1. This appeal under Section 100 of the Code of Civil Procedure is by original plaintiff No.1, who alongwith her mother (Plaintiff No.2-deceased) had filed Civil Suit No.43 of 1994, against the Respondents herein who are original-defendant Nos.1 and 4 respectively, as also against two other defendants, who were sisters of the present appellant, for declaration that the plaintiffs have share in the suit property of land bearing Survey Nos. 1999, 1205 and 279 situated at village Latipur and for passing decree of partition in respect of their share. It is the case of the plaintiffs, in their suit, that the suit properties are ancestral properties and plaintiff No.1, defendant Nos.1 to 3 being daughters and plaintiff No.2 being mother of plaintiff no.1 are equally entitled to their share in the ancestral properties.
2. The suit was resisted by defendant No.1 to 3 by filing written statement at Exh.7 and by defendant No.4 (Respondent No.2 herein) by filing written statement at Exh.33. It was a specific case of Respondent No.2 that there was an agreement to sale executed in the year 1978 by the father of plaintiff No.1 and husband of plaintiff No.2 and on the basis of such agreement to sale plaintiff No.2 executed sale- deed after the death of her husband in favour of Respondent No.2 on 01.05.1982. Respondent No.2 was bonafide purchaser and acquired all rights in respect of land bearing Survey No.279.
3. The learned Trial Judge on the basis of appreciation of evidence found that except Survey No.279, other survey numbers were ancestral properties and because of the agreement between the daughters, the plaintiff No.1 would be entitle to 80% share from the lands bearing Survey Nos.1999 and 1205. However, as regards land bearing Survey No.279 is concerned, the learned Trial Judge came to the conclusion that the father of Plaintiff No.1 and husband of Plaintiff No.2 named Sanghabhai was the absolute owner of the said property because the said property was self acquired property of deceased Sanghabhai. That Sanghabhai executed agreement to Sale in favour of Respondent No.2 by taking Rs.10,000/- out of total consideration of Rs.25,000/-. As per the contents of the agreement to sale, if Sanghabhai did not survive and if remaining amount was paid by Respondent No.2 after his death, the plaintiff being the wife of Sanghabhai would inherit said property as the sole heir and would execute sale-deed in favour of Respondent No.2.
4. The learned Trial Judge thus came to the conclusion that land bearing Survey No.279 was not ancestral property but self acquired property and plaintiff No.2 widow of deceased Sanghabhai having executed sale-deed as per the wish of deceased Sanghabhai, Respondent No.2 has become owner of the property and plaintiff No.1 had no right to ask for her share from the said property. On the basis of above conclusion, learned Trial Judge, partly allowed the suit, and passed decree declaring 80% of share of the plaintiff in the land bearing Survey Nos.1999 and 1205. So far as the land bearing Survey No.279 is concerned, the suit was dismissed.
5. It is stated before the Court that since plaintiff No.2 mother of plaintiff No.1 as well as of Respondent No.1 herein, as also of original defendant Nos.2 and 3 expired pending the suit. The First Appeal was therefore preferred only by original plaintiff No.1. It is also stated that since two of the daughters have relinquished their rights in favour of plaintiff No.1, those two daughters were also not joined in the First Appeal preferred by the present appellant.
6. The appeal was mainly in respect of land bearing Survey No.279. It was the case of the appellant that learned Trial Judge has committed error in holding the land bearing Survey No.279 as self acquired property of deceased Sanghabhai. It was further the case of the appellant that on death of deceased Sanghabhai, the property of land bearing Survey No.279 devolved in favour of daughters and mother and therefore, the sale-deed executed in favour of Respondent No.2 after the death of deceased Sanghabhai to the extent of the shares of the daughters would be a void document and Respondent No.2 could not be said to have acquired an absolute title to the land bearing Survey No.279. The learned Appellate Judge on appreciation of evidence came to the conclusion that the plaintiffs had not come to the court with clean hands because the plaintiffs had knowledge about the transaction of sale-deed in favour of Respondent No.2, that the plaintiffs were pursuing the proceedings before the Revenue Authorities though Plaintiff No.2 had executed sale-deed in favour of Respondent No.2 and therefore both were having knowledge about the sale-deed executed by plaintiff No.2 in favour of Respondent No.2 and Respondent No.2 was put into possession of suit property being land bearing Survey No.279 for more than 20 years and the plaintiffs thus suppressed material fact. Learned Appellate Judge further observed that the plaintiff having not challenged the sale transaction entered into in favour of Respondent No.2 and having suppressed the fact of execution of sale-deed in favour of Respondent No.2, though they pursued proceedings before the Revenue Authority, they are not entitled to any relief in respect of land bearing Survey No.279. Learned Appellate Judge thus dismissed the appeal by judgment and decree on 27.02.2012. It is this judgment and decree passed by learned Appellate Judge which is under challenge before this Court in this appeal.
