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1458.2010SA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.911 SECOND APPEAL NO. 458 OF 2010Jijaba Rakhmaji WagaskarAge – 80 years, Occ : Agriculture, R/o Surodi, Taluka – Shrigonda, Dist. Ahmednagar. ..APPELLANT -VERSUS-1.Sojabai Kashinath WagaskarAge – 70 years, Occ : Labourer, 2.Meerabai Kashinath WagaskarAge- 48 years, Occ – Household, Both R/o Pishore Khurd, Tq. Shrigonda, Dist. Ahmednagar 3.Mandabai Jijaba WagaskarAge- 43 years, Occ – Household, R/o Surodi, Tal- Shrigonda, Dist. Ahmednagar. ..RESPONDENTS...Advocate for Appellant : Mr. Gawali Amol K.Advocate for Respondent Nos.1 and 2 : Mr. Shriraj R. Wakale ...CORAM :ROHIT W. JOSHI, J.DATE :27th FEBRUARY, 2025ORAL JUDGMENT :1.The present Second Appeal was admitted on 21.07.2010,on the following substantial questions of law :- “(i)Whether the Trial Court and the First AppellateCourt have rightly held that Kashinath cannot be 2458.2010SA.odtpresumed to be dead on the date of the suit and forthat purpose whether Sections 107 and 108 of theEvidence Act are properly considered ? (ii)Whether the Trial Court rightly held that BlockNo.140 was ancestral property, inspite of there beingevidence of previous partition in the year 1940 ? (iii) Whether the First Appellate Court was right inholding that Section 53-A of the Transfer of PropertyAct is not applicable and as such the present appellantis not entitled to protection of the same ? 2.The appellant in the present appeal is the originaldefendant no.2. The defendant no.1 was the mother, who has expiredafter filing of the suit. The plaintiff no.1 Sitabai is paternal aunt ofdefendant no.2. The defendant no.2 is daughter-in-law of plaintiff no.1and plaintiff no.3 is the daughter of plaintiff no.2. One Hari Bagaskarhad two sons namely Rakhmaji and Rangnath. Rangnath is the husbandof plaintiff no.1 – Sitabai, father-in-law of plaintiff no.2 and grand-father of plaintiff no.3. Rangnath has on 13.05.1971 executed a saledeed in favour of defendant no.2-Jijaba, who is son of his brotherRakhmaji. This Jijaba is defendant no.2 in the suit. Sale Deed pertainsto 1/4th portion of land bearing Gat No.140 admeasuring 6 Hector 98 3458.2010SA.odtAars of village Surodi, Tq. Shrigonda, Dist. Ahmednagar. Thereafter,Rangnath has executed agreement of sale dated 16.05.1975 in favourof defendant no.2 Jijaba in respect of remaining 3/4th portion of aboveland. Rangnath has expired after a period of around 2-3 weeks from thedate of agreement to sale dated 19.05.1965. Rangnath had died ahomicidal death and there was suspicion against his own son Kashinaththat he had committed the said offence. Kashinath went abscondingafter the demise of his father Rangnath. 3.The present respondents have filed the Civil Suit againstthe appellant and his deceased mother, being Regular Civil SuitNo.115/1983 claiming a declaration that Kashinath had died civil deathsince he was not heard for a period of around 8 years, they challengedthe sale deed dated 13.05.1971 executed by Rangnath in favour ofdefendant no.2 Jijaba with respect to above property and also made aprayer for possession of the entire land bearing Gat No.140 referredabove. Apart from this, they also claimed possession of half portion ofthe residential house, which is referred in the suit as property no.1.This house property was also standing in the name of deceasedRangnath, who is husband of plaintiff no.1. 4.The present appellant, original defendant filed written 4458.2010SA.odtstatement dated 09.09.1987 claiming that the half portion of the suitproperty was legally purchased vide sale deed dated 13th May, 1971. Asregards remaining 3/4th portion of Gat No.140, he has come up with acase that the deceased Rangnath had executed agreement for saledated 16.05.1975 in his favour and accordingly, he was in possession ofthe entire Gat No.140, 1/4th on the basis of sale deed and remaining3/4th pursuant to the agreement to sale. It will be pertinent to mentionhere that as regards the possession of 3/4th portion of land in GatNo.140, it is the case of the defendant no.2/appellant that possessionwas taken after execution of the agreement when part of the saleconsideration was paid to two individuals namely Shri Kohali and ShriWagaskar on the instructions of Rangnath. The case of defendant is thatin the partition, the entire house property was allotted to thedefendant. Based on the rival pleadings, the issues were framed in thesuit and parties led their respective evidence and after hearing therespective arguments, the learned Trial Court was pleased to decree thesuit partly. The sale deed dated 13.05.1971 is upheld, it is held that theplaintiffs/respondents herein are owners of remaining 3/4th portion ofland bearing Gat No.104. As regards the house property, the plaintiffshave been given a decree for possession of half portion of the saidhouse property. Apart from this, a declaration is also granted thatKashinath has died a civil death. Being aggrieved by the aforesaid
