Eknathbuwa Gyanoba Bharati and ors. Vs. Sheshabai Laxman Buwa (Abated) and ors. - Court Judgment

Excerpt:
property - declaration of share - plaintiffs and defendant no 4 and 5 (brothers) are land owner of property - after death of father they sold some property to defendant no. 6 - further defendant no. 6 sold it defendant no 8 - suit filed by plaintiffs for ownership and possession - court declared share and directed defendant no. 6 to deliver possession in favour of plaintiffs - defendant no 6 filed appeal - appeal dismissed - hence, present petition by defendant no. 6 - held, shares of all concerned have already been determined by trial court - no interference warranted - hence, petition dismissed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 2, 3, 4, 5. the second para of the order is clearly illegal as it is contrary to section 54 of the code of civil procedure. though it is always desirable that the first appellate court should frame all the points involved arising in the appeal as directed in the said judgment, it is nowhere stated that merely because they are not separately and distinctly spelt out, the second appeal should succeed irrespective of merits of the matter. the above said statements referred to in para 11 clearly indicate that necessary enquiries were not made by the appellant before purchase. 2 to 5 for filing suit for partition and thus asking the parties to fight out another litigation hereafter, it is better that the decree passed by the trial court should be modified by this court.borkar p.r., j.1. this is an appeal preferred by original defendant no. 6 being aggrieved by the judgment and decree passed by learned civil judge, junior division, ahmedpur in regular civil suit no. 217 of 1974 dated 16th april, 1979, whereby share of each of original plaintiff nos. 2 to 5 was declared to be 8/81th in the suit field survey no. 107 admeasuring 26 acres and 27 gunthas and survey no. 112/b admeasuring 12 acres 26 gunthas both situated at kingaon, tal. ahmedpur and for delivery of possession to plaintiff nos. 2 to 5 to the extent of their shares by the present appellant in the property. said judgment and decree was confirmed in regular civil appeal no. 57 of 1979 by the additional district judge, latur on 16th october, 1987 without any modification.2. the facts giving rise to this appeal regarding which there is no more dispute can be stated as below:one vithalbuwa who died on 29.4.1963 was the original owner of the suit property. he was survived by his widow yamunabai (who died subsequently on 5.3.1974), sou bhanudas (who died on 17.9.1972), plaintiffs and original defendant nos. 4 and 5 who are daughters. after death of vithalbuwa, bhanudas sold 9 acres land to defendant no. 8-hariba.3. bhanudas died on 17.9.1972 leaving behind him two widows kamalbai and shobhabai and daughter suman, who was then minor. present appellant (who is defendant no. 6) purchased both the lands excluding property which was purchased by defendant no. 8 - hariba (present respondent no. 12) by two sale deed dated 6.6.1974 and 3.4.1974 produced at exh. 87 and 88 respectively. thereafter, the suit was filed in 1979 by five daughters of vithalbuwa for declaration of ownership and for possession. they did not sue for partition and as a result trial court declared share of each of them to be 8/81th in both lands as stated earlier. however, he gave direction to present appellant (defendant no. 6) to deliver both those fields to plaintiff nos. 2 to 5 who should take possession of these fields to the extent of their share.4. in para no. 19, the learned trial court has observed as follows:19. issue nos. 1 and 2 - so, now the suit property available for the devolution on and the succession of the plaintiffs is filed under no. 107-26 acres, 27 gunthas (after deducting the 9 acres out of the original 35 acres, 27 gunthas sold to the defendant no. 8 hariba karad) and filed survey no. 112-b 12 acres, 26 gunthas. as to the parties entitled to succession these will be the five plaintiffs; their sisters defendant no. 4 shardabai, no. 5 trivenibai, the two widows of bhanudas viz. kamalabai defendant no. 1 and shobhabai defendant no. 2 and kamalabai's minor daughter sumanbai defendant no. 3. it is now an admitted position that both these widows of bhanudas have since remarried.5. learned advocate shri s.b. patil vehemently attacked the judgment stating that there is no decree for partition and the order passed by the trial court regarding delivery of possession is wrong. the final order and decree passed by trial court as confirmed by district court is as follows:each of the plaintiff no. 2 kamalabai, no. 3 mahanandabai, no. 4 godavaribai, no. 5 vaijantibai is hereby declared owner to the extent of 8/81th share in the suit fields survey no. 107, 26 acres, 27 gunthas and survey no. 112/b, 12 acres, 26 gunthas both situate at kingaon tahsil ahmedpur.the defendant no. 6 eknath buwa is directed to deliver both these fields to the plaintiffs nos. 2, 3, 4, 5, who shall take possession in these fields to the extent of their shares declared as above.the defendant no. 6 eknath buwa shall bear the costs of the plaintiffs nos. 2, 3, 4, 5.the second para of the order is clearly illegal as it is contrary to section 54 of the code of civil procedure. in absence of case of previous partition or in absence of identification of exact 8/81th share of each of the plaintiffs, it is inexecutable. the learned advocate also argued that the sales were for legal necessity and the appellant was bona fide purchaser and the first appellate court did not frame necessary issues and therefore this appeal should be allowed.6. perusal of section 54 of code of civil procedure and in absence of case of previous partition and determination of shares of plaintiff nos. 2 to 4 and in absence of identification of portions of their shares in suit land, the decree regarding delivery of possession is inexecutable and needs to be modified. the relief of partition and possession of separate shares should have been asked for and granted. the learned advocate of respondents concede this position.7. learned advocate shri m.l. dharashive for respondent no. 3 prayed that in the interest of justice the decree for partition may be passed as per section 54 of the code of civil procedure. advocate shri ujwal patil h/f. advocate shri r.s. deshmukh who appears for respondent nos. 2 to 5 also made similar request. advocate smt. kazi who is for respondent no. 10 (original defendant no. 5) says that she is one of the daughters and