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

The Judgment of the Court was delivered by K.M. JOSEPH, J.

1Copy pinpoint1. 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 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 869 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

and 17 of 2004. The appellants are the plaintiffs. By the impugned A 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. B

2Copy pinpoint2. We may refer to following genealogy chart, which will facilitate better understanding of the issues involved: ANNEXURE P-1 NAVELKAR FAMILY

C

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

NAVELKAR) (SONS)

D (SON) (DAUGHTER) BALAKRISHNA PORSHOTTAMA SRNIVAS NAGENDRA RAMACHANDRA PIRU ALIAS SOROSPATI POROBO NALVELKAR POININ GROUP/BRANCHES OF VITOL

GROUP P/BRANCH OF VENKTEXA E DF.7 TO DF.27 (SON) (SON) GONES POROBO SURIAJI POROBO

NAVELKAR NAVELKAR

(WIFE : (WIFE : SHANTIBAI) PREMAWATI) F

P1 P3 D28

PRABHAKAR PREMANAND SMT. JAISHREE

(HUSBAND : VISHNU KAMAT) D 29 G D5

VENCTEXA

H

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3Copy pinpoint3. As can be noticed, the litigation concerns the properties of the Navelkar family. Parties are referred to with reference to the position in the trial Court. Venctexa Suria Porobo Navelkar was married to one Padmavati. They had one son by name Ramchandra Porobo and a daughter by name Piru. Ramchandra in turn had two sons, namely, Suriaji and Gones. The plaintiffs no. 1 and 3 are sons of Gones. The 2nd plaintiff B 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 C Navelkar family. As noticed from the genealogy chart Venctexa Navelkar’s brother was Vitol Porobo. The wife of Vitol Porobo was Laxmi. They had four sons. Defendants no. 7 to 27 represent the branch of late Vitol. Defendant no. 28 is the sister of plaintiff nos. 1 and 3 and29th defendant is her husband.

4Copy pinpoint4. The case set up by appellants in short is as follows. There exist two properties known as “Mallons” (hereinafter referred to as “M”) and “Bainguinim” (hereinafter referred to as “B”) situated in the village of Bainguinim in Goa. The properties lie adjoining to each other. M is admeasuring 90 hectares (approximately).B admeasures 31 hectares (approximately). Together they constitute the plaint schedule properties. E 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 F 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 G representing the Venctexa branch and other branch of Vitol came to be represented by his wife Laxmi along with her four sons. In the said deed dated 21.01.1919 Suriaji admitted that the purchase of 1/4th in the property of M and half of property B by the sale deed dated 17.11.1915 was for self and for his brother Gones who paid half the price. H Therefore, Suriaji and his wife Shantibai undertook to effect the transfer

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 871 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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. B Therefore, Gones became entitled to 1/8th of the property M and 1/4th of the property as a result of purchase made under deed of sale dated 17.11.1915. The further case of the plaintiffs is that half share of Gones in property M came to be sold in public auction in execution proceedings against Gones. Despite the dissolution of the Hindu undivided family of Navelkars, the two branches continued to live in their own ancestral house under the same roof. Annual income from the property in or about 1940 hardly exceeded Rs. 1000/-. The families of Gones and his brother Suriaji always lived continuously together. In 1949 Gones proceeded to Daman on account of his employment. He used to get his share from the suit property until his death which took place in December 1978. D 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 E 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 F 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. G

(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; H

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A (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. B (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.”

5Copy pinpoint5. The said suit was resisted. The defendants (as noted by the trial Court) can be classified in four groups, one group consisted of defendants no. 1, 2, 30 and 31, second group consisted of defendants no. 3 to 6, third group consisted of defendants no. 7 to 27 and fourth group consisted of defendants no. 28 and 29.

6Copy pinpoint6. The contesting defendants denied the case of the plaintiffs that they have any right in the property.

7Copy pinpoint7. 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 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 873 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

to Laxmi and ½ of M only belonged to Gones. Property belonging to A 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 1/4 th 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 and M. B

