Bombay High Court
Dr. Avinash Prakashchandra Banait And … vs Jyoti W/O Moreshwar Kelkar And Others on 27 April, 2026
2026:BHC-NAG:6435
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 207 OF 2021
1 Dr. Avinash Prakashchandra Banait, .. Appellants
aged major, occ. Medical Original/respdts. 7 to 9/orig.
practitioner. Defts. 7 to 9
2 Dr. Smt. Jayashree Avinash Banait,
aged major, occ. medical
practitioner;
3 Kumudini Prakashchandra Banait
(dead)
Appellants r/o 25, Congress Nagar,
opposite Dhanwate Natinal college,
Nagpur.
Versus
1 Jyoti w/o Moreshwar Kelkar, aged 72
yars, occ. Housewife, r/o Buty .. Respondents
compound, Ravindranath Road, Civil respondents 1 & 2 Original
Lines, Nagpur 440001
2 Sachit Prakash Buty (dead) through
L.Rs.
2(a) Devyani Sachit Buty
2(b) Shreelekha d/o Sachit Buty,
Both residents of A-1, 6th floor, Forest Plaintiffs 1 & 2
Employees Cooperative Society,
near Centre Point School, Katol road,
Nagpur 440013
3 Kiran Bhaskarrao Buty, aged about
55 years, occ. Legal practitioner, Respondents 3 & 4/Orig.
Def.1 & 2.
4 Shri Deepak Bhaskarrao Buty (dead),
thru L.Rs.
4(a) Smt. Radhika wd/o Deepak
Buty, aged 57 years, occ. Household.
4(b) Shri Rahul Deepak Buty, aged
about 38 years occ. Landlord,
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4(c) Rutuja d/o Deepak Buty, aged
22 years, occ. student
All 4a to 4c r/o. 316 Buty Bungalow,
behind Axis Bank, Civil Lines, Nagpur
440001
5 Smt. Laxmi Prakash Buty, aged
about 68 years, occ. Business,
Respdts. 5 to 8/orig. Respdts
3 to 6, orig. defts. 3 to 6
6 Smt. Chitralekha P. Harode, aged
about 49 years, occ. Service,
7 Shri Sarang Prakash Buty, aged
about 43 years, occ. Business,
8 Ku. Shivalini Prakash Buty, aged
about 43 years, occ. student
Respondents all residents of building
no.A-1, 6th floor, Employees co-
operative housing society, near
Center Point School, Katol road,
Nagpur.
9(a) Dr. P. P. Banait, (deleted) Respdts. 9A & 9B
orig. defts. 9A & 9B
Aged Adult, Occ.: Medical
Practitioner, R/o. C/o. Dr. Sangeeta 9(a) deleted as per Court
Gandhi, 101, Fairfield B. Lodha order dt.20.11.25.
Laxuria Complex Highway, Malji Amendment carried out as
Wade, Thane (West) 400601. per Court order 4.4.24 and
R.J. Order dt.14.11.2024
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Dr. R. S. Sundaram, Advocate for appellants.
Mr. V. V. Bhangde, Advocate for respondents.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 10.02.2026
PRONOUNCED ON : 27.04.2026
JUDGMENT
-- 3 -- SA 207.2021 (J) -.odt (1) Heard finally with the consent of the learned counsel appearing for the parties. (2) The present second appeal is filed assailing judgment and
decree dated 09/07/2021 passed by the learned District Judge-16
Nagpur in R.C.A.No. 268/2018, whereby the learned first appellate Court
has quashed and set aside judgment and decree dated 17/03/2018,
passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur in
Special Civil Suit No.621/2001. The present appellants are original
defendant Nos.7, 8 and 9, the respondent Nos.1 and 2 are original
plaintiffs, respondent Nos.3 to 8 are original defendant Nos.1 to 6. The
defendant No.9 had expired while the civil suit was pending and her
legal representatives, who are respondent Nos.9(a) and 9(b) were
brought on record as defendant Nos.9(a) and 9(b). In the present
appeal the name of deceased respondent No.9 was initially included as
appellant No.3. The respondent No.9 is deleted pursuant to order dated
20/11/2025. The parties will hereinafter referred to as plaintiffs and
defendants.
(3) The plaintiffs had filed the aforesaid suit for declaration,
partition, separate possession and perpetual injunction with respect to
suit property which comprises of plot No.383/3, House No.791/K, being
a part of Khasra No.22, 23/1 and 30/1 situated at Laxmi Nagar, Mouja
Ajni Khurd District Nagpur admeasuring around 1490.50 square meter
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(16044.13) square feet. The following family tree will explain interse
relation between the parties.
Shri Bhaskarrao Jageshwarrao Buty
(expired on 08.10.1983)
Smt. Pramilabai Bhaskarrao Buty
(expired on 18.03.1983)
Prakash expried Kiran Jyoti Deepak
on 14.07.1983 (defendant 1) (Plaintiff 1) (defendant No.2)
Radhika Rahul Rutuja
def. 2(a) def. 2(b) def. 2(c)
Laxmi Radhika Chitralekha Sachit Sarang Shivalini
(defendant 4) (defendant 4) (plaintiff 2) (defendant 5) (defendant 6)
(4) The defendant No.1 has sold the suit property vide three
different sale deeds dated 07/09/1989, 28/08/1989 and 25/08/1989 to
the defendant Nos.7,8 and 9 respectively. The defendant No.1 sold the
suit property to the defendant Nos.7, 8 and 9 as Vahivatdar(Manager)
of Shri Dev Balkrishna Devghar Devasthan (hereinafter referred to as
‘family trust’). It is the case of the plaintiffs that the suit property is
ancestral property or joint family property of plaintiffs and defendant
Nos.1 to 6. The case of defendant No.1 vendor and defendant Nos.7 to
9 purchasers is that the suit property is owned by the family trust of the
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family of plaintiffs and defendant Nos.1 to 6. The said issue is the bone
of contention between the parties.
(5) It will be pertinent to state that prior to institution of the
present suit, another civil suit being Spl.C.S.No.350/1986 was filed by
defendant Nos.3 to 6 and plaintiff No.2 for partition and separate
possession with respect to various properties of the family. The said
suit came to be disposed of in view of mutual compromise between the
parties. The compromise decree dated 10/08/1988 was passed by
learned 2nd Joint Civil Judge Senior Division, Nagpur. The suit property
was not subject matter of the said suit. However some properties
recorded in the name of family trust were subject matter of the suit and
suit were subjected to partition under the compromise decree.
(6) It is the case of plaintiffs that the Buty family had several
properties in and around Nagpur and the fact that the suit property was
owned by the family was not known to the plaintiffs. The plaintiffs have
stated that the suit property was surreptitiously sold by the defendant
No.1 to the defendant Nos.7 to 9 within a short period after compromise
decree came to be passed in the earlier suit for partition and separate
possession. It is contended that the sale deed is illegal and not binding
on the plaintiffs. Accordingly, the plaintiffs have sought declaration
that the suit property is a joint family property of plaintiffs and
defendant Nos.1 to 6, along with a declaration that the sale deeds
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dated 25/08/1989, 28/08/1989 and 07/09/1989 executed by defendant
No.1 in favour of defendant Nos.7 to 9 are illegal and not binding on
them and a decree for partition and separate possession.
(7) The defendant Nos.1 and 2 filed written statement
opposing the suit. It is the case of the defendant Nos.1 and 2 that the
suit property was initially owned by late Shri Atmaram Amurtrao Buty
who created a private trust named as ‘Shri Dev Balkrishna Devghar
Devasthan’ vide Will deed dated 09/05/1930. It is stated that by virtue
of said Will, the testator appointed Shri Jageshwar Buty as
Vahivatdar/Administrator. It is stated that the Will provides that the
eldest male member of the family will be Vahivatdar of the family trust.
The defendant Nos.1 and 2 stated that after demise of late Jageshwar
Buty, late Bhaskarrao Buty became Vahivatdar of the said family trust
and after his demise, the defendant No.1 being the eldest male
member became the Vahivatdar. It is stated that as a sole
Vahivatdar/Manager, the defendant No.1 was competent and
authorized to deal with the suit property. The defendant Nos.1 and 2,
however, did not dispute the interse relationship between the parties.
(8) After the demise of defendant No.2, his legal
representatives filed separate written statement stating that the
defendant No.1 did not have right to sell the suit property. Perusal of
the written statement indicates that the Will by virtue of which the
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family trust was created, is admitted by the legal representatives of
deceased defendant No.2.
(9) The defendant Nos.3 to 6 filed written statement
supporting the plaintiffs.
