PRABHAKAR GONES PRABHU NAVELKAR (DEAD) THROUGH LRS & ORS. versus SARADCHANDRA SURIA PRABHU NAVELKAR (DEAD) THROUGH LRS. & ORS.

[2019] 14 S.C.R. 859

PRABHAKAR GONES PRABHU NAVELKAR (DEAD)THROUGH LRS & ORS.

SARADCHANDRA SURIA PRABHU NAVELKAR (DEAD)THROUGH LRS. & ORS.

(Civil Appeal Nos.10501-10502 of 2014)

AUGUST 21, 2019

[NAVIN SINHA AND K.M. JOSEPH, JJ.]

Hindu Law: Property rights – Dispute related to the twoproperties ‘M’ and ‘B’ situated in the village of Bainguinim in Goa– Suriaji and Gones were brothers – The properties in disputeoriginally belonged to their grandfather – Plaintiffs-appellants areheirs and successors in interest of Gones – By the Gift Deed of1913, the grandfather of Suriaji and Gones had gifted one-halfright in property ‘M’ to both Suriaji and Gones – The other halfshare in property ‘M’ and the whole of property ‘B’ vested with theaunt (father’s sister) of Suriaji and Gones – It was in 1915 that theaunt executed sale deed conveying the rights to Suriaji and to theother branch, viz., Vitol – deed of dissolution of accounts,payments and obligation was executed on 21.01.1919 in whichSuriaji and Gones appeared as parties on the one side represent-ing the Venctexa branch and other branch of Vitol came to be rep-resented by his wife along with her four sons – In deed dated21.01.1919, Suriaji admitted that the purchase of one-fourth in theproperty of ‘M’ and half of property ‘B’ by sale deed dated17.11.1915 was for self and for his brother Gones who paid halfthe price – Suriaji and his wife Shantibai undertook to effect thetransfer of registration in the name of Gones, half of the propertypurchased in his name – Gones was on the occasion of transfer tomake reimbursement of the half of money paid by Suriaji – In 1925,Suriaji and his wife Shantibai gifted in favour of Gones one-fourthof property ‘M’ acquired by Suriaji from his grandfather under thegift deed dated 09.03.1913 – Gones, thus, became entitled toone-eighth of the property ‘M’ and one-fourth of the property ‘B’as 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

Aauction in execution proceedings against Gones – Despite thedissolution of the Hindu undivided family, the families of Gonesand his brother Suriaji and the other branch always lived together– In 1949, Gones proceeded to Daman on account of hisemployment – He received his share from the suit property until hisdeath which took place in December 1978 – After his death,Bappellants were not given their share and when they found thattheir names were not included in the Survey records, they madeapplication to the survey authorities and came to know for the firsttime about the partition deed dated 13.03.1969 and found that theywere excluded – Appellants filed suit for declaration that they wereCentitled to one-eighth share in the property ‘M’ and one-fourth sharein the property ‘B’; that the Deed of Partition dated 13.03.1969executed by the concerned defendants was null and void and notbinding on them – Trial Court decreed the suit – However, FirstAppellate Court set aside the order of trial court – High Court byimpugned order dismissed the appeal, holding that whatever rightDor interest may have survived with Gones, was lost, as Gones didnot at any point of time challenge the allotment of property toShantibai which allotment in the Inventory Proceedings andrecording/ registration of rights in her favour has attained finalityfor want of challenge – On appeal, held: By virtue of sale deed ofE1915 and settlement deed of 1919, it cannot be concluded that Gonesacquired title as such in the plaint schedule property – Not only didGones not object during or immediately after inventoryproceedings but though he lived till the year 1978, he never raisedany claim in regard to the plaint schedule property – Equally asfound by the High Court and the first appellate Court, there wasFno material to show that Gones was in receipt of income fromproperty which was specific case of the appellants – Property wasshown in the name of Shantibai – Still further in 1969, Shantibaiexecuted gift deed of the plaint scheduled property –Immediately thereafter partition deeds were executed betweenGShantibai and children – Thus, Shantibai treated the property asbelonging to her – Still later land acquisition proceedings were heldin respect of part of the plaint schedule property – Thecompensation 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 nodefence pleaded as to estoppel or abandonment – Thus,interference with the impugned order of High Court is notcalled for.

Dismissing the appeals, the Court

HELD: 1. Under the sale deed dated 17.1.1915, 1/4[th] shareof property ‘B’ and 1/2 right in property ‘M’ came to beconveyed to Suriaji, the other part being conveyed to the Vitolbranch. The document dated 21.1.2019 is described as deed ofdeclaration, fixation of balance of accounts, payment andobligation. The deed appears to provide for distribution of jointfamily and for settlement of accounts of the family which lastedonly 3 years. It is inter alia stated therein that parties of the firstpart Suriaji stated that the purchase made by him by the saledeed dated 17.11.1915 was made for himself and for Gones, hisbrother and that he has paid for half of the price of the saidpurchase, therefore he undertakes alongwith Shantibai totransfer in the name of Gones the half of the properties purchasedin his name by the aforesaid deed at any time he may desire, tohave it transferred and on the occasion of this transfer, the saidGones will have to indemnify him with half of the amount whichhas now been paid to the party of the second part Laxmi from themoney of the dowry of his wife. There is no denial of theaverment of Gones having paid the consideration. It is statedimmediately after stating that he has paid for half of the price forthe said purchase, therefore, he has undertaken alongwith thesaid Shantibai to transfer to Gones, the half of the propertiespurchased in his name etc. sum of Rs.1000/- was aconsiderable sum of money in 1919. No doubt it could have beenmade prior to demanding the transfer. The clause cannot beunderstood to mean that either it need not be paid or thepayment could be deferred. There is no case that Gones offeredRs.1000/- to Suriaji during his lifetime and the transfer ofmutation or of right was refused. PW 1 goes to the extent ofdeposing that the ‘obligation to reimburse Suriaji did not devolveupon the heirs of Gones’. Thus the suit is filed with neither Gones

CDEFG

Anor even the appellants paying or even offering to pay the summentioned 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.

BHardevinder Singh v. Paramjit Singh and Others(2013) 9 SCC 261 : [2013] 1 SCR 903; JustinianoAugusto De Piedade Barreto v. Antonio Vicenta DaFonseca and Others (1979) 3 SCC 47 : [1979] 3 SCR494 – referred to.

C2. There is another perspective. In the plaint, at para ‘9’,what is stated is that in the year 1915, Piru and her husband soldthe property by deed of sale dated 17.11.1915 in equal parts toSuriaji and to Laxmi. Thereafter, in para ‘11’, Suriaji in the deeddated 21.01.1919 is stated to have expressly admitted that theDpurchase of 1/4[th] of “M” and 1/2 of “B” made under sale deeddated 17.11.1915, was for himself and his younger brother andwho paid its price at the time of purchase and therefore, it wasundertaken to transfer the registration, upon Suriaji beingreimbursed by Gones in the payment of 1/2. It is admitted thatthe sale deed is in favour of Suriaji. It is nearly 4 years thereafterEin the document of 1919 that the admission by Suriaji about 1/2price, being paid and about the undertaking is setup. There is nocase for the appellants in the plaint that Suriaji was benamidar ora name lender. The principle of resulting trust underlies Section82 of the Trust Act. There can be no doubt that Trust Act wasFinapplicable to Goa in 1915 and in 1919 as Goa was not part ofBritish India. Certain tests are propounded in determiningwhether transaction is benami which have to be fulfilled. Nodoubt, the most important test is who provided consideration.There is no pleading in the plaint about the transaction being abenami transaction. If benami was recognized in Goa underGPortuguese rule then it could be said that Gones would becomethe owner provided the transaction is treated as benamitransaction. But there is no case of benami set up. Thus, apurchase which is made benami, leads to resulting trust. Atleast 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 inSection 82 thereof, lay embedded the principle of benami orresulting trust, how can appellant claim that Gones becameentitled as owner under the document of 1915 read with thedocument of 1919. If it was reduced to contract executory innature, to perform an obligation upon which alone the title wouldvest, it was subject to the condition precedent of payment ofRs. 1000/- by Gones. Even according to the appellants obligationto pay Rs.1000/-, did not pass to them. This conduct of theappellant’s, in seeking to derive rights under the document of1919, even though, their predecessor in interest has failed eitherdeliberately or otherwise to perform his obligation during hisentire life time cannot be approved of. Section 82 of the TrustAct recognized that when person transferred property to anotherfor consideration, which is paid by third party then the saidperson would be the beneficial owner. The transferee in name orBenamidar would hold the property in trust for the person whohas actually provided consideration. There is, no case based onbenami ever set up by the appellant. Therefore, by sale deed of1915 and the settlement deed of 1919 it may not be safe toconclude that Gones acquired title as such in the plaint scheduleproperty. In the light of this, no finding is rendered as regardsadverse 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 bySuriaji in the year 1925. Under the gift deed of 1925, Suriaji hasgifted Gones his ¼ right in property ‘M’ which he acquired underthe gift deed executed by his grandfather in the year 1913. Suriajipassed away in the year 1925 after the gift. It is thereafter thatinventory proceedings took place in regard to the properties ofSuriaji under the Portuguese Civil Code. Gones stood as vogalapparently on behalf of the minor children of Suriaji under thePortugues Civil Code. The documentary evidence is found by

ABC

[2019] 14 S.C.R.

Athe first appellate Court to establish that ¼ of property ‘M’ and½ of property ‘B’ stood allotted in the name of Shantibai, thewidow of the Suriaji. [Para 69] [912-F-G; 913-A-C]

4. When vested right is established such as ownership itcan be divested only by sale or gift. It will not be possible to holdBthat mere laches or standing by itself may be sufficient toextinguish title. Merely saying that person has abandoned hisproperty does not lead to extinguishing of vested right such asright to ownership in property. Certainly, an abandonment whichamounts to an estoppel would result in stopping party or hisrepresentative from seeking legal redress or setting up the claimCin 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 areimbursement of Rs.1000/- as it turns out being half the amountpaid by his brother Suriaji from out of the proceeds of his wife’sdowry to Laxmi who represented the other branch. SomethingDremained to be done on the part of Gones and thereupon it wasfor Suriaji to transfer. In that sense it could be described as anexecutory 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] 3ESuppl. SCR 214 ; Damodar Ramnath Alve v. GokuldasRamnath Alve and Others MANU/MH/0535/1996;Zacarias Durate Domingos Pereira v. Camilo InacioPereira 1990 (1) Goa LT 174 ;Sha Mulchand andCo.Ltd. v. Jawahar Mills Ltd, Salem AIR 1953 SC 98 :[1953] SCR 351 ;Dr. Karan Singh v. State of J & KFand Another (2004) 5 SCC 698 : [2004] 1 Suppl. SCR43 – referred to.

5. In regard to the inventory proceedings, no doubt, it istrue that the inventory proceedings per se are not produced. Itmay be true that burden of adducing evidence relating to inventoryGproceeding was on the contesting defendants but it is equallytrue that they have produced final inscription which manifest theculmination of the inventory proceedings and shows that plaintschedule property stood allotted to Shantibai. Under sale deed

dated 17.11.1915 Suriaji was transferee of 1/4 share of property‘M’ and 1/2 in property ‘B’. When Suriaji died, the inventoryproceedings was to be held only in respect of the properties leftbehind by him. Gones was major, by the time inventoryproceedings commenced and culminated. He was aware of hisrights under the sale deed of 1915 as declared in the dissolutiondeed of 1919. The inventory proceedings culminated with ¼ rightin ‘M’ and 1/2 in ‘B’ being allotted to Shantibai. As to how thesaid property came to be so allotted despite the settlement deedof 1919 which according to the appellants carved out rights infavour of Gones and towards ½ of the properties ‘B’ to theappellants is matter which this Court is unable to embark uponbut it is clear that Shantibai stood allotted the property in tunewith the sale deed. What is important is nothing is produced bythe appellants to show that Gones protested in any manner eitherduring or at the end of proceedings. Nothing is produced to showthat allotment to Shantibai was ever challenged in any manner byGones. In other words, Gones by his conduct must be treated ashaving held that he has accepted that the property which wasallotted 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 allottedto Shantibai. It would not amount to fraud. There is no case offraud as such set up by the appellants. There is definite case forthe respondents that there is no concept of trust in the Portugueselaw and that there is no distinction between legal and equitableestate. 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 duringor immediately after inventory proceedings but though he livedtill the year 1978 which is nearly 41 years after 1937 Gones is notshown to have ever raised any claim in regard to the plaint scheduleproperty while he was alive. There is no material to show thatGones was in receipt of income from property which is specificcase of the appellants. Thus, Gones was not in receipt of anyincome. Property was shown in the name of Shantibai. Still furtherin 1969 Shantibai executes gift deed of the plaint scheduled

Aproperly. Immediately thereafter partition deeds are executedbetween Shantibai and children. Thus, Shantibai treated theproperty as belonging to her and she has accordingly executedthe Gift deed and subsequently partition deed entered into onthe said basis. Still later land acquisition proceedings were heldin respect of part of the plaint schedule property. TheBcompensation determined was paid on the basis that Gones didnot have any right. When such is the position, on the face of itabandonment may not be inappropriate in the peculiar facts ofthis case. If the legal requirement is it must further amount toestoppel, one of the conditions to be fulfilled is acting on theCrepresentation, the representee must act to his detriment. Thereappears to be representation by conduct of Gones, that heacknowledged the right of Shantibai. It may be difficult to establishthat Shantibai acted to her detriment. Further there is no defencepleaded as to estoppel or abandonment. [Paras 87, 88][923-G-H; 924-D-F]DTaherakhatoon (D) by LRs v. Salambin Mohammad(1999) 2 SCC 635 : [1999] 1 SCR 901 – relied on.Mohammad Ali (Dead) by LRs. v. Jagadish Kalita andOthers (2004) 1 SCC 271 : [2003] 4 Suppl. SCRE325 ;Jai Singh and Others v. Gurmej Singh (2009) 15SCC 747 : [2009] 1SCR 413;P. John Chandy and Co.(P) Ltd. v. John P. Thomas (2002) 5 SCC 90 : [2002] 3SCR 549 ;L. N. Aswathama and Another v. P. Prakash(2009) 13 SCC 229 : [2009] 10 SCR 615 ;KuldipMahaton and Others v. Bhulan Mahato (Dead) by LRs.Fand Others (1995) 2 SCC 43 : [1994] 6 Suppl. SCR220 ; P.T. Munichikkanna Reddy and Others v. Revammaand Others (2007) 6 SCC 59 : [2007] 5 SCR 491;State of U.P. Another v. Universal Exporters and An-other (1997) 7 SCC 531 : [1997] 4 Suppl. SCR 49;GPunit Rai v. Dinesh Chaudhary(2003) 8 SCC 204:[2003] 2 Suppl. SCR 743; Sankalchan JaichandbhaiPatel and Others v. Vithalbhai Jaichandbhai Patel andOthers (1996) 6 SCC 433 : [1996] 6 Suppl. SCR 333;Mohinder Singh and Another v. Kashmira Singh

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRASURIA PRABHU NAVELKAR (D) [

AIR 1985 P&H 215; Ashok Kumar and Others v.Gangadhar and Another AIR 2007 AP 145 ; Banarsiand Others v. Ram Phal (2003) 9 SCC 606 : [2003] 2SCR 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 AnaD’Cruz Rodrigues Fernandes (1999) SCC OnlineBombay 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 PrasadGovekar and Others v. Sudesh Govekar (Dead) byLegal Representatives and Others (2017) 11 SCC 345 :[2016] 12 SCR 174 ;Eurekha Builders and Others v.Gulabchand, S/o Veljee Dand Since Deceased byLegal Representatives and Others (2018) 8 SCC 67 :[2018] 4 SCR 779 ;Khatri Hotels Private Limited andAnother v. Union of India and Another (2011) 9 SCC126 : [2011] 15 SCR 299 – referred to.

Case Law Reference

[2019] 14 S.C.R.

