The Supreme Court in the case of Rangammal Vs. Kuppuswami & Anr. AIR 2011 S.C.2344, has taken a view that when the property is sold by de-facto guardian of the plaintiff, who was minor at the time of sale, because of legal necessity, the burden to prove such sale and its validity is on the purchaser. Therefore, viewed from any angle, there is no substance in the contention of the appellant that the appellants have proved legal necessity and such sale transaction was valid transaction.Both the Courts on appreciation of evidence and in the facts of this case have taken a view that, there was no legal necessity for such sale transaction, the appellant who was in dominating position has forced widows of said Rangnath to enter into sale transaction by taking undue advantage of their helplessness since they were working as peon in the institution run by the appellant No.1. Therefore, I find considerable force in the argument of learned Counsel appearing for the respondents that the appellants are not bona fide purchaser, but are the purchaser having mis-used their dominant position and used undue influence against vendor and acquired the property without consideration that too in absence of legal necessity.
Bombay High Court
Bhimrao S/O. Kondiba Bhosale & Ors vs Ankush S/O. Rangnath Khadke & Ors on 29 February, 2012
Bench: S. S. Shinde
2. The background facts of the case are as under :-
3. The suit land S. No. 66/AA/2 (New G.No.230) of Khadkighat, Taluka and District Beed was originally owned by one Keshav Narayan Deshmukh. It was being cultivated by one Rangnath Namdeo Khadke, the father of plaintiff No.1 and 2 and husband of plaintiff No.3. According to the plaintiff, Rangnath was tenant of the said land and became protected tenant and certificate was issued in his name accordingly by the revenue authorities, whereas the contention in this regard from defendants side is that, Rangnath exchanged his land with Keshav Narayan Deshmukh and as such became owner of the land.
. Rangnath was having two wives namely Kalabai who died in 1980 and second wife Parvatibai @ Parubai. Plaintiff Nos.1 and 2 are sons of Parvtibai @ Parubai and said Parvatibai is also plaintiff No.3 in the suit. (3) sa436.10
. Defendant No.1 Bhimrao Kondiba Bhosale is the founder and Chief of the Bank of Swami Shikshan Sanstha, Khadkighat. Said Sanstha runs a High School and College at Beed. Defendant No.1 is influential person having contacts with highly influential officers. Defendant No. 2-Pravin is his son whereas defendant Madhav is his close relative and is also teacher in the school run by Swami Shikshan Sanstha. After the death of Rangnath, his two wives were also served as peon in the Sanstha run by defendant No.1.
4. According to the plaintiffs, defendant No.1 took disadvantage of the helpless condition of the widows of Rangnath. Deceased Kalabai and plaintiff No.3 were illiterate and rustic women and were in need of strong support after the death of their husband. Defendant No. 1, however, took disadvantage of their pitiable condition and started influencing and dominating them. They were (4) sa436.10
brought under pressure and all the relevant documents were kept by defendant No.1 in his custody.
5. The defendant No.1 obtained a registered sale- deed in respect of suit land from the widows of late Rangnath i.e. Kalabai and plaintiffs Nos.1 and 2 on 23.03.1978 without paying them any consideration. The sale-deed was got executed in the name of defendant No.2 and 3 in which plaintiff Nos.1 and 2 were shown as minor vendors under the guardianship of Kalabai and plaintiff No.3 Parvatibai was shown as co-vendor. In fact Kalabai was step mother of plaintiff Nos.1 and 2 and during existence of their real mother Parvatibai @ Parubai, Kalabai was having no authority to sell the suit land and she could not have been guardian of the minor plaintiffs.
6. According to the plaintiffs, no consideration was paid to the plaintiffs for the delivery of suit land though it was erroneously stated in the sale deed that (5) sa436.10
Rs.11,000/- was paid was consideration. The defendants in collusion with each other also got forceful possession over the suit land which was having market value more than Rs.50,000/- at relevant time. There was no legal necessity to alienate the suit land. The said sale deed which defendant No.1 obtained through plaintiff and deceased Kalabai in the name of defendant Nos.2 and 3 was thus obtained by exercising undue influence upon them and as such the said sale deed is null and void and it was also without consideration. No permission of the Court was obtained to sell the suit land. Similarly, no permission of the Collector was obtained as per the provisions of Section 50-B of the H.T.A.L. Act, 1950. The plaintiffs, therefore, claimed the sale deed dated 23.05.1978 be declared null and void and not binding on them and that the defendants be directed to deliver possession of the suit land to them.