(10) The defendant Nos.7 and 8 filed written statement
justifying sale deeds. They also contended that the suit property
belonged to Shri Dev Balkrishna Devghar Devasthan, which was
created by Will deed dated 09/05/1930, executed by Shri Atmaram
Amrutrao Buty. They contended that the defendant No.1 had absolute
right to deal with the suit property including right to sell the same as
sole Manager/Vahivatdar of the family trust. The defendant Nos.7 and
8 also contended that the plaintiffs were aware about the alienation of
suit property by the defendant No.1 and that the suit was filed beyond
the prescribed period of limitation. They contended that apart from the
sale deed in their favour, they had also perfected their title over the
suit property by adverse possession.
(11) Based on rival pleadings issues were framed by the
learned trial Court. The plaintiff Nos.1 and 2 entered the witness box in
support of their case. The defendant Nos.1 and 7 also examined
themselves. The defendant Nos.7 and 8 also examined a witness to
prove Will executed by defendant No.9 in favour of defendant No.7.
-- 8 -- SA 207.2021 (J) -.odt (12) The plaintiff No.2 deposed on the lines of the plaint
averments. His examination in chief is reiteration of the plaint
averments. During the cross-examination he stated that his date of
birth is 26/11/1971. He stated that he knew that late Atmaram
Amrutrao Buty had executed a Will in the year 1932 and that he had
gone through the contents of the said Will. He stated that he had read
the Will for the first time when it was filed on record by defendant Nos.7
to 9. He admitted that he was aware that late Atmaram Amurtrao Buty
had created a private trust by the name Shri Dev Balkrishna Devghar
Devasthan. Questions were put to him with respect to alienation of
some other properties of the family trust by late Bhaskarrao Buty, in
response to which he stated that late Bhaskarrao Buty as
Vahivatdar/Manager of the family trust had sold plot to one Sharadadevi
Gupta in the year 1968. He further stated that he had no documentary
evidence to establish that the suit property is ancestral property of Buty
family.
(13) The plaintiff No.1 stated in general about the interse
relations between the parties. She stated that her marriage was
solemnized on 05/05/1969 and since her husband was serving in Indian
Army, she was accompanying her husband at different places away
from Nagpur due to his postings. She stated that the suit property was
alienated by defendant No.1 without her knowledge. During her cross-
examination by the defendant No.1 she denied that late Atmaram Buty
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had created the said family trust for Buty family. She denied that
defendant No.1 was competent to transfer the suit property as
Vahivatdar/Manager of the family trust. However, in her cross-
examination by the defendant Nos.7 to 9, she admitted that late
Atmaram Buty had executed a Will with respect to suit property and
that she had not challenged the said Will in any Court. She further
stated that she had not filed any documentary evidence to establish
that the suit property was owned by her father late Bhaskarrao Buty as
exclusive owner. Question was put to her with respect to the relative
who informed her about alienation of the suit property by the defendant
No.1. In response to the said question she stated that she could not
recollect the name of said relative. She further stated that she did not
challenge any transaction entered into by late Bhaskarrao Buty or Kiran
Buty while acting as Vahivatdar/Manager of the said family trust. She
also stated that she was not aware about the tentative period when the
suit property was mutated in the name of the family trust/idol.
(14) The defendant No.1 in his examination in chief stood by
the case that he had executed the sale deed acting as
Vahivatdar/Manager of the family trust. He however, stated that he
was in doubt as to whether he could sell the suit property, when the
defendant Nos.7 to 9 approached him for purchasing the same. He
stated that the defendant Nos.7 to 9 assured him that they will take
care of any legal issue that may arise in relation to the sale transaction.
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He also stated that he did not receive any consideration under the
three sale deeds executed in favour of defendant Nos.7 to 9. In his
cross-examination he stated that before execution of the sale deed he
did not consult the plaintiffs or defendant Nos.3 to 6. He also stated
that after compromise decree in earlier suit for partition he ceased to
be ‘Karta’ of the family.
(15) It will be pertinent to state that the defendant Nos.7 to 9
have not cross-examined the defendant No.1.
(16) The defendant No.7 entered the witness box on behalf of
defendant Nos.7 to 9. His evidence is on the lines of his written
statement. He stated that defendant No.1 sold the suit property to
defendant Nos.7 to 9 as Vahivatdar/Manager of the aforesaid trust and
he was competent and authorized to sell the same. In his cross-
examination by the plaintiffs, questions were put to him with respect to
the plaint and compromise decree in the earlier partition suit. His
attention was drawn to a property in the name of Shri Dev Balkrishna
Devghar Devasthan, which was subject matter of earlier suit. He stated
that he was not aware that why defendant No.1 sold the suit property.
He admitted that the reason to sell the suit property was not disclosed
by the defendant No.1.
(17) After the evidence was recorded, the learned trial Court
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heard the arguments of respective parties and decided the suit vide
judgment and decree dated 17/03/2018. The learned trial Court
dismissed the suit recording a finding that the suit property was not
owned by late Bhaskarrao Buty as contended by the plaintiffs. The
learned trial Court referred to the admissions of plaintiff Nos.1 and 2 in
their cross-examination and held that the suit property belonged to late
Atmaram Buty who had created a private trust by virtue of Will dated
09/05/1930. The learned trial Court has held that the trust becomes
effective only when the grantor transfers the property to the trustee.
The learned trial Court has referred to documents at Exh.92 and 93,
which are sale deeds executed by late Bhaskarrao Buty as
Vahivatdar/Manager of the said family trust, which were never
challenged by the plaintiffs or the other family members. Likewise
learned trial Court also referred to exchange deed dated 24/03/1975
executed between late Bhaskarrao Buty and Nagpur Improvement
Trust, which is at Exh.91. Another sale deed dated 13/08/1975
executed by Bhaskarrao as Vahivatdar which is at Exh.88 was also
relied upon. The learned trial Court recorded findings on the basis of
the said documents that Bhaskarrao and thereafter defendant No.1
were authorized and competent to deal with the properties of the family
trust. Apart from this, the learned trial Court also referred to plaint in
the earlier suit for partition, wherein one of the suit properties identified
as Abasaheb Wada was referred as property held by late Bhaskarrao
Buty as Vahivatdar of the family trust. The learned trial Court has also
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referred to another property of the family trust, which was subject
matter of the earlier suit for partition, a portion of which was allotted to
the plaintiff No.2 and defendant Nos.3 to 6 for construction of their
residential house. In view of such findings, the suit came to be
dismissed.
(18) Aggrieved by the aforesaid judgment and decree, the
plaintiffs preferred R.C.A. No.268/2018. The learned first appellate
Court allowed the appeal holding that the suit property was joint Hindu
Family property of the plaintiffs and defendant Nos.1 to 6 and that sale
deed executed by defendant No.1 in favour of defendant Nos.7 to 9 was
not binding on the plaintiffs. In view of such finding, the learned first
appellate Court allowed the appeal, thereby quashing and setting aside
the judgment and decree passed by the learned trial Court dismissing
the suit for partition. The learned first appellate Court has held that the
fact that the suit property was joint family property could not be
disputed in view of the plaint averments in earlier civil suit for partition
and compromise decree passed therein.
(19) As regards the case of defendant Nos.1 and 7 to 9 with
respect to the suit property being property of the family trust, it is held
that the said case was based on the Will which was not proved. It is
held that the learned trial Court erred in placing reliance upon the will
which was not proved in accordance with law. The learned first
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appellate Court also recorded that the original Will was also not filed on
record. The learned first appellate Court also recorded that even if the
suit property considered to be property of the family trust, by virtue of
the partition decree in the earlier suit, the trust came to be dissolved
since some of the properties of the trust were subject matter of the
earlier suit for partition and the same were mutually partitioned
between the parties which results in dissolution of the trust. Reliance is
placed on Section 77(c) of the Indian Trusts Act, 1882 to arrive at such
conclusion. The learned first appellate Court has thus held that the suit
properties were joint family properties of plaintiffs and defendant Nos.1
to 6 and has allowed the appeal thereby decreeing suit for partition and
separate possession.
(20) Being aggrieved by the aforesaid reversing decree, the
defendant Nos.7 to 9 have preferred the present appeal. Following
substantial questions of law has been framed in the appeal vide orders
dated, 18/10/2023, 05/01/2026 and 12/01/2026.
“A. Whether a private Trust created in favour of deities Dev
Balkrishna which is in perpetuity can be impliedly dissolved?
B. Whether a Will executed on 09/05/1930 by Deceased
Atmaram Buty creating a private Trust, admitted, relied and
read and observed by the Court requires to be exhibited so as
to be read in evidence?
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C. Whether parting of some portion of private Trust property
by concerned compromise decree by Wahiwatdar throws
property of the Trust as that of a Joint Family property of the
family?
D. Whether the finding recorded by the First Appellate Court
in his judgment in Paragraph Nos. 21, 23, 24 and 25 are
perverse finding contrary to evidence on record?
