evidence on record has come to the conclusion that the respondent no.1
learnt about the sale deed only in December, 1988 and as such, the suit
filed on 15.03.1989 is within the time prescribed. While coming to
such conclusion, the learned Judge has examined the evidence on record
and upon appreciating such evidence has come to the conclusion that
the fact that the original plaintiff/respondent no.1 learnt about the sale
deed only in 1988 has been duly proved and as such the suit was not
barred by limitation. There is no material on record which would
suggest that the original plaintiff/respondent no.1 had knowledge about
the fact that the sale deed in question was executed in favour of the
original deceased defendant no.1/appellant no.1 on any date prior to
December, 1988. Though it was contended by the appellants that the
sale deed was in possession of the plaintiff/respondent no.1
nevertheless, this aspect was seriously disputed by the respondent no.1.
The receipts only were with the respondent no.1 and in fact, there is no
material on record that the deceased appellant no.1 has ever acted upon
the sale deed in question. The learned Lower Appellate Court has also
noted that the name of the respondent no.1 was figuring before the
Statutory Authorities and even the house tax was being paid in the name
of the respondent no.1. There were also permissions in her name
besides the fact that she was residing in the said house. The house was
also constructed by the respondent no.1 and her husband. In such
circumstances, the findings of the learned Judge that the suit filed by the
original plaintiff/respondent no.1 is within the time prescribed cannot be
faulted. The cause of action for filing a suit to cancel an instrument
arises when the facts which entitled the plaintiff to have an instrument
cancelled or set aside first become known to him. The fact finding
Court has categorically found that such knowledge of original plaintiff
no.1/respondent no.1 was only in December, 1988 and consequently,
the suit filed in 1989 is within the period of limitation. As already
pointed out herein above, the fact finding Court upon appreciating the
evidence has come to the conclusion that the deceased appellant no.1
had committed fraud on the plaintiff/respondent no.1 herein.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 38 OF 2007
Shri Peter Francis Conceicao,
V
Smt. Candolina Conceicao,
Coram:- F. M. REIS, J
Judgment pronounced on : 15.10.2016
Heard Mr. Sudin Usgaonkar, learned Senior Counsel
appearing for the appellants, Mr. S. S. Kantak, learned Senior Counsel
appearing for the respondent no.1 and Mr. V. Korgaonkar, learned
counsel appearing for the respondent no.2.
2. The above appeal came to be admitted on the following
substantial questions of law by order dated 12.04.2007.
(1) Whether the plaintiff was entitled for a
relief of declaration of sale deed as null and
void and for transfer of suit plot in the name of
the plaintiff without seeking relief for specific
performance of contract ?
(2) Whether the suit filed on 13.3.1989 for
declaring registered sale deed dated 12.6.1975
to which the plaintiff has been a witness was:3:
ex facie barred by limitation in view of the
provisions of Transfer of Property Act, which
concerns with notice of transaction relating to
immovable property effected by registered
instrument ?
(3) Whether the pleadings in the plaint at all
make out any case of fraud and
misrepresentation as defined under Section 17
of the Contract Act ?
(4) Whether the onus of proof could have
been shifted upon the defendant by resort to
Section 111 of the Evidence Act, 1872:
I) In the absence of any pleadings to the effect
that a question as to good faith of transaction
was indeed involved between the parties;
II) In the absence of any plea relating to undue
influence as contemplated by Sections 16 and
19(A) of the Contract Act having been pleaded
by the Plaintiff;
III) In the absence of any such point having
been raised in the memo of appeal.
5. Whether the impugned Decree is in
contravention of Section 26 of the Specific
Relief Act 1963 in view of the following :
i) No relief for rectification came to be
specifically claimed as contemplated by subsection
4 of Section 26 of the Specific Relief
Act ?
ii) There is no prayer for rectification and
thereafter for specific performance as
contemplated by sub-Section 3 of Section 26 of
the Specific Relief Act ?
iii) The plaintiff who was neither contracting
party to an instrument cannot seek rectification
of the instrument ?
