Bombay High Court
Shri Yeshwant Maruti Lonkar vs Smt.Anjanabai Dinkar Dhamdhere on 10 June, 2013
Author: R.G.Ketkar
Bench: R.G.Ketkar
Tapadia RR
1 / 37 SA/61&62/2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.61 OF 2002
ALONG WITH
SECOND APPEAL NO.62 OF 2002
Shri Yeshwant Maruti Lonkar, since ..Appellants/
deceased, by his legal heirs Shri Orig.Defendants
Kalidas Yeshwant Lonkar and Ors
Vs
Smt.Anjanabai Dinkar Dhamdhere, .. Respondents/
since deceased, through her legal Orig.Plaintiffs.
heirs:
1(a)-Rambhau Dinkar Dhamdhere
and Anr
Mr. A. V. Anturkar, Advocate with Mr. Sandeep Pathak, Mr.
Prathamesh B. Bhargude, Mr. Sugandh Deshmukh, Advocates for
Appellants.
Mr. V. S. Kapse a/w Mr. Shailesh Chavan, Mr. Siddharth Ingale,
Advocates for respondent no.1(g),1(h), 1(i).
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. Vikram Chavan, Mr.
P.J.Throat i/b M/s YKS Legal, Advocates for Respondent no.2.
CORAM: R.G.KETKAR, J.
Reserved on : 18/04/2013
Pronounced on: 10/06/2013
JUDGMENT:
1. Heard Mr. A.V. Anturkar, learned counsel for the appellants, Mr. V.S.Kapse, learned counsel for respondent nos.1(g),1(h) and 1(i), Mr. A.Y.Sakhare, learned Senior Counsel for respondent no.2 in both the Appeals at length.
2. The short question that falls for determination in these Appeals is as to whether in the facts and circumstances of the ::: Downloaded on - 27/08/2013 20:30:27 ::: 2 / 37 SA/61&62/2002 present case, it is sub-section(1) or sub-section(2) of Section 14 of the Hindu Succession Act, 1956 (for short, 'Act') applies. In that context, it is appropriate to quote the observations made by Honourable Mr. Justice P.N.Bhagwati (as the learned Chief Justice of India then was) in paragraph 67 of V. Tulasamma Vs. Sesha Reddy,1:-
" ...The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves. It is indeed unfortunate that though it became evident as far back as 1967 that Sub-sections (1) and (2) of Section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always 'possess in order to guide the affairs of men, the legislature, for all these years did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless litigation. This is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of an authority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicators authorities in the country as also with the legal profession and immediately respond by making
1. (1977) 3 Supreme Court Cases 99 ::: Downloaded on - 27/08/2013 20:30:27 :::
3 / 37 SA/61&62/2002 recommendations for suitable amendments whenever it is found that a particular statutory provision is, by reason of inapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the result it was intended to achieve. if there is a close interaction between the adjudicators wing of the State and a dynamic and ever-alert authority or body which responds swiftly to the drawbacks and deficiencies in the law in action, much of the time and money, which is at present expended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to the people."
3. Second Appeal No.61 of 2002 is preferred by the original defendants challenging ig the Judgment and decree dated 31.7.1997 passed by the learned 11th Jt. Civil Judge, Jr.Dn, Pune in Regular Civil Suit No.943 of 1987 as also the Judgment and decree dated 4.9.2001 passed by the learned 6 th Addl. District Judge, Pune in Civil Appeal No.911 of 1997. Regular Civil Suit No.943 of 1987 was instituted on 2.5.1987 for rendition of accounts of yearly income by the appellant-Yeshwant Lonkar (Original Defendant), since deceased from the year 1946 derived from 3/5th share out of lands bearing Survey No.31/2/8, admeasuring 1 H. 96 R and Survey No.26/8-C+9+10 admeasuring 3 H. .08 R, situate at Mundhawa, Tq.Haveli, District-Pune (for short, 'suit lands'). The Courts below decreed the suit instituted by the respondents.
4. Second Appeal No.62 of 2002 is preferred by the original ::: Downloaded on - 27/08/2013 20:30:27 ::: 4 / 37 SA/61&62/2002 defendants challenging the Judgment and decree dated 31.7.1997 passed by the learned 11th Jt.Civil Judge, Jr Dn., Pune in Regular Civil Suit No.1141 of 1987 as also the Judgment and decree dated 4.9.2001 passed by the learned 6 th Addl. District Judge Pune in Civil Appeal No.912 of 1997. Regular Civil Suit No.1141 of 1987 was instituted by the respondents on 15.6.1987 for possession of their 3/5th share in the suit lands. By these orders, the Courts below decreed the suits by holding that the respondents are entitled to possession of their 3/5 th share in the suit lands.
In both the Appeals, the appellants are original defendants and the respondents are original plaintiffs in both the suits. The parties shall, hereinafter, be referred as per their status in the trial Court. The relevant and material facts that are necessary for disposal of the present Appeals, briefly stated, are as under.
5. It is the case of the plaintiffs that they have 3/5 th share in the suit lands. The deceased Pandu Piraji Lonkar had five sons, namely Ganpatrao, Shripati, Bahiroba, Maruti and Rambhau @ Rama. The original defendant Yeshwant is the son of the deceased Maruti. Deceased Rambhau had four daughters, namely, plaintiff nos 1 and 2 - Anjanabai, Shantabai and two other daughters Sulochana and Sushilabai, both since deceased.
