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Judgment
A.H. Joshi, J.—This is a second appeal by unsuccessful plaintiffs.
Relationship between parties is as follows:
(a) Venkatexa and Vithoba were brothers.
(b) Ramchandra is son of Venkatexa, and Padmavoti is his wife.
(c) Surya and Ganesh are sons of Ramchandra and Padmavoti.
(d) Plaintiffs are heirs and successors in interest of Ganesh (brother of Surya and grandson of Venkatesh who was brother of Vitola).
Plaintiffs filed suit with main prayer as set out in the plaint as:
(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 1/2 each in the suit properties.
(Quoted from page 158 of second appeal of paper book)
Foundation of claim in suit is based on documents as follows:
(a) Deed of Gift executed on 9.3.1913 by Venctexa Porobo Navelkar in favour of his grandsons Surya and Ganesh (sons of Ramchandra and Padmavoti Porob) in equal shares of the right to 1/2 of property known as ''Mollans'';
(b) Inventory proceedings on the death of Padmavoti wife of Venctexa pertaining to:
(1) Half of the property ''Mollans'' excluding gifted portion;
(2) Entire right to the property "Baiguinim" was allotted to her daughter Piru also known as Sorospati (married to Subrai Hori Poi);
(c) Deed of Sale executed on 17.11.1915 by Piru alias Sorospoti and her husband Subrai Poi in favour of Surya and Laxmi (widow of Vitol Porobo Navelkar who was brother of Venctexa) in respect of the said one half of property ''Mollans'' and entire ''Baiguinim'';
(d) Deed of Dissolution dated 21.1.1919 between the branches springing out of one brother Venctexa (viz. his grandsons Surya and Ganesh) and of the other brother Vitola (viz. his sons Balkrishna, Purxottama, Srinivas and Nagendra represented by their mother Laxmi); and
(e) Deed of Gift was executed on 14.4.1925 by Surya and his wife Shantibai in favour of Ganesh in respect of 1/4th right to property called ''Mollans''.
Plaintiff Nos. 1 and 3 claim right to the share in the properties ''Mollans'' and ''Baiguinim'' as sons and heirs of Ganesh along with their sister Jaishree married to Shri Vishnu Ranganath Kamat, who were joined as defendant Nos. 28 and 29 to the suit and are Respondent Nos. 28 and 29 in present appeal.
The facts which according to the plaintiffs caused them to file the suit as set out in paragraphs 34, 35, 36, 37, 38 and 39 and are as summarized as follows:
(a) In the Deed of Dissolution dated 21.1.1919:
(i) Surya had admitted that 1/4th right to property ''Mollans'' and 1/2 right to property ''Baiguinim'' was purchased in his name by Venkatexa under Sale Deed dated 17.11.1915 was for himself and for his brother Gones.
(ii) Surya and his wife Shantibai undertook to effect the transfer of registration in the name of Gones.
(iii) For this transfer Ganesh has to reimburse to Surya, the payment of 1/2 of the amount paid by Surya to Laxmi (widow of Vitol) in consequence of the settlement of accounts made at the time of dissolution of the society.
(iv) This payment could be made at any time during his life.
(b) Though the Hindu Undivided Family of Navelkars was dissolved, the assets of the family namely the suit properties viz. Mollans and Baiguinim remained in joint enjoyment by all the coowners including Ganesh (father of the plaintiffs).
(c) Share of income from joint enjoyment was paid by defendant No. 3 i.e. son of Surya and deceased husband of Appellant No. 1 herein, initially in the hands of mother of Ganesh and later in the hands of Ganesh himself, until his death in 1978.
(d) Defendant Nos. 1 to 5 did not pay to the plaintiffs their proportionate share of the income collected by them from the suit properties since 1979, after the death of Ganesh.
(e) The names of the plaintiffs were not included in Record of Rights in the owners'' column of suit lands and therefore, sometime in 1981 plaintiff No. 3 filed an application for rectification of survey records.
(f) In or about 1983 as there were reports that one or two junior members of the Navelcar''s family are making preparation to dispose of some portion of the suit properties by plots. Therefore, plaintiff No. 3 published notice in the issue of local English Daily, the Navhind Times dated 10.5.1983 warning the public against entering into any type of deal in respect of the suit properties or the part thereof.