3. Mr. Sudin Usgaonkar, learned counsel appearing for the
appellants has assailed the impugned judgments essentially on the
ground that the sale deed challenged in the year 1989 was registered on
12.06.1975 which was hopelessly barred by limitation. The learned
Senior Counsel further pointed out that it is an admitted position that the
sale deed was in custody of the respondent/original plaintiff and as such
the question of claiming that she had no knowledge of the contents of
the sale deed are totally misconceived. The learned Senior Counsel
further pointed out that the fact finding Courts below have erroneously
come to the conclusion that the suit was not barred by limitation as
according to him when the sale deed itself shows that the original
plaintiff had knowledge of the contents thereof and on this ground alone
the suit deserves to be dismissed. The learned Senior Counsel further
pointed out that admittedly the sale deed was in the name of the
appellant no.1 herein and as such the burden was on the
respondent/original plaintiff to show that the sale deed stands vitiated.
It is further pointed out that the pleadings do not spell out any case of
fraud nor any particular therein which could remotely suggest that any
fraud was committed by the appellants. The learned Senior Counsel
further pointed out that there is no pleading of undue influence and as
such the judgments of the Courts below decreeing the suit filed by the
respondent/original plaintiff is totally misplaced. The learned Senior
Counsel further submits that the recitals in the sale deed itself point out
that the consideration was received by the respondent no.2 from the
appellants and as such, the question of claiming that the property
purchased for the benefit of the respondent/original plaintiff is
unjustifiable. The learned Senior Counsel further pointed out that the
relief granted by the Courts below is erroneous as according to him
there was no relief sought for rectification of the sale deed. The learned
Senior Counsel further pointed out that the total consideration was paid
by the original defendant/appellant no.1 and that the claim of the
plaintiff/respondent no.1 is totally untenable. The learned Senior
Counsel thereafter has minutely taken me through the substantial
questions of law to point out that the substantial questions of law are to
be answered in favour of the appellants.
4. On the other hand, Mr. S. S. Kantak, learned Senior Counsel
appearing for the respondent no.1 submitted that the respondent/original
plaintiff was a widow/mother, who was cheated by her son/appellant
no.1 in getting the disputed sale deed executed in his favour when in
fact the intention was to execute in favour of the original
plaintiff/respondent no.1 herein. The learned Senior Counsel further
pointed out that the evidence on record clearly suggest that the first two
receipts were paid by the respondent no.1 herein. It is further pointed
out that the respondent no.1 and her husband were residing in the
subject house as mundkars of the respondent no.2 much before the
execution of the subject sale deed. The learned Senior Counsel further
pointed out that the respondent no.1 continued to reside in the said
house despite of the disputed sale deed which itself suggest that the sale
deed was to be executed in favour of the respondent no.1. It is further
pointed out that the respondent no.1 had a kiosk and used to derive
income and as such the consideration was paid by the respondent no.1 to
the respondent no.2. The learned Senior Counsel has thereafter taken
me through the judgments passed by the Courts below and pointed out
that the fact finding Courts have rightly come to the conclusion that the
sale deed is vitiated and passed the impugned judgments. The learned
Senior Counsel as such points out that the appeal be rejected.
5. I have considered the submissions of the learned counsel
and I have also gone though the records. It is the case of the respondent
no.1/plaintiff that there exists a house in the suit plot for more than 30
years which has been inherited by the respondent no.1 and her husband
upon the death of her parents -in- law. The suit plot admeasuring an
area of 518 square metres which includes a strip of land of nine metres
in width all along the road side reserved for road widening. The
property where such house is located belongs to the respondent no.2. It
is further the case of the respondent no.1 that by an agreement between
the respondent no.1 and the respondent no.2 the suit property was
agreed to be purchased for a fixed sum of Rs.9500/- in the month of
May, 1975. It is further contended that Rs.6000/- was paid and
Rs. 3500/- was to be paid at the time of the execution of the sale deed
within three months. It is further claimed that the respondent no.1 paid
the amount to the respondent no.2 and thereafter a sale deed was
executed somewhere in July, 1975. It is further alleged that the
appellant no.1 got married to the appellant no.2 in the year 1977 and
some time in December, 1988 the original appellant nos.1 and 2 told the
respondent no.1 that she has no right to the house as it was purchased by
the original appellant no.1. It is further contended that she made an
inquiry with the Sub Registrar and she was shocked to learnt that in the
sale deed the appellant no.1 was shown as a 'purchaser' of the suit plot.
