REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 10501-10502 OF 2014

PRABHAKAR GONES PRABHU NAVELKAR (DEAD) THROUGH LRs & ORS.      ..APPELLANTS

                               VERSUS

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

J U D G M E N T

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 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:

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                                                                                                                            ANNEXURE P-1

                                                                                                                NAVELKAR FAMILY                                                  

                VINTECTEXA POROBO NALVELKAR                                                                              VINTOLA POROBO NAVELKAR (WIFE: PADMAVATI PORBINI)           (WIFE: LAXIMI VINTOLA POROBO NAVELKAR)                                                                                                                                                                                                                                                                                                                                             (SONS)          

               (SON) (DAUGHTER)            BALAKRISHNA PORSHOTTAMA  SRNIVAS  NAGENDRA

     RAMACHANDRA      PIRU ALIAS SOROSPATI POROBO NALVELKAR POININ                                                                             GROUP P/BRANCH OF VENKTEXA    GROUP/BRANCHES OF VITOL         

 (SON)                                                  (SON)                        DF.7                  TO                   DF.27

         SURIAJI POROBO     GONES POROBO NAVELKAR                  NAVELKAR       (WIFE PREMAWATI)              (WIFE: SHANTIBAI)    

                                                                                          P1                   P3                   D28                                 

                                                                  PRABHAKAR   PREMANAND           SMT. JAISHREE

                         (HUSBAND: VISHNU KAMAT) D29

                                                                 D3                   D5                        ANDRA  SHARADCHANDRA             VENCTEXA

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.

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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 and                     29th 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 3

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 4

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

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 5

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 ½ each in the suit properties.  

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(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;

(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 7

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 ½ 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  ½  of  B  belonged  to

Shantibai, 1/4th of M and ½ of B belonged to Laxmi and

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½ 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

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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.

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

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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. 11

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

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

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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  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”?

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(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 Gones and 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

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

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

(b) In  spite  of  recognition  or 15

acknowledgment  of  share  of  Gonesh, the property is given to Shantibai, wife of Suryaji, which was the only share  remaining  with  the  family  of Suryaji and Gonesh, in the background the auction of share owned by Gonesh 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 allotment of property to the wife of Suryaji.

(e) Ordinarily Gonesh could have objected to  the  allotment  of  share  to Laxmibai, as his property could not have been given to Laxmibai and could not  have  been  subject  matter  of inventory,  which  was  not  challenged by Gonesh.

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

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

41. It is not the plaintiffs’ case that they had no knowledge of registration of property in the name of Shantabai way back in  1940  as  a  final  act  based  on conclusions of inventory proceedings.”

In  the  result,  conclusion  is  that whatever  right  or  interest  may  have survived with Ganesh, was lost, as Gonesh did not at any point of time challenged the  allotment  of  property  to  Shantibai which  allotment  in  the  Inventory Proceedings and recording/ registration of

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rights in her favour has attained finality for want of challenge.”

13. Thereafter  the  following  findings  have  been

entered: “42. After recording of properties in the name of Shantibai, she and her heirs have enjoyed  suit  properties  in  exclusion  to plaintiffs  and  supporting  defendants openly.

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

14. Resultantly, the questions of law were answered

against  the  appellants  and  the  appeals  were

dismissed.

15. We have heard Shri J.P. Cama, Senior Advocate on

behalf of the appellants, Shri Mukul Rohtagi, Senior

Advocate along with Mr. Dhruv Mehta, Senior Advocate

on behalf of the respondents.

16. The  learned  senior  counsel  for  the  appellants

would submit that the High Court having found that

there was title in the properties and there was also

no  requirement  to  pay  Rs.  1000/-  as  a  condition

precedent, the suit ought to have been decreed. As 17

far as the inventory proceedings are concerned, his

contention is that this was the case which was set up

by the defendants. It was incumbent on the defendants

to produce the inventory proceedings.

17. He would further contend that even if Gones, the

predecessor-in-interest of the plaintiffs, was party

to the inventory proceedings and did not object to

the  properties  being  recorded  in  the  name  of  his

sister-in-law and children, this would not take away

the  effect  of  the  acknowledgment  of  title  in  the

settlement deed dated 21.01.1919. His rights in the

property having been acknowledged by his sister-in-

law and late brother with reference to the sale deed,

by merely recording the properties in the name of his

sister-in-law, his half right, which is acknowledged

in  the  property,  in  the  settlement  deed  dated

21.01.1919  would  not  be  affected.  It  was  further

contended that it is not open to question that the

consideration for obtaining the property in the sale

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, would not preclude

the plaintiffs, successors-in-interest of Gones, who 18

were entitled as co-owners of the plaint schedule

properties, to seek relief. When the title had not

been  extinguished,  the  Court  has  gone  wrong  in

drawing the wrong conclusion about Gones not raising

objection to the recording of the property to Laxmi.

There  could  not  be  acquiescence  by  estoppel.  The

Court  has  not  comprehended  the  effect  of  finding

title with Gones and according to him if title is not

lost, in a manner known to law, it is always open to

enforce the same. The finding of the court that right

arose latest in 1940 and there is limitation in a

suit based on title was challenged. Unless adverse

possession is proved irrespective of the period of

time taken for the plaintiffs to institute the suit

law does not recognize deprivation of their title.  

18. Per contra, the learned senior counsel on behalf

of the respondents/ defendants were at pains to point

out that neither in law nor in equity the appellants

have made out a case for interference. The litigation

has been commenced after nearly six decades of the

documents on which the plaintiffs lay store-by. With

the  inventory  proceedings,  the  curtains  were  rung

down. Gones stood by and allowed his sister-in-law 19

and  children  to  be  acknowledged  as  owners  of  the

property. Gones lived long enough thereafter and yet

he  did   not  raise  his  little  finger  against  the

possession or right of the defendants. Gones passed

away only in 1978. There is evidence to show that

Gones was very much in the house on the eve of the

partition deed and yet he did not raise any objection

either then or even at any point of time thereafter

till his death. They would in fact point out that

Gones never contemplated this litigation launched by

his successors-in-interest. This is for the reason

that after this acknowledgment of the right in favour

of Gones in the settlement deed dated 21.01.1919, in

1925  his  elder  brother  Suriaji  and  his  wife  have

executed a gift deed and it is pressed before us,

that it resulted in Gones getting more than what he

would have got in terms of the alleged liability to

execute the document in terms of the settlement deed

of 1919. Expatiating the argument, it is pointed out

that the extent of property M was approximately 90

hectares, property B consisted of nearly 31 hectares.

Under  the  gift  deed  of  1913,  executed  by  the

grandfather of Suriaji and Gones, in their favour 20

1/4th of M was given to Suriaji 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 1/4th 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  of  38

hectares formed the subject matter of sale deed. As

per the deed of dissolution dated 21.01.1919, Gones

would have been entitled to 19 hectares. This figure

is arrived at as the half right of 38 hectares as

calculated hereinbefore. However, by gift deed dated

14.04.1925, what was gifted was no doubt the 1/4th

right of M acquired by Suriaji from his grandfather

but which consisted of 22.5 hectares. Thus, it is

pointed out after the gift deed dated 14.04.1925,

Gones had 45 hectares. It is further sought to be

contended  that  if  the  claim  of  the  plaintiffs  is

countenanced Gones would get 64.12 hectares leaving

19 hectares alone to the branch of Suriaji. It is

pointed out that this Court is hearing these appeals

after grant of special leave.   19. In  an  appeal,  so  sourced,  equitable

considerations must play a dominant part. In other 21

words, this is a case where Gones obtained a larger

share  than  he  would  have  got  in  terms  of  the

acknowledgment  in  the  settlement  deed  dated

21.01.1919. The learned senior counsel invites us to

the  conduct  of  Gones  in  this  perspective.  It  is

contended that Gones, during his life time, did not

have  any  grievance  or  cause  for  complaint.  His

conduct is accordingly patterned on his contentment

with having received his legitimate due. This state

of fulfillment of his rights explains his conduct as

“Vogal” and acquiescing in the proceedings whereunder

his sister-in-law stands acknowledged as the owner of

the  properties.  There  is  reference  also  to  the

partition  which  took  place  in  1969  i.e.  44  years

after the gift deed of 1925. It is further pointed

out that the Court may not overlook that apart from

the partition, which took place in 1969, there were

land acquisition proceedings. It was the branch of

Suriaji  in  recognition  of  their  rights  who  were

awarded compensation. There was no objection raised

at that time. The suit clearly was time barred. It is

also the case of defendants that they have pleaded

adverse possession. It is contended that plaintiffs 22

have  miserably  failed  to  prove  that  they  were  in

receipt of any income. We are taken to the evidence

in this regard. Respondent also impugned the finding

by the High Court that Gones had title and contended

that the payment of Rs. 1000/- could not but be a

condition precedent. It is also contended that the

sale deed dated 17.11.1915 is executed in favour of

Suriaji and Laxmi. There is absolutely nothing in the

sale deed, which would indicate that the sale deed

was also in favour of Gones. What would follow from

the settlement deed dated 21.01.1919 was only that

the parties contemplated the execution of the another

document  of  transfer  of  property  in  terms  of  the

recitals in document dated 21.01.1919 in favour of

Gones.  This,  in  turn,  was  dependent  upon  Gones

exercising option and paying Rs. 1000/- which was his

share.  

CASE LAW RELIED UPON BY THE APPELLANTS 20. In the case law relied upon by the appellants, in

Md. Mohammad Ali (dead) by Lrs. v.  Jagadish Kalita

and others  1, this Court, dealing with Article 65 of

The Limitation Act, 1963 has essentially reiterated

1 (2004) 1 SCC 271 23

the principle that long and continuous possession by

itself would not constitute adverse possession. Non-

participation in the rents and profits of the land to

co-owner does not amount to ouster. Furthermore, this

Court has noted that in a suit governed by Article 65

of the Act, if the plaintiff succeeds in proving his

title, it is no longer necessary to prove that he was

in possession within 12 years of the filing of the

suit.  It  is  for  the  defendant  to  prove  animus

possidendi.  

21. In  Jai Singh and others v.  Gurmej Singh  2, this

Court has articulated the principles relating to the

interse rights  and  liabilities  of  co-owners,  as

follows:

”9. It  is  to  be  noted  that  in  the subsequent Full Bench judgment in Bhartu case[1981 PLJ 204] , the earlier decision in Lachhman Singh case [AIR 1970 P&H 304] was distinguished on facts. The principles relating  to  the  inter  se  rights  and liabilities of co-sharers are as follows: (1)  A  co-owner  has  an  interest  in  the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner  is  in  the  eye  of  the  law, possession of all even if all but one are actually out of possession.

2 (2009) 15 SCC 747 24

(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession  of  one  is  deemed  to  be  on behalf of all. (4) The above rule admits of an exception when  there  is  ouster  of  a  co-owner  by another.  But  in  order  to  negative  the presumption of joint possession on behalf of  all,  on  the  ground  of  ouster,  the possession of a co-owner must not only be exclusive  but  also  hostile  to  the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate  parcels  under  an  arrangement consented by the other co-owners, it is not  open  to  anybody  to  disturb  the arrangement without the consent of others except by filing a suit for partition.”

22.  The appellants, in short, on the strength of the

said rulings, contend before us that since the High

Court has found that Gones had title in the property,

the suit must be decreed. The defendants have failed

to prove adverse possession or ouster.

