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

- **Citation:** [2019] 14 S.C.R. 859
- **Court:** Supreme Court of India
- **Decided:** 2019-08-21
- **Case number:** Civil Appeal Nos.10501-10502 of 2014
- **Bench:** Navin Sinha, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabhakar-gones-prabhu-navelkar-dead-through-lrs-ors-v-saradchandra-suria-33394
- **Pages:** 69

## Headnote

Hindu Law: Property rights - Dispute related to the two
properties 'M' and 'B' situated in the village of Bainguinim in Goa
- Suriaji and Gones were brothers - The properties in dispute
originally belonged to their grandfather - Plaintiffs-appellants are
heirs and successors in interest of Gones - By the Gift Deed of
1913, the grandfather of Suriaji and Gones had gifted one-half
right in property 'M' to both Suriaji and Gones - The other half
share in property 'M' and the whole of property 'B' vested with the
aunt (father's sister) of Suriaji and Gones - It was in 1915 that the
aunt executed sale deed conveying the rights to Suriaji and to the
other branch, viz., Vitol - A deed of dissolution of accounts,
payments and obligation was executed on 21.01.1919 in which
Suriaji and Gones appeared as parties on the one side representing the Venctexa branch and other branch of Vitol came to be represented by his wife along with her four sons - In deed dated
21.01.1919, Suriaji admitted that the purchase of one-fourth in the
property of 'M' and half of property 'B' by sale deed dated
17.11.1915 was for self and for his brother Gones who paid half
the price - Suriaji and his wife Shantibai undertook to effect the
transfer of registration in the name of Gones, half of the property
purchased in his name - Gones was on the occasion of transfer to
make reimbursement of the half of money paid by Suriaji - In 1925,
Suriaji and his wife Shantibai gifted in favour of Gones one-fourth
of property 'M' acquired by Suriaji from his grandfather under the
gift deed dated 09.03.1913 - Gones, thus, became entitled to
one-eighth of the property 'M' and one-fourth of the property 'B'
as a result of purchase made under deed of sale dated 17.11.1915
- In 1937, half share of Gones in property 'M' was sold in public
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auction in execution proceedings against Gones - Despite the
dissolution of the Hindu undivided family, the families of Gones
and his brother Suriaji and the other branch always lived together
- In 1949, Gones proceeded to Daman on account of his
employment - He received his share from the suit property until his
death which took place in December 1978 - After his death,
appellants were not given their share and when they found that
their names were not included in the Survey records, they made
application to the survey authorities and came to know for the first
time about the partition deed dated 13.03.1969 and found that they
were excluded - Appellants filed suit for declaration that they were
entitled to one-eighth share in the property 'M' and one-fourth share
in the property 'B'; that the Deed of Partition dated 13.03.1969
executed by the concerned defendants was null and void and not
binding on them - Trial Court decreed the suit - However, First
Appellate Court set aside the order of trial court - High Court by
impugned order dismissed the appeal, holding that whatever right
or interest may have survived with Gones, was lost, as Gones did
not at any point of time challenge the allotment of property to
Shantibai which allotment in the Inventory Proceedings and
recording/ registration of rights in her favour has attained finality
for want of challenge - On appeal, held: By virtue of sale deed of
1915 and settlement deed of 1919, it cannot be concluded that Gones
acquired title as such in the plaint schedule property - Not only did
Gones not object during or immediately after inventory
proceedings but though he lived till the year 1978, he never raised
any claim in regard to the plaint schedule property - Equally as
found by the High Court and the first appellate Court, there was
no material to show that Gones was in receipt of income from
property which was specific case of the appellants - Property was
shown in the name of Shantibai - Still further in 1969, Shantibai
executed a gift deed of the plaint scheduled property -
Immediately thereafter parti

## Text

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PRABHAKAR GONES PRABHU NAVELKAR (DEAD)
THROUGH LRS & ORS.
v.
