Hindu Law: Property rights – Dispute related to the two properties ‘M’ and ‘B’ situated in the village of Bainguinim in Goa – Suriaji and Gones were brothers – The properties in dispute originally belonged to their grandfather – Plaintiffs-appellants are heirs and successors in interest of Gones – By the Gift Deed of 1913, the grandfather of Suriaji and Gones had gifted one-half right in property ‘M’ to both Suriaji and Gones – The other half share in property ‘M’ and the whole of property ‘B’ vested with the aunt (father’s sister) of Suriaji and Gones – It was in 1915 that the aunt executed sale deed conveying the rights to Suriaji and to the other branch, viz., Vitol – A deed of dissolution of accounts, payments and obligation was executed on 21.01.1919 in which Suriaji and Gones appeared as parties on the one side representing the Venctexa branch and other branch of Vitol came to be represented by his wife along with her four sons – In deed dated 21.01.1919, Suriaji admitted that the purchase of one-fourth in the property of ‘M’ and half of property ‘B’ by sale deed dated 17.11.1915 was for self and for his brother Gones who paid half the price – Suriaji and his wife Shantibai undertook to effect the transfer of registration in the name of Gones, half of the property purchased in his name – Gones was on the occasion of transfer to make reimbursement of the half of money paid by Suriaji – In 1925, Suriaji and his wife Shantibai gifted in favour of Gones one-fourth of property ‘M’ acquired by Suriaji from his grandfather under the gift deed dated 09.03.1913 – Gones, thus, became entitled to one-eighth of the property ‘M’ and one-fourth of the property ‘B’ as a result of purchase made under deed of sale dated 17.11.1915 – In 1937, half share of Gones in property ‘M’ was sold in public auction in execution proceedings against Gones – Despite the dissolution of the Hindu undivided family, the families of Gones and his brother Suriaji and the other branch always lived together – In 1949, Gones proceeded to Daman on account of his employment – He received his share from the suit property until his death which took place in December 1978 – After his death, appellants were not given their share and when they found that their names were not included in the Survey records, they made application to the survey authorities and came to know for the first time about the partition deed dated 13.03.1969 and found that they were excluded – Appellants filed suit for declaration that they were entitled to one-eighth share in the property ‘M’ and one-fourth share in the property ‘B’; that the Deed of Partition dated 13.03.1969 executed by the concerned defendants was null and void and not binding on them – Trial Court decreed the suit – However, First Appellate Court set aside the order of trial court – High Court by impugned order dismissed the appeal, holding that whatever right or interest may have survived with Gones, was lost, as Gones did not at any point of time challenge the allotment of property to Shantibai which allotment in the Inventory Proceedings and recording/ registration of rights in her favour has attained finality for want of challenge – On appeal, held: By virtue of sale deed of 1915 and settlement deed of 1919, it cannot be concluded that Gones acquired title as such in the plaint schedule property – Not only did Gones not object during or immediately after inventory proceedings but though he lived till the year 1978, he never raised any claim in regard to the plaint schedule property – Equally as found by the High Court and the first appellate Court, there was no material to show that Gones was in receipt of income from property which was specific case of the appellants – Property was shown in the name of Shantibai – Still further in 1969, Shantibai executed a gift deed of the plaint scheduled property – Immediately thereafter partition deeds were executed between Shantibai and children – Thus, Shantibai treated the property as belonging to her – Still later land acquisition proceedings were held in respect of part of the plaint schedule property – The compensation determined was paid on the basis that Gones did not have any right – Thus there was representation by conduct of Gones, that he acknowledged the right of Shantibai – Further there was no defence pleaded as to estoppel or abandonment – Thus, interference with the impugned order of High Court is not called for.