23. The decision of this Court in P. John Chandy and

Co.  (P) Ltd. v.  John  P. Thomas  3  is pressed  into

3 (2002) 5 SCC 90 25

service for contending that inaction in every case

does not lead to inference of acquiescence. The said

decision, in fact, was one rendered under the Kerala

Buildings  (Lease  and  Rent  Control)  Act,  1965.  The

ground for eviction alleged by the landlord was sub-

lease. The contention of the tenant was there was

implied consent of the landlord. This Court went on

to hold that consent contemplated under the enactment

was concerned with some positive act. It was in the

context of the same that the Court, inter alia, made

the  observations  made  in  regard  to  inaction  not

amounting to acquiescence.

24. In  L. N. Aswathama and another v.  P. Prakash  4,

this Court held that the plea of adverse possession

is inconsistent with the plea of title. This Court,

in this context, held as follows:

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

4  (2009) 13 SCC 229 26

“4. As regards the first plea, it is inconsistent  with  the  second plea. Having come into possession under the [sale] agreement, he must disclaim his right thereunder and plead and prove assertion  of  his  independent  hostile adverse possession to the knowledge of the transferor or his successor-in-title or  interest  and  that  the  latter  had acquiesced  to  his  illegal  possession during  the  entire  period  of  12  years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec  precario [not  by  violence,  not  by stealth, not by permission]. Since the appellant's claim is founded on Section 53-A [of the Transfer of Property Act, 1882], it goes without saying that he admits by implication that he came into possession  of  the  land  lawfully  under the agreement and continued to remain in possession  till  date  of  the suit. Thereby  the  plea  of  adverse possession  is  not  available  to  the appellant.”

17. The legal position is no doubt well settled. To establish a claim of title by prescription,  that  is,  adverse  possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long  and  continuous  possession  by  itself would not constitute adverse possession if it  was  either  permissive  possession  or possession  without animus  possidendi.  The pleas based on title and adverse possession are  mutually  inconsistent  and  the  latter does not begin to operate until the former is renounced. Unless the person possessing the  property  has  the  requisite  animus  to possess the property hostile to the title of

27

the true owner, the period 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.  Munichikkanna Reddy 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, as the defendant therein had pleaded that he was  in  possession,  having  obtained possession  in  part-performance  of  a  sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in  such  possession,  there  was  no  adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant  under  Gowramma  from  1962  and  he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that  if  Gowramma  did  not  have  title  and consequently his claim based on title was rejected,  then  having  regard  to  the  fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force  in  the  contention  of  the  defendant provided  he  is  able  to  establish  adverse possession for more than 12 years.  When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the

28

contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected.”

(emphasis supplied)

25. In  Kuldip  Mahaton  and  others v.  Bhulan  Mahato

(Dead) by Lrs. And others  5, this Court has reiterated

the principle that in the case of Joint Hindu Family,

there  is  community  of  interest  and  unity  of

possession  among  all  members  of  the  Joint  Hindu

Family. The fact that one of the coparceners is not

in joint possession, does not mean that he has been

ousted.  The  possession  by  one,  it  was  found,  is

therefore, possession of all. Mutation in the name of

elder  brother,  for  the  collection  of  rent  and

revenue,  does  not  prove  hostile  title  as  against

other. It was further held that where possession can

be referred to lawful title, it would not be decided

to be adverse.

26. In P.T. Munichikkanna Reddy and others v. Revamma

and others  6, this Court held that there is no equity

in  favour  of  a  person  who  raises  plea  of  adverse

possession. Right to property is a human right and

5 (1995) 2 SCC 43 6 (2007) 6 SCC 59

29

plea of adverse possession is to be viewed in the

light of the same.  

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’s  possession  became

adverse to the plaintiff’s title.

28. Punit Rai v. Dinesh Chaudhary  8, is relied upon to

contend that a fact within the knowledge of a person

must be proved by the said person, and if the said

evidence is not produced, it would lead to inference

that had the evidence been produced, it would not

have supported the case of the party.   

29. Sankalchan  Jaichandbhai  Patel  and  others v.

Vithalbhai Jaichandbhai Patel and others  9 is relied

upon to contend that mutation entries are only to

enable the State to collect revenues from the persons

in  possession  and  that  do  not  create  title  or

interest therein.

30. The  decision  of  the  High  Court  of  Punjab  and

Haryana  in  Mohinder  Singh  and  another v.  Kashmira

7 (1997) 7 SCC 531 8 (2003) 8 SCC 204 9  (1996) 6 SCC 433

30

Singh  10, is relied upon to contend that there is no

period of limitation for filing a suit for possession

on the basis of inheritance and that Section 65 of

the Act is not applicable. In Paragraph 6, this is

what was held by the Division Bench: “6. After hearing the learned counsel

for  the  parties,  I  find  force  in  the contention of the learned counsel for the respondent.  It  is  well  established principle of law that inheritance does not remain in abeyance and the heirs after the death of the last male holder succeed to the property of the deceased in accordance with law. Kashmira Singh, being the son of Niranjan Singh deceased, was entitled to 1/3rd share in the land in dispute. After the death of Niranjan Singh, he was not required to file any suit for possession on the basis of inheritance. He had become full owner of his share in the property on the death of the last male holder. For establishing his right as an heir, he was not required to file a suit. However, a situation may arise when the heir is not in possession of the property inherited. In that event a suit for possession may have to be filed and on contest the same may fail on the defendant proving that he has  perfected  his  title  by  adverse possession. It is such type of suit which is governed by the provisions of Article 65 of the Limitation Act. In this view of the matter, 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 well settled that a suit for possession  on  the  ground  of  inheritance should be filed within a period of twelve years from the date when the inheritance

10 AIR 1985 P&H 215 31

opens, does not lay down correct law. The decisions to which reference has been made in para 9 of the judgment by the learned Judge, do not lay down any such rule. On the other hand, in all those decisions it was adverse possession of the defendants which  was  upheld.  Thus  I  hold  that  no period  of  limitation  is  prescribed  for filing a suit for possession on the basis of inheritance.”

31. In  Ashok  Kumar  and  others v.  Gangadhar  and

another  11, the learned Single Judge has laid down as

follows: “24. In  the  instant  case  also,  the

plaintiffs suit is based on title and the consequential  relief  of  possession  was also sought for. The plaintiffs in these suits established before the lower Court that it is the self-acquired property of D-1's father and they purchased it under two different sale deeds. In such a case, the suit is governed by Article 65 of the Act as it was filed within 12 years of the dispossession.  But  it  is  for  the defendants to show that the plaintiff was out of possession for more than 12 years. In  the  instant  case,  there  is  no  such situation  and  the  suit  was  filed immediately  after  completion  of  three years from the date of dispossession. If the  contention  of  the  defendants  that Article  58  applies  to  the  suit  for possession  based  on  title  where declaration of title is also sought, is accepted, it would amount to ignoring the relief  for  recovery  of  possession  and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the

11 AIR 2007 AP 145 32

possession  of  the  defendant  becomes adverse to the plaintiff. If such a suit were  to  be  decided  with  reference  to Article  58  on  the  ground  that  the declaration is sought for, application of Article  65  to  the  suit  for  possession would  be  rendered  otiose.  Such  a construction  would  be  opposed  to  all principles of interpretation of statutes. Therefore,  different  articles  of  the Limitation Act will have to be interpreted harmoniously. When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to  the  suit  property  with  consequential relief  of  possession  in  my  humble  view Article  65  of  the  Limitation  Act  would apply and not Article 58 of the Limitation Act. Article 58 applies to a case where declaration  simpliciter  is  sought  for without  possession  in  my  humble  view Article  65  of  the  Limitation  Act  would apply and not Article 58 of the Limitation Act. Article 58 applies to a case where declaration  simpliciter  is  sought  for without  any  further  relief.  It  appears that  this  aspect  has  been  the  subject matter of consideration of Law Commission in its 89th Report on the Limitation Act and  the  Commission  recommended  for  the amendment of Article 58 of Schedule I of Limitation Act by 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 upon the rights of a respondent in an appeal

under  Order  XLI  Rule  22  of  the  Code  of  Civil

Procedure, 1908 inter alia:

12  (2003) 9 SCC 606 33

“10. The  CPC  amendment  of  1976  has  not materially  or  substantially  altered  the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub- rule  (1)  a  party  in  whose  favour  the decree stands in its entirety is neither entitled nor obliged to prefer any cross- objection. However, the insertion made in the  text  of  sub-rule  (1)  makes  it permissible  to  file  a  cross-objection against  a finding.  The  difference  which has  resulted  we  will  shortly  state.  A respondent  may defend himself  without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree, he must take cross-objection. The amendment inserted by the 1976 amendment is  clarificatory  and  also  enabling  and this may be made precise by analysing the provision. There may be three situations:

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

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

(iii) The decree is entirely in favour of the  respondent  and  all  the issues have also  been  answered  in  favour  of  the respondent but there is a finding in the judgment  which  goes  against  the respondent.

11. In  the  type  of  case  (i)  it  was necessary for the respondent to file an appeal  or  take  cross-objection  against

34

that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his  favour  he  is  entitled  to  support without  taking  any  cross-objection.  The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC  did  not  entitle  nor  permit  the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light  of  the  explanation,  though  it  is still not necessary for the respondent to take any cross-objection laying challenge to  any     finding     adverse  to  him  as  the decree is     entirely     in his favour and he may  support  the  decree  without  cross- objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection  to  a finding recorded against  him  either  while  answering  an issue or while dealing with an issue. The advantage  of  preferring  such  cross- objection is spelled out by sub-rule (4). In  spite  of  the  original  appeal  having been withdrawn or dismissed for default the  cross-objection  taken  to any finding by the respondent shall still be  available  to  be  adjudicated  upon  on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal  for  default  of  the  original appeal disabled the respondent to question the  correctness  or  otherwise  of any finding recorded  against  the respondent.”

(emphasis supplied) This position has been reiterated in Hardevinder

Singh v. Paramjit Singh and others  13.

13 (2013) 9 SCC 261 35

33. In  Mohan Lal (deceased) Through His Lrs. Kachru

and others v.  Mirza Abdul Gaffar and another  14, this

Court held that the appellant’s first plea of adverse

possession was inconsistent with the second plea of

possession being retained under Section 53A of the

Transfer of Property Act, 1882. It was further held

that  having  coming  into  possession  under  the

agreement, he must disclaim his right thereunder and

plead  and  prove  assertion  of  independent  hostile

adverse  possession  to  the  knowledge  of  the

transferor.

THE CASE LAW RELIED UPON BY THE RESPONDENTS  34. Reliance is placed on the decision of the High

Court  of  Bombay  at  Goa  in  Sheela  Rodrigues  and

another v.  Lourencinha  Ana  D’Cruz  Rodrigues

Fernandes  15 for the view that inventory proceedings

are  in  the  nature  of  a  declaration  of  ownership

rights and that it is like a judgment in rem. This is

to apparently contend that it was necessary for Gones

to object at the given time.

35. The decision of this Court in Raj Narain Pandey

14 (1996) 1 SCC 639 15 (1999) SCC ONLINE Bombay 109

36

and  others v.  Sant  Prasad  Tiwari  and  others  16,  is

relied upon to contend that in the matter of a local

law, the view taken by the High Court over a number

of years should normally be adhered to. This has been

reiterated and pointed out by this Court in Jay Laxmi

Salt Works (P) Ltd. v. State of Gujarat  17.

