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Ramkrishna Martoba Kasbekar Vs. Anusuyabai Narayan Shirali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 574 of 1921
Judge
Reported inAIR1924Bom300; (1924)26BOMLR173
AppellantRamkrishna Martoba Kasbekar
RespondentAnusuyabai Narayan Shirali
DispositionAppeal dismissed
Excerpt:
.....of which aa purchased the property at the court-sale in 1911. meanwhile, in 1907, the owners again sold the property to nd, from whom the plaintiff derived his title and possession. the original owners disputed the auction sale of 1911 but a compromise was arrived at in 1913 under which the property was sold (with the assent of nd) to defendant no. 1, and aa was paid off from the sale proceeds. the plaintiff having been dispossessed by defendants, sued for possession:-;dismissing the suit, that it could not be said that the property got back into the hands of the original owners so that an estoppel arose in case they wished to dispute the transfer to nd, nor could it be said that any circumstance came into existence which enabled nd to claim the option under, section 48 of the transfer..........the indian evidence act.4. again under section 43 of the transfer of property act, if after having sold property which they had not got, to dandekar, they got into possession of that property, then it would be open to dandekar to go and call upon them to hand over their property to him, because it was what they professed to sell to him. but neither of these events have happened, and no attempt was made in the trial court to prove the facts which would establish an estoppel, or a right to exercise the option available by section 43 of the transfer of property act.5. what had happened was that one anant ambe became the rightful owner of the equity of redemption of the property, and also the purchaser at the auction sale of the mortgage rights which had been sold in execution of a decree.....
Judgment:

Norman Macleod, Kt., C.J.

1. These are four suits brought by one Ram-krishna Martoba Kasbekar to recover possession of various lauds described in the various plaints. He claimed title through one Narhari Vinayak Dandekar, whom we shall call in future 'Dandekar', and the simple point in all these cases is whether Dandekar had any title which he could pass on to the plaintiff's predecessors. A.11 the plaintiff's suits were dismissed in the trial Court, It appears that they were tried together, and the evidence in connection with all the suits was recorded in Suit No, 166 of 1917. We do not think that was a satisfactory course for the Subordinate Judge to take But apparently no objection was raised by the parties in the various suits, and as a matter of fact there was the one issue referred to above which was common to all the four suits, and if that was decided in favour of the defendants, all the suits were bound to fail.

2. In appeal the learned District Judge has with commendable diligence disentangled from the one judgment of the Sub-ordinate Judge the various transactions relating to each of the properties, the subject matter of the four suits, and he came to the conclusion that the plaintiff had no case. He said in Suit No. 166 of 1917 (Appeal No. 69 of 1919): 'The plaintiff derives what title he has from another Narhari, not Padmakar, but Dandekar. This man took a mortgage in 1900 which in 1907 the parties made believe to convert into a sale. The question is whether the sale is effective. We find that it is not. This is the finding of the Subordinate Judge. It was also the finding of the Record of Rights Officer. And it has been admitted to be a true finding by Narhari himself.' The learned Judge proceeded to show very conclusively that the plaintiff must have known that he was buying property to which his vendor had no title. In that case it is obvious that a Second Appeal would be of little use, unless the appellant could raise some new point which had not been raised in the Courts below, and accordingly the appellant has now sought to succeed on the ground that the defendants were estopped from denying the plaintiff's title to the land.

3. The appellant seeks to establish this estoppel in a very curious way, and he seems to have forgotten that in order to establish a claim to estoppel, he ought to have proved certain Facts in the course of the trial which he has not proved. If Shiva and his relations who claim to have sold the property to Dandekar, when they had no title to the property, had recovered the property and got it into their hands, then they could not claim to set aside the sale which they had effected in favour of Dandekar. That is the rule under Section 115 of the Indian Evidence Act.

4. Again under Section 43 of the Transfer of Property Act, if after having sold property which they had not got, to Dandekar, they got into possession of that property, then it would be open to Dandekar to go and call upon them to hand over their property to him, because it was what they professed to sell to him. But neither of these events have happened, and no attempt was made in the trial Court to prove the facts which would establish an estoppel, or a right to exercise the option available by Section 43 of the Transfer of Property Act.

5. What had happened was that one Anant Ambe became the rightful owner of the equity of redemption of the property, and also the purchaser at the auction sale of the mortgage rights which had been sold in execution of a decree against the mortgagee, and, when Shiva and his family sought to set aside the auction Hale, a compromise was arrived at under which the property was sold to one Narayanrao Shiralo, and out of the sale proceeds Rs. 1,350 were paid to Anant Ambe in full satisfaction of his claim. Before the property could be sold, as the auction purchase was in dispute, the consent of the person objecting to the sale had to be obtained, and so Ambe had to relinquish all his interest. That was one part of the compromise, but you cannot look at that part of the compromise without looking at the other, viz., that the property should be sold to pay off Ambe's debt. It cannot possibly be said that the property got back into the hands of Shiva and his family, so that an estoppel arose in case he wished to dispute the transfer to Dandekar, nor could it be said that any circumstance came into existence which would enable Dandekar to claim the option under Section 43 of the Transfer of Property Act. As a matter of fact the property never came back to Shiva and his family. As a result of the compromise, it went into the hands of Narayanrao Shirale, the purchaser, in order to pay off the mortgage debt. Therefore it seems to me that this attempt on the part of Dandekar's successors to prove their title against the other branch of purchasers who took their title from the rightful owner has failed, and as that is the only point that has been raised in these four appeals, it must follow that they must be dismissed with costs.


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