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TMI Blog2015 (3) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. Hence, the application of Section 41 of the TP Act does not arise. Time Limitation - HELD THAT:- There is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence - the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable. Appeal allowed. - First Appeal Nos. 460, 1219 And 1085 of 2009 - - - Dated:- 30-3-2015 - Anand Byrareddy, J. For the Appellant : T.V. Ramanujan, Senior Advocate for B.V. Vidyulatha, Advocate For the Respondent : Sheetal Soni, Advocate JUDGMENT Anand Byrareddy, J. 1. These appeals are decided by this common judgment as they are preferred challenging the same judgment. 2. The appeal in RFA 460/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have transferred the entire extent of 12 acres 2 guntas to defendant No. 7. Therefore, the plaintiff claimed that he was entitled to partition and separate possession of 1/7th share in the suit schedule properties. It was further urged by the plaintiff that his father VL Dhanram Modaliar was granted occupancy rights in respect of land bearing Sy. No. 70/1, Yeshwanthpura Village, Bangalore North Taluk, measuring 1 acre, item No. 2 of the suit schedule properties. The defendant Nos. 1 and 3 to 7 had entered appearance on service of summons and had filed a common written statement. It was the case of the said defendants that both V.L. Dhanram Modaliar and V.L. Venugopal Modaliar acquired the property under a registered sale deed dated 3.2.1938 (Exhibit D1) for and on behalf of M/s. Standard Tile and Clay Works Limited, though the said property was purchased in their individual names. This was on account of the fact that the aforesaid company was not incorporated as on the date of purchase. However, the land bearing Sy. No. 73 of Yeshwanthpura Village, Bangalore North Taluk, measuring 12 acres and 2 guntas had always been in the possession and occupation of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants prove title of 7th defendant tot he suit property? 2. Whether the suit claim is barred by limitation? 3. Whether the valuation and payment of Court fee are insufficient? 4. Does the plaintiff prove joint title or possession of the suit property? 5. Whether the plaintiff is entitled for the partition and possession of 1/7th share? 6. To what reliefs the parties are entitled? The trial Court had answered Issues Nos. 1 and 2 in the affirmative and 3 and 4 in the negative and answered issue No. 5 by holding that the plaintiff is not entitled to partition and possession of 1/7th share in the suit schedule properties It is that judgment which is under challenge in these appeals. 5. The learned Senior Advocate Shri T.V. Ramanujam appearing for the learned counsel for the appellant contends that the trial court had taken up issues 1,4 and 5 together and had given the following reasons to dismiss the suit. Further, it is an undisputed fact that subsequently both the brothers V.L. Dhanram Mudaliar, father of plaintiff and Defendant Nos. 1 to 5 and V.L. Venugopal Mudaliar have formed M/s. Firebricks and Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V.L. Dhanram Mudaliar and V.L Venugopal Mudaliar, both of them had promoted two companies known as M/s. Standard Tile and Clay Works (P) Ltd. and M/s. Firebricks and Potteries (P) Ltd. So, it is clear that at the time of purchasing the suit schedule property, these two companies were not at all in existence and therefore, Exhibit P1 is in the individual names of V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar and not as representatives of the company. But subsequently, it is the case of the plaintiff himself that the two companies were promoted by V.L. Dhanram Mudaliar and V.L. Venugopal Mudaliar. The above finding, it is contended, is on the face of it, erroneous. It is pointed out that it was not the case of the plaintiff that, at the time of Exhibit P1, the two companies were not in existence. It was not the case of the plaintiff that the two companies were promoted after Exhibit P1. The two companies were very much in existence at the time of Exhibit P1. And even as per para 8 of the written statement, the two brothers were directors of the two companies incorporated under the Companies Act. The finding is thus contrary to the evidence available on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was laid by late Dhanram Mudaliar and constructions were put up out of their separate funds and that it was only a partial partition. It is stated that there was a portion which was not the subject matter of the partition. Hence, merely because the suit property has not been included in O.S. No. 56/1969, it could not be presumed that the suit properties were not available for partition and they are the properties of the seventh defendant. 6. On the other hand, the learned Senior Advocate Shri. K.G. Raghavan, appearing for the counsel for Defendant No. 7 contends that the appeals are liable to be dismissed on the following grounds: (i) Burden of proof; (ii) Doctrine of estoppel as enshrined in Section 115 of the Indian Evidence Act, 1872; (iii) Sale of property by a ostensible owner as contemplated under Section 41 of the Transfer of Property Act, 1882 (Hereinafter referred to as the 'TP Act', for brevity); (iv) Effect of not seeking declaration on the title to the suit schedule properties by the plaintiff within the limitation period; (v) Non-maintainability of second suit for general partition amongst the family membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of his late father V.L. Dhanram Modaliar and V.L. Venugopal Modaliar having executed the Sale Deed dated 14.4.1945 (Exhibit D-2), wherein V.L. Dhanram Modaliar has represented the defendant No. 7 - company and V.L. Venugopal Modaliar has represented M/s. Standard Tile and Clay Works Limited. Reliance is placed on the following decisions: 1. B.L. Sreedhar and others v. KM Munireddy and others, AIR 2003 SC 578. 