Dismissing the appeals, the Court
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HELD: 1. Under the sale deed dated 17.1.1915, 1/4 share of property ‘B’ and 1/2 right in property ‘M’ came to be conveyed to Suriaji, the other part being conveyed to the Vitol branch. The document dated 21.1.2019 is described as a deed of declaration, fixation of balance of accounts, payment and obligation. The deed appears to provide for distribution of joint family and for settlement of accounts of the family which lasted only 3 years. It is inter alia stated therein that parties of the first part Suriaji stated that the purchase made by him by the sale deed dated 17.11.1915 was made for himself and for Gones, his brother and that he has paid for half of the price of the said purchase, therefore he undertakes alongwith Shantibai to transfer in the name of Gones the half of the properties purchased in his name by the aforesaid deed at any time he may desire, to have it transferred and on the occasion of this transfer, the said Gones will have to indemnify him with half of the amount which has now been paid to the party of the second part Laxmi from the money of the dowry of his wife. There is no denial of the averment of Gones having paid the consideration. It is stated immediately after stating that he has paid for half of the price for the said purchase, therefore, he has undertaken alongwith the said Shantibai to transfer to Gones, the half of the properties purchased in his name etc. A sum of Rs.1000/- was a considerable sum of money in 1919. No doubt it could have been made prior to demanding the transfer. The clause cannot be understood to mean that either it need not be paid or the payment could be deferred. There is no case that Gones offered Rs.1000/- to Suriaji during his lifetime and the transfer of mutation or of right was refused. PW 1 goes to the extent of deposing that the ‘obligation to reimburse Suriaji did not devolve upon the heirs of Gones’. Thus the suit is filed with neither Gones nor even the appellants paying or even offering to pay the sum mentioned in the deed of 1919. [Paras 50, 58, 61, 62, 63] [898-H; 899-A; 904-H; 905-A-D; 907-G-H; 908-A, F-H; 909-A-B] Syndicate Bank v. Prabha D. Naik (2001) 4 SCC 713 : [2001] 2 SCR 714 – distinguished.
Hardevinder Singh v. Paramjit Singh and Others (2013) 9 SCC 261 : [2013] 1 SCR 903; Justiniano Augusto De Piedade Barreto v. Antonio Vicenta Da Fonseca and Others (1979) 3 SCC 47 : [1979] 3 SCR
494 – referred to.
2. There is another perspective. In the plaint, at para ‘9’, what is stated is that in the year 1915, Piru and her husband sold the property by deed of sale dated 17.11.1915 in equal parts to Suriaji and to Laxmi. Thereafter, in para ‘11’, Suriaji in the deed dated 21.01.1919 is stated to have expressly admitted that the purchase of 1/4th of “M” and 1/2 of “B” made under sale deed dated 17.11.1915, was for himself and his younger brother and who paid its price at the time of purchase and therefore, it was undertaken to transfer the registration, upon Suriaji being reimbursed by Gones in the payment of 1/2. It is admitted that the sale deed is in favour of Suriaji. It is nearly 4 years thereafter in the document of 1919 that the admission by Suriaji about 1/2 price, being paid and about the undertaking is setup. There is no case for the appellants in the plaint that Suriaji was benamidar or a name lender. The principle of resulting trust underlies Section
82 of the Trust Act. There can be no doubt that Trust Act was inapplicable to Goa in 1915 and in 1919 as Goa was not part of British India. Certain tests are propounded in determining whether a transaction is benami which have to be fulfilled. No doubt, the most important test is who provided consideration. There is no pleading in the plaint about the transaction being a benami transaction. If benami was recognized in Goa under Portuguese rule then it could be said that Gones would become the owner provided the transaction is treated as a benami transaction. But there is no case of benami set up. Thus, a purchase which is made benami, leads to a resulting trust. At least the appellants have no case that it did apply. They have not produced anything to show that it applied. If the Trust Act which, undoubtedly, did not apply to Goa in 1915 or even in 1919 and in Section 82 thereof, lay embedded the principle of benami or resulting trust, how can appellant claim that Gones became entitled as owner under the document of 1915 read with the document of 1919. If it was reduced to a contract executory in nature, to perform an obligation upon which alone the title would vest, it was subject to the condition precedent of payment of Rs. 1000/- by Gones. Even according to the appellants obligation to pay Rs.1000/-, did not pass to them. This conduct of the appellant’s, in seeking to derive rights under the document of 1919, even though, their predecessor in interest has failed either deliberately or otherwise to perform his obligation during his entire life time cannot be approved of. Section 82 of the Trust Act recognized that when a person transferred property to another for consideration, which is paid by a third party then the said person would be the beneficial owner. The transferee in name or Benamidar would hold the property in trust for the person who has actually provided consideration. There is, no case based on benami ever set up by the appellant. Therefore, by sale deed of 1915 and the settlement deed of 1919 it may not be safe to conclude that Gones acquired title as such in the plaint schedule property. In the light of this, no finding is rendered as regards adverse possession or ouster. [Paras 64, 65, 67, 68] [909-C-G; 911-C-H; 912-A-E]
Controller of Estate Duty, Lucknow v. Alok Mitra AIR 1981 SC 102 : [1981] 1 SCR 943 – referred to.
