REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  1782--1783         OF 2009 [Arising out of SLP (Civil) Nos. 5595-5596 of 2008]

Vishwanath Bapurao Sabale …Appellant   

Versus

Shalinibai Nagappa Sabale & Ors.  …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. These appeals are directed against a judgment and order dated 22-

01-2008 passed by a learned Single Judge of the High Court of Judicature

at Bombay in Second Appeal No. 105 of 2007 and Civil Application No.

280 of 2007 with Second Appeal No. 107 of 2007 and Civil Application

No. 284 of 2007.

3. Bapurao and Shivappa were step brothers.  Laxmibai was wife of

Bapurao.  Shivappa married one Parvatibai.   

Bapurao died in the year 1958.  Laxmibai died on 12-12-1978.    

Appellant Vishwanath is the adopted son of Laxmibai having been

adopted  on  5-06-1967.   Nagubai  is  the  daughter  of  Shivappa  and

Parvatibai.  Shivappa died in the year 1977.  Respondent Nagappa, son of

Nagubai is said to have been adopted by Shivappa on 24-01-1969.   The

parties  are governed by Bombay School of Hindu Law.  Nagappa was

aged about 19 years when he was allegedly adopted.    

4. Bapurao and Shivappa were living separately.   They had separate

businesses.   

They  however  had  some  joint  family  properties  which  were

acquired  prior  to  1934.   Bapurao  had  also  self  acquired  properties.

Allegedly Bapurao, having suffered substantial loss in his business had

incurred loan in the year 1955.  He owed a sum of about Rs. 35,000/- to

his creditors.  

5. Purportedly with a view to save the property from the creditors, on

or about 2-07-1955, four registered deeds were executed.  The first being

a deed of  partition,  in  terms whereof,  the joint  family properties  were

divided in equal shares (which was marked as exhibit 36) and  Bapurao

sold his share of joint family property for a sum of Rs. 5000/- to Shivappa

. He also allegedly sold his self acquired property to Shivappa for the said

sum.   Two  deeds  of  settlement  on  the  same  day  were  executed  by

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Shivappa,  in  terms  whereof,  the  lands  transferred  in  his  favour  were

settled to Bapurao for enjoyment during his lifetime.

However,  it  was  stipulated  that  Bapurao  would  not  have  any

absolute  right  over the  properties  and were not  entitled to  alienate  the

same.   

6. Plaintiff after the death of Shivappa which as noticed hereinbefore

took place on 20th November, 1977 filed three suits before the Joint Civil

Judge, J.D. Mohol, District Judge, Solapur and Principal District Judge,

Solapur.   

The first  one marked as Regular  Civil  Suit  No. 81 of 1978 was

filed for declaration that 22 tin sheets in the possession of the appellants

were  owned  by  him  and  for  mandatory  injunction  directing  him  to

handover the same.  Regular Civil Suit No. 85 of 1978 was instituted in

the court of Joint Civil Judge J.D. Mohol for declaration of his title over

the suit properties and possession claiming the same as the heir and legal

representatives of Shivappa.   

Regular Civil Suit No. 20 of 1979 was instituted with a prayer for

grant of a decree for permanent injunction pertaining to the suit property.

7. Before the Trial Court, Plaintiff-Respondent No. 1 raised another

contention that Shivappa executed an agreement in favour of Laxmibai

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allowing her to take the income from the property.  According to him, the

said agreement which was an unregistered one was executed out of love

and  affection  toward  Laxmibai  (original  defendant  No.  1).   On  the

allegation that she did not take care of the property and a wall collapsed;

and, thus, breach of terms of the agreement had taken place, a mandatory

decree  for  injunction  was  sought  for  directing  handing  over  the

possession of the property to the plaintiff.  It was furthermore contended

that  as  upon  death  of  Laxmibai  during  pendency  of  suit,  the  said

agreement came to an end, the plaintiff even otherwise became entitled to

possession.   

8. Appellant  however  in  his  written  statement  inter  alia  contended

that:

(1) the  suit  property  was  the  self  acquired  property  of  Bapurao

Sabale.

(2) the documents executed on 2-07-1955 were sham and nominal

ones  which  were  not  meant  to  be  acted  upon,  having  been

executed  for  the  purpose  of  saving  the  property  from  the

creditors.