7. The defendants resisted the claim by filing (6) sa436.10
written statement at Exh.24. As already stated they submitted that deceased Rangnath became owner of the suit land in exchange with other land of Keshav Rangnath Deshmukh and his name was accordingly mutated. He was not protected tenant and therefore, there was no need to obtain permission for alienation. They further submitted that deceased Rangnath was indebted to Land Development Bank and Seva Sahakari Society as he could not pay the loan amount during his lifetime. The creditors were insisting for loan amount and therefore deceased Kalabai and plaintiff No.3 requested defendant Nos.1 and 3 to purchase their land. Since defendant Nos.1 and 3 were found that the plaintiffs were to pay Rs.11,000/- as loan amount, they agreed to purchase the suit land for Rs. 13,000/-. Accordingly, they paid Rs.2,000/- in cash and remaining amount of Rs.11,000/- was paid towards loan dues against the bank and society.
8. The learned Civil Judge was pleased to frame (7) sa436.10
issues vide Exh.26, which were subsequently re-casted as per order below Exh.38 on 23.11.1992 and thereafter the fresh issues were again framed on 18.01.1994.
9. The Trial Court after recording the evidence and appreciating the rival contentions decreed the suit filed by the respondents herein.
10. Being aggrieved, the appellants herein filed R.C.A. No.84 of 1997 before the District Court, Beed. During pendency of the appeal, original defendants/ appellants herein filed application for remanding the matter to the Trial Court for referring the issue regarding tenancy to the competent authority. Said application was filed at Exh.39. Same was decided by learned Adhoc Additional District Judge, Beed, on 18.11.2004. Learned Adhoc Additional District Judge, was pleased to re-cast issue No. A-1 as "Do plaintiffs prove that Rangnath Khadke was the protected tenant over the (8) sa436.10
suit land?". The suit was remanded to the Trial Court with direction that such issue No. A-1 along with re- casted issue Nos. 1,2 and 6 shall be referred to the Tenancy Court of competent jurisdiction to record its findings. The order dated 18.11.2004, which was reviewed by the Ist Adhoc District Judge vide its order dated 02.02.2005 on the application filed for review at Exh.43, by said order, learned Civil Judge was directed to remit the finding of the Tenancy Court along with evidence, if any, recorded to the Appellate Court.
11. Learned Jt. Civil Judge, S.D., Beed, upon receiving findings from the Tenancy Court submitted said findings to the 1st Adhoc Additional District Judge, Beed, vide letter dated 07.04.2006 at Exh.46. The Tenancy Court i.e. Upper Tahsildar, Land Record, Beed, vide order dated 23.01.2006 was pleased to hold that deceased Rangnath Khadke was protected tenant of the suit land owned by Keshav Deshmukh. Said land cannot be (9) sa436.10
transferred or alienated in any manner, without permission of the Collector, under section 50-B of the Hyderabad Tenancy and Agricultural Lands Act (for short "said Act"). (emphasis supplied)
12. Being aggrieved by said findings of the Revenue Court, the appellants herein preferred appeal before Dy. Collector. Said appeal came to be dismissed. Being aggrieved, the appellants herein preferred further appeal before the Maharashtra Revenue Tribunal. However, said appeal was also dismissed. Being aggrieved by said decision, the appellants preferred Writ Petition before this Court bearing Writ Petition No. 5737 of 2009. This Court by order dated 08.12.2009, was pleased to maintain order passed by the Revenue Authority holding deceased Rangnath as protected tenant.
13. On the aforesaid facts and background, the Lower Appellate Court adjudicated the Regular Civil Appeal by ( 10 ) sa436.10
framing necessary points for its determination and adjudication and confirmed the judgment and decree passed by the Trial Court, thereby rejecting the appeal filed by the appellants herein as Second Appeal.