From the Judgment and Order dated 20.11.2009 of the High Courtof Bombay at Goa in Second Appeal Nos. 16 and 17 of 2004

J. P. Cama, Sr. Adv., Sumit Goel, Sarthak Gaur, Raghav Bansal,Ms. Suruchi Kumar, M/s. Parekh & Co., Advs. for the Appellants.

Mukul Rohatgi, Dhruv Mehta, Sr. Advs., Yashraj Singh Deora,Shyam Agarwal, Anmol Mehta, Ninad Laud, Ivo D’costa, M/s. Mitter& Mitter Co., Sahil Tagotra, Advs. for the Respondents.

The Judgment of the Court was delivered by

K.M. JOSEPH, J.

1. Civil appeals by special leave are directed against the judgmentof the High Court of Bombay at Goa in Second Appeals Nos. 16 of 2004

and 17 of 2004. The appellants are the plaintiffs. By the impugnedjudgment, the High Court has dismissed the appeals. The trial Court infact had partly decreed the suit. However, the First Appellate Courtreversed the judgment of the trial Court and dismissed the suit. By theimpugned judgment, the High Court affirmed the decision of the FirstAppellate Court.

2. We may refer to following genealogy chart, which willfacilitate better understanding of the issues involved:

ANNEXURE P-1NAVELKAR FAMILYCVINTECTEXA POROBO NALVELKARVINTOLA POROBO NAVELKAR (WIFE: LAXIMI VINTOLA POROBO(WIFE: PADMAVATI PORBINI)NAVELKAR)(SONS)D(SON)(DAUGHTER)BALAKRISHNA PORSHOTTAMA SRNIVASNAGENDRARAMACHANDRAPIRU ALIASSOROSPATIPOROBO NALVELKARPOININGROUP/BRANCHES OF VITOLGROUP P/BRANCH OF VENKTEXAEDF.7TODF.27(SON)(SON)GONES POROBOSURIAJI POROBONAVELKARNAVELKAR(WIFE :(WIFE : SHANTIBAI)PREMAWATI)FP1P3D28PRABHAKARPREMANANDSMT. JAISHREEG(HUSBAND : VISHNU KAMAT) 29D5VENCTEXA

A3. As can be noticed, the litigation concerns the properties of theNavelkar family. Parties are referred to with reference to the position inthe trial Court. Venctexa Suria Porobo Navelkar was married to onePadmavati. They had one son by name Ramchandra Porobo and adaughter by name Piru. Ramchandra in turn had two sons, namely, Suriajiand Gones. The plaintiffs no. 1 and 3 are sons of Gones. The 2[nd] plaintiffBis the wife of the first plaintiff and the 4[th] plaintiff is the wife of the3[rd] plaintiff. Defendants no. 1 and 3 are the sons of Suriaji. Defendantno. 2 is the wife of 1[st] defendant. Defendant no. 4 is the wife of3[rd] defendant. Defendant no. 5 is the sister of the defendants no. 1 and3. Defendant nos. 7 to 27 are drawn from the other branch of theCNavelkar family. As noticed from the genealogy chart VenctexaNavelkar’s brother was Vitol Porobo. The wife of Vitol Porobo wasLaxmi. They had four sons. Defendants no. 7 to 27 represent the branchof late Vitol. Defendant no. 28 is the sister of plaintiff nos. 1 and 3and29[th] defendant is her husband.D4. The case set up by appellants in short is as follows. There existtwo properties known as “Mallons” (hereinafter referred to as “M”)and “Bainguinim” (hereinafter referred to as “B”) situated in the villageof Bainguinim in Goa. The properties lie adjoining to each other. M isadmeasuring 90 hectares (approximately).B admeasures 31 hectares(approximately). Together they constitute the plaint schedule properties.EBy deed of gift, dated 09.03.1913, Venctexa gifted half of the propertyof M to his grandsons, namely, Suriaji and Gones. In the inventoryproceedings, held upon the demise of Padmavati, wife of Venctexa, theremaining half of the property of M and the entire property of wasallotted to their daughter named Piru. In the year 1915, Piru along withFher husband, by deed of sale dated 17.11.1915, sold in equal parts theremaining half in the property M and the entire property to Suriaji andLaxmi. This meant 1/4[th] right in property ‘M’ and 1/2 right of ‘B’ wassold to Suriaji. Later on deed styled as deed of dissolution ofaccounts, payments and obligation came to be executed on 21.01.1919.In the said deed Suriaji and Gones appeared as parties on the one sideGrepresenting the Venctexa branch and other branch of Vitol came to berepresented by his wife Laxmi along with her four sons. In the said deeddated 21.01.1919 Suriaji admitted that the purchase of 1/4[th] in theproperty of M and half of property by the sale deed dated 17.11.1915was for self and for his brother Gones who paid half the price.HTherefore, Suriaji and his wife Shantibai undertook to effect the transferof registration in the name of Gones, half of the property purchased inhis name at all time if so desired. Gones was on the occasion of transferto make reimbursement of the half of money paid by Suriaji to Laxmitowards the dowry account to his wife. In the year 1925 Suriaji and hiswife Santibai gifted in favour of Gones the 1/4[th] of property M acquiredby Suriaji from his grandfather under the gift deed dated 09.03.1913.Therefore, Gones became entitled to 1/8[th] of the property M and 1/4[th] ofthe property as result of purchase made under deed of sale dated17.11.1915. The further case of the plaintiffs is that half share of Gonesin property M came to be sold in public auction in execution proceedingsagainst Gones. Despite the dissolution of the Hindu undivided family ofNavelkars, the two branches continued to live in their own ancestralhouse under the same roof. Annual income from the property in or about1940 hardly exceeded Rs. 1000/-. The families of Gones and his brotherSuriaji always lived continuously together. In 1949 Gones proceeded toDaman on account of his employment. He used to get his share fromthe suit property until his death which took place in December 1978.After death of Gones, plaintiffs were not given their share. Plaintiffsfound that their names were not included in the Survey records. Theymade an application to the survey authorities. They came to knowsomewhere in 1983 that one or two junior members of the Navelkar’sfamily are making preparations to dispose of some portion of the suitproperty. There is reference to proclamation of sale by the AssistantRegistrar informing bidders in respect of portion of suit properties. Theycame to know for the first time about the partition deed dated 13.03.1969and found that the plaintiffs and other co-owners are excluded.Accordingly, they filed suit for following relief:

“(a) For decree to declare that the plaintiffs together with thedefendant Nos. 28 and 29 are entitled to 1/8[th] share in theproperty Mollans and 1/4[th] share in the property Bainguinim. Theshares of the defendant Nos. 1 to 6 in the said two propertiesbeing 3/8[th] and 1/4[th] respectively and the share of the remainingdefendants of the Branch of Vitol Porobo being ½ each in the suitproperties.

(b) For decree to declare that the Deed of Partition dated13.03.1969 executed by the concerned defendants is null and voidand not binding on the plaintiffs and for cancellation of the saiddeed;

ABC

A(c) For decree against the defendant Nos. 1, 3 and 5 jointly andseverally, to pay to the plaintiffs their share of income inproportion to their share of income in proportion to theiraforementioned right in the suit properties since 1979, the sharewhich the said defendants have no right to retain with them.

B(d) For decree to partition the suit properties to separate theplaintiffs’ rights and shares in the proportion stated specificallyherein above.

(e) For decree to rectify the survey records to include theirnames together with the names of defendant Nos. 28 and 29 byCdirecting resurvey in relation to the suit properties.

(f) For decree of permanent injunction to restrain the defendantsin general and the defendant Nos. 1 to 6 and the defendant Nos.30 and 31 in particular from negotiating deal of any type in respectof the suit properties and/or portion thereof and/or restrain themDfrom disposing off the same by or in any manner whatsoever.”

5. The said suit was resisted. The defendants (as noted by thetrial Court) can be classified in four groups, one group consisted ofdefendants no. 1, 2, 30 and 31, second group consisted of defendants no.3 to 6, third group consisted of defendants no. 7 to 27 and fourth groupconsisted of defendants no. 28 and 29.E

6. The contesting defendants denied the case of the plaintiffs thatthey have any right in the property.

7. In the year 1919, it was pointed out that the undivided jointfamily of the Navelkar’s came to be dissolved. As far as the condition ofFsettlement deed dated 21.01.1919, it is contended that the payment ofRs. 1000/- by Gones to Suriaji was condition precedent to effectingtransfer of undivided shares in the two properties to Gones. The periodof payment could not be unlimited. gift was made by Suriaji and hiswife. The gift deed came to be executed in due performance of theacknowledgment. There is reference to inventory proceedings takingGplace on 07.05.1925 after the death of Suriaji and by order dated16.12.1925, 1/4[th] of the property of M and ½ of the property of wasconfirmed and allotted to the widow of Suriaji, Smt. Shantibai. Gonesintervened as “Vogal”. Thus, in 1925 in relation to suit properties, 1/4[th]of M and ½ of belonged to Shantibai, 1/4[th] of M and ½ of belonged

to Laxmi and ½ of M only belonged to Gones. Property belonging toGones came to be sold in 1937. In the said execution sale 1/4[th] of thesaid half was purchased by defendants no. 1,3 and 5 and the remaining1/4[th] was purchased by the sons of Laxmi and deceased father ofdefendants no. 7, 20, 23 and 25 respectively. Thus, Gones had no right inthe properties and M.

8. After framing appropriate issues, the trial Court partly decreedthe suit and preliminary decree of partition was ordered to be directedto drawn up. The actual decretal portion reads as follows:

“The suit is partly decreed, whereby it is held and declared thatthe plaintiffs together with defendants No. 28 and 29 are entitledto 1/8[th] share in the property Mollans and 1/4[th] from the propertyBainguinim; and that the defendants 1 to 6 are holders of 3/8[th]and 1/4[th] share respectively and the share of the remainingdefendants representing the branch of Vitol Porobo is one halfeach in the properties Mollans and Bainguinim. Consequently theDeed of partition dated 31.3.1969 by which the two propertieswere divided by and between the concerned defendants includingthe plaintiffs, defendants no. 28 and 29, is declared null and voidas such is liable to be cancelled.

The plaintiffs’ prayer for partition in prayer (d) is allowedto the area of the land from the suit properties allotted to thebranch of Vencatoxa Porobo, represented by defendants 1 to 6under the Deed of partition dated 31.3.1969. Hence preliminarydecree is passed for separation of the plaintiffs and defendants28 ad 29 share of 1/8[th] in Mollans and 1/4[th] from Bainguinim to bedemarcated with the help of Collector or any gazette subordinateof the Collector as provided under Sec. 54 C.P.C. r/w O. XX R.18(1) of C.P.C. respecting the possession of the third parties asfar as possible from the area under alphabetical letters C,B & Fof Deed of Partition dated 31.3.1969 and the correspondingsurvey numbers given to the said portion C, & viz. No. 17/1,27/1, 25/1, 23/1 and 24/1. Collector to comply within six monthsas far as possible.

Survey Authorities directed to carry out mutation of theplaintiffs claim in respect of Survey Numbers fallen to portions C,B & viz. 17/1, 27/1, 25/1, 23/1 and 24/1.

The defendants 1 to 6 are permanently restrained fromdealing with and/or disposing in any manner any further portion ofproperties delineated as C, & in Deed of Partition dated31.3.1969 and the corresponding survey numbers thereto viz.17/1, 27/1, 25/1, 23/1 and 24/1, till the partition is effected andconfirmation by this Court.

Preliminary decree be drawn accordingly.

Pronounced in Open Court.”

9. The trial Court in decreeing the suit proceeded to employ thefollowing reasoning:

“The settlement deed dated 21.01.1919 confers title on Gones inrespect of the property covered by sale deed dated 17.11.1915the payment of Rs. 1000/- and nothing to do with consideration.The consideration was acknowledged as paid in the settlementdeed dated 17.11.1915. The transfer by registration was onlysecure and guarantee rights and absence of Gones. There wasno time limit for Gones to exercise his option under the settlementdeed. The suit properties were enjoyed jointly at least until thedeed of partition 1969. The deed of partition was not entered intowith the plaintiffs and defendants no. 28 and 29 who werecousins. Therefore, it was found to be null and void.”

10. The First Appellate Court found that the trial court hadmisread the relevant portions of the settlement deed. It was, inter alia,found that the settlement deed spoke of transfer of half the propertieswhich meant transfer of title to the properties which was not to be readas transfer of registration/ mutation. The benefit of reimbursement wasto Gones as it was for him to fulfill the said condition. The FirstAppellate Court describes it as absurd to say that the time for option isunlimited. The condition had to be complied within reasonable time atleast before the death of Gones. The deed of sale dated 17.11.1915 didnot mention the name of Gones as one of the purchasers or that he hadpaid the half of price. There is no evidence to show that Gones hadmoney, on his own, to pay half of price. The mere assumption, in thesettlement deed, cannot be taken as gospel truth. There may have beensome understanding between the two brothers. Condition had to befulfilled by Gones by reimbursing half of the amount paid to Laxmi. TheFirst Appellate Court appreciated the oral evidence and found that the

plaintiffs have no right in the property. As they were not co-owners, itwas found that deed of partition being entered into without the junctionof Gones, would not make it illegal or invalid. It was further found thatthe suit was barred by law of limitation. It is still further found that thesuit had abated on account of non-impleadment of legal representativesof certain parties. Two appeals were, accordingly, allowed and suit cameto be dismissed with cost.

Impugned Judgment of the High Court in the SecondAppeal

11. The High Court noted that the appeal had been admitted onthe following substantial questions of law:

“(1) Whether by virtue of Sale Deed dated 17.11.1915 read withthe Deed of Declaration dated 21.1.1919, ownership of Gones toone-eight of the property Mollans, and one-fourth of the propertyBainguinim, stood established or whether the declaration dated21.1.1919 was merely an agreement, to sell half of what Suryajihad purchased under Deed dated 17.11.1915 in favour of Gones?

(2) Whether the interpretation placed by the First Appellate Courton the Deed of Declaration to the effect that it constituted anagreement to transfer undivided right in the properties Mollansand Bainguinim in favour of Gones subject to payment ofRs. 1000/- as condition precedent reversing the finding of thetrial court that declaration while acknowledging the ownership ofGones in the two properties merely provided for transfer ofregistration in the name of Gones at any time thereafter, is legaland sustainable?(3) Whether in suit for declaration of share in joint property, anda partition and separation thereof by metes and bounds, the prayerfor declaration is the principal relief, and partition subsidiaryone, or the relief of declaration and partition, is the principal reliefand such suit would be within limitation, if filed within 12 yearsof the ouster of the plaintiffs from the common properties and notwithin 3 years of the denial of their rights therein?

(4) Whether, on true and correct interpretation of the Deed ofDeclaration dated 21.1.1919, the exercise of the option fortransfer in the name of Gones, half of the property purchasedunder Sale Deed dated 17.11.1915 could be done without any

limitation, particularly in view of the fact that in the Deed it wasspecifically stated that the transfer in the name of Gonesh wouldbe effected “at any time he may wish”?

(5) Whether the suit instituted by the appellants could be declaredto have abated for the alleged non-bringing of some of the heirsBof the deceased defendants, who died during pendency of thesuit, on record in the absence of any objection raised in thewritten statement by the defendants, that the suit was bad fornon-joinder of necessary parties, and whether such an objectioncould be raised by merely amending the memo of appeal andwhen the estate of deceased was substantially represented byCpersons already on record?

(6) Whether on the pleadings and the material brought on recordby the defendants First Appellate Court was right in holding thatthe suit filed by the plaintiffs was liable to be dismissed as barredby limitation more so when such finding was aimed in reversal ofDthe finding of the Court?”

