Gangubai Raghunath Ayare vs. Gangaram Sakharam Dhuri (D) Thr. His Lrs. And Ors.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 355
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3183 OF 2009
GANGUBAI RAGHUNATH AYARE …APPELLANT
VERSUS
GANGARAM SAKHARAM DHURI (D)
THR. LRs AND ORS. …RESPONDENTS
GANGARAM SAKHARAM DHURI (D) THR. LRs (R1 to R8)
R1: ANANDI GANGARAM DHURI (D) THR. LRs (R2 to R8)
R2: SUNANDA GANGARAM DHURI
R3: VAISHALI VILAS MAJALKAR
R4: KAVITA KASHIRAM UGAVE
R5: VITHAL GANGARAM DHURI
R6: MANGESH GANGARAM DHURI
R7: BABAJI GANGARAM DHURI
R8: GEETA SUBHASH BARASKAR
R9: LAXMIBAI VISHNU SHELAR
LADUBAI MAHADEV RANE (D) THR. LRs (R10 to R13)
R10: HEMLATA ARJUN TAWDE
R11: PRATIBHA SAWANT
R12: SUPRIYA PAWAR
R13: SUNANDA RANE
R14: SHANTABAI MAHADEV AYARE (D)
R15: PUSHPA PRABHAKAR GUDEKAR (LR of R14)
Signature Not Verified
Digitally signed by
SAPNA BISHT
Date: 2025.03.18
16:59:26 IST
Reason:
R16: TAI SHANKAR PAWAR
J U D G M E N T

2
AHSANUDDIN AMANULLAH, J.
Heard learned counsel and senior counsel appearing for the
respective parties.
2. The present appeal is directed against the Final Judgment and
1
Order dated 20/21.02.2007 in First Appeal No.116 of 1988 (hereinafter
referred to as the ‘Impugned Judgment’) passed by a learned Single
Judge (as he then was) of the High Court of Judicature at Bombay,
reversing Judgment and Decree dated 18/19.09.1987 passed by the
City Civil Court, Bombay (hereinafter referred to as the ‘Trial Court’) in
Suit No.2060 of 1970.
3. At the outset, it is gainful to take note of the position of the
contesting parties before the respective Courts, as under:

1
2007 SCC OnLine Bom 144 | (2007) 5 Mah LJ 136 | (2007) 5 Bom CR 306 .
2
The abbreviation expands to Legal Representatives.

3

FACTUAL SCENARIO:
4. For the sake of convenience, the parties are referred to as per
their original status before the Trial Court.
5. The dispute in the suit pertains to property bearing C.T.S. No.1048
admeasuring 398.5 square yards altogether, with a building thereon by
the name ‘ Sai Niwas ’ situated at Bandra, Bombay – 50 (hereinafter
referred to as the ‘suit property’).
6. One Gangaram Thakoji Shelar (hereinafter referred to as the
‘deceased’) was the exclusive owner of the suit property. The deceased
passed away on 13.05.1967. At the time of his death, the deceased was

4
survived by his widow Sunderbai, his son Vishnu and four daughters
namely, the Plaintiff and the third to fifth defendants, who were his only
legal heirs and representatives.
7. The Plaintiff stated that the deceased was the absolute owner of
the suit property. It is stated that one of the rooms i.e., Room No.1 in the
suit property was let out to Raghunath Narayan Ayare, the Plaintiff’s
husband on a monthly rent of Rs.20/-. The Plaintiff, with her husband and
her family members, have been occupying Room No.1, as tenant(s)
thereof, during the lifetime of the deceased. It is stated that after the
death of the deceased, Vishnu, being the only male member in the family
and also the Plaintiff’s and the third to fifth defendants’ brother, started
managing the affairs of and looking after the suit property.

8. The Plaintiff contends that her brother, Vishnu, had, in the course
of management of the suit property, obtained her as well as her sisters’
signatures, on some blank papers, including for the purpose of effecting
transfer thereof in the public record in the names of all the legal heirs.
9. According to the Plaintiff, her husband received Letter dated
10.01.1969 sent to him by the second defendant alleging that the
Plaintiff was in possession of Room No.1 in the suit property as a
licensee of Vishnu. According to the Plaintiff, she learnt, for the first time,
from the said Letter that Vishnu had sold ½ portion of the suit property to

5
the second defendant based on the Relinquishment Deed dated
11.12.1967, purportedly executed by the Plaintiff and the third to fifth
defendants in favour of Vishnu. The plaintiff's husband replied to the said
Letter by pointing out that he was a tenant in respect of Room No.1, and
not a Licensee. It was contended in the reply that the Plaintiff, being one
of the co-owners of the suit property, the transaction in favour of the
second defendant by Vishnu was not binding on her.
10. The Plaintiff filed Suit No.2060 of 1970 for administration of the
estate of the deceased seeking the following reliefs (sic):
‘ a) estate and life of the deceased be ascertained and
thereafter the same be administered by and under the
directions of this Hon'ble Court;
b that the share of the plaintiff and the Original defendant
Nos. 1 and 3 to 5 in the state of the said deceased be
ascertained and declared.
th
c that it be declared that the said sale deed 10 January
st nd
1969 executed by Original 1 defendant in favour of the 2
defendant is null and void and not binding on the estate of the
nd
said deceased and/or plaintiff's share therein and that the 2
defendant be decreed and ordered to deliver possession of ½
portion of the said property comprised in the said sale deed
of the estate of the said deceased.
d That for the purpose aforesaid enquiries be made, orders
be passed and action be taken as may appear necessary of
this Hon'ble Court in that behalf;
st
e That the original and present 1 defend and their heirs be
decreed and ordered to disclose of the estate of the said
deceased and to account for his dealings with the said estate.
f That pending the hearing and final disposal of the suit,
Court Receiver, High Court, Bombay, be a pointed as
Receiver of the said property viz. Sai Niwas, Bandra, Bombay
50, with all powers under order 40 and Rule 1 of the Civil
Procedure Code.

6
g This pending the hearing and final disposal of the suit
st nd
present 1 defendant and 2 defendant be restrained by an
order of injunction of this Hon'ble Court in any manner to deal
with, dispose of and/or alienating, transferring, encumbering
the said property or any portion thereof.
h That an interim orders in terms of prayers above.
i That costs of and incidental to the suit be provided for.
j That for such further and other reliefs as the nature and
circumstances of the case may require be granted. ’
11. The Trial Court framed issues and found as below:

7

12. The Trial Court held that the suit for administration of property is
not maintainable as the children of Vishnu, who died during the
pendency of the suit, were not brought on record, and for ascertainment
and administration of the estate and determination of the share and
income etc., no issues were raised and no data was available. The Trial
Court held that the Relinquishment Deed dated 11.12.1967 was not
proved in accordance with law and the transfer in favour of the second
defendant was null and void and was not binding on the Plaintiff. The
suit was decreed declaring that the Sale Deed dated 10.01.1969
executed by Vishnu in favour of the second defendant was null and void
and directing the second defendant to handover possession of ½ portion
of the suit property, which was subject-matter of the Sale Deed in
question. Further, the Trial Court also granted liberty to the Plaintiff to
claim the other reliefs prayed for in the suit separately.
13. The Judgment/Decree of the Trial Court was assailed by the
second defendant before the High Court in a First Appeal. The High
Court allowed the appeal and held that the date on which the sale deed
th
was executed by Vishnu, he had 1/6 undivided share in the property of
the deceased. Though he had professed to sell ½ of the entire property,
the Sale Deed would not become void or illegal only on that ground. The

8
High Court held that the purchaser under the Sale Deed would certainly
get what Vishnu was entitled to transfer, namely, his undivided share in
the suit property. It was held that the Sale Deed dated 10.01.1969 would
th
be valid to the extent of the undivided 1/5 share of Vishnu and the
finding of the Trial Court, that the Sale Deed was null and void, was set
aside.

