Bombay High Court
Kaushalyabai Biharilal Pateriya ... vs Hiralal Bhagwandas Gupta And Ors. on 18 December, 2006
Equivalent citations: 2007 (4) BomCR 219
Author: C A.B.
Bench: D V.C., C A.B.
JUDGMENT
Chaudhari A.B., J.
1. Being aggrieved by the judgment and decree dated 12-2-2002 passed by the Joint Civil Judge, Sr.Dn., Amravati in Special Civil Suit No. 176 of 1999, declaring that the plaintiffs would get only 1/30th share each in the suit fields bearing Survey Nos. 2/5 and 3/4 of mouza Tarkheda, Pragane-Badnera, District Amravati, and 1 /6th undivided share in suit house and consequent rejection of the rest of the claims made by the plaintiffs, the plaintiffs have preferred this appeal.
2. The Facts:
Briefly stated, the appellants who are the original plaintiffs, filed a civil suit for partition and separate possession. The genealogical tree, which is undisputed, is reproduced below for convenience.
Bhagwandas-Deokabai
|
______________________________________________________________________________
Hiralal Chhakilal Kunjilal Chhotelal Jamnabai Kaushlyabai Motanbai
(Dl) (D2) (D3) (Died) (D4) (P1) (P2)
| | | |
Tushar | _________________ |
(D13) | | | |
| Tulsabai Mohan |
| (D18) (D19) |
| ___________________________________________________________
| | | | | | |
| Umesh Prakash Meena Vimla Vimla Vijay
| (D5) (D6) (D7) (D8) (D9) (Died)
_______________________________ ____________________
| | | | | | |
Sumi- Ashok Kishore Ravindra Deepa Puja Golu
tribai (D10) (D11) (D12)
(D14) (D15) (D16) (D17)
The plaintiffs are the two daughters of Bhagwandas Gupta. While Hiralal, Chhakilal, Kunjilal and late Chhotelal are the four sons of deceased Bhagwandas. Since Chhotelal Gupta expired, his legal heirs were brought on record and they are now arrayed as defendants. Deokabai was the widow of Bhagwandas who expired on 7.7.1971. Bhagwandas expired on 5-5-1956. The Hindu Succession Act, 1956 (hereinafter called as the Act) came into force with effect from 18-6-1956. In other words, Bhagwandas expired prior to coming into force of Hindu Succession Act, 1956. Section 23 of the Act stood omitted by the Amending Act No. 39 of 2005. In view of this change in law, the appellants filed civil application for amendment of the memo of appeal to raise an additional ground to claim partition of the residential house. The amendment application was tendered at the Bar by the counsel for the appellants. Same was heard. The learned Counsel for the respondents did not have serious objection to allow the said amendment application. We, therefore, allow the said application and permit the appellants to raise the said additional ground as ground No. 11 to be incorporated in the memo of appeal.
3. It is a common ground that Bhagwandas having expired prior to coming into force of the Act, the trial Court in the wake of provisions of Section 23 of the Act held that the plaintiffs, who were the daughters of deceased Bhagwandas, had only a right of maintenance in accordance with the provisions of the Hindu Women's Right to Property Act, 1956 and in view of the fact that the plaintiffs were married even prior to the death of Bhagwandas, there was no right of maintenance. Consequently, the appellants/plaintiffs had no right to claim share in the properties left by Bhagwandas Gupta.
4. The appellants/ plaintiffs in their plaint averred that their father deceased Bhagwandas owned in all thirty fields at village Tarkheda and 12 fields at village Navsari, as described in the Schedule to the plaint. The plaintiffs claimed that they were entitled to l/6th share each in the agricultural lands as well as in the residential house described in the Schedule filed with the plaint. The schedule as regards the residential houses indicates the description of two houses. The counsel for the appellants as well as for the respondents were ad idem on the fact that it was only one house with different house numbers. The plaintiffs further challenged the partition deed dated 16-2-1971 on the ground that it was a fraudulent document. They further stated that forgery was committed by defendants 1 to 3 and late Chhotelal by obtaining their signatures on the alleged relinquishment deed/consent-deed. Mutations were got carried out by defendants 1 to 4 fraudulently on the basis of the said fraudulent document of alleged partition-deed dated 16-2-1971 and they came to know about it when they demanded partition from their brothers.
5. The defendants/ respondents filed their written statement in the trial Court. At the outset, the respondents/defendants set up a legal plea that the plaintiffs were not entitled to any share in the properties left by deceased Bhagwandas, in the first place, because Bhagwadas had expired prior to coming into force of the Act of 1956 and they were married prior to his death, and consequently, there was absolutely no right or interest in the properties left by deceased Bhagwandas. They then stated that on 16-2-1971 there was a partition between the brothers and their mother Deokabai and the plaintiffs who were not entitled to any share or interest in the properties were rightly not given any share. The partition-deed was not only registered on 17-2-1971 but it was also acted upon. They further stated that the partition was done with the full knowledge of the plaintiffs and on the top of it plaintiffs had executed relinquishment-deeds in their favour on the even date, i.e. 16-2-1971.
