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

54Copy pinpoint54. Before we consider the question, it is necessary to enter the actual findings rendered by the High Court in regard to the title. The High Court finds that recognition of share of Gones is done in document dated 21.1.1919. It is further found as under: “31. Admittedly, no time limit is fixed for the payment of share or exercise of right in the Deed dated 21.1.1919. This document also does not specify that prior payment should be made by Gonesh due to be made thereunder, or that such payment is a condition precedent. Thus, acknowledgment of liability to part with property described therein is absolute and unambiguous. This document contains an unambiguous recital about acknowledgment of existence of right of Gonesh to the properties.” Right of Gonesh to receive share, is thus, crystalized, and he has derived a right enforceable in law and according to law.” We have already referred to the law laid down by this Court in regard to Order XLI Rule 22 of the Code of Civil Procedure. In an appeal if the respondent does not want any change in the decree of the lower court, it is not necessary for him to file an appeal or cross objection to merely support the decree already passed without any variation in the decree but by challenging the correctness of the findings in the judgment. The appellants are correct in contending that if a challenge is made to a E decree by a respondent then necessarily the respondent must file either an appeal or a cross objection. In this case however, the suit filed by the appellants stood dismissed by the first appellate court. The two appeals which were carried by the appellant before the High Court were dismissed. Resultantly, the decree of the first appellate Court dismissing the suit came to be confirmed. Before this Court the respondents are not seeking to challenge the decree. They do not wish any variation of the decree. They seek to have the decree confirmed. They support the decree entirely. The decree is one dismissing the suit. They are only seeking to support the said decree by challenging one of the findings namely the finding relating to title. For doing the same, it is not necessary for them to file an appeal or cross objection as by having the finding overturned in regard to title they are not seeking to have a different decree passed in any manner. Hence we reject the contention of the appellants that it is not open to the respondents to contest the finding on title without filing cross objection. H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 903 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

QUESTION RELATING TO TITLE A

55Copy pinpoint55. The findings of the High court can be culled out as follows:

1. Suriaji has admitted that 1/8th of ‘M’ and ¼ of ‘B’ was purchased by him for Gones and Gones was supposed to pay his contribution as indicated therein. B

2. No dispute can be raised as regards this promise or declaration in the deed.

3. Admittedly no time limit is fixed for the payment of share or exercise of right in the deed dated 21.1.1919.

4. The document does not specify that prior payment should be C made by Gones or that the payment is a condition precedent.

5. Acknowledgment of liability to part with property is absolutely unambiguous and the document contains an ambiguous recital about acknowledgment of existence of right of Gones to the property. D

6. Finally it is found that the right of Gones to receive share, is thus, crystallized and he has derived a right enforceable in law and according to the law.

56Copy pinpoint56. Let us also see how the High Court finds that the appellants are not entitled to relief. E

i. Gones was a vogal in inventory proceedings. In the said proceedings property ‘M’ and ‘B’ were allotted to widow of Suriaji, viz., Shantibai. If Gones has to enforce his right under the deed, he had to object the allotment of share in view of a document dated 21.01.1919. He did not object. Event relates to 1925 which attained finality when rights accrues to Shantibai in the inventory proceedings which were registered into records around 1940. ii. The allotment of share in inventory was not challenged by Gones by way of suit between 1925 and 1940 or at any time during his lifetime. The court does not accept the case of the appellants that though there was separation of family and a partition, the parties continued in joint enjoyment and the share of income was initially given to Gones and then the wife of H

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A Gones. Having acquiesced with the allotment of share to the wife of Suriaji though his property could not have been given to Laxmibai (this must be Shantibai), Gones and his heirs are estopped from opening up the succession after long span of over two decades. B iii It is not the plaintiff’s case that there was no knowledge of registration of property in the name of shantibai way back in 1940.Therefore it is found that whatever right or interest survived with Gones was lost as he did at any point of time challenge the allotment of property of Shantabai which has become final for want of challenge. C iv. After recording the property in the name ofShantibai and her heirs enjoyed the property in exclusion to plaintiff and supporting defendants openly. Denial of right of Gones or his exclusion and ample denial relates back to 1925 and it has culminated by absoluteness in 1940. Right of Gones to have D separate possession by partition or otherwise if he wanted to assert it on the basis of settlement deed that arose latest in

1940. As he did not enforce his right to seek partition and enforcement of the right under the settlement deed of 1919 was lost.

57Copy pinpoint57. We have set out two broad findings by the High Court. The first relates to the question whether Gones had acquired any right. The second part relates to whether he has lost the right. The High court finds that Gones indeed had a right but he has lost it and the right should have been enforced latest by 1940. F Coming to the first part namely whether Gones had a right the most important part is finding that Suriaji admitted that 1/8 of ‘M’ and 1/4 of ‘B’ was purchased by him for Gones.

