Bombay High Court
Devidas S/O Udhao Gaurkar And Ors. vs Smt. Vithabai W/O Laxman Dhengale And ... on 17 April, 2008
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. This second appeal is at the instance of the defendants against whom a decree has been passed by the first appellate court. The parties shall hereinafter be referred to as plaintiff and defendants.
2. The facts giving rise to the appeal are as follows-
One Arjuna Ragho was a resident of village Padmapur. He had four sons by name Bholu, Zolu, Udhav and Madhav. His Second Appeal No. 127 of 1996, widow Laxmibai expired in the year 1968. Bholu, Zolu and Udhav are also dead. The plaintiff is the daughter of Zolu while the defendants are the heirs of Udhav and Madhav. Bholu died issueless. The pedigree of the family is as follows-
Arjuna |
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Laxmibai Bholu (son) Zolu (son) Udhav Madhav
(widow) (deceased) (deceased) (son) (son)
expired | dead. |
On 18.9.68. | -------------------------
Vithabai Gayabai Ramdas
(daughter) (wife) Namdeo (son)
Plaintiff. Mala (daug.)
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Devidas Taibai Sitabai (widow)
(son) (daughter)
|
|
------------------------------------------------
Jijabai Vinod Vikas Ku. Surekha
(wife) (son) (son) (daughter).
3. Arujuna had left behind him the property as described in the plaint paragraph No. 2. The plaintiff submits that it was the Hindu joint family property. There was no partition amongst Arjuna and his sons. The plaintiff being daughter of Zolu has 1/3rd share. The plaintiff, after her marriage, started residing at Second Appeal No. 127 of 1996. Padampur and was cultivating land survey No. 20. Although there was no partition, the plaintiff was cultivating survey No. 20 while defendant No. 13 and deceased Udhav were cultivating and possessing the land separately. The plaintiff was in possession until 1984-85. Thereafter, taking advantage of the illiteracy of the plaintiff, the defendants removed the name of the plaintiff from the revenue record. Defendants No. 1 and 13 had got their names mutated in respect of the suit property. It is alleged that the land has been acquired by defendant No. 15 and a compensation of Rs. 95,612/- has been received by defendant No. 13 without the consent of the plaintiff. The plaintiff submits that she has 1/3rd share in the suit property and therefore, prays for declaration that the suit property is the joint property of plaintiff and defendants, and plaintiff has 1/3rd share in it and defendant No. 15 be restrained from making payment of 1/3rd share. She also prayed for cancellation of employment granted to the other defendants by defendant No. 15.
4. The suit was resisted by defendant Nos. 1 to 14 by filing Second Appeal No. 127 of 1996, their written-statement. The defendants denied that the plaintiff is the heir of deceased Arjuna. They, however, admit relationship of defendants with deceased Arjuna but in the subsequent paragraph, the defendants do admit the genealogical tree. It is contended by the defendants that the plaintiff could not be heir of deceased Zolu and she has no share as claimed by her. The defendants deny the allegations as are made by the plaintiff. The defendants contend that Arjuna died in 1936 while Zolu died in 1935. The property was acquired by Udhav and not by Arjuna. Udhav died in 1986. The widow of Arjuna died in 1968. The defendants contend that since the plaintiff is not the heir of Zolu, she could not succeed to the estate of Zolu.
5. Defendant No. 15 had filed written statement and denied all allegations for want of knowledge. It is the contention of defendant No. 15 that the land has been acquired as it is a coal bearing land. The land has now vested in the Central Government and this court has no jurisdiction to interfere in the suit. Second Appeal No. 127 of 1996.
6. The learned Civil Judge found that the plaintiff was not the heir and therefore, could not succeed to the estate of Arjuna. He also found that it is not proved by the plaintiff that the property belongs to Arjuna. He further found that the plaintiff had failed to prove that she was in possession of survey No. 20. Holding so, the learned judge dismissed the suit.