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 two
properties 'M' and 'B' situated in the village of Bainguinim in Goa
- Suriaji and Gones were brothers - The properties in dispute
originally belonged to their grandfather - Plaintiffs-appellants are
heirs and successors in interest of Gones - By the Gift Deed of
1913, the grandfather of Suriaji and Gones had gifted one-half
right in property 'M' to both Suriaji and Gones - The other half
share in property 'M' and the whole of property 'B' vested with the
aunt (father's sister) of Suriaji and Gones - It was in 1915 that the
aunt executed sale deed conveying the rights to Suriaji and to the
other branch, viz., Vitol - A deed of dissolution of accounts,
payments and obligation was executed on 21.01.1919 in which
Suriaji and Gones appeared as parties on the one side representing the Venctexa branch and other branch of Vitol came to be represented by his wife along with her four sons - In deed dated
21.01.1919, Suriaji admitted that the purchase of one-fourth in the
property of 'M' and half of property 'B' by sale deed dated
17.11.1915 was for self and for his brother Gones who paid half
the price - Suriaji and his wife Shantibai undertook to effect the
transfer of registration in the name of Gones, half of the property
purchased in his name - Gones was on the occasion of transfer to
make reimbursement of the half of money paid by Suriaji - In 1925,
Suriaji and his wife Shantibai gifted in favour of Gones one-fourth
of property 'M' acquired by Suriaji from his grandfather under the
gift deed dated 09.03.1913 - Gones, thus, became entitled to
one-eighth of the property 'M' and one-fourth of the property 'B'
as a result of purchase made under deed of sale dated 17.11.1915
- In 1937, half share of Gones in property 'M' was sold in public
 [2019] 14 S.C.R. 859
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auction in execution proceedings against Gones - Despite the
dissolution of the Hindu undivided family, the families of Gones
and his brother Suriaji and the other branch always lived together
- In 1949, Gones proceeded to Daman on account of his
employment - He received his share from the suit property until his
death which took place in December 1978 - After his death,
appellants were not given their share and when they found that
their names were not included in the Survey records, they made
application to the survey authorities and came to know for the first
time about the partition deed dated 13.03.1969 and found that they
were excluded - Appellants filed suit for declaration that they were
entitled to one-eighth share in the property 'M' and one-fourth share
in the property 'B'; that the Deed of Partition dated 13.03.1969
executed by the concerned defendants was null and void and not
binding on them - Trial Court decreed the suit - However, First
Appellate Court set aside the order of trial court - High Court by
impugned order dismissed the appeal, holding that whatever right
or interest may have survived with Gones, was lost, as Gones did
not at any point of time challenge the allotment of property to
Shantibai which allotment in the Inventory Proceedings and
recording/ registration of rights in her favour has attained finality
for want of challenge - On appeal, held: By virtue of sale deed of
1915 and settlement deed of 1919, it cannot be concluded that Gones
acquired title as such in the plaint schedule property - Not only did
Gones not object during or immediately after inventory
proceedings but though he lived till the year 1978, he never raised
any claim in regard to the plaint schedule property - Equally as
found by the High Court and the first appellate Court, there was
no material to show that Gones was in receipt of income from
property which was specific case of the appellants - Property was
shown in the name of Shantibai - Still further in 1969, Shantibai
executed a gift deed of the plaint scheduled property -
Immediately thereafter partition deeds were executed between
Shantibai and children - Thus, Shantibai treated the property as
belonging to her - Still later land acquisition proceedings were held
in respect of part of the plaint schedule property - The
compensation determined was paid on the basis that Gones did not
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have any right - Thus there was representation by conduct of Gones,
that he acknowledged the right of Shantibai - Further there was no
defence pleaded as to estoppel or abandonment - Thus,
interference with the impugned order of High Court is not
called for.
Dismissing the appeals, the Court
HELD: 1. Under the sale deed dated 17.1.1915, 1/4th share
of property 'B' and 1/2 right in property 'M' came to be
conveyed to Suriaji, the other part being conveyed to the Vitol
branch. The document dated 21.1.2019 is described as a deed of
declaration, fixation of balance of accounts, payment and
obligation. The deed appears to provide for distribution of joint
family and for settlement of accounts of the family which lasted
only 3 years. It is inter alia stated therein that parties of the first
part Suriaji stated that the purchase made by him by the sale
deed dated 17.11.1915 was made for himself and for Gones, his
brother and that he has paid for half of the price of the said
purchase, therefore he undertakes alongwith Shantibai to
transfer in the name of Gones the half of the properties purchased
in his name by the aforesaid deed at any time he may desire, to
have it transferred and on the occasion of this transfer, the said
Gones will have to indemnify him with half of the amount which
has now been paid to the party of the second part Laxmi from the
money of the dowry of his wife. There is no denial of the
averment of Gones having paid the consideration. It is stated
immediately after stating that he has paid for half of the price for
the said purchase, therefore, he has undertaken alongwith the
said Shantibai to transfer to Gones, the half of the properties
purchased in his name etc. A sum of Rs.1000/- was a
considerable sum of money in 1919. No doubt it could have been
made prior to demanding the transfer. The clause cannot be
understood to mean that either it need not be paid or the
payment could be deferred. There is no case that Gones offered
Rs.1000/- to Suriaji during his lifetime and the transfer of
mutation or of right was refused. PW 1 goes to the extent of
deposing that the 'obligation to reimburse Suriaji did not devolve
upon the heirs of Gones'. Thus the suit is filed with neither Gones
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)
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nor even the appellants paying or even offering to pay the sum
mentioned in the deed of 1919. [Paras 50, 58, 61, 62, 63] [898-H;
899-A; 904-H; 905-A-D; 907-G-H; 908-A, F-H; 909-A-B]
Syndicate Bank v. Prabha D. Naik (2001) 4 SCC 713 :
[2001] 2 SCR 714 - distinguished.
Hardevinder Singh v. Paramjit Singh and Others
(2013) 9 SCC 261 : [2013] 1 SCR 903; Justiniano
Augusto De Piedade Barreto v. Antonio Vicenta Da
Fonseca and Others (1979) 3 SCC 47 : [1979] 3 SCR
494 - referred to.