(g) That Record of Rights were promulgated in February, 1985 and therefore plaintiff No. 1 by his letter dated 22.2.1985 filed his claim.
(h) That in or about 1985 a public notice of proclamation appeared in the issue of the Navhind Times dated 25.10.1985 at the behest of Assistant Registrar of Co-operative Societies, Central Zone, in connection with coercive recovery of dues of defendant No. 31.
(i) Plaintiff No. 3 had therefore addressed a letter to the Asst. Registrar objecting to the proposed sale/auction.
(j) Thereafter, plaintiff Nos. 1 and 3 approached defendant No. 23, who informed them that by a Deed of Partition executed on 31.3.1969 the suit properties were partitioned between the coowners as per their respective shares therein, which information was also confirmed by defendant No. 20 and later by defendant No. 23 in or about beginning of January, 1986.
(k) That the plaintiffs thereafter obtained certified copy of the said Partition Deed dated 31.3.1969, and the plaintiffs filed the suit on 24.11.1987 contending that the cause of action for the suit arose in or about January, 1986, when for the first time the Deed of Partition dated 31.3.1969 came to the plaintiffs'' knowledge, following the notice of proclamation of sale in the Navhind Times 25.10.1985.
Contesting defendants, filed written statements in three different groups.
The contesting defendants have denied the right claimed by the plaintiffs and cause of action etc. Summary of defence is as follows:
(a) The suit is barred by limitation.
(b) Ganesh had ceased to have any right in the suit properties since 1937 when his rights to the property ''Mollans'' was purchased in auction � by defendant Nos. 1,3 and 5 and the other half right by the deceased father of defendant Nos. 7, 20, 23 and 25.
(c) By the document dated 21.1.1919 Surya acknowledged right of Ganesh to 1/8th of Mollans and 1/4th of Baiguinim, however in the said document Surya had only agreed to transfer the right to 1/8th of Mollans and 1/4th of Baiguinim viz. half of the right purchased by Surya vide Sale Deed dated 17.11.1915 subject to and only after fulfillment of the condition precedent that Ganesh pays one half of the amount paid by Surya to Laxmi (widow of Vitola) at the time of said settlement of accounts.
(d) They also denied the contention of the plaintiffs that:
(i) Ganesh had been in joint possession of the suit properties;
(ii) Had been paid any income from the suit properties subsequent to 1937 until his death in 1978.
(e) That since execution of the Partition Deed on 31.3.1969, these defendants have been exclusively enjoying their shares allotted to them and also sold some of the plots allotted to them in the Partition Deed.
Apart from the denial referred in the foregoing para one group of defendants comprises of defendants 1, 2, 30 and 31 which is referred to as first group contested the suit with additional pleas, summary whereof can be narrated as follows:
(a) There is suppression of material facts, that plaint being deficiently stamped.
(b) In the year 1915 Surya became the owner of the undivided half of the property Baiguinim and Laxmibai became the owner of undivided 1/4th of Mollans and undivided half of Bainguinim.
(c) They have denied that the period of payment of the said amount of Rs. 1000/-decided in settlement deed dated 21.1.1919 was unlimited.
(d) By gift deed dated 14.4.1925 Surya and his wife Shantibai gifted undivided 1/4th of the property Mollans to Gonesh. It is further alleged that the gift deed came to be executed in due performance of acknowledgment of the assurance contained in settlement deed dated 21.1.1919.
(e) The gift deed dated 14.4.1925 was executed in suspicious circumstances, and might not be a voluntary act on the part of said couple.
(f) After the death of Surya on 7.5.1925 the inventory proceedings were instituted and by order dated 16.12.1925 1/4th of the property Mollans and 1/2 of the property Baiguinim was confirmed and allotted to the widow of Surya, Smt. Shantibai. In this proceedings Gonesh intervened/was appointed as a "vogal", and Gonesh never objected to inclusion of properties in said inventory though he may be entitled to those under the deed of settlement dated 21.1.1919.
(g) The position in the year 1925 in relation to suit properties was that 1/4th of Mollans and 1/2 of Bainguinim belonged to Shantibai and 1/4th of Mollans and 1/2 of Bainguinim belonged to Laximibai and 1/2 of Mollans only belonged to Gonesh.