7. I have heard learned Advocate Mr.S.P.Majmudar for the appellant. Learned Advocate Mr.S.P.Majmudar submitted that deceased Sanghabhai- father of the appellant had executed the agreement to sale in favour of Respondent No.2 where under Respondent No.2 did not get any right or interest in the land bearing Survey No.279. He submitted that on the death of deceased Sanghabhai, suit property including land bearing Survey No.279 would equally devolve upon all the heirs of deceased Sanghabhai by virtue of provision of Section 32 of the Indian Succession Act, 1925 and plaintiff No.2-widow of deceased Sanghabhai since can be said to have become co-owner with plaintiff No.1 and other daughters was not entitled to execute sale-deed in favour of Respondent No.2 for entire property of Survey No.279. Mr.Majmudar submitted that even if the sale-deed was believed to be executed by the widow of deceased Sanghabhai in favour of Respondent No.2, Respondent No.2 would be entitled to the share in the property of Survey No.279 to the extent of the share of plaintiff No.2 after the death of Sanghabhai. And for that purpose Respondent No.2 was required to file suit for partition in respect of his right under sale-deed to the extent of share of Plaintiff No.2 and till such partition suit is filed, Respondent No.2 would not be entitled to enjoy even the possession to the extent of the share of plaintiff No.2 in the land bearing Survey No.279.
8. Mr.Majmudar submitted that when Hindu dies intestate, succession in respect of property of such Hindu takes effect immediately and such succession in the present case cannot be said to have been in abeyance simply because deceased Sanghabhai had executed agreement to sale. Mr.Majmudar submitted that by virtue of agreement to sale, plaintiff No.2-widow of deceased Sanghabhai did not become absolute owner of land bearing Survey No.279 and therefore she had no right to execute sale-deed on the basis of agreement to sale in favour of Respondent No.2. He submitted that before the sale-deed was executed, the rights in the property had already accrued in favour of daughters of deceased Sanghabhai and since none of the daughters including plaintiff No.1 had transferred their share in favour of Respondent No.2, Respondent No.2 cannot be said to have become absolute owner of land bearing Survey No.279. Mr.Majmudar submitted that the sale-deed in favour of Respondent No.2 is a void document for all purposes and such void document did not have any effect in law as by virtue of provision of the law of succession, as the property of land bearing Survey No.279 had already devolved upon the plaintiffs alongwith other daughters on the death of deceased Sanghabhai. He further submitted that the plaintiffs alongwith other daughters having become co-owners of the property of land bearing Survey No.279, learned Trial Judge was not justified in partly allowing the suit. He submitted that the learned Appellate Judge has equally committed serious error in dismissing the appeal without addressing the issue involved in the appeal and without assigning cogent reasons. Mr.Majmudar thus urged to entertain this appeal. In support of his arguments, Mr.Majmudar has relied on the following authorities:
1. Ramdas v.Sitabai and others, reported in AIR 2009 SC 2735.
2. Sri Mahalinga Thambiran Swamigal V. His Holiness Sri LA Sri Kasivasi Arulnandi Thambiran Swamigal, reported in (1974) 1 SCC 150.
3. Vimaleshwar Nagappa Shet V. Noor Ahmed Shariff and others, reported in (2011) 12 SCC 658.
4. Dharma Naika V. Rama Naika and another, reported in (2008) 14 SCC 517.
9. Having heard learned advocate Mr.S.P.Majmudar for the appellant and having gone through the judgment and decree passed by the Courts below as well as having gone through the contents of agreement to sale dated 24.04.1978 executed by deceased Sanghabhai, a copy of which is made available for the perusal of the Court, it appears that the property of land bearing Survey No.279 in respect of which grievance is raised in this appeal was believed to be self acquired property of deceased Sanghabhai, by learned Trial Judge. The other two properties being Survey Nos.1999 and 1205 were held to be ancestral property from which appellant is held entitled to the share to the extent of 80%. On perusal of the contents of the agreement to sale executed by deceased Sanghabhai, it is found that deceased Sanghabhai wanted his widow who is plaintiff No.2 to execute sale-deed in favour of Respondent No.2. Pursuant to said agreement to sale to which plaintiff No.2 was also signatory, sale-deed came to be executed and on the basis of such sale-deed, Respondent No.2 has become owner of land bearing Survey No.279. The learned Trial Judge on such conclusion found that plaintiff No.1 had no right to claim any share in the property of land bearing Survey No.279 and on such conclusion the suit was dismissed for the land of Survey No.279.
10. The learned Appellate Judge, has also recorded that plaintiff No.1 and her mother being plaintiff No.2, both had suppressed the material fact of execution of sale-deed in favour of Respondent No.2, though both had pursued revenue proceedings before the Revenue Authority against the Respondent No.1. The learned Appellate Judge further found that Respondent No.2 by virtue of the sale-deed in his favour was put in possession of the land bearing Survey No.279 for a period of more than 20 years and the plaintiffs having knowledge about execution of the sale-deed in favour of Respondent No.2 cannot be said to have approached the Court with clean hands. The learned Appellate Judge has also found that plaintiff No.2 being person having executed the sale-deed in favour of Respondent No.2 and plaintiff No.1 having knowledge of such execution of the sale-deed are not entitled to challenge legality and validity of the transaction of sale.
11. At this stage, the contents of agreement to sale are required to be taken into consideration. The agreement to sale clearly recites that land bearing Survey No.279 was agreed to be sold to Respondent No.2 for consideration of Rs.25,000/- out of which deceased Sanghabhai had already received Rs.10,000/- from Respondent No.2 and remaining amount of consideration was to be paid by Respondent No.2 in two different installments of Rs.7,000/- and Rs.8,000/- on different dates as provided in the agreement to sale. The agreement to sale further recites an unequivocal wish of deceased Sanghabhai to treat his widow as his sole heir for the purpose of completing execution of sale- deed in favour of Respondent No.2, on Respondent No.2 making full payment of the amount of consideration as agreed between the parties. In consonance with such wish of her husband, Plaintiff No.2 then executed sale-deed in favour of Respondent No.2 on 01.05.1982. A copy of the sale-deed at Exh.99 is made available to the Court for its perusal. Plaintiff No.2 in the sale- deed has clearly stated that she was under obligation to execute the sale-deed as a sole heir of her husband as the Respondent No.2 has paid remaining amount of consideration. The sale-deed was executed by delivering possession of the property of Survey No.279.
12. It is required to be noted that after the sale-deed for land bearing Survey No.279 was executed by plaintiff No.2 in favour of Respondent No.2, what remained with the plaintiffs and with other daughters were the ancestral properties of land bearing Survey Nos.1999 and 1205. In respect of remaining lands, the will was subsequently executed by plaintiff No.2, which is produced at Exh.61. There is clear recital in the will that the will is for giving away the propriety rights in respect of only ancestral properties. In Para No.1 of the will, it is stated that after the death of deceased Sanghabhai land bearing Survey No.279 was sold to Respondent No.2 and out of the remaining lands plaintiff No.2 wished to give her share therein in favour of plaintiff No.1. It, therefore, clearly appears that right from the beginning, the plaintiff No.1 was very much aware that land bearing Survey No.279 was already sold by her mother-plaintiff No.2 to Respondent No.2 and she had no right whatsoever in the said land. Still however, when the suit was filed in the year 1994, the present appellant being Plaintiff No.1 and her mother being plaintiff No.2 did not disclose very vital and important facts about sell of land bearing Survey No.279 in favour of Respondent No.2. They even did not join Respondent No.2 in the suit. It appears that they were conscious that they would have no claim in the land bearing Survey No.279 and therefore as could be found from the copy of the plaint, at the very late stage in the year 2001 an amendment was sought to include Schedule A of the property for which the relief could be prayed in the suit. It further appears that subsequently Respondent No.2 was joined in the suit. It is worth mentioning that though it is stated in the sale-deed executed in favour of Respondent No.2 that the plaintiff No.2 was executing the sale-deed in favour of Respondent No.2 as wished by her husband, still she joined herself as plaintiff No.2 in the suit and tried to help appellant-plaintiff No.1 to fulfill her unethical desire even to capture the land sold to Respondent No.2 as per the wish of her father.
13. The Courts below have on appreciation of the documentary evidence on record found that deceased Sanghabhai had wished to complete the sale transaction of his self acquired property of land bearing Survey No.279 even after his death if Respondent No.2 could make full payment as per the agreement to sale. The Courts below on the basis of appreciation of evidence on record as also on the basis of the conduct of the plaintiffs found that the plaintiffs had not come to the Court with clean hands and therefore rightly dismissed the suit respect of land bearing Survey No.279. I find that by virtue of agreement to sale and sale-deed executed in favour of Respondent No.2, the appellant was totally divested of her alleged right to land bearing Survey No.279. The appellant is therefore not entitled to claim any right to land bearing Survey No.279.
14. Mr.Majmudar, however, continued to put forth his contention that since deceased Sanghabhai died intestate, by virtue of Section 32 of the Indian Succession Act, 1925 the property of land bearing Survey No.279 would also devolve upon plaintiff No.1 and other daughters equally alongwith plaintiff No.2 and therefore mere agreement to sale executed by deceased Sanghabhai in favour of Respondent No.2 cannot take away the right of the appellant accrued in favour of appellant by way of succession. The succession once having taken place is never put in abeyance by any event.