2. There is another perspective. In the plaint, at para '9',
what is stated is that in the year 1915, Piru and her husband sold
the property by deed of sale dated 17.11.1915 in equal parts to
Suriaji and to Laxmi. Thereafter, in para '11', Suriaji in the deed
dated 21.01.1919 is stated to have expressly admitted that the
purchase of 1/4th of "M" and 1/2 of "B" made under sale deed
dated 17.11.1915, was for himself and his younger brother and
who paid its price at the time of purchase and therefore, it was
undertaken to transfer the registration, upon Suriaji being
reimbursed by Gones in the payment of 1/2. It is admitted that
the sale deed is in favour of Suriaji. It is nearly 4 years thereafter
in the document of 1919 that the admission by Suriaji about 1/2
price, being paid and about the undertaking is setup. There is no
case for the appellants in the plaint that Suriaji was benamidar or
a name lender. The principle of resulting trust underlies Section
82 of the Trust Act. There can be no doubt that Trust Act was
inapplicable to Goa in 1915 and in 1919 as Goa was not part of
British India. Certain tests are propounded in determining
whether a transaction is benami which have to be fulfilled. No
doubt, the most important test is who provided consideration.
There is no pleading in the plaint about the transaction being a
benami transaction. If benami was recognized in Goa under
Portuguese rule then it could be said that Gones would become
the owner provided the transaction is treated as a benami
transaction. But there is no case of benami set up. Thus, a
purchase which is made benami, leads to a resulting trust. At
least the appellants have no case that it did apply. They have not
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produced anything to show that it applied. If the Trust Act which,
undoubtedly, did not apply to Goa in 1915 or even in 1919 and in
Section 82 thereof, lay embedded the principle of benami or
resulting trust, how can appellant claim that Gones became
entitled as owner under the document of 1915 read with the
document of 1919. If it was reduced to a contract executory in
nature, to perform an obligation upon which alone the title would
vest, it was subject to the condition precedent of payment of
Rs. 1000/- by Gones. Even according to the appellants obligation
to pay Rs.1000/-, did not pass to them. This conduct of the
appellant's, in seeking to derive rights under the document of
1919, even though, their predecessor in interest has failed either
deliberately or otherwise to perform his obligation during his
entire life time cannot be approved of. Section 82 of the Trust
Act recognized that when a person transferred property to another
for consideration, which is paid by a third party then the said
person would be the beneficial owner. The transferee in name or
Benamidar would hold the property in trust for the person who
has actually provided consideration. There is, no case based on
benami ever set up by the appellant. Therefore, by sale deed of
1915 and the settlement deed of 1919 it may not be safe to
conclude that Gones acquired title as such in the plaint schedule
property. In the light of this, no finding is rendered as regards
adverse possession or ouster. [Paras 64, 65, 67, 68] [909-C-G;
911-C-H; 912-A-E]
Controller of Estate Duty, Lucknow v. Alok Mitra
AIR 1981 SC 102 : [1981] 1 SCR 943 - referred to.
3. After dissolution deed dated 21.1.1919 there took place,
another development in the form of execution of gift deed by
Suriaji in the year 1925. Under the gift deed of 1925, Suriaji has
gifted Gones his 1⁄4 right in property 'M' which he acquired under
the gift deed executed by his grandfather in the year 1913. Suriaji
passed away in the year 1925 after the gift. It is thereafter that
inventory proceedings took place in regard to the properties of
Suriaji under the Portuguese Civil Code. Gones stood as vogal
apparently on behalf of the minor children of Suriaji under the
Portugues Civil Code. The documentary evidence is found by
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
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the first appellate Court to establish that 1⁄4 of property 'M' and
1⁄2 of property 'B' stood allotted in the name of Shantibai, the
widow of the Suriaji. [Para 69] [912-F-G; 913-A-C]
4. When vested right is established such as ownership it
can be divested only by sale or gift. It will not be possible to hold
that mere laches or standing by itself may be sufficient to
extinguish title. Merely saying that a person has abandoned his
property does not lead to extinguishing of vested right such as
right to ownership in property. Certainly, an abandonment which
amounts to an estoppel would result in stopping a party or his
representative from seeking legal redress or setting up the claim
in a court of law. In the facts of this case there is an added feature.
Under the document dated 21.1.1919 Gones was to make a
reimbursement of Rs.1000/- as it turns out being half the amount
paid by his brother Suriaji from out of the proceeds of his wife's
dowry to Laxmi who represented the other branch. Something
remained to be done on the part of Gones and thereupon it was
for Suriaji to transfer. In that sense it could be described as an
executory contract. [Paras 79-80] [921-D-G]
Dilboo (Smt.)(Dead) by LRs. and Others v. Dhanraji
(Smt.)(Dead) and Others (2000) 7 SCC 702 : [2000] 3
Suppl. SCR 214 ; Damodar Ramnath Alve v. Gokuldas
Ramnath Alve and Others MANU/MH/0535/1996;
Zacarias Durate Domingos Pereira v. Camilo Inacio
Pereira 1990 (1) Goa LT 174 ; Sha Mulchand and
Co.Ltd. v. Jawahar Mills Ltd, Salem AIR 1953 SC 98 :
[1953] SCR 351 ; Dr. Karan Singh v. State of J & K
and Another (2004) 5 SCC 698 : [2004] 1 Suppl. SCR
43 - referred to.