E. Whether the learned First Appellate Court has rightly
computed the shares of respective parties having regard to
the fact that as on the date of execution of the impugned sale
deed the provisions of Hindu Succession Act, 1956 as
amended by Hindu Succession (Amendment) Act, 2005 had
not come into force and also having regard to the legal
position that when one of the co-owners sells undivided share
in a property, the purchaser gets the share of such co-owner
which he was entitled in accordance with law on the date of
execution of the sale deed?.
F. Whether the learned first appellate Court had erred in law
for not taking into consideration in the admissions of plaintiff
No.2 with respect to the suit property bearing Khasra No.22
being property of private family Trust named “Shri. Deo
Balkrishna Deoghar Deosthan?
G. Whether the plaintiffs had constructive knowledge of the
impugned sale deeds and consequently was the suit filed
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within limitation?”
(21) Before dealing with the substantial questions of law
framed in the appeal, it must be stated that the core issue between the
parties is as to whether the suit property is Joint Hindu Family Property
of plaintiffs and defendant Nos.1 to 6, or it is the property of a family
trust of the plaintiffs and defendant Nos.1 to 6. The plaintiffs have come
up with the case that the property is Joint Hindu Family Property. As
against this, the contention of defendant Nos.1, 2 and 7 to 9 is that the
property was dedicated to a family trust and, as such, it was the
property of a private family trust. The foundation of the case of
defendant Nos.1, 2 and 7 to 9 is the Will dated 09.05.1930 stated to be
executed by late Atmaram Buty.
(22) The principal dispute between the parties is as to
whether the property is a property of Joint Hindu Family of the plaintiffs
and defendant Nos.1 to 6, or property of a family trust of the plaintiffs
and defendant Nos.1 to 6. The suit is based on contention that the suit
property is a joint Hindu Family property which is sold by defendant
No.1 to defendant Nos.7 to 9 without authority. The contesting
defendants are defending the impugned sale deeds on the ground that
the suit properties belonged to a family trust and that defendant No.1
was competent to sell the suit properties, being the sole trustee.
(23) It must be stated that the fact that the property belonged
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to Buty family is not in dispute. It is rather admitted. The case of the
contesting defendants is that this property, which belonged to Atmaram
Buty, was dedicated to a private family trust by him by virtue of the
Will.
(24) It must be stated that a Karta of a joint Hindu family
property does not have absolute right to sell property of joint Hindu
family. However for legal necessity etc., a Karta can alienate properties
of joint Hindu family and such alienation is binding on the family
members. It must also be stated that alienation of property by a Karta,
even if it is not for legal necessity, is not void, but voidable at the
instance of other co-parceners. In the present case, there was a
partition in the family in the previous suit and the defendant No.1 has
admitted that after the partition decree he ceased to be Karta of the
family. Therefore, sale deed executed by defendant No.1 in favour of
defendant Nos.7 to 9 will have to be treated as a sale deed by a
coparcerner and not by a Karta. The defendant No.1 had admittedly not
executed a sale deed as a Karta of the family. As per Bombay School of
Mitakshara Hindu Law, a coparcener is also entitled to sell his undivided
share in coparcenary property. Such sale deed is valid to the extent of
this share in the coparcenary property. In view of the said legal position,
in the event it is held that the property is joint family property, the sale
deed in favour of defendant Nos.7 to 9 can at least be sustained to the
extent of share of their vendor, defendant No.1.
-- 17 -- SA 207.2021 (J) -.odt (25) It is now necessary to consider what will be the fate of
the sale transaction, if the property is held to be property of the family
idol/trust which is sold by defendant No.1 to defendant Nos.7 to 9 as
Vahivatdar/Administrator.
(26) To answer this question, it will be profitable to refer to
judgment of this Court in the case of Ramabai Govind Vs.
Raghunath Vasudeo, reported in AIR 1952 Bom. 106 wherein it is
held that a trustee has no right to sell the property of a trust unless he
is expressly empowered by the deed of trust to do so. The relevant
observations in the judgment are extracted herein-below:-
“There is no express power conferred by the
Act upon the trustee to sell the trust property.
The instrument of trust, which is the
vayasthapatra in the suit, also does not confer
on the executor or even the executor de son
tort the power to sell the same, as we have
already indicated. Unless, therefore, it was
contended that the sale of the property was a
step towards the realization, protection or
benefit of the trust property, and for the
protection or support of a beneficiary who was
not competent to contract, the sale could not
be justified. The powers of the trustee are
really limited and, as a matter of fact, it is laid
down in the further provision contained in S.
36, Trusts Act that
“Except with the permission of a principal Civil
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Court of original jurisdiction, no trustee shall
lease trust property for a term exceeding
twenty-one years from the date of executing
the lease, nor without reserving the best
yearly rent that can be reasonably obtained.”
This limitation on the power of the trustee is
suggestive and goes to show that far from
there being any power in the trustee to
absolutely deal with the trust property in the
manner suggested, even the right to give a
lease of the trust property for a term
exceeding twenty-one years is denied to him
unless and until he obtains the sanction of the
Court in that behalf. It follows, therefore, from
the above discussion that the trustee as such
has no right to sell the trust property. If he has
no such right, the vendee does not get any title
thereto which is unimpeachable by any person
claiming to be entitled to that property. This
argument would, therefore, not avail Mr.
Bhalerao.”
25. The next point which has been urged
before us by Mr. Bhalerao for the defendant is
that a trustee is competent to sell the trust
property, and if he does sell it, a beneficiary
may bring a suit to have the alienation set
aside, but the alienation itself cannot be
treated as null and void. We have considered
this contention, but have no hesitation in
coming to the conclusion that it has no
substance. If we turn to S. 36, Indian Trusts
— 19 — SA 207.2021 (J) -.odt
Act, we find that it lays down :
.
.
.
We have not been pointed out any express
provision in the Trusts Act to the effect that a
trustee is competent to sell the trust property,
and if we turn to the instrument of trust, the
will in this case, we do not find any provision
therein empowering the trustees to alienate
any portion of the estate….
26. In these circumstances, we do not see any
force in the contention of Mr. Bhalerao that
Martand had competence to sell the suit property
the defendant and that the only remedy which
was available to the plaintiff was to bring a suit to
set that alienation aside”
(27) Perusal of the above judgment will clearly establish that
in the absence of an enabling provision under the trust deed, a trustee
does not have any authority to alienate property of the trust and further
that such alienation is void. In the said case, a contention that even if
sale transaction is not valid it will have to be challenged to have it set
aside is also rejected.
(28) It will also be appropriate to refer to the judgment of this
Court in the case of Shirinbai in R.E. Vs. NIL, reported in AIR 1919
BOM. 119, wherein it is held that Sections 36 and/or 40 of the Indian
— 20 — SA 207.2021 (J) -.odt
Trusts Act, do not confer any power on trustees of immovable
properties to sell the same in the absence of any express power
conferred by the trust deed. It is held that in the absence of any
enabling provision under the trust deed, if an emergency arises or the
circumstances otherwise warrant necessity to sell the property of the
trust, it is necessary to obtain consent of all the beneficiaries and the
sanction of the Court. In the case at hand, there is no express authority
in the Vahivatdar to sell the trust property under the Will in question.
Rather there is a prohibition. Moreover perusal of written statements of
Defendant Nos.1 and 2 and defendant No.9 do not refer to any need or
necessity for sale of the suit property.
(29) Dr. Sundaram, learned Advocate for appellants has
however raised a contention that since the property is dedicated to the
family idol, the idol is absolute owner of the suit property and further
that the plaintiffs did not have any right to challenge the alienation
and/or seek a decree for partition and separate possession. The
contention, so far as it relates to right to challenge the sale deed is
liable to be rejected in view of judgment of the Hon’ble Supreme Court
in the case of Deoki Nandan Vs. Murlidhar and ors, reported in AIR
1957 SC 133, wherein the Hon’ble Supreme Court has held that in
case where a property is dedicated to an idol, the property is vested in
the idol in an ideal sense, however, the idol itself cannot enjoy the
properties vested with it and has no beneficial interest in the same. It is
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held that the real beneficiaries of the property are the worshipers of the
idol. It is held that in case of a family idol, the beneficiaries are the
family members and when the idol is installed for public worship, the
beneficiary is the body of worshipers at large. The Hon’ble Supreme
Court has observed the following in the judgment:-
“6. Then the question is, who are the
beneficiaries when a temple is built, idol installed
therein and properties endowed therefor? Under
the Hindu law, an idol is a juristic person capable
of holding property and the properties endowed
for the institution vest in it. But does it follow from
this that it is to be regarded as the beneficial
owner of the endowment? Though such a notion
had a vogue at one time, and there is an echo of it
in these proceedings (vide para 15 of the plaint), it
is now established beyond all controversy that this
is not the true position. It has been repeatedly held
that it is only in an ideal sense that the idol is the
owner of the endowed properties. Vide Prosunno
Kumari Debya v. Golab Chand Baboo³, Jagadindra
Nath Roy v. Rani Hemanta Kumari Debi and
Pramatha Nath Mullick v. Pradyumna Kumar
Mullick. It cannot itself make use of them; it cannot
enjoy them or dispose of them, or even protect
them. In short, the idol can have no beneficial
interest in the endowment. This was clearly laid
down in the Sanskrit texts….