2. Sunderabai and another v. Devaji Shankara Deshpande, AIR 1954 SC 82, 3. Tata Iron and Steel Company Limited v. Union of India and others, AIR 2000 SC 3706 4. Indira Bai v. Nand Kishore, AIR 1991 SC 1055 5. Jai Narain Parasrampuria and others v. Pushpa Devi Saraf and others, (2006)7 SCC 756, It is contended that from the aforesaid judgments, it is established that when a person, either by words or by conduct, has consented to an act, which has been done and that he will offer no opposition to it and he thereby induces others to do that from which they otherwise might have abstained, then such person cannot question the legality of the act he had so sanctioned. Assuming, but not admitting that transfer of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital in the sale deed, conduct of the parties and the evidence of record. The High Court of Andhra Pradesh in Darisi Masthanamma v. Mandiga Rama Krishna, AIR 2006 AP 286, has observed that a party to a document should not go back from the recitals in the document. From the aforesaid decisions, it is contended that the true intention of the parties to the document can be ascertained from the recitals contained in the said document and the parties to the document cannot ignore the recital to their benefit. In the present case, the recitals of Exhibit D-2, which is the registered sale deed dated 14.4.1945 state and confirm that the property (item No. 1) belongs to M/s. Standard Tile and Clay Work Limited and the same was acquired from the previous owners under a registered deed of sale dated 03.02.1938 i.e., Exhibit D1. The said recital is reads thus: 2. Whereas, the property denoted in the schedule written hereunder belongs to the Vendor Company, the same having been acquired by the Vendor from the previous owners under a registered deed of sale dated 03.02.1938. Since both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar were parties, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a rule akin to the rule of estoppel whereby the real owner, who by reason of his conduct or express or implied consent, was responsible for the creation of an ostensible ownership, cannot be permitted to set up his real ownership to defeat the rights of a bona fide purchaser acting in good faith and who despite reasonable enquiries could not discover such real ownership. In Fazal Husain v. Muhammad Kazim and others, AIR 1934 All 193, it is observed that Section 41 enacts a rule which a species of estoppel, but falling short of the requirements of Section 115, Indian Evidence Act, 1872 (Hereinafter referred to as the 'Evidence Act', for brevity). If it is proved that the transfer is made with the consent of the rightful owner, the case would fall within the purview of Section 115 of the Evidence Act and the other conditions of Section 41 need not be satisfied. Such consent will estop the owner even though the transferee made no enquiries as to ascertain that the transferor had power to make the transfer, a condition which is essential to the application of Section 41. In Ramjanam Ahir and others v. Beyas Singh and others, AIR 1958 Pat 537, it is held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in the said deed. M/s. Standard Tile and Clay Work Limited has expressly confirmed that it is absolute owner of the property having purchased under the sale deed dated 3.2.1938 and both V.L. Venugopal Modaliar and V.L. Dhanram Modaliar have consented to the said sale by M/s. Standard Tile and Clay Work Limited, by being parties to the said sale as representatives of the respective companies. Therefore, the defendant No. 7 - company had to be considered as a bona fide transferee in terms of Section 41 of the TP Act. (iv) It is contended that V.L. Venugopal Modaliar and V.L. Dhanram Modaliar, being parties to the sale deed dated 14.4.1945, had by express conduct, indicated that they consent to an act which has done by M/s. Standard Tile and Clay Work Limited and that they have not offered any opposition to the said sale. In fact, by being parties to the said sale deed, they have expressly consented to the sale. Therefore, both V.L. Venugopal Modaliar and VL Dhanram Modaliar and their legal representatives cannot now question the legality of the act done by M/s. Standard Tile and Clay Work Limited, which was so sanctioned by them to the prejudice of the defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express statement to this effect at page No. 21 of the paper book (Exhibit P-12). Subsequently in the year 1969, the plaintiff filed a suit in OS 56/1969, seeking partition of the entire joint family properties. A compromise was arrived at by the parties to the suit bearing OS 56/1969. The plaintiff had intentionally concealed the fact of filing of the partition suit by him in the year 1969 in the present suit. In the written statement filed by the defendant Nos. 1, 3 to 7, the said defendants had specifically pleaded in paragraph 17 