Gangubai Raghunath Ayare vs Gangaram Sakharam Dhuri (D) Thr. His LRs and Ors.

REPORTABLE 2025 INSC 355 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3183 OF 2009

GANGUBAI RAGHUNATH AYARE …APPELLANT

VERSUS

GANGARAM SAKHARAM DHURI (D) THR. LRs AND ORS. …RESPONDENTS

GANGARAM SAKHARAM DHURI (D) THR. LRs (R1 to R8) R1: ANANDI GANGARAM DHURI (D) THR. LRs (R2 to R8) R2: SUNANDA GANGARAM DHURI R3: VAISHALI VILAS MAJALKAR R4: KAVITA KASHIRAM UGAVE R5: VITHAL GANGARAM DHURI R6: MANGESH GANGARAM DHURI R7: BABAJI GANGARAM DHURI R8: GEETA SUBHASH BARASKAR R9: LAXMIBAI VISHNU SHELAR LADUBAI MAHADEV RANE (D) THR. LRs (R10 to R13) R10: HEMLATA ARJUN TAWDE R11: PRATIBHA SAWANT R12: SUPRIYA PAWAR R13: SUNANDA RANE R14: SHANTABAI MAHADEV AYARE (D) R15: PUSHPA PRABHAKAR GUDEKAR (LR of R14) Signature Not Verified

Digitally signed by SAPNA BISHT Date: 2025.03.18 16:59:26 IST R16: TAI SHANKAR PAWAR Reason:

JUDGMENT

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AHSANUDDIN AMANULLAH, J.

Heard learned counsel and senior counsel appearing for the

respective parties.

2. The present appeal is directed against the Final Judgment and

Order dated 20/21.02.20071 in First Appeal No.116 of 1988 (hereinafter

referred to as the ‘Impugned Judgment’) passed by a learned Single

Judge (as he then was) of the High Court of Judicature at Bombay,

reversing Judgment and Decree dated 18/19.09.1987 passed by the

City Civil Court, Bombay (hereinafter referred to as the ‘Trial Court’) in

Suit No.2060 of 1970.

3. At the outset, it is gainful to take note of the position of the

contesting parties before the respective Courts, as under:

Name Trial Court High Court This Court Gangubai Plaintiff Respondent Appellant Raghunath No.1 Ayare Gangaram Defendant No.2 Appellants No.1- Respondents Sakharam 8 No.1-8 Dhuri (Died - Represented by LRs2) Vishnu Defendant No.1 Respondent Respondent No.9 Shelar (Died during No.2 pendency of the suit - Represented by

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2007 SCC OnLine Bom 144 | (2007) 5 Mah LJ 136 | (2007) 5 Bom CR 306. 2 The abbreviation expands to Legal Representatives.

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his widow Laxmibai Vishnu Shelar) Ladubai Defendant No.3 Respondent Respondents Mahadev No.3 No.10-13 Rana [Died - Represented by LRs 3(A) to 3(D)] Shantabai Defendant No.4 Respondent Respondents Mahadev No.4 No.14 and 15 Ayare [Died - Represented by LR 4(a)] Tai Defendant No.5 Respondent Respondent Shankar No.5 No.16 Pawar

1 Defendant No.1 is the real brother of the Plaintiff and Defendants No.3-5.

2 Defendant No.2 is the purchaser as per the Sale Deed executed by Defendant No.1.

FACTUAL SCENARIO:

4. For the sake of convenience, the parties are referred to as per

their original status before the Trial Court.

5. The dispute in the suit pertains to property bearing C.T.S. No.1048

admeasuring 398.5 square yards altogether, with a building thereon by

the name ‘Sai Niwas’ situated at Bandra, Bombay – 50 (hereinafter

referred to as the ‘suit property’).

6. One Gangaram Thakoji Shelar (hereinafter referred to as the

‘deceased’) was the exclusive owner of the suit property. The deceased

passed away on 13.05.1967. At the time of his death, the deceased was 4

survived by his widow Sunderbai, his son Vishnu and four daughters

namely, the Plaintiff and the third to fifth defendants, who were his only

legal heirs and representatives.

7. The Plaintiff stated that the deceased was the absolute owner of

the suit property. It is stated that one of the rooms i.e., Room No.1 in the

suit property was let out to Raghunath Narayan Ayare, the Plaintiff’s

husband on a monthly rent of Rs.20/-. The Plaintiff, with her husband and

her family members, have been occupying Room No.1, as tenant(s)

thereof, during the lifetime of the deceased. It is stated that after the

death of the deceased, Vishnu, being the only male member in the family

and also the Plaintiff’s and the third to fifth defendants’ brother, started

managing the affairs of and looking after the suit property.

8. The Plaintiff contends that her brother, Vishnu, had, in the course

of management of the suit property, obtained her as well as her sisters’

signatures, on some blank papers, including for the purpose of effecting

transfer thereof in the public record in the names of all the legal heirs.

9. According to the Plaintiff, her husband received Letter dated

10.01.1969 sent to him by the second defendant alleging that the

Plaintiff was in possession of Room No.1 in the suit property as a

licensee of Vishnu. According to the Plaintiff, she learnt, for the first time,

from the said Letter that Vishnu had sold ½ portion of the suit property to 5

the second defendant based on the Relinquishment Deed dated

11.12.1967, purportedly executed by the Plaintiff and the third to fifth

defendants in favour of Vishnu. The plaintiff's husband replied to the said

Letter by pointing out that he was a tenant in respect of Room No.1, and

not a Licensee. It was contended in the reply that the Plaintiff, being one

of the co-owners of the suit property, the transaction in favour of the

second defendant by Vishnu was not binding on her.

10. The Plaintiff filed Suit No.2060 of 1970 for administration of the

estate of the deceased seeking the following reliefs (sic):

‘a) estate and life of the deceased be ascertained and thereafter the same be administered by and under the directions of this Hon'ble Court;

b that the share of the plaintiff and the Original defendant Nos. 1 and 3 to 5 in the state of the said deceased be ascertained and declared.

c that it be declared that the said sale deed 10 th January 1969 executed by Original 1st defendant in favour of the 2 nd defendant is null and void and not binding on the estate of the said deceased and/or plaintiff's share therein and that the 2 nd defendant be decreed and ordered to deliver possession of ½ portion of the said property comprised in the said sale deed of the estate of the said deceased.

d That for the purpose aforesaid enquiries be made, orders be passed and action be taken as may appear necessary of this Hon'ble Court in that behalf;

e That the original and present 1st defend and their heirs be decreed and ordered to disclose of the estate of the said deceased and to account for his dealings with the said estate. f That pending the hearing and final disposal of the suit, Court Receiver, High Court, Bombay, be a pointed as Receiver of the said property viz. Sai Niwas, Bandra, Bombay 50, with all powers under order 40 and Rule 1 of the Civil Procedure Code.

6 g This pending the hearing and final disposal of the suit present 1st defendant and 2nd defendant be restrained by an order of injunction of this Hon'ble Court in any manner to deal with, dispose of and/or alienating, transferring, encumbering the said property or any portion thereof.

h That an interim orders in terms of prayers above. i That costs of and incidental to the suit be provided for. j That for such further and other reliefs as the nature and circumstances of the case may require be granted.’

11. The Trial Court framed issues and found as below:

S. No. Issues Finding

1 Is the suit bad for misjoinder of [Considered

parties and causes of action? unnecessary]

2 Does the Plaintiff prove that the Yes

property sold under the Sale Deed

dated 10.01.1969 by the original 1 st

defendant to the 2nd defendant form

part of the estate of the deceased

Gangaram Thakoji Shelar?

3 Does the Plaintiff prove that the Sale

Deed dated 10.01.1969 is not binding

upon the Plaintiff?

4 Does the Plaintiff prove that the Sale

Deed dated 10.01.1969 is null and

void and illegal?

5 Costs? As per order 7

6 What Order?

12. The Trial Court held that the suit for administration of property is

not maintainable as the children of Vishnu, who died during the

pendency of the suit, were not brought on record, and for ascertainment

and administration of the estate and determination of the share and

income etc., no issues were raised and no data was available. The Trial

Court held that the Relinquishment Deed dated 11.12.1967 was not

proved in accordance with law and the transfer in favour of the second

defendant was null and void and was not binding on the Plaintiff. The

suit was decreed declaring that the Sale Deed dated 10.01.1969

executed by Vishnu in favour of the second defendant was null and void

and directing the second defendant to handover possession of ½ portion

of the suit property, which was subject-matter of the Sale Deed in

question. Further, the Trial Court also granted liberty to the Plaintiff to

claim the other reliefs prayed for in the suit separately.