Hence, the suit was filed for a declaration and other reliefs. The
appellants filed their written statement disputing the said claim. It is
further pointed out that the sale was finalized only on 12.06.1975 when
the appellant no.1 paid the last instalment to the respondent no.2 and
that the appellant no.1 had paid the total consideration. It was further
stated that the respondent no.1 was a witness to the said sale deed. It is
also pointed out that when the sister of the appellant no.1 got married,
the respondent no.1 started residing separately in two rooms along with
the daughter. As such, it was submitted that the suit be dismissed. The
respondent no.2 also filed a written statement inter alia contending that
the respondent no.3 has agreed to sell the suit plot to the appellant no.1
and the amount was paid by the respondent no.1 to the respondent no.2
on behalf of the appellant no.1.
6. The learned Trial Judge after framing the issues and
recording the evidence by judgment and decree dated 01.04.2004
dismissed the suit filed by the respondent no.1. The learned Judge while
appreciating the evidence on record has found that none of the witnesses:9:
of the respondent no.1 had deposed that the respondent no.2 had agreed
to sell the suit plot to the respondent no.1. The learned Judge also noted
that it was contended by the appellant no.1 that the respondent no.2
being a caretaker as the appellants were residing in Bombay. The
learned Judge further noted that it is admitted fact that the respondent
no.1 has put her thumb impression on the disputed sale deed as a
witness to such document. The learned Judge as such noted that it was
to be presumed that the contents of the sale deed were explained to the
respondent no.1. The learned Judge as such further found that the
contention that she was not explained about the contents of the
document deserve consideration. The learned Judge as such found that
the respondent no.1 has failed to establish the ingredients of Section 17
of the Indian Contract Act. The learned Judge further noted that as per
Article 58 of the Limitation Act, the suit for declaration should be filed
within three years when right to sue first accrues and consequently,
found that the suit was barred by limitation. The learned Judge further
noted that the respondent no.1 had full knowledge of the transfer and as
such dismissed the suit filed by the respondent no.1.
7. Being aggrieved by the said judgment, the respondent no.1
preferred an appeal before the learned Lower Appellate Court. The
learned Appellate Judge has framed four points for determination. The
learned Judge has come to the conclusion that the disputed sale deed
was executed by fraud. It is also noted that this is not disputed that the
respondent no.1 is illiterate and that she does not know the formalities
for the execution of the sale deed. The learned Judge upon going
through the material on record has found that the respondent no.1 had
faith in the appellant no.1 and there was no reason for the respondent
no.1 not to repose such faith in the appellant no.1 since he was the only
educated son in her family. The learned Judge also noted that the
confidence of the respondent no.1 in the appellant no.1 has been duly
established and as such in terms of Section 111 of the Evidence Act, the
onus to prove good faith was on the appellant no.1. The learned Judge
also noted that the respondent no.1 had pleaded that the property was
agreed to be purchased in May, 1975 for a total consideration of
Rs.9500/- and that she had no cash in her hand and therefore, she had
proposed to pay Rs.6000/- before the execution of the sale deed and
thereafter, a sum of Rs.3500/- within three months from the date of the
sale deed. The learned Judge also found that the respondent no.1 has
also pleaded that she has paid Rs.500/- as advance and another two
instalments of Rs.500/- and Rs.5000/-. The learned Judge further noted
that on the contrary the appellant has not stated what was the nature of
the agreement between the appellants and the respondent no.2. The
learned Judge further noted that Exhibit PW1/A Colly are the receipts of
three instalments for Rs.6000/- which were issued to the respondent
no.1. The receipts clearly show that the amount was received from the
respondent no.1. The contention of the appellants that the amount was
sent to the respondent no.1 has not been established. The learned Judge
also noted that the respondent no.1 had denied that the amount was paid
by the appellant no.1. The learned Judge as such noted that the
