Bombay High Court
Appa Babaji Misal Patil And Others vs Dagdu Chandru Misal, Since Deceased By ... on 7 February, 1995
Equivalent citations: AIR1995BOM333, 1995(2)MHLJ765, AIR 1995 BOMBAY 333, 1995 (2) BOM CJ 437, (1996) 1 ALLMR 291 (BOM), (1995) 2 MAH LJ 765, (1996) 1 CIVLJ 257, (1996) 4 CURCC 126
ORDER PENDSE, J.
1. These two appeals raise an interesting question of Hindu Law relating to succession of property inherited by a woman prior to Hindu Succession Act, 1956. It is necessary to set out the relevant facts to appreciate the question involved in these two appeals.
The land bearing survey No. 114 of Village Chinke in Sangola Taluka of Solapur District admeasures 28 acres and 33 gunthas. The land originally belonged to one Sukhdeo who was a common ancestor. The geneology of Sukhdeo is as under :--
(See geneology below) Sukhdeo had three sons Balu, Yesu and Sheshappa. Yesu died of young age and his branch was extinct. Balu had two sons, Shahaji and Ijappa. Ijappa's Son is Chandru and Chandru's son is plaintiff. Sheshappa had two sons, Pandu and Daji and Daji had two children, Bajrang and Kasabai. Krishnabai, a widow of Daji died in the year 1940. Dagadu, original plaintiff, claims that a partition was effected between Ijappa, Shahaji and Sheshappa prior to year 1912 and land allotted to the share of Seshappa bears survey No. 114/1 while the land allotted to the branch of Balu bearing survey No. 114/2. In the year 1928, falni measurements were carried out and land bearing survey No. 114/2 admeasuring 18 acres and 39 gunthas and land bearing survey No. 114/1 admeasuring 3 acres and 33 gunthas were shown in the names of Aba and Dagadu and Kasabai respectively. The mutation entries were then effected accordingly and the name of Kasabai was entered in the revenue record as owner of the land in dispute.
2. After the death of Sheshappa in the year 1912, his son Daji died in the year 1914 leaving behind his widow Krishnabai, son Bajrang and daughter Kasabai. The property which had fallen to the share of Seshappa was inherited by Daji and after his death by Bajrang. After the death of Bajrang, the property was held by his mother Krishnabai and after the death of Krishnabai, by Bajrang's sister Kasabai. On December 18, 1942 Kasabai sold 5 acres and 9 gunthas of land to Lochanabai by registered sale-deed. Lochanabai is mother of defendants Nos. 1 and 2 and to this document, the plaintiff is the attesting witness. Mutation entry was effected in the year 1942. Entry in the property card was made in the name of Lochanabai after notice of change was served on plaintiff. On May 6, 1969 defendant No. 1 sold 1/6th share of the land in dispute to defendant No. 3 while on May, 29, 1969 defendant No. 2 sold 1 ,/4th share to one Pitambare. There two sale-deeds were challenged by plaintiff by filing two suits on April 10, 1970. The plaintiff claimed that defendant Nos. I and 2 had no right, title and interest to the suit property. The plaintiff asserted that after the death of Bajrang the property should have reverted back to Dagadu and could not have been inherited by Krishnabai or Kasabai. The plaintiff did not refer to the fact of partition prior to year 1914 in the plaint but unequivocally admitted the same in the witness box. Both the suits were resisted and it was claimed that the property became separate property of Bajrang on the death of Daji, Bajrang being sole surviving co-parcener and after the death of Bajrang, it was inherited by Krishnabai. On the death of Krishnabai in the year 1939, the property was inherited by Kasabai being sister of Bajrang and consequently, the sale-deeds effected by Kasabai in the year 1942 were perfectly legal and valid. The defendants also claimed that in the alternative, the plaintiff has lost the title to the suit property because the property was held adversely by Kasabai from year 1939 onwards. The trial Judge by Judgment dated December 22, 1978 held that the plaintiff established title to the suit land as after the death of Bajrang the property must reverted back to the plaintiff who was the surviving co-parcener in the branch of Balu. The trial judge negatived the claim of the defendants of acquisition of title by adverse possession. On the strength of these findings, the trial Judge decreed both the suits and two appeals were carried before the District Court, Solapur being Civil Appeal No. 58 of 1979 and Civil Appeal No. 40 of 1979. The Assistant Judge, Solapur dismissed both the appeals by judgment dated December 29, 1980, by holding that the partition between the branches of Balu and Sheshappa was not established and therefore on the death of Bajrang, his share would not devolve on his mother Krishnabai, but would revert back to the male co-parcener Dagadu. The lower Appellate Court held that Kasabai had no interest in the land which was sold. The lower Appellate Court concurred with the finding of the trial Judge that the defendant failed to establish acquisition of title by adverse possession and the plaintiff was not estopped from disputing the title of Kasabai. Against the decision recorded by lower Appellate Court, two second appeals being second appeal No. 531 of 1981 and 532 of 1981 are preferred by original defendant Nos. 1 to 4. As common question of law arises in both the appeals, the two appeals are disposed of by common judgment.
3. Shri Agrawal, learned counsel appearing on behalf of the appellants, submitted that the lower Appellate Court was in error in ignoring the specific evidence given by the plaintiff, asserting that the partition was effected prior to year 1914 between the branches of Balu and Sheshappa. The learned counsel urged that the positive claim made by the plaintiff was bypassed by lower Appellate Court only on the ground that the case of partition was not specifically pleaded in the plaint and issue was not struck by the trial Court on the fact of partition. In our judgment, the complaint of Shri Agrawal on this aspect is correct because pleadings are not the evidence and a party who deposes in the witness box, cannot be permitted to turn around and claim that the fact of partition should be ignored because it was not averred in the pleadings. On perusal of the testimony of the plaintiff, it is clear that the plaintiff deposed that Ijappa, Sheshappa and Daji, son of Sheshappa partitioned the land between themselves. The specific statement made in the evidence is sufficient to conclude that partition was effected prior to year 1914 between the branches of Balu and Sheshappa and the suit land had fallen to the share of Daji.
4. Shri Agrawal submits that after the death of Daji in the year 1914, the property was inherited by his son Bajrang and Bajrang being the sole surviving co-parcener, the property in the hands of Bajrang became a separate property. It is well settled that the property in the hands of the sole surviving co-parcener becomes separate property and the property including co-parcenery property will pass in the hands of surviving members by succession. A reference can be usefully made to Mulla's Hindu Law, paragraph 34(2). Shri Agrawal submits that right of succession to males in Bombay State is in accordance with the Mitakshara school and the same can be referred in paragaph 72 of Mulla's Hindu Law. The mother is shown at serial No, 9 and in absence of son, sons's son, daughter, daughter's son, mother of Bajrang is entitled to succeed to the estate of Bajrang. Bajrang's mother Krishnabai was alive in the year 1917 when Bajrang died and according to the Mitakshara school, Krishnabai succeeds to the estate of Bajrang. Krishnabai, being widow, it is necessary to determine what was the nature of interest held by Krishnabai during her lifetime.
5. Mulla's Hindu Law sets out the right inherited by females from males under the Bombay School in paragraph 170(2) as follows:--
"(2) As regards property inherited from males, female heirs under the Bombay school are divided into two classes, namely:--
(i) those who come into the gotra of the deceased owner, by marriage, that is, the wife of the deceased and the wives of his sapindas and samanodakas and
(ii) those who are born in the gotra of the deceased owner, but pass by marriage into a different gotra, and their daughters. This class includes a daughter, son's daughter, daughter's daughter, sister, niece, grandniece, father's sister and the like."
In Bombay province, it is well settled position that females coming under clause (i) are widow, mother, father's mother, father's father's mother and widow of gotraja sapindas i.e. son's widow, brother's widow, uncle's widow etc. When the property is inherited by females from males, on their death the property passes not to their heirs, but to next heir of the male from whom they inherited it. In view of the said position, Krishnabai, the mother of Bajrang took only a limited estate in the property inherited from Bajrang and on the death of Krishnabai, the property must revert back to the next heir of Bajrang.
6. It is therefore necessary to ascertain who was the next heir of Bajrang and turning back to paragraph 72 of Mulla's Hindu Law, full sister appears at serial No. 14 in the absence of father, brother, brother's sons and grand-mother after the death of Krishnabai. Kasabai being the full sister of Bajrang is therefore entitled to succeed to the estate after the death of Krishnabai, in the year 1939. Kasabai being born in the gotra of deceased Bajrang takes the property absolutely i.e. Kasabai becomes full owner thereof. The Bombay School recognised that such property in the hands of Kasabai became a stridhan. Shri Agrawal submits and in our judgment with considerable merit that after the year 1939, Kasabai inherited the said estate in accordance with order of succession to males in Bombay State being the full sister of deceased Bajrang and the estate in the hands of Kasabai became absolute and Kasabai was entitled to dispose of the property as the full owner thereof. Shri Agrawal submits that Kasabai had disposed of the suit property by registered conveyance on December 18, 1942 and that alienation cannot be challenged by the plaintiff.
Shri Mengane, learned counsel appearing on behalf of the original plaintiff, urged that the property must revert back after the death of Bajrang in the year 1917 to the plaintiff who was the co-parcener in the branch of Balu. The submission cannot be accepted in view of settled position in Bombay State that Bajrang had no concern with the co-parceners in the branch of Sheshappa. The property would go to Krishnabai and after the death of Krishnabai, to Kasabai. In our judgment, the Courts below were in error in holding that the plaintiff will succeed to the estate of Bajrang after the year 1917.
7. The findings of the two Courts below that the defendants have no case to claim the title by adverse possession and the plaintiff cannot be estopped from disputing title of Kasabai are also not correct. The evidence clearly indicates that from 1930 onwards, the name of Kasabai was recorded in the revenue record being the owner of suit property. On December 18, 1942 Kasabai sold the suit properly to Lochanabai and to this sale-deed, plaintiff was attesting witness. Plaintiff never complained at any time that Krishnabai or Kasabai were not entitled to hold the property and in any event, when Kasabai became absolute owner in the year 1939, plaintiff did not claim any title to the suit property. Indeed, the plaintiff signed as attesting witness when Kasabai, as absolute owner, sold the suit property to Lochanabai. This conduct of the plaintiff and the fact that the suit was instituted only in April 1970 are telltale circumstances to indicate that the defendants had perfected title by adverse possession even if it is presumed that Kasabai was not absolute owner. In our judgment, the two Courts below were in error in passing decrees in favour of the plaintiff and the same are required to be set aside.
8. Accordingly, Second Appeal No. 531 of 1981 and Second Appeal No. 532 of 1981 are allowed and judgment and decree dated December 22, 1978 passed by Civil Judge, Junior Division, Sangola in Regular Civil Suit No. 39 of 1970 and Regular Civil Suit No. 40 of 1970 and confirmed by Assistant Judge, Solapur in Civil Appeal No. 40 of 1979 and Civil Appeal No. 58 of 1979 on December 29, 1980 are set aside and both the suits stand dismissed. In the circumstances of the case, there will be no order as to costs.
9. Appeals allowed.