Bombay High Court
Badriparasad Jagannath Agrawal And ... vs Madhu Dr. Harindrakumar Lahiri, Smt. ... on 25 March, 2008
Equivalent citations: AIR 2009 (NOC) 1271 (BOM.) (NAGPUR BENCH), 2009 (2) AIR BOM R 142 2009 A I H C 2015, 2009 A I H C 2015, 2009 A I H C 2015 2009 (2) AIR BOM R 142, 2009 (2) AIR BOM R 142
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. By this Second Appeal the original plaintiff. Badriprasad as also subsequent purchaser from him, Sunil seek to challenge the concurrent judgment and decrees delivered by the Courts below. Badriprasad along with one Shaileshkumar filed Regular Civil Suit No. 102/1983 for recovery of possession of the suit house on the basis of title against the present respondent. Plaintiff No. 2 -Shaileshkumar claimed that defendant No. 2 Smt. Godawaribai [present respondent No. 2], was not legally weeded wife of his father deceased -Harindrakumar and also her son Madhu was therefore not legitimate child of Harindrakumar. He claimed that both of them were licencees in respect of two rooms of the suit house and their licence was terminated. Shaileshkumar sold suit house to Badriprasad on 21.02.1983. The defendant No. 1 and 2 [present respondent Nos. 1 and 2] denied all these allegations and claimed legal status as also legal heir-ship. They further stated that the plaintiff No. 2 Shaileshkumar was not the exclusive owner of the suit house, but he was acting as karta of the family after the death of his father, and suit house was purchased out of funds left behind by deceased Harindrakumar. On the basis of these pleadings the trial court recorded evidence and found that Harindrakumar retired in 1957 and at that time he got amount of Rs. 6000/-towards provident fund. It found that this amount constitute nucleus and through it the suit house was purchased for Rs. 4000/-by Shaileshkumar on 20.03.1962. In view of this findings and also other findings it held that the original defendant being family members and legal heirs of Harindrakumar were entitled as of right to occupy the said two rooms in the said house and therefore, dismissed the suit. The purchaser Badriprasad and his vendor Shaileshkumar together filed Regular Civil Appeal No. 330/1985, and 6th Additional District Judge, Nagpur has dismissed that appeal on 4.2.1992. Thereafter Badriprasad alone filed this Second Appeal on 16.07.1992, which came to be admitted on 22.07.1992 without formulating any substantial question of law.
2. On 18.09.1992 the appellant. Badriprasad sold suit house to one Sunil Hazare. Civil Application No. 5657/1999 was then moved by the said Sunil for joining him as appellant No. 2. This Court has on 11.1.2005 granted that prayer. Vendor Shaileshkumar is respondent No. 3 in this Second Appeal.
3. In this background I have heard Advocate Shri A.M. Gordey, for appellant and Advocate Shri N.A. Vyawahare, for respondents on 10.03.2008, 11.03.2008, 12.03.2008 and 13.03.2008. During last hearing i.e. on 10.03.2008, Advocate Shri Gordey, pointed out that Harindrakumar as also Shaileshkumar are Bengali who have migrated to this area because of service of Harindrakumar, as medical officer in private Coal Mines. He therefore, contended that the parties were not governed by 'Mitakshara' School of Hindu Law and 'Dayabhaga' School of Hindu Law will apply to them. Accordingly on 12.03.2008 the appellant No. 2 filed Civil Application No. 1951/2008 to raise additional substantial question of law about the applicability of Dayabhaga School of Hindu Law. The parties were thereafter heard for some time and on 18.03.2008 the appellant No. 2 has filed an application under Order 22 Rule 10 for impleading him as plaintiff No. 3 in the Civil Suit No. 2174/2008. Civil Application No. 2175/2008 has been filed by the appellant No. 2 under Order 6 Rule 17, to raise a issue of Dayabhaga by amending plaint before the trial Court. Civil Application No. 2182/2008 has been filed by the appellant No. 1 for the very same purpose. On 18.03.2008 itself Advocate Shri Gordey, filed Vakalatnama on his behalf. Applications have been strongly opposed by Advocate Shri Vyawahare, for respondent Nos. 1 and 2. No body has appeared for respondent No. 3 / original plaintiff No. 2.
