Suit for declaration and partition etc., - 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.
Apex court dismissed the special leave appeal as if special leave is not granted =
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 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
“(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 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?”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 10501-10502 OF 2014
PRABHAKAR GONES PRABHU NAVELKAR (DEAD)
THROUGH LRs & ORS. ..APPELLANTS
VERSUS
SARADCHANDRA SURIA PRABHU NAVELKAR(DEAD)
THROUGH LRS. & ORS. ..RESPONDENTS
J U D G M E N T
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 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:
1
ANNEXURE P-1
NAVELKAR FAMILY
VINTECTEXA POROBO NALVELKAR VINTOLA POROBO
NAVELKAR
(WIFE: PADMAVATI PORBINI) (WIFE: LAXIMI VINTOLA POROBO
NAVELKAR)
(SONS)
(SON) (DAUGHTER) BALAKRISHNA PORSHOTTAMA SRNIVAS NAGENDRA
RAMACHANDRA PIRU ALIAS SOROSPATI
POROBO NALVELKAR POININ
GROUP P/BRANCH OF VENKTEXA GROUP/BRANCHES OF VITOL
(SON) (SON) DF.7 TO DF.27
SURIAJI POROBO GONES POROBO NAVELKAR
NAVELKAR (WIFE PREMAWATI)
(WIFE: SHANTIBAI)
P1 P3 D28
PRABHAKAR PREMANAND SMT. JAISHREE
(HUSBAND: VISHNU KAMAT) D29
D3 D5
ANDRA SHARADCHANDRA VENCTEXA
3. As can be noticed, the litigation concerns the
properties of the Navelkar family. Parties are
referred to with reference to the position in the
trial Court. Venctexa Suria Porobo Navelkar was
married to one Padmavati. They had one son by name
Ramchandra Porobo and a daughter by name Piru.
2
Ramchandra in turn had two sons, namely, Suriaji and
Gones. The plaintiffs no. 1 and 3 are sons of Gones.
The 2nd plaintiff is the wife of the first plaintiff
and the 4th plaintiff is the wife of the 3rd plaintiff.
Defendants no. 1 and 3 are the sons of Suriaji.
Defendant no. 2 is the wife of
1
st 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 and 29th 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
3
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
4
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
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
5
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.
6
(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;
(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
7
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 to Laxmi and
8
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
9
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.
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
10
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.
11
The mere assumption, in the settlement deed, cannot
be taken as gospel truth. There may have been some
understanding between the two brothers. Condition had
to be fulfilled by Gones by reimbursing half of the
amount paid to Laxmi. The First Appellate Court
appreciated the oral evidence and found that the
plaintiffs have no right in the property. As they
were not co-owners, it was found that deed of
partition being entered into without the junction of
Gones, would not make it illegal or invalid. It was
further found that the suit was barred by law of
limitation. It is still further found that the suit
had abated on account of non-impleadment of legal
representatives of certain parties. Two appeals were,
accordingly, allowed and suit came to be dismissed
with cost.
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
12
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 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”?
13
(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 Gones and 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 liability to part with property is described as
absolute and unambiguous and the document contains
14
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:
“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
15
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 allotment of 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
inventory, 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
16
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.
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
17
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-inlaw 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
18
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 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 irrespective 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
19
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
20
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 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
21
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
22
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.
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
1 (2004) 1 SCC 271
23
the principle that long and continuous possession by
itself would not constitute adverse possession. Nonparticipation 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 Bhartu
case[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.
2 (2009) 15 SCC 747
24
(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.
(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
3 (2002) 5 SCC 90
25
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 sublease. 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)
4 (2009) 13 SCC 229
26
“4. As regards the first plea, it is
inconsistent with the second
plea. Having come into possession under
the [sale] agreement, he must disclaim
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 interest and 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,
nec precario [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
27
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 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
28
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 collection 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
5 (1995) 2 SCC 43
6 (2007) 6 SCC 59
29
plea of adverse possession is to be viewed in the
light of the same.
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
7 (1997) 7 SCC 531
8 (2003) 8 SCC 204
9 (1996) 6 SCC 433
30
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 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
10 AIR 1985 P&H 215
31
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
11 AIR 2007 AP 145
32
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
construction would be opposed to all
principles of interpretation of statutes.
Therefore, different articles of the
Limitation Act will 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:
12 (2003) 9 SCC 606
33
“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 subrule (1) a party in whose favour the
decree stands in its entirety is neither
entitled nor obliged to prefer any crossobjection. 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.
(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
34
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 crossobjection; 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 crossobjection 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.