14. The High Court also opined that the Trial Court had passed a
decree for possession against the second defendant which could not be
done as the third to fifth defendants had not filed any suit nor paid any
Court Fees on their claim regards possession of their share(s). As the
th
share of the Plaintiff was only to the extent of 1/5 , ½ of the suit property
could not be given to the Plaintiff.
15. The High Court went on to hold that once the Trial Court had
found that the suit for administration of the deceased’s estate was not
maintainable, it could not have granted prayer (c) supra , claimed in the
suit, which was in the nature of a consequential relief.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF:
16. Learned counsel for the Plaintiff submitted that Vishnu could not
have sold in favour of the second defendant more than his share in the
suit property. It was contended that, at best, he could have transferred

9
1/6th of the share, as on the date of the Sale Deed and 1/5th share after
the demise of his mother.
3
17. It is submitted that as per Section 44 of the Transfer of Property
Act, 1882, if at all the remedy for partition was to be availed, it was to be
by the second defendant to demarcate his separate share, as acquired
from Vishnu, and that the High Court had erred in holding otherwise. The
Plaintiff, having a share in the property, correctly filed a suit for
declaration and possession for recovery of the area in possession of the
second defendant (Respondents No.1-8 herein), in excess of the
entitlement.
18. It was urged that concurrent findings demonstrate that the second
defendant/vendee was not a bonafide purchaser without notice and he,
or his LRs, cannot be granted the benefit of pendency of the
proceedings, which were instituted in the year 1970 i.e., immediately
after the Sale Deed dated 10.01.1969 and, have been contested since
then.
3
‘ 44. Transfer by one co-owner .—Where one of two or more co-owners of immoveable property legally
competent in that behalf transfers his share of such property or any interest therein, the transferee acquires
as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to
joint possession or other common or part enjoyment of the property, and to enforce a partition of the same,
but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so
transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle him to joint possession or other common or part
enjoyment of the house. ’

10
19. Furthermore, it was submitted that initially Vishnu was made
party to the suit and after his death, his widow was impleaded, though
his other legal heirs were not impleaded. However, that would not in any
manner affect the suit since, as on the date when the suit was instituted,
Vishnu had transferred his entire share in the suit property in favour of
the second defendant. Hence, it was urged that the estate of Vishnu
having passed onto the second defendant was represented in its entirety
through the said party, who in any event, was the main contesting party.
Our interference with the Impugned Judgment was, hence, sought by
the Plaintiff.
SUBMISSIONS BY THE SECOND DEFENDANT’S LRS:
20. It was submitted, by learned senior counsel, that although Vishnu,
while executing the Sale Deed had claimed to be the exclusive owner of
the entire suit property, it is well-settled that an undivided share in a
Hindu Undivided Family property can be transferred for valuable
consideration by way of sale.
21. It was advanced that the Plaintiff cannot seek the relief to obtain
a separate share in the property in question, in a suit for administration
of an estate, and such relief can be granted only in a properly-instituted
partition suit.

11
22. Lastly, it was contended that the second defendant’s LRs were
ready and willing to pay whatever reasonable amount that this Court
may direct, or in the alternative, pay 6% simple interest from 10.01.1969
till date on the original consideration or a lump-sum amount of Rupees
15,00,000/- (Rupees Fifteen Lakhs), which is a fair offer, if one considers
that the equities, as on date, are in their favour, as the Plaintiff has failed
before the High Court.
ANALYSIS, REASONING AND CONCLUSION:
23. We are of the firm opinion that the High Court rightly reversed the
finding of the Trial Court which set aside the Sale Deed dated
10.01.1969 in favour of the second defendant by Vishnu in toto ,
th
inasmuch as Vishnu had 1/5 undivided share in the suit property,
belonging to the deceased. The High Court has also rightly set aside the
decree of possession against the second defendant, as the said relief
was incapable of being granted by reason of the fact that the third to fifth
defendants had not filed any suit in this behalf, whilst the Plaintiff herself
th
was entitled only to a 1/5 share in the suit property. The suit, as filed by
the Plaintiff, sought administration of the deceased’s estate, with the
ancillary prayer being to ascertain the share of the Plaintiff and the
original defendants no.1 and 3 to 5 in the suit property.

12
24. We accord our imprimatur to the conclusion drawn by the High
Court that when the principal prayer for administration of the estate was
rejected by the Trial Court, that too as non-maintainable, any other
prayer which indirectly seeks partition cannot be granted, until the proper
parties are impleaded in the suit. As noted hereinbefore, the third to fifth
defendants, who are the Plaintiff’s sisters, have not filed any suit seeking
their share in the suit property. Specifically, on the facts of this case, on
the passing away of Vishnu, during the pendency of the suit, only his
wife was brought on record, whereas his sons and daughters were not
impleaded into the suit by the Plaintiff. In the case of Chief Conservator
of Forests, Government of Andhra Pradesh v Collector , (2003) 3
SCC 472 , the Court explained, through Hon. Quadri, J.:

4
‘ 9. Misjoinder and non-joinder .—No suit shall be defeated by reason of the misjoinder or non-joinder of
parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it:

13

(emphasis supplied)
25. In the decision rendered in Bachhaj Nahar v Nilima Mandal ,
(2008) 17 SCC 491 , the Court, speaking through Hon’ble Raveendran,
J., held:
5
‘ 23. It is fundamental that in a civil suit, relief to be granted
can be only with reference to the prayers made in the
pleadings. That apart, in civil suits, grant of relief is
circumscribed by various factors like court fee, limitation,
parties to the suits, as also grounds barring relief, like res
judicata, estoppel, acquiescence, non-joinder of causes of
action or parties, etc., which require pleading and proof.
Therefore, it would be hazardous to hold that in a civil suit
whatever be the relief that is prayed, the court can on
examination of facts grant any relief as it thinks fit. In a suit
for recovery of rupees one lakh, the court cannot grant a
decree for rupees ten lakhs. In a suit for recovery possession
of property ‘A’, court cannot grant possession of property ‘B’.
In a suit praying for permanent injunction, court cannot grant
a relief of declaration or possession. The jurisdiction to grant
relief in a civil suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in, etc. ’
(emphasis supplied)

14
26. In view of the reasons stated above, this Court directs that the
Plaintiff cannot be disturbed with her possession until the suit property is
partitioned in accordance with law. The second defendant shall only
th
have 1/5 share in the suit property, which fell to Vishnu on the demise
of the deceased, as the Sale Deed dated 10.01.1969 in favour of the
second defendant by Vishnu is held valid only to such extent.
27. Considering the passage of time of half a century and the current
scenario where parties are represented through their legal heirs, the
Trial Court concerned shall positively endeavour to decide the partition
suit, if so filed, within three months from the date of filing thereof, in
terms of the liberty granted hereinabove.
28. This Court, while granting leave on 01.05.2009, ordered that ‘ Until
further orders, it is directed that subject matter of dispute shall not be
alienated by any of the parties. ’ As the said Order has continued for over
a decade and a half, in the interest of justice, there shall be status quo in
the said terms, till the time the suit property is partitioned as per law.
29. The Civil Appeal is disposed of, with the aforesaid observations
and directions. Costs made easy.
30. I.A. No.14513/2022 is an application to ‘ Condone the delay of
916 days & Setting aside abatement in filing the Application to bring on

15
6
Record the LRs of Deceased Respondent No. 1 ’ (sic). I.A.
No.72967/2021 is an application to ‘ Allow the present application to
bring on record the Legal Representatives of the deceased Respondent
No.1 who are already on record in the present appeal as Respondents
7
No.2-8 as mentioned in paragraph 3 of the present application ’ (sic).
Considering that the LRs to be brought on record are already arrayed as
parties to this appeal, both the I.A.s are allowed, thereby condoning the
delay, setting aside the abatement, and bringing the said LRs on record
on behalf of the first respondent herein, who passed away on
28.09.2018, as per the Death Certificate dated 01.02.2021 issued by the
Municipal Corporation of Greater Mumbai.
……………….………………., J.
[SUDHANSHU DHULIA]
……………….………………., J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
MARCH 17, 2025
6
Party description is as per this appeal.
7
Ibid .