Sabale Vs. Shalinibai Nagappa Sabale & Ors.  INSC 601 (23 March 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 1782--1783 OF 2009
[Arising out of SLP (Civil) Nos. 5595-5596 of 2008] Vishwanath Bapurao Sabale
...Appellant Versus Shalinibai Nagappa Sabale & Ors. ...Respondents
S.B. SINHA, J :
1. Leave granted.
2. These appeals are
directed against a judgment and order dated 22- 01-2008 passed by a learned
Single Judge of the High Court of Judicature at Bombay in Second Appeal No. 105
of 2007 and Civil Application No. 280 of 2007 with Second Appeal No. 107 of
2007 and Civil Application No. 284 of 2007.
3. Bapurao and
Shivappa were step brothers. Laxmibai was wife of Bapurao. Shivappa married one
Parvatibai. Bapurao died in the year 1958. Laxmibai died on 12-12-1978.
is the adopted son of Laxmibai having been adopted on 5-06-1967. Nagubai is the
daughter of Shivappa and Parvatibai. Shivappa died in the year 1977. Respondent
Nagappa, son of Nagubai is said to have been adopted by Shivappa on 24-01-1969.
The parties are governed by Bombay School of Hindu Law. Nagappa was aged about
19 years when he was allegedly adopted.
4. Bapurao and
Shivappa were living separately. They had separate businesses.
They however had some
joint family properties which were acquired prior to 1934. Bapurao had also
self acquired properties.
having suffered substantial loss in his business had incurred loan in the year
1955. He owed a sum of about Rs. 35,000/- to his creditors.
5. Purportedly with a
view to save the property from the creditors, on or about 2-07-1955, four
registered deeds were executed. The first being a deed of partition, in terms
whereof, the joint family properties were divided in equal shares (which was
marked as exhibit 36) and Bapurao sold his share of joint family property for a
sum of Rs. 5000/- to Shivappa . He also allegedly sold his self acquired
property to Shivappa for the said sum. Two deeds of settlement on the same day
were executed by 3 Shivappa, in terms whereof, the lands transferred in his
favour were settled to Bapurao for enjoyment during his lifetime.
However, it was
stipulated that Bapurao would not have any absolute right over the properties
and were not entitled to alienate the same.
6. Plaintiff after
the death of Shivappa which as noticed hereinbefore took place on 20th
November, 1977 filed three suits before the Joint Civil Judge, J.D. Mohol,
District Judge, Solapur and Principal District Judge, Solapur.
The first one marked
as Regular Civil Suit No. 81 of 1978 was filed for declaration that 22 tin
sheets in the possession of the appellants were owned by him and for mandatory
injunction directing him to handover the same. Regular Civil Suit No. 85 of
1978 was instituted in the court of Joint Civil Judge J.D. Mohol for declaration
of his title over the suit properties and possession claiming the same as the
heir and legal representatives of Shivappa.
Regular Civil Suit
No. 20 of 1979 was instituted with a prayer for grant of a decree for permanent
injunction pertaining to the suit property.
7. Before the Trial
Court, Plaintiff-Respondent No. 1 raised another contention that Shivappa
executed an agreement in favour of Laxmibai allowing her to take the income
from the property. According to him, the said agreement which was an
unregistered one was executed out of love and affection toward Laxmibai
(original defendant No. 1). On the allegation that she did not take care of the
property and a wall collapsed;
and, thus, breach of
terms of the agreement had taken place, a mandatory decree for injunction was
sought for directing handing over the possession of the property to the
plaintiff. It was furthermore contended that as upon death of Laxmibai during
pendency of suit, the said agreement came to an end, the plaintiff even otherwise
became entitled to possession.
8. Appellant however
in his written statement inter alia contended that:
(1) the suit property
was the self acquired property of Bapurao Sabale.
(2) the documents
executed on 2-07-1955 were sham and nominal ones which were not meant to be
acted upon, having been executed for the purpose of saving the property from
(3) The fact that as
despite death of Bapurao Sabale in the year 1958, Shivappa or his wife did not
exercise any acts of 5 ownership, right or possession or claim for a period of
22 years, would go to show that the transactions were sham ones.
