Bombay High Court
Sadashiv Bhikaji Pathak vs Mukund Annaji Pathak & 2 Others on 9 February, 2016
sa.99.99+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO.99/1999
with
CROSS OBJECTION (ST) NO.9627/2000
&
SECOND APPEAL NO. 111/1999
SECOND APPEAL NO. 99/1999:
Sadashiv Bhikaji Pathak
Through his Legal Representatives :
1. Digambar s/o Sadashiv Pathak
Aged about 64 years, R/o Nandura
Tq. Nandura, Dist. Buldhana.
2. Nilkanth s/o Sadashiv Pathak
Aged about 53 years,
R/o Nandura, Tq. Nandura
Dist. Buldhana. ... ...APPELLANTS
v e r s u s
1) Mukund Annaji Pathak
Aged 43 years, occu: priest and Agriculturist
of Warna Tq.Khamgaon, Dist.Buldhana.
2) Shri Suresh Laxman Joshi
Aged 50 years, R/o Warna Tq. Khamgaon
Dist. Buldhana.
3) Smt. Sushilabai wd/o Annaji Pathak
Aged 68 years, occu: Household
R/o Warna, Tq. Khamgaon Dist. Buldhana. ... ...RESPONDENTS
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2
...........................................................................................................................
Mr. H.A. Deshpande, Advocate for LRs of appellant
Mr. S.D. Sirpurkar, Advocate for respondents
............................................................................................................................
CROSS OBJECTION (ST) NO. 9627/2000
Mukund Annaji Pathak
Aged 43 years, occu: priest and Agriculturist
of Warna Tq.Khamgaon Dist.Buldhana. ..CROSS OBJECTOR
ig (ORI.RES.NO.1)
v e r s u s
1) Sadashiv Bhikaji Pathak
Aged 80 years, occu: Priest of
Nandura (Bk) Tq. Nandura
Dist. Buldana.
2) Suresh Laxman Joshi
Aged 50 years R/o Warna
Tq.Khamgaon
Dist. Buldana.
3) Sushilabai wd/o Annaji Pathak
Aged 68 years, occu: Household
R/o Warna Tq Nandura
Dist. Bhandara. ... ...RESPONDENTS
...
SECOND APPEAL NO. 111/1999:
Sadashiv Bhikaji Pathak
through his Legal Representatives :
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3
1. Digambar s/o Sadashiv Pathak
Aged about 64 years, R/o Nandura
Tq. Nandura Dist. Buldhana.
2. Nilkanth s/o Sadashiv Pathak
Aged about 53 years,
R/o Nandura, Tq. Nandura
Dist. Buldhan,. ... ...APPELLANTS
v e r s u s
1) Mukund Annaji Pathak
Aged 43 years, occu: priest and Agriculturist
of Warna Tq.Khamgaon Dist.Buldhana.
2) Shri Suresh Laxman Joshi
Aged 50 years, R/o Warna Tq. Khamgaon
Dist. Buldhana.
3) Smt. Sushilabai wd/o Annaji Pathak
Aged 68 years, occu: Household
R/o Warna Tq. Khamgaon Dist. Buldhana. ... ...RESPONDENTS
...........................................................................................................................
Mr. H.A. Deshpande, Advocate for LRs of appellant
Mr. S.D. Sirpurkar, Advocate for respondents
............................................................................................................................
CORAM: A.B.CHAUDHARI, J.
DATED : 9th February, 2016
ORAL JUDGMENT :
At the outset, the result of Second Appeal No.111/ 1999 depends on the result of Second Appeal No. 99/1999. Hence, Second Appeal No.99/1999 is taken up first.
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2. Being aggrieved by the judgment and decree dated 10th September, 1998 passed by learned Additional District Judge, Khamgaon in Appeal No. 53/1995, by which the decree for partition made by the trial Judge dated 28.2.1995 passed by the Joint Civil Judge, Jr.Dn. Khamgaon in Regular Civil Suit No. 106/1991 was modified, with a declaration that the plaintiff-Sadashiv (i.e. appellant herein), was entitled to ½ share only rather than 2/3 granted by the trial judge, the present Appeal was filed by Sadashiv.
3. Mr. H.A. Deshpande, learned counsel for the appellant invited my attention to the genealogical tree and contended that Pandharinath had two sons - Bhika and Trimbak. Trimbak died in 1947 wheras Bhika died in 1953. Though Trimbak had three daughters, in view of the prevailing law, they not being coparceners were not entitled to any share, except the right of maintenance. Bhika died in the year 1953 leaving behind Annaji, Sadashiv (the plaintiff) and Shridhar. Shridhar died on 30th June, 1990 and was predeceased by his wife. Since Shridhar did not leave any successor his share would automatically go to Sadashiv (plaintiff) because Annaji predeceased Shridhar, as Annaji died in the year 1985. Though Annaji had wife, son and daughters, they would not be entitled to claim any ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 5 share from the estate coming from Shridhar, because of the death of Annaji prior to the death of Shridhar. Shri Deshpande, then, contended that the lower Appellate Court declined to consider the proviso to Section 6 of the Hindu Succession Act relating to the notional partition and it fell in grave error in holding that the partition will have to be made after the death of Shridhar in the year 1990 and it is under that misconception of law, without enforcing the proviso to Section 6, the trial Judge reduced the share of the plaintiff Sadashiv which has resulted into miscarriage of justice. He relied on the decision in the case of Gurupad Magdum vs. Hirabai Magdum and others :
(1978) 3 SCC 383.
4. Per contra, Shri S.D. Sirpurkar, learned counsel for the respondents supported the impugned judgment and decree and submitted that the respondents have filed a Cross objection, since the finding of fact about relinquishment of share by plaintiff-Sadashiv, by accepting Rs. 500/- in lieu of compensation thereof, is perverse and is liable to be set aside. According to Mr. Sirpurkar, if the finding about relinquishment is set aside, the suit of the plaintiff-Sadashiv to claim any share was rightly dismissed by the trial Judge insofar as the claim for 2/3rd share is concerned. Mr. Sirpurkar, then, contended that the ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 6 respondents have been fully dependent upon the agricultural land and, in fact, have been residing at Warna as against the appellant residing in Nandura town and, in fact, the only intention of the appellant is to sell the land if given to his share. According to Mr. Sirpurkar, the mediation also failed as both the parties to the appeal have not been able to come to any amicable settlement/ compromise. Finally, Mr. Sirpurkar submitted that it would cause injustice to the respondents who are dependent for survival over the suit property and therefore, the Appeal should not be entertained and should be dismissed.
5. Heard learned counsel for the rival parties, at length. Seen the reasons given by the trial Judge as well as the lower Appellate Court. This Court admitted the Appeal on 2nd August,2000, on the following substantial questions of law (i) (ii) and (iii) raised in the Appeal: -
(i) Whether the suit properties would devolve upon the plaintiff, by applying doctrine of survivorship or whether coparcenery property could devolve upon Mukund by law of succession?
(ii) Whether the Additional District Judge was justified in ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 7 rejecting the claim of the plaintiff based on survivorship claiming the property consequent upon demise of plaintiff's real brother Shridhar by applying provisions of Section 6 of the Hindu Succession Act and thereby granting equal share to Mukund?
(iii) Whether the judgment and decree passed by Addl.
District Judge, Khamgaon modifying the judgment and decree passed by the trial Court was proper?
However, after hearing the learned counsel for the rival parties, I think, the following two questions are required to be substituted /re-framed in place of three questions stated herein-above:-
(1) Whether the finding of fact recorded by the Courts below that the appellants plaintiff- Sadashiv did not relinquish his share in the property is perverse and, as such, is liable to be set aside. .. No (2) Whether the learned Judge of the lower Appellate Court was justified in modifying the trial Court's decree and bringing down the share of plaintiff from 1/3 to 1/2 ignoring the proviso to Section 6 of the Hindu Succession Act, providing for the notional partition? ..Yes.