The undisputed genealogy of Pandu Piraji Lonkar is as under :
::: Downloaded on - 27/08/2013 20:30:28 :::5 / 37 SA/61&62/2002 Pandu Lonkar ___________________________|_____________________________________ / / / | | Ganpat Shripatrao Bahiroba Maruti Rambhau (Dead) (Dead) | | (D.8.12.33) / / ______|______________ | | Radhabai (Baburao) / / / | | (wife) Jayant Bhagwant Ram- | | / chandra | | Sonabai (Dau.) | | (Dead) ___________________________________ |______ | / / / / | Yashwant Gulab Daulat Vitthal | (Def.) | ________________________________________ |___ / / / / Sulochana Sushila Anjana Shantabai ig Plff.No.1. Plff.No.2 One of the sons of Pandu Lonkar -Maruti instituted Regular Civil Suit No.92 of 1911 for partition of ancestral properties. The plaintiff's father Rambhau was defendant no.3 in that suit. On 19.12.1921 preliminary decree was passed determining the shares of the parties. However, no partition by metes and bounds was effected in pursuance of that preliminary decree.
Application for passing final decree was made by defendant no.2 therein - Bahiroba. another son of Pandu and uncle of the plaintiffs and defendant no.3 Rama, father of the plaintiffs on 7.12.1932. Pending that application, Rambhau died on 8.12.1933. After his death, the plaintiffs and their two sisters, by name Sushilabai and Sulochanbai were brought on record on 18.9.1934 as per Order below Exhibit-98. The parties entered ::: Downloaded on - 27/08/2013 20:30:28 ::: 6 / 37 SA/61&62/2002 into compromise on 27.2.1935. It is their case that as per that compromise, the plaintiffs and their two sisters were given 3/5 th share in the suit lands as heirs and legal representatives of Rama. The suit lands were in possession of tenant by name Shankar Hanumant Lonkar. He was giving yearly rent of Rs.250/-.
Having regard to this, it was agreed that the plaintiffs and their two sisters would be given Rs.150/- yearly towards maintenance from the suit lands having regard to their 3/5 th share and the remaining amount of Rs.100/- was agreed to be given to defendant no.4 Radhabai W/o Ganpat Lonkar towards her 2/5th share in the suit lands.
6. It is the case of the plaintiffs that defendant Yeshwant took possession of the suit lands from tenant Shankar Hanumant Lonkar in the year 1948. Since the plaintiffs were minors at the relevant time they were unable to cultivate the suit lands and,therefore, they had given the suit lands in possession of Yeshwant. Defendant Yeshwant was cultivating the suit lands as a trustee and was bound to give yearly income of the suit lands as per the compromise dated 27.2.1935. Defendant Yeshwant failed to give yearly income from the cultivation of the suit lands.
Therefore, notice was issued on 15.4.1987. Since there was no compliance, the plaintiffs instituted two suits, one for rendition of yearly accounts of income taken by Yeshwant from cultivation of ::: Downloaded on - 27/08/2013 20:30:28 ::: 7 / 37 SA/61&62/2002 the suit lands and for possession of their 3/5 th share in the suit lands.
7. The defendant Yeshwant resisted the suit by filing Written Statements. It was denied that Rama was entitled to get share in the suit lands in pursuance of the preliminary decree dated 19.12.1921 and compromise dated 27.2.1935. It was contended that Rambhau had no right, title and interest in the suit lands and he was not given any share in the suit lands. If Rama was not given any share, the plaintiffs are obviously not entitled to claim possession of the suit lands. It was further asserted that the defendant is in possession of the suit lands openly and continuously for more than 12 years and has become owner by adverse possession.
8. The learned trial Judge framed necessary issues in both suits. Evidence was adduced in Regular Civil Suit No.943 of 1987.
After considering the material on record, the learned trial Judge decreed the suit for possession and held that the plaintiffs are entitled to possession of 3/5th share in the suit lands. The learned trial Judge also decreed the suit for rendition of accounts and directed the defendant Yeshwant to pay Rs.450/- towards past mesne profits.
9. Aggrieved by this decision, the defendant Yeshwant preferred two Civil Appeals before the District Court. Both these ::: Downloaded on - 27/08/2013 20:30:29 ::: 8 / 37 SA/61&62/2002 Appeals were dismissed. It is against this decision, the above Second Appeals were preferred.
10. The Appeals were admitted on 6.2.2002 by passing the following order:
"None present for the appellant. The Appeals are admitted on the following substantial questions of law.
1. As per the uncodified Hindu Law in 1933, when Rambhau passed away, whether his wife and daughter are entitled to succeed to his estate as his legal heirs or whether the share of Rambhau by rule of Devolution applicable to Mitakshara School of Hindu Law, will devolve, not upon his wife and daughter, but upon his brothers?
2. Once in RCS No.21 of 1964, the plaintiffs were parties and issue No.30 was decided against them holding that they fail to prove that the lands had fallen to their share or to the share of their deceased father, Rambhau, and when admittedly that finding is not challenged by them, whether present suit for partition filed by them is maintainable or whether it is barred by Res judicata?
3. Whether the provisions of Hindu Law Inheritance (Amendment) Act, will apply to the so-called share of Rambhau?
Considering the fact that some of the parties are above the age of 65 years and oral request of the learned Advocate for the respondent, the Second Appeals are directed to be listed for final hearing."
11. In support of these Appeals, Mr. Anturkar strenuously contended that the Courts below committed serious error in decreeing the suit instituted by the plaintiffs. In the first place, he submitted that in the facts and circumstances of the present case, the Courts below committed serious error in holding that Section 14(1) of the Act is applicable. Secondly, he submitted ::: Downloaded on - 27/08/2013 20:30:29 ::: 9 / 37 SA/61&62/2002 that perusal of the preliminary decree dated 19.12.1921 as also the final decree in pursuance of compromise dated 27.2.1935 would indicate that Rama was not allotted any property. Rama was not even allotted any specific share in the suit lands. He submitted that as per the compromise dated 27.2.1935 the income derived from the suit lands was to be divided in five parts. Out of these five parts, three parts were to be given to the plaintiffs and their two sisters and two parts were to be given to defendant no.4 Radhabai. In other words, no property was allotted to either Rama or his daughters in that suit. He heavily relied upon Section 543 from Principles of Hindu Law by Mulla, Twenty-first Edition.