Thus, according to the texts, the Gods have no
beneficial enjoyment of the properties, and they
— 22 — SA 207.2021 (J) -.odt
can be described as their owners only in a
figurative sense (Gaunartha), and the true
purpose of a gift of properties to the idol is not to
confer any benefit on God, but to acquire spiritual
benefit by providing opportunities and facilities
for those who desire to worship…
7. When once it is understood that the true
beneficiaries of religious endowments are not the
idols but the worshipers, and that the purpose of
the endowment is the maintenance of that worship
for the benefit of the worshipers, the question
whether an endowment is private or public
presents no difficulty. The cardinal point to be
decided is whether it was the intention of the
founder that specified individual’s are to have the
right of worship at the shrine, or the general public
or any specified portion thereof. In accordance
with this theory, it has been held that when
property is dedicated for the worship of a family
idol, it is a private and not a public endowment, as
the persons who are entitled to worship at the
shrine of the deity can only be the members of the
family and that is an ascertained group of
individuals. But where the beneficiaries are not
members of a family or a specified individual, then
the endowment can only be regarded as public,
intended to benefit the general body of
worshippers.”
(30) Similar view is taken by the Hon’ble Supreme Court in the
case of Balashankar Mahashankar Bhattjee and ors. Vs. Charity
Commissiioner, Gujarat State, reported in AIR 1995 SC 167,
— 23 — SA 207.2021 (J) -.odt
(Paragraph No.20) and in the case of Radhakanta Deb and anr.
Vs. The Commissioner of Hindu Religious Endowments, Orissa,
reported in AIR 1981 SC 798, (Paragraph Nos.6 and 7)
(31) The case of contesting defendants is that the trust was
first created by Atmaram Buty for benefit of the family. All the family
members are, therefore, beneficiaries of the trust. It is obvious that
even if the suit property is presumed to be trust property, the plaintiffs,
as members of the family, will have the right to challenge the
impugned sale deeds as beneficiaries of the trust.
(32) The substantial questions of law framed in the appeal
must be viewed in the backdrop of this legal position that even if the
property is considered to be a property of the family trust, the
defendant No.1 does not get authority to alienate the suit property and
the real beneficiaries are the family members, the idol being a
figurative owner of the trust property. Even if the suit property is held to
be property of a family trust, the plaintiffs being beneficiaries as family
members will have a right to challenge the alienation in favour of
defendant Nos.7 to 9. However, if the suit property is held to be a
property of trust, the family members may not have a right to partition
the same. However, the defendant No.1 who has sold the suit property
cannot come up with a case that the plaintiffs do not have right to seek
partition of the same, more so, in the light of earlier partition between
— 24 — SA 207.2021 (J) -.odt
the family members vide compromise decree in previous suit for
partition to which the defendant No.1 is also a party. Likewise, the
defendant Nos.7 to 9/purchasers will have a right to defend the sale
deeds, but not the right to oppose prayer for partition if the sale deed is
cancelled. It must also be stated that defendant Nos.7 to 9 can at least
claim right over the share of their vendor in the event the suit property
is held to be joint family property. The contention and argument of the
contesting defendant that the suit property is property of family idol is,
therefore, a self defeating argument.
(33) Although express substantial question with respect to
nature of the suit property is not framed, substantial question of law A,
B, C and F revolve around the aforesaid issue which is the core issue in
the appeal.
(34) A substantial question of law is a question, which if
decided in favour of the appellant, will have the effect of reversing the
decree passed in favour of the respondent and turn it in favour of the
appellant. In view of the reasons recorded above, in the considered
opinion of this Court the appeal can be decided on merits without
deciding substantial questions of law A, B, C, F and D so far as it relates
to perversity of findings in paragraph 21 and 23 of the judgment of the
learned First Appellate Court. These questions even if answered in
favour of appellants will not have the effect of reversing the decree
— 25 — SA 207.2021 (J) -.odt
passed by the learned First Appellate Court in favour of the appellants.
SUBSTANTIAL QUESTION OF LAW
Whether a Will executed on 09/05/1930 by Deceased
Atmaram Buty creating a private Trust, admitted, relied and
read and observed by the Court requires to be exhibited so as
to be read in evidence?
(35) The original Will dated 09.05.1930 is not placed on
record. The learned First Appellate Court has categorically recorded so.
The learned Trial Court also does not record that the original Will was
placed on record. During the course of hearing of the appeal, this
observation by the learned First Appellate Court that original Will is not
placed on record was not disputed by the learned Advocate for the
appellants.
(36) It must, however, be stated that the cross-examination
of the plaintiffs on the point of Will also assume significance. Plaintiff
No.1 stated that he knew that late Atmaram Buty had executed a Will in
the year 1932 and that he had gone through the contents of the Will for
the first time when the defendant Nos.7 to 9/appellants produced the
same in the Court proceedings. Plaintiff No.2 also stated that he was
aware that late Atmaram Buty created a private trust named Shri. Deo
Balkrishna Deoghar Deosthan. He also admitted that the eldest male
member of Buty family was Vahivatdar/Manager of the trust. He
— 26 — SA 207.2021 (J) -.odt
admitted the status of defendant No.1 as Vahivatdar after demise of his
father. Similarly, plaintiff No.1 also admitted in her cross-examination
that late Atmaram Buty had executed a Will and that the Will was not
challenged by her in any Court proceeding.
(37) The issue that is required to be answered is as to
whether these admissions with respect to the Will are sufficient to read
the Will in evidence. In this regard, it is necessary to refer to Section 63
of the Indian Succession Act and Section 68 of the Indian Evidence Act.
So far as it is relevant to the present case, Section 63 provides that, in
order to execute a valid Will, the testator must sign it showing his
intention to create a Will and that the Will must be attested by two or
more witnesses, each of whom has seen the testator sign the Will or
received a confirmation from him regarding signing of the Will and that
the attesting witnesses must sign the Will in the presence of the
testator signifying attestation thereof. Section 68 of the Evidence Act
provides mode of proof of execution of a document required to be
attested by law. Section 68 provides that when a document is required
by law to be attested, it shall not be used in evidence unless one of the
attesting witnesses has been called for the purpose of proving due
execution, if such attesting witness is alive. Proviso to Section 68
recites that the requirement of calling attesting witness for proving
execution of a document required to be attested by law will not be
necessary if the document is a registered document and execution of
— 27 — SA 207.2021 (J) -.odt
the document is not disputed by the person who is stated to have
executed the same. However, the proviso is not applicable to a Will.
Therefore, in the case of a Will, examination of attesting witness, if he is
alive, is mandatory. The Will in question is of the year 1930. One may
reasonably presume that the attesting witnesses are no longer alive.
Nonetheless, the mandate of Section 69 of the Evidence Act should
have been obeyed by defendant Nos.1, 2 and 7 to 9. Section 69 of the
Evidence Act provides that if the attesting witness cannot be found, it
must at least be proved that the attestation by one of the attesting
witnesses was in his handwriting and that the signature of the person
who has executed the document was in his own handwriting. Thus,
defendant Nos.1, 2 and 7 to 9 should at least have proved the signature
of one of the attesting witnesses. As regards proof of signature of
testator, a concession may be given that the same was admitted by the
plaintiffs in their cross-examination referred above, however, signature
of one of the attesting witnesses is not proved. It will also be
appropriate to refer to Section 70 of the Evidence Act, which provides
that admission of a party to an attested document of its execution by
himself will be sufficient proof of its execution against him, although the
document is required to be attested.
(38) Dr. Sundaram, learned Advocate for the appellants,
however, placed reliance on Section 90 of the Evidence Act and
contended that presumption with respect to due execution and
— 28 — SA 207.2021 (J) -.odt
attestation of the Will must be drawn since the document is admittedly
more than 30 years old.
(39) Mr. Bhangde, counters the contention with respect to
Section 90 of the Evidence Act. He argues that the presumption under
Section 90 of the Evidence Act cannot be invoked in case of a Will. He
further contends that even if a Will is not disputed and is admitted,
proof of the same in accordance with Section 68 of the Evidence Act is
mandatory. The learned Advocate places reliance on the judgment of
the Hon’ble Supreme Court in the case of Ramesh Verma (Dead)
thru. LR’s Vs. Lajesh Saxena (Dead) through LR’s and anr,
reported in (2017) 1 SCC 257 (paragraph 13.), S. R. Srinivasa and
others. Vs. S. Padmavathamma, reported in (2010) 5 SCC 274
(paragraph 36, 41, 48 and 49) in support of his contention. The
Hon’ble Supreme Court in the case of M. B. Ramesh (D) by Lrs. Vs.