(3) The  fact  that  as  despite  death  of  Bapurao Sabale  in  the  year

1958,  Shivappa  or  his  wife  did  not  exercise  any  acts  of

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ownership, right or possession or claim for a period of 22 years,

would go to show that the transactions were sham ones.   

(4) the  suit  was  barred  by  limitation  as  the  cause  of  action  to

recover the property arose on the death of Bapurao.   

(5) First respondent having not been validly adopted by Shivappa

being aged 19 years at the time of adoption, he had no locus

standi to maintain the suit.

Alternatively it was pleaded that the appellant, being in possession of

the  suit  property  for  a  period  of  more  than  twelve  years,  acquired

indefeasible title by adverse possession.   

9. The learned Trial Judge framed the following issues:

“ISSUES

Does  plaintiff  prove  that  his  father  by  an agreement allowed the defendant No. 1 to entry (sic)  the  suit  land  till  her  demise  on  certain conditions?

xxx xxx xxx  

Does plaintiff prove that both agreements were without consideration and never confirmed any right,  title  and  interest  in  Bapurao  or  in Laxmibai?

xxx xxx xxx  

Do defendants prove that the partition between Shivappa  and  Bapurrao  was  a  colourable  one

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and  under  that  partition  neither  Bapurao received the amount  of Rs. 5,000/-  nor did he transfer title of his share to Shivappa?

Do defendants prove that as the partition deed dated  02.07.1955  was  colourable  one  brought into  existence  to  save  the  property  from  the creditors  of  Bapurao  the  settlement  deed  was executed so that the lands should be saved also remains with Bapurao?

xxx xxx xxx  

Do  defendants  prove  that  sale  deed  dated 02.07.1955  was  not  acted  upon  and  it  was executed nominally to save the properties from creditors?”

10. The learned Trial Judge held:

(a)  Shivappa and Bapurao owned joint family properties and it

had  not  been  shown  how  the  deed  of  partition  was

colourable.   

(b) Evidence  of  DW-3  Panchappa  Nirvallayappa  Shilwant

examined  on  behalf  of  the  appellant  does  not  inspire

confidence.   

(c) Admission of PW-3, Bapurao is reliable and only because he

had  stated  in  his  cross-examination  that  Bapurao  was  not

ready and willing to execute the document unless possession

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was permitted to be retained by him, was not  sufficient to

disbelieve him totally.   

(d) Adoption of first respondent by Shivappa was valid as there

exists  a  custom  in  the  Virshiva  Lingayat  community,  to

which the parties belong for adoption of a child of more than

14 years of age and in terms of Bombay School of Hindu

Law,  although  plaintiff  could  not  prove  the  agreement

allegedly executed in favour of Laxmibai.   

(e) Her  possession  after  the  death  of  Bapurao  was also  being

permissive, the Suit was not barred by limitation.   

11. The learned Trial Judge on the said findings, decreed the said suits.

Appeals preferred theragainst, as noticed hereinbefore, were dismissed.  

12. Mr. U.U. Lalit, learned Senior Counsel appearing on behalf of the

appellant  fairly  did  not  press  the  question  as  regards  the  validity  of

adoption of first respondent stating that even if the same was invalid, first

respondent  being  the  daughter’s  son  of  Shivappa  would  inherit  his

properties in terms of the provisions of Hindu Succession Act, 1956.   

13. The  learned  Counsel,  however  would  contend  that  all  the

transactions evidenced by four instruments executed on 2-07-1955 were

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sham  transactions  in  support  whereof  reliance  was  placed  on  the

following circumstances.  

(i) Since 1934 the step brothers  were  living separated  having

separate businesses and houses and admittedly Bapurao was

heavily indebted, expecting some actions from his creditors.

(ii)  All four documents having been executed on the same day

and  as  PW-3  the  attesting  witness  of  the  said  document

categorically  stated  that  possession  of  the  properties  in

question was to remain with Bapurao.   

(iii) There  was  absolutely  no  reason  as  to  why  all  the  four

documents were executed on the same day.   

(iv) Even after execution of the said deeds Shivappa or his wife

did not exercise any right of possession.   

(v) If the deeds of settlement were genuine and were meant to be

acted  upon,  an  attempt  to  take  over  possession  from

Laxmibai was expected from Shivappa and the same having

not been done for a period of 20 years.

(vi) The purported unregistered agreement in favour of Laxmibai

had neither been produced nor proved.  It was furthermore

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contended that the suit having been filed during the life time

of Laxmibai, the same should have been dismissed.

