HEMANT RAMCHANDRA INGOLE & 4 ORS. vs SMT. INDIRABAI WD/O TRIMBAKRAO INGOLE & 3

The appellants herein are the unsuccessful plaintiffs  who have challenged concurrent findings rendered against them by the two Courts below.

2.The facts leading up to the filing of the present appeal are that the appellants-plaintiffs are the descendants of one Ramchandra Ingole while the

respondents-defendants are the descendants of Trimbakrao Ingole, the elder brother of the aforesaid Ramchandra. It is an admitted position that there

was partition of joint family property between the aforesaid two brothers in the year 1952 and that thereafter they started residing separately. It is the

contention of the appellants-plaintiffs that in the year 1957 the aforesaid Ramchandra and Trimbakrao jointly purchased suit property, being plot at F.S.

No.42, mouza Rajapeth Bhargare, Badnera, district Amravati in Ward No.40 admeasuring 7011 sq.ft. with house No.240 thereon. The plaintiffs

claimed that sale deed in respect of the said property was executed in favour of Ramchandra and Trimbakrao on 29.03.1957 and it was presented for

registration in the office of the Registrar on the same day and that thereafter on 03.05.1957, the aforesaid sale deed stood registered.

The said registered sale deed (Exh.31) bears the signature of the vendor as the person who has executed the document, as also the signatures of

two witnesses. The name of both Ramchandra and Trimbakrao are stated in the sale deed as that of the purchasers. Interestingly both the brothers

have not signed the said registered sale deed and only the signatures of Trimbakrao are found on the reverse of the stamp papers as the person who

presented the said document for registration on 29.03.1957.

It is the case of the appellants that their predecessor Ramchandra died on 22.03.1995 and that after his death they approached the respondents to

effect partition of the suit property and to give possession of their half share. Upon refusal by the respondents to do so, the appellants issued a notice

by registered A.D. dated 15.06.1995 through their counsel to the respondents. It is submitted that while the defendant Nos. 2 and 3 before the Court

below received the notice, the defendant no.1 refused to accept the same. According to the appellants, this gave them a cause of action to approach

the trial Court to file suit for declaration, partition and possession. The appellants claimed that since the suit property was purchased jointly by their

predecessor and the predecessor of the respondents, they were entitled to half share in the same. They also prayed for appointment of Commissioner

for effecting partition of the suit property.

The respondents-defendants resisted the claim made by the appellants in their suit and claimed that although initially the two brothers Ramchandra

and Trimbakrao had decided to jointly purchase the suit property, later Ramchandra backed out and the entire consideration for the said transaction

was paid by Trimbakrao and that therefore, there was no substance in the claim raised on behalf of the appellants. It was contended that the

respondents had been paying the non-agricultural assessment tax as also the Municipal Corporation tax for the suit property and the construction

thereon and that Ramchandra during his life time had never made any such claim as was now being raised by the appellants.

On the basis of the pleadings of the parties, the trial Court framed issues, including issue pertaining to as to whether the appellants had proved that

Ramchandra and Trimbakrao had equal share in the suit property and whether the construction made thereon by them was undertaken jointly. An

issue of limitation was also framed by the trial Court. Both parties led oral and documentary evidence before the trial Court. Insofar as the oral

evidence is concerned, it is relevant that none of the parties had any personal knowledge as regards the aforesaid transaction and, therefore, it was the

word of one party against the other. As regards documentary evidence, the respondents heavily relied upon the registered sale deed at Exh.31 pointing

out that other than the name of Ramchandra being mentioned in the document, there was nothing to show that he had indeed jointly purchased the said

property with Trimbakrao. It was contended that there was signature of Trimbakrao as the person who had presented the document for registration

and that two of the four stamp papers were purchased in the name of Trimbakrao. Apart from this, both parties produced receipts issued by the

concerned authorities regarding payment of non-agricultural assessment tax for different periods of time in respect of the suit property.