12. He submitted that a father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained out of his estate. A daughter on marriage, ceases to be a member of his father's family and becomes member of her husband's family. Henceforth, she is entitled to be maintained by her husband, and, after his death, out of his estate (S. 556). If the husband has left no estate, her father-in-law, if he has got separate property of his own, is morally, though not legally, bound to maintain her; but after his death, she acquires her legal right to be maintained out of his estate on the principle stated in section 541. If she is unable to ::: Downloaded on - 27/08/2013 20:30:29 ::: 10 / 37 SA/61&62/2002 obtain maintenance from her husband or after his death from his family, her father, if he has got separate property of his own, is under a moral, though not legal obligation, to maintain her. He submitted that the Division Bench of this Court in case of Bai Mangal Vs Bai Rukmini2 has held that she acquires no such right.
13. He further submitted that the plaintiffs are governed by uncodified Hindu Law. The married Hindu daughter was not entitled to maintenance from her father and, therefore, she did not have any pre-existing right of maintenance. Assuming that she is entitled to maintenance, mere entitlement is not good enough. The basic requirement is that acknowledgement of and in lieu of that entitlement of the pre-existing right, some property must have been allotted to her. Perusal of the preliminary and final decree passed in Civil Suit No.92 of 2011 would show that the suit property was not given to either Radhabai, widow of Ganpat or the plaintiffs. What was given to them was only right to get maintenance and not the property. In other words, the property was not allotted to them in lieu of any maintenance. In support of this proposition, he relied upon the decision of the learned Single Judge of this Court in the case of Jamunabai Bhalchandra Bhoir Vs. Moreshwar Mukund Bhoir3.
14. He further submitted that other requirement is that the 2 (1898) 23 Bom 291
3. 2009 (2) Bom.C.R 278 ::: Downloaded on - 27/08/2013 20:30:29 ::: 11 / 37 SA/61&62/2002 property must be possessed by the Hindu female. In the present case, the plaintiffs were not looking after the suit lands and the defendant Yeshwant was looking after the suit lands. The right of maintenance was given to the plaintiffs not in acknowledgment of any pre-existing right but sheer out of gratis and just to help them. No particular property was given to the plaintiffs in lieu of maintenance. In other words, the plaintiffs were not possessed of any property and, therefore, section 14(2) of the Act is applicable and not Section 14(1).
15. Mr. Anturkar further submitted that in any case, the finding recorded in Regular Civil Suit No.21 of 1964 to the effect that the suit lands were kept for maintenance of Rambhau's daughter and Radhabai as per final decree and the final decree did not mention that these lands were allotted to the share of deceased Rambhau will operate as res judicata in the present suits. Even on this count, the Courts below committed serious error in decreeing the suit.
16. On the other hand, Mr. Sakhare supported the impugned orders. He submitted that Suit No.92 of 2011 was instituted by Maruti against his brothers defendant no.1 Sripati, defendant no.2 Bahiroba, defendant no.3 Rambhau and defendant no.4 Radhabai, widow of the fourth brother Ganpat. In that suit, preliminary decree was passed on 19.12.1921. He invited my ::: Downloaded on - 27/08/2013 20:30:30 ::: 12 / 37 SA/61&62/2002 attention to the assertions made in paragraphs 2, 5 and prayer
(a) of Civil Suit No. 92 of 2011. Having regard to the prayer (a) of that suit, the preliminary decree was passed on 19.12.1921 whereunder the properties which included the suit lands were divided in four equal shares/parts. Out of that one share/part was allotted to the plaintiff Maruti and the remaining three shares/parts were allotted to the remaining three brothers in equal shares. In other words, he submitted that at the time of passing preliminary decree the properties including suit lands were divided in four equal shares and one share each was allotted to the plaintiff Maruti, defendant no.1 Shripati, defendant no.2 Bahiroba and one share to defendant no.3 Rama.
Since the other brother Ganpat died, his widow was given maintenance.
17. In pursuance of preliminary decree, application for passing final decree was made by defendant no.2 Bahiroba and defendant no.3 Rama on 7.12.1932. In that application it was specifically set out that the plaintiff and defendant nos 1 to 3 have to pay yearly maintenance to defendant no.4 Radhabai. The properties in the suit were to be divided in four equal parts, out of which one was to be allotted to the plaintiff. He submitted that on 8.12.1933 Rambhau expired and by order dated 18.9.1934 four daughters of Rambhau were brought on record. He invited ::: Downloaded on - 27/08/2013 20:30:30 ::: 13 / 37 SA/61&62/2002 my attention to the compromise entered into between the parties on 27.2.1935. Paragraph 1 of the compromise terms clearly recorded that there are four sharers of the properties in Suit No.92 of 1911. Out of that, since defendant no.3 Rama expired, his share is given to four daughters. The valuation of the properties therein was approximately 12000/-. It was, therefore, stated that Rama will get properties worth Rs.3000/- (1/4th of Rs.12000/-) and consequently his daughters are entitled to properties worth Rs.3000/-. Having regard to dues of Rama in individual capacity as also the dues of joint family , Rama is liable to pay Rs.1500/-. Having regard to marriage expenses of Rs.300/-
of Rama's daughter, Rama would be entitled to property worth Rs.1200/-. If the property worth Rs.1200/- is distributed among four daughters of Rama, it will serve no purpose, and daughters will get nothing. It was, therefore, agreed that instead of demarcating separate share of Rama, the income generated from Survey no.26 and survey no.31 may be divided in five parts. Out of these five parts, three parts will be allotted to the share of four daughters of Rama and two parts will be allotted to defendant no.4 Radhabai towards maintenance. He also invited my attention to clause (3) thereof which provided that after the death of Rama's daughter and defendant no.4 Radhabai and her daughter Sonubai, the suit lands will revert to the remaining ::: Downloaded on - 27/08/2013 20:30:30 ::: 14 / 37 SA/61&62/2002 three sharers in equal proportion.