58Copy pinpoint58. The case of the appellants appears to be that when 1/2 of the price was paid by Gones in terms of the acknowledgement contained in G the document of 1919, all that remained to be paid was 1000 rupees for reimbursing Suriaji having paid the amount to Laxmi towards dowry.There can be no dispute that the sale deed does not showGones as a transferee. The document dated 21.1.2019 is described as a deed of declaration, fixation of balance of accounts, payment and obligation. H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 905 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

Parties of the first part are described as Suriaji and his wife Shantibai A aged15 and minor aged 16. Gones is shown as aged 14 years assisted by his mother. Parties on the second part are described as Laxmi, widow of vitol (the other party) and her sons etc. The deed appears to provide for distribution of joint family and for settlement of accounts of the family which lasted only 3 years. It is inter alia stated further that the parties of the first part owed to the parties to the second part a sum of Rs.2000/-. It is inter alia stated therein that parties of the first part Suriaji stated that the purchase made by him by the sale deed dated 17.11.1915 was made for himself and for the party of the first part Gones, his brother and that he has paid for half of the price of the said purchase, therefore he undertakes alongwith the said Shantibai to transfer in the name of said Gones the half of the properties purchased in his name by the aforesaid deed at any time he may desire, to have it transferred and on the occasion of this transfer, the said Gones will have to indemnify him with half of the amount which has now been paid to the party of the second part Laxmi from the money of the dowry of his wife. It is the aforesaid provision which is at the heart of the controversy. We are to unravel its true scope and import. Whether it amounts to an admission or acknowledgment by Suriaji that Goneshis younger brother, had half right over the property acquired by Suriaji under the sale deed dated 17.11.1915? Whether on the other hand, the document is of executory nature and contemplating Suriaji executing a transfer in favour of Gones? E Whether it contemplated only a transfer of mutation, the title being admitted? Whether the clause contemplated a transfer on the occasion of which Gones was to indemnify Suriaji, half the amount which stood paid to Laxmi that money coming from dowry of Suriaji’s wife?

59Copy pinpoint59. The first thing we have to consider in this regard is the argument raised by the respondents that the words ‘he’ has paid for half the price for the said purchase should be understood as meaning Suriaji has paid for half of the price of the said purchase and this means that Suriaji was the full owner under the sale deed and Gones did not acquire any right as such. This is supplemented by the submission that Gones was a minor in 1915. He began to earn only in 1925 and therefore, there is no question of his having paid any part of the consideration for the sale dated 17.11.1915. On the other hand, it is the case of the appellants that one half of the consideration was paid by Gones.

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60Copy pinpoint60. In resolving this controversy, it is but apposite that we may refer to the pleadings of the parties. We may refer to para 11 of the plaint. The same reads as under: “11. It is in the said Deed of 21.1.1919 that Suria alias Suriaji Porobo expressly admitted that the purchase of the 1/4th of the B property Mollans and ½ of the property Bainguinim made under the Deed dated 17.11.1915 was for self and for his brother Gones who paid its price at the time of the purchase and therefore Suria and his wife Shantibai undertook to effect the transfer of registration in the name of Gones upon Suria being reimbursed by Gones in the payment of ½ of the amount paid by Suria to Loximi C (widow of Vitol Porobo) in consequence of the settlement of accounts made at the time of dissolution of Society. The period for exercising of option by Gones to make the reimbursement was however unlimited.” The contesting respondents-defendants 1,2,30 and 31 in their written statement inter alia stated as follows: “In the year 1919, the undivided joint family of Navelkars came to be dissolved and in the Deed of Dissolution and Settlement dated 21.01.1919, there is a mention that the said Surya had purchased the properties i.e. half of ‘Bainguinim’ and 1/4th of ‘Mollans’ and also on behalf of his brother Ganesh and had agreed to transfer a share of the said two properties in favour of the said Ganesh provided the said Ganesh pays to him Rs. 1000/- being reimbursement towards the amount paid by him on behalf of Ganesh to Laxmibai. However, it is not on record that the said F Ganesh ever paid the said amount of Rs. 1000/- to the said Surya, which was a condition precedent for effecting transfer of undivided share in the said two properties, in favour of the said Ganesh and it cannot be said that the period for payment of the said amount was unlimited.”

G The reply to the averment in para 11 of the plaint are contained in para 25 and it reads as follows: “25. The contents of para 11 of the plaint are partially admitted. These defendants deny that the period of exercising of option by Ganesh to make the reimbursement was unlimited as alleged. The acknowledgement as mentioned in the said deed dated 21.1.1919 H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 907 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

by the said Surya and conditional and it appear that the said Surya A performed the said acknowledgment by making a Gift Deed dated 14.04.1925 which was pursuant to the said acknowledgment apart from the fact that the said Gift Deed dated 14.4.1925 also appears to be shaddy document, the same having been executed a little before the death of the said Surya, thereby reflecting on its authenticity on the point of the same being a voluntary act. It is quite possible that the said Surya and his widow were coerced into making the said Gift Deed dated 14.4.1925 reminding them of the acknowledgment expressed by the said Surya in the Dissolution Deed dated 21.1.1919.” In the written statement filed by defendants 3,4,5 and 6 also, the reply to the averment contained in para 11 of the plaint is contained in para 7 of the written statement and the same are extracted below: “With further reference to para 11 of the Plaint these defendants say that the subsequent conduct of both Suriaji and Ganesh shows that the idea of transfer in the name of Ganesh ½ of the property purchased by Suriaji by deed dated 17.11.1915, was given up and consequently the said Ganesh never expressed any desire to have the transfer made in his favour nor did he pay any amount concerning the dowry of Shantibai, and no transfer mentioned in the said Deed dated 21-1-1919 was effected. These defendants say that the said statement of Suriaji regarding the transfer was never acted upon either by Suriaji or by Ganesh. The said statement made in the said deed dated 21-1-1919 should at the most amount to a simple promise for the sale on the part of Suriaji in terms of Article 1548 of Portuguese Civil Code, and would not confer in the said Ganesh any right or interest in respect of the suit properties.”