::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 8 ... What order ? Appeal is allowed. 6. Section 6 of the Hindu Succession Act, 1956 (prior to 2005 amendment) reads thus :
"6. Devolution of interest in coparcenary property- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 - For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 :::
sa.99.99+ 9 Explanation 2 - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenery before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
7. It is indisputable that when Bhika and Trimbak died Hindu succession Act, 1956 was not in existence. After the death fo Bhika in 1953, there were three coparceners - Annaji, who died in 1985, Sadashiv (the plaintiff/appellant) and Shridhar who died on 30th June,1990 leaving behind no legal heir. Annaji, thus, predeceased Shridhar. The property falling to the share of Shridhar, who had left no legal heir, in accordance with the Schedule Class II Entry No.II (3)-brother obviously would devolve on Sadashiv (plaintiff); as on the date of his death, Annaji had already died in the year 1985. Therefore, Annaji who was entitled to only 1/3rd share amongst the three brothers, which share would go to his wife and children. The learned Judge of the lower Appellate Court has, however, held that the occasion to partition property would arise upon the death of Shridhar on 30th June, 1990 and, therefore, legal heirs of Annaji ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 10 would have shares in the property left by Shridhar and consequently,the appellant Sadashiv (plaintiff) would be entitled to half of the share and not 2/3 as claimed by him. With reference to proviso to Section 6, it is clear that after coming into force of Act of 1956; the concept of notional partition envisaged by the proviso to Section 6 of the Act (unamended), would come into play. Therefore, it is deemed in law that on the death of Annaji in the year 1985, there would be a notional partition, i.e. it will have to he assumed that a partition had in fact taken place between the deceased and his coparceners immediately before his death.
8. In the case of Gurupad Magdum (cited supra), the Apex Court in paragraph nos. 13 and 14 stated thus:
"13.............What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption ad ascertain the share of the heirs with reference to it. The assumption which the statute ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 11 requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs,through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
14. The interpretation which we are placing upon the provisions of Section 6, its proviso and Explanation 1 thereto will further the legislative intent in regard to the enlargement of the share of female heirs, ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:10 ::: sa.99.99+ 12 qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment)A ct,1929 conferred heir-ship rights on the son;' s daughter, daughter's daughter and sister in all areas where the Mitakshara law prevailed. ...."
It is clear from the reading of the above paragraphs that the theory of notional partition immediately on the death of Annaji, by assumption, is held to be irrevocable which means the notional partition on the date of death of Annaji cannot be wiped out and must be considered. The proviso was brought by the Legislature, in its infinite wisdom, obviously with a view to protect the interest of the female whose husband dies and then she not being coparcener should not be deprived of the property to the share of her husband.
That was the object for bringing the proviso to Section 6 of the Act of 1956 and and the Apex Court interpreted it to be irrevocable. In my opinion, therefore, the lower Appellate Court committed an error in law in not applying the proviso to the case at hand. The question No.2 therefore will have to be answered in the affirmative. The contention that Sadashiv relinquished his share by accepting Rs. 500/- cannot be accepted as both the Courts below have concurrently found to the contrary. The said finding of fact is not perverse. Consequently the ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 ::: sa.99.99+ 13 judgment and decree passed by the trial Judge will have to be restored by setting aside the judgment and decree passed by the lower Appellate Corut. In the result, I make the following order :-
ORDER
a) Second Appeal No.99/1999 is allowed.
b) The judgment and decree dated 10th September, 1998 passed by the learned Additional Sessions Judge, Khamgaon in Regular Civil Appeal No. 52/1995 is set aside.
c) The judgment and decree dated 28.2.1995 passed by learned Joint Civil Judge, (Jr.Dn) Khamgaon in Regular Civil Suit no.106/1991 is restored.
d) No order as to costs.