4. Advocate Shri Gordey, has by placing reliance upon the judgment of Hon'ble Apex Court reported at (K.V. Narayanaswami Iyer v. K.V. Ramkrishna Iyer and Ors.) as also AIR 1969 SC 1976 (Mudigowada Gowdappa Sankh v. Ramchandra Revgowda Sankh), contended that the courts below have erroneously presumed that amount of Rs. 6000/-left behind by the deceased Harindrakumar was available to Shaileshkumar or it constitute nucleus through which the suit property came to be purchased. He invites attention to the evidence on record to show that Shaileshkumar had his own independent income and as such the purchase of suit house was through his own income and not through any amount left behind by Dr. Harindrakumar. He further contends that as parties are governed by Dayabhaga Law, the parties are not joint tenant but tenant in common and as such the question of existence of nucleus or question of Shaileshkumar acting as karta of family does not arise at all. He contends that even if amount of Rs. 6000/-is presumed to be available in the hands of Shaileshkumar, the entitlement of respondent Nos. 1 and 2 would be to their proportionate share in said amount of Rs. 6000/-and they cannot demand any co-ownership in the suit house which is admittedly purchased in the name of Shaileshkumar. He places reliance upon the judgment of Hon'ble Apex Court reported at (Vimla Bai v. Hiralal Gupta and Ors.), to state that Dayabhaga law applies to Shaileshkumar and his property, the issue of Dayabhaga law has been lost sight of by both the courts and matters have been decided as if parties are governed by Mitakshara law and therefore, there is error apparent on the face of record. It is contended that the question goes to very root of the matter and as it was not raised, Civil Application No. 1951/2008 has been filed before this Court seeking leave to raise it. Attention is also invited to other application mentioned above, stating that in case remand is found necessary as appellant No. 2 is now the owner of the entire suit house and present appellant No. 1 / original plaintiff No. 1, has no interest in it, the suit should be allowed to be prosecuted by the present appellant No. 2, in view of the provisions of Order 22 Rule 10, as he represents the estate. It is pointed out that this status and capacity of the appellant No. 2 is already accepted by this Court while passing the order on Civil Application No. 5657/1999 on 11.01.2005. Advocate Shri Gordey, further states that two separate applications seeking permission to amend the plaint are filed by appellants only to avoid any technical problem, in the event of remand and in the event of adverse decision or any orders on Civil Application No. 2174/2008. He states that the subject matter sought to be incorporated by amendment through both the applications is one and the same.
5. Advocate Shri Gordey, further contends that the evidence on record does not satisfy the requirement of law to support conclusion that the respondent No. 2 is legally married wife of deceased Harindrakumar. He states that as she is not legally wedded wife and even otherwise, she is not entitled to claim any share in the suit house.
6. Advocate Shri Vyawahare, on the other hand contends that the findings about status of respondent Nos. 1 and 2 as legal heirs of deceased Harindrakumar is concurrent one and has been delivered after appreciation of evidence. According to him therefore no substantial question of law arise in that respect. He further contends that the fact of receipt of amount of Rs. 6000/- by the deceased Harindrakumar towards provident fund after his retirement is also not in dispute and infact the said amount was with Shaileshkumar is concurrently found by both the courts. He states that in any case the said amount or its portion is not given to the present respondent Nos. 1 and 2. In the circumstances, according to him in view of the judgment of the Hon'ble Apex Court on which Advocate Shri Gordey has placed reliance, existence of nucleus has been established. The purchase of suit house must be presumed to be through it and therefore, the suit house constituted joint family property. In reply to all the four applications filed on record, the learned Counsel points out that Shaileshkumar never took the plea either before the trial court or before the appellate court that he was governed by some other personal law. He contends that the fact that there was a joint hindu family, that Shaileshkumar acted as Karta and purchased the suit house in 1962 for benefit of joint family was very much pleaded by the present respondent Nos. 1 and 2. In this background according to him such a plea cannot be allowed to be raised for the first time in Second Appeal as it is a disputed question of fact. He invites attention to the judgment of Hon'ble Apex Court in the case of Vimla Bai (supra), to support his contention. He points out that such a plea cannot be raised by the subsequent purchaser at all. According to him, all applications are therefore without any substance and liable to be dismissed. Lastly he argues that Shaileshkumar as also the present appellant No. 1 has permitted the suit as also appeal to be prosecuted as if parties are governed by Mitakshara School of Hindu Law. He further states that in Second Appeal initial arguments advanced were only on these lines and hence by their conduct the appellants have dis entitled themselves from raising such a plea at such belated stage. He contends that law of estopoel has to operate against them in such facts.