The trial Court took into consideration the aforesaid findings and material on record and held in favour of the respondents, thereby dismissing the

suit filed by the appellants. The trial Court emphasized on the fact that there was absence of signature of Ramchandra on the registered sale deed at

Exh.31 and that it was signed only by Trimbakrao, which according to the trial Court demonstrated that Ramchandra may have been either unable or

unwilling to contribute a share towards consideration for purchasing the suit property. The trial Court further gave a finding that sale deed was

executed on 29.03.1957 and registered on 03.05.1957, while the suit was filed about 38 years later in the year 1995 and that therefore, it was barred

by limitation. On this basis, the trial Court dismissed the suit.

Aggrieved by the same, the appellants filed an appeal before the District Court, which has been dismissed by the impugned judgment and order. It is

before the appellate Court that a point pertaining to Section 45 of the Transfer of Property Act, 1882 (for short “the Actâ€) was argued on behalf

of the appellants in order to contend that in the absence of evidence regarding the extent of share of consideration amount advanced by the parties, it

was to be presumed that both parties had equal share in the property which was subject matter of such a transaction. The appellate Court rejected the

aforesaid contention on the ground that the appellants had failed to place on record any material to show that their predecessor Ramchandra had

borne the burden of half share of consideration paid for the aforesaid transaction. At the same time the appellate Court did note the fact that even the

respondents had failed to adduce satisfactory evidence to show that their predecessor Trimbakrao had paid the entire consideration. But, the appellate

Court placed the entire burden on the appellants to prove their case of Ramchandra having at least paid half share of the consideration. On the

question of limitation, the appellate Court held that it no longer survived in the light of findings rendered by it on the merits of the matter against the

appellant.

Aggrieved by the impugned judgment and order dismissing their appeal, the appellants filed this second appeal, which was admitted on 05.02.2003

on a specific question of law framed by this Court. Later by an order dated 12.07.2017, by exercising power under Section 100 (5) of the CPC, this

Court framed another question of law for consideration. Thus, this appeal is to be considered on the following two substantial questions of law that

were framed by this Court:-

“(i) When the property in suit i.e. the plot was purchased for consideration by Ramchandra, the predecessor of plaintiffs-appellants and

Trimbakrao, the predecessor of defendants-respondents, whether the Courts below were right in casting the burden of proving the title to the extent of

half share on the plaintiffs-appellants contrary to the provision of Section 45 of the Transfer of Property Act, which speaks that in absence of

evidence as to the shares which the respective parties advanced, there would be a presumption that such persons would be equally interested in the

property?

(ii) Whether the plaintiffs have proved that the suit for partition and separate possession was filed within limitation?

I have heard the learned counsel for the parties exhaustively on the above mentioned two substantial questions of law. Mr. R.M. Bhangde, learned

counsel appearing on behalf of the appellants contended that although the two Courts below have concurrently held against the appellants, the findings

rendered by the Courts below were perverse and the true purport of Section 45 of the Act, was not appreciated by the Courts below. It was

contended that once the name of the purchaser of the appellants i.e. Ramchandra was stated in the registered sale deed at Exh.31 along with his

brother Trimbakrao as the persons in whose favour the said document was executed by the vendor, the share of the appellants could not be refuted

only on the ground that the said document did not bear the signature of Ramchandra. It was contended that it was not mandatory in law for the

purchaser to sign on such a document, because it was executed by the vendor in respect of sale of immovable property. It was further contended that

since Trimbakrao had signed only as a person who presented the same for registration and as a person in whose name two of the four stamp papers

were purchased, it did not give the respondents, as descendants of the said Trimbakrao, any higher right than that of the appellants in the suit property.