13 (2013) 9 SCC 261
35
33. In Mohan Lal (deceased) Through His Lrs. Kachru
and others v. Mirza Abdul Gaffar and another14, this
Court held that the 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
14 (1996) 1 SCC 639
15 (1999) SCC ONLINE Bombay 109
36
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,
16 (1973) 2 SCC 35
17 (1994) 4 SCC 1
18 (2000) 7 SCC 702
19 (2017) 11 SCC 345
37
was acquired by Vassudev Govekar from
Communidade of Anjuna under No. 131/1963
on 24-2-1970 as a 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 Vassudev
Govekar 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
38
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
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 subjectmatter 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
39
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
20 (2018) 8 SCC 67
21 (2011) 9 SCC 126
40
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
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.
22 (1999) 2 SCC 635
41
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
42
1937 the rights of Gones as acquired under the Gift
Deed executed in his favour by his grandfather in
1913 and also the property acquired by him under the
Gift Deed by his brother and sister-in-law in 1925
came to be sold in auction in execution of decree
obtained against Gones. The present suit is filed
based on the sale deed executed by the paternal aunt
of Gones and her husband expressly in favour of
Suriaji and his wife and the other branch. The
appellants claim one-eighth share being one-half of
one-fourth of property ‘M’ conveyed under a sale deed
to Suriaji and his wife. The appellants also claim
one-fourth share being one-half of one-half in
property ‘B’ conveyed to Suriaji and his wife under
the sale deed of 1915.
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.
43
“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.”
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
44
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,
45
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 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
46
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
element of prescription which is akin to
adverse possession. A prescriptive right
47
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 relating 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 Limitation 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
48
extinction of remedy under the Portuguese law cannot
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.
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
49
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,
50
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 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
51
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.
52
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 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
53
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
54
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 restitution in double shall be
the compensation for loss and damages.
55
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
56
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 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 registration shall
contain:
Paragraph 1; xxx
Paragraph 2 : the name, status, profession
57
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
58
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.
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.”
59
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
60
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.
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.
61
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
62
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 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
of Shantibai and her heirs enjoyed the property
63
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
64
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 show Gones as a transferee.
The document dated 21.1.2019 is described as a
deed of declaration, fixation of balance of accounts,
payment and obligation. Parties of the first part are
described as Suriaji and his wife Shantibai aged 15
and minor aged 16. Gones is shown as aged 14 years
assisted by his mother. Parties on the second part
are described as Laxmi, widow of vitol (the other
party) and her sons etc. The deed appears to provide
for distribution of joint family and for settlement of
accounts of the family which lasted only 3 years. It
is inter alia stated further that the parties of the
first part owed to the parties to the second part a
sum of Rs.2000/-. It is inter alia stated therein
that parties of the first part Suriaji stated that the
65
purchase made by him by the sale deed dated 17.11.1915
was made for himself and for the party of the first
part Gones, his brother and that he has paid for half
of the price of the said purchase, therefore he
undertakes alongwith the said Shantibai to transfer in
the name of said Gones the half of the properties
purchased in his name by the aforesaid deed at any
time he may desire, to have it transferred and on the
occasion of this transfer, the said Gones will have to
indemnify him with half of the amount which has now
been paid to the party of the second part Laxmi from
the money of the dowry of his wife. It is the
aforesaid provision which is at the heart of the
controversy. We are to unravel its true scope and
import. Whether it amounts to an admission or
acknowledgment by Suriaji that Gones his younger
brother, had half right over the property acquired by
Suriaji under the sale deed dated 17.11.1915? Whether
on the other hand, the document is of executory nature
and contemplating Suriaji executing a transfer in
favour of Gones? Whether it contemplated only a
transfer of mutation, the title being admitted?
Whether the clause contemplated a transfer on the
66
occasion of which Gones was to indemnify Suriaji, half
the amount which stood paid to Laxmi that money coming
from dowry of Suriaji’s wife?
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.
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:
67
“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
68
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 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:
69
“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
70
the words that follow immediately in the sale deed
21.1.1919. It is stated immediately after stating
that he has paid for half of the price for the said
purchase, therefore, he has undertaken alongwith the
said Shantibai to transfer to Gones, the half of the
properties purchased in his name etc. In this behalf
the word being in conjunction with his wife Shantibai
can only refer to Suriaji. Therefore, the
interpretation would be 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
71
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
72
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 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
73
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
74
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. In this regard we
notice the following discussion in Controller of Estate Duty, Lucknow v.Alok Mitra in AIR 1981 SC 102:-
31. ..In Petheperumal Chetty v. Muniandy
Servai (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
75
for that of the person beneficially
interested.”
The cardinal distinction between a
trustee known to English law and
a benamidarlies 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 benamitransaction 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 benamitransaction, there is a
resulting trust in favour of the person
providing the purchase-money.”
