LexVISHWANATH BAPURAO SABALE versus SHALINIBAI NAGAPPA SABALE & ORS.
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12009] 4 s.t.R. 976 A VISHWANATH BAPURAO SABALE r V. SHALINIBAI NAGAPPA SABALE & ORS. Civil Appeal Nos. 1782-83 of 2009 B MARCH 23, 2009 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Suit for declaration - Predecessors-in-interest of parties ,. -- being brothers - Owned joint and self acquired properties - .. Father of defendant executed registered sale deed selling his -- c share in joint properties and his self acquired properties to plaintiff's predecessor-in-interest and executed settlement deed in terms whereof he obtained right to enjoy those properties during his life time - Suit for declaration and injunction based on title -Decreed - Decree upheld by first D appellate court and High Court - Held: The documents were ~- registered, thus carried presumption of valid execution - There was no proof to show that documents were sham - Suit was based on title - Once plaintiff proved title, onus shifted on defendants to prove adverse possession which they failed to E discharge - Plea of defendants that documents were executed to save properties from creditors not plausible as no action was taken by creditors against them - Also no suit for ~_,. cancellation of documents was filed in terms of s.31 of Specific Relief Act, 1963 - Long possession not sufficient to prove F adverse possession - Impugned order warrants no interference - Adverse possession. 'B', father of the appellant and 'S', the predecessor- in-interest of the respondents, were step brothers. They had some joint family properties. 'B' also had self acquired G properties. He suffered substantial loss in his business ... ,. and incurred loan of Rs.35000. On 21.7.1955, four registered deeds were executed in respect of the suit properties. The first was a deed of partition, in terms whereof, joint family properties were divided in equal H 976 VISHWANATH BAPURAO SABALE V. 977 SHALINIBAI NAGAPPA SABALE & ORS. shares and 'B' sold his share of joint family property to A \ '5'. He also allegedly sold his self acquired property to '5'. Two deeds of settlement on the same day were executed by 'S', in terms whereof, the lands transferred in his favour were settled to 'B' for enjoyment during his lifetime. However, it was stipulated that 'B' would not have B any absolute right over the properties and was not entitled to alienate the same. 'B' died in the year 1958. .. After the death of 'S' which took place in the year .. 1977, respondents filed suits for declaration of title over - suit properties and possession claiming the same as the c heirs and LRs of '5'. The Trial Court decreed the suits and the decrees were upheld by the first appellate court and the High Court. The defendants filed the appeals. Dismissing the appeals, the Court D -> HELD: 1.1. All the four deeds executed on 2-07-1955 were registered documents. They carried a presumption of valid execution. There was no proof to show that the said documents were sham or nominal. The courts below clearly held that the appellant failed to discharge the E heavy onus on him. Exhibit 36 was a deed of sale in terms whereof 'B' sold his half share to '5'. If the contention of .... -.j defendant that there existed no joint family property was correct, it was for him to show that the same was self acquired property of 'B'. No evidence was brought on record to show that 'B' was in exclusive possession of F the suit properties. A presumption as regards jointness of the family property could be raised as 'B' and '5' 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 G ... ~ to be any apparent reason to hold that the deed of sale was sham or nominal in character. [Paras 15, 16) [985-G· H; 986-A-D] 1.2. It may be true that the other sale deed (Exhibit 49) consisting of 8 items of properties were self acquired H 978 SUPREME COURT REPORTS [2009] 4 S.C.R. A properties of 'B'. Indisputably 'B' was heavily indebted. He was required to repay loan incurred by him. PW-3, in his deposition, stated that 'S' in fact had paid the entire amount of loan to the creditors of 'B'. Indisputably 'B' continued to remain in possession of the properties in B 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 'S'. His possession in terms t
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