36. The decision of this Court in Dilboo (Smt.)(Dead)

by  Lrs.  and  others v.  Dhanraji  (Smt.)(Dead)  and

others  18, is relied upon to contend that once there

was  registration  of  a  document,  there  is  deemed

knowledge  regarding  the  same  and  limitation  would

begin to operate. Respondents also seek support from

the judgment of this Court in  Vishram alias Prasad

Govekar and others v. Sudesh Govekar (Dead) by Legal

Representatives and others  19  wherein this Court held

as follows:

“18. We have already noticed above, the basis on which the first appellate court as well as the High Court has held that the plaintiffs are the owners of the suit property, which rights they have inherited from  Vassudev  Govekar,  father  of Plaintiffs 1 to 3. Findings of the courts below  are  that  the  suit  property  viz. Talhao No. 168 of Communidade of Anjuna,

16 (1973) 2 SCC 35 17 (1994) 4 SCC 1 18 (2000) 7 SCC 702 19 (2017) 11 SCC 345

37

was  acquired  by  Vassudev  Govekar  from Communidade of Anjuna under No. 131/1963 on 24-2-1970 as a permanent grant for the construction  of  the  house.  In  order  to prove this ownership, not only the said grant  was  produced  on  record,  the plaintiffs  also  filed  evidence  of  the inventory proceedings initiated upon the death of Vassudev Govekar which described the  suit  property.  Additionally,  duly promulgated  survey  records  showing  the property standing in the name of Vassudev Govekar were also produced.

xxx  xxx  xxx

20. Pertinently,  the  learned  counsel appearing  for  the  appellants  could  not contest  the  aforesaid  approach  of  the courts below. It is for this reason, he took  an  altogether  different  route  by arguing  that  joint  ownership  in  the property in question was admitted by the plaintiffs themselves for which purpose he referred  to  the  averments  made  in  the plaint  filed  by  the  plaintiffs.  In  the first  instance,  we  find  that  no  such argument predicated on such pleadings have been taken in the courts below. Be that as it may, since the defendants rely upon the pleadings of the plaintiffs themselves, we proceed  to  examine  the  weight  in  this submission. A closer and minute look into the pleadings would show that there is no admission on the part of the plaintiffs about the co-ownership insofar as the suit property is concerned. In Para 3 of the plaint,  the  plaintiffs  have  given  the description of the suit property which is popularly  known  as  “Devalvadi”  bearing Survey No. 251/2 situate at Chinvar in the village of Anjuna, Bardez, Goa, having an area of 1000 sq m. What is significant is that this property bears Survey No. 251/2

38

and the plaintiffs described the same as the  “suit  property”.  In  Para  4,  it  is mentioned that Vassudev Govekar acquired this property from Communidade of Anjuna. In Para 6 it is mentioned that on this suit  property,  incomplete  structure  was raised  by  Vassudev  Govekar  which  the plaintiffs  referred  to  as  the  “suit house”. Thus, the ownership is claimed by the  plaintiffs  through  Vassudev  Govekar who acquired the property bearing Survey No. 251/2 (the suit property) on which he constructed incomplete structure (the suit house). At the same time, in Para 5, which is relied upon by the defendants in their attempt  to  show  admission  of  the plaintiffs  as  to  co-ownership,  the plaintiffs  have  stated  that  towards  the eastern side of the suit property, there exists another property bearing Survey No. 251/4. The plaintiffs pleaded that on this land,  whereupon  a  house  is  also constructed, belonged to their grandfather Jagannath Govekar (father of Defendant 1) and  it  is  this  property  which  the plaintiffs say is in the co-ownership of the plaintiffs and the defendants. Thus, the statement about the plaintiffs and the defendants as co-owners in title 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

another argument on behalf of the respondents. This

is in context of the argument of the appellant that

Shantibai  (wife  of  Suriaji)  continued  to  hold  the

property in trust for Gones. The respondents contend

that there is no concept of trust in civil law system

39

which prevailed in Goa under the Portuguese Code. The

case based on trust was never pleaded in the plaint. 38. Eurekha Builders and others v.  Gulabchand, S/o

Veljee Dand Since Deceased By Legal Representatives

and others  20  is relied upon to contend that rights,

including title, can be extinguished by the passage

of time. Article 505 read with Article 535 of the

Portuguese Code resulted in extinguishing the right

of  Gones.  Assuming  for  argument  sake  that  there

existed  certain  rights  with  Gones  under  the

Settlement Deed of 1919, it is said that all such

rights  stood  extinguished  in  1939,  i.e.,  20  years

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 Gones had already been

extinguished.

39. Reliance is also placed on paragraph 30 of the

judgment  of  this  Court  in  Khatri  Hotels  Private

Limited and another v.  Union of India and 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 has designedly

20 (2018) 8 SCC 67 21 (2011) 9 SCC 126

40

made  a  departure  from  the  language  of Article  120  of  the  1908  Act.  The  word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action,  the  period  of  limitation  will begin to run from the date when the right to  sue  first  accrues.  To  put  it differently, successive violation of the right will not give rise to fresh cause and  the  suit  will  be  liable  to  be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.”

40. It is their case that the suit being one for

declaration of title also, 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  the  law  laid  down  by  this  Court  in

Taherakhatoon (D) by Lrs. v.  Salambin Mohammad  22 and

refuse  to  exercise  discretion  in  favour  of  the

appellants, having regard to the various facts, the

long lapse of time, after the documents of the year

1913,1915,  1919,  1925,  and  the  developments  which

have taken place in the meantime.

42. The first question we must pose and consider is

what exactly is the property which is involved in the

litigation.

22 (1999) 2 SCC 635 41

43. As  we  have  noticed  in  the  beginning  of  our

judgment, property ‘M’ consisted of about 90 hectares

whereas property ‘B’ consisted of about 31 hectares.

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. Thereafter, the one-half

share in property ‘M’ and the whole of property ‘B’

came  to  vest  with  the  aunt  (father’s  sister)  of

Suriaji and Gones. It is in 1915 that the aunt along

with her husband executed the sale deed conveying the

rights  to  Suriaji  and  to  the  other  branch,  viz.,

Vitol. Thereafter, in 1919, the deed of dissolution,

which is the sheet anchor of the appellant’s case

came  to  be  executed.  It  is  thereunder  that

acknowledgment  of  title,  as  contended  by  the

appellants,  of  Gones  over  the  property,  which  his

subject matter of the sale in favour of Suriaji, is

made.

44. Still further, in 1925, Suriaji along with wife,

executed a Gift Deed. Under the same, the donors have

gifted the rights obtained by Suriaji under the Gift

Deed executed in his favour under the document of

1913 by his grandfather. There is no dispute that in 42

1937 the rights of Gones as acquired under the Gift

Deed executed in his favour by his grandfather in

1913 and also the property acquired by him under the

Gift Deed by his brother and sister-in-law in 1925

came to be sold in auction in execution of decree

obtained against Gones. The present suit is filed

based on the sale deed executed by the paternal aunt

of  Gones  and  her  husband  expressly  in  favour  of

Suriaji  and  his  wife  and  the  other  branch.  The

appellants claim one-eighth share being one-half of

one-fourth of property ‘M’ conveyed under a sale deed

to Suriaji and his wife. The appellants also claim

one-fourth  share  being  one-half  of  one-half  in

property ‘B’ conveyed to Suriaji and his wife under

the sale deed of 1915.  

PRESCRIPTION UNDER THE PORTUGUESE CIVIL CODE

45.  Undoubtedly,  the  properties  being  located

within the present Union territory was governed by

the Portuguese till 20.12.1961.  On 20.12.1961, the

territories of Goa, Daman and Diu were included as

Union territories.  Article 505 relied upon by the

respondents defines prescription.    

43

“Article  505  –  Things  and  rights  are acquired by virtue of possession, just as obligations are extinguished by the fact of not demanding their fulfilment. The  law  lays  down  conditions  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 by possession is known as positive prescription; the discharge of  obligations  by  reason  of  not demanding their fulfilment is known as negative prescription.”

Article  535  is  also  relied  upon  by  the

contesting respondents.  The same reads as follows:

Article 535 -Whoever has incurred in an obligation,  or  to  do  something  to another,  stands  relieved  of  the obligation,  if  its  performance  is  not demanded for a period of 20 years, and the obligant is in good faith, at the end of the prescription period, or when the performance is not demanded for a period of 30 years, regardless of good faith or bad faith, except where special prescription are provided in law.               Sole paragraph: Good faith in the case of negative prescription consists in the ignorance  of  the  obligation.   This ignorance is not to be presumed in case of persons who originally contracted the obligation.”  

46.  A Bench of three learned Judges in  Syndicate

Bank vs. Prabha D. Naik 2001 (4) SCC 713 had occasion

to consider the Portuguese Civil Code.  In the said

44

case  the  appellant  Syndicate  Bank  instituted  a

special suit for recovery of money advanced.  The

loan  was  granted  in  July  1978.   The  respondents

agreed to pay the amount by December, 1978. Loan was

granted on execution of promissory note and a deed of

hypothecation. Plea of bar of limitation was raised

as suit was filed in 1985.  The appellant thereupon

relied upon Article 535 which we have adverted to

above.  It was contended by the appellant Bank that

the law of limitation in Goa was to be treated as the

law  under  Portuguese  Civil  Code.   Therefore,  the

period of limitation as prescribed under the Schedule

I of the Indian Limitation Act would not apply.  This

Court referred to Section 5 of the Goa, Daman and Diu

(Administration)  Act,  1962  which  contemplated

continuance of laws in force before the appointed day

in  Goa,  Daman  and  Diu  or  any  part  thereof  until

amended or repealed by a competent legislature or

other competent authority.  It is relevant to refer

to para 13, 14 and 16, the same reads as under:    

“13. Admittedly, the Portuguese Civil Code continued  in  the  Union  Territory  of  Goa, Daman and Diu by virtue of Section 5 of the Goa,  Daman  and  Diu  (Administration)  Act,

45

1962 which provides that the existing laws shall be continued in force in the Union Territory  until  amended  or  repealed  by  a competent  legislature.  We  may  also  note Regulation  12  of  1962  which  provides  for extension of certain laws mentioned in the Schedule  to  the  Regulation,  to  wit:  The Negotiable  Instruments  Act,  1881  and  the same was brought into effect in the Union Territory of Goa, Daman and Diu with effect from  1-12-1965.  In  Goa,  Daman  and  Diu (Laws) (No. 2) Regulation, 1963 (Regulation 11  of  1963),  provisions  akin  to  those contained in Regulation 12 are found under which  the  Indian  Contract  Act,  Sale  of Goods Act and Transfer of Property Act were brought into force in the Union Territory from 1-11-1965 and 1-12-1965 respectively. The situation thus emerges having regard to the  two  regulations  noticed  hereinbefore (Regulation 11 and Regulation 12) that both the  Negotiable  Instruments  Act  and  the Contract  Act  together  with  some  other statutes have been made applicable to the State by appropriate legislative authority. The promissory note signed by Respondent 1 herein  and  the  guarantor  issuing  a guarantee thereof cannot but be termed to be the subject within the meaning of the Negotiable Instruments Act. In any event, and obviously on the factual score, there was also existing a deed of hypothecation which cannot also but be termed to be a contract within the meaning of the Indian Contract  Act  which  stands  applied  in  the State  of  Goa,  Daman  and  Diu.  It  is, therefore,  to  be  seen  as  to  whether specific  legislations  containing  the subjects  under  which  the  cause  of  action had arisen, would govern the field or the procedural law assuming it would have its due  application  in  replacement  of  the governing statute. This however, involves a wider debate and this Bench has not been called upon to answer the same, as such we

46

refrain  ourselves  from  expressing  any opinion  in  regard  thereto  but  the  fact remains  that  both  the  Negotiable Instruments Act and the Contract Act have been included in terms of the Regulations noticed above and as such, made applicable in the State of Goa, Daman and Diu.  