as follows: It would be relevant to point out at this stage that the plaintiff himself had instituted a suit bearing O.S. No. 56/1969 in the Bangalore City Civil Court in which the third defendant was a co plaintiff. The sixth defendant and defendants 1 to 4 were defendants therein. The said suit was instituted for partition and separate possession of the plaintiffs shares. The said suit ended in a compromise wherein it is clearly declared in para 11 as under:-- that there are no other property - movable or immovable whatsoever to be divided amongst them and belonging to joint family It may further be noted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, only in exceptional cases, the said rule may be relaxed and partial partition may be allowed. It is contended that the partial partition is permissible provided: a) The parties to the suit have expressly consented to such exclusion in the pleadings; or b) The parties by mistake have left out the said property from the partition. On the other hand, it is contended by Shri Raghavan, that it is the case of the plaintiff herein that the parties to the said suit have intentionally left out the property from the purview of partition and that it was their intention to keep the suit schedule properties jointly. It is the contention of the plaintiff that O.S. No. 56/1969 filed by him for partition of joint family properties was a partial partition and not a general one. However, it is contended that the plaintiff has failed to provide any material documents proving his contentions. On the contrary, from a perusal of Exhibit D39 and the Compromise Petition, it was evident and unambiguous that the parties to the said suit did not consider the present suit schedule properties as joint family properties. Even assuming that it was the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties in favour of Karnataka State Financial Corporation in the year 1962 and 1970. In addition to that, the plaintiff, along with other defendants, in compromise petition have expressly confirmed that there were no other properties which form part of the joint family except the suit schedule properties in that suit. Therefore, from the evidence available on record, it can be said that the defendant No. 7 has been in exclusive possession of the suit schedule properties and thereby, inferring ouster of the possession of the plaintiff herein and hence, the trial court has rightly dismissed the suit as barred by limitation. For the aforesaid reasons and based on the above propositions of law, it is sought that this court dismiss the present appeal and other two appeals filed by the Devaraj Dhanram -Defendant No. 2 and Smt. T. Vanajakshi - Defendant No. 6(b), in R.F.A. No. 1219/2009 and R.F.A. No. 1085/2009, respectively. 7. By way of reply, it is contended by Shri Ramanujam that in so far as the contention that in D-39 at page No. 304, there is a note stating that there are no other properties movable or immovable whatsoever, to be divided amongst them and belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gedly addressed to M/s. Firebricks and Potteries (P) Ltd., and it is not known who received this, on what date it was received. It is alleged that the addressee has purchased Sy. No. 73 from Sri. Dharman, which has been registered in the record of rights. This is only a demand for money. Dharman is not the vendor. The vendor under Exhibit D-2 is M/s. Standard Tile and Clay Works (P) Ltd. represented by Venugopal Modaliar, not Dharman. Ex. D-47 is not helpful to prove title of the seventh defendant. Exhibit D-48 is again a photocopy, marked subject to objection. This is said to be issued by the Village Panchayath to the Proprietor of M/s. Standard Tile and Clay Works (P) Ltd., Yeshwanthapura. M/s. Standard Tile and Clay Works (P) Ltd., is having its registered office at Feroke S. Malabar in Kerala, even as seen from Exhibit D2. It is nobody's case that M/s. Standard Tile and Clay Works (P) Ltd., had an office in Yeshwantpura. There can be no proprietor for a company. No name is mentioned. It is not known as to how it was served either in person or by post. At the bottom of Exhibit D-48, it says Annexure-A, after the word memorandum, some numbers are mentioned and struck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 31 of the SR Act in Chapter V uses the word may . This is not a case in which the plaintiff should seek for declaration to cancel Exhibit D-2 sale deed. Section 31 of the SR Act in Chapter V and Section 34 in Chapter VI operate in different fields. The option is given to the plaintiff either to seek the relief under Section 31 or under Section 34. The reason is, the word used in Section 31 is may and it ends by saying the cancelled deed has to be delivered up. To whom is the question? It is for the plaintiff to decide whether he has got any apprehension of mischief or injury by the so called instrument. If the plaintiff is not a party to such an instrument, he can simply ignore the same and sue for declaration of his title. If there is a question of rival title, the plaintiff can sue for declaration under Section 34 with the consequential relief. In this case, the plaintiff has sought for declaration that the plaintiff and defendants 1 to 6 are the owners of item Nos. 1 and 2 of the suit schedule property. They claim title for item No. 1 based on the registered sale deed of the year 1938, Exhibit P.1 and Exhibit D.1. Regarding item No. 2, they rely upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule properties at any point of time and the question therefore of any attempt being made to deprive the plaintiffs alleged rights in the suit schedule properties does not arise at all It is contended that the seventh defendant claims to be in possession as owner. He does not claim title by adverse possession. The trial court has held that only Article 65 and 58 of Limitation Act, will get attracted. In this case, the defendants have not pleaded adverse possession. Hence there is no question of limitation at all. In Anathula Sudhakar v. P. Buchi Reddy (dead) by LR's and others, AIR 2008 SC 2033, it has been held that when there is a cloud over the plaintiffs title, he has to sue for declaration and possession. That has no application to the facts of this case. On the facts of this case, the family members were in possession as they were managing the seventh defendant company. As between family members, there were no disputes. The seventh defendant never made any specific claim denying the title and according to them, the seventh defendant was the owner. That is why they have not raised the plea of adverse possession. In 1989, disputes arose and thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Venugopal Mudaliar in his individual capacity, at worst, it could cover only a half share, which is 6 acres and 2 gunta. Whether Venugopal Mudaliar would be estopped from questioning the title of the seventh defendant, regarding 6 acres and 1 gunta is a different issue, because in this case, the plaintiff had made a claim of one seventh share of 6 acres and 1 gunta belonging to his father Dhanram Mudaliar. Dhanram Mudaliar had not made any representation. Dhanram Mudaliar had not conveyed anything. d) It is not the case of the seventh defendant that they have changed their former position or altered their former position to their prejudice, because it is the specific case of the seventh defendant that they have got title under Exhibit D-2. So, the theory of estoppel is not applicable to the facts of this case at all. e) As stated above, if the seventh defendant had raised the plea of adverse possession, the plea of estoppel may be available. So, the seventh defendant should admit that they did not get any title under Exhibit. D-2 and that they have been in continuous possession having an animus possidendi against the true owners and there is acquiescence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Clay Works (Private) Limited is a stranger to Exhibit P1 and has no title for the property covered by Exhibit P-1, but chose to create a sale deed purporting to convey property covered by Ex. P1 making an untrue statement that the company purchased the property covered by Exhibit P1. This is the very issue in the suit. Section 41 of the TP Act was rightly not argued before the trial court. There is no pleading, no evidence and no issue was framed in respect of Section 41 of the TP Act. This is a new case setup and even this is based on surmises and conjectures. The plea referring to Section 41 of the TP Act, is not a mere question of law. It is a question of fact and law. There is no fact pleaded. Hence, reference to Section 41 is wholly misconceived. As a question of law, we can refer to the proviso to Section 41 of the TP Act. First of all, the seventh defendant has not pleaded that they have purchased from ostensible owner and the question of good faith was also not been pleaded if Ex. P1 sale deed is seen, it is clear, on the face of it, that M/s. Standard Tiles and Clay Works (Private) Limited is not the purchaser. As regards that there has to be specific pleadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marked subject to objection, has erroneously held that item 2 of suit schedule property belonged to the seventh defendant. The learned judge has held in para 6.03 that Exhibit D37, which is a certificate issued by the Director of Industries and Commerce is not enough to show that the properties were converted into non-agricultural property. The learned judge holds that the tax receipts and these exhibits corroborates to establish that item 1 of suit schedule exclusively belongs to seventh defendant. At the end, he holds that viewing from any angle he is of the view that the suit schedule property belongs to the seventh defendant company. This finding is erroneous and contrary to law. At the end of para No. 6.04, the learned judge holds that since there is already a partition in the year 1962 and therefore second partition is not maintainable. The suit for partition is perfectly maintainable, because the plaintiff can seek for partition only after adjudication on the question of rival title. Article 110 of Limitation Act will not come into play. There is no pleading in the written statement that the suit schedule properties were joint family prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 are entitled to a share by birth. So the so called note is erroneous and it will not take away the title. The seventh defendant was not a party to O.S. 56/1969 which ended in Exhibit D-39 in 1981. No statement has been made to the seventh defendant. The so called note says, the parties to the suit O.S. No. 56/69 which ended in a compromise, have made a statement which is called as a note at page 304 of the typed set of papers. The 7th defendant cannot use it for any purpose. The defendants 1 to 6 want to use it, they have to prove it. At worst, this so called note may be called as an admission between plaintiff and defendants 1 to 6, which is on the face of it erroneous. That is why the defendants 1 to 6 have chosen not to enter the witness box. Thus, in any view of the matter, the judgment and decree of the trial court is contrary to law, contrary to the evidence available on record, contrary to settled principles of law and is liable to be set aside. The appellant therefore prays that the judgment and decree of the trial court may be set aside and the above appeal may be allowed with exemplary costs. 