8Copy pinpoint8. After framing appropriate issues, the trial Court partly decreed the suit and a preliminary decree of partition was ordered to be directed to drawn up. The actual decretal portion reads as follows: “The suit is partly decreed, whereby it is held and declared that the plaintiffs together with defendants No. 28 and 29 are entitled to 1/8th share in the property Mollans and 1/4th from the property Bainguinim; and that the defendants 1 to 6 are holders of 3/8th and 1/4th share respectively and the share of the remaining defendants representing the branch of Vitol Porobo is one half each in the properties Mollans and Bainguinim. Consequently the Deed of partition dated 31.3.1969 by which the two properties were divided by and between the concerned defendants including the plaintiffs, defendants no. 28 and 29, is declared null and void as such is liable to be cancelled. The plaintiffs’ prayer for partition in prayer (d) is allowed to the area of the land from the suit properties allotted to the branch of Vencatoxa Porobo, represented by defendants 1 to 6 under the Deed of partition dated 31.3.1969. Hence preliminary decree is passed for separation of the plaintiffs and defendants 28 ad 29 share of 1/8th in Mollans and 1/4th from Bainguinim to be demarcated with the help of Collector or any gazette subordinate of the Collector as provided under Sec. 54 C.P.C. r/w O. XX R. 18(1) of C.P.C. respecting the possession of the third parties as far as possible from the area under alphabetical letters C,B & F of Deed of Partition dated 31.3.1969 and the corresponding survey numbers given to the said portion C, B & F viz. No. 17/1, 27/1, 25/1, 23/1 and 24/1. Collector to comply within six months as far as possible. Survey Authorities directed to carry out mutation of the plaintiffs claim in respect of Survey Numbers fallen to portions C, B & F viz. 17/1, 27/1, 25/1, 23/1 and 24/1. H

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A 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. B Preliminary decree be drawn accordingly. Pronounced in Open Court.”

9Copy pinpoint9. The trial Court in decreeing the suit proceeded to employ the following reasoning: C “The settlement deed dated 21.01.1919 confers title on Gones in respect of the property covered by sale deed dated 17.11.1915 the payment of Rs. 1000/- and nothing to do with consideration. The consideration was acknowledged as paid in the settlement deed dated 17.11.1915. The transfer by registration was only secure and guarantee rights and absence of Gones. There was no time limit for Gones to exercise his option under the settlement deed. The suit properties were enjoyed jointly at least until the deed of partition 1969. The deed of partition was not entered into with the plaintiffs and defendants no. 28 and 29 who were cousins. Therefore, it was found to be null and void.”

10Copy pinpoint10. The First Appellate Court found that the trial court had misread the relevant portions of the settlement deed. It was, inter alia, found that the settlement deed spoke of transfer of half the properties which meant transfer of title to the properties which was not to be read as transfer of registration/ mutation. The benefit of reimbursement was to Gones as it was for him to fulfill the said condition. The First Appellate Court describes it as absurd to say that the time for option is unlimited. The condition had to be complied within a reasonable time at least before the death of Gones. The deed of sale dated 17.11.1915 did not mention the name of Gones as one of the purchasers or that he had paid the half of price. There is no evidence to show that Gones had money, on his own, to pay half of price. The mere assumption, in the settlement deed, cannot be taken as gospel truth. There may have been some understanding between the two brothers. Condition had to be fulfilled by Gones by reimbursing half of the amount paid to Laxmi. The First Appellate Court appreciated the oral evidence and found that the H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 875 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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

11Copy pinpoint11. The High Court noted that the appeal had been admitted on the following substantial questions of law: “(1) Whether by virtue of Sale Deed dated 17.11.1915 read with the Deed of Declaration dated 21.1.1919, ownership of Gones to one-eight of the property Mollans, and one-fourth of the property Bainguinim, stood established or whether the declaration dated 21.1.1919 was merely an agreement, to sell half of what Suryaji had purchased under Deed dated 17.11.1915 in favour of Gones? D (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 E 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 F 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? G (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 H

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A limitation, particularly in view of the fact that in the Deed it was specifically stated that the transfer in the name of Gonesh would be effected “at any time he may wish”? (5) Whether the suit instituted by the appellants could be declared to have abated for the alleged non-bringing of some of the heirs of the deceased defendants, who died during pendency of the suit, on record in the absence of any objection raised in the written statement by the defendants, that the suit was bad for non-joinder of necessary parties, and whether such an objection could be raised by merely amending the memo of appeal and when the estate of deceased was substantially represented by persons already on record? (6) Whether on the pleadings and the material brought on record by the defendants First Appellate Court was right in holding that the suit filed by the plaintiffs was liable to be dismissed as barred by limitation more so when such finding was aimed in reversal of the finding of the Court?”