12. It was found, inter alia, that Suriaji had admitted in documentdated 21.01.1919 that 1/8[th] of property M and 1/4[th] of property waspurchased by him for Gonesand Gones was to pay his contribution, asindicated. No time limit was fixed for payment. The document did notEspecify that prior payment should be made by Gones or payment is acondition precedent. It was further found that acknowledgment of liabil-ity to part with property is described as absolute and unambiguous andthe document contains unambiguous recital about the acknowledgmentof existence of right of Gones in the property. It was further found thatFright of Gones to receive share is thus crystallized and he had rightenforceable in law and according to law. If Gones was to exercise andenforce his rights under the deed dated 21.01.1919, he ought to haveobjected to the allotment of share. He did not raise any objection relatedto the inventory proceedings in 1925 and it attained finality. Allotmentwas not challenged by way of suit which was open to him between 1925Gand 1940 or during his life time. Plaintiffs are not witnessing aboutallegations that Gones used to receive his share. There is nodocumentary evidence. It is case of oath against oath. Plaintiffswitnesses did not have knowledge of antecedent facts. The statementsof the plaintiff’s witnesses were found to be vague. The following areHthe findings summarized by the Court:

“40. Collective effect of the pleadings and evidence can besummarized as follows:-

(a) Recognition of share of Gonesh is done in the documentdated 21.1.1919;

(b) In spite of recognition or acknowledgment of share of Gonesh,the property is given to Shantibai, wife of Suryaji, whichwas the only share remaining with the family of Suryaji andGonesh, in the background the auction of share owned byGonesh in the property MOLLANS.

(c) The fact that share of Gonesh was sold out is not disputed.

(d) It is also admitted that Gonesh did not dispute the allotmentofproperty to the wife of Suryaji.

(e) Ordinarily Gonesh could have objected to the allotment ofshare to Laxmibai, as his property could not have been givento Laxmibai and could not have been subject matter of in-ventory, which was not challenged by Gonesh.

(f) Having acquiesced with all these, now Gonesh and his heirsare estopped from opening of the succession after long spanof over two decades.

(g) Plaintiffs have failed to prove that their right to sue based onjointness in enjoyment subsisted, and they would be entitledto sue.

41. It is not the plaintiffs’ case that they had no knowledge ofregistration of property in the name of Shantabai way back in1940 as final act based on conclusions of inventory proceedings.”

In the result, conclusion is that whatever right or interestmay have survived with Ganesh, was lost, as Gonesh did not atany point of time challenged the allotment of property to Shantibaiwhich allotment in the Inventory Proceedings and recording/registration of rights in her favour has attained finality for want ofchallenge.”

13. Thereafter the following findings have been entered:

“42. After recording of properties in the name of Shantibai, sheand her heirs have enjoyed suit properties in exclusion to plaintiffsand supporting defendants openly.

A43. While it is clear that inter-se the co-owners registration ofright by itself would not be bar for claiming co-ownership,however, said right of re-opening is not without fetters oflimitation when openly, properties are proved to be in exclusiveenjoyment of contesting defendants in total exclusion of plaintiffs’predecessors.”B

14. Resultantly, the questions of law were answered against theappellants and the appeals were dismissed.

15. We have heard Shri J.P. Cama, Senior Advocate on behalf ofthe appellants, Shri Mukul Rohtagi, Senior Advocate along with Mr. DhruvCMehta, Senior Advocate on behalf of the respondents.

16. The learned senior counsel for the appellants would submitthat the High Court having found that there was title in the propertiesand there was also no requirement to pay Rs. 1000/- as conditionprecedent, the suit ought to have been decreed. As far as the inventoryDproceedings are concerned, his contention is that this was the case whichwas set up by the defendants. It was incumbent on the defendants toproduce the inventory proceedings.

17. He would further contend that even if Gones, thepredecessor-in-interest of the plaintiffs, was party to the inventoryEproceedings and did not object to the properties being recorded in thename of his sister-in-law and children, this would not take away theeffect of the acknowledgment of title in the settlement deed dated21.01.1919. His rights in the property having been acknowledged by hissister-in-law and late brother with reference to the sale deed, by merelyrecording the properties in the name of his sister-in-law, his half right,Fwhich is acknowledged in the property, in the settlement deed dated21.01.1919 would not be affected. It was further contended that it is notopen to question that the consideration for obtaining the property in thesale deed of the year 1915 was acknowledged as paid partly by Gones.The mere fact that Gones did not, in his life time, bring any proceedings,Gwould not preclude the plaintiffs,successors-in-interest of Gones, whowere entitled as co-owners of the plaint schedule properties, to seekrelief. When the title had not been extinguished, the Court has gonewrong in drawing the wrong conclusion about Gones not raisingobjection to the recording of the property to Laxmi. There could not beacquiescence by estoppel. The Court has not comprehended the effect

of finding title with Gones and according to him if title is not lost, in amanner known to law, it is always open to enforce the same. The findingof the court that right arose latest in 1940 and there is limitation in suitbased on title was challenged. Unless adverse possession is proved irre-spective of the period of time taken for the plaintiffs to institute the suitlaw does not recognize deprivation of their title.

18. Per contra, the learned senior counsel on behalf of therespondents/ defendants were at pains to point out that neither in lawnor in equity the appellants have made out case for interference. Thelitigation has been commenced after nearly six decades of thedocuments on which the plaintiffs lay store-by. With the inventoryproceedings, the curtains were rung down. Gones stood by and allowedhis sister-in-law and children to be acknowledged as owners of theproperty. Gones lived long enough thereafter and yet he did not raise hislittle finger against the possession or right of the defendants. Gones passedaway only in 1978. There is evidence to show that Gones was verymuch in the house on the eve of the partition deed and yet he did notraise any objection either then or even at any point of time thereafter tillhis death. They would in fact point out that Gones never contemplatedthis litigation launched by his successors-in-interest. This is for thereason that after this acknowledgment of the right in favour of Gones inthe settlement deed dated 21.01.1919, in 1925 his elder brother Suriajiand his wife have executed gift deed and it is pressed before us, that itresulted in Gones getting more than what he would have got in terms ofthe alleged liability to execute the document in terms of the settlementdeed of 1919. Expatiating the argument, it is pointed out that the extentof property M was approximately 90 hectares, property consisted ofnearly 31 hectares. Under the gift deed of 1913, executed by thegrandfather of Suriaji and Gones, in their favour 1/4[th] of M was given toSuriaji and Gones. This meant both of them obtained 22.5 hectares each.By the sale deed dated 17.11.1915 Suriaji and Laxmi, wife of Vitol,obtained 1/4[th] of M which is equivalent to 22.5 hectares and ½ of B,which is equivalent to 15.5 hectares. Thus on the aggregate an extent of38 hectares formed the subject matter of sale deed. As per the deed ofdissolution dated 21.01.1919, Gones would have been entitled to 19hectares. This figure is arrived at as the half right of 38 hectares ascalculated hereinbefore. However, by gift deed dated 14.04.1925, whatwas gifted was no doubt the 1/4[th] right of M acquired by Suriaji from his

Agrandfather but which consisted of 22.5 hectares. Thus, it is pointed outafter the gift deed dated 14.04.1925, Gones had 45 hectares. It is furthersought to be contended that if the claim of the plaintiffs is countenancedGones would get 64.12 hectares leaving 19 hectares alone to the branchof Suriaji. It is pointed out that this Court is hearing these appeals aftergrant of special leave.

19. In an appeal, so sourced, equitable considerations must play adominant part. In other words, this is case where Gones obtained alarger share than he would have got in terms of the acknowledgment inthe settlement deed dated 21.01.1919. The learned senior counselinvites us to the conduct of Gones in this perspective. It is contendedCthat Gones, during his life time, did not have any grievance or cause forcomplaint. His conduct is accordingly patterned on his contentment withhaving received his legitimate due. This state of fulfillment of his rightsexplains his conduct as “Vogal” and acquiescing in the proceedingswhereunder his sister-in-law stands acknowledged as the owner of theDproperties. There is reference also to the partition which took place in1969 i.e. 44 years after the gift deed of 1925. It is further pointed outthat the Court may not overlook that apart from the partition, which tookplace in 1969, there were land acquisition proceedings. It was the branchof Suriaji in recognition of their rights who were awarded compensation.

There was no objection raised at that time. The suit clearly was timeEbarred. It is also the case of defendants that they have pleaded adversepossession. It is contended that plaintiffs have miserably failed to provethat they were in receipt of any income. We are taken to the evidence inthis regard. Respondent also impugned the finding by the High Courtthat Gones had title and contended that the payment of Rs. 1000/- couldFnot but be condition precedent. It is also contended that the sale deeddated 17.11.1915 is executed in favour of Suriaji and Laxmi. There isabsolutely nothing in the sale deed, which would indicate that the saledeed was also in favour of Gones. What would follow from thesettlement deed dated 21.01.1919 was only that the partiescontemplated the execution of the another document of transfer ofGproperty in terms of the recitals in document dated 21.01.1919 in favourof Gones. This, in turn, was dependent upon Gones exercising optionand paying Rs. 1000/- which was his share.

CASE LAWRELIED UPON BYTHE APPELLANTS

20. In the case law relied upon by the appellants, in Md. MohammadAli (dead) by Lrs. v. Jagadish Kalita and others[1], this Court, dealing withArticle 65 of The Limitation Act, 1963 has essentially reiterated theprinciple that long and continuous possession by itself would notconstitute adverse possession. Non-participation in the rents and profitsof the land to co-owner does not amount to ouster. Furthermore, thisCourt has noted that in suit governed by Article 65 of the Act, if theplaintiff succeeds in proving his title, it is no longer necessary to provethat he was in possession within 12 years of the filing of the suit. It is forthe defendant to prove animus possidendi.

21. In Jai Singh and othersv. Gurmej Singh[2], this Court hasarticulated the principles relating to the interse rights and liabilities ofco-owners, as follows:

“9. It is to be noted that in the subsequent Full Bench judgment inBhartucase [1981 PLJ 204] , the earlier decision in LachhmanSingh case [AIR 1970 P&H 304] was distinguished on facts.The principles relating to the inter se rights and liabilities ofco-sharers are as follows:

(1) co-owner has an interest in the whole property and also inevery parcel of it.

(2) Possession of joint property by one co-owner is in the eye ofthe law, possession of all even if all but one are actually out ofpossession.

(3) mere occupation of larger portion or even of an entirejoint property does not necessarily amount to ouster as thepossession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is ouster ofa co-owner by another. But in order to negative the presumptionof joint possession on behalf of all, on the ground of ouster, the

possession of co-owner must not only be exclusive but alsohostile to the knowledge of the other as, when co-owner openlyasserts his own title and denies, that of the other.

1(2004) 1 SCC 271

2(2009) 15 SCC 747

A(5) Passage of time does not extinguish the right of the co-ownerwho has been out of possession of the joint property except in theevent of ouster or abandonment.

(6) Every co-owner has right to use the joint property in ahusband like manner not inconsistent with similar rights of otherBco-owners.

(7) Where co-owner is in possession of separate parcels underan arrangement consented by the other co-owners, it is not opento anybody to disturb the arrangement without the consent ofothers except by filing suit for partition.”

C22 The appellants, in short, on the strength of the said rulings,contend before us that since the High Court has found that Gones hadtitle in the property, the suit must be decreed. The defendants have failedto prove adverse possession or ouster.

23. The decision of this Court in P. John Chandy and Co. (P) Ltd.Dv. John P. Thomas[3] is pressed into service for contending that inactionin every case does not lead to inference of acquiescence. The saiddecision, in fact, was one rendered under the Kerala Buildings (Leaseand Rent Control) Act, 1965. The ground for eviction alleged by thelandlord was sub-lease. The contention of the tenant was there wasEimplied consent of the landlord. This Court went on to hold that consentcontemplated under the enactment was concerned with some positiveact. It was in the context of the same that the Court, inter alia, madethe observations made in regard to inaction not amounting toacquiescence.

24. In L. N. Aswathama and another v. P. Prakash[4], this CourtFheld that the plea of adverse possession is inconsistent with the plea oftitle. This Court, in this context, held as follows:

“16. ... According to them, the two pleas being mutuallyinconsistent, the latter plea could not even begin to operate untilthe former was renounced. Reliance was placed on the followingGobservations of this Court in Mohan Lal v. Mirza Abdul Gaffar[(1996) 1 SCC 639] made while considering case where thedefendant raised the pleas of permissive possession and adversepossession: (SCC pp. 640-41, para 4)

3(2002) 5 SCC 90H4 (2009) 13 SCC 229

4 (2009) 13 SCC 229

“4. As regards the first plea, it is inconsistent with the secondplea. Having come into possession under the [sale] agreement,he mustdisclaim his right thereunder and plead and proveassertion of his independent hostile adverse possession tothe knowledge of the transferor or his successor-in-title orinterestand that the latter had acquiesced to his illegal possessionduring the entire period of 12 years i.e. up to completing the periodof his title by prescription nec vi, nec clam, necprecario [not byviolence, not by stealth, not by permission]. Since the appellant’sclaim is founded on Section 53-A [of the Transfer of PropertyAct, 1882], it goes without saying that he admits by implicationthat he came into possession of the land lawfully under theagreement and continued to remain in possession till date of thesuit. Thereby the plea of adverse possession is not availableto the appellant.”

17. The legal position is no doubt well settled. To establish claimof title by prescription, that is, adverse possession for 12 years ormore, the possession of the claimant must be physical/actual,exclusive, open, uninterrupted, notorious and hostile to the trueowner for period exceeding twelve years. It is also well settledthat long and continuous possession by itself would not constituteadverse possession if it was either permissive possession orpossession without animus possidendi. The pleas based on titleand adverse possession are mutually inconsistent and the latterdoes not begin to operate until the former is renounced. Unlessthe person possessing the property has the requisite animus topossess the property hostile to the title of the true owner, theperiod for prescription will not commence. (Vide P. Periasami v.P. Periathambi [(1995) 6 SCC 523] , Md. Mohammad Ali v.Jagadish Kalita [(2004) 1 SCC 271] and P.T. MunichikkannaReddy v. Revamma [(2007) 6 SCC 59]).18. We are however of the view that the decision in Mohan Lal[(1996) 1 SCC 639] relied on by the plaintiffs is inapplicable, asthe defendant therein had pleaded that he was in possession, havingobtained possession in part-performance of sale agreement. Asthe defendant therein admitted that he came into possession lawfullyunder an agreement of sale and continued to remain in such

possession, there was no adverse possession. This case isdifferent, as the defendant did not contend that he enteredpossession under or through the plaintiffs. His case was that hewas in possession as tenant under Gowramma from 1962 andhe became the owner by purchasing the plot from Gowramma in1985. He alternatively contended that if Gowramma did not havetitle and consequently his claim based on title was rejected, thenhaving regard to the fact that he had been in possession by settingup title in Gowramma and later in himself, his possession washostile to the true owner; and if he was able to make out suchhostile possession continued for more than 12 years, he couldclaim to have perfected his title by adverse possession. There isconsiderable force in the contention of the defendant provided heis able to establish adverse possession for more than 12 years.When person is in possession asserting to be the owner, even ifhe fails to establish his title, his possession would still be adverseto the true owner.Therefore, the two pleas put forth by thedefendant in this case are not inconsistent pleas but alternativepleas available on the same facts. Therefore, the contention ofthe plaintiffs that the plea of adverse possession is not available tothe defendant is rejected.”

(emphasis supplied)

25. In Kuldip Mahaton and others v. Bhulan Mahato(Dead) byLrs.And others[5], this Court has reiterated the principle that in the caseof Joint Hindu Family, there is community of interest and unity ofpossession among all members of the Joint Hindu Family. The fact thatone of the coparceners is not in joint possession, does not mean that heFhas been ousted. The possession by one, it was found, is therefore,possession of all. Mutation in the name of elder brother, for the collec-tion of rent and revenue, does not prove hostile title as against other. Itwas further held that where possession can be referred to lawful title, itwould not be decided to be adverse.

26. In P.T. Munichikkanna Reddy and others v. Revamma andothers[6], this Court held that there is no equity in favour of person whoraises plea of adverse possession. Right to property is human right andplea of adverse possession is to be viewed in the light of the same.5(1995) 2 SCC 436 (2007) 6 SCC 59H

27. In State of U.P.Another v. Universal Exporters and another[7],this Court emphasized the need to prove the date when the defendant’spossession became adverse to the plaintiff’s title.

28. Punit Rai v. Dinesh Chaudhary[8], is relied upon to contend thata fact within the knowledge of person must be proved by the saidperson, and if the said evidence is not produced, it would lead toinference that had the evidence been produced, it would not havesupported the case of the party.