It was further contended that Section 45 of the Act specifically addressed a situation that has arisen in the present case. The second part of the said

provision stipulates that in the absence of any evidence as to the shares which purchasers have respectively advanced, it shall be presumed that such

persons have equal interest in the property in question. It was contended that once such presumption arose in favour of the appellants in the present

case, the burden was on the respondents to prove that their predecessor Trimbakrao had paid the entire consideration for the execution of the

registered sale deed at Exh.31. As regards limitation, the learned counsel appearing on behalf of the appellants contended that period of limitation

stood triggered upon the respondents showing an adverse interest to the right claimed in the suit property by the appellants. According to him, this

occurred when they refused to acknowledge the half share of the appellants in the suit property upon the death of Ramchandra in the year 1995. The

learned counsel further submitted that the Courts below had ignored the documentary evidence, which demonstrated that both the parties were jointly

having interest in the suit property.

According to him this demonstrated that the findings rendered by the Courts below were perverse. In support of his contention, the learned counsel

relied upon judgments of the Hon’ble Supreme Court in the case of Aloka Bose .vs. Parmatma Devi and ors. - (2009) 2 Supreme Court Cases

582 and State of Maharashtra .vs. B.E. Billimoria -(2003) 7 Supreme Court Cases 336 and judgment of the Andhra Pradesh High Court in the case of

Fazal Ullah Khan .vs. State of Andhra Pradesh - (2012) 2 ALT 728.

Per contra, Mr. S.V. Purohit, the learned counsel appearing on behalf of the respondents submitted that the findings rendered by the Courts below

were on proper appreciation of the evidence and material on record and that they did not give rise to any substantial question of law warranting

interference by this Court exercising jurisdiction under Section 100 of the CPC. According to him, there was nothing to demonstrate that the findings

rendered by the Courts below were perverse. The learned counsel appearing on behalf of the respondents further submitted that the absence of

signature of Ramchandra on registered sale deed at Exh.31 was an important circumstance which was taken into consideration by the Courts below

and that even if it was presumed for the sake of argument that absence of signature of Ramchandra did not materially affect the claim of the

appellants, they could not claim benefit under Section 45 of the Act, without placing some material on record as to their claim about Ramchandra

having paid half share or at least some share of consideration in respect of the aforesaid sale deed at Exh.31. According to him, in the absence of any

such material, the Courts below were justified in rejecting the claim of the appellants. It was further contended that the suit was barred by limitation,

because there were clear facts demonstrating actions undertaken by the predecessor of the respondents, indicating that the claim, if any, of

Ramchandra was being refuted by him. One of such incidents was the construction of structure on the suit property in the year 1974 to which

Ramchandra never raised any objection and the fact that the name of Trimbakrao was recorded in the Municipal records as the owner and he had

indeed deposited the Municipal Corporation tax in respect of the aforesaid construction made on the suit property. According to him, the cause of

action for the appellants had arisen when such incidents occurred and yet the suit was filed in the year 1995, which was hopelessly barred by

limitation. In support of his contentions, the learned counsel relied upon judgments of the Hon’ble Supreme Court in the case of Dagadabai .vs.

Abbas- (2017) 13 Supreme Court Cases 705 and Damodar Lal .vs. Sohan Devi - (2016) 3 Supreme Court Cases 78 and judgments of the Kerala High

Court in the case of Vasanthakumary .vs. Omanakuttan Nair passed in Mat Appeal No. 217 of 2004 decided on 05.06.2009.

Having heard the learned counsel for the parties and having perused the entire material on record, in order to answer the aforesaid substantial

questions of law on which this appeal was admitted, it would be necessary to refer to Section 45 of the Act. Since a lot turns on the interpretation of

the aforesaid provision in the instant case, it would be necessary to quote the same. It reads as follows:-

“45. Joint transfer for consideration.â€"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, 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.â€​