14. Learned Counsel appearing for the appellants submitted that the suit which was filed by original plaintiffs i.e. respondents herein, was not within period of limitation. He submitted that though it was pleaded by the plaintiffs that Rangnath Khadke, father of the plaintiff was protected tenant, no such certificate issued by the authority under section 38-E of said Act was produced on record. It is further submitted that if such issue of tenancy was raised by the plaintiff in that case Keshav Deshmukh was necessary party to the suit. However, he was not made party respondent in said suit. It is further submitted that notice was required to be given to the land lord. It is further submitted that the findings which are not binding on the landlord cannot ( 11 ) sa436.10
bind the appellants, who is purchaser. It is submitted that the land is purchased from the widows of the protected tenant and pursuant to the purchase of land, possession of the suit land has been handed over by the said widows. Therefore, there was no necessity to obtain permission under section 50-B of the said Act from the competent authority. At the cost of repetition, it is further submitted that though the point of limitation was specifically raised before the Lower Appellate Court, in that respect no separate point was framed for determination and adjudication by the Lower Appellate Court. Therefore, according to learned Counsel appearing for the appellants, the main issue which goes to the root of the matter is not answered by the Courts below. It is further submitted that in view of provisions of section 98 and 99 of the said Act, the jurisdiction of the Civil Court is barred. Therefore, the Civil Court was not competent to entertain the suit, which was filed by the respondents herein. Learned Counsel also invited my ( 12 ) sa436.10
attention to the provisions of sections 98 and 99 of the said Act and submitted that the provisions of these sections would make it clear that jurisdiction of the Civil Court is barred. Learned Counsel further submitted that at the relevant time, the appellant was not holding any position in the concerned institution and receiver was appointed. It is submitted that consideration amount of Rs. 2000/- was paid to the widows of said protected tenant and thereafter the amount towards outstanding loan, which was to be recovered from Rangnath was deposited with the Land Development Bank. Therefore, learned Counsel appearing for the appellant would submit that the Courts below have not properly appreciated the contention of the appellant that the consideration amount is duly made over to the executant of the sale-deed. It is submitted that the suit property is joint family property. Therefore, the permission from the Court to sell the said property, as envisaged under the provision of section 8 of the Minority and Guardianship Act, was ( 13 ) sa436.10
not necessary to be obtained. It is submitted that not only step mother has executed sale-deed, but real mother of the plaintiffs - Parvatibai (respondent No.3 herein) has also sold the property. Therefore, when the property is sold by the guardian of respondent Nos.1 & 2, in that case since the property was belonging to joint family property, such permission from the Court was not necessary for selling the suit property. Learned Counsel invited my attention to the substantial questions of law, which are incorporated in the memorandum of appeal, which are reproduced hereinbelow :-
I) Whether the impugned judgments and decree are vitiated for incorrect reading and interpretation of judgments and order passed by the authorities under the Hyderabad Lands and Agricultural Tenancy Act, as the issue framed and answered by the authorities doe not declare the plaintiffs as protected Tenants and deemed owner of the suit property. The declaration granted under the act is in regard of status of the plaintiffs as ordinary tenants.
II) Whether a finding recorded by the authorities under the Hyderabad Tenancy Act, without following the statutory procedure prescribed under the Act is conclusive and ( 14 ) sa436.10
binding on the Civil Court? If no, whether the declaration as to tenancy granted in the present matter in absence of landlord is statutory valid declaration? If no, whether the impugned judgment and decree passed on the basis of such declaration is legally sustained?
III) In absence of any conferment of statutory ownership under the Tenancy Act, whether the provisions of S. 50 (b) of the H.T. & A.L. Act are attracted? If no, whether the impugned judgment and decree is legally sustainable?
IV) In view of the fact that, the plaintiffs specifically pleaded that, they are 'Protected Tenants', and have acquired ownership u/s 38-E of the H.T. & A.L. Act, whether their failure to prove their status as a protected tenant, whether provisions of S.50(B) of the said Act are attracted in the present case? If no, whether the declaration by the tenancy authority is vitiated for failure to follow statutory procedure? If no, whether such decision is binding on the Civil Court? If no, whether the impugned decree is legally sustainable?
V) In view of specific provisions u/s 98 of the H.T. & A.L. Act, 1950, empowering the collector evict a person in possession of the land on the basis of sale transaction declared void u/s 50 (B) of the Act, and in view of specific Bar provided u/s 99 of the H.T. & A.L. Act, whether the impugned decree is void and non-est as passed without jurisdiction?
VI) In view of specific pleading in the ( 15 ) sa436.10
plaint that after death of Rangnath, the financial condition of plaintiffs family was vulnerable and in view of the proved fact that, the defendant No.1 had cleared loan liabilities of deceased Rangnath and the allegation that, the defendant No.1, helped, firstly to the plaintiff No. and later on plaintiff No. for securing accommodation in education institution, whether the findings recorded by both of the impugned judgments as to undue influence and lack of consideration is perverse? If yes, whether the impugned decree is legally sustainable?
VII) In view of the fact that, the plaintiffs claim is based on tenancy rights, whether dispossessed tenant contemplated u/s 98 of the H.T. & A.L. Act can include non- cultivating minor? If no, whether failure of plaintiff No. 3-Parvatibai and her co-widow Kalabai, to bring action u/s 98 within 3 years creates bar of limitation for R.C.S. No. 172 of 1990? If yes, whether said suit is barred by law of limitation? If yes, whether the impugned decree is legally sustainable?