5. In regard to the inventory proceedings, no doubt, it is
true that the inventory proceedings per se are not produced. It
may be true that burden of adducing evidence relating to inventory
proceeding was on the contesting defendants but it is equally
true that they have produced final inscription which manifest the
culmination of the inventory proceedings and shows that plaint
schedule property stood allotted to Shantibai. Under sale deed
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dated 17.11.1915 Suriaji was a transferee of 1/4 share of property
'M' and 1/2 in property 'B'. When Suriaji died, the inventory
proceedings was to be held only in respect of the properties left
behind by him. Gones was major, by the time inventory
proceedings commenced and culminated. He was aware of his
rights under the sale deed of 1915 as declared in the dissolution
deed of 1919. The inventory proceedings culminated with 1⁄4 right
in 'M' and 1/2 in 'B' being allotted to Shantibai. As to how the
said property came to be so allotted despite the settlement deed
of 1919 which according to the appellants carved out rights in
favour of Gones and towards 1⁄2 of the properties 'B' to the
appellants is a matter which this Court is unable to embark upon
but it is clear that Shantibai stood allotted the property in tune
with the sale deed. What is important is nothing is produced by
the appellants to show that Gones protested in any manner either
during or at the end of proceedings. Nothing is produced to show
that allotment to Shantibai was ever challenged in any manner by
Gones. In other words, Gones by his conduct must be treated as
having held that he has accepted that the property which was
allotted in the inventory proceedings will belong to Shantibai.
Since 1937 when the said allotment took place for all purpose,
the property stood acknowledged by Gones as property allotted
to Shantibai. It would not amount to fraud. There is no case of
fraud as such set up by the appellants. There is a definite case for
the respondents that there is no concept of trust in the Portuguese
law and that there is no distinction between legal and equitable
estate. The concept of trust may be inapplicable. [Paras 81, 82,
84, 85] [922-A-D; 923-A-E]
6. Not only did Gones did not raise any objection during
or immediately after inventory proceedings but though he lived
till the year 1978 which is nearly 41 years after 1937 Gones is not
shown to have ever raised any claim in regard to the plaint schedule
property while he was alive. There is no material to show that
Gones was in receipt of income from property which is specific
case of the appellants. Thus, Gones was not in receipt of any
income. Property was shown in the name of Shantibai. Still further
in 1969 Shantibai executes a gift deed of the plaint scheduled
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D)
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properly. Immediately thereafter partition deeds are executed
between Shantibai and children. Thus, Shantibai treated the
property as belonging to her and she has accordingly executed
the Gift deed and subsequently partition deed entered into on
the said basis. Still later land acquisition proceedings were held
in respect of part of the plaint schedule property. The
compensation determined was paid on the basis that Gones did
not have any right. When such is the position, on the face of it
abandonment may not be inappropriate in the peculiar facts of
this case. If the legal requirement is it must further amount to
estoppel, one of the conditions to be fulfilled is acting on the
representation, the representee must act to his detriment. There
appears to be representation by conduct of Gones, that he
acknowledged the right of Shantibai. It may be difficult to establish
that Shantibai acted to her detriment. Further there is no defence
pleaded as to estoppel or abandonment. [Paras 87, 88]
[923-G-H; 924-D-F]
Taherakhatoon (D) by LRs v. Salambin Mohammad
(1999) 2 SCC 635 : [1999] 1 SCR 901 - relied on.
Mohammad Ali (Dead) by LRs. v. Jagadish Kalita and
Others (2004) 1 SCC 271 : [2003] 4 Suppl. SCR
325 ; Jai Singh and Others v. Gurmej Singh (2009) 15
SCC 747 : [2009] 1SCR 413; P. John Chandy and Co.
(P) Ltd. v. John P. Thomas (2002) 5 SCC 90 : [2002] 3
SCR 549 ; L. N. Aswathama and Another v. P. Prakash
(2009) 13 SCC 229 : [2009] 10 SCR 615 ; Kuldip
Mahaton and Others v. Bhulan Mahato (Dead) by LRs.
and Others (1995) 2 SCC 43 : [1994] 6 Suppl. SCR
220 ; P.T. Munichikkanna Reddy and Others v. Revamma
and Others (2007) 6 SCC 59 : [2007] 5 SCR 491;
State of U.P. Another v. Universal Exporters and Another (1997) 7 SCC 531 : [1997] 4 Suppl. SCR 49;
Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204:
[2003] 2 Suppl. SCR 743; Sankalchan Jaichandbhai
Patel and Others v. Vithalbhai Jaichandbhai Patel and
Others (1996) 6 SCC 433 : [1996] 6 Suppl. SCR 333;
Mohinder Singh and Another v. Kashmira Singh
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AIR 1985 P&H 215; Ashok Kumar and Others v.