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5458.2010SA.odtdecree, the defendants preferred Regular Civil Appeal No.75/2005. Thesaid appeal has been dismissed, vide judgment and decree dated20.04.2010. The original defendant has preferred Second Appeal beingaggrieved by the aforesaid decree passed against him. As stated above,the present appeal was admitted on three substantial questions of lawand I now propose to deal with the same serially. Substantial Question No.(i) :- 5.Mr. A.K. Gavali, learned counsel for the appellant hasstrenuously urged that the learned Courts have erred in interpretingSections 107 and 108 of the Indian Evidence Act. He also argues thatthe statement in the written statement that tentatively six months afterdemise of Rangnath, his son Kashinath had visited defendant no.2 toassure that he will execute the sale deed in compliance of agreementdated 16.05.1975 is misinterpreted to mean that the defendants hadcome up with a positive case that they had heard and seen aboutKashinath within a period of seven years. The learned Advocatecontends that it is not his case that he had seen or heard aboutKashinath preceding a period of seven years from the date of filing ofthe suit. He therefore contends that situation is covered by Section 107of the Evidence Act and not by Section 108. The contention of thelearned Advocate is that since the plaintiffs were contending that 6458.2010SA.odtKashinath had died civil death and admittedly, he was known to bealive within period of 30 years prior to institution of the suit, burden ofproving his death was upon the plaintiffs in view of Section 107 of theEvidence Act. 6.It is not in dispute that Kashinath was seen and heard andin fact residing with the plaintiffs within a period of 30 years prior tothe date of institution of suit. It is also not in dispute that Kashinathand the present appellant are cousins being sons of real brothers.Interpretation of Sections 107 and 108 falls for consideration in thepeculiar facts of the case. The plaintiffs have come up with categoricalcase that they have not seen or heard about Kashinath for a period ofseven years and above prior to filing of the suit. This contention of theplaintiffs is not challenged. It is also not in dispute that the defendantshave not seen or heard about Kashinath for a period of seven yearsprior to institution of the suit. Likewise both sides have seen Kashinathalive within a period of 30 years prior to institution of suit.7.Section 107 of the Evidence Act prescribes that in caseswhere a question arises as to whether a person is dead or alive, theburden of proving his death is on the party who alleged that he haddied. Provided that the person is shown to be alive within a period of 7458.2010SA.odt30 years prior to the date on which such question arises. Section 108 isin the nature of exception to Section 107. In the present case, theplaintiffs and defendants both are persons who would have normallyseen Kashinath or at least heard about him if he was alive. However,both sides state that they have not seen or heard about Kashinath for aperiod of over seven years prior to the date of filing of suit. Undisputedfactual position that has emerged on record is covered by Section 108of the Evidence Act. I, therefore, hold that the burden of proving thatKashinath was alive was squarely on the defendants. In fact the case ofthe defendants that they had not heard about Kashinath as wascanvassed during the course of hearing coupled with the case of theplaintiffs throughout that they had not seen or heard about him for aperiod of seven years conclusively brings the matter within four cornersof section 107. Issue is rightly answered by the learned trial Court aswell as First Appellate Court.8.It will be also worthwhile to mention that the said issuehas assumed significance because the owner of the property wasRangnath. The suit filed by his widow Sitabai, daughter-in-law andgrand-daughter of deceased Rangnath. Sitabai had died shortly afterfiling of the suit and suit was continued by Sojabai and Mirabai, whoare daughter-in-law and grand-daughter of deceased Rangnath. The 8458.2010SA.odtcontention of Advocate Mr. Gavali is that if Kashinath was alive thenSojabai and Mirabai being daughter-in-law and grand-daughter couldnot have continued the suit, in as much as, the property would beinherited by Kashinath alone since he was legal heir of Sitabai. Theright of Sojabai and Mirabai to contest suit hinges upon the issue as towhether Kashinath was dead or alive. Although submission of thelearned Advocate for the appellant appears attractive and impressive atthe first blush, in my considered view, the contention also deserves tobe rejected on a deeper scrutiny. Sitabai instituted suit for possessionalong with her daughter-in-law and grand-daughter. On her demise, theright to continue the suit shall vest upon her legal representative andnot necessarily upon the legal heirs. The term, `legal representative’ iswider as compared to the term, `legal heirs’. In the present case,Sitabai’s son Kashinath had admittedly gone missing. Sojabai andMirabai are her daughter-in-law and grand-daughter. The propertyoriginally belonged to Rangnath and it was thereafter inherited bySitabai and Kashinath. Being wife or may be widow and daughter ofKashinath, they had certainly right of maintenance over the property.They were therefore legal representatives of deceased Sitabai qua thisproperty, although they may not be legal heirs assuming that Kashinathwas alive and not dead. Apart from the right of maintenance whenKashinath was not available to take charge of his property or the suit as 9458.2010SA.odta wife and daughter of Kashinath, Sojabai and Mirabai, both will haveright to contest the suit as legal representatives of his mother Sitabai. Question No.