14. Be it noted that Article 535 containing the provisions of limitation in Chapter III regulating the contracts in the Portuguese Civil Code, which however stands replaced by the Indian Contract Act. The prescribed period  for  limitation  pertaining  to  the contracts being in the same Chapter under the  Contract  Act  cannot  be  said  to  be surviving  as  an  independent  provision rather  than  going  along  with  the  other provisions of the contract which by reason of  adaptation  of  the  Contract  Act  stand replaced. It thus cannot but be said to be an implied repeal. The necessity of having an express repeal was never felt by reason of the factum of adaptation of the Indian Contract  Act  insofar  as  Chapter  III  is concerned. Either the Chapter survives in its  entirety  or  it  perishes  in  all  its spheres — it is one Chapter dealing with contract  and  prescribes  the  period  of enforcement of the same, no dissection is possible.

16. Article 505 of the Civil Code provides for  acquisition  of  things  and  rights  by possession and the same is ascribed to be positive  prescription  and  discharge  of obligations  by  reason  of  not  demanding their  fulfilment  is  known  as  negative prescription. The word “prescription” is in general  a  mode  of  acquiring  title  to incorporeal  hereditaments  by  continued user, possession and enjoyment during the time.  Article  535  prescribes  a  negative element  of  prescription  which  is  akin  to adverse  possession.  A  prescriptive  right

47

however,  differs  from  adverse  possession, since  prescription  relates  to  incorporeal rights while adverse possession applies to an  interest  in  the  title  to  property. “Prescription”  is  usually  applied  to acquisition  of  incorporeal  hereditaments and  negative  prescription  obviously  is  a negation  of  such  an  acquisition. “Prescription”  admittedly,  is  a  part  of substantive law but limitation relates to procedure,  as  such  prescription  differs from limitation. The former is one of the modes  of  acquiring  a  certain  right  while the  latter  viz.  the  limitation,  bars  a remedy, in short, prescription is a right conferred, limitation is a bar to a remedy. Chapter  II  of  the  Portuguese  Civil  Code provides  detailed  articles  pertaining  to prescription.  Corpus  Juris  Secundum,  Vol. 72  described  the  word  “prescription”  as below:

“In law prescription is of two kinds: it is either an instrument for the acquisition of property or an instrument of an exemption only  from  the  servitude  of  judicial process. In the first sense, as relating to the  acquisition  of  property,  prescription is  treated  in  adverse  possession.  In  the second sense, as relating to exemption from the  servitude  of  judicial  process, prescription  is  treated  as  Limitation  of Actions.”

(emphasis

supplied)

 47. The Court proceeded to take the view that having

regard to the applicability of the Indian law namely

the  Contract  Act,  Negotiable  Instrument  Act,  the

48

extinction of remedy under the Portuguese law cannot

but  be  deemed  to  be  impliedly  repealed.   It  was

further held that “having regard to the factum of

Article 535 being a procedural aspect and not being a

substantive right, the Court was not contemplating

the situation under the Private International Law,

but  the  distinction  between  substantive  and

procedural law has a meaningful existence herein.   

The Court approved the earlier view taken by this

Court  in  Justiniano  Augusto  De  Piedade  Barreto  v.

Antonio Vicenta Da Fonseca and Others 1979 (3) SCC 47

as laid down.  As can be seen from the facts the

transaction of loan arose in the year 1978 after the

contract Act and the Negotiable Instrument Act were

made applicable in Goa.

In this case the respondents relied upon Articles

505 and 535 to contend that the right of Gones was

extinguished, by virtue of Article 505 and 535.  The

argument is on the following basis.  Gones did not

figure  as  a  transferee  in  the  sale  deed  dated

17.11.1915 executed in favour of Suriaji and Another.

Four  years  thereafter,  the  document  styled  as

settlement deed came to be executed on 27.1.1919.  It 49

is solely based on the clause in the same that the

entire suit is apparently filed by the appellant.  The

clause reads as follows:

“…Further the party of the first part Suriaji stated that the purchase made by him by the aforesaid sale deed dated 17th

November, 1915, was made for himself and for  the  said  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 along with the said Shanntibai to transfer in the name of the said Ganesa 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 the half of the amount which has now been paid to the party of the second part Locximii from  the  money  of  the  dowry  of  his wife...”

48. It is, therefore, the contention that at best

Suriaji came under an obligation within the meaning of

Article  505  read  with  Article  535,  to  transfer  in

favour of Gones as contemplated under the clause in

the document dated 21.1.1919.  It is their case that

calculated from 21.1.1919 the period of 20 years would

end in 1939 and at any rate the period certainly 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,

50

therefore, the case of the respondents is that under

Portuguese law which undoubtedly held the field before

the Limitation Act of 1963 was made applicable with

effect  from  1.4.1964  the  negative  prescription

extinguished whatever right, if any Gones had in the

property.

49. We  must  at  once  consider  the  request  of  the

appellant  to  apply  the  principle  laid  down  in  the

decision of this Court in the case of Syndicate Bank

vs. Prabha D. Naik   (supra).  If the argument based on

Articles 505 and 535 is accepted, then it would be

found that the obligation in regard of Suriaji would

be  extinguished.  The  decision  in  Syndicate  Bank

(supra)relied  on  by  the  appellants  is  clearly

distinguishable. In the said case, as noticed, the

transaction  was  entered  into  in  the  year  1978.  A

promissory note which is a negotiable instrument came

to be executed. At the time when it is so executed,

the contract entered into, provided for repayment of

the amount by the debtor, the Contract Act and the

Negotiable Act were made applicable to the State of

Goa, Daman and Diu. This formed the fundamental basis 51

for the Court’s finding that the extended period of

limitation  available  under  Article  535  of  the

Portuguese Civil Code would no longer be available.

Unlike the fact situation in the said case, we are in

this case called upon to pronounce upon whether there

was extinguishment of the obligation and consequential

right  under  the  obligation.  At  the  time  when

Portuguese  Civil  Code  was  the  only  law  which  is

applicable, the appellant relied upon the document of

1919. If the case is to be resolved on the basis that

Suriaji was under an obligation to do something that

is  transferring  the  property  certainly  such  an

obligation would stand extinguished at the latest on

the  expiry  of  30  years,  namely,  on  21.01.1949  and

earliest by 21.01.1939. If that is the position then

when the Limitation Act of 1963 came into force on

01.04.1964  and  under  the  erstwhile  law,  viz.,

Portuguese  Civil  Code,  Suriaji  and  the  contesting

defendants stood freed from the obligation under the

negative  prescription  contained  under  Article  535,

then  Articles  505  and  535  would  be  fatal  to  the

appellants.  

52

What  however,  is  the  effect  of  Article  537?.

According to the appellants in the Settlement deed

dated 21.1.1919 the word used are ‘at any time’.  In

view of the same Article 537 stood attracted.  Article

537 is an exception to Article 535 runs the argument

of the appellants.  Article 537 reads as follows:

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

When any time limit is not attracted the obligation

under the Portuguese law it could be enforced at any

time, runs the argument.

50. It  is  necessary  also  to  consider  the  question

relating  to  title  sought  to  be  set  up  by  the

appellants.

The entire case of appellants is based on right

in the plaint schedule property, based in turn on the

right which Gones acquired under the sale deed dated

17.1.1915.  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. It is undisputed that

53

Gones does not figure as a transferee in the sale

deed.  There is nothing left to even construe as there

is not even a whisper of the name of Gones in the sale

deed dated 17.1.1915.  It is a case of outright sale

of share of property as we have mentioned in favour of

the  named  transferees.   It  is  4  years  thereafter

however  that  document  dated  21.1.1919  styled  as  a

dissolution  deed  is  executed  which  contains  the

controversial clause which we have already set out.

51. According  to  the  respondents  the  following  is

interpretation to be placed on the same.  A document

was executed for settlement of accounts of sociedade

between the vitol and the venctexa branches of the

Navelkar  family.   Breaking  down  the  controversial

clause(See  para  47),  it  is  the  contention  of  the

respondents that it was Suriaji who has actually paid

for the purchase of the property in question.  In this

regard reliance is placed on the expressions ‘he/his

and himself’.  Except for the use of the word ‘he’ in

the underlined portion it is their case that the words

‘he,  his  and  himself’  have  been  used  to  refer  to

Suriaji.  It is only the word ‘he’ which is underlined 54

that has been used to refer to Gones.  The case is

that the documents were drawn in Portuguese and there

was lack of clarity in translations.  It is further

contended that the Gones was a minor when the property

was  purchased  and  he  started  earning  only  in  1925

which is admitted by PW1 when he stated that Gones was

Puberto in 1919 and he started earning after 1925.

They have a definite case that the civil law system

prevalent  in  Goa  till  19th December,  1961  when  it

became an Union territory did not recognize equitable

title and unless a proper document of transfer was

executed Gones could not derive any title.  It is

their further case that the deed dated 21.1.1919 was

at best in the nature of an agreement to sell.  Such a

promise to sell is governed by Article 1548 of the

Civil Code.  Article 1548 of the Civil Code is as

follows:

“Article 1548: A simple reciprocal promise of purchase and sale, being accompanied by specification of price and description of thing  constitutes  a  mere  agreement  to perform a fact, which shall be governed by general  terms  of  contract,  with  the difference, however, that where the earnest money is paid, i.e. any amount received by the  promissory  vendor,  forfeiture  of  the same or its restitution in double shall be the compensation for loss and damages.

55

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

This  is  the  submission  of  the  respondents.

The following testimony of P.W.1 may be relevant:

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

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

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

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

52. Respondents would further contend that the

sale deed in terms of Article 1519 must be reduced to

writing and if the value exceeded 1000 excudos it had

to  be  registered  under  Article  949.   Respondents

56

would  contend  that  finding  of  the  High  Court  in

regard to title is erroneous and cannot be sustained.

The High Court has found inter alia as follows:

“Admittedly, no time limit is fixed for the payment of the share or exercise of right in the Deed dated 21.1.1919.  This document also does not specify that a prior payment should be made by Gones due to be made thereunder, or  that  such  payment  is  a  condition precedent..”

The respondents further contended that under Article

949 of the Civil Code, certain documents where rights

in  immovable  property  were  created  have  to  be

registered.  They  included  transfers  of  immovable

property gratuitously, onerously and all transmission

of properties or corporeal immovable property and mere

possession  were  acts  which  were  subject  to

registration under Article 949.  Article 960 is also

relied  upon  which  provides  that  the  registration

record is also to be maintained in whose favour the

transmission is made.  It reads as under:

“Article 960: The extract, of inscription against  the  description  besides  serial number and date of the year, month and day and the date of the title deed as the date its  presentation  for  registration  shall contain: Paragraph 1; xxx Paragraph 2 : the name, status, profession

57

and domicile:- 1. xxx

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

It is their case that such transmission was made only

in favour of Suriaji and Laxmi under the sale deed

dated 17.11.1915.

53. The appellants no doubt would contend that the

High Court had found title with Gones and there is no

cross objection filed by the contesting respondents.

It is their case that without cross objection it would

not be open to the respondents to ask this Court to

interfere with the finding of title.  In this regard

they placed reliance on the judgment of this Court in

Hardevinder Singh v. Paramjit Singh 2013 (9) SCC 261.

The appellants would contend that Gones paid half the

price  for  the  purchase  dated  17.11.1915  which  too

stood acknowledged in the deed of dissolution dated

21.1.1919.  There is a solemn undertaking to transfer

Gones share whenever he paid Rs.1000/- as his half

share  of  the  dowry  amount  of  Rs.2000/-  paid  by

Suriaji.  The gift made on 14.4.1925 by Suriaji does 58

not take away the rights of Gones under the sale deed

dated 17.11.1915 as acknowledged in the dissolution

deed  dated  21.1.1919.   Reference  is  made  to  the

finding by the trial court that Gones has admittedly

paid half of the purchase price out of Rs.13022/- for

the purchase of the suit property.  Therefore, the

amount of Rs.1000/- was over and above the purchase

price and resultantly non-payment of Rs.1000/- had no

bearing on the title of Gones which he derived from

the purchase.

54. Before we consider the question, it is necessary

to  enter  the  actual  findings  rendered  by  the  High

Court in regard to the title.  The High Court finds

that recognition of share of Gones is done in document

dated 21.1.1919.  It is further found as under:

“31. Admittedly, no time limit is fixed for the payment of share or exercise of right in the Deed dated 21.1.1919. This document also does not specify that prior payment should be made by Gonesh due to be made thereunder, or that such payment is a condition precedent. Thus, acknowledgment of  liability  to  part  with  property described  therein  is  absolute  and unambiguous.  This  document  contains  an unambiguous  recital  about  acknowledgment of existence of right of Gonesh to the properties.”

59

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

We have already referred to the law laid down by this

Court in regard to Order XLI Rule 22 of the Code of

Civil Procedure.  In an appeal if the respondent does

not want any change in the decree of the lower court,

it is not necessary for him to file an appeal or

cross objection to merely support the decree already

passed without any variation in the decree but by

challenging the correctness of the findings in the

judgment.  The appellants are correct in contending

that  if  a  challenge  is  made  to  a  decree  by  a

respondent then necessarily the respondent must file

either an appeal or a cross objection.  In this case

however,  the  suit  filed  by  the  appellants  stood

dismissed  by  the  first  appellate  court.   The  two

appeals which were carried by the appellant before

the  High  Court  were  dismissed.   Resultantly,  the

decree of the first appellate Court dismissing the

suit came to be confirmed.  Before this Court the

respondents are not seeking to challenge the decree.

They do not wish any variation of the decree.  They 60

seek to have the decree confirmed.  They support the

decree entirely.  The decree is one dismissing the

suit.  They are only seeking to support the said

decree by challenging one of the findings namely the

finding relating to title.  For doing the same, it is

not necessary for them to file an appeal or cross

objection  as  by  having  the  finding  overturned  in

regard  to  title  they  are  not  seeking  to  have  a

different  decree  passed  in  any  manner.  Hence  we

reject the contention of the appellants that it is

not open to the respondents to contest the finding on

title without filing cross objection.

QUESTION RELATING TO TITLE

55. The findings of the High court can be culled

out as follows:

1.Suriaji has admitted that 1/8th of ‘M’ and ¼ of

‘B’ was purchased by him for Gones and Gones was

supposed  to  pay  his  contribution  as  indicated

therein. 2.No dispute can be raised as regards this promise

or declaration in the deed. 3.Admittedly no time limit is fixed for the payment

of share or exercise of right in the deed dated

21.1.1919. 61

4.The document does not specify that prior payment

should be made by Gones or that the payment is a

condition precedent. 5.Acknowledgment of liability to part with property

is  absolutely  unambiguous  and  the  document

contains  an  ambiguous  recital  about

acknowledgment of existence of right of Gones to

the property. 6.Finally it is found that the right of Gones to

receive share, is thus, crystallized and he has

derived a right enforceable in law and according

to the law.  

56. Let us also see how the High Court finds that

the appellants are not entitled to relief.  i. Gones was a vogal in inventory proceedings. In

the said proceedings property ‘M’ and ‘B’ were

allotted to widow of Suriaji, viz., Shantibai.

If Gones has to enforce his right under the

deed, he had to object the allotment of share

in view of a document dated 21.01.1919. He did

not  object.  Event  relates  to  1925  which

attained  finality  when  rights  accrues  to

Shantibai  in  the  inventory  proceedings  which

were registered into records around 1940. ii. The  allotment  of  share  in  inventory  was  not

62

challenged by Gones by way of suit between 1925

and 1940 or at any time during his lifetime. The

court does not accept the case of the appellants

that though there was separation of family and a

partition,  the  parties  continued  in  joint

enjoyment and the share of income was initially

given to Gones and then the wife of Gones. Having

acquiesced  with  the  allotment  of  share  to  the

wife  of  Suriaji  though  his  property  could  not

have  been  given  to  Laxmibai  (this  must  be

Shantibai), Gones and his heirs are estopped from

opening up the succession after long span of over

two decades.

iii.It is not the plaintiff’s case that there was no

knowledge of registration of property in the name

of shantibai way back in 1940. Therefore it is

found  that  whatever  right  or  interest  survived

with Gones was lost as he did at any point of

time  challenge  the  allotment  of  property  of

Shantabai  which  has  become  final  for  want  of

challenge. iv. After recording the property in the name

of Shantibai and her heirs enjoyed the property

63

in  exclusion  to  plaintiff  and  supporting

defendants openly.  Denial of right of Gones or

his exclusion and ample denial relates back to

1925  and  it  has  culminated  by  absoluteness  in

1940.  Right of Gones to have separate possession

by partition or otherwise if he wanted to assert

it on the basis of settlement deed that arose

latest in 1940.             As he did not enforce

his right to seek partition and enforcement of

the right under the settlement deed of 1919 was

lost.

57. We have set out two broad findings by the

High Court.  The first relates to the question whether

Gones had acquired any right. The second part relates

to whether he has lost the right.  The High court

finds that Gones indeed had a right  but he has lost

it and the right should have been enforced latest by

1940.

Coming to the first part namely whether Gones had

a  right   the  most  important  part  is  finding  that

Suriaji admitted that 1/8 of ‘M’ and 1/4 of ‘B’ was

64

purchased by him for Gones.   

58. The case of the appellants appears to be that

when 1/2 of the price was paid by Gones in terms of

the acknowledgement contained in the document of 1919,

all  that  remained  to  be  paid  was  1000  rupees  for

reimbursing Suriaji having paid the amount to Laxmi

towards dowry. There can be no dispute that the sale

deed does not show Gones as a transferee.

The document dated 21.1.2019 is described as a

deed of declaration, fixation of balance of accounts,

payment and obligation.  Parties of the first part are

described as Suriaji and his wife Shantibai aged 15

and minor aged 16.  Gones is shown as aged 14 years

assisted by his mother.  Parties on the second part

are  described  as  Laxmi,  widow  of  vitol  (the  other

party) and her sons etc.  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 further that the parties of the

first part owed to the parties to the second part a

sum of Rs.2000/-.  It is  inter alia stated therein

that parties of the first part Suriaji stated that the 65

purchase made by him by the sale deed dated 17.11.1915

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

the name of said 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.   It  is  the

aforesaid  provision  which  is  at  the  heart  of  the

controversy.  We are to unravel its true scope and

import.   Whether  it  amounts  to  an  admission  or

acknowledgment  by  Suriaji  that  Gones  his  younger

brother, had half right over the property acquired by

Suriaji under the sale deed dated 17.11.1915?  Whether

on the other hand, the document is of executory nature

and  contemplating  Suriaji  executing  a  transfer  in

favour  of  Gones?   Whether  it  contemplated  only  a

transfer  of  mutation,  the  title  being  admitted?

Whether  the  clause  contemplated  a  transfer  on  the 66

occasion of which Gones was to indemnify Suriaji, half

the amount which stood paid to Laxmi that money coming

from dowry of Suriaji’s wife?

59. The first thing we have to consider in this

regard is the argument raised by the respondents that

the words ‘he’ has paid for half the price for the

said purchase should be understood as meaning Suriaji

has paid for half of the price of the said purchase

and this means that Suriaji was the full owner under

the sale deed and Gones did not acquire any right as

such.  This is supplemented by the submission that

Gones was a minor in 1915.  He began to earn only in

1925 and therefore, there is no question of his having

paid any part of the consideration for the sale dated

17.11.1915. On the other hand, it is the case of the

appellants that one half of the consideration was paid

by Gones.

60. In  resolving  this  controversy,  it  is  but

apposite that we may refer to the pleadings of the

parties.  We may refer to para 11 of the plaint.  The

same reads as under: 67

“11.  It  is  in  the  said  Deed  of 21.1.1919  that  Suria  alias  Suriaji Porobo  expressly  admitted  that  the purchase  of  the  1/4th of  the  property Mollans and ½ of the property Bainguinim made under the Deed dated 17.11.1915 was for self  and for his brother Gones who paid  its  price  at  the  time  of  the purchase  and  therefore  Suria  and  his wife Shantibai undertook to effect the transfer of registration in the name of Gones  upon  Suria  being  reimbursed  by Gones in the payment of ½ of the amount paid by Suria to Loximi (widow of Vitol Porobo) in consequence of the settlement of  accounts  made  at  the  time  of dissolution of Society. The period for exercising of option by Gones to make the  reimbursement  was  however unlimited.”

The contesting respondents-defendants 1,2,30 and 31 in

their written statement inter alia stated as follows:

“In the year 1919, the undivided joint family of Navelkars came to be dissolved and  in  the  Deed  of  Dissolution  and Settlement dated 21.01.1919, there is a mention  that  the  said  Surya  had purchased  the  properties  i.e.  half  of ‘Bainguinim’ and 1/4th of ‘Mollans’ and also on behalf of his brother Ganesh and had agreed to transfer a share of the said  two  properties  in  favour  of  the said  Ganesh  provided  the  said  Ganesh pays to him             Rs. 1000/- being reimbursement towards the amount paid by him  on  behalf  of  Ganesh  to  Laxmibai. However, it is not on record that the said Ganesh ever paid the said amount of Rs. 1000/- to the said Surya, which was a  condition  precedent  for  effecting transfer of undivided share in the said two properties, in favour of the said

68

Ganesh and it cannot be said that the period for payment of the said amount was unlimited.”

The reply to the averment in para 11 of the plaint are

contained in para 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 by Ganesh to make the  reimbursement  was  unlimited  as alleged.  The  acknowledgement  as mentioned  in  the  said  deed  dated 21.1.1919  by  the  said  Surya  and conditional and it appear that the said Surya performed the said acknowledgment by making a Gift Deed dated 14.04.1925 which  was  pursuant  to  the  said acknowledgment apart from the fact that the said Gift Deed dated 14.4.1925 also appears to be shaddy document, the same having been executed a little before the death  of  the  said  Surya,  thereby reflecting  on  its  authenticity  on  the point of the same being a voluntary act. It is quite possible that the said Surya and his widow were coerced into making the  said  Gift  Deed  dated  14.4.1925 reminding  them  of  the  acknowledgment expressed  by  the  said  Surya  in  the Dissolution Deed dated 21.1.1919.”