61Copy pinpoint61. There is no denial of the averment of Gones having paid the consideration. We would think that it would be a safe conclusion to reach that consideration was partly paid for at least on behalf of Gones. Case of the respondents that no part of the consideration moved from or on behalf of Gones in regard to the sale deed dated 17.11.1915 cannot be accepted. The view we have taken finds reinforcement from the words that follow immediately in the sale deed 21.1.1919. It is stated immediately H

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A after stating that he has paid for half of the price for the said purchase, therefore, he has undertaken alongwith the said Shantibai to transfer to Gones, the half of the properties purchased in his name etc. In this behalf the word being in conjunction with his wife Shantibai can only refer to Suriaji.Therefore, the interpretation would be as follows: B The sale deed dated 17.11.1915 was executed in respect of 1/4th of property ‘M’ and 1/2 of property ‘B’ in favour of Suriaji. Another 1/4th of property ‘M’ and other half of property ‘B’ was sold under the sale deed to the other branch represented by Laxmi Bai. It is obvious that under the sale deed for his share, Gones would have made part of the payment. What is acknowledged in the dissolution deed is that 1/2 C of the said consideration emanated from Gones.

62Copy pinpoint62. The next part is where the matter becomes more vexed. The question is what is the nature of the right, if any, which is acquired by Gones on the basis of the undertaking recorded in the document dated 21.1.1919 that Suriaji and his wife Shantibai will transfer in the name of D Gones the half of the properties purchased in his name at any time he may desire to have it transferred and further that on the occasion of the transfer Gones will have to indemnify him with half the amount which has been paid the party of the second part, namely, Laxmi bai who represented the other branch in Navalkar family. The undertaking to transfer in the name of Gones, the half of the property is according to the appellants only transfer of mutation. On the other hand, according to the respondents it involved a transfer accompanied by registration. In conjunction with the same, the further question is of the meaning of the words “that on the said occasion” that is when the transfer is effected Gones will have to indemnify the Suriaji with half the amount which stood paid to Laxmi from the dowry amount of Suriaji’s Wife. We cannot be oblivious to the fact that a sum of Rs.1000/- was a considerable sum of money in 1919. It is not to be confused with Rs.1000/- as on the date of the suit much less as of today. It was not meant to be a empty formality. We are unable to subscribe to the reasoning of the High Court when it holds that it is not a condition precedent. The payment was to coincide with transfer. No doubt it could have been made prior to demanding the transfer. We cannot understand the clause as meaning as either it need not be paid or the payment could be deferred.

63Copy pinpoint63. In the above perspective, let’s consider whether there is a H case that Gones offered Rs.1000/- to Suriaji during his lifetime and the

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 909 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

transfer of mutation or of right was refused. We do not see any such case at all. When the appellants are seeking the right solely based on the recital in the deed of dissolution dated 21.1.1919 we fail to see how when complying with the condition for seeking transfer it could be maintained by them that they are entitled without anything more to rights as co-owners. In fact, there is no case that the appellants have paid or offered the amount to the successors-in- interest of Suriaji. As already noticed, PW 1 goes to the extent of deposing that the ‘obligation to reimburse Suriaji did not devolve upon the heirs of Gones’. Thus the suit is filed with neither Gones nor even the appellants paying or even offering to pay the sum mentioned in the deed of 1919.

64Copy pinpoint64. We would also have a look at it from another perspective. In C the plaint, at para ‘9’, what is stated is in the year 1915, Piru and her husband sold the property by deed of sale dated 17.11.1915 in equal parts to Suriaji and to Laxmi. Thereafter, in para ‘11’, Suriaji in the deed dated 21.01.1919 is stated to have expressly admitted that the purchase of 1/4th of “M” and 1/2 of “B” made under sale deed dated 17.11.1915, D was for himself and his younger brother and who paid its price at the time of purchase and therefore, it was undertaken to transfer the registration, upon Suriaji being reimbursed by Gones in the payment of 1/2. It is admitted that the sale deed is in favour of Suriaji. It is nearly E 4 years thereafter in the document of 1919 that the admission by Suriaji about 1/2 price, being paid and about the undertaking is setup. There is no case for the appellants in the plaint that Suriaji was benamidaror a name lender. The principle of resulting trust underlies Section 82 of the Trust Act. There can be no doubt that Trust Act was inapplicable to Goa in 1915 and in 1919 as Goa was not part of British India. Certain F tests are propounded in determining whether a transaction is benami which have to be fulfilled. No doubt, the most important test is who provided consideration. There is no pleading in the plaint about the transaction being a benami transaction. If benami was recognized in Goa under Portuguese rule then it could be said that Gones would become G the owner provided the transaction is treated as a benami transaction. But there is no case of benami set up. In this regard we notice the following discussion in Controller of Estate Duty, Lucknow v.Alok Mitra in AIR 1981 SC 102:-

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A 31. ..In Petheperumal Chetty v. MuniandyServai (1908) 35 Ind App 98, the Judicial Committee quoted with approval the following passage from Mayne’s HINDU LAW, 7th ed., para 446: “Where a transaction is once made out to be a mere benami, it is evident that the benamidar absolutely disappears from the title. B His name is simply an alias for that of the person beneficially interested.” The cardinal distinction between a trustee known to English law and a benami darlies in the fact that a trustee is the legal owner of the property standing in his name and cestui que trust is only a C beneficial owner, whereas in the case of a benami transaction the real owner has got the legal title though the property is in the name of the benamidar. It is well settled that the real owner can deal with the property without reference to the latter. In Gur Narayan v. Sheo Lal Singh, 46 Ind App 1: (AIR 1918 PC 140), the Judicial Committee referred to the judgment of Sir George D Farwell in Bilas Kunwar v. Dasraj Ranjit Singh 42 Ind App 202: (AIR 1915 PC 96), where it was observed that a benami transaction had a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase-money, and went on to say: E “... the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him.” In Guran Ditta v. Ram Ditta, 55 Ind App 235: (AIR 1928 PC F 172) the Judicial Committee reiterated the principle laid down in Gopeekrist Gosain case (1854) 6 Moo Ind App 53 (PC) and observed that in case of a benami transaction, there is a resulting trust in favour of the person providing the purchase-money.” Reference may also be made to para ‘33’, which reads as G follows: - “33. The law is succinctly stated by Mayne in his TREATISE ON HINDU LAW, 11th Edn., at p. 953, in the following terms: “A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 911 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject.”