76
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, 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 por77
tuguese 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
78
have no case that it did apply. They have not
produced anything to show that it applied. If the
Trust Act which, undoubtedly, did not apply to Goa in
1915 or even in 1919 and in Section 82 thereof, lay
embedded the principle of benami or resulting trust,
how can appellant claim that Gones became entitled as
owner under the document of 1915 read with the
document of 1919. If it was reduced to a contract
executory in nature, to perform an obligation upon
which alone the title would vest, it was subject to
the condition precedent of payment of Rs. 1000/- by
Gones. Even according to the appellants obligation to
pay Rs. 1000/-, did not pass to them. This
conduct of the appellant’s, in seeking to derive
rights under the document of 1919, even though, their
predecessor in interest has failed either deliberately
or otherwise to perform his obligation during his
entire life time cannot be 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
79
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
80
deed must be treated as executed in
fulfilment of acknowledgment in the dissolution deed
dated 21.1.1919. Under the gift deed of 1925 Suriaji
has gifted Gones his ¼ right in property ‘M’ which he
acquired under the gift deed executed by his
grandfather in the year 1913. Be it remembered that
in 1913, the grandfather has also executed gift of
another ¼ of property ‘M’ in favour of Gones.
Property ‘M’ consisted of roughly 90 hectares. Thus,
under both the gift deeds together 1/2 of property ‘M’
or 45 hectares approximately came to be vested with
Gones in the year 1925. Suriaji passed away in the
year 1925 after the gift. It is thereafter that
inventory proceedings took place in regard to the
properties of Suriaji under the Portuguese Civil Code.
Gones stood as vogal apparently on behalf of the minor
children of Suriaji under the Portugues Civil Code.
The documentary evidence is found by the first
appellate Court to establish that ¼ of property ‘M’
and ½ of property ‘B’ stood allotted in the name of
Shantibai, the widow of the Suriaji. This is borne
out by the inscription which we have referred to of
the year 1937. It is here that the question arises as
81
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
82
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 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
23 2003 (8) SCC 204
83
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,
24 1999 SCC Online Bom 109 paras 8-11
84
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, 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
85
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
25 2000 (7) SCC 702
86
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 Durate Domingos
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, 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
26 MANU/MH/0535/1996
27 1990 (1) Goa LT 174
28 1999(3)ALLMR39
87
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:
29 (1999) SCC ONLINE Bombay 109
30 AIR 1984 Bom 295
88
“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.”
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
89
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 SC 98, 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
90
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] .
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
91
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.
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
92
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
93
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.”
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
94
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. Janki Kuar [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, 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
95
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 a when vested
right is established such as ownership it can be
divested only by sale or gift. It will not be
possible to hold that mere laches or standing by
itself may be sufficient to extinguish title. The
majority view is Mulchand (supra) appears to suggest
that there must either be abandonment or estoppel.
Justice Vivian Bose takes the view that title can be
lost only when estoppel is established. Merely
saying that a person has abandoned his property does
not lead to extinguishing of vested right such as
right to ownership in property. Certainly, an
abandonment which amounts to an estoppel would result
96
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 for
Suriaji to transfer. In that sense it could be
described as an executory contract. Even proceeding
on the basis that it is understood that Gones has 1/2
right of over the rights, transferred in favour of
Suriaji under the sale deed dated 17.11.1915, the
question arises what is the effect of the inventory
proceedings of which Gones was certainly aware of and
admittedly he was a vogal.
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
97
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’
98
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 1919
Suriaji alongwith 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.
99
84. In regard to the aforesaid contentions when
we are dealing with the case with the perspective of
acquiescence, abandonment and estoppel we come to the
following conclusions. Gones was himself a major,
by the time inventory proceedings commenced and
culminated. He was aware of his rights under the sale
deed of 1915 as declared in the dissolution deed of
1919. We must proceed on the basis that the inventory
proceedings culminated with ¼ right in ‘M’ and 1/2 in
‘B’ being allotted to Shantibai. As to how the said
property came to be so allotted despite the settlement
deed of 1919 which according to the appellants carved
out rights in favour of Gones and towards ½ of the
properties ‘B’ to the appellants is a matter which
this Court is unable to embark upon but it is clear
that Shantibai stood allotted the property in tune
with the sale deed.
85. What is important is nothing is produced by
the appellants to show that Gones protested in any
manner either during or at the end of proceedings.
Nothing is produced to show that allotment to
Shantibai was ever challenged in any manner by Gones.
100
In other words, Gones by his conduct must be treated
as having held that he has accepted that the property
which was allotted in the inventory proceedings will
belong to Shantibai. Since 1937 when the said
allotment took place for all purpose, the property
stood acknowledged by Gones as property allotted to
Shantibai. We are unable to accept the case that it
would amount to fraud. There is no case of fraud as
such set up by the appellants. There is a definite
case for the respondents that there is no concept of
trust in the Portuguese law and that there is no
distinction between legal and equitable estate. We
have taken the view that the concept of trust may be
inapplicable.
86. There may be a plausible reason as to why it
all happened. After 1919 as we have already noticed
Suriaji executed a deed of his entire ¼ right which he
acquired under the gift from his grandfather in favour
of Gones which translated to roughly 22.5 hectares.
There is no case that the said gift was not accepted
by Gones. In fact, the property covered by said gift
and also the property gifted by the grandfather to
101
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:
“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
102
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, Gones was not in receipt of any income.
Property was shown in the name of Shantibai. Still
further in 1969 Shantibai executes a gift deed of the
plaint scheduled properly. Immediately thereafter
partition deeds are executed between Shantibai and
children. Thus, Shantibai treated the property as
belonging to her and she has accordingly executed the
Gift deed and subsequently partition deed entered into
on the said basis. Still later land acquisition
proceedings were held in respect of part of the plaint
schedule property. The compensation determined was
paid on the basis that Gones did not have any right.
When such is the position, we would think that on the
face of it abandonment may not be inappropriate in the
peculiar facts of this case. If the legal
103
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
footing that Gones was entitled for 1/2 share, payment
of Rs.1000/- was not a condition precedent in a suit
based on title that adverse possession has not been
proved (particularly having regard to the inconsistent
plea based on title) and since Gones had title and the
substantive prayer is to be treated as one for
partition [even though the declaratory relief may be
barred] and therefore suit is not barred by time and
there is no estoppel. Still we would not exercise our
104
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
discretionary 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
31 1999(2) SCC 635
105
special leave was not available when the
appeal was being heard on merits.
16. This Court rejected the said
contention and referred to the following
dicta of the Privy Council in Ibrahim v.
R. [AIR 1914 PC 155] :
“[T]he Board had repeatedly
treated applications for leave to
appeal and the hearing of criminal
appeals as being upon the same
footing: Reil case [Riel v. R.,
(1885) 10 AC 675 : 58 LJPC 28] ;
Deeming, ex p [1892 AC 422 : 8 TLR
577]. The Board cannot give leave to
appeal where the grounds suggested
could not sustain the appeal itself;
and conversely, it cannot allow an
appeal on grounds that would not have
sufficed for the grant of permission
to bring it.”
This Court observed that the rule laid
down by the Privy Council is based on
sound principle and only those points
could be urged at the final hearing of
the appeal which were fit to be urged at
the preliminary stage when leave to
appeal was asked for and it would be
illogical to adopt different standards
at two different stages of the same
case. This Court observed (para 8) that,
so far as Article 136 was concerned, it
was to be noted firstly that it was very
general and was not confined merely to
criminal cases, and that (see para 9),
the wide discretionary power with which
the Court was concerned was applicable
to all types of cases. The power under
Article 136 according to this Court,
“is to be exercised sparingly and in
exceptional cases only, and as far as
106
possible a more or less uniform
standard should be adopted in
granting special leave in the wide
range of matters which can come up
before it under this article. By
virtue of this article, we can grant
special leave in civil cases, in
criminal cases, in income tax cases,
in cases which come up before
different kinds of tribunals and in a
variety of other cases”.
(emphasis supplied)
This Court emphasised:
“The only uniform standard which
in our opinion can be laid down in
the circumstances is that Court
should grant special leave to appeal
in those cases where special
circumstances are shown to exist.”
This Court then concluded:
“Generally speaking, this Court
will not grant special leave, unless
it is shown that exceptional and
special circumstances exist, that
substantial and grave injustice has
been done and that the case in
question presents features of
sufficient gravity to warrant a
review of the decision appealed
against.”
20. In view of the above decisions, even
though we are now dealing with the
appeal after grant of special leave, we
are not bound to go into merits and even
if we do so and declare the law or point
out the error — still we may not
interfere if the justice of the case on
facts does not require interference or
107
if we feel that the relief could be
moulded in a different fashion...”
(emphasis supplied)
In this case, as we have noticed apart from 22.5
hectares in property ‘M’ which was obtained by gift
deed executed by grandfather in favour of Gones, in
1925. Gones acquired another gift by Suriaji’s wife
22.5 hectares of land in property ‘M’. As we have
noticed there was 91 hectares in property ‘M’ and
nearly 31 hectares as property ‘B’. Thus Gones got 45
hectares approximately as a result of the gift deeds
of 1913 and 1925. The case of the appellant is based
on the settlement deed of 1919, no doubt read with
sale deed of 1915. If instead of Gift deed of 1925
and Suriaji had to strictly confirm to the deed of
1919 as appellants contended Suriaji would have had to
transfer only 19 hectares it would be a little more
than 11 hectares from property ‘M’ and a little more
than 7 hectares from property ‘B’ but the grand total
would have been only 19 hectares. Gones in other
words would have got 19 hectares but admittedly
Suriaji has gifted Gones 1/4 share in property ‘M’ in
108
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.
……………………………J.
(Navin Sinha)
…………………………J.