29. Sankalchan Jaichandbhai Patel and others v. VithalbhaiJaichandbhai Patel and others[9] is relied upon to contend that mutationentries are only to enable the State to collect revenues from the personsin possession and that do not create title or interest therein.

30. The decision of the High Court of Punjab and Haryana inMohinder Singh and another v. Kashmira Singh[10], is relied upon tocontend that there is no period of limitation for filing suit for possessionon the basis of inheritance and that Section 65 of the Act is notapplicable. In Paragraph 6, this is what was held by the Division Bench:

“6. After hearing the learned counsel for the parties, I find forcein the contention of the learned counsel for the respondent. It iswell established principle of law that inheritance does not remainin abeyance and the heirs after the death of the last male holdersucceed to the property of the deceased in accordance with law.Kashmira Singh, being the son of Niranjan Singh deceased, wasentitled to 1/3rd share in the land in dispute. After the death ofNiranjan Singh, he was not required to file any suit for possessionon the basis of inheritance. He had become full owner of hisshare in the property on the death of the last male holder. Forestablishing his right as an heir, he was not required to file suit.However, situation may arise when the heir is not in possessionof the property inherited. In that event suit for possession mayhave to be filed and on contest the same may fail on thedefendant proving that he has perfected his title by adversepossession. It is such type of suit which is governed by the

7(1997) 7 SCC 531

8(2003) 8 SCC 204

9 (1996) 6 SCC 433

10 AIR 1985 P&H 215

provisions of Article 65 of the Limitation Act. In this view of thematter, with respect, I find that the view taken by R.N. Mittal, J.in Naginder Singh’s case (1983 Cri LJ 432) (supra) that it is wellsettled that suit for possession on the ground of inheritance shouldbe filed within period of twelve years from the date when theinheritance opens, does not lay down correct law. The decisionsto which reference has been made in para 9 of the judgment bythe learned Judge, do not lay down any such rule. On the otherhand, in all those decisions it was adverse possession of thedefendants which was upheld. Thus I hold that no period oflimitation is prescribed for filing suit for possession on the basisof inheritance.”

31. In Ashok Kumar and others v. Gangadhar and another[11], thelearned Single Judge has laid down as follows:

“24. In the instant case also, the plaintiffs suit is based on title andthe consequential relief of possession was also sought for. Theplaintiffs in these suits established before the lower Court that it isthe self-acquired property of D-1’s father and they purchased itunder two different sale deeds. In such case, the suit isgoverned by Article 65 of the Act as it was filed within 12 yearsof the dispossession. But it is for the defendants to show that theplaintiff was out of possession for more than 12 years. In theinstant case, there is no such situation and the suit was filedimmediately after completion of three years from the date ofdispossession. If the contention of the defendants that Article 58applies to the suit for possession based on title where declarationof title is also sought, is accepted, it would amount to ignoring therelief for recovery of possession and application of Article 65 to asuit for possession and taking away the right of the plaintiff toprove that the suit is within 12 years from the date when thepossession of the defendant becomes adverse to the plaintiff. Ifsuch suit were to be decided with reference to Article 58 on theground that the declaration is sought for, application of Article 65to the suit for possession would be rendered otiose. Such con-struction would be opposed to all principles of interpretation ofstatutes. Therefore, different articles of the Limitation Act will

have to be interpreted harmoniously. When such an interpretationis given to Articles 58 and 65 and when the suit is filed fordeclaration of title to the suit property with consequential relief ofpossession in my humble view Article 65 of the Limitation Actwould apply and not Article 58 of the Limitation Act. Article 58applies to case where declaration simpliciter is sought forwithout possession in my humble view Article 65 of the LimitationAct would apply and not Article 58 of the Limitation Act. Article58 applies to case where declaration simpliciter is sought forwithout any further relief. It appears that this aspect has been thesubject matter of consideration of Law Commission in its 89thReport on the Limitation Act and the Commission recommendedfor the amendment of Article 58 of Schedule I of Limitation Actby adding “without seeking further relief” after the word‘declaration’ in the first column of Article 58 of the Schedule.”

32. In Banarsi and others v. Ram Phal[12], this Court dwelt uponthe rights of respondent in an appeal under Order XLI Rule 22 of theCode of Civil Procedure, 1908 inter alia:

“10. The CPC amendment of 1976 has not materially orsubstantially altered the law except for marginal difference.Even under the amended Order 41 Rule 22 sub-rule (1) party inwhose favour the decree stands in its entirety is neither entitlednor obliged to prefer any cross-objection. However, the insertionmade in the text of sub-rule (1) makes it permissible to file across-objection against finding. The difference which hasresulted we will shortly state. respondent may defend himselfwithout filing any cross-objection to the extent to which decree isin his favour; however, if he proposes to attack any part of thedecree, he must take cross-objection. The amendment insertedby the 1976 amendment is clarificatory and also enabling and thismay be made precise by analysing the provision. There may bethree situations:

(i) The impugned decree is partly in favour of the appellant andpartly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though anissue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all theissues have also been answered in favour of the respondent butthere is finding in the judgment which goes against therespondent.

11. In the type of case (i) it was necessary for the respondent toBfile an appeal or take cross-objection against that part of thedecree which is against him if he seeks to get rid of the samethough that part of the decree which is in his favour he is entitledto support without taking any cross-objection. The law remainsso post-amendment too. In the type of cases (ii) and (iii)pre-amendment CPC did not entitle nor permit the respondent toCtake any cross-objection as he was not the person aggrieved bythe decree. Under the amended CPC, read in the light of theexplanation, though it is still not necessary for the respondent totake any cross-objection laying challenge to anyfindingadverseto him as the decree isentirely in his favour and he may supportDthe decree without cross-objection; the amendment made in thetext of sub-rule (1), read with the explanation newly inserted, giveshim right to take cross-objection to finding recorded againsthim either while answering an issue or while dealing with anissue. The advantage of preferring such cross-objection is spelledout by sub-rule (4). In spite of the original appeal having beenEwithdrawn or dismissed for default the cross-objection taken toany finding by the respondent shall still be available to beadjudicated upon on merits which remedy was not available tothe respondent under the unamended CPC. In thepre-amendment era, the withdrawal or dismissal for default ofFthe original appeal disabled the respondent to question thecorrectness or otherwise of any finding recorded against therespondent.”

(emphasis supplied)

This position has been reiterated in Hardevinder Singh v. ParamjitGSingh and others[13].

33. In Mohan Lal (deceased) Through His Lrs. Kachru andothers v. Mirza Abdul Gaffar and another[14], this Court held that the

13(2013) 9 SCC 261H14(1996) 1 SCC 639

appellant’s first plea of adverse possession was inconsistent with thesecond plea of possession being retained under Section 53A of theTransfer of Property Act, 1882. It was further held that having cominginto possession under the agreement, he must disclaim his rightthereunder and plead and prove assertion of independent hostileadverse possession to the knowledge of the transferor.

THE CASE LAWRELIED UPON BYTHE RESPONDENTS

34. Reliance is placed on the decision of the High Court of Bombayat Goa in Sheela Rodrigues and another v. Lourencinha Ana D’CruzRodrigues Fernandes[15] for the view that inventory proceedings are inthe nature of declaration of ownership rights and that it is like ajudgment in rem. This is to apparently contend that it was necessary forGones to object at the given time.

35. The decision of this Court in Raj Narain Pandey and others v.Sant Prasad Tiwari and others[16], is relied upon to contend that in thematter of local law, the view taken by the High Court over number ofyears should normally be adhered to. This has been reiterated and pointedout by this Court in Jay Laxmi SaltWorks (P) Ltd. v. State of Gujarat[17].

36. The decision of this Court in Dilboo (Smt.)(Dead) by Lrs. andothers v. Dhanraji (Smt.)(Dead) and others[18], is relied upon to contendthat once there was registration of document, there is deemedknowledge regarding the same and limitation would begin to operate.Respondents also seek support from the judgment of this Court in Vishramalias Prasad Govekar and others v. Sudesh Govekar (Dead) by LegalRepresentatives and others[19] wherein this Court held as follows:

“18. We have already noticed above, the basis on which the firstappellate court as well as the High Court has held that the plaintiffsare the owners of the suit property, which rights they have inheritedfrom Vassudev Govekar, father of Plaintiffs 1 to 3. Findings ofthe courts below are that the suit property viz. Talhao No. 168 ofCommunidade of Anjuna, was acquired by VassudevGovekar fromCommunidade of Anjuna under No. 131/1963 on 24-2-1970 as

15(1999) SCC ONLINE Bombay 10916(1973) 2 SCC 3517(1994) 4 SCC 118(2000) 7 SCC 70219(2017) 11 SCC 345

permanent grant for the construction of the house. In order toprove this ownership, not only the said grant was produced onrecord, the plaintiffs also filed evidence of the inventoryproceedings initiated upon the death of Vassudev Govekar whichdescribed the suit property. Additionally, duly promulgated surveyrecords showing the property standing in the name ofVassudevGovekar were also produced.

xxx

20. Pertinently, the learned counsel appearing for the appellantscould not contest the aforesaid approach of the courts below. It isfor this reason, he took an altogether different route by arguingthat joint ownership in the property in question was admitted bythe plaintiffs themselves for which purpose he referred to theaverments made in the plaint filed by the plaintiffs. In the firstinstance, we find that no such argument predicated on suchpleadings have been taken in the courts below. Be that as it may,since the defendants rely upon the pleadings of the plaintiffsthemselves, we proceed to examine the weight in this submission.A closer and minute look into the pleadings would show that thereis no admission on the part of the plaintiffs about the co-ownershipinsofar as the suit property is concerned. In Para 3 of the plaint,the plaintiffs have given the description of the suit property whichis popularly known as “Devalvadi” bearing Survey No. 251/2situate at Chinvar in the village of Anjuna, Bardez, Goa, having anarea of 1000 sq m. What is significant is that this property bearsSurvey No. 251/2 and the plaintiffs described the same as the“suit property”. In Para 4, it is mentioned that Vassudev Govekaracquired this property from Communidade of Anjuna. In Para 6 itis mentioned that on this suit property, incomplete structure wasraised by Vassudev Govekar which the plaintiffs referred to asthe “suit house”. Thus, the ownership is claimed by the plaintiffsthrough Vassudev Govekar who acquired the property bearingSurvey No. 251/2 (the suit property) on which he constructedincomplete structure (the suit house). At the same time, in Para 5,which is relied upon by the defendants in their attempt to showadmission of the plaintiffs as to co-ownership, the plaintiffs havestated that towards the eastern side of the suit property, there

exists another property bearing Survey No. 251/4. The plaintiffspleaded that on this land, whereupon house is also constructed,belonged to their grandfather Jagannath Govekar (father ofDefendant 1) and it is this property which the plaintiffs say is inthe co-ownership of the plaintiffs and the defendants. Thus, thestatement about the plaintiffs and the defendants as co-owners intitle and in possession pertains to property bearing Survey No.251/4 which is not the subject-matter of the suit.”

37. Parties cannot go beyond their pleadings, runs anotherargument on behalf of the respondents. This is in context of theargument of the appellant that Shantibai (wife of Suriaji) continued tohold the property in trust for Gones. The respondents contend that thereis no concept of trust in civil law system which prevailed in Goa underthe Portuguese Code. The case based on trust was never pleaded in theplaint.

38. Eurekha Builders and others v. Gulabchand, S/oVeljee DandSince Deceased By Legal Representatives and others[20] is relied uponto contend that rights, including title, can be extinguished by the passageof time. Article 505 read with Article 535 of the Portuguese Coderesulted in extinguishing the right of Gones. Assuming for argument sakethat there existed certain rights with Gones under the Settlement Deedof 1919, it is said that all such rights stood extinguished in 1939, i.e., 20years from 1919 or in 1949, i.e., 30 years from 1919 under Article 535.Even before Goa became territory of Indian Union, the rights of Goneshad already been extinguished.39. Reliance is also placed on paragraph 30 of the judgment ofthis Court in Khatri Hotels Private Limited and another v. Union of Indiaand another[21] in regard to the effect of Article 58 of the Act. Therein,this Court held as follows:

“30. While enacting Article 58 of the 1963 Act, the legislature hasdesignedly made departure from the language of Article 120 ofthe 1908 Act. The word “first” has been used between the words“sue” and “accrued”. This would mean that if suit is based onmultiple causes of action, the period of limitation will begin to runfrom the date when the right to sue first accrues. To put it

20 (2018) 8 SCC 67

21 (2011) 9 SCC 126

Adifferently, successive violation of the right will not give rise tofresh cause and the suit will be liable to be dismissed if it isbeyond the period of limitation counted from the day when theright to sue first accrued.”

40. It is their case that the suit being one for declaration of titleBalso, the suit is clearly barred as the right to sue first accrued in 1925.

41. Lastly, it is contended that the Court may take notice of thelaw laid down by this Court in Taherakhatoon (D) by Lrs. v. SalambinMohammad[22] and refuse to exercise discretion in favour of theappellants, having regard to the various facts, the long lapse of time,Cafter the documents of the year 1913,1915, 1919, 1925, and thedevelopments which have taken place in the meantime.

42. The first question we must pose and consider is what exactlyis the property which is involved in the litigation.

43. As we have noticed in the beginning of our judgment, propertyD‘M’ consisted of about 90 hectares whereas property ‘B’ consisted ofabout 31 hectares. By the Gift Deed of 1913, the grandfather of Suriajiand Gones had gifted one-half right in property ‘M’ to both Suriaji andGones. Thereafter, the one-half share in property ‘M’ and the whole ofproperty ‘B’ came to vest with the aunt (father’s sister) of Suriaji andEGones. It is in 1915 that the aunt along with her husband executed thesale deed conveying the rights to Suriaji and to the other branch, viz.,Vitol. Thereafter, in 1919, the deed of dissolution, which is the sheetanchor of the appellant’s case came to be executed. It is thereunder thatacknowledgment of title, as contended by the appellants, of Gones overthe property, which his subject matter of the sale in favour of Suriaji, isFmade.

44. Still further, in 1925, Suriaji along with wife, executed GiftDeed. Under the same, the donors have gifted the rights obtained bySuriaji under the Gift Deed executed in his favour under the documentof 1913 by his grandfather. There is no dispute that in 1937 the rights ofGGones as acquired under the Gift Deed executed in his favour by hisgrandfather in 1913 and also the property acquired by him under the GiftDeed by his brother and sister-in-law in 1925 came to be sold in auctionin execution of decree obtained against Gones. The present suit is filed

based on the sale deed executed by the paternal aunt of Gones and herhusband expressly in favour of Suriaji and his wife and the other branch.The appellants claim one-eighth share being one-half of one-fourth ofproperty ‘M’ conveyed under sale deed to Suriaji and his wife. Theappellants also claim one-fourth share being one-half of one-half inproperty ‘B’ conveyed to Suriaji and his wife under the sale deed of1915.

PRESCRIPTION UNDER THE PORTUGUESE CIVILCODE

45. Undoubtedly, the properties being located within the presentUnion territory was governed by the Portuguese till 20.12.1961. On20.12.1961, the territories of Goa, Daman and Diu were included asUnion territories. Article 505 relied upon by the respondents definesprescription.

“Article 505 – Things and rights are acquired by virtue ofpossession, just as obligations are extinguished by the factof not demanding their fulfilment. The law lays downconditions and the period of time, that is necessary, for one,as well as for the other. This is called prescription.

Sole Paragraph: The acquisition of things or rights bypossession is known as positive prescription; the dischargeof obligations by reason of not demanding their fulfilment isknown as negative prescription.”

Article 535 is also relied upon by the contesting respondents. Thesame reads as follows:

Article 535 -Whoever has incurred in an obligation, or to dosomething to another, stands relieved of the obligation, if itsperformance is not demanded for period of 20 years, andthe obligant is in good faith, at the end of the prescriptionperiod, or when the performance is not demanded for periodof 30 years, regardless of good faith or bad faith, exceptwhere special prescription are provided in law.

Sole paragraph: Good faith in the case of negative prescriptionconsists in the ignorance of the obligation. This ignorance is notto be presumed in case of persons who originally contracted theobligation.”

A46. Bench of three learned Judges in Syndicate Bank vs. PrabhaD. Naik 2001 (4) SCC 713 had occasion to consider the PortugueseCivil Code. In the said case the appellant Syndicate Bank instituted aspecial suit for recovery of money advanced. The loan was granted inJuly 1978. The respondents agreed to pay the amount by December,1978.Loan was granted on execution of promissory note and deed ofBhypothecation. Plea of bar of limitation was raised as suit was filed in1985. The appellant thereupon relied upon Article 535 which we haveadverted to above. It was contended by the appellant Bank that the lawof limitation in Goa was to be treated as the law under Portuguese CivilCode. Therefore, the period of limitation as prescribed under theCSchedule I of the Indian Limitation Act would not apply. This Courtreferred to Section 5 of the Goa, Daman and Diu (Administration) Act,1962 which contemplated continuance of laws in force before theappointed day in Goa, Daman and Diu or any part thereof until amendedor repealed by competent legislature or other competent authority. Itis relevant to refer to para 13, 14 and 16, the same reads as under:D

“13. Admittedly, the Portuguese Civil Code continued in the UnionTerritory of Goa, Daman and Diu by virtue of Section 5 of theGoa, Daman and Diu (Administration) Act, 1962 which providesthat the existing laws shall be continued in force in the UnionTerritory until amended or repealed by competent legislature.We may also note Regulation 12 of 1962 which provides forextension of certain laws mentioned in the Schedule to theRegulation, to wit: The Negotiable Instruments Act, 1881 and thesame was brought into effect in the Union Territory of Goa, Damanand Diu with effect from 1-12-1965. In Goa, Daman and Diu(Laws) (No. 2) Regulation, 1963 (Regulation 11 of 1963), provisionsakin to those contained in Regulation 12 are found under whichthe Indian Contract Act, Sale of Goods Act and Transfer ofProperty Act were brought into force in the Union Territory from1-11-1965 and 1-12-1965 respectively. The situation thus emergeshaving regard to the two regulations noticed hereinbefore(Regulation 11 and Regulation 12) that both the NegotiableInstruments Act and the Contract Act together with some otherstatutes have been made applicable to the State by appropriatelegislative authority. The promissory note signed by Respondent 1herein and the guarantor issuing guarantee thereof cannot but

be termed to be the subject within the meaning of the NegotiableInstruments Act. In any event, and obviously on the factual score,there was also existing deed of hypothecation which cannotalso but be termed to be contract within the meaning of theIndian Contract Act which stands applied in the State of Goa,Daman and Diu. It is, therefore, to be seen as to whether specificlegislations containing the subjects under which the cause of actionhad arisen, would govern the field or the procedural law assumingit would have its due application in replacement of the governingstatute. This however, involves wider debate and this Benchhas not been called upon to answer the same, as such we refrainourselves from expressing any opinion in regard thereto but thefact remains that both the Negotiable Instruments Act and theContract Act have been included in terms of the Regulationsnoticed above and as such, made applicable in the State of Goa,Daman and Diu.

14.Be it noted thatArticle 535 containing the provisions of limitationin Chapter III regulating the contracts in the Portuguese CivilCode, which however stands replaced by the Indian ContractAct.The prescribed period for limitation pertaining to the contractsbeing in the same Chapter under the ContractAct cannot be saidto be surviving as an independent provision rather than going alongwith the other provisions of the contract which by reason ofadaptation of the ContractAct stand replaced. It thus cannot butbe said to be an implied repeal. The necessity of having an expressrepeal was never felt by reason of the factum of adaptation of theIndian Contract Act insofar as Chapter III is concerned. Eitherthe Chapter survives in its entirety or it perishes in all its spheres— it is one Chapter dealing with contract and prescribes the periodof enforcement of the same, no dissection is possible.

16. Article 505 of the Civil Code provides for acquisition of thingsand rights by possession and the same is ascribed to be positiveprescription and discharge of obligations by reason of notdemanding their fulfilment is known as negative prescription. Theword “prescription” is in general mode of acquiring title toincorporeal hereditaments by continued user, possession andenjoyment during the time. Article 535 prescribes negative

Aelement of prescription which is akin to adverse possession. Aprescriptive right however, differs from adverse possession, sinceprescription relates to incorporeal rights while adverse possessionapplies to an interest in the title to property. “Prescription” is usuallyapplied to acquisition of incorporeal hereditaments and negativeprescription obviously is negation of such an acquisition.B“Prescription” admittedly, is part of substantive law but limitationrelates to procedure, as such prescription differs from limitation.The former is one of the modes of acquiring certain right whilethe latter viz. the limitation, bars remedy, in short, prescription isa right conferred, limitation is bar to remedy.Chapter II of theCPortuguese Civil Code provides detailed articles pertaining toprescription. Corpus Juris Secundum, Vol. 72 described the word“prescription” as below:

“In law prescription is of two kinds: it is either an instrument forthe acquisition of property or an instrument of an exemption onlyDfrom the servitude of judicial process. In the first sense, as relat-ing to the acquisition of property, prescription is treated in adversepossession. In the second sense, as relating to exemption fromthe servitude of judicial process, prescription is treated as Limita-tion of Actions.”

(emphasis supplied)

47. The Court proceeded to take the view that having regard tothe applicability of the Indian law namely the Contract Act, NegotiableInstrument Act, the extinction of remedy under the Portuguese law can-not but be deemed to be impliedly repealed. It was further held thatF“having regard to the factum of Article 535 being procedural aspectand not being substantive right, the Court was not contemplating thesituation under the Private International Law, but the distinction betweensubstantive and procedural law has meaningful existence herein.

The Court approved the earlier view taken by this Court inGJustiniano Augusto De Piedade Barreto v. Antonio Vicenta DaFonseca and Others 1979 (3) SCC 47 as laid down. As can be seenfrom the facts the transaction of loan arose in the year 1978 after thecontract Act and the Negotiable Instrument Act were made applicablein Goa.

In this case the respondents relied upon Articles 505 and 535 tocontend that the right of Gones was extinguished, by virtue of Article505 and 535. The argument is on the following basis. Gones did notfigure as transferee in the sale deed dated 17.11.1915 executed infavour of Suriaji and Another. Four years thereafter, the document styledas settlement deed came to be executed on 27.1.1919. It is solely basedon the clause in the same that the entire suit is apparently filed by theappellant. The clause reads as follows:

“…Further the party of the first part Suriaji stated that thepurchase made by him by the aforesaid sale deed dated 17[th]November, 1915, was made for himself and for the said party ofthe first part Gones his brother, and that he has paid for half of theprice of the said purchase, therefore, he undertakes along withthe said Shanntibai to transfer in the name of the said Ganesa thehalf of the properties purchased in his name by the aforesaid deedat any time he may desire to have it transferred and on the occasionof this transfer the said Gones will have to indemnify him with thehalf of the amount which has now been paid to the party of thesecond part Locximii from the money of the dowry of his wife...”

48. It is, therefore, the contention that at best Suriaji came underan obligation within the meaning of Article 505 read with Article 535, totransfer in favour of Gones as contemplated under the clause in thedocument dated 21.1.1919. It is their case that calculated from 21.1.1919the period of 20 years would end in 1939 and at any rate the periodcertainly would end in 1949 on the expiry of 30 years from 21.1.1919.On the expiry of the period of 30 years from 1919, therefore, the case ofthe respondents is that under Portuguese law which undoubtedly heldthe field before the Limitation Act of 1963 was made applicable witheffect from 1.4.1964 the negative prescription extinguished whateverright, if any Gones had in the property.

49. We must at once consider the request of the appellant to applythe principle laid down in the decision of this Court in the case of SyndicateBank vs. Prabha D. Naik(supra). If the argument based on Articles505 and 535 is accepted, then it would be found that the obligation inregard of Suriaji would be extinguished. The decision in Syndicate Bank(supra)relied on by the appellants is clearly distinguishable. In the said

Acase, as noticed, the transaction was entered into in the year 1978. Apromissory note which is negotiable instrument came to be executed.At the time when it is so executed, the contract entered into, providedfor repayment of the amount by the debtor, the Contract Act and theNegotiable Act were made applicable to the State of Goa, Daman andDiu. This formed the fundamental basis for the Court’s finding that theBextended period of limitation available under Article 535 of the PortugueseCivil Code would no longer be available. Unlike the fact situation in thesaid case, we are in this case called upon to pronounce upon whetherthere was extinguishment of the obligation and consequential right underthe obligation. At the time when Portuguese Civil Code was the only lawCwhich is applicable, the appellant relied upon the document of 1919.Ifthe case is to be resolved on the basis that Suriaji was under an obligationto do something that is transferring the property certainly such anobligation would stand extinguished at the latest on the expiry of 30years, namely, on 21.01.1949 and earliest by 21.01.1939.If that is theposition then when the Limitation Act of 1963 came into force onD01.04.1964 and under the erstwhile law, viz., Portuguese Civil Code,Suriaji and the contesting defendants stood freed from the obligationunder the negative prescription contained under Article 535, then Articles505 and 535 would be fatal to the appellants.

What however, is the effect of Article 537?. According to theEappellants in the Settlement deed dated 21.1.1919 the word used are ‘atany time’. In view of the same Article 537 stood attracted. Article 537is an exception to Article 535 runs the argument of the appellants. Article537 reads as follows:

Article 537-Obligations attached to non transferable rights or toFthose not subjected to time limitations, do not attract prescription”.

When any time limit is not attracted the obligation under thePortuguese law it could be enforced at any time, runs the argument.

50. It is necessary also to consider the question relating to titleGsought to be set up by the appellants.

The entire case of appellants is based on right in the plaint scheduleproperty, based in turn on the right which Gones acquired under the saledeed dated 17.1.1915. Under the sale deed dated 17.1.1915, 1/4[th] share

of property ‘B’ and 1/2 right in property ‘M’ came to be conveyed toSuriaji, the other part being conveyed to the Vitol branch. It is undisputedthat Gones does not figure as transferee in the sale deed. There isnothing left to even construe as there is not even whisper of the nameof Gones in the sale deed dated 17.1.1915. It is case of outright sale ofshare of property as we have mentioned in favour of the namedtransferees. It is 4 years thereafter however that document dated21.1.1919 styled as dissolution deed is executed which contains thecontroversial clause which we have already set out.51. According to the respondents the following is interpretation tobe placed on the same. document was executed for settlement ofaccounts of sociedade between the vitol and the venctexa branches ofthe Navelkar family. Breaking down the controversial clause(See para47), it is the contention of the respondents that it was Suriaji who hasactually paid for the purchase of the property in question. In this regardreliance is placed on the expressions ‘he/his and himself’. Except forthe use of the word ‘he’ in the underlined portion it is their case that thewords ‘he, his and himself’ have been used to refer to Suriaji. It is onlythe word ‘he’ which is underlined that has been used to refer to Gones.The case is that the documents were drawn in Portuguese and therewas lack of clarity in translations. It is further contended that the Goneswas minor when the property was purchased and he started earningonly in 1925 which is admitted by PW1 when he stated that Gones wasPuberto in 1919 and he started earning after 1925.They have definitecase that the civil law system prevalent in Goa till 19[th] December, 1961when it became an Union territory did not recognize equitable title andunless proper document of transfer was executed Gones could notderive any title. It is their further case that the deed dated 21.1.1919was at best in the nature of an agreement to sell. Such promise to sellis governed by Article 1548 of the Civil Code. Article 1548 of the CivilCode is as follows:

“Article 1548: simple reciprocal promise of purchase and sale,being accompanied by specification of price and description ofthing constitutes mere agreement to perform fact, which shallbe governed by general terms of contract, with the difference,however, that where the earnest money is paid, i.e. any amountreceived by the promissory vendor, forfeiture of the same or its

Arestitution in double shall be the compensation for loss anddamages.

Sole paragraph: In case of immovable properties, the contractmust be drawn in writing and, if made without consent of the wifeof prominent promisor vendor, the later shall be liable to compensateBthe promise purchaser for loss and damages.”

This is the submission of the respondents. The following testimonyof P.W.1 may be relevant:

“……I now say that the said agreement to transfer agreementwas conditional depending on the exercise of the option by Gones.CIt is true that the agreement of Exh.F, namely the said Deed is aconditional agreement to transfer the registration in the name ofGones by said Suryaji…..”

“……..The said Gones never exercised to have the registrationof the property or even transfer the property in his name duringDthe entire 60 years period beginning from 1919 till 1978…..”

“….the obligation to reimburse Surya did not devolve on the heirsof Gones…..”

“I also do not know what was the exact amount which had to bepaid by Gones to Suriyaji to effect registration of the property.”E

52. Respondents would further contend that the sale deed in termsof Article 1519 must be reduced to writing and if the value exceeded1000 excudos it had to be registered under Article 949. Respondentswould contend that finding of the High Court in regard to title is erroneousand cannot be sustained. The High Court has found inter alia as follows:F

“Admittedly, no time limit is fixed for the payment of the share orexercise of right in the Deed dated 21.1.1919. This documentalso does not specify that prior payment should be made byGones due to be made thereunder, or that such payment is acondition precedent..”

The respondents further contended that under Article 949 of theCivil Code, certain documents where rights in immovable property werecreated have to be registered. They included transfers of immovableproperty gratuitously, onerously and all transmission of properties or

corporeal immovable property and mere possession were acts whichwere subject to registration under Article 949. Article 960 is also reliedupon which provides that the registration record is also to be maintainedin whose favour the transmission is made. It reads as under:

“Article 960: The extract, of inscription against the descriptionbesides serial number and date of the year, month and day andthe date of the title deed as the date its presentation for registra-tion shall contain:

Paragraph 1; xxx

Paragraph 2 : the name, status, profession and domicile:-

1. xxx

2. Of the person in whose favour the transmission is made in thecases of transmission of immovable properties”

It is their case that such transmission was made only in favour ofSuriaji and Laxmi under the sale deed dated 17.11.1915.

53. The appellants no doubt would contend that the High Courthad found title with Gones and there is no cross objection filed by thecontesting respondents. It is their case that without cross objection itwould not be open to the respondents to ask this Court to interfere withthe finding of title. In this regard they placed reliance on the judgment ofthis Court in Hardevinder Singh v. Paramjit Singh 2013 (9) SCC 261.The appellants would contend that Gones paid half the price for thepurchase dated 17.11.1915 which too stood acknowledged in the deedof dissolution dated 21.1.1919. There is solemn undertaking to transferGones share whenever he paid Rs.1000/- as his half share of the dowryamount of Rs.2000/- paid by Suriaji. The gift made on 14.4.1925 bySuriaji does not take away the rights of Gones under the sale deed dated17.11.1915 as acknowledged in the dissolution deed dated 21.1.1919.Reference is made to the finding by the trial court that Gones hasadmittedly paid half of the purchase price out of Rs.13022/- for thepurchase of the suit property. Therefore, the amount of Rs.1000/- wasover and above the purchase price and resultantly non-payment ofRs.1000/- had no bearing on the title of Gones which he derived fromthe purchase.

A54. Before we consider the question, it is necessary to enter theactual findings rendered by the High Court in regard to the title. TheHigh Court finds that recognition of share of Gones is done in documentdated 21.1.1919. It is further found as under:

“31. Admittedly, no time limit is fixed for the payment of share orBexercise of right in the Deed dated 21.1.1919. This documentalso does not specify that prior payment should be made by Goneshdue to be made thereunder, or that such payment is conditionprecedent. Thus, acknowledgment of liability to part with propertydescribed therein is absolute and unambiguous. This documentcontains an unambiguous recital about acknowledgment ofCexistence of right of Gonesh to the properties.”

Right of Gonesh to receive share, is thus, crystalized, and he hasderived right enforceable in law and according to law.”