18. Mr. Sakhare submitted that (i) preliminary decree dated 19.12.1921 determined separate share of the plaintiff Maruti as also defendants-three brothers which included Rama, (ii) disruption of joint family status was clearly recognised. He submitted that under the final decree, maintenance was not granted to the daughters of Rambhau till their attaining majority or till their getting married. Compromise provided that the daughters of Rama will succeed his share and, therefore, the plaintiffs and their two sisters have succeeded to the separate property of Rama. He further submitted that separate property of Rama was recognised. The daughters were given maintenance in lieu of the property. It was in recognition of their pre-existing right and consequently the case is squarely covered by section 14(1) of the Act. In support of his submissions, he relied upon: (1) R.B.S.S.Munnalal Vs. S. S. Rajkumar 4, and in particular paragraphs 6,7,13 to 16 thereof; (2) Kalyani Vs. Narayanan5 and in particular Head Note B thereof; (3) Mangal Singh Vs. Smt Rattno (dead)6 , and in particular paragraph 6 thereof; (4) V. Tulasamma (supra) and in particular paragraphs 23, 34 to 47 of the Judgment of Justice S. Murtaza Fazal Ali and paragraphs
4. AIR 1962 SC 1493 5 AIR 1980 SC 1173
6. (1967) 3 SC 1786 ::: Downloaded on - 27/08/2013 20:30:31 ::: 15 / 37 SA/61&62/2002 62 to 64, 68 to 72 of Justice P.N.Bhagwati (as the learned C.J.I. then was), (5) Gulwant Kaur Vs. Mohinder Singh 7 , and in particular paragraph 8 thereof and (6) Laxmappa Vs Balawa Kom Tirkappa Chavdi8
19. Mr. Sakhare submitted that the suits instituted by the plaintiffs are not barred by res judicata. He submitted that no such plea was raised in the written statement. No evidence was adduced by defendant Yeshwant to substantiate that the suits are hit by principles of res judicata. In other words, he submitted that the defendant had waived that plea. He invited my attention to paragraphs 8, 13, 23, 25, 40 and 45 of the Judgment dated 31.8.1967 passed by the learned Jt. Civil Judge, Jr.Dn., Pune I Regular Civil Suit No.21 of 1964. He also invited my attention to paragraphs 19 to 21 and 24 of the Judgment dated 7.11.1968 passed by the learned Assistant Judge, Pune in Civil Appeal No. 850 of 1967. In support of his submissions, he relied upon the following decisions:
(1) Wilfred Lovette Vs.Ganesh Hemraj Karmarkar9, and in particular paragraphs 11 to 15 thereof;
(2) V. Rajeshwari Vs. T.C.Saravanabava10 and in particular paragraphs 11 to 14 thereof,
7. AIR 1987 SC 2251
8. (1996) 5 SCC 458.
9. 1988 (1) BCR 637
10. (2004) 1 SCC 551 ::: Downloaded on - 27/08/2013 20:30:31 ::: 16 / 37 SA/61&62/2002 (3) Makhija construction and Engg (P) Ltd Vs Indore Development Authority11 and in particular paragraph 16 thereof to contend that where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided. He submitted that in the facts and circumstances of the present case, these three conditions are not fulfilled.
20. In rejoinder, Mr.Anturkar submitted that the case of the plaintiffs is that in the preliminary decree passed on 19.12.1921 and compromise dated 27.2.1935 specific share was allotted to Rama. In other words, Rama was allotted specific share and there was severance of the joint family status after passing of the preliminary decree. He relied upon Section 228 of Mulla's Hindu Law to contend that factually preliminary decree did not give any separate share to Rama at all. Separate share was given only to Maruti- plaintiff in Civil Suit No.92 of 2011. Partial partition decree, partial qua persons and/or partial qua property is legally permissible in Hindu law. In the present case, the preliminary decree is partial qua person, namely, qua Maruti and remaining
11. (2005) 6 SCC 304 ::: Downloaded on - 27/08/2013 20:30:31 ::: 17 / 37 SA/61&62/2002 three shares were not allotted to anybody, namely to other brothers of Maruti. The reference to four shares in the preliminary decree is made only for the purpose of determining and carving out one fourth share for giving it to Maruti, as without identification, it would not have been possible to even determine Maruti's share. The preliminary decree does not indicate that any separate share is given to Rama. In support of this proposition, he relied upon paragraph 20 of Kalyani (supra) and S.Sai Reddy Vs. S. Narayana Reddy12 and in particular paragraph 7 thereof wherein the Apex court has held that in a suit for partition, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition, Ganduri Koteshwaramma Vs. Chakiri Yanadi 13 and Prema Vs.Nanje Gowda14
21. I have considered the rival submissions made by the learned counsel appearing for the parties. I have also perused
12. (1991) 3 Supreme Court Cases 647
13. (2011) 9 Supreme Court Cases 788
14. (2011) 6 Supreme Court Cases 462 ::: Downloaded on - 27/08/2013 20:30:32 ::: 18 / 37 SA/61&62/2002 the material on record. In order to appreciate the submissions advanced by the learned counsel appearing for the parties, it is necessary to find out what is the effect of preliminary decree dated 19.12.1921 passed in Regular Civil Suit No.92 of 1911 as also the effect of compromise dated 27.2.1935. Mr. Anturkar submitted that under the preliminary decree as also the final decree, no specific share or property was allotted to Rambhau.