Gangadhar and Another AIR 2007 AP 145 ; Banarsi
and Others v. Ram Phal (2003) 9 SCC 606 : [2003] 2
SCR 22; Mohan Lal (deceased) Through His LRs.
Kachru and Others v. Mirza Abdul Gaffar and Another
(1996) 1 SCC 639 : [1995] 6 Suppl. SCR 638 ;
Sheela Rodrigues and Another v. Lourencinha Ana
D'Cruz Rodrigues Fernandes (1999) SCC Online
Bombay 109; Raj Narain Pandey and Others v.
Sant Prasad Tiwari and Others (1973) 2 SCC 35:
[1973] 2 SCR 835 ; Jay Laxmi Salt Works (P) Ltd. v.
State of Gujarat (1994) 4 SCC 1 ; Vishram alias Prasad
Govekar and Others v. Sudesh Govekar (Dead) by
Legal Representatives and Others (2017) 11 SCC 345 :
[2016] 12 SCR 174 ; Eurekha Builders and Others v.
Gulabchand, S/o Veljee Dand Since Deceased by
Legal Representatives and Others (2018) 8 SCC 67 :
[2018] 4 SCR 779 ; Khatri Hotels Private Limited and
Another v. Union of India and Another (2011) 9 SCC
126 : [2011] 15 SCR 299 - referred to.
Case Law Reference
[2003] 4 Suppl. SCR 325 referred to
Para 20
[2009] 1 SCR 413
 referred to
Para 21
[2002] 3 SCR 549
 referred to
Para 23
[2009] 10 SCR 615
 referred to
Para 24
[1994] 6 Suppl. SCR 220 referred to
Para 25
[2007] 5 SCR 491
 referred to
Para 26
[1997] 4 Suppl. SCR 49 referred to
Para 27
[2003] 2 Suppl. SCR 743 referred to
Para 28
[1996] 6 Suppl. SCR 333 referred to
Para 29
[2003] 2 SCR 22
 referred to
Para 32
[1995] 6 Suppl. SCR 638 referred to
Para 33
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D) [
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[1973] 2 SCR 835
 referred to
Para 35
(1994) 4 SCC 1
 referred to
Para 35
[2000] 3 Suppl. SCR 214 referred to Para 36
[2016] 12 SCR 174
 referred to
Para 36
[2018] 4 SCR 779
 referred to
Para 38
[2011] 15 SCR 299
 referred to
Para 39
[2001] 2 SCR 714
 distinguished
Para 46
[1979] 3 SCR 494
 referred to
Para 47
[2013] 1 SCR 903
 referred to
Para 53
[1981] 1 SCR 943
 referred to
Para 64
[2003] 2 Suppl. SCR 743 referred to
Para 71
(1999) SCC Online Bom 109 referred to
Para 72
[2000] 3 Suppl. SCR 214 referred to
Para 73
[1953] SCR 351
 referred to
Para 77
[2004] 1 Suppl. SCR 43 referred to
Para 78
[1999] 1 SCR 901
 relied on
Para 89
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal Nos. 10501-10502 of 2014
 From the Judgment and Order dated 20.11.2009 of the High Court
of 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 judgment
of the High Court of Bombay at Goa in Second Appeals Nos. 16 of 2004
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and 17 of 2004. The appellants are the plaintiffs. By the impugned
judgment, the High Court has dismissed the appeals. The trial Court in
fact had partly decreed the suit. However, the First Appellate Court
reversed the judgment of the trial Court and dismissed the suit. By the
impugned judgment, the High Court affirmed the decision of the First
Appellate Court.