(h) As entire share of Ganesh was sold out and Gonesh had no in the property Mollans any more, and hence Gonesh ceased to any connection whatsoever to the property Mollans and also with property Bainguinim. right have the
(i) The plaintiffs or the defendant No. 28 or their predecessor in title were never in enjoyment and possession of the suit property or any part thereof either jointly or severally, at least from the year 1939.
(j) In the partition deed dated 31.3.1969 the suit properties surveyed under No. 17/1, 27/1, 25/1, 23/1 and 24 have been partitioned and separately allotted to defendant Nos. 1, 3, and 5 and the suit properties surveyed under survey No. 16/1 and 26/2 have been separately partitioned and allotted to defendants No. 7, 20, 23, 30 and 31.
(k) The presumption u/s 105 of the Land Revenue Code on the basis of entries in survey records, and pleaded that they and other codefendants are the sole and absolute and exclusive owners of the suit properties to the exclusion of the plaintiffs and the remaining codefendants.
The case of third group, defendants Nos. 3 to 6, support the defence of first group with slight variation as below:
(a) In respect of the deed dated 21.1.1919 they have pleaded that Gonesh never expressed any desire to have the transfer made in his favour.
(b) Ganesh did not pay any amount concerning dowry of Shantibai and no transfer as mentioned in the deed.
(c) Any transfer furtherance thereto was ever effected.
(d) Recital in Deed dated 21.1.1919 may at the most amount to a simple promise - agreement of sale on the part of Surya in terms of Article 1584 of Portuguese Civil Code and would not confer on Gonesh any right or interest in respect of the suit properties.
(e) As to joint cultivation etc., of the suit properties, it is the case of these defendants that prior to 1944, the suit property used to be leased and the respective rents were shared among the co-owners according to their respective shares and since 1944 up to partition in 1969 defendant No. 3 was managing the suit properties and had paid to all the co-owners the respective shares.
(f) These defendants have already developed the portion of the property allotted to them and even sold some plots to the third parties on account of their legal entitlement to dispose of the plots allotted to them by the Deed of Partition dated 31.3.1969.
The third group of defendant Nos. 7 to 27 have pleaded that defendant No. 23 had informed the plaintiffs No. 1 and 3 about the deed of partition dated 31.3.1969 soon after execution. These defendants have denied that the plaintiffs came to know about the deed of partition for the first time in January, 1986. They have claimed that they are enjoying the suit properties allotted to them as per their shares.
In the written statement filed by the defendant No. 32 he sets out history by which he came to be connected with the family of Navelkars, however except clarifying the facts this written statement has no significance.
The defendant Nos. 28 and 29 have supported the case of plaintiffs.
Learned Trial Court framed as much as 10 issues. Out of these issues, the issues which are decisive and cover the substantial questions of law are issue Nos. 1 to 8. Those can be regrouped for convenience as follows:
(a) Issue Nos. 2 and 3 - Right flowing in favour of Gonesh under Deed dated 21.1.1919 and co-ownership.
(b) Issue Nos. 4 and 5 - The fact as to whether share in income from properties alleged holding in co-ownership was given to Gonesh.
(c) Issue Nos. 1 and 8 -Limitation.
(d) Issue Nos. 6 and 7 -Validity of Partition Deed dated 13.3.1969 and survey record based thereon.
On behalf of the plaintiffs, the plaintiff No. 3 was examined as sole witness. On the defendants'' side one witness viz. defendant No. 3 (d) was examined.
Learned Trial Court found in favour of plaintiffs on all points.
Learned Appellate Court has reversed the judgment and decree and has dismissed the suit.
This appeal is preferred against said judgment and decree of Appellate Court.
Second appeal has been admitted on the following substantial questions of law. The substantial questions of law which read as follows:
(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?
The learned Senior Advocate Shri S.D. Lotlikar for the Appellants has placed reliance on the following judgments:
(i) (2004) 13 Scc 385 in Mohammadbhai Kasambhai Sheikh and Anr. v. Abdulla Kasambhai Sheikh.