We have already referred to the law laid down by this Court inDregard to Order XLI Rule 22 of the Code of Civil Procedure. In anappeal if the respondent does not want any change in the decree of thelower court, it is not necessary for him to file an appeal or cross objectionto merely support the decree already passed without any variation in thedecree but by challenging the correctness of the findings in the judgment.The appellants are correct in contending that if challenge is made to aEdecree by respondent then necessarily the respondent must file eitheran appeal or cross objection. In this case however, the suit filed by theappellants stood dismissed by the first appellate court. The two appealswhich were carried by the appellant before the High Court weredismissed. Resultantly, the decree of the first appellate Court dismissingFthe suit came to be confirmed. Before this Court the respondents arenot seeking to challenge the decree. They do not wish any variation ofthe decree. They seek to have the decree confirmed. They support thedecree entirely. The decree is one dismissing the suit. They are onlyseeking to support the said decree by challenging one of the findingsnamely the finding relating to title. For doing the same, it is not necessaryGfor them to file an appeal or cross objection as by having the findingoverturned in regard to title they are not seeking to have differentdecree passed in any manner. Hence we reject the contention of theappellants that it is not open to the respondents to contest the finding ontitle without filing cross objection.

QUESTION RELATING TOTITLE

55. The findings of the High court can be culled out as follows:

1. Suriaji has admitted that 1/8[th] of ‘M’ and ¼ of ‘B’ waspurchased by him for Gones and Gones was supposed to payhis contribution as indicated therein.

2. No dispute can be raised as regards this promise ordeclaration in the deed.

3. Admittedly no time limit is fixed for the payment of share orexercise of right in the deed dated 21.1.1919.

4. The document does not specify that prior payment should bemade by Gones or that the payment is condition precedent.

5. Acknowledgment of liability to part with property is absolutelyunambiguous and the document contains an ambiguousrecital about acknowledgment of existence of right of Gonesto the property.

6. Finally it is found that the right of Gones to receive share, isthus, crystallized and he has derived right enforceable inlaw and according to the law.

56. Let us also see how the High Court finds that the appellantsare not entitled to relief.

i. Gones was vogal in inventory proceedings. In the saidproceedings property ‘M’ and ‘B’ were allotted to widow ofSuriaji, viz., Shantibai. If Gones has to enforce his right underthe deed, he had to object the allotment of share in view of adocument dated 21.01.1919. He did not object. Event relatesto 1925 which attained finality when rights accrues to Shantibaiin the inventory proceedings which were registered intorecords around 1940.

ii. The allotment of share in inventory was not challenged byGones by way of suit between 1925 and 1940 or at any timeduring his lifetime. The court does not accept the case of theappellants that though there was separation of family and apartition, the parties continued in joint enjoyment and the shareof income was initially given to Gones and then the wife of

Gones. Having acquiesced with the allotment of share to thewife of Suriaji though his property could not have been givento Laxmibai (this must be Shantibai), Gones and his heirs areestopped from opening up the succession after long span ofover two decades.

Biii It is not the plaintiff’s case that there was no knowledge ofregistration of property in the name of shantibai way back in1940.Therefore it is found that whatever right or interestsurvived with Gones was lost as he did at any point of timechallenge the allotment of property of Shantabai which hasbecome final for want of challenge.

iv. After recording the property in the name ofShantibai and herheirs enjoyed the property in exclusion to plaintiff andsupporting defendants openly. Denial of right of Gones or hisexclusion and ample denial relates back to 1925 and it hasculminated by absoluteness in 1940. Right of Gones to haveseparate possession by partition or otherwise if he wanted toassert it on the basis of settlement deed that arose latest in1940. As he did not enforce his right to seek partition andenforcement of the right under the settlement deed of 1919was lost.

57. We have set out two broad findings by the High Court. Thefirst relates to the question whether Gones had acquired any right. Thesecond part relates to whether he has lost the right. The High courtfinds that Gones indeed had right but he has lost it and the right shouldhave been enforced latest by 1940.

Coming to the first part namely whether Gones had right themost important part is finding that Suriaji admitted that 1/8 of ‘M’ and1/4 of ‘B’ was purchased by him for Gones.

58. The case of the appellants appears to be that when 1/2 of theprice was paid by Gones in terms of the acknowledgement contained inGthe document of 1919, all that remained to be paid was 1000 rupees forreimbursing Suriaji having paid the amount to Laxmi towards dowry.Therecan be no dispute that the sale deed does not showGones as transferee.

The document dated 21.1.2019 is described as deed ofdeclaration, fixation of balance of accounts, payment and obligation.

Parties of the first part are described as Suriaji and his wife Shantibaiaged15 and minor aged 16. Gones is shown as aged 14 years assistedby his mother. Parties on the second part are described as Laxmi, widowof vitol (the other party) and her sons etc. The deed appears to providefor distribution of joint family and for settlement of accounts of the familywhich lasted only 3 years. It is inter alia stated further that the parties ofthe first part owed to the parties to the second part sum ofRs.2000/-. It is inter alia stated therein that parties of the first partSuriaji stated that the purchase made by him by the sale deed dated17.11.1915 was made for himself and for the party of the first part Gones,his brother and that he has paid for half of the price of the said purchase,therefore he undertakes alongwith the said Shantibai to transfer in thename of said Gones the half of the properties purchased in his name bythe aforesaid deed at any time he may desire, to have it transferred andon the occasion of this transfer, the said Gones will have to indemnifyhim with half of the amount which has now been paid to the party of thesecond part Laxmi from the money of the dowry of his wife. It is theaforesaid provision which is at the heart of the controversy. We are tounravel its true scope and import. Whether it amounts to an admissionor acknowledgment by Suriaji that Goneshis younger brother, had halfright over the property acquired by Suriaji under the sale deed dated17.11.1915? Whether on the other hand, the document is of executorynature and contemplating Suriaji executing transfer in favour of Gones?Whether it contemplated only transfer of mutation, the title beingadmitted? Whether the clause contemplated transfer on the occasionof which Gones was to indemnify Suriaji, half the amount which stoodpaid to Laxmi that money coming from dowry of Suriaji’s wife?59. The first thing we have to consider in this regard is theargument raised by the respondents that the words ‘he’ has paid for halfthe price for the said purchase should be understood as meaning Suriajihas paid for half of the price of the said purchase and this means thatSuriaji was the full owner under the sale deed and Gones did not acquireany right as such. This is supplemented by the submission that Goneswas minor in 1915. He began to earn only in 1925 and therefore, thereis no question of his having paid any part of the consideration for the saledated 17.11.1915. On the other hand, it is the case of the appellants thatone half of the consideration was paid by Gones.

CDE

A60. In resolving this controversy, it is but apposite that we mayrefer to the pleadings of the parties. We may refer to para 11 of theplaint. The same reads as under:

“11. It is in the said Deed of 21.1.1919 that Suria alias SuriajiPorobo expressly admitted that the purchase of the 1/4[th] of theBproperty Mollans and ½ of the property Bainguinim made underthe Deed dated 17.11.1915 was for self and for his brother Goneswho paid its price at the time of the purchase and therefore Suriaand his wife Shantibai undertook to effect the transfer ofregistration in the name of Gones upon Suria being reimbursed byGones in the payment of ½ of the amount paid by Suria to LoximiC(widow of Vitol Porobo) in consequence of the settlement ofaccounts made at the time of dissolution of Society. The periodfor exercising of option by Gones to make the reimbursementwas however unlimited.”

The contesting respondents-defendants 1,2,30 and 31 in theirDwritten statement inter alia stated as follows:

“In the year 1919, the undivided joint family of Navelkars came tobe dissolved and in the Deed of Dissolution and Settlement dated21.01.1919, there is mention that the said Surya had purchasedthe properties i.e. half of ‘Bainguinim’ and 1/4[th] of ‘Mollans’ andEalso on behalf of his brother Ganesh and had agreed to transfer ashare of the said two properties in favour of the said Ganeshprovided the said Ganesh pays to him Rs. 1000/- beingreimbursement towards the amount paid by him on behalf ofGanesh to Laxmibai. However, it is not on record that the saidFGanesh ever paid the said amount of Rs. 1000/- to the said Surya,which was condition precedent for effecting transfer of undividedshare in the said two properties, in favour of the said Ganesh andit cannot be said that the period for payment of the said amountwas unlimited.”

GThe reply to the averment in para 11 of the plaint are contained inpara 25 and it reads as follows:

“25. The contents of para 11 of the plaint are partially admitted.These defendants deny that the period of exercising of option byGanesh to make the reimbursement was unlimited as alleged. Theacknowledgement as mentioned in the said deed dated 21.1.1919H

by the said Surya and conditional and it appear that the said Suryaperformed the said acknowledgment by making Gift Deed dated14.04.1925 which was pursuant to the said acknowledgment apartfrom the fact that the said Gift Deed dated 14.4.1925 also appearsto be shaddy document, the same having been executed littlebefore the death of the said Surya, thereby reflecting on itsauthenticity on the point of the same being voluntary act. It isquite possible that the said Surya and his widow were coercedinto making the said Gift Deed dated 14.4.1925 reminding themof the acknowledgment expressed by the said Surya in theDissolution Deed dated 21.1.1919.”

In the written statement filed by defendants 3,4,5 and 6 also, thereply to the averment contained in para 11 of the plaint is contained inpara 7 of the written statement and the same are extracted below:

“With further reference to para 11 of the Plaint these defendantssay that the subsequent conduct of both Suriaji and Ganesh showsthat the idea of transfer in the name of Ganesh ½ of the propertypurchased by Suriaji by deed dated 17.11.1915, was given up andconsequently the said Ganesh never expressed any desire to havethe transfer made in his favour nor did he pay any amountconcerning the dowry of Shantibai, and no transfer mentioned inthe said Deed dated 21-1-1919 was effected. These defendantssay that the said statement of Suriaji regarding the transfer wasnever acted upon either by Suriaji or by Ganesh. The said statementmade in the said deed dated 21-1-1919 should at the most amountto simple promise for the sale on the part of Suriaji in terms ofArticle 1548 of Portuguese Civil Code, and would not confer inthe said Ganesh any right or interest in respect of the suitproperties.”

61. There is no denial of the averment of Gones having paid theconsideration. We would think that it would be safe conclusion to reachthat consideration was partly paid for at least on behalf of Gones. Caseof the respondents that no part of the consideration moved from or onbehalf of Gones in regard to the sale deed dated 17.11.1915 cannot beaccepted.

The view we have taken finds reinforcement from the words thatfollow immediately in the sale deed 21.1.1919. It is stated immediately

Aafter stating that he has paid for half of the price for the said purchase,therefore, he has undertaken alongwith the said Shantibai to transfer toGones, the half of the properties purchased in his name etc. In thisbehalf the word being in conjunction with his wife Shantibai can onlyrefer to Suriaji.Therefore, the interpretation would be as follows:BThe sale deed dated 17.11.1915 was executed in respect of 1/4[th]of property ‘M’ and 1/2 of property ‘B’ in favour of Suriaji. Another1/4[th] of property ‘M’ and other half of property ‘B’ was sold under thesale deed to the other branch represented by Laxmi Bai. It is obviousthat under the sale deed for his share, Gones would have made part ofthe payment. What is acknowledged in the dissolution deed is that 1/2

Cof the said consideration emanated from Gones.

62. The next part is where the matter becomes more vexed. Thequestion is what is the nature of the right, if any, which is acquired byGones on the basis of the undertaking recorded in the document dated21.1.1919 that Suriaji and his wife Shantibai will transfer in the name ofDGones the half of the properties purchased in his name at any time hemay desire to have it transferred and further that on the occasion of thetransfer Gones will have to indemnify him with half the amount whichhas been paid the party of the second part, namely, Laxmi bai whorepresented the other branch in Navalkar family. The undertaking toEtransfer in the name of Gones, the half of the property is according tothe appellants only transfer of mutation. On the other hand, accordingto the respondents it involved transfer accompanied by registration. Inconjunction with the same, the further question is of the meaning of thewords “that on the said occasion” that is when the transfer is effectedGones will have to indemnify the Suriaji with half the amount whichFstood paid to Laxmi from the dowry amount of Suriaji’s Wife. We cannotbe oblivious to the fact that sum of Rs.1000/- was considerable sumof money in 1919. It is not to be confused with Rs.1000/- as on the dateof the suit much less as of today. It was not meant to be empty formality.We are unable to subscribe to the reasoning of the High Court when itGholds that it is not condition precedent. The payment was to coincidewith transfer. No doubt it could have been made prior to demanding thetransfer. We cannot understand the clause as meaning as either it neednot be paid or the payment could be deferred.

63. In the above perspective, let’s consider whether there is aHcase that Gones offered Rs.1000/- to Suriaji during his lifetime and the

transfer of mutation or of right was refused. We do not see any suchcase at all. When the appellants are seeking the right solely based onthe recital in the deed of dissolution dated 21.1.1919 we fail to see howwhen complying with the condition for seeking transfer it could bemaintained by them that they are entitled without anything more torights as co-owners. In fact, there is no case that the appellants havepaid or offered the amount to the successors-in- interest of Suriaji. Asalready noticed, PW 1 goes to the extent of deposing that the ‘obligationto reimburse Suriaji did not devolve upon the heirs of Gones’. Thus thesuit is filed with neither Gones nor even the appellants paying or evenoffering to pay the sum mentioned in the deed of 1919.

64. We would also have look at it from another perspective. Inthe plaint, at para ‘9’, what is stated is in the year 1915, Piru and herhusband sold the property by deed of sale dated 17.11.1915 in equalparts to Suriaji and to Laxmi. Thereafter, in para ‘11’, Suriaji in the deeddated 21.01.1919 is stated to have expressly admitted that the purchaseof 1/4[th] 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 thetime of purchase and therefore, it was undertaken to transfer theregistration, upon Suriaji being reimbursed by Gones in the payment of1/2.It is admitted that the sale deed is in favour of Suriaji. It is nearly4 years thereafter in the document of 1919 that the admission by Suriajiabout 1/2 price, being paid and about the undertaking is setup. There isno case for the appellants in the plaint that Suriaji was benamidaror aname lender. The principle of resulting trust underlies Section 82 of theTrust Act. There can be no doubt that Trust Act was inapplicable toGoa in 1915 and in 1919 as Goa was not part of British India. Certaintests are propounded in determining whether transaction is benamiwhich have to be fulfilled. No doubt, the most important test is whoprovided consideration. There is no pleading in the plaint about thetransaction being benami transaction. If benami was recognized inGoa under Portuguese rule then it could be said that Gones would becomethe owner provided the transaction is treated as benami transaction.But there is no case of benami set up. In this regard we notice thefollowing discussion in Controller of Estate Duty, Lucknow v.AlokMitrain AIR 1981 SC 102:-

31. ..In Petheperumal Chetty v. MuniandyServai (1908) 35 IndApp 98, the Judicial Committee quoted with approval the followingpassage from Mayne’s HINDU LAW, 7th ed., para 446:

“Where transaction is once made out to be mere benami, it isevident that the benamidar absolutely disappears from the title.His name is simply an alias for that of the person beneficiallyinterested.”

The cardinal distinction between trustee known to English lawand benami darlies in the fact that trustee is the legal ownerof the property standing in his name andcestui que trustis only abeneficial owner, whereas in the case of benami transactionthe real owner has got the legal title though the property is in thename of the benamidar. It is well settled that the real owner candeal with the property without reference to the latter. In GurNarayan v. Sheo Lal Singh, 46 Ind App 1: (AIR 1918 PC 140),the Judicial Committee referred to the judgment of Sir GeorgeFarwell in Bilas Kunwar v. Dasraj Ranjit Singh 42 Ind App202: (AIR 1915 PC 96), where it was observed that benamitransaction had curious resemblance to the doctrine of Englishlaw that the trust of the legal estate results to the man who paysthe purchase-money, and went on to say:

“... the benamidarhas no beneficial interest in the property orbusiness that stands in his name; he represents, in fact, the realowner, and so far as their relative legal position is concerned, heis mere trustee for him.”

In Guran Ditta v. Ram Ditta, 55 Ind App 235: (AIR 1928 PC172) the Judicial Committee reiterated the principle laid down inGopeekrist Gosain case (1854) 6 Moo Ind App 53 (PC) andobserved that in case of abenamitransaction, there is resulting”trust in favour of the person providing the purchase-money.