VIII) In view of the undisputed fact on record, stated by the defendant No.1, in his deposition as to exclusion of his authority in the education institute in view of appointment of Court Receiver from 1975 to 1987, whether the finding recorded by the impugned judgments as to undue influence for execution of the sale-deed, subject matter of the suit, is rendered by ignoring the undisputed fact and is vitiated by the vice of perversity? If yes, whether the impugned decree is legally sustainable?
( 16 ) sa436.10
IX) In view of the law laid down by the honourable Mumbai High Court, in the reported judgment as reported in Bapurao s/o. Mangaji Vs. Gangabai w/o. Ramrao brought to the notice of learned 1st Appellate Court vide an application submitted to seek stay of the proceedings and in view the fact that, the learned Judge was made aware of the fact that, challenge to the findings under the H.T. & A.L. Act is pending, whether the impugned decree is passed without jurisdiction? If yes, whether the same is legally sustainable?
X) In view of the fact that, the sale- deed, subject matter of the R.C.S. No. 172 of 1990 was not challenged by its executors till the plaintiffs 1 and 2 decided to challenge the same; whether the plaintiffs claim is barred by the principles of estoppel? If yes, whether the impugned judgments and decree are legally sustainable?
15. Relying upon said substantial questions of law and the grounds taken in the Second Appeal, learned Counsel appearing for the appellants would submit that the Second Appeal deserves consideration. Learned Counsel also invited my attention to the reported judgment of the Supreme Court in the case of Mohanlal Vs. Kartar Singh, 1995-SCC-Supp.4-684 on the point of jurisdiction of the ( 17 ) sa436.10
Civil Court entertaining the issue of tenancy. Learned Counsel also placed reliance upon another reported judgment of the Supreme Court in the case of Narayan Lal Vs. Sridhar Sutar, 1996 (8) SCC 54. Relying upon these judgments, learned Counsel appearing for the appellant would submit that the permission of the competent authority under section 50-B of the said Act was not necessary before the execution of sale-deed. Learned Counsel also placed reliance upon other judgment on the point of jurisdiction of Civil Court in the case of Baburao s/o. Manaji Vs. Gangubai w/o. Rambhau & Others, 2000 (1) Bom.C.R.121. Learned Counsel also pressed into service other three judgments to contend that if the tenancy proceedings are pending, in that case the concerned Court which is seized with the suit or appeal is required to stay the proceedings. Therefore, relying upon grounds, substantial question of law taken in the appeal memo and aforementioned judgments, learned Counsel for the appellant would submit that the Second Appeal ( 18 ) sa436.10
deserves consideration.
16. On the other hand, learned Counsel appearing for the original plaintiffs/respondents submitted that there are concurrent findings of facts recorded by the Courts below. Both the Courts have taken a view that the appellant being employer in dominant position, mis-used the position and compelled the widows of Rangnath to execute sale-deed without any consideration. It is submitted that the step-mother has sold the property to the appellant though real mother is surviving and therefore permission for such transaction was necessary. It is submitted that the step-mother of respondent Nos. 1 and 2 had no authority to sell the suit property on behalf of the minors. The Counsel for the respondents further submitted that both the Courts below have after appreciation of evidence have taken a view that step- mother Kalabai has no authority or not empowered to sell the property on behalf of respondent Nos.1 & 2, who were ( 19 ) sa436.10
minor at the time of execution of sale-deed in the year 1978. It is submitted that undisputedly the sale-deed is executed on behalf of respondent Nos.1 and 2 by the step mother, who has no authority to execute said sale-deed, without permission of the Court. It is further submitted that the issue of tenancy was raised by the appellant. Same was referred to the competent authority and after proper adjudication of the said issue, the Tahsildar held that Rangnath is protected tenant of the suit property though said order of authority was challenged before the Appellate Court, Maharashtra Revenue Tribunal and this Court. However, the challenge by the appellant to said order declaring Rangnath as protected tenant has failed. Therefore, learned Counsel relying upon Supreme Court judgment in the case of Vishwanath Vs. Prabhu & Others, AIR 1999 SC 2880 submits that once it is declared that Rangnath was protected tenant of the suit property, in that case, it was incumbent upon the appellant to seek permission under section 50-B of the said Act from ( 20 ) sa436.10
competent authority for such sale transaction. There is no permission from the competent authority for sale transaction of the suit property. Such sale was barred under section 50-B of the said Act without permission from the competent authority. Therefore, learned Counsel appearing for the respondents would submit that both the Courts below have appreciated this point and concurrently held that said sale transaction is hit by the provisions of section 50-B of said Act.