(4) the suit was
barred by limitation as the cause of action to recover the property arose on
the death of Bapurao.
(5) First respondent
having not been validly adopted by Shivappa being aged 19 years at the time of
adoption, he had no locus standi to maintain the suit.
Alternatively it was
pleaded that the appellant, being in possession of the suit property for a period
of more than twelve years, acquired indefeasible title by adverse possession.
9. The learned Trial
Judge framed the following issues:
plaintiff prove that his father by an agreement allowed the defendant No. 1 to
entry (sic) the suit land till her demise on certain conditions? xxx xxx xxx
Does plaintiff prove that both agreements were without consideration and never
confirmed any right, title and interest in Bapurao or in Laxmibai? xxx xxx xxx
Do defendants prove that the partition between Shivappa and Bapurrao was a
colourable one 6 and under that partition neither Bapurao received the amount
of Rs. 5,000/- nor did he transfer title of his share to Shivappa? Do
defendants prove that as the partition deed dated 02.07.1955 was colourable one
brought into existence to save the property from the creditors of Bapurao the
settlement deed was executed so that the lands should be saved also remains
with Bapurao? xxx xxx xxx Do defendants prove that sale deed dated 02.07.1955
was not acted upon and it was executed nominally to save the properties from
10. The learned Trial
(a) Shivappa and
Bapurao owned joint family properties and it had not been shown how the deed of
partition was colourable.
(b) Evidence of DW-3
Panchappa Nirvallayappa Shilwant examined on behalf of the appellant does not
(c) Admission of
PW-3, Bapurao is reliable and only because he had stated in his
cross-examination that Bapurao was not ready and willing to execute the
document unless possession 7 was permitted to be retained by him, was not
sufficient to disbelieve him totally.
(d) Adoption of first
respondent by Shivappa was valid as there exists a custom in the Virshiva
Lingayat community, to which the parties belong for adoption of a child of more
than 14 years of age and in terms of Bombay School of Hindu Law, although
plaintiff could not prove the agreement allegedly executed in favour of
(e) Her possession
after the death of Bapurao was also being permissive, the Suit was not barred
11. The learned Trial
Judge on the said findings, decreed the said suits.
theragainst, as noticed hereinbefore, were dismissed.
12. Mr. U.U. Lalit,
learned Senior Counsel appearing on behalf of the appellant fairly did not
press the question as regards the validity of adoption of first respondent
stating that even if the same was invalid, first respondent being the
daughter's son of Shivappa would inherit his properties in terms of the
provisions of Hindu Succession Act, 1956.
13. The learned
Counsel, however would contend that all the transactions evidenced by four
instruments executed on 2-07-1955 were sham transactions in support whereof
reliance was placed on the following circumstances.
(i) Since 1934 the
step brothers were living separated having separate businesses and houses and
admittedly Bapurao was heavily indebted, expecting some actions from his
(ii) All four
documents having been executed on the same day and as PW-3 the attesting
witness of the said document categorically stated that possession of the
properties in question was to remain with Bapurao.
(iii) There was
absolutely no reason as to why all the four documents were executed on the same
(iv) Even after
execution of the said deeds Shivappa or his wife did not exercise any right of
(v) If the deeds of
settlement were genuine and were meant to be acted upon, an attempt to take
over possession from Laxmibai was expected from Shivappa and the same having
not been done for a period of 20 years.
(vi) The purported
unregistered agreement in favour of Laxmibai had neither been produced nor
proved. It was furthermore contended that the suit having been filed during the
life time of Laxmibai, the same should have been dismissed.
14. Mr. K. V.
Viswanathan, learned counsel appearing on behalf of the respondents, on the
other hand, would contend :
(a) All the three
courts having arrived at concurrent findings of fact, the impugned judgments
warrant no interference.
(b) The plea of the
appellant in his written statement that the said document had not been acted
upon, being vague, no reliance could have been placed thereupon.
(c) Appellant having
not filed any suit in terms of Section 31of the Specific Relief Act, 1963 could
not raise the plea that the transactions were illegal and void.