13. The Judgment/Decree of the Trial Court was assailed by the

second defendant before the High Court in a First Appeal. The High

Court allowed the appeal and held that the date on which the sale deed

was executed by Vishnu, he had 1/6 th undivided share in the property of

the deceased. Though he had professed to sell ½ of the entire property,

the Sale Deed would not become void or illegal only on that ground. The 8

High Court held that the purchaser under the Sale Deed would certainly

get what Vishnu was entitled to transfer, namely, his undivided share in

the suit property. It was held that the Sale Deed dated 10.01.1969 would

be valid to the extent of the undivided 1/5 th share of Vishnu and the

finding of the Trial Court, that the Sale Deed was null and void, was set

aside.

14. The High Court also opined that the Trial Court had passed a

decree for possession against the second defendant which could not be

done as the third to fifth defendants had not filed any suit nor paid any

Court Fees on their claim regards possession of their share(s). As the

share of the Plaintiff was only to the extent of 1/5 th, ½ of the suit property

could not be given to the Plaintiff.

15. The High Court went on to hold that once the Trial Court had

found that the suit for administration of the deceased’s estate was not

maintainable, it could not have granted prayer (c) supra, claimed in the

suit, which was in the nature of a consequential relief.

SUBMISSIONS ON BEHALF OF THE PLAINTIFF:

16. Learned counsel for the Plaintiff submitted that Vishnu could not

have sold in favour of the second defendant more than his share in the

suit property. It was contended that, at best, he could have transferred 9

1/6th of the share, as on the date of the Sale Deed and 1/5th share after

the demise of his mother.

17. It is submitted that as per Section 443 of the Transfer of Property

Act, 1882, if at all the remedy for partition was to be availed, it was to be

by the second defendant to demarcate his separate share, as acquired

from Vishnu, and that the High Court had erred in holding otherwise. The

Plaintiff, having a share in the property, correctly filed a suit for

declaration and possession for recovery of the area in possession of the

second defendant (Respondents No.1-8 herein), in excess of the

entitlement.

18. It was urged that concurrent findings demonstrate that the second

defendant/vendee was not a bonafide purchaser without notice and he,

or his LRs, cannot be granted the benefit of pendency of the

proceedings, which were instituted in the year 1970 i.e., immediately

after the Sale Deed dated 10.01.1969 and, have been contested since

then.

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‘44. Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.’ 10

19. Furthermore, it was submitted that initially Vishnu was made

party to the suit and after his death, his widow was impleaded, though

his other legal heirs were not impleaded. However, that would not in any

manner affect the suit since, as on the date when the suit was instituted,

Vishnu had transferred his entire share in the suit property in favour of

the second defendant. Hence, it was urged that the estate of Vishnu

having passed onto the second defendant was represented in its entirety

through the said party, who in any event, was the main contesting party.

Our interference with the Impugned Judgment was, hence, sought by

the Plaintiff.

SUBMISSIONS BY THE SECOND DEFENDANT’S LRS:

20. It was submitted, by learned senior counsel, that although Vishnu,

while executing the Sale Deed had claimed to be the exclusive owner of

the entire suit property, it is well-settled that an undivided share in a

Hindu Undivided Family property can be transferred for valuable

consideration by way of sale.

21. It was advanced that the Plaintiff cannot seek the relief to obtain

a separate share in the property in question, in a suit for administration

of an estate, and such relief can be granted only in a properly-instituted

partition suit.

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22. Lastly, it was contended that the second defendant’s LRs were

ready and willing to pay whatever reasonable amount that this Court

may direct, or in the alternative, pay 6% simple interest from 10.01.1969

till date on the original consideration or a lump-sum amount of Rupees

15,00,000/- (Rupees Fifteen Lakhs), which is a fair offer, if one considers

that the equities, as on date, are in their favour, as the Plaintiff has failed

before the High Court.