14. Mr. K. V. Viswanathan, learned counsel appearing on behalf of the

respondents, on the other hand, would contend :

(a) All the three courts having arrived at concurrent findings of

fact, the impugned judgments warrant no interference.   

(b) The plea of  the appellant  in  his  written statement that  the

said  document  had  not  been  acted  upon,  being  vague,  no

reliance could have been placed thereupon.

(c) Appellant having not filed any suit in terms of Section 31of

the Specific Relief Act, 1963 could not raise the plea that the

transactions were illegal and void.   

(d) The sale deeds as also the deeds of settlement having been

found  to  be  valid,  this  court  should  not  exercise  its

jurisdiction under Article 136 of the Constitution of India.   

(e) Appellant  has  misrably failed  to  prove  that  his  possession

was adverse to the interest of Shivappa or Parvatibai.

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15. All  the  four  deeds  executed  on  2-07-1955  are  registered

documents.  They carry a presumption of valid execution.  There is no

proof to show that the said documents were sham or nominal.   

The learned courts below have clearly held that the appellant failed

to discharge the heavy onus on him.  

We  would  however  consider  the  contentions  raised  before  us

independently.   

Exhibit 36 is a deed of sale in terms whereof Bapurao sold his half

share to Shivappa.  If the contention of Bapurao that there existed no joint

family property was correct, it was for him to show that the same was his

self acquired property.   

16. No evidence has been brought on record to show that he was in

exclusive possession of the properties in suit.  A presumption as regards

jointness of the family property could be raised as Bapurao and Shivappa

despite  being  step  brothers  and  despite  having  separate  business  and

separate houses, were having some joint properties which were acquired

prior to 1944.  There does not seem to have any apparent reason to hold

that the deed of sale was sham or nominal in character.   

17. It may be true that the other sale deed (Exhibit 49) consisting of 8

items of properties were self acquired properties of Bapurao.

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Indisputably Bapurao was heavily indebted.   He was required to

repay loan  incurred  by him.  PW-3, we may notice,  in  his  deposition,

stated  that  Shivappa in  fact  had paid the  entire  amount  of  loan to  the

creditors of Bapurao.  

18. Indisputably  Bapurao  continued  to  remain  in  possession  of  the

properties in suit.  The character of his possession however must be held

to have changed having regard to the deeds of settlement executed in his

favour by Shivappa.   His  possession in  terms thereof  over the land in

question was permissive in nature.   

19. Submission of Mr. Lalit that the fact that consideration in each of

the sale deed was shown as Rs.5000/- but in the deeds of settlement the

consideration was shown to be Rs.15,000/- clearly go to show that the

transactions were not meant to be acted upon is difficult to accept.   There

appears to be some understandings between the two brothers.  If PW-3 is

to be believed and we do not see any reason why we should differ with

the concurrent findings of the courts below, all the documents must be

held to have been executed bonafide.  We would assume that Bapurao

wanted to continue to remain in possession of the said properties but it

must  be  held  that  that  was  precisely  the  reason  why  the  deeds  of

settlement  were executed.   If  the said  deeds  were sham or nominal  in

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character,  creditors  of Bapurao would have taken some actions against

him.

There is nothing to show that any suit or any other proceeding was

instituted/initiated against him.

20. Although  he  continued  to  be  in  physical  possession  of  the

properties in suit, on execution of the deed of sale as also the deeds of

settlement  on  the  same  day,  he  must  in  law  be  held  to  have  been

dispossessed and was put back to possession in a different capacity.

In other words, upon execution of the deed of sale as also the deeds

of settlement, the nature and character of his possession changed.  

It is true that despite death of Bapurao in 1958, Shivappa did not

initiate the proceedings for eviction of Laxmibai.  It may or may not be an

act of generosity on his behalf but the same by itself would not mean that

the appellant  started to possess  the lands adverse to the interest  of the

respondent.

21. We would proceed on the basis that respondent No. 1 has not been

able  to  prove  his  contention  that  Shivappa  executed  an  unregistered

document in favour of Laxmibai.   

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The suit filed by Nagappa however was based on title.  Once he

proved his  title  the  onus was on Laxmibai  and consequently upon the

appellant to prove that they started possessing adversely to the interest of

Shivappa.