65Copy pinpoint65. Thus, a purchase which is made benami, leads to a resulting trust. C

Goa continued under Portuguese Rule and it was not a part of British India. There is a definite case for the respondents that the law of trust, as such, did not apply in Civil Law countries and the portuguese who were governed by Civil Law did not recognize the law of trust. D

66Copy pinpoint66. Incidentally we find that in eBook nº 32 Trusts, Foundations and Fiduciary Structures by Dennis Swing Greene, we may incidentally notice in Part 2: Portugal and Trusts under the head IV. Trusts under Portuguese Law, the same reads as under: “Trusts as a Contract E With the exception of the Madeira Free Trade Zone (where trusts are recognized when created under the laws of another jurisdiction), Porgtuguese law does not formally acknowledge the fiduciary concept implicit in a Trust whereby the rights are divided between the legal title in the hands of the trustees and the equitable rights with the beneficiaries. This lack of legal recognition raises several questions as to their tax and legal treatment. Portuguese law views a trust as a contract. All transactions involving trusts are deemed to be made with the trustees – the legal owners of the trust’s assets – rather than with the entitled beneficiaries under the terms of the trust. Beneficial interest is not a right formally recognized under Portuguese legislation…”

67Copy pinpoint67. The law of trust, as such, did not apply to Goa under the Portuguese Rule. At least the appellants have no case that it did apply. H

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A They have not produced anything to show that it applied. If the Trust Act which, undoubtedly, did not apply to Goa in 1915 or even in 1919 and in Section 82 thereof, lay embedded the principle of benami or resulting trust, how can appellant claim that Gones became entitled as owner under the document of 1915 read with the document of 1919. If it was reduced to a contract executory in nature, to perform an obligation upon which alone the title would vest, it was subject to the condition precedent of payment of Rs. 1000/- by Gones. Even according to the appellants obligation to pay Rs. 1000/-, did not pass to them. This conduct of the appellant’s, in seeking to derive rights under the document of 1919, even though, their predecessor in interest has failed either deliberately or otherwise to perform his obligation during his entire life time cannot be approved of.

68Copy pinpoint68. In law, how can Gones claim to be a co-owner? He must first become an owner. Section 82 of the Trust Act recognized that when a person transferred property to another for consideration, which is paid by a third party then the said person would be the beneficial owner. The transferee in name or Benamidar would hold the property in trust for the person who has actually provided consideration. There is, we reiterate no case based on benami ever set up by the appellant. Therefore, we would come to the conclusion that by sale deed of E 1915 and the settlement deed of 1919 it may not be safe to conclude that Gones acquired title as such in the plaint schedule property. In the light of this, we need not render any finding as regards adverse possession or ouster.

69Copy pinpoint69. It is worthwhile to note that after dissolution deed dated F 21.1.1919 there took place, another development in the form of execution of gift deed by Suriaji in the year 1925.The case which the defendants had set up about gift deed include the allegation which tends to question the circumstances surrounding the execution of the gift deed. They have a case also that the gift deed was executed pursuant to the acknowledgment in the 1919 document. Before this Court respondents G would seek to take advantage of it inasmuch as the contention is taken that the gift deed must be treated as executed in fulfilment of acknowledgment in the dissolution deed dated 21.1.1919. Under the gift deed of 1925 Suriaji has gifted Gones his ¼ right in property ‘M’ which

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 913 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

he acquired under the gift deed executed by his grandfather in the year A

1913. Be it remembered that in 1913, the grandfather has also executed gift of another ¼ of property ‘M’ in favour of Gones. Property ‘M’ consisted of roughly 90 hectares. Thus, under both the gift deeds together 1/2 of property ‘M’ or 45 hectares approximately came to be vested with Gones in the year 1925. Suriaji passed away in the year 1925 after B the gift. It is thereafter that inventory proceedings took place in regard to the properties of Suriaji under the Portuguese Civil Code. Gones stood asvogal apparently on behalf of the minor children of Suriaji under the Portugues Civil Code. The documentary evidence is found by the first appellate Court to establish that ¼ of property ‘M’ and ½ of property ‘B’ stood allotted in the name of Shantibai, the widow of the Suriaji. C This is borne out by the inscription which we have referred to of the year 1937. It is here that the question arises as to correctness of the findings that having participated in the inventory proceedings which culminated in the property being allotted to the Shantibai, the rights of Gones stood extinguished. D

70Copy pinpoint70. We will proceed on the basis that interpretation of clause of the dissolution deed leads us to hold that Gones having paid ½ of the purchase price what is contemplated by the undertaking was that Suriaji and his wife Shantibai were to transfer the mutation. Gones acquired title in the property. We proceed further on the basis that payment of Rs.1000/- was not a condition precedent as found by the High Court. E The question is whether the High Court is right in its findings based on no objections being taken to the property being allotted to Shantibai. We have already extracted the findings of the first appellate Court in this regard. We may at this juncture consider the contentions based on inventory proceedings held upon the death of Suriaji. F INVENTORY PROCEEDINGS