(ii) Narayan Vs. Trimbakrao Gopalrao Bagde and Others,
(iii) Devidas Krishna Salunke Vs. Tanubai Ghogare,
(iv) Kuldip Mahaton and Others Vs. Bhullan Mahato (Dead) by Lrs. and Others,
(v) Maharajadhiraj of Burdwan, Udaychand Mahatab Chand Vs. Subodh Gopal and Others,
(vi) Vidya Devi alias Vidya Vati (Dead by L.R''s) Vs. Prem Prakash and others,
(vii) Syed Shah Ghulam Ghouse Mohiuddin and Others Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) by Lrs. and Others,
(viii) Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others,
(ix) (2005) 11 Scc 582 in Mahmud Mian (Dead) through LRs and Anr. v. Shamsuddin Mian (Dead) through LRs and Ors.
(x) Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai Naique, .
(xi) N. Jayaram Reddy and Another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, .
(xii) AIR 1987 Bombay 235 in Bashiruddin Khwaja Mohiuddin v. Binraj Murlidhar Shop at Malkapur and Ors.
(xiii) (Supreme Court) Appeal From Annabai Devram Kini and Others Vs. Mithilal Daisangar Singh and Others, .
(xiv) Dolai Molliko and Others Vs. Krushna Chandra Patnaik and Others, .
(xv) Mahabir Prasad Vs. Jage Ram and Others, .
(xvi) Mrs. Indira Bhalchandra Gokhale (deceased by LRs) Vs. Union of India and Another, .
(xvii) State Bank of India and Others Vs. S.N. Goyal, .
(xviii) (2007) 5 Supreme Court Cases 669 in P. Chandrasekharan and Ors. v. S. Kanakarajan and Ors.
(xix) Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., .
(xx) Chiranji Lal and Another Vs. Bhagwan Das and Others, .
(xxi) 1997 (2) G L.T. 19 in Mr. Paul Pinto and Ors. v. Mrs. Sushila Chandrakant Raikar.
The learned Senior Advocate Shri S.G. Dessai for the Respondent Nos. 5 to 8 has placed reliance on the following judgments:
(i) Gurdev Kaur and Others Vs. Kaki and Others, .
(ii) 1997(1) G L.T. 253 in Shri Zoiba Sakroba Rane Sardessai and Anr. v. Shri Abasaheb Sakroba Rane Sardessai and Ors
(iii) 1990(2) G L.T. 220 in Yeshwant Siuram Porobo and Ors. v. Gagarama Loximona Shet Gaunkar and Ors.
(iv) Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, .
It is seen that the Appellate Court had formulated points for determination which are five in number. Item No. (e) which is 6th pertains to abatement. Item No. (c) which is 3rd in fact consequential in nature. Item No. (b) and (d) which are 3rd and 4th need a common discussion and decision. These are the items which the Appellate Court had to proceed.
Perusal of the discussion contained in the judgment in the Appellate Court discloses that the Appellate Court has recorded various findings which can be assorted and quoted below which is done as follows:
(i)11. ...The learned Trial Judge has held that the transfer in the name of Gonesh at any time he may wish is purely transfer in registration/mutation. I fail to understand as to from where the Trial Judge has imported into the document Exh. -6, the words transfer of registration/mutation when in reality the said document Exh. P-6, clearly and unambiguously speaks about transfer of half of the properties. Transfer of properties means transfer of title to the properties and cannot be read as transfer of registration/mutation....
(ii)12. ...The learned Trial Judge has further observed that admittedly neither Surya nor descendents of Surya sought reimbursement from Goneca or descendents of Goneca till date. I fail to understand as to why Surya or his descendents would seek reimbursement or take action over it. The benefit of reimbursement was to go to Goneca and hence it was for him to fulfill the said condition put on him. It is true that time limit for reimbursement has not been mentioned in Exh-P-6. But it would be absurd to say that the same is unlimited. If the condition is not to be performed than it need not at all be put. The true interpretation should be that the said condition had to be complied with within a reasonable time at least before the death of Gones....
(iii)14. ...In my view, the sole document Exh. P-6 is not at all sufficient to declare that plaintiffs are co-owners of suit properties entitled to the shares as claimed. The condition of reimbursement has not been complied with at all. Then there are various other circumstances going against the plaintiffs.
(iv)15. ...The survey holdings corresponding to the suit properties are bearing survey numbers as stated by the said defendants, but the names of the plaintiffs and defendants No. 28 and 29 are admittedly not recorded in the survey records.