appellant no.1 has failed to establish that this sum of Rs.6000/- was sent
by the appellant no.1 to the respondent no.1 to be paid to the respondent
no.2. The learned Judge further noted that it was admitted that the
initial amount of Rs.6000/- was paid by the respondent no.1. The
learned Judge further noted that there is nothing on record to show that
the respondent no.2 has agreed to sell the plot to the appellant no.1
herein. The learned Judge also noted that even DW4 has admitted that
the initial instalments were paid by the respondent no.1 though claimed
on behalf of the appellant no.1 herein. The learned Judge however
noted that DW4 was not present at the time of the receipt of the amount.:12:
The learned Judge noted that the claim of DW4 that the amount was
paid on behalf of the appellant no.1 was in view of the fact that the last
instalment was paid by the appellant no.1. It is further noted that the
respondent no.1 had deposed that the appellant no.1 had told her at the
time of execution of the sale deed in the office of the Sub Registrar that
all the formalities as regards the sale deed in respect of the suit plot are
complete and she has to just put her thumb impression on the paper for
the registration. The learned Judge also noted that the plan attached to
the sale deed shows an endorsement that the plan of the plot belonging
to the respondent no.2 intended to be purchased by Candolina
Conceicao who is the respondent no.1 herein. The learned Judge as
such found that the sale deed had intended to be executed in favour of
the respondent no.1 herein and not in favour of the appellant no.1. The
learned Judge also noted that it was pleaded by the respondent no.1 that
she was carrying out repairs of the house but however the licence has
not been produced on record. The learned Judge also noted that it was
admitted that the house tax was paid by the respondent no.1 and that it
was recorded in the name of the respondent no.1. The learned Judge
also noted that the licence for repairs of the house even after purchase
was obtained in the name of the respondent no.1 and she was paying the:13:
house tax in her own name. The appellant no.1 disputed that the
original sale deed was with him. But however, the receipts of the first
instalments were always in her custody. It is also noted that at the time
of paying the final instalment of Rs.3500/- the respondent no.1
accompanied the appellant no.1 and the receipt is issued and written in
English and as such, the last receipts were executed in the name of the
appellant no.1 herein. The learned Judge as such noted that the
appellant no.1 has failed to establish good faith. The learned Judge also
noted that it is not disputed that the respondent no.1 was a mundkar of
the said house and even after execution of the sale deed she continued to
occupy the house. The learned Judge as such noted that the
circumstance disclosed that the appellant no.1 had not acted in good
faith. The learned Judge upon appreciation of evidence on record
found that the respondent no.1 has proved that the appellant no.1 was in
a position of active confidence of the respondent no.1 and that the
appellants have failed to prove that the sale deed in favour of the
appellant no.1 was executed in good faith. The learned Judge further
found that the respondent no.1 has proved that the sale deed was
executed by fraud and that in November, 1988 when there was physical
assault she thereafter learnt about the execution of the disputed sale:14:
deed in the name of the appellant no.1. The learned Judge as such noted
that the case of the respondent no.1 that she learnt about the registration
of the sale deed in the name of the appellant no.1 only in 1988 has been
sufficiently proved. The learned Judge as such noted that the
respondent no.1 succeeded in proving that the disputed sale deed was to
be executed in favour of the respondent no.1 but the appellant no.1 got
the sale deed executed only in his favour by exercising fraud and
consequently, allowed the appeal and granted the relief in favour of the
respondent no.1. The learned Judge further noted that it is admitted
position that the respondent no.1 is presently occupying two rooms and
rest of the house is in possession of the appellants. The learned Judge as
such decreed the suit in terms of the prayer clauses (a), (b) and (d) and
further restrained the appellants by a permanent injunction from
dispossessing the respondent no.1 of the property and directed the
appellants to hand over the possession of the suit house to the
respondent no1.