In the written statement filed by defendants 3,4,5 and

6 also, the reply to the averment contained in para 11

of the plaint is contained in para 7 of the written

statement and the same are extracted below:

69

“With further reference to para 11 of the Plaint these defendants say that the subsequent conduct of both Suriaji and Ganesh shows that the idea of transfer in the name of Ganesh ½ of the property purchased  by  Suriaji  by  deed  dated 17.11.1915,  was  given  up  and consequently  the  said  Ganesh  never expressed  any  desire  to  have  the transfer made in his favour nor did he pay any amount concerning the dowry of Shantibai, and no transfer mentioned in the  said  Deed  dated  21-1-1919  was effected. These defendants say that the said statement of Suriaji regarding the transfer was never acted upon either by Suriaji or by Ganesh. The said statement made in the said deed dated 21-1-1919 should at the most amount to a simple promise  for  the  sale  on  the  part  of Suriaji  in  terms  of  Article  1548  of Portuguese  Civil  Code,  and  would  not confer in the said Ganesh any right or interest  in  respect  of  the  suit properties.”

61. There  is  no  denial  of  the  averment  of  Gones

having paid the consideration. We would think that it

would be a safe conclusion to reach that consideration

was partly paid for at least on behalf of Gones. Case

of the respondents that no part of the consideration

moved from or on behalf of Gones in regard to the sale

deed dated 17.11.1915 cannot be accepted.

The view we have taken finds reinforcement from

70

the words that follow immediately in the sale deed

21.1.1919.  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.  In this behalf

the word being in conjunction with his wife Shantibai

can  only  refer  to  Suriaji.  Therefore,  the

interpretation would be as follows:

The sale deed dated 17.11.1915 was executed in

respect of 1/4th of property ‘M’ and 1/2 of property

‘B’ in favour of Suriaji.  Another 1/4th of property

‘M’ and other half of property ‘B’ was sold under

the sale deed to the other branch represented by

Laxmi Bai.  It is obvious that under the sale deed

for his share, Gones would have made part of the

payment.  What is acknowledged in the dissolution

deed is that 1/2 of the said consideration emanated

from Gones.   

62. The  next  part  is  where  the  matter  becomes

more vexed.  The question is what is the nature of the

right, if any, which is acquired by Gones on the basis 71

of  the  undertaking  recorded  in  the  document  dated

21.1.1919 that Suriaji and his wife Shantibai will

transfer  in  the  name  of  Gones  the  half  of  the

properties purchased in his name at any time he may

desire to have it transferred and further that on the

occasion of the transfer Gones will have to indemnify

him with half the amount which has been paid the party

of the second part, namely, Laxmi bai who represented

the other branch in Navalkar family.  The undertaking

to transfer in the name of Gones, the half of the

property is according to the appellants only transfer

of mutation.  On the other hand, according to the

respondents  it  involved  a  transfer  accompanied  by

registration.   In  conjunction  with  the  same,  the

further question is of the meaning of the words “that

on the said occasion” that is when the transfer is

effected Gones will have to indemnify the Suriaji with

half the amount which stood paid to Laxmi from the

dowry  amount  of  Suriaji’s  Wife.   We  cannot  be

oblivious to the fact that a sum of Rs.1000/- was a

considerable sum of money in 1919. It is not to be

confused with Rs.1000/- as on the date of the suit

much less as of today. It was not meant to be a empty 72

formality.   We  are  unable  to  subscribe  to  the

reasoning of the High Court when it holds that it is

not  a  condition  precedent.   The  payment  was  to

coincide with transfer.  No doubt it could have been

made  prior  to  demanding  the  transfer.  We  cannot

understand the clause as meaning as either it need not

be paid or the payment could be deferred.

63. In  the  above  perspective,  let’s  consider

whether there is a case 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

such case at all.  When the appellants are seeking the

right  solely  based  on  the  recital  in  the  deed  of

dissolution dated 21.1.1919 we fail to see how when

complying with the condition for seeking transfer it

could be maintained by them that they are entitled

without  anything  more   to  rights  as  co-owners.  In

fact, there is no case that the appellants have paid

or offered the amount to the successors-in- interest

of Suriaji. As already noticed,  PW 1 goes to the

extent of deposing that the ‘obligation to reimburse

Suriaji did not devolve upon the heirs of Gones’. Thus 73

the suit is filed with neither Gones nor even the

appellants  paying  or  even  offering  to  pay  the  sum

mentioned in the deed of 1919.

64. We would also have a look at it from another

perspective.  In  the  plaint,  at  para  ‘9’,  what  is

stated is 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 pur-

chase 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 docu-

ment 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

74

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 transac-

tion being a benami transaction.  If benami was rec-

ognized 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.  In this regard we

notice the following discussion in Controller of Es-

tate Duty, Lucknow v.Alok Mitra in AIR 1981 SC 102:-

31. ..In Petheperumal Chetty v. Muniandy Servai (1908)  35  Ind  App  98,  the Judicial Committee quoted with approval the following passage from Mayne's HINDU LAW, 7th ed., para 446: “Where a transaction is once made out to be  a  mere benami,  it  is  evident  that the benamidar absolutely disappears from the title. His name is simply an alias

75

for  that  of  the  person  beneficially interested.” The  cardinal  distinction  between  a trustee  known  to  English  law  and a     benamidar  lies  in  the  fact  that  a trustee  is  the  legal  owner  of  the property standing in his name and     cestui que  trust     is  only  a  beneficial  owner, whereas  in  the  case  of a     benami  transaction  the  real  owner  has got the legal title though the property is in the name of the     benamidar  . It is well  settled  that  the  real  owner  can deal with the property without reference to  the  latter. In Gur  Narayan v. Sheo Lal Singh, 46 Ind App 1: (AIR 1918 PC 140), the Judicial Committee referred to the  judgment  of  Sir  George  Farwell in Bilas  Kunwar v. Dasraj  Ranjit Singh 42 Ind App 202: (AIR 1915 PC 96), where  it  was  observed  that a     benami     transaction  had  a  curious resemblance to the doctrine of English law that the trust of the legal estate results  to  the  man  who  pays  the purchase-money, and went on to say: “...  the     benamidar     has  no  beneficial interest  in  the  property  or  business that stands in his name; he represents, in fact, the real owner, and so far as their  relative  legal  position  is concerned,  he  is  a  mere  trustee  for him.” In Guran Ditta v. Ram Ditta, 55 Ind App 235:  (AIR  1928  PC  172) the  Judicial Committee reiterated the principle laid down in Gopeekrist Gosain case (1854) 6 Moo Ind App 53 (PC) and observed that in case of a     benami   transaction, there is a resulting trust in favour of the person providing the purchase-money.”

76

Reference may also be made to para ‘33’, which

reads as follows: -

“33. The  law  is  succinctly  stated  by Mayne  in  his TREATISE ON HINDU LAW, 11th Edn., at p. 953, in the following terms: “A benami transaction  is  one  where  one buys property in the name of another or gratuitously  transfers  his  property  to another, without indicating an intention to  benefit  the  other.  The     benamidar  , therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position  is  concerned,  he  is  a  mere trustee  for  him.  In  other  words, a     benami     purchase or conveyance leads to a resulting trust in India, just as a purchase  or  transfer  under  similar circumstances leads to a resulting trust in  England.  The  general  rule  and principle  of  the  Indian  law  as  to resulting trusts differs but little if at all, from the general rule of English law upon the same subject.”  

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

resulting trust.

Goa continued under Portuguese Rule and it was

not a part of British India. There is a definite case

for the respondents that the law of trust, as such,

did not apply in Civil Law countries and the por-

77

tuguese who were governed by Civil Law did not recog-

nize the law of trust.

66. Incidentally we find that in eBook nº 32 Trusts,

Foundations and Fiduciary Structures by Dennis Swing

Greene, we may incidentally notice in Part 2: Portugal

and Trusts under the head IV. Trusts under Portuguese

Law, the same reads as under:

“Trusts as a Contract With the exception of the Madeira Free Trade Zone (where trusts are recognized when created under the laws of another jurisdiction), Porgtuguese law does not formally  acknowledge  the  fiduciary concept implicit in a Trust whereby the rights  are  divided  between  the  legal title in the hands of the trustees and the  equitable  rights  with  the beneficiaries.   This  lack  of  legal recognition raises several questions as to their tax and legal treatment.

Portuguese  law  views  a  trust  as  a contract.   All  transactions  involving trusts are deemed to be made with the trustees  –  the  legal  owners  of  the trust’s assets – rather than with the entitled  beneficiaries  under  the  terms of the trust.  Beneficial interest is not  a  right  formally  recognized  under Portuguese legislation…”

67. The law of trust, as such, did not apply to

Goa under the Portuguese Rule. At least the appellants

78

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 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.

68. In law, how can Gones claim to be a co-owner?

He  must  first  become  an  owner.  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 79

beneficial owner. The transferee in name or Benamidar

would hold the property in trust for the person who

has actually provided consideration.  There is, we

reiterate no case based on benami ever set up by the

appellant.

Therefore, we would come to the conclusion that

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, we need not render any finding as

regards adverse possession or ouster.

69. It  is  worthwhile  to  note  that  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. The case which the

defendants  had  set  up  about  gift  deed  include  the

allegation which tends to question the circumstances

surrounding the execution of the gift deed. They have

a case also that the gift deed was executed pursuant

to the acknowledgment in the 1919 document. Before

this Court respondents would seek to take advantage of

it inasmuch as the contention is taken that the gift

80

deed must be          treated  as executed  in

fulfilment  of acknowledgment in the dissolution deed

dated 21.1.1919.  Under the gift deed of 1925 Suriaji

has gifted Gones his ¼ right in property ‘M’ which he

acquired  under  the  gift  deed  executed  by  his

grandfather in the year 1913.  Be it remembered that

in 1913, the grandfather has also executed gift of

another  ¼  of  property  ‘M’  in  favour  of  Gones.

Property ‘M’ consisted of roughly 90 hectares. Thus,

under both the gift deeds together 1/2 of property ‘M’

or 45 hectares approximately came to be vested with

Gones in the year 1925.  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  the  first

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

the year 1937.  It is here that the question arises as 81

to  correctness  of  the  findings  that  having

participated  in  the  inventory  proceedings  which

culminated  in  the  property  being  allotted  to  the

Shantibai, the rights of Gones stood extinguished.

70. We  will  proceed  on  the  basis  that

interpretation of clause of the dissolution deed leads

us to hold that Gones having paid ½ of the purchase

price what is contemplated by the undertaking was that

Suriaji and his wife Shantibai were to transfer the

mutation.  Gones acquired title in the property.  We

proceed further on the basis that payment of Rs.1000/-

was not a condition precedent as found by the High

Court.  The question is whether the High Court is

right in its findings based on no objections being

taken to the property being allotted to Shantibai.  We

have  already  extracted  the  findings  of  the  first

appellate Court in this regard.  We  may  at  this

juncture consider the contentions based on inventory

proceedings held upon the death of Suriaji.  