17. Learned Counsel further submitted that the suit was filed for declaration and also for other relief. The relief that said sale transaction is not binding upon respondent Nos.1 & 2, who were minors at the time of said transaction, was also sought in the suit. It was agitated in the suit that said sale transaction was without consideration and said transaction is imposed by the appellant, who was employer of mother of respondent No.2- Parvatibai and Kalabai, working as peon in the ( 21 ) sa436.10
educational institution run by appellant No.1. It is further submitted that when suit was filed for declaration and for other reliefs, it cannot be said that the jurisdiction of the Civil Court is barred to entertain the suit. The recovery of possession was one of the relief claimed in the suit, however, the main relief was for declaration and said sale-deed is not binding on original plaintiff Nos.1 & 2. Therefore, it cannot be said that Civil Court has no jurisdiction to entertain the suit. Learned Counsel submitted that the provisions of section 98 and 99 of the said Act has no application in the facts in this case. Learned Counsel also invited my attention to the findings recorded by the Courts below and submitted that the theory which was put- forth by the appellants that there was exchange of land between deceased Keshav and Rangnath, has been negated by the courts below. Learned Counsel also invited my attention to the findings recorded by the Courts below on payment of consideration of amount. Learned Counsel ( 22 ) sa436.10
submitted that both the Courts have concurrently held that the appellants are not bonafide purchasers without notice, but are the purchasers having mis-used their dominant position, using undue influence against the vendor and acquired the property without consideration in absence of legal necessity and therefore this Court may not interfere in the concurrent findings recorded by the Courts below. Learned Counsel also invited my attention to the admission of the appellant in cross-examination that at the relevant time when the sale-deed was executed plaintiff Nos.1 & 2 were aged 5 and 3. Therefore, according to learned Counsel appearing for the respondents, said issue has been gone into by the Courts below. In para 54 of the judgment of the Trial Court, the Court has considered ages of minor plaintiff Nos.1 and 2, which are shown in the sale-deed and Court has also referred to cross-examination of D.W.1 Bhimrao and D.W.2 Vinayak, who have admitted that the ages of plaintiff Nos. 1 and 2 might be 5 and 3 years. ( 23 ) sa436.10
Therefore, according to learned Counsel for the respondents, if the ages of plaintiff Nos.1 and 2 were 5 and 3 years in 1978, in the year 1990 when the suit was filed, said suit was within period of limitation. Learned Counsel also invited my attention to the reported judgment of this Court in the case of Kisan Ganpat Nimbale Vs. Pandurang Nathu Wankhade & Others, 1986 (0) BCI 39, and in particular para 10 and 11 of the said judgment and submitted that the relevant provisions so far limitation is concerned in the instant case is Article 65, which has been rightly interpreted and placed reliance by this Court in the aforesaid authority.
18. Learned Counsel for the respondent further submits that the burden to prove that suit land was sold by mother of plaintiff Nos.1 and 2 and step mother for legal necessity, was on the appellants, however, the appellants utterly failed to discharge the burden. Both the Courts have concurrently held that said sale ( 24 ) sa436.10
transaction was not for legal necessity.
19. Learned Counsel also placed reliance upon judgment in case of Himmatrao Ukha Mali (deceased) through LRs. and Ors. Vs. Popatrao Devram Patil & Anr., 1999 (1) Mah.L.R.444 and submitted that the sale-deed executed without prior permission from Collector is invalid. Learned Counsel also pressed into service service the judgment in the case of Waman Nagorao Deshpande & Ors. Vs. Dayanand Babu Mitkari & Ors., 1983 BCI (0) 34, on the point of jurisdiction. Learned Counsel also invited my attention in the case of Jugalkishore Motilal Shiknal Vs. Sakhubai w/o. Vithoba Gaikwad (died) through LRs., 1992 (2) Bom.C.R.299, in which this Court has taken a view that when there is a suit filed for declaration and other relief, then the provisions of Section 98 of the said Act are not attracted. Therefore, learned Counsel appearing for the respondents relying upon findings recorded by the Courts ( 25 ) sa436.10
below, reply filed in the Civil Application and judgments cited (supra), submitted that the appeal is devoid of any merits and same may be dismissed.
20. I have given due consideration to the rival submissions, perused the grounds taken in the Second Appeal, annexures thereto, judgments cited by both the Counsels, the impugned judgment and order passed by the Courts below and original record made available for perusal. I propose to deal with the submissions of the appellant as per the sequence of grounds/substantial questions of law, which are incorporated in the Second Appeal and reproduced hereinbefore in para 14.