8. The aforesaid findings of the fact finding Court are that the
disputed sale deed dated 12.06.1975 stands vitiated by fraud. The
findings of the learned Judge that the appellants had failed to establish:15:
good faith cannot be faulted. The appellant no.1 was educated whereas
the respondent no.1/original plaintiff was illiterate and did not know to
read and write though being the mother of the appellant no.1. On the
basis of the material on record, the learned Lower Appellate Court has
rightly found that there was enough material to come to the conclusion
that the respondent no.1 repose confidence on the appellant no.1. In
fact, on perusal of the judgment of the learned Lower Appellate Court,
the learned Judge has decided in the affirmative the first point for
determination to the effect that the appellant no.1 got the sale deed
executed in his favour by exercising fraud. The learned Judge also
noted that it is admitted that the house belonged to the respondent no.1
and her husband and they were occupying as mundkars therein. The
learned Judge further found that the witness of the appellants has
admitted that at the time of the execution of the sale deed, he was
residing at Mumbai and he used to come to Goa once or twice in a year
and stay with his parents and that it was finally decided by his parents to
purchase the property in his name. The learned Judge further found that
it can be safely inferred that the respondent no.1 had faith in the
appellant no.1. The learned Judge further noted that in terms of Section
111 of the Evidence Act which provides that where there is a question:16:
as to the good faith of the transaction between the parties, one of whom
stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a
position of active confidence. On the basis of the material on record,
the learned Judge has rightly found that the deceased defendant
no.1/appellant no.1 was in a position of active confidence of the parents
including the respondent no.1 herein and the burden was on him to
establish the good faith. The learned Judge on the basis of the oral
evidence and documentary evidence has rightly come to the conclusion
that the good faith has not been established. The learned Judge also
noted that the permission which was obtained for repair of the subject
house from the statutory authority was in the name of the respondent
no.1. All these facts taken together would lead to the conclusion that
the appellants had never acted upon the said sale deed nor had exercised
therein the alleged exclusive right over the house in question. In fact,
the respondent no.1 continued to reside in the house along with other
children and records reveal that part of the house was occupied by the
respondent no.1 and some portions by her son, the deceased defendant
no.1/appellant no.1.:17:
9. In such circumstances, the fact finding Court below has
rightly come to the conclusion that the respondent no.1 was also a party
to the sale deed and in fact had contributed the substantial amount of
consideration. Apart from that, it is not disputed that the respondent
no.1 and her husband were mundkars of the subject house and such
mundkarial right cannot be defeated on the basis of the sale deed in
question. In such circumstances, I shall now proceed to examine the
legal effect of the findings of the Courts below about the payment of
consideration. The receipts of consideration which were in the custody
of the respondent no.1 clearly suggest that out of the consideration of
Rs.9500/-, Rs. 6000/- was admittedly paid by the respondent no.1. The
fact that the respondent no.1 had a kiosk and carrying out independent
business which would earn income has not been disputed. In such
circumstances, as the said amount was in fact paid by the respondent
no.1 and as the deceased defendant no.1/appellant no.1 has failed to
produce any evidence that he had contributed to pay such a sum of
Rs.6000/-, I find that the fact that the respondent no.1 had paid such
amount cannot be disputed. Apart from that, the respondent no.1
continued to be in possession of the house in question despite of the sale
deed in question. The appellant no.1 has failed to show as to in what:18:
circumstance the sale deed was executed only in his favour during her
lifetime when admittedly, she has other children. The records however
reveal that after the execution of the sale deed in question, the balance
amount of Rs.3500/- was paid by the appellant no.1 and in fact the
receipts stand in his name. The records also reveal that when he went to
make such payment, the respondent no.1 also accompanied him to the
office of the respondent no.2. In such circumstances, the fact that the
deceased defendant no.1/appellant no.1 had paid the said amount of
Rs.3500/- cannot be disputed. The net effect of the finding of the fact
finding Court is that a sum of Rs.6000/- was paid by the respondent no.1
and remaining amount of Rs.3500/- which makes total consideration
was paid by the deceased defendant no.1/appellant no.1.
10. Section 45 of the Transfer of Property Act reads thus :
“45. Joint transfer for consideration.-
Where immoveable property is transferred
for consideration to two or more persons and
such consideration is paid out of a fund
belonging to them in common, they are, in
the absence of a contract to the contrary,:19:
respectively entitled to interests in such
property identical, as nearly as may be, with
the interests to which they were respectively
entitled in the fund; and, where such
consideration is paid out of separate funds
belonging to them respectively, they are, in
the absence of a contract to the contrary,
respectively entitled to interests in such
property in proportion to the shares of the
consideration which they respectively
advanced.
In the absence of evidence as to the
interests in the fund to which they were
respectively entitled, or as to the shares
which they respectively advanced, such
persons shall be presumed to be equally
interested in the property.”
11. This Section deals with the question as to what quantum
of interest each one of several transferees would get in the property:20:
transferred based on the consideration paid. The principle of equity
underlying this Section would not clearly apply if the parties themselves
have specified what interest or share each of the transferees should have
in the property transferred. Section accordingly declares that the rules
enunciated are to apply only where there is no contract to the contrary.