(d) The sale deeds as
also the deeds of settlement having been found to be valid, this court should
not exercise its jurisdiction under Article 136 of the Constitution of India.
(e) Appellant has
misrably failed to prove that his possession was adverse to the interest of
Shivappa or Parvatibai.
15. All the four
deeds executed on 2-07-1955 are registered documents. They carry a presumption
of valid execution. There is no proof to show that the said documents were sham
The learned courts
below have clearly held that the appellant failed to discharge the heavy onus
We would however
consider the contentions raised before us independently.
Exhibit 36 is a deed
of sale in terms whereof Bapurao sold his half share to Shivappa. If the
contention of Bapurao that there existed no joint family property was correct,
it was for him to show that the same was his self acquired property.
16. No evidence has
been brought on record to show that he was in exclusive possession of the
properties in suit. A presumption as regards jointness of the family property
could be raised as Bapurao and Shivappa despite being step brothers and despite
having separate business and separate houses, were having some joint properties
which were acquired prior to 1944. There does not seem to have any apparent
reason to hold that the deed of sale was sham or nominal in character.
17. It may be true
that the other sale deed (Exhibit 49) consisting of 8 items of properties were
self acquired properties of Bapurao.
Bapurao was heavily indebted. He was required to repay loan incurred by him.
PW-3, we may notice, in his deposition, stated that Shivappa in fact had paid
the entire amount of loan to the creditors of Bapurao.
Bapurao continued to remain in possession of the properties in suit. The
character of his possession however must be held to have changed having regard
to the deeds of settlement executed in his favour by Shivappa. His possession
in terms thereof over the land in question was permissive in nature.
19. Submission of Mr.
Lalit that the fact that consideration in each of the sale deed was shown as
Rs.5000/- but in the deeds of settlement the consideration was shown to be
Rs.15,000/- clearly go to show that the transactions were not meant to be acted
upon is difficult to accept. There appears to be some understandings between
the two brothers. If PW-3 is to be believed and we do not see any reason why we
should differ with the concurrent findings of the courts below, all the
documents must be held to have been executed bonafide. We would assume that
Bapurao wanted to continue to remain in possession of the said properties but
it must be held that that was precisely the reason why the deeds of settlement
were executed. If the said deeds were sham or nominal in 12 character,
creditors of Bapurao would have taken some actions against him.
There is nothing to
show that any suit or any other proceeding was instituted/initiated against
20. Although he continued
to be in physical possession of the properties in suit, on execution of the
deed of sale as also the deeds of settlement on the same day, he must in law be
held to have been dispossessed and was put back to possession in a different
In other words, upon
execution of the deed of sale as also the deeds of settlement, the nature and
character of his possession changed.
It is true that
despite death of Bapurao in 1958, Shivappa did not initiate the proceedings for
eviction of Laxmibai. It may or may not be an act of generosity on his behalf
but the same by itself would not mean that the appellant started to possess the
lands adverse to the interest of the respondent.
21. We would proceed
on the basis that respondent No. 1 has not been able to prove his contention
that Shivappa executed an unregistered document in favour of Laxmibai.
13 The suit filed by
Nagappa however was based on title. Once he proved his title the onus was on
Laxmibai and consequently upon the appellant to prove that they started
possessing adversely to the interest of Shivappa.
For the purpose of
arriving at a finding as to whether appellant and Laxmibai perfected their
title by adverse possession, the relationship of the parties may have to be
taken into consideration. It must also be borne in mind that factum of
execution of the documents being not in question, it was also expected that
Bapurao and after his death Laxmibai would file a suit for cancellation of
those documents in terms of Section 31 of the Specific Relief Act, 1963.
22. In Prem Singh and
Ors. v. Birbal and Ors. [2006 (5) SCC 353], this court held :
"20. If the
plaintiff is in possession of a property, he may file a suit for declaration that
the deed is not binding upon him but if he is not in possession thereof, even
under a void transaction, the right by way of adverse possession may be
claimed. Thus, it is not correct to contend that the provisions of the
Limitation Act would have no application at all in the event the transaction is
held to be void.