In the facts of the present case, second part of Section 45 of the Act as quoted above, is relevant. In simple words, the aforesaid provision means

that when there is absence of evidence as to the shares which purchasers have respectively advanced for purchasing immovable property, it shall be

presumed that they have equal interest in the property. In the present case, it is undisputed that names of both Ramchandra and Trimbakrao, are found

on the registered sale deed at Exh.31 as purchasers of the suit property. This document is signed by the vendor and two witnesses and admittedly

neither Ramchandra nor Trimbakrao have signed the said document as persons who have executed the same. This is obviously because the said

document is executed by the vendor in their favour. In this context, the question that arises for consideration is, as to whether it is mandatory that

purchasers need to sign on sale deeds that are executed in their favour by the vendor. In the context of agreement of sale, the Hon’ble Supreme

Court in its judgment in the case of Aloka Bose (supra) has held as follows:-

 “16. On the other hand, the observation in S.M. Gopal Chetty, AIR 1998 Madras 169 that unless agreement is signed both by the vendor and

purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser

agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be

signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then

exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the

purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it.â€​

In the context of execution of sale deed, the Andhra Pradesh High Court in the case of Fazal Ullah Khan .vs. State of Andhra Pradesh and others

(supra) has held as follows:-

“11. A party to a transfer can certainly cancel it in case necessary ingredients as provided for under law, are established. Such transaction can be

sale or for that matter any conveyance including gift, mortgage, exchange and the like. Though transactions such as sale and gift are brought into

existence with unilateral acts of execution of the documents, the legal effect thereof is that the title in respect of the property stands transferred in

favour of the transferred name therein, notwithstanding the fact that the transferee may not have subscribed his signature in the documents. From this

point of view, the sale deed on the one hand and the gift deed on the other, stand on the same footing.â€​

It appears that in transactions like the sale deed at Exh.31 in the present case, in the context of sale and purchase of immovable property, it is the

signature of the vendor being a person who executes the document that is crucial and absence of signature of purchasers does not render the

document defective in any manner. In the present case, the vendor has signed the aforesaid sale deed at Exh.31 while Trimbakrao is recorded as the

person who presented the said document before the Registrar for registration of the same. In this context, Section 32 of the Registration Act, 1908,

mandates that some person executing or claiming under a document can present the same before the authority. The material on record definitely

indicates that it was Trimbakrao who presented the aforesaid sale deed at Exh.31 for registration, although it does not ipso facto mean that

Ramchandra was not present when such document was presented.

In any case, nothing much turns on the signature of Trimbakrao being found on the said document, because the names of both Ramchandra and

Trimbakrao are specifically recorded as purchasers of the suit property in the said sale deed at Exh.31. The mere signature of Trimbakrao as a person

who presented the document and as a person in whose names two of the four stamp papers were purchased, does not lead to conclusion that he was

the only person in whose favour the said document was executed.

As regards the question as to whether both Ramchandra and Trimbakrao had equal share and who bore the burden of payment of consideration or

the proportion of consideration paid by each or whether only Trimbakrao exclusively paid the entire consideration, there is no evidence on record. The

appellate Court is right in concluding that insofar as the oral evidence is concerned, it is oath against oath and the word of one party against the other.

The documentary evidence is the aforesaid sale deed at Exh.31, which appreciated from any angle, gives no clue as regards the fact as to which of

the two brothers or only one of them paid the entire consideration. The other documentary evidence, is in the form of receipts towards payment of

Corporation Tax and non-agricultural assessment tax paid by the parties. These documents have been brought on record by both parties for different

points of time and, therefore, if at all, they indicate that both parties were jointly asserting their rights in the suit property and that authorities dealing

with them likewise proceeded on that basis. Even otherwise, such documents constituting revenue record would not be of any assistance to arrive at a

conclusion as regards the right, title or interest claimed by the either party in the suit property. In this context, the trial Court clearly erred in holding

that since the aforesaid registered sale deed at Exh.31 had the signature only of Trimbakrao, Ramchandra may have been either unable or unwilling to

contribute a share in the consideration amount paid, in respect of the suit property.