On the other hand, Mr. Sakhare submitted that specific share/property was allotted to Rambhau. Perusal of prayer (a) of Regular Civil Suit No.92 of 2011 instituted by Maruti Pandu Lonkar shows that he had prayed for effecting partition of the properties described in Schedule A, B and C by metes and bounds in four shares and for handing over separate possession of his 1/4th share. The suit lands form part of Schedule "A". On 19.12.1921 preliminary decree was passed ordering division of four equal shares of the properties by metes and bounds and thereafter handing over possession of one share to the plaintiff-Maruti. I do not find substance in the submission of Mr. Anturkar that Rama was not given any share in the preliminary decree and that partial partition was effected qua person, namely plaintiff Maruti, and that four parts were made only for the purpose of determining and carving out ¼ share for giving it to plaintiff Maruti as without identification it would not be possible ::: Downloaded on - 27/08/2013 20:30:32 ::: 19 / 37 SA/61&62/2002 to determine even Maruti's share. As noted earlier, Maruti had instituted suit for partition and by preliminary decree dated 19.12.1921 the properties were ordered to be partitioned by metes and bounds in four equal parts, out of which one was to be allotted to Maruti and, obviously, remaining parts were to be allotted to the defendants therein, namely defendant no.1 Shripati, defendant no.2 Bahiru, defendant no.3 Rama. In view thereof, I am of the opinion that under the preliminary decree share in the properties was allotted to Rama.
22. In so far as application dated 7.12.1932 made by defendant no.2 Bahiru and defendant no.3 Rama for passing final decree is concerned, it shows that by virtue of preliminary decree dated 19.12.1921, the plaintiff and defendant nos. 1,2 and 3 were obliged to pay yearly maintenance to defendant no.4 Radhabai and the properties were to be divided in four equal parts out of which one part was to be given to the plaintiff Maruti. During the pendency of this application, Rama died on 8.12.1933 leaving behind plaintiffs and two daughters. The other two daughters, viz. Sulochana and Sushilabai were married at the relevant time and the plaintiffs were minors. Perusal of the compromise dated 27.2.1935 shows that clause (1) declared that there are four sharers in the properties. Out of them, defendant no.3 Rama expired and his daughters succeeded his share. The ::: Downloaded on - 27/08/2013 20:30:32 ::: 20 / 37 SA/61&62/2002 value of all the properties was approximately Rs.12000/-. The heirs of Rama were entitled to properties worth Rs.3000/-
(being 1/4th share of Rs.12000/-). Individually, Rama was indebted to the tune of Rs.1200/-. The joint family was indebted to approximately Rs.1200/-. Rama was, therefore, indebted to Rs.1500/- (Rs.1200 individually + 1/4 th of joint family debts of Rs.1200/-, ie Rs. 300/- = Rs.1500/-). Thus, Rama was entitled to properties worth Rs.1500/-. After deducting Rs.300/-
towards marriage expenses of his daughters, he would be entitled to properties worth Rs.1200/-. If this property is divided in four shares (for daughters), the said property would be ruined and nobody will get anything. It was, therefore agreed that instead of demarcating/separating share of Rama, his daughters would be provided maintenance from the income of the suit lands during their life time.
23. Perusal of clause 1 of the compromise dated 27.2.1935 shows that it was agreed that the income generated from Survey No.26 and Survey No.31 may be divided in five parts. Out of the five parts, three parts would be allotted to the share of four daughters of Rama and two parts will be allotted to defendant no.4-Radhabai. The Compromise further provided that liability of payment of debt on the share of Rama will not be passed on his daughters or on their share in the suit lands. The said debt was ::: Downloaded on - 27/08/2013 20:30:32 ::: 21 / 37 SA/61&62/2002 agreed to be repaid by the other three co-sharers. The income from these lands will be paid to the daughters during their life time so long as one of the daughters is alive. After the demise of all the daughters, the income generated from the suit lands will be distributed in three equal sharers viz. the plaintiff and defendant nos 1 and 2.
24. Perusal of clause 2 shows that defendant no.4 would be paid towards her food and clothing during her life time and after her death to her widowed daughter Sonubai. After the demise of Sonubai, the income will be distributed among the three co-
sharers.
25. Perusal of clause 3 of the compromise shows that after the demise of four daughters of Rama and defendant no.4- Radhabai and her daughter-Sonubai, the suit lands will revert to three co-
sharers or their heirs in equal proportion.
26. Perusal of the compromise dated 27.2.1935 read with preliminary decree dated 19.12.1921 clearly shows : (i) that preliminary decree determined share of the plaintiff Maruti as also his three brothers -defendant nos. 1 to 3, which included Rama; (ii) that disruption of joint family status was clearly recognized (iii) that under the final decree, maintenance was not granted to the daughters of Rambhau till their attaining majority or till their getting married. The compromise provided that the ::: Downloaded on - 27/08/2013 20:30:33 ::: 22 / 37 SA/61&62/2002 daughters of Rama will succeed his share. In view thereof, I am of the opinion that the daughters of Rama have succeeded to the share of Rama. The allotment of share to Rama was also recognized both under the preliminary decree and the compromise dated 27.2.1935. Since it was not practicable to give separate share of Rama, it was agreed that his daughters would be provided maintenance during their life time from the suit lands. After the death of daughters of Rama, the suit lands were to revert to three co-sharers in equal proportion. In other words, the daughters were given maintenance in lieu of the property and that it was in recognition of their pre-existing right.
