same
time; (See Bigelow on Estoppel, pp.606,607.)
20. In Mitra Sen Singh v. JankiKuar [AIR 1924 PC 213 : 51 IA
326] (AIR at p. 214) with regard to estoppel, it was stated:
“There is no peculiarity in the law of India as distinguished
from that of England which would justify such an application.
The law of India is compendiously set forth in Section 115 of
the Indian
Evidence Act, Act 1 of 1872. It will save a long
statement by simply stating that section, which is as follows:
‘When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing
to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between
himself and such person or his representative to deny the truth of
that thing.’ “
21. In Dhiyan Singh v. Jugal Kishore [AIR 1952 SC 145 : 1952
SCR 478] this Court stated: (AIR pp. 146-47, para 11)
“11. Now it can be conceded that before an estoppel can arise,
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there must be, first, a representation of an existing fact as distinct
from a mere promise de futuro made by one party to the other;
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.”
22. In Gyarsi Bai v. Dhansukh Lal [AIR 1965 SC 1055 : (1965)
2 SCR 154] the principles were reiterated in the following words:
(AIR p. 1061, para 8)
“To invoke the doctrine of estoppel three conditions must be
satisfied: (1) representation by a person to another, (2) the other
shall have acted upon the said representation, and (3) such action
shall have been detrimental to the interests of the person to whom
the representation has been made.”
In regard to abandonment the Court referred to the judgment in
Mulchand’s case (supra)and apparently approved the same.
79. Therefore, we would hold that 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.
80. 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 forSuriaji to transfer.  In that sense it could be
described as an executory contract.  Even proceeding on the basis that
it is understood  thatGones 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.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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81.  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.
82.  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.  It is the appellants case
inter alia stated Suriaji had only 1/8 share in property ‘M’ and 1/4 share
in property ‘B’.  Having regard to acknowledgment of ½ rights over the
said property in favour of Gones as contained in settlement deed dated
21.1.1919,it is the appellants case that the inventory proceedings could
have been concerned only with what was owned by the deceased Suriaji
and it could not have resulted the entire 1/4  right in property ‘M’ and
1/2 right in property ‘B’ being allotted to Shantibai.  It is contended that
it involved fraud to give such excessive right to Shantibai.
83.  It is next contended by the appellants that even if it is
that
under the inventory proceedings allotment was made of 1/4 share in
property ‘M’ and 1/2 right in property ‘B’, the status quo under the
dissolution deed dated 21.1.1919 would continue.  In other words even
under the settlement deed of 1919Suriajialongwith his wife had undertaken
transfer of 1/ 2 share to Gones.  After inventory proceedings under the
inscription of even of the entire right belonging to Suriaji and Gones
stood allotted to Shantibai, Shantibai would continue to remain liable as a
trustee.
It is further contended as vogal on behalf of the minor
children,during the inventory Gones was only obliged to protect the interest
of the minors. Therefore even if property is shown allotted to Laxmi
Bai, it would not have any impact on the property of Gones.
84. In regard to the aforesaid contentions when we are dealing
with the case with the perspective ofacquiescence, abandonment and
estoppel we come to the following conclusions.  Gones was himself
amajor,   by the time inventory proceedings commenced and culminated.
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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.
85.  What is important is nothing is produced by the appellants to
show that Gonesprotested 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 byGones 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.
86.  There may be a plausible reason as to why it all happened.After
1919 as we have already noticedSuriaji 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.
87. 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.
In fact P.W.1 states as follows:
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
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“It is a conditional agreement to transfer registration in the name
of Gones by Suriaji.  He further says “I also do not know what
was the exact amount which had to be paid by Gones to Suriaji to
effect registration of the property”.  He further categorically states
that the last time he went to the property was in 1940/1941 (at
that time he was apparently about 9 years) and he says he
remembers plucking of the produce.  He does not have a case of
receiving income after the death of his father Gones as he states
that from 1979 payments were stopped.  As far as payment
received prior to 1979 we have already found that his testimony
has not been believed by the two courts and we see no reason
either to take a different view.”
88.  Thus,Goneswas 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 a case.
DISCRETION IN AN APPEAL GENERATED BY SPECIAL
LEAVE
89. We will however assume and proceed on the footingthat Gones
was entitled for 1/2 share, payment of Rs.1000/- was not a condition
precedent in a suit based on title thatadverse possession has not been
proved(particularly having regard to the inconsistent plea based on
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title)andsince 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 otherwise just. In Taherakhatoon (D) by LRs v.
Salambin Mohammad31, 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.”
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]
311999(2) SCC 635
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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
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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’.
ThusGones 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.  Consequently, the Civil
Appeals stand dismissed.  Parties to bear their own costs.
Devika Gujral
                                            Appeals dismissed.
PRABHAKAR GONES PRABHU NAVELKAR (D)  v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)  [K.M. JOSEPH, J.]