K. M. Veeraje URS (D) by Lrs and ors, reported in AIR 2013 SC
2088, held that presumption under Section 90 cannot be invoked in a
case of a Will.
(40) In view of the aforesaid judgments of the Hon’ble
Supreme Court, the contention of Dr. Sundaram that proof with respect
to due execution and attestation of the Will must be dispensed with in
view of Section 90 of the Evidence Act cannot be accepted. It must also
be stated that apart from the aforesaid, the contesting defendants have
— 29 — SA 207.2021 (J) -.odt
also not brought on record foundational evidence to read photocopy of
the Will in evidence. The Will on which reliance is placed by the
contesting defendants is inadmissible in evidence and is rightly
discarded by the learned First Appellate Court. The learned Trial Court
has not adverted to the provisions of Section 63 of the Succession Act
and Sections 68 and 69 of the Evidence Act while placing reliance on
the Will.
(41) Dr. Sundaram, placed reliance on Section 70 of the
Evidence Act to contend that admission of the Will is by itself sufficient
proof of its due execution. Reliance on the said provision is misplaced.
The admission with respect to the Will is not by the testator. Section 70
is attracted only when a person executing the document required to be
attested admits its due execution. In such case, the admission is
sufficient proof of due execution of the document against the
executant.
(42) In the light of aforesaid, substantial question of law B with
respect to proof of the Will is required to be answered against the
appellants/defendant Nos.7 to 9 and in favour of respondent Nos.1 and
2/original Plaintiffs.
AS TO SUBSTANTIAL QUESTION OF LAW A
“A. Whether a private Trust created in favour of
— 30 — SA 207.2021 (J) -.odt
deities Dev Balkrishna which is in perpetuity can be
impliedly dissolved?
(43) The foundation of this question is that the family trust
was created in perpetuity. It must be stated that although the
contesting defendants have come up with a case that late Atmaram
Buty had created a family trust by virtue of his Will, it is not their case
that the trust was created in perpetuity. Such is not a case set by them
in the written statement.
(44) In order to deal with the contention of the defendant
Nos.7 to 9 with respect to perpetual nature of the trust reference will
have to be made to Section 78 of the Indian Trust Act, 1882 which reads
as under:-
S.78- Revocation of trust.- A trust created by will
may be revoked at the pleasure of the testator.
A trust otherwise created can be revoked only-
(a) where all the beneficiaries are competent to
contract-by their consent;
(b) where the trust has been declared by a non-
testamentary instrument or by word of mouth-in
exercise of a power of revocation expressly reserved
to the author, of the trust; or
(c) where the trust is for the payment of the debts of
— 31 — SA 207.2021 (J) -.odt
the author of the trust, and has not been
communicated to the creditors at the pleasure of the
author of the trust.
(45) Perusal of the provision will demonstrate that a trust
created by a Will can be revoked by the testator. The provision states
that a trust created otherwise can be revoked by mutual consent of all
beneficiaries or in case of a trust created by non-testamentary
instrument or orally, in exercise of power of revocation expressly
granted by the author of the trust. The trust in question is purportedly
created by a Will which is not proved. Therefore it cannot be said that
the testator alone could have revoked the trust. In the considered
opinion of this Court, the trust could be revoked by all the family
members who are beneficiaries of the trust by a mutual consent.
Whether a private family trust is created in perpetuity, thereby
forbidding the family members who are beneficiaries of the trust from
dissolving the same, cannot be a pure question of law. The fact that the
trust was created in perpetuity was required to be pleaded by the
contesting defendants. In the absence of such pleading, the contention
of the contesting defendants that the trust was created in perpetuity
and, as such, it could not have been dissolved by the family
members/beneficiaries cannot be accepted. Substantial question of law
A is answered accordingly.
— 32 — SA 207.2021 (J) -.odt
AS TO SUBSTANTIAL QUESTION OF LAW C.
C. Whether parting of some portion of private Trust
property by concerned compromise decree by
Wahiwatdar throws property of the Trust as that of a
Joint Family property of the family?”
(46) This substantial question of law is framed in view of
finding by the learned First Appellate Court that the private trust stood
dissolved by virtue of a compromise decree in the earlier suit for
partition and separate possession, in which some of the properties of
the private trust were subjected to partition between the family
members, i.e., plaintiff and defendant Nos.1 to 6.
(47) At the outset, it must be stated that the plaintiffs have
not come up with a case that the private family trust stood dissolved by
implication in view of family partition as recorded in the compromise
decree. Implied dissolution of a trust cannot be a pure question of law.
At best, it will be a mixed question of law and fact. In the absence of
pleadings regarding implied dissolution, the learned First Appellate
Court could not have arrived at a conclusion that the private trust stood
dissolved in view of family partition arrived at in the earlier civil suit, in
which properties of the trust were also included. The plaintiffs must
have specifically pleaded that the family trust stood impliedly dissolved
by virtue of decree for partition in earlier suit and should have led
evidence in order to substantiate the said contention. Implied
— 33 — SA 207.2021 (J) -.odt
revocation or dissolution of a trust is obviously a matter of intention of
the beneficiaries. Such intention must be exhibited from hard facts,
which must to be pleaded and proved. The learned First Appellate Court
has erred in drawing an inference with respect to implied dissolution of
the trust by act of partition of some of the properties of the trust.
Substantial question of law C is answered accordingly.
SUBSTANTIAL QUESTION OF LAW E
“Whether the learned First Appellate Court has
rightly computed the shares of respective parties
having regard to the fact that as on the date of
execution of the impugned sale deed the provisions
of Hindu Succession Act, 1956 as amended by Hindu
Succession (Amendment) Act, 2005 had not come
into force and also having regard to the legal
position that when one of the co-owners sells
undivided share in a property, the purchaser gets
the share of such co-owner which he was entitled in
accordance with law on the date of execution of the
sale deed?.”
(48) The learned First Appellate Court has held that the suit
property is a joint family property and has accordingly granted 1/4 th
share collectively to plaintiff Nos.2(i), 2(ii) and defendant Nos.3 to 6 and
— 34 — SA 207.2021 (J) -.odt
1/4th share individually to plaintiff No.1, defendant No.1 and defendant
Nos.2-A to 2-C.
(49) Dr. Sundaram, the learned Advocate for the appellants,
contends that defendant Nos.7 to 9 will be entitled to the share of their
vendor, defendant No.1. He further contends that the share of
defendant No.1 will have to be carved out as on the date of impugned
sale deeds. He argues that the sale deeds are valid to the extent of
share of the defendant No.1.
(50) He further argues that since the sale deeds are executed
prior to commencement of Hindu Succession (Amendment) Act, 2005,
the shares of the parties will have to be determined in the light of
Section 6 of the Hindu Succession Act, 1956 as it stood prior to the
amendment.
(51) Mr. Bhangde, the learned advocate for respondent Nos.1
and 2/plaintiffs, contends that since the property is held to be a joint
Hindu family property, the shares of parties will be crystallized only on
the final decree being passed in a suit for partition. He contends that
until a decree for partition is effected by division of property by metes
and bounds, shares are not crystallized. Mr. Bhangde argues that
purchaser of undivided share of ancestral property from one of the co-
parceners in the family is not entitled to receive any definite share, but
— 35 — SA 207.2021 (J) -.odt
share of the transferring co-parcener, which is determined by passing a
final decree in a suit for partition. Mr. Bhangde contends that since the
decree in the partition suit is passed after amendment to Hindu
Succession Act, the share of defendant No.1 will have to be carved out
accordingly and defendant Nos.7 to 9 will be entitled to the same.
(52) Mr. Bhangde has placed strong reliance on judgments of
the Hon’ble Supreme Court in the cases of Vineeta Sharma Vs.
Rakesh Sharma and ors., reported in (2020) 9 SCC 1, Prasanta
Kumar Sahoo and ors. Vs. Charulata Sahu and ors., reported in
(2023) 9 SCC 641 and Ganduri Koteshwaramma and anr. VS.
Chakiri Yanadi and anr, reported in (2011) 9 SCC 788 in support of
his contention.
(53) Mr. Bhangde also contends that the property is not joint
Hindu family property. He contends that pleadings of the plaintiffs will
demonstrate that, according to them, the property was owned by father
of plaintiff No.1, Bhaskarrao, from whom the properties were inherited. I
am afraid, the said contention cannot be accepted. The plaint
averments clearly indicate that the plaintiffs came up with a case of
suit property being joint family property. Moreover, prayer clause 1 in
the suit itself indicates that the plaintiffs prayed for declaration that the
suit property is joint family property. Even otherwise, it is undisputed
that the suit property was earlier held by late Atmaram Buty, who died
— 36 — SA 207.2021 (J) -.odt
prior to the commencement of Hindu Succession Act, 1956. After his
demise, the property assumed the character of joint Hindu family
property since he expired prior to the year 1956. It is obvious that
property which is devolved from a male ancestor prior to
commencement of the 1956 Act devolved upon his descendants as
coparcenary or joint family property.