21. Coming to the first two grounds/substantial questions of law, which are taken in the memorandum of appeal, which are reproduced hereinabove, it is necessary to state that the appellants herein did raise issue of tenancy before the Lower Appellate Court. At the ( 26 ) sa436.10
instance of the appellants, the Lower Appellate Court did frame the issues on the point of tenancy. Said issues were referred to the Trial Court with direction to refer the said issues to the concerned tenancy Court i.e. the Tahsildar. The following issues were referred to the Revenue Authority for decision which are as under :- "A1. Do plaintiffs prove that Rangnath Khadke was a protected tenant over the suit land?
1. Whether plaintiffs prove that the deceased Rangnath acquired the ownership by virtue of H.T. & A.L. Act over the suit property?
2. Whether the defendants prove that there was exchange of suit property of Keshav Deshmukh to Rangnath in lieu of other land of Rangnath?
6. Whether plaintiffs prove that the suit sale deed is also illegal for want of sanction under Section 50 (B) of H.T. & A.L. Act?"
22. Therefore, there is no substance in the contention of learned Counsel appearing for the ( 27 ) sa436.10
appellants that said issue of tenancy was not referred/adjudicated by the Courts below. The repeated contention of the learned Counsel appearing for the appellants that such issue should not have been adjudicated by the Civil Court is devoid of any merits. Said issues, which are reproduced hereinabove, were referred to the revenue Court and as stated hereinbefore, the revenue authorities have taken a view that Rangnath was protected tenant of the suit property. It is not in dispute that the order of the first Revenue Authority was challenged before the Dy. Collector. However, the appeal filed by the appellant failed. Then the matter was carried forward to Maharashtra Revenue Tribunal. However, the Maharashtra Revenue Tribunal rejected the appeal of the appellant. The writ petition was filed by the appellant being aggrieved by the judgment and order of Maharashtra Revenue Tribunal. However, the writ petition also came to be dismissed, thereby confirming position that Rangnath is protected tenant of the suit ( 28 ) sa436.10
property. This Court in writ petition No. 5737 of 2009 by order dated 08.12.2009 in para 5 held thus : "All the three authorities have concurrently on the basis of material on record i.e. Pahani patrak, Khasara Patrak and 7/12 extract, also oral and documentary evidence, arrived at findings that deceased Rangnath was protected tenant. The authorities have also refused to believe case of the petitioner regarding exchange of lands between Rangnath Khadke and Keshavrao Deshmukh by observing that there was no material on record to substantiate such transfer."
23. Therefore,this Court with aforesaid observations has dismissed the writ petition. Though the Counsel appearing for the appellants strenuously contended that the S.L.P. is pending before the Hon'ble Supreme Court, however, nothing is brought to the notice of this Court that, the Hon'ble Supreme Court has granted any stay to the order dated 08.12.2009, in Writ Petition No. 5737 of 2009. The appellants herein also filed Review Application No.9 of 2010, in Writ Petition No. 5737 of 2009. However, said review petition also came to be ( 29 ) sa436.10
rejected by order dated 10.02.2010. Therefore, the position which emerges from all these proceedings, which are adjudicated by the Tenancy Court is, Rangnath Khadke is protected tenant of the suit property. Therefore, the substantial question of law/ground Nos. I and II, which are reproduced hereinabove gets completed answered by the outcome of the proceedings from the Tenancy Court that Rangnath Khadke was protected tenant of the suit property.
24. Coming to the IIIrd ground taken by the appellants that provisions of section 50-B of said Act are not attracted in the instant case, when Rangnath Khade is protected tenant, in that case it was incumbent upon the parties to take permission from the competent authority before said sale transaction was entered between them. Therefore, said transaction was hit by section 50-B of the said Act. Section 50-B of the said Act reads thus :-
( 30 ) sa436.10
"50B. Restrictions on transfer of land purchased or sold under this Act - (1) No land purchased by a tenant under sections 38, 38A, 38E, 38F, 38G, 38H or 46D or 48, or sold to any person under section 53F, 53G, 53H, or 98C shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector.
(2) Any transfer of land in
contravention of sub-section (1) shall be invalid."
25. Therefore, there is no substance in ground No. III raised by the appellants.
26. Ground No. IV is more or less similar to ground No.III and in view of the clear-cut declaration by the Tenancy Court that Rangnath Khadke was protected tenant of the suit property, there is no substance in the contention of the appellants as reflected in ground No.IV that provisions of section 50-B of the said Act are not attracted in the facts of this Case.