(K.M. Joseph)
New Delhi;
August 21, 2019
109
Apex court dismissed the special leave appeal as if special leave is not granted =
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 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
“(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 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?”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 10501-10502 OF 2014
PRABHAKAR GONES PRABHU NAVELKAR (DEAD)
THROUGH LRs & ORS. ..APPELLANTS
VERSUS
SARADCHANDRA SURIA PRABHU NAVELKAR(DEAD)
THROUGH LRS. & ORS. ..RESPONDENTS
J U D G M E N T
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 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:
1
ANNEXURE P-1
NAVELKAR FAMILY
VINTECTEXA POROBO NALVELKAR VINTOLA POROBO
NAVELKAR
(WIFE: PADMAVATI PORBINI) (WIFE: LAXIMI VINTOLA POROBO
NAVELKAR)
(SONS)
(SON) (DAUGHTER) BALAKRISHNA PORSHOTTAMA SRNIVAS NAGENDRA
RAMACHANDRA PIRU ALIAS SOROSPATI
POROBO NALVELKAR POININ
GROUP P/BRANCH OF VENKTEXA GROUP/BRANCHES OF VITOL
(SON) (SON) DF.7 TO DF.27
SURIAJI POROBO GONES POROBO NAVELKAR
NAVELKAR (WIFE PREMAWATI)
(WIFE: SHANTIBAI)
P1 P3 D28
PRABHAKAR PREMANAND SMT. JAISHREE
(HUSBAND: VISHNU KAMAT) D29
D3 D5
ANDRA SHARADCHANDRA VENCTEXA
3. As can be noticed, the litigation concerns the
properties of the Navelkar family. Parties are
referred to with reference to the position in the
trial Court. Venctexa Suria Porobo Navelkar was
married to one Padmavati. They had one son by name
Ramchandra Porobo and a daughter by name Piru.
2
Ramchandra in turn had two sons, namely, Suriaji and
Gones. The plaintiffs no. 1 and 3 are sons of Gones.
The 2nd plaintiff is the wife of the first plaintiff
and the 4th plaintiff is the wife of the 3rd plaintiff.
Defendants no. 1 and 3 are the sons of Suriaji.
Defendant no. 2 is the wife of
1
st 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 and 29th 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
3
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
4
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
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
5
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.
6
(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;
(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
7
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 to Laxmi and
8
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
9
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.
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
10
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.
11
The mere assumption, in the settlement deed, cannot
be taken as gospel truth. There may have been some
understanding between the two brothers. Condition had
to be fulfilled by Gones by reimbursing half of the
amount paid to Laxmi. The First Appellate Court
appreciated the oral evidence and found that the
plaintiffs have no right in the property. As they
were not co-owners, it was found that deed of
partition being entered into without the junction of
Gones, would not make it illegal or invalid. It was
further found that the suit was barred by law of
limitation. It is still further found that the suit
had abated on account of non-impleadment of legal
representatives of certain parties. Two appeals were,
accordingly, allowed and suit came to be dismissed
with cost.
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
12
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 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”?
13
(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 Gones and 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 liability to part with property is described as
absolute and unambiguous and the document contains
14
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:
“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
15
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 allotment of 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
inventory, 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
16
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.
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
17
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-inlaw 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
18
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 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 irrespective 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
19
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
20
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 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
21
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
22
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.
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
1 (2004) 1 SCC 271
23
the principle that long and continuous possession by
itself would not constitute adverse possession. Nonparticipation 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 Bhartu
case[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.
2 (2009) 15 SCC 747
24
(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.
(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
3 (2002) 5 SCC 90
25
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 sublease. 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)
4 (2009) 13 SCC 229
26
“4. As regards the first plea, it is
inconsistent with the second
plea. Having come into possession under
the [sale] agreement, he must disclaim
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 interest and 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,
nec precario [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
27
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 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
28
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 collection 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
5 (1995) 2 SCC 43
6 (2007) 6 SCC 59
29
plea of adverse possession is to be viewed in the
light of the same.
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
7 (1997) 7 SCC 531
8 (2003) 8 SCC 204
9 (1996) 6 SCC 433
30
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 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
10 AIR 1985 P&H 215
31
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
11 AIR 2007 AP 145
32
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
construction would be opposed to all
principles of interpretation of statutes.
Therefore, different articles of the
Limitation Act will 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:
12 (2003) 9 SCC 606
33
“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 subrule (1) a party in whose favour the
decree stands in its entirety is neither
entitled nor obliged to prefer any crossobjection. 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.
(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
34
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 crossobjection; 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 crossobjection 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.
13 (2013) 9 SCC 261
35
33. In Mohan Lal (deceased) Through His Lrs. Kachru
and others v. Mirza Abdul Gaffar and another14, this
Court held that the 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
14 (1996) 1 SCC 639
15 (1999) SCC ONLINE Bombay 109
36
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,
16 (1973) 2 SCC 35
17 (1994) 4 SCC 1
18 (2000) 7 SCC 702
19 (2017) 11 SCC 345
37
was acquired by Vassudev Govekar from
Communidade of Anjuna under No. 131/1963
on 24-2-1970 as a 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 Vassudev
Govekar 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
38
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
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 subjectmatter 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
39
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
20 (2018) 8 SCC 67
21 (2011) 9 SCC 126
40
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
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.
22 (1999) 2 SCC 635
41
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
42
1937 the rights of Gones as acquired under the Gift
Deed executed in his favour by his grandfather in
1913 and also the property acquired by him under the
Gift Deed by his brother and sister-in-law in 1925
came to be sold in auction in execution of decree
obtained against Gones. The present suit is filed
based on the sale deed executed by the paternal aunt
of Gones and her husband expressly in favour of
Suriaji and his wife and the other branch. The
appellants claim one-eighth share being one-half of
one-fourth of property ‘M’ conveyed under a sale deed
to Suriaji and his wife. The appellants also claim
one-fourth share being one-half of one-half in
property ‘B’ conveyed to Suriaji and his wife under
the sale deed of 1915.
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.
43
“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.”
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
44
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,
45
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 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
46
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
element of prescription which is akin to
adverse possession. A prescriptive right
47
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 relating 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 Limitation 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
48
extinction of remedy under the Portuguese law cannot
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.
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
49
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,
50
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 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
51
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.
52
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 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
53
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
54
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 restitution in double shall be
the compensation for loss and damages.
55
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
56
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 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 registration shall
contain:
Paragraph 1; xxx
Paragraph 2 : the name, status, profession
57
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
58
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.
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.”
59
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
60
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.
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.
61
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
62
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 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
of Shantibai and her heirs enjoyed the property
63
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
64
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 show Gones as a transferee.
The document dated 21.1.2019 is described as a
deed of declaration, fixation of balance of accounts,
payment and obligation. Parties of the first part are
described as Suriaji and his wife Shantibai aged 15
and minor aged 16. Gones is shown as aged 14 years
assisted by his mother. Parties on the second part
are described as Laxmi, widow of vitol (the other
party) and her sons etc. The deed appears to provide
for distribution of joint family and for settlement of
accounts of the family which lasted only 3 years. It
is inter alia stated further that the parties of the
first part owed to the parties to the second part a
sum of Rs.2000/-. It is inter alia stated therein
that parties of the first part Suriaji stated that the
65
purchase made by him by the sale deed dated 17.11.1915
was made for himself and for the party of the first
part Gones, his brother and that he has paid for half
of the price of the said purchase, therefore he
undertakes alongwith the said Shantibai to transfer in
the name of said Gones the half of the properties
purchased in his name by the aforesaid deed at any
time he may desire, to have it transferred and on the
occasion of this transfer, the said Gones will have to
indemnify him with half of the amount which has now
been paid to the party of the second part Laxmi from
the money of the dowry of his wife. It is the
aforesaid provision which is at the heart of the
controversy. We are to unravel its true scope and
import. Whether it amounts to an admission or
acknowledgment by Suriaji that Gones his younger
brother, had half right over the property acquired by
Suriaji under the sale deed dated 17.11.1915? Whether
on the other hand, the document is of executory nature
and contemplating Suriaji executing a transfer in
favour of Gones? Whether it contemplated only a
transfer of mutation, the title being admitted?
Whether the clause contemplated a transfer on the
66
occasion of which Gones was to indemnify Suriaji, half
the amount which stood paid to Laxmi that money coming
from dowry of Suriaji’s wife?
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.
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:
67
“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
68
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 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:
69
“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
70
the words that follow immediately in the sale deed
21.1.1919. It is stated immediately after stating
that he has paid for half of the price for the said
purchase, therefore, he has undertaken alongwith the
said Shantibai to transfer to Gones, the half of the
properties purchased in his name etc. In this behalf
the word being in conjunction with his wife Shantibai
can only refer to Suriaji. Therefore, the
interpretation would be 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
71
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
72
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 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
73
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
74
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. In this regard we
notice the following discussion in Controller of Estate Duty, Lucknow v.Alok Mitra in AIR 1981 SC 102:-
31. ..In Petheperumal Chetty v. Muniandy
Servai (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
75
for that of the person beneficially
interested.”
The cardinal distinction between a
trustee known to English law and
a benamidarlies 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 benamitransaction 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 benamitransaction, there is a
resulting trust in favour of the person
providing the purchase-money.”