she is ready to pay court fees of her share and in the partition, her share may be carved out and she may be put into the possession. smt. kazi pointed out that civil application no. 2587 of 2003 is filed by her for said purpose.8. in this case this matter is admitted by order dated 18.9.1989, but no substantial question of law was then framed. following are the substantial questions of law that arise in this appeal.i. whether the decree, particularly para 2 thereof which is reproduced above is tenable in law and can be enforced without direction for partition as per section 54 of the code of civil procedure?ii. whether the appellant is entitled to succeed on the ground that two sale deeds executed by widow of bhanudas were for legal necessity and that he was bona fide purchaser?iii. whether the first appellate court should have framed point for determination and in absence of it, interference is called for in this appeal?9. so far as last point is concerned the learned advocate shri patil referred to single bench judgment of this court in the case of (smt. anita m. harretto v. abdul wahid sanaullah) : air1985bom98 , in which it is stated that statement of points for determination by a court must cover all important questions involved in the case and they should not be general and vague. mere statement as to whether the judgments of two courts below is correct, legal and valid is not sufficient. he referred to order 41, rule 31 of the code of civil procedure. though it is always desirable that the first appellate court should frame all the points involved arising in the appeal as directed in the said judgment, it is nowhere stated that merely because they are not separately and distinctly spelt out, the second appeal should succeed irrespective of merits of the matter.10. in this case in para 9 the first appellate court has specifically stated that mr. bajpai, the learned counsel appearing in support of this appeal has contended two points, one regarding appellant being bona fide purchaser for value and second regarding legal necessity. learned first appellate judge has considered both aspects in detail. so in my opinion he has stated the two points which are involved in this appeal, though they are not stated as point for determination.11. the point regarding appellant being bona fide purchaser for value without notice is concerned, it is specifically stated in para 10 and 11 that the appellant had come with false case that vithalbuwa had executed will in favour of his son bhanudas and it is admitted during evidence that he had not seen any will deed nor he was attesting witness to the will deed. this shows that he was not bona fide purchaser. moreover, in para 11 it is pointed out after referring evidence of appellant that during lifetime of vithalbuwa the lands were not in the name of defendant kamalbai and shobhabai. the appellant admitted that he was totally unaware, if any of his vendors had any share in the suit land. he admitted that he had not seen crop statements of the suit lands when he purchased the lands. he admitted that he had not cared to see mutation of the suit lands was in the name of kamalbai and shobhabai. he admitted that he was not knowing if deceased bhanudas was owing any debt. he was also not knowing whether kamalbai and shobhabai were indebted. the above said statements referred to in para 11 clearly indicate that necessary enquiries were not made by the appellant before purchase. had he been diligent to make enquiries, he would have come to know that bhanudas had sisters who were also co-sharers of the suit lands with his vendors.12. so far as legal necessity is concerned, it is admitted that all the plaintiffs were married sisters. even plaint shows that they were resident of different places. they cannot be said to be members of joint family of shobabai and kamalbai-widows of bhanudas. moreover, bhanudas even during his life time was not karta of the family consisting of plaintiffs and that is why in case of defendant no. 8 hariba, bhanudas had effected sale deed after consultation with his sisters as admitted by plaintiff mahananda in her statement at exh. 63. it cannot be said that shobhabai or kamalbai had any authority to sell the property beyond their own shares. in these circumstances, in my opinion it cannot be said that present appellant can deny shares of sisters of bhanudas. 13. it may also be noted that so far plaintiff no. 1 sheshabai is concerned, she filed pursis exh. 50 withdrawing her claim in favour of defendant no. 6 eknathbuwa. so considering totality of the circumstances this second appeal deserves to be allowed to some extent to correct decree of the trial court and to do complete justice. it is necessary that instead of driving plaintiff nos. 2 to 5 for filing suit for partition and thus asking the parties to fight out another litigation hereafter, it is better that the decree passed by the trial court should be modified by this court. it is necessary in view of request of advocate for respondent no. 10 that shares of original defendant nos. 4 and 5 should also be determined. shares of all concerned have already been determined by the trial court in paras 20 to 23. so the decree of the trial court and the first appellate court is substituted as follows:i. each plaintiff nos. 2 to 5, defendant nos. 4 and 5 who are sisters of deceased bhanudas is entitled to 8/81th share in survey no. 107, excluding property of 9 acres already sold to defendant no. 8 hariba karad and survey no. 112/b both situated at kingaon. respondent no. 8 sumanbai is entitled to 15/81th share. she was minor when her mother-natural guardian sold lands. rest of the share would be belonging to the appellant as vendee of shares of respondent no. 6-kamalbai and respondent no. 7- shobhabai.ii. the partition of survey no. 107 and 112/b of kingaon, tal. ahmedpur be effected by the collector or any gazetted sub-ordinate deputed by him in his behalf as per section 54 of the code of civil procedure and plaintiff nos. 2 to 5 and defendant no. 5 be put in possession of their respective share. it is made clear that the land sold to hariba (defendant no. 8) be retained with him from survey no. 107 and rest of the land should be partitioned.14. the second appeal is accordingly disposed of since it is error of the plaintiffs in not asking for proper relief i.e. partition and separate possession in the suit, respondent nos. 2 to 7 (plaintiff nos. 2 to 5) shall pay costs of the appellant and bear their own. rest of the respondents bear their own costs.