SECOND APPEAL NO. 111/1999:
The original defendant- Suresh Laxman Joshi, claimed to have purchased the same suit property from Shridhar in the year 1986.
Shridhar had died in the year 1990. The learned trial Judge held by recording the finding of fact that it was not proved that the property sold to Suresh Laxman Joshi was for the benefit of joint family of Shridhar. As a matter of fact, as held in Second Appeal No.99/1999, Annaji having died in the year 1985, the share in the property left by ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 ::: sa.99.99+ 14 Shridhar who died issueless would go to appellant-Sadashiv, the plaintiff in the absence of any other coparceners. The defendant no.1- Suresh Laxman Joshi who was claiming to have purchased the property could not prove that the property was sold for the benefit of joint family as the burden of proof to show accordingly was on him.
Now, since in the earlier Appeal, it is held that the appellant-Sadashiv had 2/3rd share as held by the trial Judge, the defendant no.1 Suresh Joshi would not be able to enforce his transaction of purchase. In that view of the matter, Shridhar had no right to transfer the property to Suresh Joshi which is a concurrent finding of fact. Therefore, there was no need to independently challenge the sale deed in favour of Suresh. This Appeal filed by the appellant-Sadashiv also consequently must succeed in the light of the reasoning recorded in Second Appeal No.99/1999. In the result, for the reasons recorded in Second Appeal No.99/1999, this Appeal also will have to be allowed. Hence the order:
ORDER
a) Second Appeal No.111/1999 is allowed.
b) The judgment and decree dated 10th September, 1998 passed by the learned Additional Sessions Judge, Khamgaon in Regular Civil Appeal No. 53/1995 is set aside.::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 :::
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c) The judgment and decree dated 28.2.1995 passed by learned Joint Civil Judge, (Jr.Dn) Khamgaon in Regular Civil Suit No.106/1991 is restored.
d) No order as to costs.
CROSS OBJECTION (st)NO. 9627/2000
The Cross Objection was admitted with the following
substantial question of law, framed on 16th August, 2006:-
"Whether the learned Judge of the First Appellate Court was correct in law in holding that the suit filed by the original plaintiff-appellant was not bad for non-joinder of necessary parties?"
Ans: in the affirmative Learned counsel for the cross-objector Shri S.D. Sirpurkar, contended that daughters of Trimbak who died in 1947 and three daughters of Annaji were not joined as party to the Suit. In this connection, learned counsel for the respondents/appellant Mr. H.A. Deshpande, contended that as a matter of fact, an application vide ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 ::: sa.99.99+ 16 Exh.19 was filed for addition of parties. However it was objected to and the trial Judge consequently allowed the same in part, allowing joining Suresh Joshi and Sushilabai Annaji Pathak as parties but by not accepting the prayer for others. That order was not challenged by the cross objector at any point of time nor any such ground was raised before the lower Appellate Court. Shri Sirpurkar learned counsel for cross objector contended that non-joinder of parties is a serious defect in the suit and the same could be pointed out as a substantial question of law in these Appeals also.
Having heard the learned counsel for the rival parties, I find, at the outset, that the cross objectors themselves had opposed the application Exh.19 for joining of parties and accepting the objection in part, Suresh Joshi and Sushilabai Annaji only were allowed to be added as parties. The cross objector having resisted cannot now be allowed to turnaround and say that even the daughters of Shridhar and daughters of Annaji should have been joined as party.. That apart, the point was never raised before the lower Appellate Court by the cross objector and, therefore, in my opinion, it is too late in the day now to consider the objection at such a belated stage. In the result, the substantial question of law framed in the Cross Objection will have to ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 ::: sa.99.99+ 17 be answered in the affirmative. The Cross Objection is therefore disposed of.
JUDGE sahare ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:28:11 :::