Reference may also be made to para ‘33’, which reads asGfollows: -

“33. The law is succinctly stated by Mayne in his TREATISEONHINDU LAW, 11th Edn., at p. 953, in the following terms:

“A benami transaction is one where one buys property in thename of another or gratuitously transfers his property to another,

without indicating an intention to benefit the other. Thebenamidar,therefore, has no beneficial interest in the property or businessthat stands in his name; he represents in fact the real owner andso far as their relative legal position is concerned, he is meretrustee for him. In other words, abenami purchase or conveyanceleads to resulting trust in India, just as purchase or transferunder similar circumstances leads to resulting trust in England.The general rule and principle of the Indian law as to resultingtrusts differs but little if at all, from the general rule of English lawupon the same subject.”

65. Thus, purchase which is made benami, leads to resultingtrust.

Goa continued under Portuguese Rule and it was not part ofBritish India. There is definite case for the respondents that the law oftrust, as such, did not apply in Civil Law countries and the portuguesewho were governed by Civil Law did not recognize the law of trust.

66. Incidentally we find that in eBook nº 32 Trusts, Foundationsand Fiduciary Structures by Dennis Swing Greene, we may incidentallynotice in Part 2: Portugal and Trusts under the head IV. Trusts underPortuguese Law, the same reads as under:

“Trusts as Contract

With the exception of the Madeira Free Trade Zone (where trustsare recognized when created under the laws of anotherjurisdiction), Porgtuguese law does not formally acknowledge thefiduciary concept implicit in Trust whereby the rights are dividedbetween the legal title in the hands of the trustees and the equitablerights with the beneficiaries. This lack of legal recognition raisesseveral questions as to their tax and legal treatment.

Portuguese law views trust as contract. All transactionsinvolving trusts are deemed to be made with the trustees – thelegal owners of the trust’s assets – rather than with the entitledbeneficiaries under the terms of the trust. Beneficial interest isnot right formally recognized under Portuguese legislation…”

67. The law of trust, as such, did not apply to Goa under thePortuguese Rule. At least the appellants have no case that it did apply.

AThey have not produced anything to show that it applied. If the TrustAct which, undoubtedly, did not apply to Goa in 1915 or even in 1919 andin Section 82 thereof, lay embedded the principle of benami or resultingtrust, how can appellant claim that Gones became entitled as ownerunder the document of 1915 read with the document of 1919. If it wasreduced to contract executory in nature, to perform an obligation uponBwhich alone the title would vest, it was subject to the condition precedentof payment of Rs. 1000/- by Gones. Even according to the appellantsobligation to pay Rs. 1000/-, did not pass to them. This conduct of theappellant’s, in seeking to derive rights under the document of 1919, eventhough, their predecessor in interest has failed either deliberately orCotherwise to perform his obligation during his entire life time cannot beapproved of.68. In law, how can Gones claim to be co-owner? He must firstbecome an owner. Section 82 of the Trust Act recognized that when aperson transferred property to another for consideration, which is paidDby third party then the said person would be the beneficial owner. Thetransferee in name or Benamidar would hold the property in trust for theperson who has actually provided consideration. There is, we reiterateno case based on benami ever set up by the appellant.

Therefore, we would come to the conclusion that by sale deed ofE1915 and the settlement deed of 1919 it may not be safe to conclude thatGones acquired title as such in the plaint schedule property. In the lightof this, we need not render any finding as regards adverse possession orouster.

69. It is worthwhile to note that after dissolution deed datedF21.1.1919 there took place, another development in the form of executionof gift deed by Suriaji in the year 1925.The case which the defendantshad set up about gift deed include the allegation which tends to questionthe circumstances surrounding the execution of the gift deed. They havea case also that the gift deed was executed pursuant to theacknowledgment in the 1919 document. Before this Court respondentsGwould seek to take advantage of it inasmuch as the contention is takenthat the gift deed must be treated as executed in fulfilment ofacknowledgment in the dissolution deed dated 21.1.1919. Under the giftdeed of 1925 Suriaji has gifted Gones his ¼ right in property ‘M’ whichhe acquired under the gift deed executed by his grandfather in the year1913. Be it remembered that in 1913, the grandfather has also executedgift of another ¼ of property ‘M’ in favour of Gones. Property ‘M’consisted of roughly 90 hectares. Thus, under both the gift deeds together1/2 of property ‘M’ or 45 hectares approximately came to be vestedwith Gones in the year 1925. Suriaji passed away in the year 1925 afterthe gift. It is thereafter that inventory proceedings took place in regardto the properties of Suriaji under the Portuguese Civil Code. Gonesstood asvogal apparently on behalf of the minor children of Suriaji underthe Portugues Civil Code. The documentary evidence is found by thefirst 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.This is borne out by the inscription which we have referred to of theyear 1937. It is here that the question arises as to correctness of thefindings that having participated in the inventory proceedings whichculminated in the property being allotted to the Shantibai, the rights ofGones stood extinguished.

70. We will proceed on the basis that interpretation of clause ofthe dissolution deed leads us to hold that Gones having paid ½ of thepurchase price what is contemplated by the undertaking was that Suriajiand his wife Shantibai were to transfer the mutation. Gones acquiredtitle in the property. We proceed further on the basis that payment ofRs.1000/- was not condition precedent as found by the High Court.The question is whether the High Court is right in its findings based onno objections being taken to the property being allotted to Shantibai. Wehave already extracted the findings of the first appellate Court in thisregard. We may at this juncture consider the contentions based oninventory proceedings held upon the death of Suriaji.

INVENTORYPROCEEDINGS

71. According to the appellants, inventory proceedings arise outof the inheritance by partition among the heirs of the deceased person.It is treated as deed of partition and requires registration under Section45 of the Registration Act but it is not registered under Section 17 of theRegistration Act, 1908. The burden of proving the case based on inventoryproceedings was squarely on the defendants which they have failed todischarge. No details of the precise date in 1925 or of the time and

Aplace where the proceedings took place has ever been established. Thereis no evidence adduced by the defendants. The inventory proceedingitself is not produced. The defendants’ witness was 36 years old on thedate of evidence and was, therefore, not alive in 1925. Defendant No. 5who was alive at the time when alleged inventory proceedings took placewas not examined. Punit Rai v. Dinesh Chaudhary[23], is relied uponBapparently to contend that the evidence of Defendant No. 5, was notadduced and it would mean that had the evidence been produced, itwould not have supported the case of the defendants. It is sought to becontended that, that Gones has intervened as vogal, is not substantiated.In fact, in this context, reliance is also placed in P. John Chandy and Co.,C(supra) in regard to inaction is concerned. It is also contended that withoutprejudice to the aforesaid contention, since Ganesh held property jointlywith his sister-in-law, she could not have inherited more than what Suriajipossessed. In regard to the enrolment dated 09.10.1937, it is stated to bewrongly construed as being registration of the inventory proceedings. Itis mere typed document without signature. The property does not passDand the inventory could not have been received in evidence.72. Per contra, the contesting defendants would point to theevidence of PW-1 himself that Gones was member of the family councilin the inventory proceedings on the demise of Suriaji which is gatheredfrom his records. Reliance is placed in Sheela Rodrigues vs.ELourenchinha Ana D’Cruz Rodrigues Fernandes[24] which hasrecognized that the proceedings were in the nature of declaration ofownership rights to the estate of the deceased. The declaration is like ajudgment in rem and therefore, it was all the more necessary for Gones

to object at the given time, which he admittedly did not. InventoryFproceedings are inevitable under Article 156, Article 2064, upon theopening of the inheritance. By virtue of marriage, the doctrine ofcommunion applies and Shantibai was owner of 50% of all properties ofSuriaji and the inheritance was related to the balance 50%. The FamilyCouncil is composed to protect the interests of the minors, and wasconstituted under Article 207. Article 218 prevents any member of theGfamily council from voting or assisting where there is conflict of interest.Thus, if Gones had ever considered as having title to half of the propertiespurchased by Suriaji under Sale Deed, it would involve conflict of interest.In the event of any third party having right of properties. Article 2078,

241999 SCC Online Bom 109 paras 8-11H252000 (7) SCC 702

provides listing of such properties separately and the same reads asfollows:-

“Article 2078 – Where there are, in the inheritance some propertiesbelonging to third person or which devolve to any heir inpreferential manner, they shall be listed separately, alongwith therespective documents.

Sole paragraph : The properties belonging to third person shallnot be delivered to him when there are some doubts, unless thesaid third person proves his right.”

Gones would never have silently stood by and allowed the propertyto be listed as property of Suriaji and he would have claimed the propertyto be listed separately as belonging to third party, it is contended.

73. Relying on Dilboo (Smt.)(Dead) by Lrs. and others v. Dhanraji(Smt.)(Dead) and others25, it is contended that where there is aregistration, there is deemed knowledge and the limitation runs from thesaid date. Gones would have objected to the inscription in 1937. He lostright over half of Mollans which was sold in public auction. Theproperties have to be appraised for licitation and partition as providedunder sub-division V of Article 2126 onwards of the Civil Code.

74. There would be an appraisal in the case of inventory betweenmajors and minors which was the case when Suriaji died. The appraiseris appointed under Article 2091 by the Family Council [of which Goneswas member].

75. In Damodar Ramnath Alve v. Gokuldas Ramnath Alve andothers[26], relied upon by the appellants, the learned Judge of the HighCourt of Bombay, Panaji notes that in inventory proceedings there is nodecree passed as in suit. In Zacarias DurateDomingos Pereira v. CamiloInacio Pereira[27], Justice M.D. Kamath had this to say about nature ofinventory proceedings:

“Inventario proceedings are proceedings instituted for theadministration of the estate of the deceased person. They providefor the preparation of the list of assets of the deceased, paymentof debts, collection of credits of the estate, payment of legacies,

242000 (7) SCC 70225MANU/MH/0535/1996261990 (1) Goa LT 174

Adistribution of liquid assets etc.. These various steps cannot becarried out under the procedure laid down under the Indian Code,for suits.”

In Victor de Graca Pinto and ors v. Lourdes de Graca Pinto eNazareth and ors.[28], relied upon by the appellants, learned Judge ofBthe High Court of Bombay at Panaji held in the context of decree inthe inventory proceedings that since it not only declared the rights of theparties but also had divided the shares by metes and bounds, it had to beregistered under Section 17 (2) of the Registration Act, 1908. The learnedJudge proceeded to, no doubt, hold that the decree could be executedafter such registration.C

In Sheela Rodrigues and another v. Lourencinha Ana D’CruzRodrigues Fernandes[29] relied upon by the respondents, the contentionwas taken that inventory proceedings were not suits. Section 22 of theCivil Courts Act provided the context. After referring to Zacarias DurateDorningos Pereira v.Camilo Inacio Evaristo Pereira[30], wherein it wasDheld that inventory proceedings are not suits, it was found that thediscussion in the said judgment was to find out whether an order ininventory proceedings could be executed under Order XXI of the Codeof Civil Procedure or not. Finally, the Court held as follows:

“11. As already seen above, the inventory proceedings areEinitiated to enforce the remedy available under the law in relationto right of inheritance. To enforce the claim of inheritance to theestate left behind by the ancestors of party or parties, it isnecessary to have legal recognition to the claim of the party orparties as regards the ownership of the estate left behind by theFancestors and the same can be obtained by instituting properinventory proceedings in the Court of law.

12. Therefore what follows from the above, is that theinventory proceedings are “suits” for the purpose of Section 22 ofthe Civil Courts Act and therefore the appeal against order inGinventory proceedings where the value of the assets exceedsRs. 1,00,000/- would lie to the High Court. The point forconsideration is therefore, answered accordingly.”

281999(3)ALLMR3929(1999) SCC ONLINE Bombay 109H30AIR 1984 Bom 295

ABANDONMENTAND ESTOPPEL

76. The question is however proceeding on the assumption Goneshad acquired title could he be said to have lost the title by his conduct.The High Court finds that having acquiesced in the inventory proceedingsGones and his heirs are estopped from opening of succession after abouttwo decades. It is further found that whatever right and interest mayhave survived with Gones was lost as he did not challenge the allotmentof property to the Shantibai. The High court has therefore employed theprinciple of acquiescence, estoppel and loss of right.

77. In Sha Mulchand and Co.Ltd. v. Jawahar Mills Ltd, SalemAIR 1953 SC98, 500 shares which stood in the name of company stoodforfeited. One of the contentions which was taken was on principles ofestoppel and laches forfeiture cannot be challenged. Justice S.R. Daswho wrote the main judgment proceeded to hold as follows inter alia:

“12. The Appeal Court, it will be observed, reversed the decisionof the trial Judge and decided the appeal against the Company ontwo grounds only, namely, (1) that the Company had by the conductof its two members abandoned its right to challenge the forfeiture,and (2) that the form of the order could not be supported as onevalidly made under Section 38 of the Indian Companies Act. Thelearned Attorney General, appearing in support of this appeal, hasassailed the soundness of both these grounds. The learnedAttorney General contends, not without considerable force, thathaving, in agreement with the trial court, held that no plea ofacquiescence, waiver or estoppel had been established in this case,the appeal court should not have allowed the Mills to raise thequestion of abandonment of right by the Company, inasmuch asno such plea of abandonment had been raised either in the Mills’affidavit in opposition to the Company’s application or in the Mills’grounds of appeal before the High Court. Apart from this, theappeal court permitted the Mills to make out plea of abandonmentof right by the Company as distinct from the pleas of waiver,acquiescence and estoppel and sought to derive support for thisnew plea from the well known cases of Prendergast v. Turton [1Y & CCC 111 : 62 ER 807] , Clark & Chapman v. Hart [2 HLC632 : 10 ER 1443] and Jones v. North Vancouver Land andImprovement Co. [LR 1910 AC 317] .

DEFG

Further, whatever be the effect of mere waiver, acquiescence orlaches on the part of person on his claim to equitable remedy toenforce his rights under an executory contract, it is quite clear, onthe authorities, that mere waiver, acquiescence or laches whichdoes not amount to an abandonment of his right or to an estoppelagainst him cannot disentitle that person from claiming relief inequity in respect of his executed and not merely executory interest.See per Lord Chelmsford in Clarke case [2 HLC 632 : 10 ER1443] at p. 657. Indeed, it has been held in Garden Gully UnitedQuartz Mining Company v. Hugh McLister [LR 1 AC 39] thatmere laches does not disentitle the holder of shares to equitablerelief against an invalid declaration of forfeiture. Sir BarnesPeacook in delivering the judgment of the Privy Council observedat pp. 56-67 as follows:

“There is no evidence sufficient to induce Their Lordships tohold that the conduct of the plaintiff did amount to anabandonment of his shares, or of his interest therein, or estophim from averring that he continued to be the proprietor ofthem. There certainly is no evidence to justify such conclusionwith regard to his conduct subsequent to the advertisement of30th of May, 1869. In this case, as in that of Prendergast v.Turton [1 Y & CCC 111 : 62 ER 807] the plaintiff’s interestwas executed. In other words, he had legal interest in hisshares and did not require declaration of trust or the assistanceof court of equity to create in him an interest in them. Merelaches would not, therefore, disentitle him to equitable relief:Clarke and Chapman v. Hart [2 HLC 632 : 10 ER 1443] . Itwas upon the ground of abandonment, and not upon that ofmere laches, that Prendergast v. Turton [1 Y & CCC 111 : 62ER 807] was decided.”

Two things are thus clear, namely,(1) that abandonment of rightis much more than mere waiver, acquiescence or laches and issomething akin to estoppel if not estoppel itself, and (2) that merewaiver, acquiescence or laches which is short of abandonment ofright or estoppel does not disentitle the holder of shares who hasa vested interest in the shares from challenging the validity of thepurported forfeiture of those shares.