Admittedly, in the present case, there is no contract as to the manner in
which the transferee would have a share in the property in question
based on the subject sale deed. In such circumstances, the share in the
property transferred would be in terms of the said provisions to the
extent of the consideration contributed by the respective parties. In
such circumstances, I find that the respondent no.1 was also a copurchaser
of the subject property and had to be added as a co-transferee
along with the deceased defendant no.1/appellant no.1 being joint
purchasers of the property. As pointed out herein above, the deceased
defendant no.1/appellant no.1 had contributed a sum of Rs.3500/-
whereas the respondent no.1 had contributed a sum of Rs.6000/- to
make up the consideration amount in question. In such circumstances, I
find that the relief sought by the respondent no.1 deserves to be
moulded in the interest of justice and the respondent no.1 has to be
declared to be the owner of the subject property along with the:21:
deceased defendant no.1/appellant no.1 nevertheless, the share of the
appellant no.1 would be 1/3rd and the remaining 2/3rd undivided right in
favour of the respondent no.1 herein. To that extent, the impugned
judgment passed by the learned Lower Appellate Court has to be
modified and rectified.
12. For the aforesaid reasons, I find that the declaration granted
by the learned Lower Appellate Court is to be modified and the name of
the respondent no.1 is to be added as a co-purchaser to the sale deed in
question having right to the extent referred to herein above. Taking note
of the conclusion drawn in the above judgment, the question of seeking
any specific performance by the deceased defendant no.1/appellant no.1
would not arise. The learned Lower Appellate Court on the basis of the
evidence on record has come to the conclusion that the respondent no.1
learnt about the sale deed only in December, 1988 and as such, the suit
filed on 15.03.1989 is within the time prescribed. While coming to
such conclusion, the learned Judge has examined the evidence on record
and upon appreciating such evidence has come to the conclusion that
the fact that the original plaintiff/respondent no.1 learnt about the sale
deed only in 1988 has been duly proved and as such the suit was not
barred by limitation. There is no material on record which would
suggest that the original plaintiff/respondent no.1 had knowledge about
the fact that the sale deed in question was executed in favour of the
original deceased defendant no.1/appellant no.1 on any date prior to
December, 1988. Though it was contended by the appellants that the
sale deed was in possession of the plaintiff/respondent no.1
nevertheless, this aspect was seriously disputed by the respondent no.1.
The receipts only were with the respondent no.1 and in fact, there is no
material on record that the deceased appellant no.1 has ever acted upon
the sale deed in question. The learned Lower Appellate Court has also
noted that the name of the respondent no.1 was figuring before the
Statutory Authorities and even the house tax was being paid in the name
of the respondent no.1. There were also permissions in her name
besides the fact that she was residing in the said house. The house was
also constructed by the respondent no.1 and her husband. In such
circumstances, the findings of the learned Judge that the suit filed by the
original plaintiff/respondent no.1 is within the time prescribed cannot be
faulted. The cause of action for filing a suit to cancel an instrument
arises when the facts which entitled the plaintiff to have an instrument
cancelled or set aside first become known to him. The fact finding
Court has categorically found that such knowledge of original plaintiff
no.1/respondent no.1 was only in December, 1988 and consequently,
the suit filed in 1989 is within the period of limitation. As already
pointed out herein above, the fact finding Court upon appreciating the
evidence has come to the conclusion that the deceased appellant no.1
had committed fraud on the plaintiff/respondent no.1 herein. The
question of seeking rectification would not arise as it is the case of the
plaintiff/respondent no.1 that the subject sale deed was fraudulently
executed only in the name of the deceased appellant no.1 herein. In such
circumstances and for the aforesaid reasons, the substantial questions of
law framed by this Court are answered against the appellants.
13. In view of the above, I pass the following :
O R D E R
(i) The impugned judgment and decree dated
27.02.2007 passed by the learned Lower Appellate
Court stands modified in the following terms.
(ii) The name of the respondent no.1 is to be included
in the sale deed dated 12.06.1975 to the effect that the
respondent no.1 is a joint owner of the disputed:24:
property along with the deceased appellant no.1
whereby the share of the respondent no.1 is to the extent
of 2/3rd and the share of the deceased appellant no.1 is to
the extent of 1/3rd
(iii) Both the parties shall continue to be in occupation
of the respective portions being occupied by them
presently until the property is divided between the
appellant no.1 and the respondent no.1 in the aforesaid
shares by metes and bounds.
(iv) Both the parties shall not create any third party
right or change the nature of the property without their
mutual consent.
(v) The appeal stands disposed of accordingly with no
order as to costs.
F. M. REIS, J
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