7. Perusal of judgment of Hon'ble Apex Court in the case of Mudigowda (supra), particularly paragraph No. 6 shows that the burden of proving that any particular property is joint family property in the first instance is upon a person who claims it as coparcenery property. The Hon'ble Apex Court has stated that if possession of nucleus of joint family is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. The Hon'ble Apex Court has clarified that this is subject to limitation that joint family property must be such as with its aid the property in question could have been acquired. Same principle has been reiterated by the Hon'ble Apex Court in the judgment in the case of K.V. Narayanaswami (supra).
8. In facts before me, it is not in dispute that deceased Harindrakumar i.e. father of Shaileshkumar was serving as Medical Officer at C.P. Manganese Ore Company at Kandri Mines. His wife expired on 20.09.1946. Though the present appellants have contended that there is no marriage between Harindrakumar and present respondent No. 2, and as such respondent No. 2 did not acquire any legal status, the courts have concurrently found against the appellants and said findings cannot be labeled as perverse. The defendant No. 1 Madhu is born to the defendant No. 2 [respondent No. 2] from Harindrakumar. Even after purchase of suit house in 1962 by Shaileshkumar all family members were residing together and in 1965 only respondent Nos. 1 and 2 shifted to two rooms in the suit house. The respondent No. 1 and 2 vide their written statement Exh.14, clearly came up with a case that Shaileshkumar was acting as karta of family after the death of his father Harindrakumar and suit house was purchased through funds left behind by Dr. Harindrakumar. The challenge is only to finding about funds left behind by Dr. Harindrakumar. There is no serious challenge to the findings that Shaileshkumar was acting as Karta after death of Harindrakumar. Shaileshkumar himself has admitted that his father retired from service some time in 1957 and at that time he got amount of Rs. 6000/-towards provident fund. Being Karta or the eldest son surviving deceased, it is apparent that amount was available to Shaileshkumar. In any case it was never the plea of Shaileshkumar that such amount was spent by Harindrakumar or was not available after his death to the family. In 1962 suit house was purchased for Rs. 4000/-and thus Harindrakumar had left behind enough amount to purchase the suit house. Thus existence of nucleus and its adequacy are both established in present facts. The burden was therefore upon Shaileshkumar to demonstrate that he purchased the suit house from his own income. There is absolutely no evidence in this respect adduced either by Shaileshkumar or by the plaintiff No. 1, who has purchased the property subsequently from him. In these circumstances, the concurrent findings about the nature of suit property being joint hindu family cannot be assailed in this Second Appeal, and no substantial question of law arises on that account.
9. This brings me to consideration of four applications mentioned above. As is apparent the present appeal was also argued under the impression that the parties are governed by Mitakshara Hindu Law. On penultimate date issue of Dayabhaga School governing them was raised for the first time orally and on the next day the ruling of Hon'ble Apex Court in the case of Vimlabai (supra), was cited. In the said ruling also the Hon'ble Apex Court has held that in India a Hindu is governed by his personal branch of law which he carries with him wherever he goes. But the law of province wherein he resides prima facie governs him and in this sense and to this extent only the law of domicile is of relevance. Presumption in case of a person who has migrated, is that he continues to be governed by law or by such custom by which he would have been governed in his earlier home at the time of migration. The Hon'ble Apex Court has also held that presumption can be displaced by showing that the immigrant had renounced the law of the place of his origin and adopted the law of the place to which he had migrated. The Hon'ble Apex Court has held that onus lies on the person alleging that the family had renounced the law of its origin and adopted that prevailing in the place to which he had migrated. Therefore, in the present facts, the issue of Dayabhaga is sought to be raised only because the parties are Bengali. There is no plea that parties migrated from particular area for particular purpose and they retained Dayabhaga as their personal law. The present Civil Application Nos. 2175/2008 and 2182.2008 are moved for incorporating plea in this respect in the plaint. The proposed amendment only mentions of bare facts, without any details in support thereof and as canvassed by the learned Counsel for respondent, there is no explanation why such a plea was not raised earlier. In the present facts it is also apparent that such a plea ought to have been raised by Shaileshkumar, the present respondent No. 3 who was original plaintiff No. 2 before the trial court. Shaileshkumar has preferred not to challenge the adverse judgment delivered by the trial court and lower appellate court any further. He has preferred not to appear in present Second Appeal also. Thus the disputed question of fact is sought to be raised for the first time in Second Appeal by the subsequent purchaser and it is obvious that they cannot succeed in it without assistance of Shaileshkumar. In the circumstances, I am not inclined to allow any of these applications. With the result, all the Civil Applications are rejected.
10. For the reasons recorded above, I find that no substantial question of law arises in the second appeal. Second appeal is dismissed. No cost.