71Copy pinpoint71. According to the appellants, inventory proceedings arise out of the inheritance by partition among the heirs of the deceased person. It is treated as a deed of partition and requires registration under Section 45 of the Registration Act but it is not registered under Section 17 of the G Registration Act, 1908. The burden of proving the case based on inventory proceedings was squarely on the defendants which they have failed to discharge. No details of the precise date in 1925 or of the time and

1 2003 (8) SCC 204 H

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A place where the proceedings took place has ever been established. There is no evidence adduced by the defendants. The inventory proceeding itself is not produced. The defendants’ witness was 36 years old on the date of evidence and was, therefore, not alive in 1925. Defendant No. 5 who was alive at the time when alleged inventory proceedings took place was not examined. Punit Rai v. Dinesh Chaudhary23, is relied upon B apparently to contend that the evidence of Defendant No. 5, was not adduced and it would mean that had the evidence been produced, it would not have supported the case of the defendants. It is sought to be contended that, that Gones has intervened as vogal, is not substantiated. In fact, in this context, reliance is also placed in P. John Chandy and Co., C (supra) in regard to inaction is concerned. It is also contended that without prejudice to the aforesaid contention, since Ganesh held property jointly with his sister-in-law, she could not have inherited more than what Suriaji possessed. In regard to the enrolment dated 09.10.1937, it is stated to be wrongly construed as being registration of the inventory proceedings. It is mere a typed document without signature. The property does not pass D and the inventory could not have been received in evidence.

72Copy pinpoint72. Per contra, the contesting defendants would point to the evidence of PW-1 himself that Gones was a member of the family council in the inventory proceedings on the demise of Suriaji which is gathered from his records. Reliance is placed in Sheela Rodrigues vs. E Lourenchinha Ana D’Cruz Rodrigues Fernandes 24 which has recognized that the proceedings were in the nature of declaration of ownership rights to the estate of the deceased. The declaration is like a judgment in rem and therefore, it was all the more necessary for Gones to object at the given time, which he admittedly did not. Inventory F proceedings are inevitable under Article 156, Article 2064, upon the opening of the inheritance. By virtue of marriage, the doctrine of communion applies and Shantibai was owner of 50% of all properties of Suriaji and the inheritance was related to the balance 50%. The Family Council is composed to protect the interests of the minors, and was constituted under Article 207. Article 218 prevents any member of the G family council from voting or assisting where there is a conflict of interest. Thus, if Gones had ever considered as having title to half of the properties purchased by Suriaji under Sale Deed, it would involve conflict of interest. In the event of any third party having a right of properties. Article 2078, 24 1999 SCC Online Bom 109 paras 8-11 H 25 2000 (7) SCC 702

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 915 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

provides listing of such properties separately and the same reads as A follows:- “Article 2078 – Where there are, in the inheritance some properties belonging to a third person or which devolve to any heir in preferential manner, they shall be listed separately, alongwith the respective documents. B Sole paragraph : The properties belonging to a third person shall not be delivered to him when there are some doubts, unless the said third person proves his right.” Gones would never have silently stood by and allowed the property to be listed as property of Suriaji and he would have claimed the property to be listed separately as belonging to a third party, it is contended.

73Copy pinpoint73. Relying on Dilboo (Smt.)(Dead) by Lrs. and others v. Dhanraji (Smt.)(Dead) and others 25, it is contended that where there is a registration, there is deemed knowledge and the limitation runs from the said date. Gones would have objected to the inscription in 1937. He lost right over half of Mollans which was sold in a public auction. The properties have to be appraised for licitation and partition as provided under sub-division V of Article 2126 onwards of the Civil Code.

74Copy pinpoint74. There would be an appraisal in the case of inventory between majors and minors which was the case when Suriaji died. The appraiser is appointed under Article 2091 by the Family Council [of which Gones was a member].

75Copy pinpoint75. In Damodar Ramnath Alve v. Gokuldas Ramnath Alve and others26, relied upon by the appellants, the learned Judge of the High Court of Bombay, Panaji notes that in inventory proceedings there is no decree passed as in a suit. In Zacarias DurateDomingos Pereira v. Camilo Inacio Pereira27, Justice M.D. Kamath had this to say about nature of inventory proceedings: “Inventario proceedings are proceedings instituted for the administration of the estate of the deceased person. They provide for the preparation of the list of assets of the deceased, payment of debts, collection of credits of the estate, payment of legacies, 24 2000 (7) SCC 702 25 MANU/MH/0535/1996 26 1990 (1) Goa LT 174 H

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A distribution of liquid assets etc.. These various steps cannot be carried out under the procedure laid down under the Indian Code, for suits.” In Victor de Graca Pinto and ors v. Lourdes de Graca Pinto e Nazareth and ors.28, relied upon by the appellants, a learned Judge of B the High Court of Bombay at Panaji held in the context of a decree in the inventory proceedings that since it not only declared the rights of the parties but also had divided the shares by metes and bounds, it had to be registered under Section 17 (2) of the Registration Act, 1908. The learned Judge proceeded to, no doubt, hold that the decree could be executed after such registration. C In Sheela Rodrigues and another v. Lourencinha Ana D’Cruz Rodrigues Fernandes²⁹ relied upon by the respondents, the contention was taken that inventory proceedings were not suits. Section 22 of the Civil Courts Act provided the context. After referring to Zacarias Durate Dorningos Pereira v.Camilo Inacio Evaristo Pereira³⁰, wherein it was held that inventory proceedings are not suits, it was found that the discussion in the said judgment was to find out whether an order in inventory proceedings could be executed under Order XXI of the Code of Civil Procedure or not. Finally, the Court held as follows: “11. As already seen above, the inventory proceedings are initiated to enforce the remedy available under the law in relation to right of inheritance. To enforce the claim of inheritance to the estate left behind by the ancestors of a party or parties, it is necessary to have legal recognition to the claim of the party or parties as regards the ownership of the estate left behind by the ancestors and the same can be obtained by instituting proper inventory proceedings in the Court of law.

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

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 917 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

ABANDONMENT AND ESTOPPEL A

76Copy pinpoint76. The question is however proceeding on the assumption Gones had acquired title could he be said to have lost the title by his conduct. The High Court finds that having acquiesced in the inventory proceedings Gones and his heirs are estopped from opening of succession after about two decades. It is further found that whatever right and interest may have survived with Gones was lost as he did not challenge the allotment of property to the Shantibai. The High court has therefore employed the principle of acquiescence, estoppel and loss of right.

77Copy pinpoint77. In Sha Mulchand and Co.Ltd. v. Jawahar Mills Ltd, Salem AIR 1953 SC98, 500 shares which stood in the name of company stood forfeited. One of the contentions which was taken was on principles of estoppel and laches forfeiture cannot be challenged. Justice S.R. Das who wrote the main judgment proceeded to hold as follows inter alia: “12. The Appeal Court, it will be observed, reversed the decision of the trial Judge and decided the appeal against the Company on two grounds only, namely, (1) that the Company had by the conduct of its two members abandoned its right to challenge the forfeiture, and (2) that the form of the order could not be supported as one validly made under Section 38 of the Indian Companies Act. The learned Attorney General, appearing in support of this appeal, has assailed the soundness of both these grounds. The learned E Attorney General contends, not without considerable force, that having, in agreement with the trial court, held that no plea of acquiescence, waiver or estoppel had been established in this case, the appeal court should not have allowed the Mills to raise the question of abandonment of right by the Company, inasmuch as no such plea of abandonment had been raised either in the Mills’ affidavit in opposition to the Company’s application or in the Mills’ grounds of appeal before the High Court. Apart from this, the appeal court permitted the Mills to make out a plea of abandonment of right by the Company as distinct from the pleas of waiver, acquiescence and estoppel and sought to derive support for this new plea from the well known cases of Prendergast v. Turton [1 Y & CCC 111 : 62 ER 807] , Clark & Chapman v. Hart [2 HLC 632 : 10 ER 1443] and Jones v. North Vancouver Land and Improvement Co. [LR 1910 AC 317] . H

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A Further, whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, on the authorities, that mere waiver, acquiescence or laches which does not amount to an abandonment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest. See per Lord Chelmsford in Clarke case [2 HLC 632 : 10 ER 1443] at p. 657. Indeed, it has been held in Garden Gully United Quartz Mining Company v. Hugh McLister [LR 1 AC 39] that mere laches does not disentitle the holder of shares to equitable relief against an invalid declaration of forfeiture. Sir Barnes Peacook in delivering the judgment of the Privy Council observed at pp. 56-67 as follows: “There is no evidence sufficient to induce Their Lordships to hold that the conduct of the plaintiff did amount to an abandonment of his shares, or of his interest therein, or estop him from averring that he continued to be the proprietor of them. There certainly is no evidence to justify such a conclusion with regard to his conduct subsequent to the advertisement of 30th of May, 1869. In this case, as in that of Prendergast v. Turton [1 Y & CCC 111 : 62 ER 807] the plaintiff’s interest was executed. In other words, he had a legal interest in his shares and did not require a declaration of trust or the assistance of a court of equity to create in him an interest in them. Mere laches would not, therefore, disentitle him to equitable relief: Clarke and Chapman v. Hart [2 HLC 632 : 10 ER 1443] . It F was upon the ground of abandonment, and not upon that of mere laches, that Prendergast v. Turton [1 Y & CCC 111 : 62 ER 807] was decided.” Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is G something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares.

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 919 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

In his concurring judgment Justice Vivian Bose further took the following view: “21.The position is different when the interest is executed and the man has a vested interest in the right, that is to say, when he is the legal owner of the shares with the legal title to them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the legal title to property, whether moveable or immovable, cannot pass from one person to another except in legally recognised ways, and normally by the observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure which must be gone through. A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings about the change. The expressions abandonment, waiver and so forth, when used in a case like the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name. These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature. E

A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed.”

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78Copy pinpoint78. We may also profitably refer to the judgment of this Court in Dr. Karan Singh v. State of J & K and Another 2004 (5) SCC 698: “19. The Division Bench in the impugned judgment, as earlier noticed, has held that “either there was relinquishment of right or waiver voluntarily”. Before we examine the facts to decide this B issue, reference may be made to certain decisions on the aspects of estoppel, abandonment and waiver. The leading case on estoppel is that of Pickard v. Sears [(1837) 6 Ad & El 469 : 112 ER 179] wherein Lord Denman, C.J. in delivering judgment, inter alia, said: (ER p. 181) C “His title having been once established, the property could only be divested by gift or sale; of which no specific act was even surmised. But the rule of law is clear, that, where one by his words or conduct wilfully causes another to believe the existence of a certain state D of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time; (See Bigelow on Estoppel, pp.606,607.)