15. I have already discussed above that deceased Sanghabhai himself made his widow-Plaintiff No.2 as sole successor of the land bearing Survey No.279 to facilitate her to execute the sale-deed as per his wish in favour of Respondent No.2 on his making full payment of the consideration. It was self acquired property of deceased Sanghabhai and the rights in the property of land bearing Survey No.279 were duly conferred upon Respondent No.2 in the year 1982 by sale-deed executed by plaintiff No.2 who was the only person authorised to succeed to the property of land bearing Survey No.279 of deceased Sanghabhai and to execute sale-deed. In the will, made subsequent to the sale-deed, Respondent No.2 has stated that deceased Sanghabhai was suffering from Cancer and plaintiff No.1 being daughter of deceased Sanghabhai resided with deceased Sanghabhai as well as the plaintiff No.2 and served her father during his chronic ailment of Cancer. The will was made to give away the rights of plaintiff No.2 in other lands only in favour of plaintiff No.1. It therefore, clearly appears that not only plaintiff No.1 was aware about execution of the sale-deed in favour of Respondent No.2 in the year 1982 but also acknowledged such action on the part of plaintiff No.2 of execution of the sale-deed in favour of Respondent No.2, as wished by deceased Sanghabhai. Such being factual scenario emerging from the documentary evidences, it cannot be said that on death of deceased Sanghabhai his propriety of land bearing Survey No.279 had devolved upon his other heirs. Therefore, above stated contention raised by learned Advocate Mr.Majmudar cannot be accepted.
16. Even otherwise also the appellant is not entitled to any relief because of her conduct. From the facts recorded above, it clearly appears that the plaintiff was aware about the sale transaction in the year 1982, still she made her mother- plaintiff No.2 to join in the suit without joining Respondent No.2. The suit was also filed at much belated stage i.e. almost after more than 12 years. Such appellant is therefore, not entitled to any relief even on account of delay and latches in approaching the Court. The judgments relied upon by Mr.Majmudar will be of no help to the appellant.
17. In the case of Ramdas (Supra) the purchaser had purchased only undivided share in the suit property and therefore in that fact situation, the Hon’ble Supreme Court held that such purchaser cannot claim more than the share of the vendor in the property. Such is not the fact situation in the present case.
18. In the case of Sri Mahalinga Thambiran Swamigal (Supra), the Hon’ble Supreme Court was faced with a question whether by nomination the appellant of that case acquired acquired any right in law. Such issue is not involved in the present case.
19. In the case of Vimaleshwar Nagappa Shet (Supra), the Hon’ble Supreme Court held that agreement to sale of immovable property for the entire property including the share of the co-sharer was void and ineffective as one of the co-sharer was not joining the agreement. Such is not the issue involved in the present case. In the present case, plaintiff No.2- widow of deceased Sanghabhai could not be said to be a simple nominee of deceased Sanghabhai. She was consciously made the only successor by deceased Sangabhai in respect of land bearing Survey No.279 and with that status plaintiff No.2 accomplished desire of her husband by executing the sale-deed. She did not act as nominee of original owner of land bearing Survey No.279. Therefore, the said decision has no application to the facts of the present case.
20. The last decision in the case of Dharma Naika (Supra) cited by Mr.Majmudar is on the facts of execution of agreement to sale which was intended to be taken as transfer of the property. The Hon’ble Supreme Court in the said case has explained and defined distinction between sale and agreement for sale. The Hon’ble Supreme Court has held the agreement for sale under the Transfer of Property Act does not pass or transfer the right, title and interest until the sale-deed is executed and registered. It is further observed that agreement to sale does not by itself create any interest in the proposed vendee of the immovable property but it only creates an enforceable right in the parties. Thus under the general law, that is, under the Transfer of Property Act, 1882 an agreement for sale is not the same as sale and in the case of an agreement for sale, the title of the property still remains with the vendor but in the case of sale title of the property is vested with the vendee. This judgment also will be of no help to the case of the appellant.
21. As discussed above, the agreement to sale clearly conveyed that deceased Sanghabhai wanted the property to be sold to Respondent No.2 through his wife plaintiff No.2, if Respondent No.2 made payment of entire amount of consideration and for this very purpose, deceased Sanghabhai wanted his wife i.e. Plaintiff No.2 to become the only successor of property of land bearing Survey No.279. Such being the factual scenario emerging from the record of the case, and Mr.Majmudar having failed to point out that finding of facts recorded by the Courts below is either on misreading of evidences or by taking into consideration any irrelevant material, I do not find that any substantial question of law has arisen for the consideration of this Court. The appeal is, therefore, required to be dismissed. The same is accordingly dismissed.
(C.L.SONI, J.) Tuvar