27. Coming to ground No.V of the appeal memo, the contention of the appellants appears to be that under ( 31 ) sa436.10
Section 98 of the said Act, the Collector is empowered to evict the person in possession of the land, on the basis of sale transaction declared under section 50-B of the said Act and in view of the specific bar provided under section 98 of said Act, jurisdiction of the Civil Court is barred. Provisions of sections 98 and 99 of said Act are reproduced herein below for ready reference :-
98. Summary eviction - Any person
unauthorisedly occupying or wrongfully in possession of any land -
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or (b) the management of which has been assumed under the said provisions, or
(c) to the use of occupation of which
he is not entitled under the said provisions, may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector."
99. Bar of jurisdiction - (1) Save as
provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question, including a question whether a person is or was at any time in the past a tenant or protected tenant and whether any such tenant or protected tenant is or should be deemed to be the full owner of the lands which is by or under this Act required to be settled, decided or ( 32 ) sa436.10
dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government. (2) No order of the Tahsildar,
Tribunal or Collector or of the Commissioner or Government made under this Act, shall be questioned in any Civil or Criminal Court."
28. Perusal of section 98 would make it clear that, if only relief of recovery of possession is sought by the plaintiff or the ground of transaction is invalid or possession of the appellant is unauthorised, but the relief of declaration that said sale-deed should be declared as null and void and the relief that said sale- deed is not binding upon the plaintiff was also sought in the suit. There was specific contention that no consideration amount has been paid and said sale-deed is sham and bogus. Therefore, all these contentions that the appellant has played fraud on the widows of deceased Rangnath Khadke, who was protected tenant, could not have been agitated or gone into under the provisions of section 98 of the said Act. Therefore, viewed from any angle, the suit filed by the plaintiffs before the Civil ( 33 ) sa436.10
Court was perfectly maintainable and it was well within jurisdiction of the Civil Court to entertain all those issues. As already discussed issue of tenancy was referred to Tenancy Court on the request of the appellants themselves and after receiving findings from tenancy court, the lower appellate Court disposed of the appeal of the appellants. The relief of recovery of possession was one of the reliefs which was prayed and claimed. Therefore, the suit was barred in view of provisions of Section 98 and 99 of the said Act, as tried to be contended by the Counsel appearing for the appellant is devoid of merits. In this respect, it is also worthwhile to refer to the judgment of this Court in the case of Jugalkishore (Supra). In a similar fact situation, this Court had taken a view that the suit filed by the plaintiff therein was maintainable. Said discussion is in para 4 of the judgment. Therefore, in my opinion, there is no substance in ground No. V, taken in the appeal memo.
( 34 ) sa436.10
29. Coming to ground No. VI in the appeal memo, the contention of the appellant that after death of Rangnath, financial condition of the plaintiffs' family was not good and in view of proved fact that defendant No.1 has cleared loan liability of deceased Rangnath and further for securing accommodation in the institution of plaintiff Nos. 1 and 2, said sale-deed was executed by the widows of Rangnath Khadke, is discussed by both the Courts below and on appreciation of evidence, both the Courts have taken a view that said sale transaction was not for any legal necessity. It is not necessary to burden this judgment by reproducing the concurrent findings recorded by the Courts below on this aspect. On close scrutiny of those findings, I find that those findings are in consonance with the evidence brought on record. Said transaction is of 1978. It is contention of the appellants that at the time of sale transaction the amount of Rs.2000/- was paid as part payment of ( 35 ) sa436.10
consideration, remaining amount of Rs. 11,000/-, even according to the appellants, was deposited by the appellants during the year 1983-84 in the Land Development Bank. Therefore, after appreciating all these contentions and evidence, both the Courts have taken a view that the appellant failed to prove legal necessity. The burden was on the appellants and therefore ground No. VI, which necessarily depends upon appreciation of evidence, in view of concurrent findings on facts recorded by the Courts is required to be rejected. The Supreme Court in the case of Rangammal Vs. Kuppuswami & Anr. AIR 2011 S.C.2344, has taken a view that when the property is sold by de-facto guardian of the plaintiff, who was minor at the time of sale, because of legal necessity, the burden to prove such sale and its validity is on the purchaser. Therefore, viewed from any angle, there is no substance in the contention of the appellant that the appellants have proved legal necessity and such sale transaction was valid transaction. ( 36 ) sa436.10
30. Ground No. VII is about limitation in filing the suit. As already discussed, the ages of the plaintiff Nos.1 and 2 at the relevant time as admitted by the appellants themselves were 5 and 3 years. They have filed suit in the year 1990. Therefore, the suit was well within limitation. Apart from that, this Court in the case of Kishan (Supra) in paras 9 has taken a view that in such cases, the provisions of Article 65 of the Limitation Act will have application. Para 10 and 11 of said judgment reads thus :-
"10. Let us now see what is the effect of disposal of Hundu minor's property by a de facto guardian. Section 11 of the Act lays down that after its commencement no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being de facto guardian of the minor. It is therefore, clear that if a de facto guardian disposes of the property of a Hindu minor, it would be in contravention of section 11 of the Act and such a transaction would be illegal and void. I am supported in my view by the judgment of Division Bench of this Court (to which I was party) in (Suganchand V. ( 37 ) sa436.10
Dinkar)2, First Appeal No. 132 of 1973, decided on 06.02.1984 wherein it has been held that if any person purporting to act as a de facto guardian of a minor under the Hindu Minority and Guardianship Act, disposes of his property, it would be in clear contravention of the prohibition contained in section 11 of the Act and would, therefore, be void and illegal and as such the transaction would be voidable but void.
