HIRABAI (D) THR. L.RS. & ORS. versus RAMNIWAS BANSILAL LAKHOTIYA (D) BY L.RS. & ORS on 25 April 2019

1052

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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HIRABAI (D) THR. L.RS. & ORS.

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RAMNIWAS BANSILAL LAKHOTIYA (D) BY L.RS. & ORS

(Civil Appeal No.4282 of 2019)

APRIL 25, 2019

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[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Suit – Collusive suit to avoid execution of decree – DefendantNo.3/respondent No.3 sold the suit property to one ‘B’ by registeredsale deed dated 07.10.1965 – On death of ‘B’, defendant No.1 &C2/respondent Nos. 1 & 2 inherited the suit property – Some disputearose between defendant no.3 and defendant nos. 1 & 2 – Thereafter,defendant No.1 & 2 filed suit against defendant No.3 for declarationof title over the suit property – Trial Court by judgment/decree dated31.01.1975 held that defendant Nos.1 & 2 were the owners of suitDproperty – This decree attained finality – Thereafter, two plaintiffs(sisters of defendant No.3) filed a suit against defendant No.1 & 2for declaration that decree dated 31.01.1975 and sale deed dated07.10.1965 were not binding on both the plaintiffs – Suit dismissedby the Trial Court – First appeal and second appeal were alsodismissed by the First Appellate Court and the High CourtErespectively – On appeal, held: All three Courts were right in theirreasoning and conclusion – It was a collusive suit filed at the behestof defendant No.3 through his two sisters and family members toavoid execution of a valid decree dated 31.01.1975 – The sale ofthe suit property was made by the Karta-defendant No.3 for legalFnecessity and benefit of the family, the same was binding on all themembers of the family including the plaintiffs – Thus, the findingswere recorded on proper appreciation of facts and law and henceno interference required.

Dismissing the appeal, the Court

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HELD: 1. According to this Court, all the three Courts (CivilJudge, first Appellate Court and the High Court) were right intheir reasoning and the conclusion on all the factual and legalissues raised by defendant Nos.1 and 2 and there is no ground todiffer with their reasoning and the conclusion. [Para 19][1056-F-G]H

2. First, the findings impugned in the appeal beingconcurrent in nature, were not only binding on the High Courtwhile deciding the second appeal and were rightly held to be sobinding but such findings are binding on this Court too; Second,even otherwise, all the findings have been recorded on properappreciation of facts and law and hence do not call for anyinterference in this appeal as detailed infra. [Para 20][1056-G-H; 1057-A]

3. Third, the suit in question was apparently a collusivesuit filed at the behest of defendant No.3 through his two sistersand family members to avoid execution of a valid decree dated31.01.1975 passed by the competent Civil Court againstdefendant No.3 in relation to the suit property. Fourth, in thelight of findings recorded by the Trial Court in the previous suit,the present suit was rightly dismissed by all the Courts below.[Paras 21 and 22][1057-B-C]

4. Fifth, once it was held that the sale of the suit propertywas made by the Karta- defendant No.3 and it was made for legalnecessity and the benefit of the family, the same was binding onall the members of the family including the plaintiffs.[Para 25]

5. Sixth, the plaintiffs failed to plead and prove that the salein question was not for the benefit of family or that there was nolegal necessity for such sale or as to on what basis, they claimedshare in the suit property. On the other hand, defendant Nos.1and 2 were able to prove that the sale was for the legal necessityand benefit of the family. [Para 25][1057-G-H]

6. Seventh, the plaintiffs themselves admitted in theirevidence that they filed a civil suit at the instigation of defendantNo.3-their real brother. This clearly indicates that the suit wasnot filed for a bona fide cause but it was a collusive suit filed bythe plaintiffs to overcome the valid decree obtained by thedefendant Nos.1 and 2 against defendant No.3 and to savedefendant No.3 from its execution. [Para 26][1058-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4282of 2019

From the Judgment and Order dated 19.12.2008 of the HighCourt of Judicature at Bombay, Bench at Aurangabad in Second AppealNo. 177 of 1988.

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AVinay Navare, Sr. Adv., Sudhanshu S. Choudhari, M. K.Deshpande, Ms. Surabhi Guleria, Yogesh S. Kolte, Ms. Nandini Singla,Advs. for the Appellants.