In his concurring judgment Justice Vivian Bose further took thefollowing view:

“21.The position is different when the interest is executed and theman has vested interest in the right, that is to say, when he is thelegal owner of the shares with the legal title to them residing inhim. This legal title can only be destroyed in certain specifiedways. It is in my view fundamental that the legal title to property,whether moveable or immovable, cannot pass from one person toanother except in legally recognised ways, and normally by theobservance of certain recognised forms. Confining myself to thepresent case, one of the ways in which the title to shares can passis by forfeiture; but in that case an exact procedure has to befollowed. second way is by transfer which imports agreement.There again there is regular form of procedure which must begone through. Athird is by estoppel, though, when the position isanalysed, it will be found that it is not the estoppel as such whichbrings about the change. The expressions abandonment, waiverand so forth, when used in case like the present, are only synonymsfor estoppel and despite hallowed usage to the contrary, I preferto call spade spade and put the matter in its proper legal pigeonhole and call it by its proper legal name. These other terms are, inmy view, loose and inaccurate and tend to confuse, when appliedto cases of the present nature.

man who has vested interest and in whom the legal title liesdoes not, and cannot, lose that title by mere laches, or mere standingby or even by saying that he has abandoned his right, unless thereis something more, namely inducing another party by his words orconduct to believe the truth of that statement and to act upon it tohis detriment, that is to say, unless there is an estoppel, pure andsimple. It is only in such case that the right can be lost by whatis loosely called abandonment or waiver, but even then it is not theabandonment or waiver as such which deprives him of his titlebut the estoppel which prevents him from asserting that his interestin the shares has not been legally extinguished, that is to say, whichprevents him from asserting that the legal forms which in lawbring about the extinguishment of his interest and pass the titlewhich resides in him to another, were not duly observed.”

78. We may also profitably refer to the judgment of this Court inDr. Karan Singh v.State of J & K and Another 2004 (5) SCC 698:

“19. The Division Bench in the impugned judgment, as earliernoticed, has held that “either there was relinquishment of right orwaiver voluntarily”. Before we examine the facts to decide thisissue, reference may be made to certain decisions on the aspectsof estoppel, abandonment and waiver. The leading case on estoppelis that of Pickard v. Sears [(1837) 6 Ad & El 469 : 112 ER 179]wherein Lord Denman, C.J. in delivering judgment, inter alia, said:(ER p. 181)

“His title having been once established, the property could onlybe divested by gift or sale; of which no specific act was evensurmised.

But the rule of law is clear, that, where one by his words or conductwilfully causes another to believe the existence of certain stateof things, and induces him to act on that belief so as to alter hisown previous position, the former is concluded from averringagainst the latter different state of things as existing at the sametime; (See Bigelow on Estoppel, pp.606,607.)

20. In Mitra Sen Singh v. JankiKuar [AIR 1924 PC 213 : 51 IA326] (AIR at p. 214) with regard to estoppel, it was stated:

“There is no peculiarity in the law of India as distinguishedfrom that of England which would justify such an application.The law of India is compendiously set forth in Section 115 ofthe Indian Evidence Act, Act 1 of 1872. It will save longstatement by simply stating that section, which is as follows:

‘When one person has, by his declaration, act or omission,intentionally caused or permitted another person to believe thingto be true and to act upon such belief, neither he nor hisrepresentative shall be allowed, in any suit or proceeding betweenhimself and such person or his representative to deny the truth ofthat thing.’ “

21. In Dhiyan Singh v. Jugal Kishore [AIR 1952 SC 145 : 1952SCR 478] this Court stated: (AIR pp. 146-47, para 11)

“11. Now it can be conceded that before an estoppel can arise,

there must be, first, representation of an existing fact as distinctfrom mere promise de futuro made by one party to the other;second, that the other party, believing it, must have been inducedto act on the faith of it; and third, that he must have so acted to hisdetriment.”

22. In Gyarsi Bai v. Dhansukh Lal [AIR 1965 SC 1055 : (1965)2 SCR 154] the principles were reiterated in the following words:(AIR p. 1061, para 8)

“To invoke the doctrine of estoppel three conditions must besatisfied: (1) representation by person to another,(2) the othershall have acted upon the said representation, and (3) such actionshall have been detrimental to the interests of the person to whomthe representation has been made.”

In regard to abandonment the Court referred to the judgment inMulchand’s case (supra)and apparently approved the same.

79. Therefore, we would hold that when vested right is establishedsuch as ownership it can be divested only by sale or gift. It will not bepossible to hold that mere laches or standing by itself may be sufficientto extinguish title. The majority view is Mulchand (supra) appears tosuggest that there must either be abandonment or estoppel. JusticeVivian Bose takes the view that title can be lost only when estoppel isestablished. Merely saying that person has abandoned his propertydoes not lead to extinguishing of vested right such as right to ownershipin property. Certainly, an abandonment which amounts to an estoppelwould result in stopping party or his representative from seeking legalredress or setting up the claim in court of law.

80. In the facts of this case there is an added feature. Under thedocument dated 21.1.1919 Gones was to make reimbursement ofRs.1000/- as it turns out being half the amount paid by his brother Suriajifrom out of the proceeds of his wife’s dowry to Laxmi who representedthe other branch.Something remained to be done on the part of Gonesand thereupon it was forSuriaji to transfer. In that sense it could bedescribed as an executory contract. Even proceeding on the basis thatit is understood thatGones has 1/2 right of over the rights, transferred infavour of Suriaji under the sale deed dated 17.11.1915, the question ariseswhat is the effect of the inventory proceedings of which Gones wascertainly aware of and admittedly he was vogal.

A81. In regard to the inventory proceedings, no doubt, it is true thatthe inventory proceedings per se are not produced. The plea relating toinventory proceedings are undoubtedly taken by the contestingrespondents. It may be true that burden of adducing evidence relatingto inventory proceeding was on the contesting defendants but it is equallytrue that they have produced final inscription which manifest theBculmination of the inventory proceedings and shows that plaint scheduleproperty stood allotted to Shantibai.

82. It is true that under the sale deed dated 17.11.1915 Suriajiwas 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 inCrespect of the properties left behind by him. It is the appellants caseinter alia stated Suriaji had only 1/8 share in property ‘M’ and 1/4 sharein property ‘B’. Having regard to acknowledgment of ½ rights over thesaid property in favour of Gones as contained in settlement deed dated21.1.1919,it is the appellants case that the inventory proceedings could

Dhave been concerned only with what was owned by the deceased Suriajiand it could not have resulted the entire 1/4 right in property ‘M’ and1/2 right in property ‘B’ being allotted to Shantibai. It is contended thatit involved fraud to give such excessive right to Shantibai.

83. It is next contended by the appellants that even if it is thatEunder the inventory proceedings allotment was made of 1/4 share inproperty ‘M’ and 1/2 right in property ‘B’, the status quo under thedissolution deed dated 21.1.1919 would continue. In other words evenunder the settlement deed of 1919Suriajialongwith his wife had undertakentransfer of 1/ 2 share to Gones. After inventory proceedings under theinscription of even of the entire right belonging to Suriaji and GonesFstood allotted to Shantibai, Shantibai would continue to remain liable as atrustee.

It is further contended as vogal on behalf of the minorchildren,during the inventory Gones was only obliged to protect the interestof the minors. Therefore even if property is shown allotted to LaxmiGBai, it would not have any impact on the property of Gones.

84. In regard to the aforesaid contentions when we are dealingwith the case with the perspective ofacquiescence, abandonment andestoppel we come to the following conclusions. Gones was himselfamajor, by the time inventory proceedings commenced and culminated.H

He was aware of his rights under the sale deed of 1915 as declared inthe dissolution deed of 1919. We must proceed on the basis that theinventory 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 soallotted despite the settlement deed of 1919 which according to theappellants carved out rights in favour of Gones and towards ½ of theproperties ‘B’ to the appellants is matter which this Court is unable toembark upon but it is clear that Shantibai stood allotted the property intune with the sale deed.

85. What is important is nothing is produced by the appellants toshow that Gonesprotested in any manner either during or at the end ofproceedings. Nothing is produced to show that allotment to Shantibaiwas ever challenged in any manner by Gones. In other words,Gones byhis conduct must be treated as having held that he has accepted that theproperty which was allotted in the inventory proceedings will belong toShantibai. Since 1937 when the said allotment took place for all purpose,the property stood acknowledged byGones as property allotted toShantibai. We are unable to accept the case that it would amount tofraud. There is no case of fraud as such set up by the appellants. Thereis definite case for the respondents that there is no concept of trust inthe Portuguese law and that there is no distinction between legal andequitable estate. We have taken the view that the concept of trust maybe inapplicable.86. There may be plausible reason as to why it all happened.After1919 as we have already noticedSuriaji executed deed of his entire ¼right which he acquired under the gift from his grandfather in favour ofGones which translated to roughly 22.5 hectares. There is no case thatthe said gift was not accepted by Gones. In fact, the property coveredby said gift and also the property gifted by the grandfather to Gones withanother 1/ 4 right in property ‘M’ came to be sold in the year 1937.

87. It is also most significant that not only did Gones did not raiseany objection during or immediately after inventory proceedings but thoughhe lived till the year 1978 which is nearly 41 years after 1937 Gones isnot shown to have ever raised any claim in regard to the plaint scheduleproperty while he was alive. Equally as found by the High Court and thefirst appellate Court there is no material to show that Gones was inreceipt of income from property which is specific case of the appellants.In fact P.W.1 states as follows:

A“It is conditional agreement to transfer registration in the nameof Gones by Suriaji. He further says “I also do not know whatwas the exact amount which had to be paid by Gones to Suriaji toeffect registration of the property”. He further categorically statesthat the last time he went to the property was in 1940/1941 (atthat time he was apparently about 9 years) and he says heBremembers plucking of the produce. He does not have case ofreceiving income after the death of his father Gones as he statesthat from 1979 payments were stopped. As far as paymentreceived prior to 1979 we have already found that his testimonyhas not been believed by the two courts and we see no reasonCeither to take different view.”

88. Thus,Goneswas not in receipt of any income. Property wasshown in the name of Shantibai. Still further in 1969 Shantibai executesa gift deed of the plaint scheduled properly. Immediately thereafterpartition deeds are executed between Shantibai and children.DThus,Shantibai treated the property as belonging to her and she hasaccordingly executed the Gift deed and subsequently partition deedentered into on the said basis. Still later land acquisition proceedingswere held in respect of part of the plaint schedule property. Thecompensation determined was paid on the basis that Gones did not have

any right. When such is the position, we would think that on the face ofEit abandonment may not be inappropriate in the peculiar facts of thiscase. If the legal requirement is it must further amount to estoppel, oneof the conditions to be fulfilled is acting on the representation, therepresentee must act to his detriment. We proceed on the basis thatthere was representation by conduct of Gones, that he acknowledgedFthe right of Shantibai. It may be difficult to establish that Shantibai actedto her detriment. Further there is no defence pleaded as to estoppel orabandonment. No doubt the latter objection may be milder obstacle ifthe pleading as whole could imply such case.

DISCRETION IN AN APPEAL GENERATED BY SPECIALGLEAVE

89. We will however assume and proceed on the footingthat Goneswas entitled for 1/2 share, payment of Rs.1000/- was not conditionprecedent in suit based on title thatadverse possession has not beenproved(particularly having regard to the inconsistent plea based on

title)andsince Gones had title and the substantive prayer is to be treatedas one for partition [even though the declaratory relief may be barred]and therefore suit is not barred by time and there is no estoppel.Still wewould not exercise our discretionary power in an appeal which isgenerated by special leave. It will be wholly inequitable to intervene infavour of the appellants as successors of Gones. The decree of the firstappellate court as confirmed by the High Court in our view has resultedin decision which is otherwise just. In Taherakhatoon (D) by LRs v.Salambin Mohammad[31], it has been held that even after the grant ofspecial leave in an appeal this Court is not bound to interfere. ThisCourt inter alia held as follows:

“15. It is now well settled that though special leave is granted, theiscretionary power which vested in the Court at the stage of thespecial leave petition continues to remain with the Court even atthe stage when the appeal comes up for hearing and when bothsides are heard on merits in the appeal. This principle is applicableto all kinds of appeals admitted by special leave under Article 136,irrespective of the nature of the subject-matter. It was so laiddown by Constitution Bench of five learned Judges of this Courtin Pritam Singh v. State [AIR 1950 SC 169 : 1950 SCR 453]. Inthat case, it was argued for the appellant that once special leavewas granted and the matter was registered as an appeal, the caseshould be disposed of on merits on all points and that thediscretionary power available at the stage of grant of special leavewas not available when the appeal was being heard on merits.

16. This Court rejected the said contention and referred to thefollowing dicta of the Privy Council in Ibrahim v. R. [AIR 1914PC 155]:

“[T]he Board had repeatedly treated applications for leave toappeal and the hearing of criminal appeals as being upon thesame footing: Reil case [Riel v. R., (1885) 10 AC 675 : 58LJPC 28] ; Deeming, ex p [1892 AC 422 : 8 TLR 577]. TheBoard cannot give leave to appeal where the grounds suggestedcould not sustain the appeal itself; and conversely, it cannotallow an appeal on grounds that would not have sufficed forthe grant of permission to bring it.”

This Court observed that the rule laid down by the Privy Councilis based on sound principle and only those points could be urgedat the final hearing of the appeal which were fit to be urged at thepreliminary stage when leave to appeal was asked for and it wouldbe illogical to adopt different standards at two different stagesof the same case. This Court observed (para 8) that, so far asArticle 136 was concerned, it was to be noted firstly that it wasvery general and was not confined merely to criminal cases,and that (see para 9), the wide discretionary power with whichthe Court was concerned was applicable to all types of cases.The power under Article 136 according to this Court,

“is to be exercised sparingly and in exceptional cases only,and as far as possible more or less uniform standard shouldbe adopted in granting special leave in the wide range of matterswhich can come up before it under this article. By virtue ofthis article, we can grant special leave in civil cases, in criminalcases, in income tax cases, in cases which come up beforedifferent kinds of tribunals and in variety of other cases”.

(emphasis supplied)

This Court emphasised:

“The only uniform standard which in our opinion can be laiddown in the circumstances is that Court should grant specialleave to appeal in those cases where special circumstancesare shown to exist.”

This Court then concluded:

“Generally speaking, this Court will not grant special leave,unless it is shown that exceptional and special circumstancesexist, that substantial and grave injustice has been doneand that the case in question presents features of sufficientgravity to warrant review of the decision appealed against.”

20.In view of the above decisions, even though we are now dealingwith the appeal after grant of special leave, we are not bound togo into merits and even if we do so and declare the law or pointout the error — still we may not interfere if the justice of the case

on facts does not require interference or if we feel that the reliefcould be moulded in different fashion...”

(emphasis supplied)

In this case, as we have noticed apart from 22.5 hectares inproperty ‘M’ which was obtained by gift deed executed by grandfatherin favour of Gones, in 1925. Gones acquired another gift by Suriaji’swife 22.5 hectares of land in property ‘M’. As we have noticed therewas 91 hectares in property ‘M’ and nearly 31 hectares as property ‘B’.ThusGones got 45 hectares approximately as result of the gift deedsof 1913 and 1925. The case of the appellant is based on the settlementdeed of 1919,no doubt read with sale deed of 1915. If instead of Giftdeed of 1925 and Suriaji had to strictly confirm to the deed of 1919 asappellants contended Suriaji would have had to transfer only 19 hectaresit would be little more than 11 hectares from property ‘M’ and littlemore than 7 hectares from property ‘B’ but the grand total would havebeen only 19 hectares. Gones in other words would have got 19 hectaresbut admittedly Suriaji has gifted Gones 1/4 share in property ‘M’ in 1925which translated to about 22.5 hectares. Thus he was given almostmore than 3 hectares than he would have got if the settlement deed of1919 was enforced. If the suit is decreed in this case, the result wouldbe that Gones would stand allotted little more than 64 hectares whereasthe branch of Suriaji would have to rest content with just 19 hectares.This fact as also the fact the Gones during his whole lifetime and it beremembered that Gones died only in 1978 did not raise his little fingeragainst the exclusive right being given to his brother’s family dissuadesus at any rate from interfering in this matter. Consequently, the CivilAppeals stand dismissed. Parties to bear their own costs.

Devika Gujral

Appeals dismissed.