12Copy pinpoint12. It was found, inter alia, that Suriaji had admitted in document dated 21.01.1919 that 1/8th of property M and 1/4th of property B was purchased by him for Gonesand Gones was to pay his contribution, as indicated. No time limit was fixed for payment. The document did not specify that prior payment should be made by Gones or payment is a condition precedent. It was further found that acknowledgment of liabil- ity to part with property is described as absolute and unambiguous and the document contains unambiguous recital about the acknowledgment of existence of right of Gones in the property. It was further found that right of Gones to receive share is thus crystallized and he had a right enforceable in law and according to law. If Gones was to exercise and enforce his rights under the deed dated 21.01.1919, he ought to have objected to the allotment of share. He did not raise any objection related to the inventory proceedings in 1925 and it attained finality. Allotment was not challenged by way of suit which was open to him between 1925 G 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:

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 877 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

“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 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. C (d) It is also admitted that Gonesh did not dispute the allotmentof 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 in- D ventory, 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 E 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.” F 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 rights in her favour has attained finality for want of G challenge.”

13Copy pinpoint13. 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. H

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A 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.” B

14Copy pinpoint14. Resultantly, the questions of law were answered against the appellants and the appeals were dismissed.

15Copy pinpoint15. We have heard Shri J.P. Cama, Senior Advocate on behalf of the appellants, Shri Mukul Rohtagi, Senior Advocate along with Mr. Dhruv C Mehta, Senior Advocate on behalf of the respondents.

16Copy pinpoint16. 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 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.

17Copy pinpoint17. 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 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 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 879 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

of finding title with Gones and according to him if title is not lost, in a 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 irre- spective of the period of time taken for the plaintiffs to institute the suit law does not recognize deprivation of their title. B

18Copy pinpoint18. 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 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 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 H

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A 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. B

19Copy pinpoint19. In an appeal, so sourced, equitable considerations must play a dominant part. In other 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 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.

H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 881 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

CASE LAW RELIED UPON BY THE APPELLANTS A

20Copy pinpoint20. In the case law relied upon by the appellants, in Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and others1, this Court, dealing with Article 65 of The Limitation Act, 1963 has essentially reiterated the principle that long and continuous possession by itself would not constitute adverse possession. Non-participation in the rents and profits B 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. C

21Copy pinpoint21. In Jai Singh and others v. Gurmej Singh2, 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 Bhartucase [1981 PLJ 204] , the earlier decision in Lachhman D 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. E (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. (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.

1 (2004) 1 SCC 271 2 (2009) 15 SCC 747 H

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A (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 B 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.” C 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.

23Copy pinpoint23. The decision of this Court in P. John Chandy and Co. (P) Ltd. D v. John P. Thomas3 is pressed into 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 E 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.

24Copy pinpoint24. In L. N. Aswathama and another v. P. Prakash4, 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 G 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) 3 (2002) 5 SCC 90 H 4 (2009) 13 SCC 229

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 883 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the [sale] agreement, he mustdisclaim 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 interestand 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, necprecario [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 the true owner, the period for prescription will not commence. (Vide P. Periasami v. F 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 G 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

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p. 884

A 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 contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected.” (emphasis supplied) E

25Copy pinpoint25. In Kuldip Mahaton and others v. Bhulan Mahato(Dead) by Lrs. And others5, 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 F has been ousted. The possession by one, it was found, is therefore, possession of all. Mutation in the name of elder brother, for the collec- tion 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.

26Copy pinpoint26. In P.T. Munichikkanna Reddy and others v. Revamma and others6, 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 plea of adverse possession is to be viewed in the light of the same. 5 (1995) 2 SCC 43 6 (2007) 6 SCC 59 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 885 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

27Copy pinpoint27. In State of U.P. Another v. Universal Exporters and another7, A this Court emphasized the need to prove the date when the defendant’s possession became adverse to the plaintiff’s title.

28Copy pinpoint28. Punit Rai v. Dinesh Chaudhary8, 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.

29Copy pinpoint29. Sankalchan Jaichandbhai Patel and others v. Vithalbhai Jaichandbhai Patel and others9 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.

30Copy pinpoint30. The decision of the High Court of Punjab and Haryana in Mohinder Singh and another v. Kashmira Singh10, 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 F 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 G possession. It is such type of suit which is governed by the 7 (1997) 7 SCC 531 8 (2003) 8 SCC 204 9 (1996) 6 SCC 433 10 AIR 1985 P&H 215 H

p. 886

A 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 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.”

31Copy pinpoint31. In Ashok Kumar and others v. Gangadhar and another11, 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 D 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 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 con- struction would be opposed to all principles of interpretation of statutes. Therefore, different articles of the Limitation Act will

11 AIR 2007 AP 145 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 887 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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.”