(54) The decisions relied upon by Mr. Bhangde certainly lay
down that rights of parties in a suit for partition pertaining to a Joint
Hindu Family are not fixed and vary with developments as they occur
during pendency of the suit. In the case of Ganduri (supra), the
Hon’ble Supreme Court has also held that in the case of change in law
after passing of preliminary decree, the shares can be reworked based
on the altered legal position and in such a situation, more than one
preliminary decree can also be passed. The judgments do lay down that
the law and factual situation prevailing as on the date of actual division
of shares will determine the respective shares of parties in a suit for
partition.
(55) However, none of these decisions deal with a case of
alienation by a Karta or co-parcener of his undivided share in joint
Hindu family property. It is well settled that a Karta and even a co-
parcener of a Joint Hindu Family governed by Bombay School of
Mitakshara Law is entitled to transfer his undivided share in co-
— 37 — SA 207.2021 (J) -.odt
parcenery property. In cases where such alienation is of the entire
property, as in the present case, the sale is held to be valid to the
extent of the share of the alienating co-parcener.
(56) The contention of Mr. Bhangde that the purchasers, i.e.,
defendant Nos.7 to 9, cannot claim any definite share in the suit
properties but the share that their vendor, defendant No.1 will get
pursuant to a decree for partition cannot be accepted. Legal position in
this regard, needs to be examined in the light of Full Bench decision of
this Court in the case of Sakarchand Satidas and ors. Vs. Narayan
Sawala Wani and ors, reported in AIR 1951 BOM. 10. Relevant
extract of the judgment is quoted herein-below:-
“10….Therefore, for the purpose of this full bench
it would be more advisable to consider the
decisions of our own High Court, and the position
as far as this Court is concerned is clear. Ever
since Pandurang Anandrav V. Bhaskar Sadashiv .
(3). consistently, with one solitary exception in
Gurligappa V. Nandapa (2). this Court has taken
the view that the share of the alienee is to be
determined at the date of the alienation. Mr. Joshi
says that this is not a logical approach to the
question. Possibly he is right. But we must not
— 38 — SA 207.2021 (J) -.odt
overlook the fact that as it is we have departed
from the strict principle of Hindu law by which a
father cannot alienate except for legal necessity
any portion of the joint Hindu family property
including his own undivided share. Once we
depart from that principle, then some workable
principle has got to be accepted by which the
share of the alienee has to be determined, and
this Court has accepted a workable principle,
namely that the share of the alienee is to be
determined at the date of the alienation and not
at the time when the alienee asks for an
equitable partition. We are impressed by the fact
that in over a considerably long period, and in
doing so we would be offending against the
doctrine of stare decisis which is always more
important and more to be respected than any
logical doctrine resulting from a particular view
as to the strict law. Therefore, we are of the
opinion that Gurlingapa V. Nandapa (1), to the
extent that it laid down that the share of the
alienee is to be determined not at the date of the
alienation but at the moment when the alienee
seeks for a partition, was wrongly decided and
— 39 — SA 207.2021 (J) -.odt
the other Bombay decisions to which reference
has been made were rightly decided.”
(57) The Full Bench decision categorically holds that an
alienee of a share in joint Hindu family property is entitled to the share
of the alienor-coparcener to the extent of the share of the alienor-
coparcener existing as on the date of alienation. The contention that
the purchaser should get the share of the alienor-coparcener as on the
date of decree for partition is expressly rejected.
(58) Similar view is taken by Full Bench of the Madras High
Court in the case of Chinnu Pillai, Minor By Guardian
Ramchandram Pillai Vs. Kalimuthu Chetti, reported in 1911 SCC
Online Mad 53. Same view is taken by the Kerala High Court in the
case of Kumaraswami Mudaliar and ors. Vs. Rajamanikkam
Udaya and ors, reported in AIR 1966 Ker 266.
(59) With this backdrop, it will be necessary to refer to Section
6 of the Hindu Succession Act as amended by the Amendment Act of
the year 2005. Although Section 6, as amended, confers status of a co-
parcener on a daughter born in a Joint Hindu Family from the date of
her birth, proviso to Section 6(1) prescribes that the said sub-section
will not affect or invalidate any alienation of property that has taken
place prior to 20th December, 2004. The sale deed by defendant No.1 in
— 40 — SA 207.2021 (J) -.odt
favour of defendant Nos.6 to 9 is certainly prior to the said date.
(60) The contention of Mr. Bhangde also cannot be accepted in
view of the proviso to Section 6(1) of the Hindu Succession Act. If the
contention is accepted, the proviso which clearly excludes sale deeds
executed prior to 20.12.2004 from the applicability of amended Section
6 will be rendered otiose.
(61) As on the date of alienation, defendant No.1 had 5/16 th
share in the suit property. This 5/16th share is determined by applying
rule of notional partition in view of unamended Section 6 of the Hindu
Succession Act, in order to carve out share of deceased Bhaskarrao,
(father) as on the date of his demise i.e. 08.10.1983. Bhaskarrao’s wife,
Pramila, had predeceased him. He was survived by four class-I legal
heirs, including plaintiff No.1/daughter. In the notional partition,
Bhaskarrao will get 1/4th share alongwith his three sons, who get 1/4th
share each. 1/4th share of Bhaskarrao is inherited by his four class-I
legal heirs, including defendant No.1. Thus, the share of defendant No.1
comes to 1/4+ 1/16 i.e. 5/16.
(62) Substantial question of law is answered accordingly by
holding that defendant Nos.6 to 9 will be entitled to 5/16th share in the
suit property, which is the share of defendant No.1 as on the date of
execution and registration of the impugned sale deeds.
— 41 — SA 207.2021 (J) -.odt
SUBSTANTIAL QUESTION OF LAW G
Whether the plaintiffs had constructive knowledge of the
impugned sale deeds and consequently was the suit filed
within limitation?
(63) The plaintiffs have pleaded that they were not aware
about the suit property being property of the family. They have stated
that if they were aware about the existence of the suit property, the
same would have been included in the earlier suit for partition. The
allegation is that defendant No.1 suppressed the suit property and
shortly after the previous suit for partition was disposed of in terms of
compromise, defendant No.1 clandestinely sold the suit property to
defendant Nos.7 to 9. The plaintiffs have stated that they came to know
about the alienation of suit property by defendant No.1 shortly before
institution of the suit from one of their relatives. However, name of the
said relative is not mentioned in the plaint. The said relative is also not
examined as a witness.
(64) In view of the aforesaid, Dr. Sundaram, learned Advocate
for the appellants/defendant Nos.7 to 9 contends that the date of sale
deed should be considered to be the date of constructive notice and
limitation for filing the suit should be counted from the said date. His
contention is that the limitation for filing the suit will be three years
from the date of registration of sale deeds. The learned Advocate
vehemently argues that limitation for filing the suit had expired in the
— 42 — SA 207.2021 (J) -.odt
year 1992 itself and the suit filed in the year 2001 was hopelessly
barred by limitation and ought to have been dismissed as such. The
learned advocate places reliance on judgment of the Hon’ble Supreme
Court in the case of Uma Devi and ors. Vs. Anand Kumar and ors,
reported in (2025) 5 SCC 198 and in the case of Rattan Singh and
ors., Vs. Nirmal Gill and ors., reported in (2021) 15 SCC 300. Apart
from this, the aforesaid judgments of the Hon’ble Supreme Court
reliance is also placed on judgment of this Court in CRA No.104 of
2019 (Sushil Agrawal Vs. Naresh Agrawal and ors), decided on
08.09.2025.
(65) Per contra, Mr. Bhangde, learned Advocate for the
plaintiffs contends that it is not in dispute that there was an earlier suit
for partition and separate possession filed for partition and separate
possession. He contends that all known properties where included in
the said suit for partition. Referring to the schedule of properties, the
learned advocate contends that even properties standing in the name
of the family idol were subject matter of the earlier suit. The contention
of the learned advocate is that it is obvious that the suit property was
not included in the earlier suit for partition since defendant No.1 had
not disclosed about existence of the same. Learned advocate also
states that the Will in which reference to the suit property is made was
also not filed in the earlier suit. He draws attention to the observation
by the learned First Appellate Court wherein it is recorded that the Will
— 43 — SA 207.2021 (J) -.odt
was not placed on record in the earlier suit. Mr. Bhangde, further argues
that it is not in dispute that Buty family of Nagpur was a very rich
family and that it owned extensive immovable properties in an around
Nagpur is a well known fact which is duly established on record. He
contends that it is therefore understandably that details of all the
properties were not known to the plaintiffs. He therefore argues that the
finding by the learned First Appellate Court on the aspect of limitation
need not be disturbed.
