Bombay High Court: In the present appeal, where the appellant and respondent – real brothers – were in a dispute over a jointly purchased house property, which was later transferred solely to the appellant through a gift deed, the respondent had alleged the transfer was fraudulent and filed a suit seeking partition and possession. A Single Judge Bench of Shailesh P. Brahme, J., while dismissing the appeal, held that the purport of the plaint was that by playing fraud, the suit property was transferred in favour of the appellant. The Court noted that even the respondent was not aware that it was a gift deed, as it was executed by misrepresentation and later fraud was found to have been played by the appellant.
Background:
The appellant and respondent jointly purchased a house property located at Tilak Peth, Aurangabad, through a sale deed dated 10-06-2008. The appellant expressed a desire to obtain financial assistance using the suit property, which was jointly owned. He requested the respondent to transfer the property nominally into his name. Trusting the relationship, the respondent agreed, and a registered conveyance deed was executed on 02-12-2014. Later, a correction deed was executed on 05-08-2015 to rectify the area mentioned in the original document.
On 10-11-2017, both parties executed a memorandum of understanding, wherein the appellant assured that the property would be re-transferred to the respondent. However, it was later discovered that no loan had been taken, and the registered instrument was allegedly obtained fraudulently. The appellant avoided re-transferring the property, and the document dated 02-12-2014 was revealed to be a gift deed. On 28-03-2019, the appellant denied the respondent’s title and ownership, prompting the respondent to file a Special Civil Suit seeking partition, possession, and injunction.
In response, the appellant contended that the gift deed was consciously executed and registered by the respondent. He denied any intention to raise a loan and claimed that the transfer was done with the respondent’s full knowledge. The appellant also denied the memorandum of understanding and argued that the suit was barred by limitation, lacked cause of action, and was not maintainable without challenging the gift deed.
The appellant argued that the lower Appellate Court erred in allowing the appeal, as the respondent had not challenged the gift deed and had only sought relief of partition and possession. It was submitted that without a preexisting right, partition relief could not be granted, and the suit was not tenable. The appellant claimed the suit was vexatious and cleverly drafted to create an illusion of cause of action, and that it was time-barred since the gift deed was executed on 02-12-2014 and the suit was filed on 04-04-2019.
The respondent argued that the gift deed was void and did not require a separate challenge. The memorandum of understanding supported the claim that the gift deed was nominal. He maintained that the lower Appellate Court had reasonably interpreted the plaint and that a full trial was necessary to determine the suit’s tenability and limitation. He also clarified that the suit was not for partition of joint family or ancestral property.
Analysis and Decision:
The Court examined that the suit property was purchased jointly on 10-06-2008 and observed that it was not a joint family or ancestral property, but a property of co-ownership. The Court noted that there was no quarrel with the propositions that if no cause of action was made out or the suit was found to be barred by law, it was permissible to reject the plaint. However, if the plaint was found to be vexatious, having no cause of action or if by clever drafting the cause of action appeared to have been created, that would be a ground to reject the plaint.
The Court emphasised that a meaningful reading of the plaint disclosed that there was a cause of action, as it was arguable that an educated person had executed a document which was registered and then claimed ignorance of the nature of the transfer, which could not be fathomed. The Court observed that it was not permissible to arrive at any conclusion at that juncture of the proceedings, and the case of the respondent that the appellant was his elder brother, had misrepresented facts, and later assured to re-transfer the property could not be ruled out at that stage. Therefore, the fact that registered instruments were executed on two occasions could not dislodge the probable theory of the respondent-plaintiff.
The Court emphasised that it was pertinent to note that the respondent had set up a theory of fraud and mala fides, and these peculiar pleadings, if proved during trial, would vitiate the transaction between the parties and the instrument dated 02-12-2014. The Court observed that the transaction needed to be examined in the wake of Section 121 of the Transfer of Property Act, 1882, where the claim was that it was void ab initio. Therefore, the Court found substance in the submission that the respondent was not required to solicit relief of declaration in respect of the gift deed.
The Court noted that the respondent might or might not succeed in the suit and ultimately his suit might be found to be not tenable for want of relief of declaration, but that could not be a parameter to reject the plaint. The Court further observed that the arguable and attractive submissions for maintainability of the suit would not come within the sweep of Order VII Rule 11(a) or (d) of the Civil Procedure Code, 1908, (‘CPC’), since no specific provision was pointed out by the appellant to show that the suit was statutorily barred or there was a prohibition to entertain the suit. The Court held that the parties would have to wait until objective scrutiny was conducted in a full-fledged trial.
The Court observed that the purport of the plaint was that by playing fraud, the suit property was transferred in favour of the appellant and by considering Article 59 of the Limitation Act, 1963, it could not be said that the limitation would commence immediately when the gift deed was executed on 02-12-2014. Going by the plaint on that date, the Court noted that even the respondent was not aware that it was a gift deed, as it was executed by misrepresentation and later fraud was found to have been played by the appellant. Therefore, the Court was of the considered view that the plaint was not liable to be rejected under Order VII Rule 11(d) CPC on the plea of limitation.
The Court, thus, independently scrutinised the matter rather than relying solely on the judgment of the Coordinate Bench. In the absence of the plaint and relevant documents the Court examined the merits of the case afresh. Upon such examination, the Court found no perversity or illegality in the judgment and decree. Therefore, the appeal from order was dismissed and the pending civil application was disposed of.
[Deelipkumar Sagarmal Saboo v. Ramavtar Sagarmal Saboo, Appeal from Order No. 40 of 2021, decided on 04-10-2025]
Advocates who appeared in this case:
For the Appellants: Anil S. Bajaj
For the Respondents: Anand P. Bhandari