32Copy pinpoint32. In Banarsi and others v. Ram Phal12, this Court dwelt upon the rights of a respondent in an appeal under Order XLI Rule 22 of the D Code of Civil Procedure, 1908 inter alia: “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. 12 (2003) 9 SCC 606 H

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A (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 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 G Singh and others13.

33Copy pinpoint33. In Mohan Lal (deceased) Through His Lrs. Kachru and others v. Mirza Abdul Gaffar and another14, this Court held that the

13 (2013) 9 SCC 261 H 14 (1996) 1 SCC 639

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 889 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

appellant’s first plea of adverse possession was inconsistent with the A 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. B THE CASE LAW RELIED UPON BY THE RESPONDENTS

34Copy pinpoint34. 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 Fernandes15 for the view that inventory proceedings are in the nature of a declaration of ownership rights and that it is like a C judgment in rem. This is to apparently contend that it was necessary for Gones to object at the given time.

35Copy pinpoint35. The decision of this Court in Raj Narain Pandey and others v. Sant Prasad Tiwari and others16, 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 Gujarat17.

36Copy pinpoint36. The decision of this Court in Dilboo (Smt.)(Dead) by Lrs. and others v. Dhanraji (Smt.)(Dead) and others18, 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 others19 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, was acquired by VassudevGovekar from Communidade of Anjuna under No. 131/1963 on 24-2-1970 as a G

15 (1999) SCC ONLINE Bombay 109 16 (1973) 2 SCC 35 17 (1994) 4 SCC 1 18 (2000) 7 SCC 702 19 (2017) 11 SCC 345 H

p. 890

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 B VassudevGovekar 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 and the plaintiffs described the same as the “suit property”. In Para 4, it is mentioned that Vassudev Govekar F 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 G 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

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PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 891 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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.”

37Copy pinpoint37. 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 which prevailed in Goa under the Portuguese Code. The case based on trust was never pleaded in the plaint.

38Copy pinpoint38. Eurekha Builders and others v. Gulabchand, S/o Veljee Dand Since Deceased By Legal Representatives and others20 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 E 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.

39Copy pinpoint39. Reliance is also placed on paragraph 30 of the judgment of this Court in Khatri Hotels Private Limited and another v. Union of India F and another21 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 made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words G “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 20 (2018) 8 SCC 67 21 (2011) 9 SCC 126 H

p. 892

A 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.”

40Copy pinpoint40. 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.

41Copy pinpoint41. 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.

42Copy pinpoint42. The first question we must pose and consider is what exactly is the property which is involved in the litigation.

43Copy pinpoint43. As we have noticed in the beginning of our judgment, property D ‘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 E 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 F made.

44Copy pinpoint44. 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 1937 the rights of G 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

22 H (1999) 2 SCC 635

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 893 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

based on the sale deed executed by the paternal aunt of Gones and her A 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 B 1915. PRESCRIPTION UNDER THE PORTUGUESE CIVIL CODE

45Copy pinpoint45. 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 C Union territories. Article 505 relied upon by the respondents defines prescription. “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. G 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.” H

p. 894

46Copy pinpoint46. 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 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 B 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 C 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: D “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, 1962 which provides that the existing laws shall be continued in force in the Union Territory until amended or repealed by a competent legislature. E 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 F (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 G (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 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 895 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

be termed to be the subject within the meaning of the Negotiable A 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 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 F — 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 G 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

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A element of prescription which is akin to adverse possession. A prescriptive right 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. B “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 C 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 D from the servitude of judicial process. In the first sense, as relat- ing 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 Limita- tion of Actions.” E (emphasis supplied)

47Copy pinpoint47. 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 extinction of remedy under the Portuguese law can- not but be deemed to be impliedly repealed. It was further held that F “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 G 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.

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PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 897 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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 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...”

48Copy pinpoint48. 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, 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.

49Copy pinpoint49. 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 G 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

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p. 898

A 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 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 D 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. 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.

50Copy pinpoint50. 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

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PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 899 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

of property ‘B’ and 1/2 right in property ‘M’ came to be conveyed to A Suriaji, the other part being conveyed to the Vitol branch. It is undisputed that 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.

51Copy pinpoint51. 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 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 E 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 F 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 G 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

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p. 900

A restitution in double shall be the compensation for loss and damages. 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 B 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. C 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 D 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.” E

52Copy pinpoint52. 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 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: F “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..” G 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

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PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 901 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

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 registra- tion shall contain: Paragraph 1; xxx Paragraph 2 : the name, status, profession and domicile:- C

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. D

53Copy pinpoint53. 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 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.

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p. 902