In my opinion, the present case is squarely covered by section 14(1) of the Act.
27. Mr. Anturkar, however, submitted that the plaintiffs were not possessed of the property and he submitted that unless and until the partition is effected by metes and bounds, it cannot be said that they are "possessed" of the property. In support of this proposition, he relied upon paragraph 20 of Kalyani's Judgment (supra). He submitted that partition in one sense is a severance of joint status and coparceners of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint ::: Downloaded on - 27/08/2013 20:30:33 ::: 23 / 37 SA/61&62/2002 family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a defacto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
28. In paragraph 20 of that report, it was observed that partition can be partial qua person and property but a partition which follows disruption of a joint family status will be amongst those who are entitled to a share on partition. It was further observed in that case that there was first a disruption of the joint ::: Downloaded on - 27/08/2013 20:30:33 ::: 24 / 37 SA/61&62/2002 family by specifying the shares in Ext.P-1. Looking to the terms of Ext.P-1 there was a disruption of joint family status, the shares were specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected. This certainly has effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the property without division by metes and bounds, they did not hold as joint tenants unless re-
union is pleaded and proved. After considering paragraphs 10 and 20 of that report, I am of the opinion that the said judgment is in favour of the plaintiffs rather than the defendant.
29. It is at this juncture relevant to note the decision of the Apex Court in the case of S.S.Munna Lal (supra). In that case, it was held by the Apex Court that the interest which a widow got by declaration of her share under a preliminary decree would fall within the ambit of section 14(1) and even though the widow did not get actual possession of the property until the final decree is passed, she would in law be deemed to be in possession of the property. In that case, the High Court had held that mere declaration of the share of the widow passed only an inchoate interest to her and she never came to possess the share within the meaning of Section 14 of the Act and, therefore, the ::: Downloaded on - 27/08/2013 20:30:34 ::: 25 / 37 SA/61&62/2002 property remained joint family property. The Apex Court reversed the Judgment of the High Court holding that once a preliminary decree was passed in favour of the widow granting her a share in the property she must be deemed to be in possession of the property in question. Their Lordships emphasized that the words "possessed by" used in Section 14(1) clearly indicated that such a situation was envisaged by the Legislation. While interpreting the provisions of Section 14, the Apex Court also pointed out that the Act was a codifying enactment which has been made far reaching changes in the structure of the Hindu society and object was to sweep away traditional limitations placed on the rights of the Hindu women. The Apex Court observed in that connection as under :
"The Act is a codifying enactment, and has made far- reaching changes in the structure of the Hindu Law of inheritance and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu Law as inherent in her estate.... Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu Widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume, that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the ::: Downloaded on - 27/08/2013 20:30:34 :::
26 / 37 SA/61&62/2002 right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property."
30. In view of the above decisions, I am clearly of the opinion that (i) there was disruption of the joint family status after passing of the preliminary decree (ii) specific property/share was allotted to Rambhau during partition and (iii) the plaintiffs were granted shares in the properties and, therefore, they must be deemed to have been in possession of the suit lands.
31. Mr. Anturkar heavily relied upon Section 543 of the Hindu Law. He contended that a father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained out of his estate. A daughter on marriage, ceases to be a member of her father's family, and becomes a member of her husband's family. Henceforth, she is entitled to be maintained by her husband, and, after his death, out of his estate (S.556). If the husband has left no estate, her father-in-law, if he has got separate property of his own, is morally, though not legally, bound to maintain her; but after his death, she acquires a legal right to be maintained out of his estate on the principle stated in Section 541. If she is unable to obtain maintenance from her husband, or after his death from his family, her father if he has got separate property of his own, is under a moral, though not legal obligation, to maintain her.
::: Downloaded on - 27/08/2013 20:30:34 :::27 / 37 SA/61&62/2002 However, it is not settled whether, after the father's death, she acquires a legal right to be maintained by his heirs out of his estate. In the case of Baimangal (supra), the Division Bench of this Court held that she acquires no such right.
32. Mr. Anturkar submitted that in view of Section 543 of the Hindu Law the suit instituted by the plaintiffs is liable to be dismissed. He also heavily relied upon Section 228 of the Hindu Law. He submitted that separate property is that property which is obtained as his share on partition by a coparcener. Section 228 refers to separate property as "proper" and not as separate "share". There has to be some specific property allotted to the coparcener and obtained by him before that property can be described as "separate property". Mere declaration of share which are incapable of being fluctuated is not enough. The stage of obtaining property can never occur at the stage of preliminary decree where only shares are determined. He also relied upon the decision of the Apex Court in the case of Ganduri Koteshwaramma (supra). In the case of Laxmappa (supra) the Apex Court considered Section 543 of Hindu Law and in paragraph 3 observed as under :
"The law on the subject was taken stock of by the High Court by quoting para 546 of Mulla's book on Hindu Law, 15th Edition, which provides that a Hindu father is bound to maintain his unmarried daughters, ::: Downloaded on - 27/08/2013 20:30:35 ::: 28 / 37 SA/61&62/2002 and on the death of the father, they are entitled to be maintained out of his estate. The position of the married daughter is somewhat different. It is acknowledged that if the daughter is unable to obtain maintenance from her husband, or, after his death, from his family, her father, if he has got separate property of his own, is under a moral, though not a legal, obligation to maintain her. The High Court has concluded that it was clear that the father was under an obligation to maintain the plaintiff-respondent. Seemingly, the High Court in doing so was conscious of the declaration made in the gift deed in which she was described as a destitute and unable to maintain herself. In that way, the father may not have had a legal obligation to maintain her but all the same there existed a moral obligation. And if in acknowledgment of that moral obligation the father had transferred property to his daughter then it is an obligation well-fructified. In other words, a moral obligation even though not enforceable under the law, would by acknowledgment, bring it to the level of a legal obligation, for it would be perfectly legitimate for the father to treat himself obliged out of love and affection to maintain his destitute daughter, even impinging to a reasonable extent on his ancestral property. It is duly acknowledged in Hindu Law that the Karta of the family has in some circumstances, power to alienate ancestral property to meet an obligation of the kind. We would rather construe the said paragraph more liberally in the modern context having regard to the state of law which has been brought about in the succeeding years. Therefore, in our view, the High Court was within its right to come to the conclusion that there was an obligation on the part of the father to maintain his destitute widowed daughter."