20. In Mitra Sen Singh v. JankiKuar [AIR 1924 PC 213 : 51 IA E 326] (AIR at p. 214) with regard to estoppel, it was stated: “There is no peculiarity in the law of India as distinguished from that of England which would justify such an application. The law of India is compendiously set forth in Section 115 of the Indian Evidence Act, Act 1 of 1872. It will save a long statement by simply stating that section, which is as follows: ‘When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.’ “

21. In Dhiyan Singh v. Jugal Kishore [AIR 1952 SC 145 : 1952 SCR 478] this Court stated: (AIR pp. 146-47, para 11) “11. Now it can be conceded that before an estoppel can arise, H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 921 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

there must be, first, a representation of an existing fact as distinct A from a mere promise de futuro made by one party to the other; second, that the other party, believing it, must have been induced to act on the faith of it; and third, that he must have so acted to his detriment.”

22. In Gyarsi Bai v. Dhansukh Lal [AIR 1965 SC 1055 : (1965) B 2 SCR 154] the principles were reiterated in the following words: (AIR p. 1061, para 8) “To invoke the doctrine of estoppel three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made.” In regard to abandonment the Court referred to the judgment in Mulchand’s case (supra)and apparently approved the same.

79Copy pinpoint79. Therefore, we would hold that when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view is Mulchand (supra) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppel is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law. F

80Copy pinpoint80. In the facts of this case there is an added feature. Under the document dated 21.1.1919 Gones was to make a reimbursement of Rs.1000/- as it turns out being half the amount paid by his brother Suriaji from out of the proceeds of his wife’s dowry to Laxmi who represented the other branch.Something remained to be done on the part of Gones and thereupon it was forSuriaji to transfer. In that sense it could be G described as an executory contract. Even proceeding on the basis that it is understood thatGones has 1/2 right of over the rights, transferred in favour of Suriaji under the sale deed dated 17.11.1915, the question arises what is the effect of the inventory proceedings of which Gones was certainly aware of and admittedly he was a vogal. H

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81Copy pinpoint81. In regard to the inventory proceedings, no doubt, it is true that the inventory proceedings per se are not produced. The plea relating to inventory proceedings are undoubtedly taken by the contesting respondents. It may be true that burden of adducing evidence relating to inventory proceeding was on the contesting defendants but it is equally true that they have produced final inscription which manifest the culmination of the inventory proceedings and shows that plaint schedule property stood allotted to Shantibai.

82Copy pinpoint82. It is true that under the sale deed dated 17.11.1915 Suriaji was a transferee of 1/4 share of property ‘M’ and 1/2 in property ‘B’. When Suriaji died, the inventory proceedings was to be held only in respect of the properties left behind by him. It is the appellants case inter alia stated Suriaji had only 1/8 share in property ‘M’ and 1/4 share in property ‘B’. Having regard to acknowledgment of ½ rights over the said property in favour of Gones as contained in settlement deed dated 21.1.1919,it is the appellants case that the inventory proceedings could have been concerned only with what was owned by the deceased Suriaji and it could not have resulted the entire 1/4 right in property ‘M’ and 1/2 right in property ‘B’ being allotted to Shantibai. It is contended that it involved fraud to give such excessive right to Shantibai.

83Copy pinpoint83. It is next contended by the appellants that even if it is that under the inventory proceedings allotment was made of 1/4 share in property ‘M’ and 1/2 right in property ‘B’, the status quo under the dissolution deed dated 21.1.1919 would continue. In other words even under the settlement deed of 1919Suriajialongwith his wife had undertaken transfer of 1/ 2 share to Gones. After inventory proceedings under the inscription of even of the entire right belonging to Suriaji and Gones F stood allotted to Shantibai, Shantibai would continue to remain liable as a trustee. It is further contended as vogal on behalf of the minor children,during the inventory Gones was only obliged to protect the interest of the minors. Therefore even if property is shown allotted to Laxmi G Bai, it would not have any impact on the property of Gones.

84Copy pinpoint84. In regard to the aforesaid contentions when we are dealing with the case with the perspective ofacquiescence, abandonment and estoppel we come to the following conclusions. Gones was himself amajor, by the time inventory proceedings commenced and culminated. H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 923 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

He was aware of his rights under the sale deed of 1915 as declared in the dissolution deed of 1919. We must proceed on the basis that the inventory proceedings culminated with ¼ right in ‘M’ and 1/2 in ‘B’ being allotted to Shantibai. As to how the said property came to be so allotted despite the settlement deed of 1919 which according to the appellants carved out rights in favour of Gones and towards ½ of the properties ‘B’ to the appellants is a matter which this Court is unable to embark upon but it is clear that Shantibai stood allotted the property in tune with the sale deed.

85Copy pinpoint85. What is important is nothing is produced by the appellants to show that Gonesprotested in any manner either during or at the end of proceedings. Nothing is produced to show that allotment to Shantibai C was ever challenged in any manner by Gones. In other words,Gones by his conduct must be treated as having held that he has accepted that the property which was allotted in the inventory proceedings will belong to Shantibai. Since 1937 when the said allotment took place for all purpose, the property stood acknowledged byGones as property allotted to D Shantibai. We are unable to accept the case that it would amount to fraud. There is no case of fraud as such set up by the appellants. There is a definite case for the respondents that there is no concept of trust in the Portuguese law and that there is no distinction between legal and equitable estate. We have taken the view that the concept of trust may be inapplicable. E

86Copy pinpoint86. There may be a plausible reason as to why it all happened.After 1919 as we have already noticedSuriaji executed a deed of his entire ¼ right which he acquired under the gift from his grandfather in favour of Gones which translated to roughly 22.5 hectares. There is no case that the said gift was not accepted by Gones. In fact, the property covered by said gift and also the property gifted by the grandfather to Gones with another 1/ 4 right in property ‘M’ came to be sold in the year 1937.