INVENTORY PROCEEDINGS  

71. According  to  the  appellants,  inventory

proceedings arise out of the inheritance by partition

among the heirs of the deceased person. It is treated 82

as  a  deed  of  partition  and  requires  registration

under Section 45 of the Registration Act but it is

not registered under Section 17 of the Registration

Act, 1908. The burden of proving the case based on

inventory proceedings was squarely on the defendants

which they have failed to discharge.  No details of

the precise date in 1925 or of the time and place

where  the  proceedings  took  place  has  ever  been

established.  There  is  no  evidence  adduced  by  the

defendants. The inventory proceeding itself is not

produced. The defendants’ witness was 36 years old on

the date of evidence and was, therefore, not alive in

1925. Defendant No. 5 who was alive at the time when

alleged  inventory  proceedings  took  place  was  not

examined.  Punit Rai v. Dinesh Chaudhary  23,  is relied

upon  apparently  to  contend  that  the  evidence  of

Defendant No. 5, was not adduced and it would mean

that had the evidence been produced, it would not

have  supported  the  case  of  the  defendants.  It  is

sought  to  be  contended  that,  that  Gones  has

intervened as vogal, is not substantiated. In fact,

in this context, reliance is also placed in P. John

23 2003 (8) SCC 204 83

Chandy  and  Co., (supra)  in  regard  to  inaction  is

concerned.  It  is  also  contended  that  without

prejudice to the aforesaid contention, since Ganesh

held  property  jointly  with  his  sister-in-law,  she

could  not  have  inherited  more  than  what  Suriaji

possessed.  In  regard  to  the  enrolment  dated

09.10.1937, it is stated to be wrongly construed as

being registration of the inventory proceedings. It

is  mere  a  typed  document  without  signature.  The

property does not pass and the inventory could not

have been received in evidence.  

72. Per contra, the contesting defendants would

point to the evidence of PW-1 himself that Gones was

a  member  of  the  family  council  in  the  inventory

proceedings  on  the  demise  of  Suriaji  which  is

gathered  from  his  records.  Reliance  is  placed  in

Sheela  Rodrigues  vs.  Lourenchinha  Ana  D’Cruz

Rodrigues Fernandes  24  which has recognized that the

proceedings  were  in  the  nature  of  declaration  of

ownership rights to the estate of the deceased. The

declaration is like a judgment in rem and therefore,

24 1999 SCC Online Bom 109 paras 8-11 84

it was all the more necessary for Gones to object at

the  given  time,  which  he  admittedly  did  not.

Inventory  proceedings  are  inevitable  under  Article

156,  Article  2064,  upon  the  opening  of  the

inheritance. By virtue of marriage, the doctrine of

communion applies and Shantibai was owner of 50% of

all properties of Suriaji and the inheritance was

related to the balance 50%. The Family Council is

composed to protect the interests of the minors, and

was  constituted  under  Article  207.   Article  218

prevents any member of the family council from voting

or assisting where there is a conflict of interest.

Thus, if Gones had ever considered as having title to

half of the properties purchased by Suriaji under

Sale Deed, it would involve conflict of interest.  In

the  event  of  any  third  party  having  a  right  of

properties. Article 2078, provides listing of such

properties separately and the same reads as follows:-

“Article  2078 –  Where there  are, in the inheritance some properties belonging to a third person or which devolve to any heir in preferential manner, they shall be listed  separately,  alongwith  the respective documents.

Sole paragraph : The properties belonging to a third person shall not be delivered

85

to him when there are some doubts, unless the said third person proves his right.“

Gones  would  never  have  silently  stood  by  and

allowed  the  property  to  be  listed  as  property  of

Suriaji and he would have claimed the property to be

listed separately as belonging to a third party, it

is contended.  

73. Relying on  Dilboo (Smt.)(Dead) by Lrs. and

others v. Dhanraji (Smt.)(Dead) and others  25,  it is

contended that where there is a registration, there

is deemed knowledge and the limitation runs from the

said  date.  Gones  would  have  objected  to  the

inscription  in  1937.  He  lost  right  over  half  of

Mollans  which  was  sold  in  a  public  auction.  The

properties have to be appraised for licitation and

partition as provided under sub-division V of Article

2126 onwards of the Civil Code.  

74. There would be an appraisal in the case of

inventory between majors and minors which was the

case when Suriaji died. The appraiser is appointed

under Article 2091 by the Family Council [of which

25 2000 (7) SCC 702 86

Gones was a member].    

75. In  Damodar Ramnath Alve v.  Gokuldas Ramnath

Alve and others  26, relied upon by the appellants, the

learned Judge of the High Court of Bombay, Panaji

notes that in inventory proceedings there is no de-

cree passed as in a suit. In Zacarias Durate Domingos

Pereira v.  Camilo Inacio Pereira  27, Justice M.D. Ka-

math had this to say about nature of inventory pro-

ceedings:  

“Inventario  proceedings  are  proceed- ings instituted for the administration of the estate of the deceased person. They  provide  for  the  preparation  of the  list of  assets of  the deceased, payment of debts, collection of cred- its  of the  estate, payment  of lega- cies,  distribution  of  liquid  as- sets etc.. These various steps cannot be  carried  out  under  the  procedure laid down under the Indian Code, for suits.”

In Victor de Graca Pinto and ors v.  Lourdes de

Graca Pinto e Nazareth and ors.  28, relied upon by the

26 MANU/MH/0535/1996 27 1990 (1) Goa LT 174 28 1999(3)ALLMR39

87

appellants, a learned Judge of the High Court of Bom-

bay at Panaji held in the context of a decree in the

inventory proceedings that since it not only declared

the rights of the parties but also had divided the

shares by metes and bounds, it had to be registered

under Section 17 (2) of the Registration Act, 1908.

The learned Judge proceeded to, no doubt, hold that

the decree could be executed after such registration.

In  Sheela Rodrigues and another v.  Lourencinha

Ana D’Cruz Rodrigues Fernandes  29 relied upon by the

respondents, the contention was taken that inventory

proceedings were not suits. Section 22 of the Civil

Courts Act provided the context. After referring to

Zacarias  Durate  Dorningos  Pereira v.  Camilo  Inacio

Evaristo Pereira  30, wherein it was held that inventory

proceedings are not suits, it was found that the dis-

cussion in the said judgment was to find out whether

an order in inventory proceedings could be executed

under Order XXI of the Code of Civil Procedure or

not. Finally, the Court held as follows:  

29 (1999) SCC ONLINE Bombay 109 30 AIR 1984 Bom 295

88

“11. As  already  seen  above,  the inventory  proceedings  are  initiated  to enforce the remedy available under the law in relation to right of inheritance. To enforce the claim of inheritance to the estate left behind by the ancestors of a party or parties, it is necessary to have legal recognition to the claim of the party or parties as regards the ownership of the estate left behind by the  ancestors  and  the  same  can  be obtained by instituting proper inventory proceedings in the Court of law.

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

ABANDONMENT AND ESTOPPEL

76. The  question  is  however  proceeding  on  the

assumption Gones had acquired title could he be said

to have lost the title by his conduct.  The High Court

finds  that  having  acquiesced  in  the  inventory

proceedings  Gones  and  his  heirs  are  estopped  from

opening of succession after about two decades.  It is

further found that whatever right and interest may

have  survived  with  Gones  was  lost  as  he  did  not

89

challenge the allotment of property to the Shantibai.

The High court has therefore employed the principle of

acquiescence, estoppel and loss of right.   

77. In Sha Mulchand and Co.Ltd. v. Jawahar Mills

Ltd, Salem  AIR 1953 SC 98, 500 shares which stood in

the  name  of  company  stood  forfeited.   One  of  the

contentions  which  was  taken  was  on  principles  of

estoppel and laches forfeiture cannot be challenged.

Justice S.R. Das who wrote the main judgment proceeded

to hold as follows inter alia:

“12.  The  Appeal  Court,  it  will  be observed,  reversed  the  decision  of  the trial Judge and decided the appeal against the  Company  on  two  grounds  only,  namely, (1) that the Company had by the conduct of its  two  members  abandoned  its  right  to challenge the forfeiture, and (2) that the form of the order could not be supported as one validly made under Section 38 of the Indian Companies Act. The learned Attorney General,  appearing  in  support  of  this appeal, has assailed the soundness of both these grounds. The learned Attorney General contends,  not  without  considerable  force, that  having,  in  agreement  with  the  trial court, held that no plea of acquiescence, waiver or estoppel had been established in this case, the appeal court should not have allowed the Mills to raise the question of abandonment  of  right  by  the  Company, inasmuch as no such plea of abandonment had been raised either in the Mills' affidavit

90

in opposition to the Company's application or in the Mills' grounds of appeal before the High Court. Apart from this, the appeal court  permitted  the  Mills  to  make  out  a plea of abandonment of right by the Company as  distinct  from  the  pleas  of  waiver, acquiescence  and  estoppel  and  sought  to derive support for this new plea from the well known cases of  Prendergast v.  Turton [1 Y & CCC 111 : 62 ER 807] ,  Clark  & Chapman v.  Hart [2 HLC 632 : 10 ER 1443] and  Jones v.  North  Vancouver  Land  and Improvement Co. [LR 1910 AC 317] .  

Further,  whatever  be  the  effect  of  mere waiver, acquiescence or laches on the part of  a  person  on  his  claim  to  equitable remedy  to  enforce  his  rights  under  an executory contract, it is quite clear, on the  authorities,  that  mere  waiver, acquiescence  or  laches  which  does  not amount to an abandonment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest. See per Lord Chelmsford in Clarke case [2 HLC 632 : 10 ER 1443] at p. 657. Indeed, it has been held in Garden Gully United Quartz Mining Company v. Hugh McLister [LR 1 AC 39] that mere laches does not  disentitle  the  holder  of  shares  to equitable  relief  against  an  invalid declaration  of  forfeiture.  Sir  Barnes Peacook in delivering the judgment of the Privy  Council  observed  at  pp.  56-67  as follows:

“There  is  no  evidence  sufficient  to induce  Their  Lordships  to  hold  that the  conduct  of  the  plaintiff  did amount  to  an  abandonment  of  his shares, or of his interest therein, or estop  him  from  averring  that  he

91

continued  to  be  the  proprietor  of them. There certainly is no evidence to  justify  such  a  conclusion  with regard  to  his  conduct  subsequent  to the  advertisement  of  30th  of  May, 1869.  In  this  case,  as  in  that  of Prendergast v. Turton [1 Y & CCC 111 : 62  ER  807]  the  plaintiff's  interest was executed. In other words, he had a legal interest in his shares and did not require a declaration of trust or the assistance of a court of equity to create  in  him  an  interest  in  them. Mere  laches  would  not,  therefore, disentitle  him  to  equitable  relief: Clarke  and  Chapman v.  Hart [2  HLC 632 : 10 ER 1443] . It was upon the ground  of  abandonment,  and  not  upon that of mere laches, that  Prendergast v. Turton [1 Y & CCC 111 : 62 ER 807] was decided.”

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

In  his  concurring  judgment  Justice  Vivian  Bose

further took the following view:

“21.The  position  is  different  when  the interest  is  executed  and  the  man  has  a

92

vested interest in the right, that is to say,  when  he  is  the  legal  owner  of  the shares  with  the  legal  title  to  them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the legal title  to  property,  whether  moveable  or immovable, cannot pass from one person to another except in legally recognised ways, and normally by the observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure which must be gone through.  A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings about the change. The expressions  abandonment,  waiver  and  so forth,  when  used  in  a  case  like  the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call  it  by  its  proper  legal  name.  These other  terms  are,  in  my  view,  loose  and inaccurate  and  tend  to  confuse,  when applied to cases of the present nature.  