21. Respondent 1 has
not alleged that fraudulent misrepresentation was made to him as regards the
character of the document. According to him, there had been a fraudulent
misrepresentation as regards its contents.
22. In Ningawwa v.
Byrappa this Court held that the fraudulent misrepresentation as regards
character of a document is void but fraudulent misrepresentation as regards
contents of a document is voidable stating: (SCR p. 801 C- D) "The legal
position will be different if there is a fraudulent misrepresentation not
merely as to the contents of the document but as to its character. The
authorities make a clear distinction between fraudulent misrepresentation as to
the character of the document and fraudulent misrepresentation as to the
contents thereof. With reference to the former, it has been held that the
transaction is void, while in the case of the latter, it is merely
In that case, a fraud
was found to have been played and it was held that as the suit was instituted
within a few days after the appellant therein came to know of the fraud
practised on her, the same was void. It was, however, held: (SCR p. 803 B-E)
"Article 91 of the Limitation Act provides that a suit to set aside an
instrument not otherwise provided for (and no other provision of the Act
applies to the circumstances of the case) shall be subject to a three years'
limitation which begins to run when the facts entitling the plaintiff to have
the instrument cancelled or set aside are known to him. In the present case,
the trial court has found, upon examination of the evidence, that at the very
time of the execution of the gift deed, Ext. 45 the appellant knew that her
husband prevailed upon her to convey Surveys Plots Nos. 407/1 and 409/1 of
Tadavalga village to him by undue influence. The finding of the trial court is
based upon the admission of the appellant herself in the course of her
evidence. In view of this finding of the trial court it is manifest that the
suit of the appellant is barred under Article 91 of the Limitation Act so far
as Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned."
27. There is a
presumption that a registered document is validly executed. A registered document,
therefore, prima facie would be valid in law. The onus of proof, thus, would be
on a person who leads evidence to rebut the presumption. In the instant case,
Respondent 1 has not been able to rebut the said presumption.
28. If a deed was
executed by the plaintiff when he was a minor and it was void, he had two
options to file a suit to get the property purportedly conveyed thereunder. He
could either file the suit within 12 years of the deed or within 3 years of
attaining majority. Here, the plaintiff did not either sue within 12 years of
the deed or within 3 years of attaining majority. Therefore, the suit was
rightly held to be barred by limitation by the trial court."
23. Furthermore for
claiming title by adverse possession, it was necessary for the plaintiff to
plead and prove animus possidendi.
A peaceful, open and
continuous possession being the ingredients of the principle of adverse
possession as contained in the maxim nec vi, nec clam, nec precario, long
possession by itself would not be sufficient to prove adverse possession.
24. In P.T.
Munichikkanna Reddy and Ors. v. Revamma and Ors., [2007 (6) SCC 59], this court
"It is important
to appreciate the question of intention as it would have appeared to the
paper-owner. The issue is that intention of the adverse user gets communicated
to the paper- owner of the property. This is where the law 16 gives importance
to hostility and openness as pertinent qualities of manner of possession. It
follows that the possession of the adverse possessor must be hostile enough to
give rise to a reasonable notice and opportunity to the paper-owner."
25. We must in
fairness to Mr. Lalit notice a decision of this court in Kalwa Devadattam and
Ors. v. Union of India and Ors. [AIR 1964 SC 880]. In that case income tax was
due from one Nagappa. The immovable property belonging to the joint family of
Nagappa and his sons were attached. Nagappa raised a plea of previous
partition. Inter alia, on a finding that despite the said purported partition,
Nagappa continued management of the property, showed interest in prosecuting
the suits and representing the entire family from other evidences brought on
record, it was found as of fact that the transaction was a nominal one.
The said decision is,
therefore, not applicable to the fact of the present case.
26. For the reasons
above mentioned, there is no merit in the appeals.
The appeals are
dismissed accordingly with costs. Counsel's fee assessed at Rs.10,000/- (Rupees
Ten Thousand only).
[Dr. Mukundakam Sharma]