The Courts below have also recorded that even the respondents failed to place on record cogent material to support their contention that

Trimbakrao had exclusively and entirely paid consideration amount in respect of the suit property. Therefore, even going by the facts recorded by the

Courts below, as they are manifested by the documentary evidence on record, there is no evidence to show as to the extent of share or portion of

consideration borne by the brothers Ramchandra and Trimbakrao. This indicates that the presumption under Section 45 of the Act, as stated above, is

triggered in the facts of the present case and it has to be presumed that both Ramchandra and Trimbakrao had equal interest in the suit property. It

was for the respondents to rebut this presumption with cogent material on record to show that even if the name of Ramchandra was stated in the

registered sale deed at Exh.31, it was only Trimbakrao and his descendants (respondents) who had the exclusive right, title or interest in the suit

property. The judgment of the Kerala High court in the case of Vasanthakumary (supra) relied upon by the counsel appearing on behalf of the

respondents, in fact, lays down this very proposition that if it is proved by cogent evidence that only one party had paid consideration, even under

Section 45 of the Act, it could be demonstrated that only such party had interest in the suit property and that other party which had contributed nothing

towards consideration would not be entitled to claim any interest, despite its name being recorded in the registered document. In the present case, the

aforesaid burden has not been discharged by the respondents and therefore, the presumption under Section 45 of the Act applies in full force, leading

to the conclusion that the appellants are justified in claiming half share in the suit property. This being a pure question of law, which was sought to be

addressed only by the appellate Court and not even discussed by the trial Court, has been considered by this Court on the basis of evidence and

material on record.

As regards the question of limitation, the appellants have contended that the cause of action was triggered in the year 1995, when their

predecessor Ramchandra expired and they claimed half share in the property, while the respondents have contended that the appellants should have

rushed to the Court when house was constructed by Trimbakrao, their predecessor, in the year 1974 and when his name was reflected in the

Corporation records as the owner of the house. It is to be appreciated that Ramchandra and Trimbakrao were brothers and it is conceded even by the

respondents that relations between them were cordial throughout. The construction of a structure of only about 600 sq.ft. on the suit property was not

an event that would demonstrate that the rights of Ramchandra were being refuted by Trimbakrao. In any case, there is no evidence on record to

show that the aforesaid structure was constructed exclusively by Trimbakrao or the expenses were jointly borne by the two brothers or that

Ramchandra had exclusively paid the expenses for the same. Mere recording of the name of Trimbakrao in the Corporation record, would be of no

avail because the authorities had issued notices and recovered non-agricultural assessment tax even from Ramchandra and at best such documents

demonstrated that both parties were jointly in ownership and possession of the suit property. The appellants are, therefore, justified in claiming that the

cause of action was actually triggered when the respondents acted in a manner which signified that they were refuting the claim of half share in the

suit property made by them in the year 1995 upon demise of their predecessor Ramchandra. Therefore, the trial Court erred in holding that the suit

filed by the appellant was barred by limitation.

The documentary evidence on record, was obviously not properly appreciated by the Courts below in jumping to the conclusion that it was

Trimbakrao who had exclusively paid consideration when the aforesaid sale deed at Exh.31 was executed. It was also erroneously concluded on the

basis of the documents on record that Trimbakrao and through him the respondents were the exclusive owners of the suit property. The effect of

Section 45 of the said Act on the facts of the present case was also not appreciated in the correct perspective by the Courts below, thereby

demonstrating that the findings rendered in favour of the respondents were perverse. In this situation, this Court, exercising jurisdiction under Section

100 of the CPC, is empowered to interfere with concurrent findings. Accordingly, it is found that the Courts below erred in holding against the

appellants and that the suit filed by them deserves to be decreed.

Accordingly, the aforesaid substantial questions of law are answered in favour of the appellants and against the respondents. The instant appeal is

allowed, the judgments and orders passed by the two Courts below are set aside and the suit filed by the appellants is decreed in terms of the prayers

made by them. There shall be no order as to costs.