3. After dissolution deed dated 21.1.1919 there took place, another development in the form of execution of gift deed by Suriaji in the year 1925. Under the gift deed of 1925, Suriaji has gifted Gones his ¼ right in property ‘M’ which he acquired under the gift deed executed by his grandfather in the year 1913. Suriaji passed away in the year 1925 after the gift. It is thereafter that inventory proceedings took place in regard to the properties of Suriaji under the Portuguese Civil Code. Gones stood as vogal apparently on behalf of the minor children of Suriaji under the Portugues Civil Code. The documentary evidence is found by the first appellate Court to establish that ¼ of property ‘M’ and ½ of property ‘B’ stood allotted in the name of Shantibai, the widow of the Suriaji. [Para 69] [912-F-G; 913-A-C]
4. When vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law. In the facts of this case there is an added feature. Under the document dated 21.1.1919 Gones was to make a reimbursement of Rs.1000/- as it turns out being half the amount paid by his brother Suriaji from out of the proceeds of his wife’s dowry to Laxmi who represented the other branch. Something remained to be done on the part of Gones and thereupon it was for Suriaji to transfer. In that sense it could be described as an executory contract. [Paras 79-80] [921-D-G]
Dilboo (Smt.)(Dead) by LRs. and Others v. Dhanraji (Smt.)(Dead) and Others (2000) 7 SCC 702 : [2000] 3 Suppl. SCR 214 ; Damodar Ramnath Alve v. Gokuldas Ramnath Alve and Others MANU/MH/0535/1996;
Zacarias Durate Domingos Pereira v. Camilo Inacio Pereira 1990 (1) Goa LT 174 ; Sha Mulchand and Co.Ltd. v. Jawahar Mills Ltd, Salem AIR 1953 SC 98 : [1953] SCR 351 ; Dr. Karan Singh v. State of J & K and Another (2004) 5 SCC 698 : [2004] 1 Suppl. SCR
43 – referred to.
5. In regard to the inventory proceedings, no doubt, it is true that the inventory proceedings per se are not produced. It may be true that burden of adducing evidence relating to inventory proceeding was on the contesting defendants but it is equally true that they have produced final inscription which manifest the culmination of the inventory proceedings and shows that plaint schedule property stood allotted to Shantibai. Under sale deed dated 17.11.1915 Suriaji was a transferee of 1/4 share of property ‘M’ and 1/2 in property ‘B’. When Suriaji died, the inventory proceedings was to be held only in respect of the properties left behind by him. Gones was major, by the time inventory proceedings commenced and culminated. He was aware of his rights under the sale deed of 1915 as declared in the dissolution deed of 1919. The inventory proceedings culminated with ¼ right in ‘M’ and 1/2 in ‘B’ being allotted to Shantibai. As to how the said property came to be so allotted despite the settlement deed of 1919 which according to the appellants carved out rights in favour of Gones and towards ½ of the properties ‘B’ to the appellants is a matter which this Court is unable to embark upon but it is clear that Shantibai stood allotted the property in tune with the sale deed. What is important is nothing is produced by the appellants to show that Gones protested in any manner either during or at the end of proceedings. Nothing is produced to show that allotment to Shantibai was ever challenged in any manner by Gones. In other words, Gones by his conduct must be treated as having held that he has accepted that the property which was allotted in the inventory proceedings will belong to Shantibai. Since 1937 when the said allotment took place for all purpose, the property stood acknowledged by Gones as property allotted to Shantibai. It would not amount to fraud. There is no case of fraud as such set up by the appellants. There is a definite case for the respondents that there is no concept of trust in the Portuguese law and that there is no distinction between legal and equitable estate. The concept of trust may be inapplicable. [Paras 81, 82, 84, 85] [922-A-D; 923-A-E]
