Case Note & Summary
The dispute centered on a trust property created by a deed of settlement dated 17 March 1951, with the plaintiff Bomi Munchershaw Mistry as a beneficiary and reversioner. Prior to 1951, Ratanchand Hirachand owned a bungalow known as Ratan Villa with ancillary structures on a large plot of land at Nepean Sea Road, Bombay. By a conveyance dated 20 March 1951, Ratanchand sold 565 square yards of the land to trustees under the trust deed, containing restrictive covenants that prohibited the vendor and his successors from building any structure higher than the existing garages on the remaining land or constructing in certain areas. In 1954, Ratanchand filed a suit for partition of joint family properties (Suit No. 304 of 1954), in which Lalchand Hirachand was appointed as a private receiver. The receiver entered into an agreement for sale with G.G. Zaveri on 2 July 1966 for 5325 square yards of the remaining land, and Zaveri in turn agreed to sell to Kesharwani Co-operative Housing Society on 23 July 1966. A deed of conveyance dated 31 March 1967 was executed by Lalchand in favor of the society, but it was actually executed on 30 November 1967 and ante-dated to defraud revenue. The plan annexed to the deed allegedly encroached on a strip of adjoining trust land and omitted the restrictive covenants, thereby affecting the plaintiff's rights. The plaintiff filed Suit No. 891 of 1970 in the Bombay High Court seeking declarations regarding ownership and enforcement of the restrictive covenants. During its pendency, he filed another suit in the City Civil Court (subsequently transferred to the High Court as Suit No. 942 of 1973) seeking cancellation of the conveyance deed on the ground that it was ante-dated and void. Both suits were heard together. By judgment dated 3 December 1992, the trial court decreed Suit No. 891 of 1970 with declarations that the society was not the owner of the portion of trust land and was bound by height restrictions. In Suit No. 942 of 1973, the trial court declined to cancel the deed but declared it inoperative and of no effect to the extent it sought to whittle down the rights of the trustees, beneficiaries, and reversioners under the trust. Aggrieved by the refusal to cancel, the plaintiff appealed (Appeal No. 590 of 1994), and the surviving trustees filed cross-objections (Cross Objection (L) No. 4 of 1996 in Appeal No. 170 of 1994). The appeals were heard together by a division bench of the Bombay High Court (R.M. Lodha and J.P. Devadhar, JJ.) on 29 June 2005. The sole grievance urged in the appeals was that the trial court erred in not cancelling the conveyance deed after holding it was ante-dated to defraud revenue and that it clouded the plaintiff's rights. The judgment text provided is truncated and does not include the High Court's analysis, reasoning, or final decision. Consequently, the outcome of the appeal, the court's ratio decidendi, and any operative directions are not available in the extracted record.
Issue of Consideration
Whether the trial court erred in declining to cancel the deed of conveyance dated 31/3/1967, despite finding it ante-dated to defraud revenue and that it casts a cloud on the plaintiff's trust rights, by instead declaring it inoperative only to the extent it affects trust rights.
Case Details
2005 LawText (BOM) (05) 33
Appeal No. 590 of 1994 in Suit No. 942 of 1973, along with Cross Objection (L) No. 4 of 1996 in Appeal No. 170 of 1994 in L.C. Suit No. 942 of 1973
R.M. Lodha, J.P. Devadhar
Mr. R. Dada, D.J. Khambatta, Mr. J.B. Chinai, Sanjay Jain, Swapnil Bangur, Darshan Mehta, Ms. A.B. Kapadia, Mr. F. D'Vitre, Mohan Salian
1. The Kesharwani Co-operative Housing Society Ltd., 2(a) Lalchand Hirachand (through LRs), 2(b) Vinod Doshi and other heirs of Lalchand Hirachand, 3. Rajesh Ratanchand Doshi, 4. Arvind Ratanchand Doshi, 5. Pankaj Gajendra Zaveri, 6. Kirit Gajendra Zaveri, 7. Dadi Sorabji Mistry, 8A. Jamshed Hormusji Wadia, 9A. Bomi M. Mistry, 9B. Homi B. Mistry, 9C. Naushad B. Mistry
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Nature of Litigation
Challenge to validity of a deed of conveyance and seeking its cancellation due to ante-dating and infringement of trust rights.