33. Apart from the above Judgments, Hon'ble Mr. Justice S.M.Fazal Ali has dealt with maintenance of daughters in the case of V. Tulasamma (supra). In paragraphs 8, 9 and 10, it was observed as under :
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8. "Colebrooke in his "Digest of Hindu Law', Vol. II, quotes the Mahabharata at p. 121 thus:
Where females are honoured, there the deities are pleased; but where they are unhonoured, there all religious acts become fruitless.
This clearly illustrates the high position which is bestowed on Hindu women by the Shastric Law."
9. ... ....
"Sastri quotes from the original texts various extracts regarding the nature and extent of the right of maintenance of the Hindu woman some of which may be extracted thus:
The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man's portion if they suffer: therefore he should care-fully maintain them.
The father, the mother, the Guru (an elderly relation worthy of respect) a wife, an offspring, poor dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained.- Manu, cited in Srikrishna's commentary on the Dayabhaga, ii, 28.
It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.- Manu cited in the Mitakshara while dealing with gifts.
The last extract clearly shows the imperative nature of the duty imposed on the owner of the property to maintain wife, aged mother, father etc. even at the cost of perpetrating a hundred misdeeds."
10. "Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus:
Property other than what is required for the maintenance of the family may be given.
The learned author highlights the importance of the right of maintenance as being a charge on the property of the husband and observes as follows:::: Downloaded on - 27/08/2013 20:30:35 :::
30 / 37 SA/61&62/2002 The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire a right to such property from the moment they become members of the family, by virtue of which they are at least entitled to maintenance out of the same. Such property cannot be sold or given away except for the support of the family: a small portion of the same may be alienated, if not incompatible with the support of the family.
There is no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will prejudicially affect the support of the group of persons who ought to be maintained. Hence heirs are bound to maintain those whom the last holder was bound to maintain."
34. In view of the Judgment of the Apex Court in the case of Laxmappa (supra), a Hindu father is bound to maintain his married daughters, and on the death of the father they are entitled to be maintained out of his estate. The father may not have had a legal obligation to maintain her but, all the same, there existed a moral obligation. And if in acknowledgment of that moral obligation the father had transferred property to his daughter, then it is an obligation well-fructified. In other words, a moral obligation even though not enforceable under the law, would, by acknowledgment, bring it to the level of a legal ::: Downloaded on - 27/08/2013 20:30:35 ::: 31 / 37 SA/61&62/2002 obligation. The Hindu Law also acknowledges that the Karta of the family has, in some circumstances, power to alienate ancestral property to meet an obligation of the kind.
35. I have already held that under the preliminary decree dated 19/12/1921, 1/4th share each was allotted to the plaintiff Maruti, Defendant No.1, Shreepati, defendant No. 2, Bahiru and defendant No.3, Rama. Under the compromise dated 27/02/1935, the daughters of Rama succeeded to his share. The allotment of share in the property to Rama was recognised both under preliminary decree and compromise dated 27/02/1935.
Since it was not practicable to divide share of Rama among his four daughters, it was agreed that Rama's daughter would be provided maintenance during their lifetime from the suit lands.
In other words, the daughters were given maintenance in lieu of the property and it was in recognition of their per-existing right.
The present case is squarely covered by section 14(1) of the Act.
36. Apart from the above, perusal of paragraphs 8, 9 and 10 of V.Tulasamma (supra) clearly shows that the ancestral immovable property is the hereditary source of maintenance of the members of the family, and the same is charged with the liability of supporting its members, all of whom acquire a right to such property from the moment they become members of the family, by virtue of which they are at least entitled to ::: Downloaded on - 27/08/2013 20:30:36 ::: 32 / 37 SA/61&62/2002 maintenance out of the same. Such property cannot be sold or given away except for the support of the family: a small portion of the same may be alienated, if not incompatible with the support of the family. There is no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will prejudicially affect the support of the group of persons who ought to be maintained. The group of persons includes the father, the mother, the Guru, a wife, an offspring.
37. In the light of the above discussion, I summarize my conclusions as under :
(i) On 19.12.1921, the preliminary decree was passed ordering division of four equal shares/parts in the properties by metes and bounds. One share each was allotted to the plaintiff Maruti, defendant no.1-Shripati, defendant no.2-Bahiroba and defendant no.3-Rama.
(ii) Clause (i) of the compromise dated 27.2.1935 declared that there are four sharers in the properties. Out of them, defendant no.3 expired and, therefore, his daughters succeeded his share. The value of the properties was approximately 12000/-.