6. Not only did Gones did not raise any objection during or immediately after inventory proceedings but though he lived till the year 1978 which is nearly 41 years after 1937 Gones is not shown to have ever raised any claim in regard to the plaint schedule property while he was alive. There is no material to show that Gones was in receipt of income from property which is specific case of the appellants. Thus, Gones was not in receipt of any income. Property was shown in the name of Shantibai. Still further in 1969 Shantibai executes a gift deed of the plaint scheduled properly. Immediately thereafter partition deeds are executed between Shantibai and children. Thus, Shantibai treated the property as belonging to her and she has accordingly executed the Gift deed and subsequently partition deed entered into on the said basis. Still later land acquisition proceedings were held in respect of part of the plaint schedule property. The compensation determined was paid on the basis that Gones did not have any right. When such is the position, on the face of it abandonment may not be inappropriate in the peculiar facts of this case. If the legal requirement is it must further amount to estoppel, one of the conditions to be fulfilled is acting on the representation, the representee must act to his detriment. There appears to be representation by conduct of Gones, that he acknowledged the right of Shantibai. It may be difficult to establish that Shantibai acted to her detriment. Further there is no defence pleaded as to estoppel or abandonment. [Paras 87, 88] [923-G-H; 924-D-F]
Taherakhatoon (D) by LRs v. Salambin Mohammad (1999) 2 SCC 635 : [1999] 1 SCR 901 – relied on.
Mohammad Ali (Dead) by LRs. v. Jagadish Kalita and Others (2004) 1 SCC 271 : [2003] 4 Suppl. SCR
325 ; Jai Singh and Others v. Gurmej Singh (2009) 15 SCC 747 : [2009] 1SCR 413; P. John Chandy and Co. (P) Ltd. v. John P. Thomas (2002) 5 SCC 90 : [2002] 3 SCR 549 ; L. N. Aswathama and Another v. P. Prakash (2009) 13 SCC 229 : [2009] 10 SCR 615 ; Kuldip Mahaton and Others v. Bhulan Mahato (Dead) by LRs. and Others (1995) 2 SCC 43 : [1994] 6 Suppl. SCR
220 ; P.T. Munichikkanna Reddy and Others v. Revamma and Others (2007) 6 SCC 59 : [2007] 5 SCR 491; State of U.P. Another v. Universal Exporters and Another (1997) 7 SCC 531 : [1997] 4 Suppl. SCR 49; Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204: [2003] 2 Suppl. SCR 743; Sankalchan Jaichandbhai Patel and Others v. Vithalbhai Jaichandbhai Patel and Others (1996) 6 SCC 433 : [1996] 6 Suppl. SCR 333; Mohinder Singh and Another v. Kashmira Singh
AIR 1985 P&H 215; Ashok Kumar and Others v.
Gangadhar and Another AIR 2007 AP 145 ; Banarsi and Others v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR 22; Mohan Lal (deceased) Through His LRs. Kachru and Others v. Mirza Abdul Gaffar and Another (1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638 ;
Sheela Rodrigues and Another v. Lourencinha Ana D’Cruz Rodrigues Fernandes (1999) SCC Online
Bombay 109; Raj Narain Pandey and Others v.
Sant Prasad Tiwari and Others (1973) 2 SCC 35: [1973] 2 SCR 835 ; Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (1994) 4 SCC 1 ; Vishram alias Prasad Govekar and Others v. Sudesh Govekar (Dead) by Legal Representatives and Others (2017) 11 SCC 345 : [2016] 12 SCR 174 ; Eurekha Builders and Others v. Gulabchand, S/o Veljee Dand Since Deceased by Legal Representatives and Others (2018) 8 SCC 67 : [2018] 4 SCR 779 ; Khatri Hotels Private Limited and Another v. Union of India and Another (2011) 9 SCC
126 : [2011] 15 SCR 299 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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