2. We may refer to following genealogy chart, which will
facilitate better understanding of the issues involved:
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]
NAGENDRA
ANNEXURE P-1
NAVELKAR FAMILY
VINTECTEXA POROBO NALVELKAR
(WIFE: PADMAVATI PORBINI)
NAVELKAR)
 (WIFE: LAXIMI VINTOLA POROBO
(SONS)
VINTOLA POROBO NAVELKAR
RAMACHANDRA
POROBO NALVELKAR
GROUP P/BRANCH OF VENKTEXA
(SON)
(DAUGHTER)
BALAKRISHNA PORSHOTTAMA SRNIVAS
PIRU ALIAS
SOROSPATI
POININ
(SON)
SURIAJI POROBO
NAVELKAR
(WIFE : SHANTIBAI)
(SON)
GONES POROBO
NAVELKAR
(WIFE :
PREMAWATI)
GROUP/BRANCHES OF VITOL
DF.7
TO
DF.27
P1
PRABHAKAR
P3
PREMANAND
D28
SMT. JAISHREE
(HUSBAND : VISHNU KAMAT) D 29
D5
VENCTEXA
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3. As can be noticed, the litigation concerns the properties of the
Navelkar family. Parties are referred to with reference to the position in
the trial Court. Venctexa Suria Porobo Navelkar was married to one
Padmavati. They had one son by name Ramchandra Porobo and a
daughter by name Piru. Ramchandra in turn had two sons, namely, Suriaji
and Gones. The plaintiffs no. 1 and 3 are sons of Gones. The 2nd plaintiff
is the wife of the first plaintiff and the 4th plaintiff is the wife of the
3rd plaintiff. Defendants no. 1 and 3 are the sons of Suriaji. Defendant
no. 2 is the wife of 1st defendant. Defendant no. 4 is the wife of
3rd defendant. Defendant no. 5 is the sister of the defendants no. 1 and
3. Defendant nos. 7 to 27 are drawn from the other branch of the
Navelkar family. As noticed from the genealogy chart Venctexa
Navelkar's brother was Vitol Porobo. The wife of Vitol Porobo was
Laxmi. They had four sons. Defendants no. 7 to 27 represent the branch
of late Vitol. Defendant no. 28 is the sister of plaintiff nos. 1 and 3
and29th defendant is her husband.
4. The case set up by appellants in short is as follows. There exist
two properties known as "Mallons" (hereinafter referred to as "M")
and "Bainguinim" (hereinafter referred to as "B") situated in the village
of Bainguinim in Goa. The properties lie adjoining to each other. M is
admeasuring 90 hectares (approximately).B admeasures 31 hectares
(approximately). Together they constitute the plaint schedule properties.
By a deed of gift, dated 09.03.1913, Venctexa gifted half of the property
of M to his grandsons, namely, Suriaji and Gones. In the inventory
proceedings, held upon the demise of Padmavati, wife of Venctexa, the
remaining half of the property of M and the entire property of B was
allotted to their daughter named Piru. In the year 1915, Piru along with
her husband, by a deed of sale dated 17.11.1915, sold in equal parts the
remaining half in the property M and the entire property B to Suriaji and
Laxmi. This meant 1/4th right in property 'M' and 1/2 right of 'B' was
sold to Suriaji. Later on a deed styled as a deed of dissolution of
accounts, payments and obligation came to be executed on 21.01.1919.
In the said deed Suriaji and Gones appeared as parties on the one side
representing the Venctexa branch and other branch of Vitol came to be
represented by his wife Laxmi along with her four sons. In the said deed
dated 21.01.1919 Suriaji admitted that the purchase of 1/4th in the
property of M and half of property B by the sale deed dated 17.11.1915
was for self and for his brother Gones who paid half the price.
Therefore, Suriaji and his wife Shantibai undertook to effect the transfer
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of registration in the name of Gones, half of the property purchased in
his name at all time if so desired. Gones was on the occasion of transfer
to make reimbursement of the half of money paid by Suriaji to Laxmi
towards the dowry account to his wife. In the year 1925 Suriaji and his
wife Santibai gifted in favour of Gones the 1/4th of property M acquired
by Suriaji from his grandfather under the gift deed dated 09.03.1913.
Therefore, Gones became entitled to 1/8th of the property M and 1/4th of
the property B as a result of purchase made under deed of sale dated
17.11.1915. The further case of the plaintiffs is that half share of Gones
in property M came to be sold in public auction in execution proceedings
against Gones. Despite the dissolution of the Hindu undivided family of
Navelkars, the two branches continued to live in their own ancestral
house under the same roof. Annual income from the property in or about
1940 hardly exceeded Rs. 1000/-. The families of Gones and his brother
Suriaji always lived continuously together. In 1949 Gones proceeded to
Daman on account of his employment. He used to get his share from
the suit property until his death which took place in December 1978.
After death of Gones, plaintiffs were not given their share. Plaintiffs
found that their names were not included in the Survey records. They
made an application to the survey authorities. They came to know
somewhere in 1983 that one or two junior members of the Navelkar's
family are making preparations to dispose of some portion of the suit
property. There is reference to proclamation of sale by the Assistant
Registrar informing bidders in respect of portion of suit properties. They
came to know for the first time about the partition deed dated 13.03.1969
and found that the plaintiffs and other co-owners are excluded.
Accordingly, they filed a suit for following relief:
"(a) For a decree to declare that the plaintiffs together with the
defendant Nos. 28 and 29 are entitled to 1/8th share in the
property Mollans and 1/4th share in the property Bainguinim. The
shares of the defendant Nos. 1 to 6 in the said two properties
being 3/8th and 1/4th respectively and the share of the remaining
defendants of the Branch of Vitol Porobo being 1⁄2 each in the suit
properties.
(b) For a decree to declare that the Deed of Partition dated
13.03.1969 executed by the concerned defendants is null and void
and not binding on the plaintiffs and for cancellation of the said
deed;
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]
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(c) For a decree against the defendant Nos. 1, 3 and 5 jointly and
severally, to pay to the plaintiffs their share of income in
proportion to their share of income in proportion to their
aforementioned right in the suit properties since 1979, the share
which the said defendants have no right to retain with them.