Heirs of Rama were entitled to the properties worth Rs.3000/-
(being 1/4th share of Rs.12000/-). Having regard to individual ::: Downloaded on - 27/08/2013 20:30:36 ::: 33 / 37 SA/61&62/2002 debt of Rama and joint family's debt, Rama was entitled to property worth Rs.1500/-. After deducting Rs.300/- towards marriage expenses, Rama would be entitled to property worth Rs.1200/-. Thus, the compromise dated 27.2.1935 also fortifies that Rama was allotted share in the properties and after his death, his daughters succeeded his share. It was, however, felt that if the property allotted to the share of Rama was to be further divided in four equal shares for allotting it to his daughters, the said property would be ruined and nobody would get anything. It was, therefore, agreed that instead of demarcating/separating the share of Rama, his daughters would be provided maintenance from the income of the suit lands during their life time. In other words, the daughters were given maintenance in lieu of the property and that it was in recognition of their pre-existing right and consequentially the present case is squarely covered by Section 14(1) of the Act and Section 14(2) of the Act is not applicable.
(iii) Perusal of clause (1) of the compromise dated 27.2.1935 shows that it was agreed that the income generated from Survey nos 26 and 31 was to be divided into five parts. Out of the five parts, three parts would be allotted to the share of four daughters of Rama and two parts would be allotted to defendant no.4 Radhabai towards maintenance.
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(iv) Perusal of clause (3) of the compromise shows that after demise of four daughters of Rama and defendant no.4 Radhabai and her daughter Sonubai, the suit lands will revert to three co-
sharers or their heirs in equal proportion;
(v) After passing of the preliminary decree, there was disruption of joint family status;
(vi) Specific property/share was allotted to Rambhau during partition;
(vii) The plaintiffs were given shares in the properties and, therefore, they must be deemed to have been in possession of the suit lands. I, therefore, do not find any substance in the submissions advanced by Mr Anturkar.
38. Finally, Mr. Anturkar submitted that in any case, the findings recorded in the earlier suit, namely, Regular Civil Suit No.21 of 1964 will operate as res judicata in the present suit. He submitted that in that suit, the finding recorded to the effect that the suit lands were kept for maintenance of Rambhau's daughter and Radhabai as per final decree and the final decree did not mention that these lands were allotted to the share of deceased Rambhau. On the other hand, Mr. Sakhare submitted that no such plea was raised in the Written Statement. No evidence was adduced by defendant Yeshwant to substantiate that the suits are hit by principles of res judicata. In other words, he submitted ::: Downloaded on - 27/08/2013 20:30:37 ::: 35 / 37 SA/61&62/2002 that the defendant had waived that plea. He invited my attention to paragraphs 8,13,23,25,40 and 45 of the decision dated 31.8.1967 in Regular Civil Suit No.21 of 1964 as also paragraphs 19 to 21 and 24 of the decision dated 6.11.1968 in Civil Appeal No.850 of 1967. He also relied upon the decisions of (1) Wilfred Lovette (supra), (2) V.Rajeshwari (supra), (3) Makhija Construction and Engg.(P) Ltd (supra). In the present case, the Courts below have concurrently found that the defendant did not raise plea of res judicata in the Written Statement. He did not substantiate that plea by adducing evidence.
39. In view of the Judgments in the case of Wilfred Lovette (supra) and V.Rajeshwari (supra), it must be held that the defendant had waived that plea. Apart from that, the present defendant was one of the defendants and plaintiffs were also defendants in Regular Civil Suit No.21 of 1964 and in the case of Makhija Construction and Engg (P) Ltd (supra), it has been held that to apply rule of res judicata as between co-defendants, three conditions are requisite: (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided. In the facts and circumstances of the present case, in my opinion, the defendants have not fulfilled ::: Downloaded on - 27/08/2013 20:30:37 ::: 36 / 37 SA/61&62/2002 all the three conditions. I, therefore, do not find any substance in the submission of Mr. Anturkar that the present suit is barred by principles of res judicata. In the result, I do not find any merits in the submissions advanced by Mr. Anturkar. Both the Courts below have decreed the suit instituted by the plaintiffs. The Courts below have rightly applied the general principles in determining the questions as also they have correctly applied law in the facts and circumstances of the case. The findings recorded by the Courts below are based upon appreciation of evidence on record. It cannot be said that the findings recorded by the Courts below are either perverse or based upon no evidence. In the light of the aforesaid discussions, the Appeals fail and the same are dismissed. In the circumstances of the case, there shall, however, be no order as to costs.
40. Before parting, I place on record the valuable assistance rendered by Mr.A.V.Anturkar and his instructing Advocates, appearing on behalf of the appellants, Mr. V.S.Kapse appearing on behalf of respondent no.1(g),1(h) and 1(i) and Mr. A.Y.Sakhare and his instructing Advocates appearing on behalf of respondent no.2.
41. At this stage, Mr.Anturkar orally prays for continuation of the interim order that was operating during the pendency of these appeals for a period of 8 weeks from today.
::: Downloaded on - 27/08/2013 20:30:37 :::37 / 37 SA/61&62/2002 He further states that within 2 weeks from today, the appellants and all adult members residing with the appellants will give undertaking to this Court incorporating therein that i) they are in possession of the suit lands and nobody else is in possession; ii) that they have neither created third party interests nor parted with possession and iii) that they will hereafter neither create third party interest nor part with possession.
Subject to the appellants filing the undertaking in this Court within 2 weeks from today, interim order that was operating during the pendency of these appeals, shall remain in force for a period of 8 weeks from today. Order accordingly.
(R.G.KETKAR,J.) ::: Downloaded on - 27/08/2013 20:30:37 :::