Survey records are promulgated and they give rise to presumption of correctness u/s 105 of the Land Revenue Code. PW1 has stated that Suryaji expired somewhere in the year 1985 (in fact the date of death of Suriaji is in 1925) and that the father of PW1 namely Ganesh was the member of the family council in the Inventory Proceedings instituted upon the death of Suryaji.
The document from Land Registration Office (Exh. P-2) produced by PW1 mentions that 1/4th share of property Mollans and 1/2 of property Baiguinim of Suriaji had been allotted to his widow Shantibai in Orphonological Invenntario held on the death of Suriaji in 1925 and this right was duly registered in the name of Shantibai in 1937.
By Sale Deed dated 17.11.1915 (Exh. P-5) Suriaji and Locximi had purchased 1/2 of Mollans and entire Baiguinim/and the above entire asset of Suriaji along with other properties were subject matter of those Inventory Proceedings in which Gonesh was a member of family council.
The properties were allotted to widow Mrs. Shantabai and her children. Article 1383 of the Family Laws as applicable to the State of Goa provides that where a coheir or any other person claims the ownership of the properties described and prays that the same be excluded from the description, the dispute shall be decided, after hearing the administrator or the person who described the properties, if different, and after evidence is led and necessary information is obtained.
If Gones had half right in the said properties along with Suriaji by virtue of Deed of Declaration, etc. dated 21.1.1919 (Exh. P-6) which ownership right had to go back to the Deed of purchase dated 17.11.1915 (Exh. P-5) then Gones would have certainly objected to the inclusion of his alleged half right in the suit properties and would have prayed for exclusion of the same. The above conduct of Gonesh itself shows that he had no interest/right or that he had not acquired any right in the suit properties included in the said Inventory Proceedings. The aspect has not been touched by the Trial Judge.
In fact the conduct of Gonesh who was away from Goa from 1952 to 1978 when he died, as the evidence is on record, shows that he never showed interest in the suit properties. As admitted by PW1, the Deed of Partition of 1969 (Exh. P-14) was done during one of the visits of his father (Gonesh) to the house of defendant No. 3. DW1 has stated that since financial condition of Ganesh was far from satisfactory, Ganesh disposed of his share in the residential house at Ribandar in 1971 to defendant No. 3. The above is not denied.
If Ganesh had share in properties, then he would have first sold that share, instead of residential house. The defendants No. 3 and 4 have already developed the property out of suit properties allotted to them in the Deed of Partition of 1969 (Exh. P-15) and have made plots and have sold them to various persons through registered Sale Deeds and some such persons have buildings in the plots and are staying therein....
(v)20. ...The oral evidence of PW1 in cross examination reveals that he has no personal knowledge of the fact of alleged receipt of income from the suit properties by his father and according to PW1 this was told to him by his father. PW1 has admitted that at no time the payment of father''s share was made in his presence. There is no documentary evidence of receipt of any share in income from suit properties by Gonesh. There is no witness examined by plaintiffs to corroborate PW1.
Then since the time of death of Ganesh, the plaintiffs themselves say that excluding the plaintiffs and defendants No. 28, 29 and 32, the suit properties are enjoyed by all the other defendants. PW1 did not claim, in writing their share from 1978. PW1 has admitted that he has not exercised any act of physical possession of the suit properties. Similarly, Gonesh Porob never physically possessed the suit properties.
PW1 has stated that his father never asked him to collect his share from the income of suit properties from the defendant No. 3 at any time and that he would never talk to his father about the suit property and its income.
Merely because the members of the two branches continued to live in their ancestral house under the same roof, but occupying separate portions, it cannot at all be concluded that the enjoyment of suit properties was on behalf of Gonesh Porob also.
The findings of the trial Judge in paragraphs 41 and 42 of the impugned Judgment have no basis of any documentary evidence or of oral evidence of eyewitness and are even based on surmises and conjectures.
According to the trial Judge the only witness who could have rebutted the facts as deposed by PW1 was defendant No. 5 who is the eldest living member of the families but he has not come before the Court and hence considering the pleadings of parties and on the principle of probabilities, it has to be held that the suit properties continued to be enjoyed jointly at least till 1969.