8. On a consideration of these rival contentions and on a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot convey title to the seventh defendant, mere mortgaging the property by the seventh defendant claiming as owner and the plaintiff and defendants 1 to 5 joining in the said mortgage deed will not confer title to the seventh defendant if the seventh defendant had otherwise did not get title under Exhibit D2. The statement contained in Exhibits D5 and D6, mortgage deeds, may be used as an admission against the plaintiff that the plaintiff has admitted that the seventh defendant is the owner of item 1. An admission is of fact. There cannot be any admission regarding a right. A right in immovable property worth more than 100 rupees can be conveyed or transferred only by a registered document. Mere admission will not transfer or convey title. If in law, a person does not acquired title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. In this regard the following opinion expressed in Kamakshi Builders v. Ambedkar Education Society and others, (2007) 12 SCC 27, is relevant. 23. Acquiescence on the part of Respondent No. 1, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a registered sale deed dated 3.2.1938. But the registered sale deed dated 03.02.1938 proves otherwise. c) There is no recital that the two brothers purchased it as directors of the company or on behalf of the company as pleaded in the written statement. Here also the sale consideration is mentioned as ₹ 4800/-. It is not shown how this sum or ₹ 4800/- was paid, whether by cash or cheque, when it was paid there is no proof There is no specific recital regarding delivery of possession. d) There is no resolution of the Board of Directors of the company. There is no seal of the company much less the common seal or seal of the Managing Director or even a rubber stamp of the Managing Director as alleged. e) There is no proof that M/s. Standard Tiles and Clay Works (Private) Limited, owned the property covered by Exhibit P1 anywhere. No evidence has been produced. It is clearly a sale deed by Venugopal in favour of Dhanram Modaliar. Hence Exhibit D-2 will not create any title to the seventh defendant. f) Even if Exhibit D-2 is construed as a sale deed by Venugopal Modaliar, as an individual, he can only convey 6 acres and 1 gunta being hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit P 12. A reading of Exhibit P 12 makes it very clear that the partition deed was only in respect of one property namely No. 1, Langford Road, Civil Station, Bangalore and a vacant piece of land, south of it as acquired by Dhanram Modaliar out of his self-acquired funds. The partition deed recites that the two properties were amalgamated and a house was constructed and a private road was laid by late Dhanram Modaliar and that the intention was to put up their individual buildings. It is stated that there is a portion which is not the subject matter of the partition. Hence, the mere fact that suit property has not been included in O.S. No. 56/1969 it cannot be concluded that the suit properties are not properties available for partition and they are the properties of the seventh defendant. In Ex. D-39 at page No. 304, there is a note stating that there are no other properties movable or immovable whatsoever to be divided amongst them and belonging g to the joint family. The learned trial judge does not rely upon this endorsements stating that it is not incorporated in the body of the decree. A plea of partial partition was not raised in O.S. No. 56/1969. There was no adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff was not a party to the transaction, he is not precluded from seeking a declaration of his title. And especially if there is a dispute regarding title, he can sue for declaration under Section 34 of the SR Act. As regards the finding of the trial court that the suit is barred by limitation, is concerned, there is no pleading in the written statement that that suit schedule proprieties were joint family properties and that the plaintiff was excluded from possession by ouster and the plaintiff has lost title by ouster and adverse possession. The defendants have not admitted that the suit schedule properties were joint family properties. There should be pleadings and there should be evidence. The seventh defendant company cannot be a member of a joint family. Non-inclusion of the property in the partition deed of 1962 and O.S. No. 56/1969 will not amount to exclusion of the plaintiff from possession by a member of joint family. Thus, the finding of the learned judge that 12 years have elapsed from 1962 and 1969 and hence the suit is barred by limitation, is a finding which is contrary to law Article 110 of the Limitation Act, is not at all applicable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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