Nishant Ramakantrao Katneshwarkar, Adv. for the Respondents.

The Judgment of the Court was delivered byB

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated19.12.2008 passed by the High Court of Judicature at Bombay, Benchat Aurangabad in Second Appeal No.177 of 1988 whereby the HighCCourt dismissed the second appeal filed by the appellants herein andupheld the judgment of the Trial Court and first Appellate Court.

3. A few facts need mention hereinbelow for the disposal of thisappeal.

4. This appeal is filed by the legal representatives of two originalDplaintiffs, who died after filing of the civil suit.

5. The original two plaintiffs were the real sisters of defendantNo.3 (respondent No.3 herein - Shankarlal) and their father was lateMotilal.

6. There is a building named “Moti Building” in the city of Jalna,Ewhich consists of four houses, each bearing separate number, viz.,3484/3534, 3485/3535, 3486/3536 and 3487/3537 (hereinafter referred to as“the suit property”).

7. Defendant No.3/respondent No.3 sold the suit property to oneBansilal Shivlal by a registered sale deed dated 07.10.1965. On theFdeath of Bansilal, defendant Nos.1 and 2/respondent Nos.1 and 2 hereininherited the suit property as heirs of Bansilal and thus became the ownersof the suit property.

8. Since some dispute arose between defendant Nos.1 and 2 withdefendant No.3 in relation to the suit property, defendant Nos.1 and 2/Grespondent Nos.1 and 2 herein filed a civil suit in the year 1971, beingCS No.48/1971 against defendant No.3/respondent No.3 Shankarlal andothers (tenants in the suit property). The suit was for a declaration oftitle over the suit property and for permanent injunction in relation to thesuit property. The suit was contested by defendant No.3.

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9. By judgment/decree dated 31.01.1975, the civil suit (No.48/1971) was decreed in favour of defendant Nos.1 and 2/respondent Nos.1and 2. The Trial Court inter alia held that defendant Nos.1 and 2 arethe owners of the suit property. This decree attained finality.

10. Thereafter, a civil suit, out of which this appeal arises, wasfiled against the defendants (respondents herein). The suit was for adeclaration that the decree dated 31.01.1975 passed in Civil Suit No.48/1971 is not binding on the two plaintiffs and that the sale deed dated07.10.1965 executed by defendant No.3/respondent No.3 in favour ofdefendant Nos.1 and 2/respondent Nos. 1 and 2 in relation to the suitproperty is also not binding on the two plaintiffs.

11. The suit was founded inter alia on the allegations that the suitproperty was an ancestral property of the family in which the two plaintiffs- who are the sisters of defendant No.3/respondent No.3 have an equalshare along with defendant No.3. The plaintiffs alleged that since thesuit property was sold by defendant No.3/respondent No.3 without theirknowledge, authority and consent, the sale deed dated 07.10.1965 is nulland void to the extent of plaintiffs’ share. The plaintiffs also alleged thatsince both the plaintiffs were not parties to Civil Suit No.48/1971, thedecree dated 31.01.1975 passed in the said suit is neither binding onthem nor such decree affects their right, title and interest in the suitproperty.

12. During pendency of the civil suit, wife, sons and daughters ofdefendant No.3/respondent No.3 also joined the civil suit, either asplaintiffs or as defendants, some since inception and others at a laterstage. Defendant No.3, his wife, sons and daughters supported theplaintiffs’ case.

13. The suit was contested only by defendant Nos.1 and 2, whowere the purchasers of the suit property from defendant No.3.

14. According to defendant Nos.1 and 2, first, the suit was barredby limitation because it was filed after three years from the date ofdecree dated 31.01.1975; Second, it was bad in law because the plaintiffsfailed to seek partition in relation to the entire properties owned by thefamily; Third, it was a collusive suit filed at the instance of defendantNo.3/respondent No.3 to avoid execution of the decree against him;Fourth, the decree dated 31.01.1975 passed in Civil Suit No.48/1971

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Awas also binding on the two plaintiffs in the light of categorical findingrecorded by the Civil Court in its judgment dated 31.01.1975; Fifth, inany case, the two plaintiffs had no right, title and interest in the suitproperty; Sixth, even otherwise, the sale of the suit property having beenmade by a Karta of the family, i.e., defendant No.3 for the benefit of thefamily and for legal necessity, it is binding on the two plaintiffs includingBall members of the family; Seventh, a suit to challenge the decree passedby a competent Civil Court is not maintainable.