87Copy pinpoint87. It is also most significant that not only did Gones did not raise any objection during or immediately after inventory proceedings but though he lived till the year 1978 which is nearly 41 years after 1937 Gones is not shown to have ever raised any claim in regard to the plaint schedule property while he was alive. Equally as found by the High Court and the first appellate Court there is no material to show that Gones was in receipt of income from property which is specific case of the appellants. In fact P.W.1 states as follows: H

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A “It is a conditional agreement to transfer registration in the name of Gones by Suriaji. He further says “I also do not know what was the exact amount which had to be paid by Gones to Suriaji to effect registration of the property”. He further categorically states that the last time he went to the property was in 1940/1941 (at that time he was apparently about 9 years) and he says he remembers plucking of the produce. He does not have a case of receiving income after the death of his father Gones as he states that from 1979 payments were stopped. As far as payment received prior to 1979 we have already found that his testimony has not been believed by the two courts and we see no reason either to take a different view.”

88Copy pinpoint88. Thus,Goneswas not in receipt of any income. Property was shown in the name of Shantibai. Still further in 1969 Shantibai executes a gift deed of the plaint scheduled properly. Immediately thereafter partition deeds are executed between Shantibai and children. D Thus,Shantibai treated the property as belonging to her and she has accordingly executed the Gift deed and subsequently partition deed entered into on the said basis. Still later land acquisition proceedings were held in respect of part of the plaint schedule property. The compensation determined was paid on the basis that Gones did not have any right. When such is the position, we would think that on the face of it abandonment may not be inappropriate in the peculiar facts of this case. If the legal requirement is it must further amount to estoppel, one of the conditions to be fulfilled is acting on the representation, the representee must act to his detriment. We proceed on the basis that there was representation by conduct of Gones, that he acknowledged the right of Shantibai. It may be difficult to establish that Shantibai acted to her detriment. Further there is no defence pleaded as to estoppel or abandonment. No doubt the latter objection may be a milder obstacle if the pleading as a whole could imply such a case. DISCRETION IN AN APPEAL GENERATED BY SPECIAL G LEAVE

89Copy pinpoint89. We will however assume and proceed on the footingthat Gones was entitled for 1/2 share, payment of Rs.1000/- was not a condition precedent in a suit based on title thatadverse possession has not been proved(particularly having regard to the inconsistent plea based on H

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 925 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

title)andsince Gones had title and the substantive prayer is to be treated as one for partition [even though the declaratory relief may be barred] and therefore suit is not barred by time and there is no estoppel.Still we would not exercise our discretionary power in an appeal which is generated by special leave. It will be wholly inequitable to intervene in favour of the appellants as successors of Gones. The decree of the first appellate court as confirmed by the High Court in our view has resulted in a decision which is otherwise just. In Taherakhatoon (D) by LRs v. Salambin Mohammad31, it has been held that even after the grant of special leave in an appeal this Court is not bound to interfere. This Court inter alia held as follows: “15. It is now well settled that though special leave is granted, the iscretionary power which vested in the Court at the stage of the special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, D irrespective of the nature of the subject-matter. It was so laid down by a Constitution Bench of five learned Judges of this Court in Pritam Singh v. State [AIR 1950 SC 169 : 1950 SCR 453]. In that case, it was argued for the appellant that once special leave was granted and the matter was registered as an appeal, the case should be disposed of on merits on all points and that the E discretionary power available at the stage of grant of special leave was not available when the appeal was being heard on merits.

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

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

31 1999(2) SCC 635 H

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A This Court observed that the rule laid down by the Privy Council is based on sound principle and only those points could be urged at the final hearing of the appeal which were fit to be urged at the preliminary stage when leave to appeal was asked for and it would be illogical to adopt different standards at two different stages of the same case. This Court observed (para 8) that, so far as B Article 136 was concerned, it was to be noted firstly that it was very general and was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the Court was concerned was applicable to all types of cases. The power under Article 136 according to this Court, C “is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal D cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases”. (emphasis supplied) This Court emphasised:

E “The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal in those cases where special circumstances are shown to exist.” This Court then concluded: F “Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.” G 20.In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error — still we may not interfere if the justice of the case

PRABHAKAR GONES PRABHU NAVELKAR (D) v. SARADCHANDRA 927 SURIA PRABHU NAVELKAR (D) [K.M. JOSEPH, J.]

on facts does not require interference or if we feel that the relief A could be moulded in a different fashion...” (emphasis supplied) In this case, as we have noticed apart from 22.5 hectares in property ‘M’ which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji’s B wife 22.5 hectares of land in property ‘M’. As we have noticed there was 91 hectares in property ‘M’ and nearly 31 hectares as property ‘B’. ThusGones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919,no doubt read with sale deed of 1915. If instead of Gift C deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M’ and a little more than 7 hectares from property ‘B’ but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M’ in 1925 D which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. E This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother’s family dissuades us at any rate from interfering in this matter. Consequently, the Civil Appeals stand dismissed. Parties to bear their own costs. F

Devika Gujral Appeals dismissed.