Remedy Sought
Appellant (plaintiff) sought cancellation of deed of conveyance dated 31/3/1967 and declaration that it is void, along with other reliefs in earlier suit.
Filing Reason
The deed was executed by a receiver appointed in a partition suit, and it was ante-dated to defraud revenue; it also allegedly conveyed part of trust property and ignored restrictive covenants, thereby affecting the rights of the trust beneficiaries.
Previous Decisions
Trial court in Suit No. 942 of 1973 by judgment dated 3/12/1992 declined to cancel the deed but declared it inoperative to the extent it affects trust rights; also, Suit No. 891 of 1970 was decreed with declarations regarding ownership and height restrictions.
Issues
Whether the trial court erred in refusing to cancel the deed of conveyance dated 31/3/1967, despite holding it was ante-dated to defraud revenue and it clouded the plaintiff's rights, and instead declaring it inoperative only to the extent it affects trust rights?
Submissions/Arguments
The sole grievance of the plaintiff and the cross objectionists is that the learned trial Judge grossly erred in declining to cancel the deed of conveyance dated 31/3/1967 even after holding that the said deed was ante dated with a view to defraud the revenue and that the said deed casts a cloud on rights of the plaintiff to enjoy the trust property.
Judgment Excerpts
The sole grievance of the plaintiff and the cross objectionists in these proceedings is that the learned trial Judge grossly erred in declining to cancel the deed of conveyance dated 31/3/1967 executed by Lalchand Hirachand (original defendant No.2) in favour of Kesharwani Co-operative Housing Society (original defendant No.1) even after holding that the said deed was ante dated with a view to defraud the revenue and that the said deed casts a cloud on rights of the plaintiff to enjoy the trust property.
Instead of cancelling the deed of conveyance, declared that the said deed of conveyance dated 31/3/1967 shall be inoperative and of no effect to the extent it expressly or by implication seeks to whittle down the rights of the adjoining land owners namely the trustees under the deed of settlement dated 17-3-1951, its beneficiaries and reversioners (including the plaintiff).
the said deed of conveyance was actually executed on 30/11/1967 but the same was ante dated with a view to defraud the revenue.
The Vendor has agreed with Manchersha Phiroze Mistry and the owner of the adjoining property to give to them lease of 400 sq.ft. of land as shown on the plan hereto annexed ... for a period of 98 years at the monthly rent of Rs.10/- on the Lessees agreeing to keep the said land unbuilt upon and open to the sky in consideration of the said Lessees agreeing to waive the covenant against the height restriction on the main bungalow.
Procedural History
1. Prior to 1951: Ratanchand Hirachand owned land and bungalow. 2. 20-3-1951: Conveyance of 565 sq. yds. to trust with restrictive covenants. 3. 1954: Suit No. 304 of 1954 filed for partition; Lalchand Hirachand appointed receiver. 4. 2-7-1966: Lalchand agreed to sell 5325 sq. yds. to G.G. Zaveri. 5. 23-7-1966: Zaveri agreed to sell to Kesharwani Society. 6. 31-3-1967 (executed 30-11-1967): Deed of conveyance executed, ante-dated. 7. 5-12-1970: Plaintiff filed Suit No. 891 of 1970 in High Court. 8. 27-3-1973: Plaintiff filed second suit in City Civil Court; later transferred to High Court as Suit No. 942 of 1973. 9. 3-12-1992: Both suits heard; Suit 891 decreed, Suit 942 disposed by refusing cancellation but granting declaration. 10. 1994: Appeal No. 590 of 1994 filed. Cross Objection (L) No. 4 of 1996 filed in Appeal No. 170 of 1994. 11. 29-6-2005: Bombay High Court heard and disposed of both matters (outcome not provided).
Acts & Sections
- Maharashtra Co-operative Societies Act, 1960:
