Bombay High Court
Laxman S/O Tukaram vs Smt. Bendrabai Wd/O Tukaram Karwate And ... on 9 March, 2005
Equivalent citations: 2005(5)BOMCR339, 2005(3)MHLJ506
Author: K.J. Rohee
Bench: K.J. Rohee
JUDGMENT K.J. Rohee, J.
1. These two appeals have arisen out of the judgment and decree passed by the appellate Court in Regular Civil Appeal No. 209/1984 allowing the appeal and decreeing Regular Civil Suit No. 618/1982 for partition and separate possession. In order to appreciate the controversy, it would be better if the parties are referred to as plaintiffs and defendant.
2. One Tukaram Karvate had three wives viz. Narmadabai, Janabai and Bendrabai. Padminibai is the married daughter of Naramabadai. Narmadabai predeceased Tukaram. Tukaram died on 9-3-1955 leaving behind him two widows viz. Janabai and Bendrabai and daughter Padminibai (the daughter of predeceased wife Narmadabai). Tukaram left behind him agricultural land, house and movable property described in Schedule A attached with the plaint. Soon after the death of Tukaram, Janabai adopted Laxman on 18-6-1955 with the consent of her co-widow Bendrabai. At that time Laxman was about 3 years old. Janabai died on 17-2-1981.
3. Bendrabai and Padminibai (hereinafter referred to as "the plaintiffs") instituted R.C.S. No. 618/1982 against Laxman (hereinafter referred to as "the defendant") for possession of the suit property described in Schedule A and alternatively for partition and separate possession thereof. According to the plaintiffs, after the death of Tukaram 1/2 share of the property left behind by him was inherited by Padminibai and 1/2 share was inherited by Janabai and Bendrabai together. After the death of Janabai, her share was inherited by Bendrabai. Thus Bendrabai and Padminibai have 1/2 share each in the suit property.
4. During the lifetime of Janabai, the plaintiffs viz. Bendrabai and Padminibai had issued notice dated 14-8-1980 (Exh.27) to her and also to Laxman (the defendant) claiming partition and possession of the suit property. Janabai refused to accept the notice. Defendant Laxman, however, replied the same denying the claim of the plaintiffs. The defendant claimed to have been adopted by Janabai. According to the plaintiffs, the consent of Bendrabai was not obtained before the alleged adoption of Laxman. Thus the adoption is invalid and does not clothe the defendant with any right, title or interest in the suit property left by deceased Tukaram. The plaintiffs submitted that if the adoption of defendant Laxman is held to be valid, in that event defendant Laxman is entitled to the share of Janabai only which is 1/4th share, plaintiff No. 1 Bendrabai is entitled to 1/4th share and plaintiff No. 2 Padminibai is entitled to 1/2 share. Thus the plaintiffs together are entitled to 3/4th share in the suit property. The plaintiffs therefore, alternatively claimed decree for partition and possession of the suit property.
5. The defendant denied the claim of the plaintiffs. According to him as per the wishes of Tukaram, he was adopted by Janabai (senior widow) with the consent of Bendrabai (the junior widow) on 18-6-1955. On the same day. Adoption deed (Exh.36) was executed and was registered. The consent deed (Exh.37) was executed by Bendrabai on the same day and it was also registered. Thus after the death of Tukaram, the defendant is the sole surviving co-parcener and the property devolved on him. The defendant contended that one year after the death of Tukaram, plaintiff No. 1 Bendrabai left the house and only Janabai was living with defendant Laxman. The defendant was managing the property with help of his natural father Bhikaji. The defendant submitted that Janabai and Bendrabai were entitled to maintenance only. Hence the plaintiffs are not entitled to claim partition. In fact they are not entitled to any share in the suit property. They do not inherit the property of deceased Tukaram and the suit is liable to be dismissed.
6. After considering the oral and documentary evidence on record, the trial Court held that the defendant was adopted by Janabai as the son of deceased Tukaram and that the adoption is legal and valid. After the death of Tukaram, Janabai and Bendrabai had only a limited right of maintenance. As the death of Tukaram and adoption of Laxman by Janabai for Tukaram was before the commencement of Hindu Succession Act, 1956 and Hindu Adoption Act, 1956, the adoption of Laxman related back to the date of the death of Tukaram and he became the sole surviving coparcener. The plaintiffs failed to show that they were in possession of the suit property left by deceased Tukaram when Hindu Succession Act came into force. Hence the plaintiffs are not entitled to become full owners of the suit property under Section 14 of the Hindu Succession Act. The plaintiffs are not entitled to claim partition and separate possession. The trial Court, therefore, dismissed the suit.
7. The appellate Court affirmed the finding of the trial Court about the legality and validity of the adoption of defendant Laxman. The appellate Court further held that plaintiff No. 2 Padminibai was married at the time of the death of Tukaram and hence she had no right of inheritance under Section 3(1) of the Hindu Women's Right to Property Act, 1937. Janabai and Bendrabai had a share equal to that of adopted son though it was a limited interest. The appellate Court further held that when plaintiff Bendrabai claimed partition of her interest in the suit property, only two heirs were left viz. Bendrabai herself and adopted son Laxman (the defendant). As such plaintiff No. 1 Bendrabai was having 1/2 share in the suit property. The appellate Court, therefore, allowed the appeal, declared that plaintiff No. 1 Bendrabai has 1/2 share in the suit property except movable property and is entitled for partition and separate possession of her half share.
8. Defendant Laxman challenged the said judgment and decree by S.A. No. 158/1988 whereas plaintiffs Bendrabai and Padminibai challenged the said judgment and decree by S.A. No. 135/1992.
9. During the pendency of the appeals Bendrabai died on 19-4-1999. The substantial questions of law that arise for determination are :
i) Who inherited Tukaram upon his death on 9-3-1955 and to what extent?
ii) What is the effect of the adoption of Laxman by Janabai on 18-6-1955?
iii) What is the effect of Section 14 of the Hindu Succession Act on the interest of Janabai and Bendrabai?
iv) Who inherited Janabai upon her death on 17-2-1981 and to what extent?
v) Who inherited Bendrabai upon her death on 19-4-1999 and to what extent?
10. Mr. M.S. Deshpande, the learned counsel for the plaintiffs, submitted that the parties being the residents of Berar, they are governed by Bombay School of Mitakshara Law, whereas Mr. B. N. Mohta, the learned counsel for the defendant submitted that the parties are the residents of Central Provinces and that they are governed by Benaras School of Mitakshara Law.
11. In support of their respective submissions, the learned counsel for the parties relied on the following cases :--
i) AIR 1930 Nagpur 265, Bajirao v. Atmaram, in which it is held that "the present case is from Berar and is, therefore, prima facie governed by the Bombay School of Law",
ii) AIR 1953 Nagpur 326, Bhaskar v. Laxmibai, in which it is held "Berar or any other place in Bombay Presidency is governed by the Bombay School of Hindu Law.
Persons migrated from Maharashtra to Central Provinces must have brought their personal law with them which was Bombay School of Hindu Law.
'Lex Loci of the Central Provinces is that of the Benaras School.'
iii) , Udebhan v. Vikram, in which it is held "Hindus residing in the Districts of the Central Provinces and from north and east and not from Maharashtra will be governed by the Benaras School."
12. It may be noted that admittedly the parties are the residents of Akola district which is part of Berar. As such they would be governed by the Bombay School and not by the Benaras School.
13. Neither the notice dated 14-8-1980 (Exh.27) issued by the plaintiffs to Janabai and defendant Laxman nor the plaint disclose whether the property described in Schedule A attached to the plaint was a Hindu joint family property or separate property of Tukaram. All that which is mentioned in the notice and the plaint is that Tukaram left behind him the property described in Schedule A attached to the plaint. So we will have to proceed on the assumption that the said property was separate property of Tukaram. Tukaram died on 9-3-1955 intestate. Tukaram left behind him two widows viz. Janabai and Bendrabai and daughter Padminibai (the daughter of his predeceased wife Narmadabai). Under the provisions of Section 3(1) of the Hindu Women's Right to Property Act, 1937. Janabai and Bendrabai together were entitled to 1/2 share in the property to the exclusion of Padminibai and Padminibai was entitled to 1/2 share under Section 72 in Chapter VI of Mullas Hindu Law. Under Section 3(3) of the said Act, the interest devolved on Janabai and Bendrabai was a limited interest known as Hindu Women's estate. It may be noted that Janabai and Bendrabai never claimed partition amongst themselves.
14. Thereafter on 18-6-1955 Janabai adopted Laxman with the consent of her co-widow Bendrabai. Both the Courts below have recorded a finding that the adoption of Laxman by Janabai was valid and legal. Hence I proceed to hold Laxman as the legally adopted son of Tukaram. The adoption of Laxman was prior to the coming into force of the Hindu Adoptions and Maintenance Act, 1956 and would be governed by old Hindu Law. Hence the adoption of Laxman would relate back to the date of death of Tukaram. In , Sriniwas v. Narayan, it is held :
"In the eye of law the adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in a position of posthumous son."
15. Thus Laxman would divest Janabai, Bendrabai and Padminibai of their asset of inheritence. , Krishnamurthi v. Dhruwaraj would not apply as it deals with last surviving co-parcener. So the position would be that at the time of death of Tukaram on 9-3-1955, he left behind him two widows viz. Janabai and Bendrabai, daughter Padminibai and son Laxman. Thus Janabai and Bendrabai were entitled to 1/3rd share together, Laxman was entitled to 1/3rd share and Padminibai to 1/3rd share (though she was married daughter) in the property left by Tukaram. Of course the interest of Janabai and Bendrabai was a limited interest.
16. The Hindu Succession Act, 1956 came into force on 17-6-1956. Under Section 14(1) of the Hindu Succession Act, any property possessed by a female Hindu acquired before the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The object of this section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder, it may further be seen that the word "acquired" in Sub-section (1) of Section 14 has to be given a widest possible meaning so also the word "possessed" is used in this section in a broad sense and in its widest connotation. The possession need not be actual physical possession or the personal occupation of the property by the female but may be possession in law. It may either be actual or constructive or in any form recognised by law provided that she has not parted with her right. Thus a female Hindu possessed of the property on the date Hindu Succession Act came into force would become an absolute owner if she was a limited owner at the time of the commencement of the Act.
17. As pointed out earlier, Janabai and Bendrabai had 1/3rd share together in the property left by Tukaram and their interest was limited interest. By virtue of Section 14(1) of the Hindu Succession Act, they had become full owners of 1/3rd share in the suit property. The fact that Janabai and Bendrabai did not seek partition before the commencement of Hindu Succession Act, 1956 would make no difference.
18. Janabai died on 17-2-1981. She died intestate. She had 1/6th undivided share in the suit property with Bendrabai. Under Section 15(1) of the Hindu Succession Act, 1956, the share of Janabai would devolve only upon her adopted son Laxman. Padminibai being the step daughter of Janabai was not entitled to inherit Janabai as her heir under entry (a) in Section 15(1) of the Hindu Succession Act, 1956. Thus on the death of Janabai, Laxman was entitled to his undivided 1/3rd share plus undivided 1/6th share of Janabai in the suit property which would be undivided 1/2 share in the entire property.
19. On 19-4-1999 Bendrabai died. She died intestate. She left behind her step son Laxman and step daughter Padminibai. They being step son and step daughter would not inherit her under entry (a) of Section 15(1) of the Hindu Succession Act, however, they would inherit her as the heirs of her husband Tukaram under entry (b) of Section 15(1) of the Hindu Succession Act. Under Rule (1) of Section 16 of the Hindu Succession Act, Laxman and Padminibai would take simultaneously. So Bendrabai's 1/6th undivided share would devolve on Laxman and Padminibai simultaneously. Laxman would get undivided 1/12th share and Padminibai would get undivided 1/12th share. Thus in the entire suit property, Laxman's share would be 1/2 + 1/12th = 7/12th and that of Padminibai would be 1/3rd + 1/12th = 5/12th. The judgment and decree of the appellate Court will have to be modified to that extent. Hence the order :
20. Both the appeals are partly allowed. The judgment and decree passed by the appellate Court is modified to the extent that it is declared that plaintiff No. 2 Padminibai has 5/12th share in the suit property except movable property. The suit house shall be partitioned by appointing a Commissioner and the agricultural land shall be partitioned by sending a precept to the Collector. An inquiry shall be held under Order 20, Rule 12 of Civil Procedure Code as regards mesne profits from the date of suit till delivery of possession. In the circumstances of the case, the parties to bear their own costs throughout.