76
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, 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 por77
tuguese 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
78
have no case that it did apply. They have not
produced anything to show that it applied. If the
Trust Act which, undoubtedly, did not apply to Goa in
1915 or even in 1919 and in Section 82 thereof, lay
embedded the principle of benami or resulting trust,
how can appellant claim that Gones became entitled as
owner under the document of 1915 read with the
document of 1919. If it was reduced to a contract
executory in nature, to perform an obligation upon
which alone the title would vest, it was subject to
the condition precedent of payment of Rs. 1000/- by
Gones. Even according to the appellants obligation to
pay Rs. 1000/-, did not pass to them. This
conduct of the appellant’s, in seeking to derive
rights under the document of 1919, even though, their
predecessor in interest has failed either deliberately
or otherwise to perform his obligation during his
entire life time cannot be 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
79
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
80
deed must be treated as executed in
fulfilment of acknowledgment in the dissolution deed
dated 21.1.1919. Under the gift deed of 1925 Suriaji
has gifted Gones his ¼ right in property ‘M’ which he
acquired under the gift deed executed by his
grandfather in the year 1913. Be it remembered that
in 1913, the grandfather has also executed gift of
another ¼ of property ‘M’ in favour of Gones.
Property ‘M’ consisted of roughly 90 hectares. Thus,
under both the gift deeds together 1/2 of property ‘M’
or 45 hectares approximately came to be vested with
Gones in the year 1925. Suriaji passed away in the
year 1925 after the gift. It is thereafter that
inventory proceedings took place in regard to the
properties of Suriaji under the Portuguese Civil Code.
Gones stood as vogal apparently on behalf of the minor
children of Suriaji under the Portugues Civil Code.
The documentary evidence is found by the first
appellate Court to establish that ¼ of property ‘M’
and ½ of property ‘B’ stood allotted in the name of
Shantibai, the widow of the Suriaji. This is borne
out by the inscription which we have referred to of
the year 1937. It is here that the question arises as
81
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
82
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 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
23 2003 (8) SCC 204
83
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,
24 1999 SCC Online Bom 109 paras 8-11
84
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, 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
85
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
25 2000 (7) SCC 702
86
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 Durate Domingos
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, 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
26 MANU/MH/0535/1996
27 1990 (1) Goa LT 174
28 1999(3)ALLMR39
87
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:
29 (1999) SCC ONLINE Bombay 109
30 AIR 1984 Bom 295
88
“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.”
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
89
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 SC 98, 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
90
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] .
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
91
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.
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
92
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
93
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.”
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
94
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. Janki Kuar [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, 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
95
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 a when vested
right is established such as ownership it can be
divested only by sale or gift. It will not be
possible to hold that mere laches or standing by
itself may be sufficient to extinguish title. The
majority view is Mulchand (supra) appears to suggest
that there must either be abandonment or estoppel.
Justice Vivian Bose takes the view that title can be
lost only when estoppel is established. Merely
saying that a person has abandoned his property does
not lead to extinguishing of vested right such as
right to ownership in property. Certainly, an
abandonment which amounts to an estoppel would result
96
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 for
Suriaji to transfer. In that sense it could be
described as an executory contract. Even proceeding
on the basis that it is understood that Gones has 1/2
right of over the rights, transferred in favour of
Suriaji under the sale deed dated 17.11.1915, the
question arises what is the effect of the inventory
proceedings of which Gones was certainly aware of and
admittedly he was a vogal.
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
97
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’
98
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 1919
Suriaji alongwith 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.
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84. In regard to the aforesaid contentions when
we are dealing with the case with the perspective of
acquiescence, abandonment and estoppel we come to the
following conclusions. Gones was himself a major,
by the time inventory proceedings commenced and
culminated. He was aware of his rights under the sale
deed of 1915 as declared in the dissolution deed of
1919. We must proceed on the basis that the inventory
proceedings culminated with ¼ right in ‘M’ and 1/2 in
‘B’ being allotted to Shantibai. As to how the said
property came to be so allotted despite the settlement
deed of 1919 which according to the appellants carved
out rights in favour of Gones and towards ½ of the
properties ‘B’ to the appellants is a matter which
this Court is unable to embark upon but it is clear
that Shantibai stood allotted the property in tune
with the sale deed.
85. What is important is nothing is produced by
the appellants to show that Gones protested in any
manner either during or at the end of proceedings.
Nothing is produced to show that allotment to
Shantibai was ever challenged in any manner by Gones.
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In other words, Gones by his conduct must be treated
as having held that he has accepted that the property
which was allotted in the inventory proceedings will
belong to Shantibai. Since 1937 when the said
allotment took place for all purpose, the property
stood acknowledged by Gones as property allotted to
Shantibai. We are unable to accept the case that it
would amount to fraud. There is no case of fraud as
such set up by the appellants. There is a definite
case for the respondents that there is no concept of
trust in the Portuguese law and that there is no
distinction between legal and equitable estate. We
have taken the view that the concept of trust may be
inapplicable.
86. There may be a plausible reason as to why it
all happened. After 1919 as we have already noticed
Suriaji executed a deed of his entire ¼ right which he
acquired under the gift from his grandfather in favour
of Gones which translated to roughly 22.5 hectares.
There is no case that the said gift was not accepted
by Gones. In fact, the property covered by said gift
and also the property gifted by the grandfather to
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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:
“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
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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, Gones was not in receipt of any income.
Property was shown in the name of Shantibai. Still
further in 1969 Shantibai executes a gift deed of the
plaint scheduled properly. Immediately thereafter
partition deeds are executed between Shantibai and
children. Thus, Shantibai treated the property as
belonging to her and she has accordingly executed the
Gift deed and subsequently partition deed entered into
on the said basis. Still later land acquisition
proceedings were held in respect of part of the plaint
schedule property. The compensation determined was
paid on the basis that Gones did not have any right.
When such is the position, we would think that on the
face of it abandonment may not be inappropriate in the
peculiar facts of this case. If the legal
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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
footing that Gones was entitled for 1/2 share, payment
of Rs.1000/- was not a condition precedent in a suit
based on title that adverse possession has not been
proved (particularly having regard to the inconsistent
plea based on title) and since Gones had title and the
substantive prayer is to be treated as one for
partition [even though the declaratory relief may be
barred] and therefore suit is not barred by time and
there is no estoppel. Still we would not exercise our
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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
discretionary 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
31 1999(2) SCC 635
105
special leave was not available when the
appeal was being heard on merits.
16. This Court rejected the said
contention and referred to the following
dicta of the Privy Council in Ibrahim v.
R. [AIR 1914 PC 155] :
“[T]he Board had repeatedly
treated applications for leave to
appeal and the hearing of criminal
appeals as being upon the same
footing: Reil case [Riel v. R.,
(1885) 10 AC 675 : 58 LJPC 28] ;
Deeming, ex p [1892 AC 422 : 8 TLR
577]. The Board cannot give leave to
appeal where the grounds suggested
could not sustain the appeal itself;
and conversely, it cannot allow an
appeal on grounds that would not have
sufficed for the grant of permission
to bring it.”
This Court observed that the rule laid
down by the Privy Council is based on
sound principle and only those points
could be urged at the final hearing of
the appeal which were fit to be urged at
the preliminary stage when leave to
appeal was asked for and it would be
illogical to adopt different standards
at two different stages of the same
case. This Court observed (para 8) that,
so far as Article 136 was concerned, it
was to be noted firstly that it was very
general and was not confined merely to
criminal cases, and that (see para 9),
the wide discretionary power with which
the Court was concerned was applicable
to all types of cases. The power under
Article 136 according to this Court,
“is to be exercised sparingly and in
exceptional cases only, and as far as
106
possible a more or less uniform
standard should be adopted in
granting special leave in the wide
range of matters which can come up
before it under this article. By
virtue of this article, we can grant
special leave in civil cases, in
criminal cases, in income tax cases,
in cases which come up before
different kinds of tribunals and in a
variety of other cases”.
(emphasis supplied)
This Court emphasised:
“The only uniform standard which
in our opinion can be laid down in
the circumstances is that Court
should grant special leave to appeal
in those cases where special
circumstances are shown to exist.”
This Court then concluded:
“Generally speaking, this Court
will not grant special leave, unless
it is shown that exceptional and
special circumstances exist, that
substantial and grave injustice has
been done and that the case in
question presents features of
sufficient gravity to warrant a
review of the decision appealed
against.”
20. In view of the above decisions, even
though we are now dealing with the
appeal after grant of special leave, we
are not bound to go into merits and even
if we do so and declare the law or point
out the error — still we may not
interfere if the justice of the case on
facts does not require interference or
107
if we feel that the relief could be
moulded in a different fashion...”
(emphasis supplied)
In this case, as we have noticed apart from 22.5
hectares in property ‘M’ which was obtained by gift
deed executed by grandfather in favour of Gones, in
1925. Gones acquired another gift by Suriaji’s wife
22.5 hectares of land in property ‘M’. As we have
noticed there was 91 hectares in property ‘M’ and
nearly 31 hectares as property ‘B’. Thus Gones got 45
hectares approximately as a result of the gift deeds
of 1913 and 1925. The case of the appellant is based
on the settlement deed of 1919, no doubt read with
sale deed of 1915. If instead of Gift deed of 1925
and Suriaji had to strictly confirm to the deed of
1919 as appellants contended Suriaji would have had to
transfer only 19 hectares it would be a little more
than 11 hectares from property ‘M’ and a little more
than 7 hectares from property ‘B’ but the grand total
would have been only 19 hectares. Gones in other
words would have got 19 hectares but admittedly
Suriaji has gifted Gones 1/4 share in property ‘M’ in
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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.
……………………………J.
(Navin Sinha)
…………………………J.
(K.M. Joseph)
New Delhi;
August 21, 2019
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