(d) For a decree to partition the suit properties to separate the
plaintiffs' rights and shares in the proportion stated specifically
herein above.
(e) For a decree to rectify the survey records to include their
names together with the names of defendant Nos. 28 and 29 by
directing resurvey in relation to the suit properties.
(f) For a decree of permanent injunction to restrain the defendants
in general and the defendant Nos. 1 to 6 and the defendant Nos.
30 and 31 in particular from negotiating deal of any type in respect
of the suit properties and/or portion thereof and/or restrain them
from disposing off the same by or in any manner whatsoever."
5. The said suit was resisted. The defendants (as noted by the
trial Court) can be classified in four groups, one group consisted of
defendants 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 group
consisted of defendants no. 28 and 29.
6. The contesting defendants denied the case of the plaintiffs that
they have any right in the property.
7. In the year 1919, it was pointed out that the undivided joint
family of the Navelkar's came to be dissolved. As far as the condition of
settlement deed dated 21.01.1919, it is contended that the payment of
Rs. 1000/- by Gones to Suriaji was condition precedent to effecting
transfer of undivided shares in the two properties to Gones. The period
of payment could not be unlimited. A gift was made by Suriaji and his
wife. The gift deed came to be executed in due performance of the
acknowledgment. There is reference to inventory proceedings taking
place on 07.05.1925 after the death of Suriaji and by order dated
16.12.1925, 1/4th of the property of M and 1⁄2 of the property of B was
confirmed and allotted to the widow of Suriaji, Smt. Shantibai. Gones
intervened as a "Vogal". Thus, in 1925 in relation to suit properties, 1/4th
of M and 1⁄2 of B belonged to Shantibai, 1/4th of M and 1⁄2 of B belonged
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to Laxmi and 1⁄2 of M only belonged to Gones. Property belonging to
Gones came to be sold in 1937. In the said execution sale 1/4th of the
said half was purchased by defendants no. 1,3 and 5 and the remaining
1/4th was purchased by the sons of Laxmi and deceased father of
defendants no. 7, 20, 23 and 25 respectively. Thus, Gones had no right in
the properties B and M.
8. After framing appropriate issues, the trial Court partly decreed
the suit and a preliminary decree of partition was ordered to be directed
to drawn up. The actual decretal portion reads as follows:
"The suit is partly decreed, whereby it is held and declared that
the plaintiffs together with defendants No. 28 and 29 are entitled
to 1/8th share in the property Mollans and 1/4th from the property
Bainguinim; and that the defendants 1 to 6 are holders of 3/8th
and 1/4th share respectively and the share of the remaining
defendants representing the branch of Vitol Porobo is one half
each in the properties Mollans and Bainguinim. Consequently the
Deed of partition dated 31.3.1969 by which the two properties
were divided by and between the concerned defendants including
the plaintiffs, defendants no. 28 and 29, is declared null and void
as such is liable to be cancelled.
 The plaintiffs' prayer for partition in prayer (d) is allowed
to the area of the land from the suit properties allotted to the
branch of Vencatoxa Porobo, represented by defendants 1 to 6
under the Deed of partition dated 31.3.1969. Hence preliminary
decree is passed for separation of the plaintiffs and defendants
28 ad 29 share of 1/8th in Mollans and 1/4th from Bainguinim to be
demarcated with the help of Collector or any gazette subordinate
of 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 as
far as possible from the area under alphabetical letters C,B & F
of Deed of Partition dated 31.3.1969 and the corresponding
survey numbers given to the said portion C, B & F viz. No. 17/1,
27/1, 25/1, 23/1 and 24/1. Collector to comply within six months
as far as possible.
 Survey Authorities directed to carry out mutation of the
plaintiffs claim in respect of Survey Numbers fallen to portions C,
B & F viz. 17/1, 27/1, 25/1, 23/1 and 24/1.
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]
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 The defendants 1 to 6 are permanently restrained from
dealing with and/or disposing in any manner any further portion of
properties delineated as C, B & F in Deed of Partition dated
31.3.1969 and the corresponding survey numbers thereto viz.
17/1, 27/1, 25/1, 23/1 and 24/1, till the partition is effected and
confirmation by this Court.
 Preliminary decree be drawn accordingly.
 Pronounced in Open Court."
9. The trial Court in decreeing the suit proceeded to employ the
following reasoning:
"The settlement deed dated 21.01.1919 confers title on Gones in
respect of the property covered by sale deed dated 17.11.1915
the payment of Rs. 1000/- and nothing to do with consideration.
The consideration was acknowledged as paid in the settlement
deed dated 17.11.1915. The transfer by registration was only
secure and guarantee rights and absence of Gones. There was
no time limit for Gones to exercise his option under the settlement
deed. The suit properties were enjoyed jointly at least until the
deed of partition 1969. The deed of partition was not entered into
with the plaintiffs and defendants no. 28 and 29 who were
cousins. Therefore, it was found to be null and void."