The above is totally erroneous finding. The hearsay evidence of PW1 in this regard cannot prove the pleadings and defendant No. 5 has nothing to rebut in such situation The concept of preponderance of probabilities cannot favour the plaintiffs.
(vi)24. ...Hence, it is clear beyond doubt that to the knowledge of the plaintiffs their title to the suit properties was denied by the defendants between 1981 and 1983.
Now coming to the Deed of Partition dated 31.3.1969, this Deed was executed during the lifetime of Ganeca through whom the plaintiffs claim right. Gonesh died in 1978.
Thus, merely by pleading that after the publication of notice in the Navhind Times dated 25.10.1985, and collection of certified copy of the said partition deed, the plaintiffs for the first time got knowledge of the same is not enough to bring the suit for declaration that Partition Deed is null and void, within time.
The Partition Deed was executed during the life time of Gonesh on 31.3.1969 whereas Gonesh expired in December, 1978 which is more than 9 years after the Partition Deed. There is no pleading at all that Ganesh had no knowledge of execution of the said Deed of Partition.
PW1 in his cross examination at page 35 initially stated that ''may be that the Deed of Partition of 1969 was done during one of the visits of his father to the house of defendant No. 3.
Then, PW1 added that he thinks that his father was not present when the Deed of Partition was registered in the office of the Registrar.
But presence of the father of PW1 i.e. Ganesh in the house of the defendant No. 3 at the time of making of the Deed of Partition of 1969 is sufficient knowledge of that Deed and the knowledge of Ganesh is imputable to his heirs the plaintiffs.
This is further denial of right to Ganesh and his heirs.
(Quoted from pages 48 to 59 of paper book of Second Appeal. Sub paragraphing is done for convenience of reference to each finding)
This Court has to see which factual aspects this Court has to appreciate and as to whether the findings recorded by the First Appellate Court, quoted in the foregoing paragraph are challenged.
This Court has then to scrutinize the grounds and substantial questions of law framed at the time of admission, and decide whether answer to those questions shall result in reversal of the decree under appeal.
For convenience, the substantial questions of law need to be and condensed and reformulated for convenience as below:
(a) What right Gonesh has derived through the Deed of Partition or Settlement Deed dated 21.1.1919?
(b) Are plaintiffs entitled to claim decree for separate possession based on partition or settlement deed dated 21.1.1919 signed by Surya, on plaintiffs'' discharge of obligation to pay.
(c) Did initially Surya and Gonesh, and after their death, their heirs remained in joint enjoyment of suit property?
(d) Did Surya and later his heirs paid to Gonesh his share in income till death of Gonesh, and thereafter to the wife of Gonesh?
(e) Did Gonesh loose his right to seek share on the basis of settlement deed dated 21.1.1919 as his right due to openly exclusion/denial, and failure to file a suit for enforcement of his right within three years from first of such denial or exclusion?
As regards these Substantial Questions of Law, what this Court observes is as follows:
(i) The point (a) above quoted is based on construction of document dated 21.1.1919.
(ii) The fate of point (b) is based upon answer to point (a) above.
(iii) The question of limitation covered by facts as involved in Point Nos. (c), (d) and (e) is a mixed question of fact and law.
As to Substantial Questions of Law (a) and (b)
This Court has therefore to see what is the interpretation of document dated 21.1.1919.
There is no dispute about fact of execution of Deed of Settlement dated 21.1.1919. The dispute is about the construction thereof.
In the document dated 21.1.1919, Suryaji has admitted that 1/8th of the property MOLLANS and 1/4th of the property BAINGUINIM was purchased by him for Gonesh and Gonesh was supposed to pay his contribution as indicated therein. No dispute can be raised as regards this promise or declaration contained in this deed.
Admittedly, no time limit is fixed for the payment of share or exercise of right in the Deed dated 21.1.1919. This document also does not specify that prior payment should be made by Gonesh due to be made thereunder, or that such payment is a condition precedent. Thus, acknowledgment of liability to part with property described therein is absolute and unambiguous. This document contains an unambiguous recital about acknowledgment of existence of right of Gonesh to the properties.
Right of Gonesh to receive share is, thus, crystallized, and he has derived a right enforceable in law and according to law.