(66) Learned advocate places reliance on judgment of the
Hon’ble Supreme Court in the case of Mallavva and anr. Vs.
Kalsammanavara Kalamma (Since Dead)by LR’s and ors,
reported in (2024) SCC OnLine SC 3846 and Thankamma George
Vs. Lilly Thomas and anr., reported in (2024) 8 SCC 351. He
contends that the limitation for filing the suit will be governed by Article
65 of the Limitation Act. The learned advocate argues that the plaintiffs
are not parties to the sale deed and therefore they could have
maintained the suit for partition even without challenging the sale
deed. He further argues that in a case of partition and separate
possession where right to property is established, it is for the
defendants to prove the ouster.
(67) The contention of the plaintiffs is that Buty family owned
extensive lands in and around Nagpur and all family members, and the
— 44 — SA 207.2021 (J) -.odt
plaintiffs, in particular, were not aware of all the properties of the
family. It is stated that plaintiff Nos.1 and 2 were not aware about
existence of the suit property. It is stated that defendant No.1 did not
disclose about existence of the suit property while the earlier suit for
partition was filed and was disposed of by virtue of compromise. Their
contention is that immediately after the earlier suit was disposed of in
terms of the compromise decree dated 10.08.1988, defendant No.1
clandestinely sold the suit property to defendant Nos.7 to 9 vide
impugned sale deeds dated 25.08.1989, 28.08.1989 and 07.09.1989.
The learned First Appellate Court has recorded that in the earlier suit for
partition, parties have arrived at compromise. It is also observed that
some of the properties standing in the name of family trust were also
subject matter of the compromise. The learned First Appellate Court has
also referred to the admission of defendant No.1 in his cross-
examination that he had disclosed the will executed by late Atmaram
Buty to the plaintiffs for the first time vide reply to suit notice, which
was issued in the year 2001.
(68) In view of the aforesaid, the learned First Appellate Court
has recorded that defendant No.1 had concealed the suit property from
the plaintiffs. The finding is a probable finding which does not warrant
any interference.
(69) I have considered the rival submissions as aforesaid. The
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finding by the learned First Appellate Court that there was no reason to
exclude the suit property from the earlier suit for partition and separate
possession merits acceptance. Indeed, there is no reason or logic
behind excluding the suit property. It must also be stated that some of
the properties of the family idol have also been included in the earlier
suit and have been partitioned between the family members. The
finding of fact recorded by the learned First Appellate Court on this
aspect does not warrant interference.
(70) As regards constructive notice of the impugned sale
transactions reference needs to be made to Section 3 of the Transfer of
Property Act which deals with constructive notice. The provision reads
as under:-
“a person is said to have notice” of a fact when
he actually knows that fact, or when, but for
wilful abstention from an enquiry or search
which he ought to have made, or gross
negligence, he would have known it.
Explanation I. Where any transaction relating to
immovable property is required by law to be
and has been effected by a registered
instrument, any person acquiring such property
or any part of, or share or interest in, such
property shall be deemed to have notice of
such instrument as from the date of registration
or, where the property is not all situated in one
— 46 — SA 207.2021 (J) -.odt
sub-district, or where the registered instrument
has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908
(16 of 1908), from the earliest date on which
any memorandum of such registered
instrument has been filed by any Sub-Registrar
within whose sub-district any part of the
property which is being acquired, or of the
property wherein a share or interest is being
acquired, is situated:] Provided that-
(1) the instrument has been registered and its
registration completed in the manner
prescribed by the Indian Registration Act, 1908
(16 of 1908), and the rules made thereunder,(2) the instrument or memorandum has been
duly entered or filed, as the case may be, in
books kept under section 51 of that Act, and(3) the particulars regarding the transaction to
which the instrument relates have been
correctly entered in the indexes kept under
section 55 of that Act.
Explanation II.- II.-Any person acquiring any
immovable property or any share or interest in
any such property shall be deemed to have
notice of the title, if any, of any person who is
for the time being in actual possession thereof.
Explanation III.- A person shall be deemed to
have had notice of any fact if his agent acquires
notice thereof whilst acting on his behalf in the
course of business to which that fact is
material:
— 47 — SA 207.2021 (J) -.odt
Provided that, if the agent fraudulently conceals
the fact, the principal shall not be charged with
notice thereof as against any person who was a
party to or otherwise cognizant of the fraud.
(71) Constructive notice of the impugned sale transactions
can be attributed to the plaintiffs only if it is established that they
would have known about the suit property but for failure to make
proper inquiry or search which they were required to make, or on
account of gross negligence on their part. In this regard it must be
stated that this Court has expressed agreement with the finding by the
learned First Appellate Court that existence of the suit property was
concealed by the defendant No.1 from other family members.
Constructive notice with respect to sale transactions in relation to
immovable property can be attributed under Explanation-I from the
date of registration only to a person who acquires the property or any
part thereof or interest therein after registration of earlier sale
transaction. However, since the plaintiffs are not subsequent
purchasers, the said provision will not be attracted.
(72) Coming to the judgments cited by the learned advocate
for the appellants, the judgment in the case of Umadevi (supra) is
clearly distinguishable on facts. In the said case, the plaintiffs filed a
suit for partition with respect to ancestral property in the year 2023.
The records indicated that there was a family partition with respect to
— 48 — SA 207.2021 (J) -.odt
the suit properties in the year 1968, pursuant to which many family
members had transferred their shares in the properties by registered
sale deeds in the year 1978. The suit property was subject matter of
partition. It is in this factual situation that the Hon’ble Supreme Court
has held that the date of registration of sale deed will be the date of
constructive knowledge of the sale deeds challenged in the suit, since
the plaint was silent with respect to the date on which the plaintiffs
became aware about the impugned sale deeds.
(73) In the present case, although there is a prior partition, the
suit property is not a subject matter of the said partition. The ratio of
the aforesaid decision will not apply to the facts of the present case.
(74) Similarly, in the case of Rattan Singh and ors Vs.
Nirmal Gill and ors., reported in (2021) 15 SCC 300, the plaintiff
had executed a power of attorney in favour of defendant No.1, who sold
some properties on the basis of sale deed. The plaintiff had also sold
certain properties. The sale transactions were assailed in the suit. The
Hon’ble Supreme Court has held that it was necessary for the plaintiff
to challenge the sale transactions.
(75) It is already held that the suit property was concealed by
the defendant No.1 from the other family members. Defendant No.1
alone had sold the suit properties. The findings by the learned First
— 49 — SA 207.2021 (J) -.odt
Appellate Court regarding concealment of this property and clandestine
sale of the same by the defendant No.1 to defendant Nos.7 to 9 is
found to be proper. In view of the above ratio of Rattan Singh (supra)
will not be applicable to facts of the present case.
(76) In the case of Sushil Agrawal, the plaintiff had
challenged sale deeds which were subject matter of earlier suit in which
the plaintiff was a defendant. The said suit was decreed against the
plaintiff in the subsequent suit on the basis of the two sale deeds. The
plaintiff had filed written statement in the earlier civil suit. The plaintiff
filed subsequent suit challenging the sale deeds on the basis of which
earlier civil suit was decreed against him. The earlier civil suit was filed
in the year 2011. The subsequent suit was filed in the year 2018. The
suit was filed for challenging sale deeds of the year 1998 and 2001. The
pleadings in the subsequent suit filed by plaintiff included statements
with respect to earlier civil suit. In view of the aforesaid knowledge to
the plaintiff with respect to the impugned sale deeds could be inferred
from the year 2011 from reading of the plaint itself. In such
circumstances, this Court has held that the silence on the part of the
plaintiff in disclosing the date of knowledge assumes significance and
accordingly it is held that the date of registration of sale deeds will
have to be treated as date of knowledge of the sale deeds. It is
reiterated that there is a reference to earlier suit in the subsequent suit
filed by the plaintiff in the case of Sushil Agrawal. The ratio of the
— 50 — SA 207.2021 (J) -.odt
said decision cannot apply to the present case where a clear finding of
fact is recorded that the suit property was concealed in the earlier suit
for partition and separate possession and shortly after passing of the
compromise decree in the earlier civil suit the defendant No.1 sold the
suit property to defendant Nos.7 to 9 without knowledge of the
plaintiffs and other family members.
(77) The plaintiffs are not parties to the impugned sale deeds.
Since plaintiffs are not parties to the sale deeds they are not required to
challenge the same. Reliance in this regard can be safely placed on
judgment of the Hon’ble Supreme Court in the case of S.K. Golam
Lalchand Vs. Nandlal, reported in 2024 SCC OnLine (SC) 2456.