10. The First Appellate Court found that the trial court had
misread the relevant portions of the settlement deed. It was, inter alia,
found that the settlement deed spoke of transfer of half the properties
which meant transfer of title to the properties which was not to be read
as transfer of registration/ mutation. The benefit of reimbursement was
to Gones as it was for him to fulfill the said condition. The First
Appellate Court describes it as absurd to say that the time for option is
unlimited. The condition had to be complied within a reasonable time at
least before the death of Gones. The deed of sale dated 17.11.1915 did
not mention the name of Gones as one of the purchasers or that he had
paid the half of price. There is no evidence to show that Gones had
money, on his own, to pay half of price. The mere assumption, in the
settlement deed, cannot be taken as gospel truth. There may have been
some understanding between the two brothers. Condition had to be
fulfilled by Gones by reimbursing half of the amount paid to Laxmi. The
First Appellate Court appreciated the oral evidence and found that the
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plaintiffs have no right in the property. As they were not co-owners, it
was found that deed of partition being entered into without the junction
of Gones, would not make it illegal or invalid. It was further found that
the suit was barred by law of limitation. It is still further found that the
suit had abated on account of non-impleadment of legal representatives
of certain parties. Two appeals were, accordingly, allowed and suit came
to be dismissed with cost.
Impugned Judgment of the High Court in the Second Appeal
11. The High Court noted that the appeal had been admitted on
the following substantial questions of law:
"(1) Whether by virtue of Sale Deed dated 17.11.1915 read with
the Deed of Declaration dated 21.1.1919, ownership of Gones to
one-eight of the property Mollans, and one-fourth of the property
Bainguinim, stood established or whether the declaration dated
21.1.1919 was merely an agreement, to sell half of what Suryaji
had purchased under Deed dated 17.11.1915 in favour of Gones?
(2) Whether the interpretation placed by the First Appellate Court
on the Deed of Declaration to the effect that it constituted an
agreement to transfer undivided right in the properties Mollans
and Bainguinim in favour of Gones subject to payment of
Rs. 1000/- as a condition precedent reversing the finding of the
trial court that declaration while acknowledging the ownership of
Gones in the two properties merely provided for transfer of
registration in the name of Gones at any time thereafter, is legal
and sustainable?
(3) Whether in a suit for declaration of share in joint property, and
a partition and separation thereof by metes and bounds, the prayer
for declaration is the principal relief, and partition a subsidiary
one, or the relief of declaration and partition, is the principal relief
and such a suit would be within limitation, if filed within 12 years
of the ouster of the plaintiffs from the common properties and not
within 3 years of the denial of their rights therein?
(4) Whether, on true and correct interpretation of the Deed of
Declaration dated 21.1.1919, the exercise of the option for
transfer in the name of Gones, half of the property purchased
under Sale Deed dated 17.11.1915 could be done without any
PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA
SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]
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limitation, particularly in view of the fact that in the Deed it was
specifically stated that the transfer in the name of Gonesh would
be effected "at any time he may wish"?
(5) Whether the suit instituted by the appellants could be declared
to have abated for the alleged non-bringing of some of the heirs
of the deceased defendants, who died during pendency of the
suit, on record in the absence of any objection raised in the
written statement by the defendants, that the suit was bad for
non-joinder of necessary parties, and whether such an objection
could be raised by merely amending the memo of appeal and
when the estate of deceased was substantially represented by
persons already on record?
(6) Whether on the pleadings and the material brought on record
by the defendants First Appellate Court was right in holding that
the suit filed by the plaintiffs was liable to be dismissed as barred
by limitation more so when such finding was aimed in reversal of
the finding of the Court?"
12. It was found, inter alia, that Suriaji had admitted in document
dated 21.01.1919 that 1/8th of property M and 1/4th of property B was
purchased by him for Gonesand Gones was to pay his contribution, as
indicated. No time limit was fixed for payment. The document did not
specify that prior payment should be made by Gones or payment is a
condition precedent. It was further found that acknowledgment of liability to part with property is described as absolute and unambiguous and
the document contains unambiguous recital about the acknowledgment
of existence of right of Gones in the property. It was further found that
right of Gones to receive share is thus crystallized and he had a right
enforceable in law and according to law. If Gones was to exercise and
enforce his rights under the deed dated 21.01.1919, he ought to have
objected to the allotment of share. He did not raise any objection related
to the inventory proceedings in 1925 and it attained finality. Allotment
was not challenged by way of suit which was open to him between 1925
and 1940 or during his life time. Plaintiffs are not witnessing about
allegations that Gones used to receive his share. There is no
documentary evidence. It is a case of oath against oath. Plaintiffs
witnesses did not have knowledge of antecedent facts. The statements
of the plaintiff's witnesses were found to be vague. The following are
the findings summarized by the Court:
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"40.