As to Substantial Questions of Law (c), (d) and (e)
Another fact admitted by Gonesh is that Gonesh was ''Vogal'' in Inventory Proceedings. In these proceedings, the share in properties MOLLANS AND BAINGUINIM were allotted to widow of Suryaji namely Shantibai.
Had Gonesh to exercise and enforce his right under Deed dated 21st January, 1919, he had to object to the allotment of share asserting his share of 1/8th of the property MOLLANS and 1/4th of the property BAINGUINIM, in view of document dated 21st January, 1919. He did not raise any objection. This event relates back to 1925, which attained finality when rights accrued to Shantibai in the inventory proceedings were registered into records around 1940.
The said allotment of share in inventory proceedings was not challenged by Gonesh by way of suit which course was open to him between 1925 and 1940, or any time during his lifetime, did he have any explanation about such exclusion of limitation towards delay in filing such a suit.
It is the plaintiffs'' case that though there was separation of family and partition, in fact parties continued in joint and enjoyment and share in the income was given initially to Gonesh then to wife of Gonesh.
Admittedly, the plaintiffs are not witnesses of the factual matter that Gonesh used to receive his share in the income and thereafter mother of the plaintiffs used to receive it.
Payment/giving of share in income being a factual matter, this evidence could have been either documentary or oral. It is seen from the records that no documentary evidence in regard to payment and/or receipt of income or proceeds of land by Gonesh or to plaintiffs'' mother is brought forward by the plaintiffs.
Admittedly, on these points, the case has proceeded on oral evidence. It is a case of oath against oath, by witnesses. As noted earlier, the plaintiffs'' witnesses do not have knowledge of antecedent facts.
All that plaintiffs'' witnesses have stated is that the defendants used to give the share in income. This statement too is vague and lacks narration/deposition on oath of the events when taken together and constitutes the fact of giving share in income as a crucial fact in continuity.
Collective effect of the pleadings and evidence can be summarized as follows:
(a) Recognition of share of Gonesh is done in the document dated 21.1.1919;
(b) In spite of recognition or acknowledgment of share of Gonesh, the property is given to Shantibai, wife of Suryaji, which was the only share remaining with the family of Suryaji and Gonesh, in the background the auction of share owned by Gonesh in the property MOLLANS.
(c) The fact that share of Gonesh was sold out is not disputed.
(d) It is also admitted that Gonesh did not dispute the 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.
It is not the plaintiffs'' case that they had no knowledge of registration of property in the name of Shantabai way back in 1940 as a final act based on conclusions of inventory proceedings.
In the result, conclusion is that whatever right or interest may have survived with Ganesh, was lost, as Gonesh did not at any point of time challenged the allotment of property to Shantibai which allotment in the Inventory Proceedings and recording/registration of rights in her favour has attained finality for want of challenge.
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.
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.
In the light of the background that the case revolves around facts, discussion on the precedents would be of no gain.
Findings as to Substantial Questions of Law
In the result, this Court records its findings and answers to various Substantial Questions of Law condensed and quoted in para 25 above, as follows:
[a]: Right of Gonesh to have half share in the properties referred to in Settlement dated 21st January, 1919 was confirmed, and is proved.
[c] & [d]: Plaintiffs have failed in proving that Suryaji and Gonesh were joint in their estate even after the partition. It is further held that Gonesh did not assert his separate his separate right, though properties, which were allotted to him in the settlement, were given, within his own view and knowledge, to Parvati, and the inventory proceedings attained finality, and based thereon the names of allottees were recorded in the Registration Office, to which he never raised objection.
Plaintiffs have also failed to prove that initially Suryaji and later his heirs paid to Gonesh his share in income in the properties allegedly held in joint enjoyment.
[b] & [e]: Denial of right of Gonesh or his exclusion and implied denial relates back to 1925, and it has culminated in absoluteness in 1940. Right of Gonesh to have a separate possession by partition, or otherwise, if at all he wanted to assert it on the basis of Settlement Deed dated 21st January, 1919 had arisen latest in 1940. As Gonesh did not enforce it, his right of seeking partition and enforcement of right under Settlement-Deed dated 21st January, 1919 was lost.
Result is that Questions of Law formulated at the time of admission-hearing are answered against appellants. Therefore, the appeal has no merit, and is dismissed with costs.