7. The first appellate court, however, did not concur with the findings of the Trial Court. He found that the plaintiff being daughter of Zolu was a Class-I heir and therefore, was entitled to 1/3rd share. Holding so, he passed a decree to the effect that the plaintiff has 1/3rd share in the suit property described in para No. 2 and restrained defendant No. 15 from paying 1/3rd share of the compensation to the defendant. Holding so, he allowed the appeal. Being aggrieved by that, this second appeal has been preferred.
8. This second appeal was admitted by Kulkarni, J. on the following substantial question of law. Having heard the learned advocate appearing on Second Appeal No. 127 of 1996. both sides, it seems that on the death of Arjuna in the year 1936, the succession opened and while determining the shares for partition thereafter daughter of one of predeceased sons of Arjuna named Zolu has been considered entitled to a share. Shei Dharmadhikari contends that this itself raises a substantial question of law that when Arjuna died while he was joint along with his other sons, the property devolved by survivorship and not by succession. Arjuna was not alone but he formed joint family along with his other sons. According to him, therefore, Arjuna having not died after 1956, a daughter receiving any share in his property is against the law. Prima facie as to the tenability of this proposition as a substantial question of law, there is no debate.
9. I have heard the learned counsel for the appellants. None appears for the respondents.
10. The plaintiff has claimed 1/3rd share in the suit property being daughter of Zolu. It is the case of the plaintiff that Zolu was son of one Arjuna and she is daughter of Zolu. Second Appeal No. 127 of 1996.
11. The pleadings are very strange. It is alleged that Arjuna and Laxmibai at the time of death left behind them property in suit. It is further alleged that the plaintiff and defendants being heirs of Arjuna and Laxmibai succeed to the estate of Arjuna and Laxmibai and as such plaintiff has 1/3rd share. We have seen that the plaintiff has further alleged that there was no partition between Arjuna and his four sons. As such it could be said that the property was joint. Undisputed fact is that Arjuna died in 1936 and Zolu died in 1935 i.e. he predeceases his father. Even, according to plaintiff's pleading, no partition had ever taken place between Arjuna and his sons. Zolu the father of the plaintiff having died prior to coming into force of the Hindu Succession Act, 1956 the case will be governed by the Customary or Shastrik Hindu Law. Therefore, the only material question is whether the plaintiff could as daughter of Zolu succeed to the share of Zolu in the coparcenery property of Arjuna and his sons. We have seen that Zolu . father of plaintiff - predeceased his father. The learned judge of the first appellate court applied Hindu Succession Act, 1956 to the present case. He Second Appeal No. 127 of 1996, held that the plaintiff was the class-I heir of his father and therefore, entitled to succeed to his share in the coparcenery. The learned judge has clearly fallen in error. It is an admitted fact that Zolu died in 1935. Thus, when he died and succession opened, 1956 Act had not come into force. The Hindu Succession Act is not retrospective in operation. As a result, as observed above, the case will have to be governed by the Shastrik Hindu Law.
12. Zolu, when died in 1935 was joint with his father and brothers. Therefore, his share in the coparcenery would devolve by survivorship and not by succession. Zolu did not hold any separate property admittedly and therefore, there was no question of property passing over by succession. The following illustration to Section 24 in Mulla's Hindu Law 19th Edition shall be enough to unfortunately negative the claim of the plaintiff. The case is squarely covered by this illustration. (1) A and B two Hindu brothers, governed by the Mitakshara School of Hindu Law, are members of a joint and undivided family. A dies leaving his brother B and a daughter. A's share in the joint Second Appeal No. 127 of 1996 family property will pass to his brother, the surviving coparcener, and not to his daughter. However, if A and B were separate, A's property would on his death pass to his daughter as his heir. The plaintiff due to the above proposition of law was not entitled to succeed to the estate of her father. The persons on whom the share of Zolu devolved were his brothers and father by survivorship. The share could not devolve on the daughter by succession since the plaintiff herself pleads that the property was joint and there was no partition. It was, therefore, not a separate estate of Zolu so that rule of succession could be applied. The property therefore passed over by survivorship in favour of brothers and father who were coparceners. The substantial question of law is answered accordingly. The suit was, therefore, liable to be dismissed. The appeal is, therefore, allowed. The Judgment and decree of the first appellate court is set aside and that of the Trial court restored. Costs shall be as incurred.