A man who has a vested interest and in whom the legal title lies does not, and cannot, lose  that  title  by  mere  laches,  or  mere standing by or even by saying that he has abandoned  his  right,  unless  there  is something  more,  namely  inducing  another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be  lost  by  what  is  loosely  called abandonment or waiver, but even then it is

93

not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished,  that  is  to  say,  which prevents him from asserting that the legal forms  which  in  law  bring  about  the extinguishment of his interest and pass the title which resides in him to another, were not duly observed.”

78.  We may also profitably refer to the judgment

of this Court in Dr. Karan Singh v. State of J & K

and Another 2004 (5) SCC 698:

“19. The Division Bench in the impugned judgment, as earlier noticed, has held that “either there was relinquishment of right or waiver voluntarily”. Before we examine the facts to decide this issue, reference may  be  made  to  certain  decisions  on  the aspects  of  estoppel,  abandonment  and waiver.  The  leading  case  on  estoppel  is 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 only be divested by gift or sale; of which no specific act was even surmised.

But  the  rule  of  law  is  clear,  that, where  one  by  his  words  or  conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the  former  is  concluded  from  averring

94

against the latter a different state of things  as  existing  at  the  same  time; (See Bigelow on Estoppel, pp.606,607.)

20. In  Mitra Sen Singh v.  Janki Kuar [AIR 1924 PC 213 : 51 IA 326] (AIR at p. 214) with regard to estoppel, it was stated:

“There is no peculiarity in the law of India  as  distinguished  from  that  of England  which  would  justify  such  an application.  The  law  of  India  is compendiously set forth in Section 115 of  the  Indian  Evidence  Act,  Act  1  of 1872. It will save a long statement 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 a thing to be true  and  to  act  upon  such  belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.’ ”

21.  In  Dhiyan Singh v.  Jugal Kishore [AIR 1952  SC  145  :  1952  SCR  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, a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other; second, that the other party, believing it, must have been induced to act on the faith  of  it;  and  third,  that  he  must have so acted to his detriment.”

22. In Gyarsi Bai v. Dhansukh Lal [AIR 1965 SC 1055 : (1965) 2 SCR 154] the principles

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were  reiterated  in  the  following  words: (AIR           p. 1061, para 8)

“To  invoke  the  doctrine  of  estoppel three conditions must be satisfied: (  1  ) representation by a person to another, (  2  ) the other shall have acted upon the said representation, and (  3  ) such action shall  have  been  detrimental  to  the interests  of  the  person  to  whom  the representation has been made.”

In regard to abandonment the Court referred to the

judgment in  Mulchand’s case (supra) and apparently

approved the same.  

79. Therefore, we would hold that a 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.  The

majority view is Mulchand (supra) appears to suggest

that there must either be abandonment or estoppel.

Justice Vivian Bose takes the view that title can be

lost  only  when  estoppel  is  established.   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

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in  stopping  a  party  or  his  representative  from

seeking legal redress or setting up the claim in a

court of law.

80. 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.  Even proceeding

on the basis that it is understood  that Gones has 1/2

right of over the rights, transferred in favour of

Suriaji  under  the  sale  deed  dated  17.11.1915,  the

question arises what is the effect of the inventory

proceedings of which Gones was certainly aware of and

admittedly he was a vogal.

81. In regard to the inventory proceedings, no

doubt, it is true that the inventory proceedings per

se are not produced.  The plea relating to inventory 97

proceedings are undoubtedly taken by the contesting

respondents.  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.

82. It is true that under the sale deed 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.  It is

the appellants case inter alia stated Suriaji had only

1/8 share in property ‘M’ and 1/4 share in property

‘B’.  Having regard to acknowledgment of ½ rights over

the said property in favour of Gones as contained in

settlement deed dated 21.1.1919, it is the appellants

case that the inventory proceedings could have been

concerned only with what was owned by the deceased

Suriaji and it could not have resulted the entire 1/4

right in property ‘M’ and 1/2 right in property ‘B’ 98

being allotted to Shantibai.  It is contended that it

involved  fraud  to  give  such  excessive  right  to

Shantibai.

83. It is next contended by the appellants that

even if it is that under the inventory proceedings

allotment was made of 1/4 share in property ‘M’ and

1/2 right in property ‘B’, the status quo under the

dissolution deed dated 21.1.1919 would continue.  In

other words even under the settlement deed of 1919

Suriaji alongwith his wife had undertaken transfer of

1/  2  share  to  Gones.   After  inventory  proceedings

under  the  inscription  of  even  of  the  entire  right

belonging  to  Suriaji  and  Gones  stood  allotted  to

Shantibai, Shantibai would continue to remain liable

as a trustee.

It is further contended as vogal on behalf of the

minor children, during the inventory Gones was only

obliged  to  protect  the  interest  of  the  minors.

Therefore even if property is shown allotted to Laxmi

Bai, it would not have any impact on the property of

Gones.

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84. In regard to the aforesaid contentions when

we are dealing with the case with the perspective of

acquiescence, abandonment and estoppel we come to the

following conclusions.  Gones was himself a 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.  We must proceed on the basis that the inventory

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 so allotted despite the settlement

deed of 1919 which according to the appellants carved

out rights in favour of Gones and towards ½ 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.

85. 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. 100

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.  We are unable to accept the case that it

would 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.  We

have taken the view that the concept of trust may be

inapplicable.   

86. There may be a plausible reason as to why it

all happened. After 1919 as we have already noticed

Suriaji executed a deed of his entire ¼ right which he

acquired under the gift from his grandfather in favour

of Gones which translated to roughly 22.5 hectares.

There is no case that the said gift was not accepted

by Gones.  In fact, the property covered by said gift

and also the property gifted by the grandfather to 101

Gones with another 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  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.  Equally as found by the High Court and

the first appellate     Court there is no material to

show that Gones was in receipt of income from property

which  is  specific  case  of  the  appellants.  In  fact

P.W.1 states as follows:          

“It  is  a  conditional  agreement  to  transfer

registration in the name of Gones by Suriaji.  He

further says “I also do not know what was the exact

amount which had to be paid by Gones to Suriaji to

effect registration of the property”.  He further

categorically states that the last time he went to

the property was in 1940/1941 (at that time he was

apparently about 9 years) and he says he remembers 102

plucking of the produce.  He does not have a case of

receiving income after the death of his father Gones

as he states that from 1979 payments were stopped.

As far as payment received prior to 1979 we have

already  found  that  his  testimony  has  not  been

believed by the two courts and we see no reason

either to take a different view.”

88. 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  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, we would think that on the

face of it abandonment may not be inappropriate in the

peculiar  facts  of  this  case.    If  the  legal 103

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.  We proceed on the basis that there was

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.   No  doubt  the  latter

objection may be a milder obstacle if the pleading as

a whole could imply such a case.

DISCRETION IN AN APPEAL GENERATED BY SPECIAL LEAVE

89. We  will  however  assume  and  proceed  on  the

footing that Gones was entitled for 1/2 share, payment

of Rs.1000/- was not a condition precedent in a suit

based on title that adverse possession has not been

proved (particularly having regard to the inconsistent

plea based on title) and since Gones had title and the

substantive  prayer  is  to  be  treated  as  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 we would not exercise our 104

discretionary power in an appeal which is generated by

special  leave.  It  will  be  wholly  inequitable  to

intervene in favour of the appellants as successors of

Gones.  The decree of the first appellate court as

confirmed by the High Court in our view has resulted

in  a  decision  which  is  otherwise  just.  In

Taherakhatoon (D) by LRs v. Salambin Mohammad  31, it

has been held that even after the grant of special

leave  in  an  appeal  this  Court  is  not  bound  to

interfere.  This Court inter alia held as follows:

“15. It is now well settled that though special  leave  is  granted,  the iscretionary power which vested in the Court at the stage of the special leave petition  continues  to  remain  with  the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. It was so laid down  by  a  Constitution  Bench  of  five learned Judges of this Court in  Pritam Singh v.  State [AIR 1950 SC 169 : 1950 SCR 453]. In that case, it was argued for  the  appellant  that  once  special leave  was  granted  and  the  matter  was registered as an appeal, the case should be disposed of on merits on all points and  that  the  discretionary  power available  at  the  stage  of  grant  of

31 1999(2) SCC 635 105

special leave was not available when the appeal was being heard on merits.

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

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

This Court observed that the rule laid down by the Privy Council is based on sound  principle  and  only  those  points could be urged at the final hearing of the appeal which were fit to be urged at the  preliminary  stage  when  leave  to appeal  was  asked  for  and  it  would  be illogical to adopt different standards at  two  different  stages  of  the  same case. This Court observed (para 8) that, so far as Article 136 was concerned, it was to be noted firstly that it was very general and  was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the 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

106

possible  a  more  or  less  uniform standard  should  be  adopted  in granting  special  leave  in  the  wide range of matters which can come up before  it  under  this  article.  By virtue of this article, we can grant special  leave  in  civil  cases,  in criminal cases, in income tax cases, in  cases  which  come  up  before different kinds of tribunals and in a variety of other cases”.

(emphasis supplied)

This Court emphasised:

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

This Court then concluded:

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

20. In view of the above decisions, even though  we  are  now  dealing  with  the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out  the  error  —  still  we  may  not interfere if the justice of the case on facts does not require interference or

107

if  we  feel  that  the  relief  could  be moulded in a different fashion...  ”

(emphasis supplied)

In  this  case,  as  we  have  noticed  apart  from  22.5

hectares in property ‘M’ which was obtained by gift

deed executed by grandfather in favour of Gones, in

1925.  Gones acquired another gift by Suriaji’s wife

22.5 hectares of land in property ‘M’. As we have

noticed  there  was  91  hectares  in  property  ‘M’  and

nearly 31 hectares as property ‘B’. Thus Gones got 45

hectares approximately as a result of the gift deeds

of 1913 and 1925.  The case of the appellant is based

on the settlement deed of 1919, no doubt read with

sale deed of 1915.  If instead of Gift deed of 1925

and  Suriaji had to strictly confirm to the deed of

1919 as appellants contended Suriaji would have had to

transfer only 19 hectares it would be a little more

than 11 hectares from property ‘M’ and a little more

than 7 hectares from property ‘B’ but the grand total

would have been only 19 hectares.  Gones in other

words  would  have  got  19  hectares  but  admittedly

Suriaji has gifted Gones 1/4 share in property ‘M’ in

108

1925 which translated to about 22.5 hectares.  Thus he

was given almost more than 3 hectares than he would

have got if the settlement deed of 1919 was enforced.

If the suit is decreed in this case, the result would

be that Gones would stand allotted a little more than

64 hectares whereas the 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 be remembered that Gones died only in 1978 did not

raise his little finger against the exclusive right

being given to his brother’s family dissuades us  at

any  rate from  interfering  in  this  matter.

Consequently,  the  Civil  Appeals  stand  dismissed.

Parties to bear their own costs.

          ……………………………J.                                                                (Navin Sinha)  

…………………………J.                                                             (K.M. Joseph)

New Delhi; August  21, 2019  

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