Bombay High Court
* Gurudayalsing S/O Mehersing Bindra vs Basant Singh S/O Mehersingh Bindra on 21 April, 2014
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 SA 644/2004 & SA 177/2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.644 of 2004
* Gurudayalsing s/o Mehersing Bindra
Since deceased, through
Legal Representatives:
1A) Daljeetkaur w/o Gurudayalsingh Bindra,
Age 73 years,
Occupation : Household,
R/o 5-1-101, Osmanpura,
Aurangabad.
1B) Kawalnainsingh s/o Gurudayalsingh Bindra,
Age 47 years,
Occupation Business.
1C) Manmahendersingh s/o Gurudayalsingh
Bindra,
Age 45 years,
Occupation : Business,
R/o As above.
1D) Arvinderkaur w/o Bhupindersingh
Kohli,
Age 53 years,
Occupation : Household,
R/o Pimprigaon,
Taluka District Pune.
1E) Ranjitkaur w/o Gurudipsingh Kant,
Age 50 years,
Occupation : Household,
R/o 41 Sunjit Cooperative
Housing Society, Manmad,
Tal. Nandgaon, District Nasik.
1F) Surjeetkaur w/o Devindersingh Bindra,
Age 49 years
Occupation : Household,
R/o Mahajana Peth,
::: Downloaded on - 04/05/2014 00:41:53 :::
2 SA 644/2004 & SA 177/2005
Burhanpur, District Burhanpur (MP).
1G) Kamaljitkaur w/o Gurinderpasingh
Ahuja,
Age 41 years,
Occupation : Household,
R/o Madhavnagar Manmad,
Taluka Nandgaon, District Nasik.
1H) Jaspritkaur w/o Balvindersingh Hoda,
Age 39 years,
Occupation : Household,
R/o Hiranmagari Sector 11,
Udaipur, District Udaipur
(Rajasthan). .. Appellants.
Versus
1) Basant Singh s/o Mehersingh Bindra
Since deceased through his
legal representatives (as mentioned
in Civil Application No.3289 of 2014
in Second Appeal No.177 of 2005)
1A) Charanjeet w/o Basantsingh Bindra,
age 80 years,
Occupation : Nil
1B) Khurbirsingh s/o Basantsingh Bindra,
Age 65 years,
Occupation : Business.
1C) Amarjeet Kaur w/o Jagmonshing Oberai,
Age 60 years,
Occupation : Nil.
R/o Nityanand bag Chembur, Mumbai.
1D) Manjeet Kaur w/o Amarjeetsingh Jaggi,
Age 57 years,
Occupation : Household,
R/o Sahkarnagar, Osmanpura,
Aurangabad,
Taluka and District Aurangabad.
::: Downloaded on - 04/05/2014 00:41:53 :::
3 SA 644/2004 & SA 177/2005
1E) Harvindarsingh s/o Bastsingh Bindra,
Age 54 years,
Occupation : Business
1F) Narendrasingh s/o Bastsingh Bindra,
Age 52 years,
Occupation : Business
Nos.1A, 1B, 1E and 1F are
residents of Jyoti Nagar,
Osmanpura, Aurangabad,
Taluka and District Aurangabad.
2)
Autar Kaur w/o Hardayalsingh
Age 82 years,
Occupation : Household
R/o Osmanpura, Aurangabad. .. Respondents.
--------
Smt. A.N. Ansari, Advocate, for appellants.
Shri. P.R. Katneshwarkar, Advocate, for respondent No.1.
Shri. A.K. Gawali, Advocate, for respondent No.2.
--------
With
Second Appeal No.177 of 2005
* Basant Singh s/o Mehersingh Bindra
Since deceased through his
legal representatives (as mentioned
in Civil Application No.3289 of 2014
in Second Appeal No.177 of 2005)
1A) Charanjeet w/o Basantsingh Bindra,
age 80 years,
Occupation : Nil
1B) Khurbirsingh s/o Basantsingh Bindra,
::: Downloaded on - 04/05/2014 00:41:53 :::
4 SA 644/2004 & SA 177/2005
Age 65 years,
Occupation : Business.
1C) Amarjeet Kaur w/o Jagmonshing Oberai,
Age 60 years,
Occupation : Nil.
R/o Nityanand bag Chembur, Mumbai.
1D) Manjeet Kaur w/o Amarjeetsingh Jaggi,
Age 57 years,
Occupation : Household,
R/o Sahkarnagar, Osmanpura,
Aurangabad,
Taluka and District Aurangabad.
1E) Harvindarsingh s/o Bastsingh Bindra,
Age 54 years,
Occupation : Business
1F) Narendrasingh s/o Bastsingh Bindra,
Age 52 years,
Occupation : Business
Nos.1A, 1B, 1E and 1F are
residents of Jyoti Nagar,
Osmanpura, Aurangabad,
Taluka and District Aurangabad.
2) Autar Kaur w/o Hardayalsingh
Age 82 years,
Occupation : Household
R/o Osmanpura, Aurangabad. ... Appellants.
Versus
1) Gurudayalsingh s/o S. Meharsing Bindra,
since deceased, through
legal representatives (as mentioned in
Second Appeal No.644 of 2004) :
::: Downloaded on - 04/05/2014 00:41:53 :::
5 SA 644/2004 & SA 177/2005
1A) Daljeetkaur w/o Gurudayalsingh Bindra,
Age 73 years,
Occupation : Household,
R/o 5-1-101, Osmanpura,
Aurangabad.
1B) Kawalnainsingh s/o Gurudayalsingh Bindra,
Age 47 years,
Occupation Business.
1C) Manmahendersingh s/o Gurudayalsingh
Bindra,
Age 45 years,
Occupation : Business,
R/o As above.
1D) Arvinderkaur w/o Bhupindersingh
Kohli,
Age 53 years,
Occupation : Household,
R/o Pimprigaon,
Taluka District Pune.
1E) Ranjitkaur w/o Gurudipsingh Kant,
Age 50 years,
Occupation : Household,
R/o 41 Sunjit Cooperative
Housing Society, Manmad,
Tal. Nandgaon, District Nasik.
1F) Surjeetkaur w/o Devindersingh Bindra,
Age 49 years
Occupation : Household,
R/o Mahajana Peth,
Burhanpur, District Burhanpur (MP).
1G) Kamaljitkaur w/o Gurinderpasingh
Ahuja,
Age 41 years,
Occupation : Household,
R/o Madhavnagar Manmad,
Taluka Nandgaon, District Nasik.
::: Downloaded on - 04/05/2014 00:41:53 :::
6 SA 644/2004 & SA 177/2005
1H) Jaspritkaur w/o Balvindersingh Hoda,
Age 39 years,
Occupation : Household,
R/o Hiranmagari Sector 11,
Udaipur, District Udaipur
(Rajasthan).
2) Autar Kaur w/o Hardayal Singh
(daughter of Meharsing Bindra)
Age 84 years
Occupation ; Household,
R/o H.No.5-1-201 Osmanpura,
Aurangabad. ... Respondents.
ig -------
Shri. P.R. Katneshwarkar, Advocate, for appellant.
Shri. P.F. Patni, Advocate, for respondent No.1.
Shri. A.K. Gawali, Advocate, for respondent No.2.
-------
CORAM: T.V. NALAWADE, J.
DATE : 21st APRIL 2014
JUDGMENT:
1) The appeals are filed against judgment and decree of Regular Civil Appeal No.39/2000 and 42/2000 which were pending in the Court of the IVth Ad-hoc District Judge, Aurangabad. Special Civil Suit No.50 of 1971 was filed by Basantsing, appellant from second proceeding for relief of partition and separate possession of movable and immovable properties. The suit was partly ::: Downloaded on - 04/05/2014 00:41:53 ::: 7 SA 644/2004 & SA 177/2005 decreed in his favour by the trial Court. Both, the plaintiff and defendant No.1 (appellant from the first proceeding) challenged the judgment and decree of the trial Court by filing aforesaid two civil appeals in District Court. The District Court has confirmed the decision of the trial Court. Defendant No.2 is the sister of the appellants from both the proceeding. Heard learned counsel of all the sides.
2) In these appeals original plaintiff and defendant No.1, the brothers have filed compromise document and they have prayed for disposal of both the appeals and also the original suit as withdrawn. This Court has passed order to the effect that the prayer made by the plaintiff and defendant No.1 will be considered at the time of consideration of both the appeals on merits. In view of this order, learned counsels for all the sides were heard. The trial Court has declared that defendant No.2, sister, is entitled to one-third share in the three properties which are mentioned in the operative part of the judgment delivered by the trial Court.
::: Downloaded on - 04/05/2014 00:41:53 ::: 8 SA 644/2004 & SA 177/20053) For withdrawal of the suit, provisions like Order 23 Rule 1 of the Code of Civil Procedure need to be used.
For withdrawal of the suit, ordinarily no permission of Court is necessary if plaintiff has no desire to have liberty to file fresh suit. Ordinarily that permission is given on the grounds mentioned in Order 23 Rule 1 of the CPC. From the grounds it can be said that it is ordinarily to be used before decision of the suit. Though there is such provision, when the suit is filed for relief of partition, the things are different. In such a suit plaintiff and defendant are party of equal status. In the case reported as 2003 CJ (SC) 195 (Chandramohan Ramchandra Patil v. Bapu Koyappa Patil) at para 13 the Apex Court has made following observations :
"13. This argument has no merit. In a suit for partition, plaintiff and defendants are parties of equal status. If the right of partition has been recognised and upheld by the Court, merely because only some of the plaintiffs had appealed and not all, the Court was not powerless. It could invoke provisions of Order 41 Rule 4 read with Order 41 Rule 33 of Code of Civil Procedure. The object of Order 41 Rule 4 is to enable one of the parties to a suit to obtain ::: Downloaded on - 04/05/2014 00:41:53 ::: 9 SA 644/2004 & SA 177/2005 relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant. (See Ratanlal v. Firm Lalman Das, AIR (1970) SC 108).
4) In view of the observations made by the Apex Court in the case cited supra, this Court has no hesitation to hold that the plaintiff from partition suit has no absolute right to withdraw the suit even though the suit has not reached stage of decision. In the present case there is decree given by the trial Court not only against the plaintiff but against defendant No.1. The Trial Court has declared that in the three properties, defendant No.2 has one-third share. Thus, the defendant No.2 can get benefit of the judgment and decree. The appeal is continuation of suit and so withdrawal of appeal in such a case is also not an absolute right of plaintiff. Further, when withdrawal would deprive a defendant to get fruits of the decree given by the trial Court, the appellate Court is not expected to permit the suit to be withdrawn at ::: Downloaded on - 04/05/2014 00:41:53 ::: 10 SA 644/2004 & SA 177/2005 appellate stage. This Court has gone through the terms of settlement between the two brothers and this Court has no hesitation to observe that the two brothers want to deprive the defendant No.2, sister, of the benefits given to her by the trial Court. They want to prevent defendant No. 2 from claiming relief through original plaintiff in Second Appeal No.177 of 2005. In view of the aforesaid position of law, this Court has no hesitation to hold that the prayer of giving permission to withdraw the suit made by the plaintiff cannot be accepted.
5) The submissions made for withdrawal of Second Appeal No.644 of 2004 by original defendant No.1 needs to be looked from different angle. Defendant No.2 has not filed cross-objection in this appeal. On this point following cases need to be referred :
(1) (1982) 1 SCC 232 (Choudhary Sahu v.
State of Bihar);
(2) (2010) 7 SCC 717 (Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak);
(3) 2004 CJ (Bom) 982 (Porbuko Uma Mandrekar v. Wencesslay Alex Dsilva). ::: Downloaded on - 04/05/2014 00:41:53 ::: 11 SA 644/2004 & SA 177/2005 6) Law is summed up by the Apex Court in the
case of Choudhary Sahu (supra) at paragraphs 12 to 14 and these paragraphs contain relevant facts also. The Apex Court has discussed the provisions of Order 41 Rule 33 of the Code of Civil Procedure and the observations are made at paragraphs 12 to 14 as under :
"12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-
objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.
13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising ::: Downloaded on - 04/05/2014 00:41:53 ::: 12 SA 644/2004 & SA 177/2005 the power under this Rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of limitation or the law of court fees etc.
14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation."
7) The appellant from Second Appeal No.644 of 2004 was defendant No.1 in the suit and decree at least in respect of three properties is given against him. That decree is in favour of the plaintiff and defendant No.2. He ::: Downloaded on - 04/05/2014 00:41:53 ::: 13 SA 644/2004 & SA 177/2005 has challenged only that part of the decision. As withdrawal of Second Appeal No.644 of 2004 will amount to acceptance of this decision of the trial Court, such withdrawal can be allowed. So, the prayer made by the defendant No.1 to allow him to withdraw Second Appeal No.644 of 2004 is allowed. In the result, the decision given by the trial Court to that extent becomes final as against defendant No.1. Thus, this Court is expected to decide only Second Appeal No.177 of 2005 filed by original plaintiff on merits. This appeal is continuation of the suit and so all the claims made by the plaintiff need to be considered.
8) The parties are Sikh/Hindu. Plaintiff Basant Singh and defendant No.1 Gurudayal Singh are sons of Laxman Kaur and defendant No.2 Autar Kaur is their sister. Learned counsel for the plaintiff mainly made submissions in respect of immovable property. The suit which was filed for partition of movable property by defendant No.2 in the past was decided against her and it was held that movable property belonged to defendant No.1. Present plaintiff was party to that suit and the trial ::: Downloaded on - 04/05/2014 00:41:53 ::: 14 SA 644/2004 & SA 177/2005 Court has held that the decision given in the previous suit has become final and it operates as res judicata against the suit claim in respect of movable property. This decision was not challenged during arguments. Thus, the dispute is only in respect of following immovable property situated at Aurangabad.
(1) Plot No.5-5-26 situated at Kranti Chowk.
(2)Plot No.5-5-29 situated at Kranti Chowk.
(3) Plot No.5-5-52 situated at Kranti Chowk.
(4) Plot No.5-5-27 situated at Kranti Chowk.
(5) House property bearing No.5-1-101 situated at Osmanpura.
9) The aforesaid first three properties are standing in the name of Amriksingh and plaintiff Basant Singh. It is the case of the plaintiff that these properties were purchased by them out of the income of business which they were doing together. The last two properties are standing in the name of Laxman Kaur, the mother of the parties. It is the case of the plaintiff that last two properties were also purchased by him and Amriksingh from the income received from their joint business.
::: Downloaded on - 04/05/2014 00:41:53 ::: 15 SA 644/2004 & SA 177/200510) It is the case of the plaintiff that his grand father Amriksingh and grand mother Gurdevi Kaur took care of him right from his childhood as they had no male issue and as they had love and affection for him. Laxman Kaur mother of the plaintiff was the only issue to this couple. It is the case of the plaintiff that when he became major, he joined the timber and tiles business of Amriksingh. It is his case that he was doing the business in partnership with Amriksingh. It is his case that all the suit properties were purchased by Amriksingh and him from the income of this business. It is the case of the plaintiff that after death of Amriksingh, he continued to carry on business in partnership firstly with Gurdevi Kaur and after her death with Laxman Kaur. It is contended that though name of Laxman Kaur was in the sale deed, it was a benami transaction.
11) Amriksingh died on 4-5-1955. Gurdevi Kaur died on 28-11-1961. Laxman Kaur died on 19-4-1968.
12) The defendant No.1 contested the suit. He denied that there was partnership between Amriksingh ::: Downloaded on - 04/05/2014 00:41:53 ::: 16 SA 644/2004 & SA 177/2005 and the plaintiff. He contended that Laxman Kaur was absolute owner of the property Nos.5-5-27 and 5-1-101. It is contended that the remaining properties were belonging to Amriksingh though they were purchased in the name of plaintiff and Amriksingh. It is contended that, business was done by Amriksingh and the business was in existence from prior to 1930 and it was not a partnership concern.
13) It is the case of the defendant No.1 that after death of Amriksingh, widow of Amriksingh namely Gurdevi Kaur became owner of the properties which were left behind by Amriksingh i.e. the first three properties. It is contended that, by will deed dated 5-9-1958 Gurdevi Kaur bequeathed her properties in favour of defendant No.1. It is contended that Laxman Kaur also made Will in his favour on 5-9-1958 in respect of property Nos.4 and 5.
It is contended that gift document dated 23-3-1965 was subsequently made by Laxman Kaur and the properties belonging to Laxman Kaur were gifted to him.
::: Downloaded on - 04/05/2014 00:41:53 ::: 17 SA 644/2004 & SA 177/200514) It is the case of the defendant No.1 that defendant No.2, sister, had filed Special Civil Suit No. 18/1970 against him and present plaintiff for relief of partition of movable properties. It is contended that said suit was dismissed and the decision has become final. It is his case that defendant No.2 Autar Kaur ought to have included all the properties if they were left behind by Amriksingh in the same suit and as that is not done the doctrine of res judicata operates to the present suit. It is contended that the plaintiff was also party to the suit and he had appeared in the suit and so bar of res judicata operates against him also. Defendant No.1 took the defence that there has been total ouster of plaintiff and defendant No.2 from many years, the dates on which he became owner under aforesaid documents.
15) Defendant No.2 Autar Kaur did not appear in the present suit and ex-parte order was made against her.
However, she appeared in the first appeal and in the present appeal.
::: Downloaded on - 04/05/2014 00:41:53 ::: 18 SA 644/2004 & SA 177/200516) On the basis of the aforesaid pleadings, issues were framed by the trial Court. Plaintiff and defendant No. 1 gave evidence. The trial Court has held that the decision of Special Civil Suit No.18/1970 operates as res judicata but only in respect of two issues like (1) issue regarding ownership of movable property; and, (2) the issue regarding proof of the two Wills by defendant No.1 executed in his favour. The trial Court has held that the plaintiff failed to prove that there was partnership between him and Amriksingh and out of the income of the partnership business the suit properties were purchased.
The trial Court has held that due to aforesaid two wills and also gift deed executed by Laxman Kaur in favour of defendant No.1, defendant No.1 has become owner of the properties bequeathed and gifted in these three documents. The trial Court also held that only one half portion of the property Nos.5-5-26 and 5-5-29 is available for partition as this property was belonged to Amriksingh and this property was neither gifted nor bequeathed by Gurdevi Kaur or Laxman Kaur in favour of defendant No.1.
The trial Court has held that the three issues of Laxman Kaur are entitled to have equal share in this remaining ::: Downloaded on - 04/05/2014 00:41:53 ::: 19 SA 644/2004 & SA 177/2005 property and so each is entitled to one sixth share. This decision is confirmed by the first Appellate Court.
17) Even after considering the terms of settlement filed by the plaintiff and defendant No.1 in this Court, in view of the reasons already given, the points formulated as substantial questions of law by this Court and few other points need to be decided in the appeal of the plaintiff.
Learned counsels of all the sides were allowed to argue on the following points, which were framed on the basis of the grounds mentioned in the appeal memo.
(i) whether the Courts below have committed error in holding that all the five immovable properties mentioned in the plaint were owned by Amriksingh ?
(ii) whether the Courts below have committed error in holding that the transactions of purchasing of three properties in the name of Amriksingh and the plaintiff were benami to the extent of name of plaintiff shown in the document ?
::: Downloaded on - 04/05/2014 00:41:53 ::: 20 SA 644/2004 & SA 177/2005(iii) whether the Courts below have committed error in holding that the provisions of Benami Transactions (Prohibition) Act, 1988 are not applicable to the transactions under which the properties were purchased in the name of the plaintiff ?
(iv) whether the Courts below have committed error in not giving share to the plaintiff in Municipal House No.1615 (Old No.5-5-27 and 5-1-101) ?
(v) whether the Courts below have committed error in holding that two Wills and gift deed made and executed in favour of defendant No.1 are duly proved.
18) Before the trial Court, copies of plaint, written statement and judgment delivered by the trial Court, the appellate Court, the High Court in Special Civil Suit No. 18/1970 were produced. The decision of Special Civil Suit No.18/1970 has become final. The suit was filed by present defendant No.2 Autar Kaur for partition of only movable property left behind by her mother Laxman Kaur.
The suit was filed in forma pauperism as the defendant No.2 had no source of income to file the suit. Present ::: Downloaded on - 04/05/2014 00:41:53 ::: 21 SA 644/2004 & SA 177/2005 plaintiff appeared in the suit but he did not file written statement. He appeared in the subsequent proceedings filed in the Appellate Court. Only present defendant No.1 filed written statement. In Special Civil Suit No.18/1970 Gurudayal Singh contented that the properties belonged to him as Gurdevi Kaur, his grandmother, had given the suit property to him by Will dated 5-9-1958. He also contended that his mother Laxman Kaur had also executed Will in his favour in respect of the suit property and so he had become owner. It appears that no specific issues with regard to the two Wills made by Gurdevi Kaur and Laxman Kaur were framed but in view of the pleadings it was necessary to consider the Wills for decision of the suit. The trial Court held that both the Wills were duly proved by Gurudayal Singh. The trial Court held that Gurudayal Singh had become owner of the suit property from Suit No.18/1970 due to Will executed by Gurdevi Kaur. In the result, the suit filed for relief of partition in respect to movable property left behind by Gurdevi Kaur and Laxman Kaur was dismissed.
::: Downloaded on - 04/05/2014 00:41:53 ::: 22 SA 644/2004 & SA 177/200519) The previous suit was filed for partition and though the present plaintiff Basant Singh had not filed written statement, from the circumstances, it can be said that he was interested in getting share in the suit property of Special Civil Suit No.18/1970, the movable properties.
In the present case also share in the same movable property was claimed by Basant Singh. It is already observed that nature of the partition suit is different from the nature of other suits. In the case reported as A.I.R. (37) 1950 PC 17 (Chandu Lal v. Khalilur Rahaman) the Privy Council has observed that doctrine of res judicata applies as between parties who have been co-defendants in a previous suit provided tests laid down by the Privy Council are satisfied. The Privy Council has laid down following three tests :-
(1) existence of conflict of interests between co-defendants;
(2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief;
and (3) decision given on the said question between the co-defendants.
::: Downloaded on - 04/05/2014 00:41:53 ::: 23 SA 644/2004 & SA 177/2005In view of this ratio and the facts and circumstances of Special Civil Suit No.18/1970 already discussed, this Court has no hesitation to hold that the decision on two issues of the previous suit like (1) the issue with regard to relief of partition in respect of movable property; and (2) the issue with regard to proof of two Wills executed by Gurdevi Kaur and Laxman Kaur in favour of defendant No.1 operate as res judicata under section 11 of CPC to that extent to the present suit and the said decision given in the previous suit, on the two issues, need to be used in the present suit.
20) Submission was made by the learned counsel for the original defendant No.1 that the doctrine of res judicata applies to the entire suit. This proposition cannot be accepted. He drew attention of this Court to the provisions of Order 2 Rule 2 of the Code of Civil Procedure. The provision reads as under :-
"2. Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion ::: Downloaded on - 04/05/2014 00:41:53 ::: 24 SA 644/2004 & SA 177/2005 of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterward sue for any relief so omitted.
Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
From bare reading of the provision, it can be said that the provision is against the plaintiff. There may be circumstance that when defendant of previous suit could not have claimed relief which only the plaintiff could have claimed. In the suit filed for partition, the defendant can defend the suit simply by contending that all the ::: Downloaded on - 04/05/2014 00:41:53 ::: 25 SA 644/2004 & SA 177/2005 properties which can be subjected to partition are not included in the suit and the suit is not tenable in view of provisions of Hindu Law. In view of this circumstance only because present plaintiff was also party defendant in a suit previously filed by defendant No.2, it cannot be said that there is bar of provision of Order 2 Rule 2, CPC against the present plaintiff. It was not open for the present plaintiff to file suit for partition in respect of movable properties for the reasons already given but law does not prevent him from filing suit for partition of immovable properties. This Court has no hesitation to hold that in view of the facts and aforesaid circumstances, even plaintiff of previous suit could not have been prevented from filing suit for partition in respect of immovable properties. Further she is defendant in the present suit and she cannot be denied the relief which she is entitled to get along with the plaintiff and other defendant from the present suit. There is one more circumstance like the claim of the plaintiff of his ownership of half share in the immovable properties in view of his case of purchase of the properties from the joint income. On this point reliance can be placed on the observations made by the ::: Downloaded on - 04/05/2014 00:41:53 ::: 26 SA 644/2004 & SA 177/2005 Apex Court in the case reported as AIR 1989 SC 879 (Shankarrao v. Vithalrao). Thus, the claim in respect of immovable properties of both the plaintiff and defendant No.2 can be considered in the present suit.
21) On the basis of oral evidence and the admissions given in the previous suits, the Courts below have held that the plaintiff was born in or about 1927. At least three suit properties were purchased before attaining majority by plaintiff. His contention that he started business in partnership with Amriksingh after his attaining majority needs to be kept in mind in this regard.
The property bearing No.5-5-27 is shown to be purchased in the year 1945-46 (1355 Fasli). Property bearing No. 5-5-29 is shown to be purchased in the year 1939-40 (1349 Fasli) and the property bearing No.5-1-101 is shown to be purchased in the year 1932-33. Thus, at least the aforesaid properties were purchased when plaintiff had not attained majority and he had not started doing business in partnership as per his case. The third property was purchased in the name of Laxman Kaur.
::: Downloaded on - 04/05/2014 00:41:53 ::: 27 SA 644/2004 & SA 177/200522) There are three sale deeds in respect of property Nos.5-5-26 and 5-5-29 and they include one lane situated between two constructions. This property was purchased in the name of Amriksingh and plaintiff before 1945. The evidence on the record is sufficient to prove that prior to 1930 Amriksingh was in the business of timber and tiles and it was the only source of income for his family. Pleadings show that plaintiff and his mother had no independent source of income. Copies of depositions given by the present plaintiff and Amriksingh in a suit between Amriksingh and Shantawan Saule are produced. In that previous suit plaintiff had given evidence that Amriksingh was the sole owner of the aforesaid business, shop. Similarly, Amriksingh had given evidence that he was owner of the shop and present plaintiff was working with him to learn the job. It appears that as the plaintiff was son of only daughter of Amriksingh, his name was entered in the shop name and the shop was named as "Amriksingh and Basant Singh Shop" Only due to this circumstance inference is not possible that the business was being run in partnership.
There are the aforesaid circumstances which are against ::: Downloaded on - 04/05/2014 00:41:53 ::: 28 SA 644/2004 & SA 177/2005 the plaintiff. Further, other evidence shows that after the death of Amriksingh, in 1955, it is the defendant No.1 Gurudayal Singh who started running the business. Thus, there is nothing with the plaintiff to prove that he was doing the business in partnership firstly with Amriksingh then with Gurdevi Kaur and then with Laxman Kaur. In view of this record and circumstances both the Courts below have held that it was the business of Amriksingh alone and the properties were purchased by Amriksingh.
It is finding of fact.
23) Property No.5-5-52 was allotted to Amriksingh by Municipal Council as Amriksingh was asked to shift the shop from thickly populated area to a place situated at some distance from the city. There is record to that effect.
In view of this record, the Courts below have held that this property also belonged to Amriksingh alone. The plaintiff has admitted that Amriksingh had given him shelter and plaintiff had no other source of income. The record and circumstances lead to only one inference that only because the plaintiff was living with Amriksingh, Amriksingh had no son and plaintiff was the son of only ::: Downloaded on - 04/05/2014 00:41:53 ::: 29 SA 644/2004 & SA 177/2005 daughter of Amriksingh, name of the plaintiff was shown in the sale deeds as one of the purchasers. Same can be said in respect of the properties which were purchased in the name of Laxman Kaur, mother of the plaintiff.
Findings of the Courts below are finding of facts on this issue and there is no possibility of interference in the concurrent findings given by the two Courts below.
24) In the case reported as AIR 1996 SC 238 (R. Rajgopal Reddy v Padmini Chandrasekharan) the Apex Court has laid down that provisions of Benami Transactions (Prohibition) Act, 1988 cannot be applied to pending proceedings. As on the date of the coming into force of the said Act, the present proceeding was pending said provision could not have been used. On one hand, plaintiff tried to protect property standing in his name by taking such defence and on the other hand he claimed that the properties standing in the name of Laxman Kaur were benami. Thus there is no force in this case of the plaintiff.
::: Downloaded on - 04/05/2014 00:41:53 ::: 30 SA 644/2004 & SA 177/200525) Laxman Kaur had no separate source of income of her own and she was living with the family of Amriksingh, with her issues. As per the record and circumstances, at the time of purchase of properties, Amriksingh, his wife Gurdevi Kaur and the family of Laxman Kaur were living with Amriksingh in his property.
In view of the discussion already made and the other circumstances, there is no reason to interfere in the finding given by the Courts below that the two properties like No.5-1-101 and 5-5-27 were also purchased in the name of Laxman Kaur by Amriksingh.
26) By will deed dated 5-9-1956 Gurdevi Kaur bequeathed property like entire plot of shop with timber shop situated on it, half portion of property Nos.5-5-26 and 5-5-29 to defendant No.1, Gurudayalsingh. On the same date Laxman Kaur bequeathed property standing in her name like property Nos.5-1-101 and 5-5-29 to defendant No.1 Gurudayalsingh by separate Will. Though she was not owner on 5-9-1958 she did not change the Will and the Will remained in existence and further she executed gift deed in favour of Gurudayal sing and so the ::: Downloaded on - 04/05/2014 00:41:53 ::: 31 SA 644/2004 & SA 177/2005 will can be given effect.
27) Admittedly Amriksingh died in 1955 leaving behind his heirs like widow and daughter. Gurdevi Kaur, widow died on 28-1-1961. In view of the discussion already made, it is clear that on the date of the Will made by Gurdevi Kaur, on 5-9-1958 she was the owner of the properties left behind by Amriksingh. She bequeathed properties mentioned in the Will to Gurdayalsing, defendant No.1. After death of Gurdevi Kaur i.e after 28-1-1961, Laxman Kaur became owner of the property which was left behind by Gurdevi Kaur, the properties which were not bequeathed or disposed of in any manner by Gurdevi Kaur during her life time. Thus after 28-1-1961 Laxman Kaur had a right to dispose of the remaining properties. There was Will made by her in 1958 itself and she then made gift deed in favour of defendant No.1 on 23-3-1965. These documents show that she had intention to give the properties mentioned in her Will and gift deed to Gurudayalsingh, defendant No.1. The gift deed was proved at least as against Autar Kaur in suit filed against her by Gurudayalsingh for eviction from those properties.
::: Downloaded on - 04/05/2014 00:41:53 ::: 32 SA 644/2004 & SA 177/2005The evidence is also given by defendant No.1 to prove the execution of gift deed and it was registered gift deed.
28) Argument was advanced by learned counsel for Gurudayal Singh, defendant No.1, that Laxman Kaur was left behind as one of the heirs along with widow of Amriksingh and so as per position of Hindu Law in regard to inheritance and succession which existed prior to coming into force of Hindu Succession Act 1956, Laxman Kaur had one half share in the property left behind by Amriksingh. By making such submission, learned counsel made further submission that Gurdevi Kaur had no right to bequeath the share of Laxman Kaur and so share of Laxman Kaur is available for partition. It was submitted that Laxman Kaur had one half share in all the five immovable properties and so the Will executed by Gurdevi Kaur to that extent cannot be given effect to. As against this submission, the trial Court has held that only half portion of the property Nos.5-5-26 and 5-5-29 is available for partition as this portion was not bequeathed by Gurdevi Kaur. She was under impression that half portion was already belonging to plaintiff, Basant Singh. This ::: Downloaded on - 04/05/2014 00:41:53 ::: 33 SA 644/2004 & SA 177/2005 portion was not bequeathed by Laxman Kaur also and she did not dispose of this portion in any manner.
29) Hindu Law relating to inheritance and succession which was in existence prior to Hindu Succession Act 1956 and also the provision of Hindu Succession Act 1956 need to be considered to ascertain as to whether there is force in the aforesaid submissions made by the learned counsel for defendant No.2 - Autar Kaur.
30) Hindu Law quoted in Para 34 of the Hindu Law by Mulla (21st Edition) was prevailing on this point prior to coming into force of Hindu Succession Act 1956. It shows that, if a Hindu had self acquired property, the property was succeeded by his heir and this property did not devolve on other coparceners by survivorship. This para shows that heirs used to succeed to the separate property as provided in para 43. Admittedly the suit property was separate property of Amriksingh. Para 43 shows that such property could be succeeded by Sapindas. If Sapindas were not available then the property was succeeded by ::: Downloaded on - 04/05/2014 00:41:53 ::: 34 SA 644/2004 & SA 177/2005 Samanodakas and if Samanodakas were not available the property was succeeded by bandus. In para 36 and para 38 there is mention to the effect that in the past, propinquity, proximity of relationship was the governing factor in this regard. In para 38 law is mentioned which is to the effect that three classes of heirs are recognised by Mitakshara, namely, (a) Gotraja sapindas, (b) Samanodakas, and (c) bandus. It is also mentioned that the first class succeeds before the second, the second succeeds before the third. In para 39 list of Gotrja sapindas is given and both wife and daughter are included in class gotraja sapindas. The order of succession of males in cases governed by Mitakshara is given in para 72 and it shows that widow gets along with son. It can be said that due to the provisions of Hindu Women's Rights to Property Act 1937 the widow is placed in the same category as that of son. The first category excludes the second and so on. In the past widow was listed in separate category and she was not placed along with son. Act of 1937 changed this position and widow came to be listed to the category of sons. Daughter remained in next category.
In view of the provision of Hindu Law as mentioned in ::: Downloaded on - 04/05/2014 00:41:53 ::: 35 SA 644/2004 & SA 177/2005 paragraphs 43 and 72 son and widow of the deceased started inheriting simultaneously. Only if nobody from that category was available then the daughter was to inherit. Under this Hindu Law which was in existence prior to 1956 daughters did not inherit until all the widows were dead.
31) In view of the Hindu Law which was prevailing, it needs to be presumed that only Gurdevi Kaur inherited the property of Amriksingh. As Hindu Women's Right to Property Act 1937 came in force on 14-4-1937, the provisions of this Act need to be applied. Section 3 of this Act runs as under :--
"3. Devolution of property.--- (1) When a Hindu governed by Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son :
Provided that the widow of a predeceased son shall inherit in the like manner as a son if there ::: Downloaded on - 04/05/2014 00:41:53 ::: 36 SA 644/2004 & SA 177/2005 is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is a surviving son or son's son of such predeceased son :
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-
section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Succession Act, 1925, applies."
32) In section 3(1) right of widow in respect of self acquired property of Hindu is mentioned. In section 3(2) right of widow in respect of the interests of deceased ::: Downloaded on - 04/05/2014 00:41:53 ::: 37 SA 644/2004 & SA 177/2005 male in Hindu joint family property is mentioned. Both these provisions show that they are subject to provisions of Section 3(3). Section 3(3) shows that any interest devolving on a widow shall be the limited interest known as a Hindu woman's estate.
33) After coming into effect Hindu Succession Act 1956, due to the provisions of Section 14 Gurdevi Kaur became full owner of the property which was held by her as limited owner after the death of her husband, Amriksingh. After the death of Gurdevi Kaur, in view of provision of Section 15 of the said Act, Laxman Kaur became owner of the property left behind by Gurdevi Kaur. In view of this position of law, this Court has no hesitation to observe that only those properties which are held to be available for partition by the Courts below ere available for partition.
34) Learned counsel for the plaintiff and defendant No.1 placed reliance on the case reported as 2009 (6) Mh.L.J. 765 (Chandrakant v. Prashant). In this case section 3 of the Hindu Women's Right to Property Act, ::: Downloaded on - 04/05/2014 00:41:53 ::: 38 SA 644/2004 & SA 177/2005 1937 and section 14 of the Hindu Succession Act 1956 are discussed. The facts of the reported case show that husband had left behind him a daughter and widow and death had taken place prior to 1956. The Court held that daughter was not the heir under section 3 of the Act 1937 and the property devolved upon the widow. Though the provisions of the Hindu Law which were in force prior to the Act of 1937 were not referred, it can be said that the decision was correct and the ratio needs to be applied.
35) Learned counsel for the Autar Kaur defendant No.2 placed reliance on a case reported as 2005 (3) Mh.L.J. 506 (Laxman v. Smt. Bendrabai). In this case this Court held that the aforesaid provisions of Mitakshara Law (Bombay School) are applicable to the residents of Berar. There is no dispute that the aforesaid provisions of Mitakshara School are applicable in this area. The object of provision of section 14(1) of the Hindu Succession Act 1956 is discussed at para 15. It is observed that daughter of the deceased was entitled to have equal share when death had taken place in 1955 and when deceased had left behind him two widows and a daughter. With due respect, ::: Downloaded on - 04/05/2014 00:41:53 ::: 39 SA 644/2004 & SA 177/2005 it needs to be observed that the position of law which was prevailing prior to coming into force of Hindu Succession Act 1956 was not considered by this Court. The first case on which reliance is placed by the learned counsel for the plaintiff came to be decided on 24-8-2009 but in this case the previously decided case of Laxman cited supra was not referred. This Court holds that the ratio of the case of Chandrakant (cited supra) needs to be applied.
Reliance was placed on one more case reported as AIR 1951 Orissa 337 (Radhi Bewa v. Bhagwan Sahu) by the learned counsel for Autar Kaur. The facts of this reported case were altogether different and only widow was left to succeed. Similarly facts of the case reported as 1965 Mh.L.J. 745 (Indubai Pandhari Naik v. Vyankati Vithoba Sawadha) were also altogether different and so the observations made in this case need not be discussed.
36) In view of the discussion made above, this Court has no hesitation to hold that the trial Court and the First Appellate Court have not committed any error in holding that only properties mentioned in the operative order of the judgment of the trial Court viz. property Nos.
::: Downloaded on - 04/05/2014 00:41:53 ::: 40 SA 644/2004 & SA 177/20055-5-26 and 5-5-29 are available for partition and each issue of Laxman Kaur has equal share in these properties.
No need is felt to interfere in the decision. In the result following order.
37) Second Appeal No.177 of 2005 is dismissed.
Second Appeal No.644 of 2004 is disposed of as withdrawn.
All civil applications stand disposed of.
Amendments are allowed in civil application, as payed, to bring legal representatives on record.
Sd/-
(T.V. NALAWADE, J.) rsl ::: Downloaded on - 04/05/2014 00:41:53 :::