The limitation for filing the suit will not be governed by Articles 58 or 59
of the Limitation Act as contended by Dr. Sundaram. Suit for partition
will be maintainable even in the absence of challenge to the sale deeds.
Limitation for filing the suit will have to be determined having regard to
the provisions relating to suit for partition. The limitation will be
governed by Article 110 which provides for limitation of 12 years
commencing from the date of knowledge of exclusion. The burden of
proving exclusion is on the defendants which they have failed to
discharge.
(78) The Hon’ble Supreme Court has held in the case of
Mallava (supra), that once plaintiff prove his title, the burden of
— 51 — SA 207.2021 (J) -.odt
proving that the suit is barred by limitation on account of adverse
possession is upon the defendants. Similar view is taken in the case of
Thankamma George (supra), wherein the Hon’ble Supreme Court
has held that if the sale deed is found to be void, the defendant must
prove the date on which the plaintiff got knowledge about the same.
(79) It is well settled that the burden of proving ouster or
possession becoming adverse is always on the defendant. Once the
entitlement to immovable property is proved, decree for partition and
separate possession, or possession as the case may be cannot be
denied to the plaintiff unless the defendant establishes that the suit is
barred by limitation by setting up and duly proving a case of ouster or
possession becoming adverse. The pleadings of adverse possession by
defendant Nos.7 to 9 are lacking in all material particulars and are
grossly inadequate to make out such a case.
(80) In view of the above discussion, the substantial question
of law is answered in favour of respondent Nos.1 and 2/plaintiffs and
against the appellants/ contesting defendants.
AS TO SUBSTANTIAL QUESTION OF LAW F.
Whether the learned first appellate Court had erred
in law for not taking into consideration in the
— 52 — SA 207.2021 (J) -.odt
admissions of plaintiff No.2 with respect to the suit
property bearing Khasra No.22 being property of
private family Trust named “Shri. Deo Balkrishna
Deoghar Deosthan?
(81) It is not necessary to answer this substantial question of
law in order to decide the appeal. Even if it is held that the property is
property of the family trust, as held above, the plaintiffs will have the
right to assail the transaction as beneficiaries and rather defendant
Nos.7 to 9 will not be able to claim any right, title or interest on the
basis of impugned sale deeds in the suit properties, since the Will on
the basis of which it is claimed that the suit properties are properties of
family trust does not empower or authorize defendant No.1 to sell the
suit property. Rather, if the property is held to be ancestral property, as
rightly recorded by the learned First Appellate Court, defendant Nos.7
to 9 will be entitled to the share of their vendor, defendant No.1 in the
suit properties.
AS TO SUBSTANTIAL QUESTION OF LAW D
D. Whether the finding recorded by the First Appellate
Court in his judgment in Paragraph Nos. 21, 23, 24 and
25 are perverse finding contrary to evidence on
record?”
(82) The findings in paragraph 21 pertain to proof of the Will.
While dealing with substantial question of law B, it is held that the Will
— 53 — SA 207.2021 (J) -.odt
was not duly proved. The findings in paragraph 21, which pertain to
proof of the Will, are just and proper.
(83) The findings in paragraph 23 pertain to documents at
Exhibits 88 to 93. The relevance of these documents and the findings in
paragraph 23 is with respect to nature of property. It is already held
that if the suit property is held to be belonging to the family idol the
defendant Nos.7 to 9/appellants will be completely deprived of the suit
property, however, if the property is held to be coparcenary property
the sale deed can be held valid to the extent of share of defendant
No.1/Vendor.
(84) The case of the contesting defendants is that
Bhaskasrrao Buty, and thereafter defendant No.1, Kiran Buty, have
dealt with various properties in their capacity as Vahivatdar of the
family trust and, therefore, the suit property, which is referred in the
Will as a property dedicated to the private family trust, must be treated
as property of the trust. The learned First Appellate Court has referred
to the exchange deed dated 24.03.1971 at Exhibit 91 executed
between Nagpur Improvement Trust and Shri Bhaskarrao Buty. The
learned First Appellate Court has recorded that the said document is not
executed by Bhaskarrao Buty in his capacity as Vahivatdar of the family
trust, but in his personal capacity. It is also recorded that the exchange
deed does not refer to the family trust at all. This observation by the
— 54 — SA 207.2021 (J) -.odt
learned First Appellate Court is correct. However, at the same time, the
learned First Appellate Court has not referred to the other documents,
i.e. sale deed executed by Bhaskarrao in favour of Ramkrishna and
Sheshrao on 13.08.1975 (Exhibit 88); Correction Deed executed by
defendant No.1 in favour of Ramkrishna and Sheshrao on 29.05.1984
(Exhibit 89); Sale Deed executed by Bhaskarrao in favour of Ajabrao
Tote on 10.01.1985 (Exhibit 90); Correction Deed executed by
defendant No.1 in favour of Bhoyar and Sale Deed executed by
Bhaskarrao in favour of Sharda Gupta on 15.11.1968 (Exhibit 92). These
documents are executed by late Bhaskarrao Buty and defendant No.1 in
capacity of Vahivatdars of the family trust.
(85) Although the Will is not proved, there is evidence on
record to suggest existence of the family trust. The said documents and
other evidence on record clearly indicates existence of a family trust.
However, as recorded above, whether the properties are property of
joint Hindu Family or family trust should not make much difference in
the final outcome of the appeal since even if it is assumed that the suit
property is property of family idol, defendant No.1 was definitely not
empowered or authorized to sell the same. The defendant Nos.7 to 9
cannot claim ownership over the suit property on the basis of sale deed
executed in their favour by defendant No.1 acting as Vahivatdar of the
family trust. Since such authority to alienate trust property is not
conferred upon the Vahivatdar.
-- 55 -- SA 207.2021 (J) -.odt (86) Earlier transactions by the Vahivatdar of the trust, which
were not challenged by the family members, will not by itself confer
authority on defendant No.1 to alienate the trust property. It must be
reiterated that the Will on which reliance is placed by defendant Nos.1
and 7 to 9 expressly prohibits sale of trust property by the Vahivatdar.
(87) Although inference with respect to existence of family
trust can be drawn on the basis of evidence on record, since the Will is
not proved, it cannot be conclusively held that the suit property is
property of family trust/idol. The fact that property initially belonged to
the joint Hindu family is not in dispute. Since dedication is not proved, it
will have to be held that suit property is property of joint Hindu family
property. As held above, if the suit property is held to be property of
family idol, defendant Nos.7 to 9 cannot claim any right in the same on
the basis of sale deeds in their favour.
(88) The findings in paragraph 24 and 25 are pertaining to
concealment of suit property. These findings cannot be said to be
perverse as is held while recording reasons on substantial question of
law (G).
(89) The substantial question of law is answered accordingly.
(90) For the reasons recorded above, Second Appeal is partly
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allowed in the following terms:-
I. Clause-3 of the of the decree dated 09.07.2021
passed by the learned District Judge-16, Nagpur in
Regular Civil Appeal No.268 of 2018 is modified as
under:-
A. It is declared that defendant No.1 had 5/16 th
share in the suit property as on 25.08.1989,
28.08.1989 and 07.09.1989 i.e. on the dates of
impugned sale transactions in favour of defendant
Nos.7 to 9.
B. It is further declared that the defendant Nos.7 to
9 will be entitled to receive the said 5/16 th share of the
defendant No.1 in the suit property.
C. It is declared that plaintiff No.1 has 11/48th share
in the suit property.
D. It is declared that plaintiff No.2 (i), 2(ii) and
defendant No.3 to 6 together have 11/48 th share in the
suit property. The plaintiff Nos.2(i) and 2(ii) have
11/480th share each. The defendant Nos.3 to 6 have
11/240th share each.
E. The defendant Nos.2(a), 2(b) and 2(c) together
have 11/48th share in the suit property. The defendant
Nos.2(a), 2(b) and 2(c) have 11/144th share each.
— 57 — SA 207.2021 (J) -.odt
II. Clauses-1, 2, 4, 5, 6 and 7 of the decree dated
09.07.2021 passed by the learned District Judge-16,
Nagpur in Regular Civil Appeal No.268 of 2018 are
maintained.
III. Parties to bear their own costs.
[ ROHIT W. JOSHI, J. ]
(91) At this stage, learned advocate for the appellants seeks
stay of eight weeks in order to enable the appellants to approach the
Hon’ble Supreme Court. The decree passed is a decree for partition and
separate possession. The execution of such decree involves a very long
process. The possession of separate shares can be delivered only once
the property is actually demarcated and physically partitioned as per
shares determined. In that view of the matter, prayer for stay of
execution is rejected.
[ ROHIT W. JOSHI, J. ]
Tanmay…