11. Now the alienation by the mother being totally void, it was not incumbent upon the plaintiff to get it set aside. Article 60 of the Limitation Act, 1963 or the corresponding Article 44 of the Limitation Act, 1908, which governs suits filed by the plaintiff to set aside the transfer or property made by his guardian during his minority, would not apply to a suit filed by a plaintiff, on attaining majority, for possession of his property alienated by a de-facto guardian on the ground that the alienation is void ab initio. The first Appellate Court, therefore, had obviously fallen into an error in holding that the suit was governed by Article 60 of the Limitation Act. On the fact of the facts and circumstances of the case the suit was governed by Article 65 of the Limitation Act which prescribes limitation of twelve years. The suit has obviously been filed within such period and, therefore, cannot be said to be barred by limitation. In this view of the matter the judgment and decree of the first Appellate Court has to be set aside and the judgment and decree of the trial Court has to be restored."
( 38 ) sa436.10
31. In the present case property of minor's i.e. plaintiff Nos. 1 & 2 was sold by de facto guardian step mother without permission. It is admitted position that, real mother of the plaintiff No.1 and 2 was alive when said property was sold by step mother.
32. Therefore, there is no substance in the arguments of learned Counsel appearing for the appellants that the suit was not within limitation. Apart from what is observed hereinabove, both the Courts have dealt with the said aspect and concurrently held that the suit was well within limitation.
33. So far as, ground No. VIII is concerned, that ground has gone into by the Courts below. Both the Courts have held that in 1978 appellant No.1 was employer of widows of Rangnath and taking undue advantage of relationship of employer and employee, being in dominant position, forced the widows to execute sale-deed in his ( 39 ) sa436.10
favour. Therefore, said ground is devoid of any merits.
34. The other two ground Nos. IX and X more or less are repetition of the earlier grounds. Therefore, in view of discussion above and in view of the concurrent findings recorded by the Courts below, the second appeal is devoid of merits and deserves to be dismissed. None of the judgment cited by learned Counsel for the appellants had application in the facts of this case. Therefore, for the reasons aforesaid, I do not find any substance in the Second Appeal.
35. Learned Counsel for the respondents prayed for costs in the present case. Such prayer is required to be considered in the facts of this case, as it is evident from the concurrent findings recorded by the Courts below that appellant No.1 being employer of widows of Rangnath- protected tenant, by taking undue advantage of his position, has forced said widows to execute sale-deed. ( 40 ) sa436.10
Both the Courts on appreciation of evidence and in the facts of this case have taken a view that, there was no legal necessity for such sale transaction, the appellant who was in dominating position has forced widows of said Rangnath to enter into sale transaction by taking undue advantage of their helplessness since they were working as peon in the institution run by the appellant No.1. Therefore, I find considerable force in the argument of learned Counsel appearing for the respondents that the appellants are not bona fide purchaser, but are the purchaser having mis-used their dominant position and used undue influence against vendor and acquired the property without consideration that too in absence of legal necessity. Therefore, this is a fit case where the costs is required to be imposed upon the appellants to compensate the plaintiffs/respondents to some extent. Therefore, in the facts and circumstances of the case, cost is quantified at Rs.10,000/- (Rupees Ten Thousand). The second appeal is dismissed with costs of Rs.10,000/- ( 41 ) sa436.10
(Rupees Ten Thousand) with directions to the appellants to deposit the same within four weeks from today in this Court. Upon depositing of such cost amount, the respondents without any formal application or prayer would be entitled to withdraw said amount unconditionally. Failure to deposit the costs, would entail serious consequences.
36. Registry is directed to place this matter in appropriate category on 04.04.2012 to see compliance of depositing the costs. For the reasons aforesaid the Second Appeal is dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand). Consequently, the Civil Application stands disposed of.
[S.S. SHINDE, J.]
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