Case Note & Summary
The case involves a property dispute between two brothers, Shashikant Haribhau Bandewar (appellant-plaintiff) and Bhalchandra Haribhau Bandewar (respondent-defendant). The appellant filed a suit seeking a declaration that a sale deed dated 3.2.1975 executed by their father in favor of the respondent was a sham document and without consideration, and that the appellant continued to be the owner of the suit property. The trial court dismissed the suit, holding that the sale deed was valid and for consideration. The first appellate court confirmed the findings. In the second appeal, the appellant raised substantial questions of law regarding the validity of the sale deed, consideration, and limitation. The High Court examined the evidence, including the sale deed (Exh.204) and rent agreements (Exhs.77-87) showing the appellant acting as landlord. The court noted that the appellant failed to prove that the sale deed was a sham transaction. The burden of proof was on the appellant, and he did not discharge it. The court also held that the issue of limitation was not pressed before the first appellate court and could not be raised in second appeal. The concurrent findings of the courts below were not perverse and did not warrant interference. The second appeal was dismissed with no order as to costs.
Headnote
A) Transfer of Property Act - Sale Deed - Sham Transaction - Burden of Proof - The appellant-plaintiff alleged that the sale deed dated 3.2.1975 was a sham document without consideration. The court held that the burden to prove the document was sham lies heavily on the party asserting it, and the appellant failed to discharge that burden. The concurrent findings of the courts below that the sale deed was valid and for consideration were upheld. (Paras 1-28) B) Limitation - Issue Not Pressed Before First Appellate Court - The trial court had framed an issue on limitation, but the appellant did not press it before the first appellate court. The court held that the appellant cannot be allowed to raise the issue of limitation in second appeal when it was not agitated before the first appellate court. (Paras 2-3) C) Transfer of Property Act - Section 54 - Consideration - The court examined whether the sale deed was without consideration and void ab initio under Section 54 of the Transfer of Property Act, 1882. It held that the recitals in the deed and the evidence on record indicated that consideration was paid, and the appellant's claim of no consideration was not substantiated. (Paras 10-15)
Issue of Consideration
Whether the appellant-plaintiff proved that the sale deed dated 3.2.1975 was a sham document and without consideration, and whether the first appellate court erred in not considering the issue of limitation.
Final Decision
Second Appeal dismissed with no order as to costs. The sale deed dated 3.2.1975 is valid and not a sham document.
Law Points
- Burden of proof on party alleging sham transaction
- Sale deed presumed valid unless proved otherwise
- Limitation issue not pressed before first appellate court cannot be raised in second appeal
- Section 54 Transfer of Property Act requires consideration for sale
- Concurrent findings of fact not interfered with in second appeal unless perverse