(ii) :9.The next question that falls for consideration as to whetherthe suit property Gat No. 140 was ancestral property in the hands ofRangnath or his self acquired property. The said issue also assumessignificance because Rangnath has executed the sale deed dated13.05.1971 and the disputed agreement dated 16.05.1975. If theproperty is held to be absolute property of Rangnath, the plaintiffs willhave no right to raise any objection in the manner in which he dealtwith the property. However, if the property is held to be ancestralproperty, Rangnath would act as Karta and his right to alienate theproperty will be subject to restrictions such as legal necessity, dischargeof debt, pious obligation etc. The contention of the learned counsel forthe appellant is that Gat No.140 was purchased jointly by Rangnathand his brother Rakhmaji. He contends that since Rangnath andRakhmaji purchased the property jointly after partition of ancestralproperties between them the property will be self acquired property ofRangnath. He contends that there cannot be any quarrel about the factthat the property was purchased after partition in as much as the sameis reflected from the plaint averments. It is admitted position on recordthat property received by Rangnath in the partition was only source of 10458.2010SA.odtincome of Rangnath. It is obvious from the record that the property GatNo.140 although purchased by Rangnath and his brother Rakhmaji,Rangnath had no source of income other than income from theproperties received by him in partition. The properties received inpartition are admittedly his ancestral properties. Therefore, landbearing Gat No.140 is property which is acquired from ancestralnucleus. It is therefore obvious that Gat No.140 was also ancestralproperty of Rangnath. Question No.(iii) :- 10.Deceased Rangnath had entered into agreement of saledated 16.05.1975 with respect to 3/4th portion of land Gat No.140. Thisdocument is proved and exhibited. As per this document, out of totalsale consideration of Rs.7,800/-, Rs.2,500/- was paid by Jijaba-appellant to Rangnath on the date of said agreement. The agreementcontains a specific recital that possession of the property would bedelivered on the date of sale deed. The contention of the appellant isthat on instructions of Rangnath further amount of Rs.4,000/- was paidby the appellant to Mr. Kohali and Mr.Wagaskar. The learned counselfor the appellant contends that upon such payment being made, theappellant was placed in possession of the property in part performanceof contract. The learned counsel for the respondents-original plaintiffsstrongly disputes this contention. He has drawn my attention to the 11458.2010SA.odtcross examination of appellant – defendant no.2 at page 103 of thepaper book, wherein the defendant no.2 – appellant has admitted thathe had taken possession of the agricultural land which is subject matterof the agreement since there was no male member in the family of theplaintiffs/respondents. He contends that possession of the property wasnever delivered by the plaintiffs or deceased Rangnath. The learnedcounsel for the appellant however retorts that the said statement is inthe nature of stray admission, which may not have much evidentiaryvalue. He contends that the defendant no.2 – appellant is admittedly inpossession of the entire suit property bearing Gat No.140 andpossession is relatable to the agreement in question. It is undisputedthat the agreement was executed on 16.04.1975 and Rangnath diedwithin a period of 2-3 weeks thereafter i.e. somewhere in first week ofMay or last week of April. The appellant had filed receipts on recordunder which the payments are allegedly made to above named twocreditors of Rangnath. It is contention of the appellant that thesepayments are made on instructions of Rangnath. These receipts are atExhibit-73 to 75. The learned trial Court has recorded that althoughRs.2,600/- is stated to be paid to Shri Kohali, receipt at Exhibit-72discloses payment of Rs.2,200/- only. As regards receipts Exhibit-73and Exhibit-74, it is stated that under the said receipts amount ofRs.1200/- and Rs.3,000/- respectively is shown to be paid to Shri 12458.2010SA.odtWagaskar. Although the amount is shown to be paid to Shri Wagaskar,the receipts is written by Shri Kohali. Dates of receipts are alsorelevant. The receipts are dated 09.03.1976 and 29.03.1976. The datesare after period of around 9-10 months from the date of demise ofRangnath. Therefore, the dates of these receipts and story of theappellant that the payments were made on instructions of Rangnathalso appears to be improbable. Receipts have been rightly discarded bythe learned Courts. I am, therefore, of firm opinion that the plaintiffshave not delivered possession of the suit property covered under theagreement of sale to the appellant- defendant. The appellant –defendant, therefore cannot seek shelter under Section 156-A to protecthis possession. Question no.(iii) is answered accordingly.11.In view of the above, no substantial questions of law arisesfor consideration. Therefore the appeal is dismissed. Rule standsdischarged accordingly.[ROHIT W. JOSHI] JUDGEsga/