15. The Trial Court, by judgment/decree dated 16.10.1981,dismissed the suit and answered all the issues against the plaintiffs byupholding the objections raised by defendant Nos.1 and 2. The plaintiffsCfelt aggrieved and filed first appeal before the 2[nd] Additional DistrictJudge. By judgment dated 09.05.1988, the first Appellate Court dismissedthe appeal which gave rise to filing of second appeal by the plaintiffs inthe High Court. By impugned order, the High Court dismissed the secondappeal, which has given rise to filing of the present appeal by way ofDspecial leave by the plaintiffs in this Court.

16. So, the short question, which arises for consideration in thisappeal, is whether the High Court was justified in dismissing plaintiffs’second appeal and thereby was justified in upholding the judgment of theTrial Court and first Appellate Court which resulted in dismissing theEsuit.

17. Heard Mr. Vinay Navare, learned senior counsel for theappellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counselfor the respondents.

18. Having heard the learned counsel for the parties and on perusalFof the record of the case, we find no merit in this appeal.

19. In our view, all the three Courts (Civil Judge, first AppellateCourt and the High Court) were right in their reasoning and the conclusionon all the factual and legal issues raised by defendant Nos.1 and 2 andwe find no good ground to differ with their reasoning and the conclusion.

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20. First, the findings impugned in the appeal being concurrent innature, were not only binding on the High Court while deciding the secondappeal and were rightly held to be so binding but such findings are bindingon this Court too; Second, even otherwise, all the findings have been H

recorded on proper appreciation of facts and law and hence do not callfor any interference in this appeal as detailed infra.

21. Third, the suit in question was apparently a collusive suit filedat the behest of defendant No.3 through his two sisters and familymembers to avoid execution of a valid decree dated 31.01.1975 passedby the competent Civil Court against defendant No.3 in relation to thesuit property.

22. Fourth, in the light of findings recorded by the Trial Court inthe previous suit in Para 18, the present suit was rightly dismissed by allthe Courts below. It is apposite to quote the finding of the Trial Courtrecorded in Para 18 which reads as under:

“18. The sale deed has been executed by Shankarlal, whois admittedly the Karta of the family. According to the ownstatement of defendant No.1, he was in need of money forpaying his dues to different persons. He, therefore, soldthe house in favour of Bansilal. Defendant No.1 cannotraise the objection that, other heirs of Motilal should beimpleaded as defendants. It is for the other heirs, if any, oflate Motilal to take recourse to proper remedy in case theyfell that, the alienation of the suit house was not in theinterest of the family. Other heirs of Motilal are notnecessary parties to this suit. Issue No.8 is decided againstthe defendants.”

23. The aforesaid finding, in our view, not only binds defendantNo.3 but also binds the two plaintiffs being the members of the samefamily.

24. Fifth, once it was held that the sale of the suit property wasmade by the Karta - defendant No.3 and it was made for legal necessityand the benefit of the family, the same was binding on all the membersof the family including the plaintiffs.

25. Sixth, the plaintiffs failed to plead and prove that the sale inquestion was not for the benefit of family or that there was no legalnecessity for such sale or as to on what basis, they claimed share in thesuit property. On the other hand, defendant Nos.1 and 2 were able toprove that the sale was for the legal necessity and benefit of the family.

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A26. Seventh, the plaintiffs themselves admitted in their evidencethat they filed a civil suit at the instigation of defendant No.3 - their realbrother. This clearly indicates that the suit was not filed for a bona fidecause but it was a collusive suit filed by the plaintiffs to overcome thevalid decree obtained by the defendant Nos.1 and 2 against defendantNo.3 and to save defendant No.3 from its execution.

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27. In the light of the foregoing discussion/reasons, we find nogood ground to interfere in the impugned order, which is based on properappreciation of facts and law governing the issues.

28. The appeal, is therefore, found to be devoid of any merit. ItCis accordingly dismissed.

Ankit Gyan

Appeal dismissed.

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