ANALYSIS, REASONING AND CONCLUSION:

23. We are of the firm opinion that the High Court rightly reversed the

finding of the Trial Court which set aside the Sale Deed dated

10.01.1969 in favour of the second defendant by Vishnu in toto,

inasmuch as Vishnu had 1/5 th undivided share in the suit property,

belonging to the deceased. The High Court has also rightly set aside the

decree of possession against the second defendant, as the said relief

was incapable of being granted by reason of the fact that the third to fifth

defendants had not filed any suit in this behalf, whilst the Plaintiff herself

was entitled only to a 1/5 th share in the suit property. The suit, as filed by

the Plaintiff, sought administration of the deceased’s estate, with the

ancillary prayer being to ascertain the share of the Plaintiff and the

original defendants no.1 and 3 to 5 in the suit property. 12

24. We accord our imprimatur to the conclusion drawn by the High

Court that when the principal prayer for administration of the estate was

rejected by the Trial Court, that too as non-maintainable, any other

prayer which indirectly seeks partition cannot be granted, until the proper

parties are impleaded in the suit. As noted hereinbefore, the third to fifth

defendants, who are the Plaintiff’s sisters, have not filed any suit seeking

their share in the suit property. Specifically, on the facts of this case, on

the passing away of Vishnu, during the pendency of the suit, only his

wife was brought on record, whereas his sons and daughters were not

impleaded into the suit by the Plaintiff. In the case of Chief Conservator

of Forests, Government of Andhra Pradesh v Collector, (2003) 3

SCC 472, the Court explained, through Hon. Quadri, J.:

‘12. It needs to be noted here that a legal entity — a natural person or an artificial person — can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non- joinder of a party suing or being sued. In the case of misdescription of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a misdescription of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC4 4 ‘9. Misjoinder and non-joinder.—No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

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mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.’ (emphasis supplied)

25. In the decision rendered in Bachhaj Nahar v Nilima Mandal,

(2008) 17 SCC 491, the Court, speaking through Hon’ble Raveendran,

J., held:

‘23.5 It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.’ (emphasis supplied)

Provided that nothing in this rule shall apply to non-joinder of a necessary party.’ 5 Para 23 of Bachhaj Nahar (supra) was corrected vide Official Corrigendum No.F.3/Ed.B.J./89/2009 dated 17.07.2009.

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26. In view of the reasons stated above, this Court directs that the

Plaintiff cannot be disturbed with her possession until the suit property is

partitioned in accordance with law. The second defendant shall only

have 1/5th share in the suit property, which fell to Vishnu on the demise

of the deceased, as the Sale Deed dated 10.01.1969 in favour of the

second defendant by Vishnu is held valid only to such extent.

27. Considering the passage of time of half a century and the current

scenario where parties are represented through their legal heirs, the

Trial Court concerned shall positively endeavour to decide the partition

suit, if so filed, within three months from the date of filing thereof, in

terms of the liberty granted hereinabove.

28. This Court, while granting leave on 01.05.2009, ordered that ‘Until

further orders, it is directed that subject matter of dispute shall not be

alienated by any of the parties.’ As the said Order has continued for over

a decade and a half, in the interest of justice, there shall be status quo in

the said terms, till the time the suit property is partitioned as per law.

29. The Civil Appeal is disposed of, with the aforesaid observations

and directions. Costs made easy.

30. I.A. No.14513/2022 is an application to ‘Condone the delay of

916 days & Setting aside abatement in filing the Application to bring on 15

Record the LRs of Deceased Respondent No. 1’6 (sic). I.A.

No.72967/2021 is an application to ‘Allow the present application to

bring on record the Legal Representatives of the deceased Respondent

No.1 who are already on record in the present appeal as Respondents

No.2-8 as mentioned in paragraph 3 of the present application’7 (sic).

Considering that the LRs to be brought on record are already arrayed as

parties to this appeal, both the I.A.s are allowed, thereby condoning the

delay, setting aside the abatement, and bringing the said LRs on record

on behalf of the first respondent herein, who passed away on

28.09.2018, as per the Death Certificate dated 01.02.2021 issued by the

Municipal Corporation of Greater Mumbai.

……………….………………., J.

[SUDHANSHU DHULIA]

……………….………………., J.

[AHSANUDDIN AMANULLAH] NEW DELHI MARCH 17, 2025

6 Party description is as per this appeal.

7 Ibid.