For the purpose of arriving at a finding as to whether appellant and

Laxmibai perfected their title by adverse possession, the relationship of

the parties may have to be taken into consideration.  It must also be borne

in mind that factum of execution of the documents being not in question,

it was also expected that Bapurao and after his death Laxmibai would file

a suit for cancellation of those documents in  terms of Section 31 of the

Specific Relief Act, 1963.

22. In Prem Singh and Ors. v. Birbal and Ors. [2006 (5) SCC 353], this

court held :

“20. If the plaintiff is in possession of a property, he may file a suit  for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.

21. Respondent 1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.

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22. In  Ningawwa v.  Byrappa this  Court  held that  the  fraudulent  misrepresentation  as  regards character  of  a  document  is  void but  fraudulent misrepresentation  as  regards  contents  of  a document is voidable stating: (SCR p. 801 C- D)

“The  legal  position  will  be  different  if there is a fraudulent misrepresentation not merely as to the contents of the document but  as  to  its  character.  The  authorities make  a  clear  distinction  between fraudulent  misrepresentation  as  to  the character of the document and fraudulent misrepresentation  as  to  the  contents thereof.  With  reference  to  the former,  it has been held that the transaction is void, while in the case of the latter, it is merely voidable.”

In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the appellant therein came to know of the fraud practised on her, the same was void. It was, however, held: (SCR p. 803 B-E)

“Article 91 of the Limitation Act provides that a suit to set aside an instrument not otherwise  provided  for  (and  no  other provision  of  the  Act  applies  to  the circumstances  of  the  case)  shall  be subject to a three years’ limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or  set  aside  are  known  to  him.  In  the present  case,  the  trial  court  has  found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ext. 45 the appellant knew that her husband  prevailed  upon  her  to  convey Surveys  Plots  Nos.  407/1  and  409/1  of Tadavalga  village  to  him  by  undue influence. The finding of the trial court is based upon the admission of the appellant herself  in the course of her evidence. In view of this finding of the trial court it is manifest  that  the suit  of the appellant  is barred under Article 91 of the Limitation Act so far as Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.”

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27. There  is  a  presumption  that  a  registered document  is  validly  executed.  A  registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant  case,  Respondent  1  has  not  been  able  to rebut the said presumption.

28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to  file  a  suit  to  get  the  property  purportedly conveyed thereunder. He could either file the suit within 12 years of  the deed or  within 3 years  of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining  majority.  Therefore,  the  suit  was rightly held to be barred by limitation by the trial court.”

23. Furthermore  for  claiming  title  by  adverse  possession,  it  was

necessary for the plaintiff to plead and prove animus possidendi.  

A peaceful, open and continuous possession being the ingredients

of the principle of adverse possession as contained in the maxim nec vi,

nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession.  

24. In  P.T.  Munichikkanna  Reddy  and  Ors. v.  Revamma and  Ors.,

[2007 (6) SCC 59], this court held:

“It  is  important  to  appreciate  the  question  of intention  as  it  would  have  appeared  to  the paper-owner.  The issue is that intention of the adverse  user  gets  communicated  to  the  paper- owner of the property.   This  is  where the law

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gives  importance  to  hostility  and  openness as pertinent qualities of manner of possession.   It follows  that  the  possession  of  the  adverse possessor must be hostile enough to give rise to a  reasonable  notice  and  opportunity  to  the paper-owner.”

25. We must in fairness to Mr. Lalit notice a decision of this court in

Kalwa Devadattam and Ors. v.  Union of India and Ors.      [AIR 1964 SC

880].   In  that  case  income  tax  was  due  from  one  Nagappa.   The

immovable  property  belonging to  the  joint  family of  Nagappa and his

sons were attached.  Nagappa raised a plea of previous partition.  Inter

alia,  on  a  finding  that  despite  the  said  purported  partition,  Nagappa

continued management of the property, showed interest in prosecuting the

suits and representing the entire family from other evidences brought on

record, it  was found as of fact that the transaction was a nominal one.

The said decision is, therefore, not applicable to the fact of the present

case.

26. For the reasons above mentioned, there is no merit in the appeals.

The appeals are dismissed accordingly with costs.  Counsel’s fee assessed

at Rs.10,000/- (Rupees Ten Thousand only).

………………………….J. [S.B. Sinha]

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..…………………………J. [Dr. Mukundakam Sharma]

New Delhi; MARCH 23, 2009

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