The defendants denied that deceased Bhagwandas owned those properties and submitted that deceased Bhagwandas was the owner of field Survey Nos. 2/5 and 3/4 of mouza Tarkheda and field Survey Nos. 36, 39 and 14/1 of village Navsari. They stated that Bhagwandas was the owner of only five fields and rests of the six fields were being cultivated by him as tenant. The defendants set up a plea of adverse possession against the plaintiffs.
No plea was however raised in the plaint about the sanction before making partition as contemplated by Section 57 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short Tenancy Act).
6. On the basis of the above pleadings, the trial Court was pleased to frame the following issues:
(i) Do plaintiffs prove that their father was the owner of the suit properties as mentioned in the Schedule 'A' and "B' of plaint?
(ii) Do they further prove that they are having l/6th share in the suit properties?
(iii) Are the plaintiffs entitled for partition and separate possession?
7. The parties went on trial and adduced evidence. The plaintiffs examined one witness, i.e. Motanbai (P.W. 1). While the defendants examined two witnesses, i.e. Kunjilal Bhagwandas Gupta (D.W. 1) and Bhojraj Bhaiyalal Gupta (D.W. 2). Motanbai (P.W. 1) was examined in support of the plaint allegations. Kunjilal (D.W. 1) was examined in support of the defence set up by the defendants while Bhojraj (D.W. 2) was examined to prove the alleged Wills executed by Maganlal which were marked as Articles E and F. Having appreciated the entire evidence on record, the learned trial Court answered issue No. 1 saying that deceased Bhagwandas was the owner of five fields and tenant of six fields only. The issue No. 2 was answered saying that the plaintiffs were having 1/30th share in each field bearing Survey No. 2/5 and 3/4 and 1/6th share in the house properties without right to claim partition of house by metes and bounds. Consequently, he answered issue No. 3 saying that the plaintiffs were entitled to possession of l/30th share in the fields Survey No. 2/5 and 3/4 of mouza Tarkheda. Not satisfied with the said judgment and decree, present appeal is filed by the appellants.
8. Submissions:
At the final hearing of the appeal, the learned Counsel for the appellants, Shri G.R. Agrawal, reiterating the submissions made before the trial Court, raised the following grounds:
(i) That the partition-deed dated 17-2-1971 is a document obtained by fraud and, as such, was liable to be rejected by the trial Court.
(ii) By the Amending Act No. 39 of 2005, Section 23 of the Act having been omitted, there is no restriction on the rights of Hindu Women on the dwelling house. The appeal being a continuation of the suit, this Court is bound to take notice of change in law and to give effect to the same.
(iii) Section 57 of the Tenancy Act requires prior sanction of the Collector in respect of tenant's land before partition is made and in the instant case since admittedly no such sanction was obtained, the partition has no legal sanctity and was void.
9. Per contra, Shri P.Y. Deshpande, learned Counsel for the respondents submitted that the Amending Act No. 39 of 2005, by which Section 23 of the Act has been omitted, would apply prospectively and would not govern the present lis, as the parties were always governed by Section 23 of the Act at the time when the suit was filed and such an amendment is prospective in nature. He further argued that the plea of fraud and forgery was taken up by the plaintiffs just for the sake of making allegations without pleading material facts and particulars in support of its pleadings and there was hardly any material to infer fraud and forgery.
10. Mr. Deshpande as regards applicability of Section 57 of the Tenancy Act is concerned, objected to the argument being made by the counsel for the appellants for the first time in this Court, as no such plea was taken in the plaint nor any issue to that effect was framed in the trial Court.
11. The Issues:
With the assistance of the learned Counsel for the parties, we have gone through the entire oral as well as documentary evidence tendered in the present case. The points which arise for our determination are:
(i) Whether the partition-deed dated 17-2-1971 is vitiated by fraud or forgery?
(ii) Whether as a result of coming into force of Amending Act No. 39 of 2005 omitting Section 23 of the Act, the appellants/plaintiffs can claim any right in dwelling house(s), and whether this Court should take notice of change in law and whether the said amendment is prospective?
(iii) Whether in the absence of any plea raised in the plaint about the applicability of Section 57 of the Tenancy Act, the appellants could be allowed to raise the said ground in support of the appeal for the first time in this Court?
12. Findings:
As regards the submission made by the learned Counsel for the appellants about fraud and forgery, we would like to refer to Order VI, Rule 4 of the Code of Civil Procedure, which reads thus:
In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
13. Applying the test laid down in Rule 4 of Order VI, and having gone through the entire plaint, we find that the pleadings regarding fraud and forgery in the plaint are clearly deficient and do not answer the particulars required for pleading fraud or forgery. The evidence of Motanbai (P.W. 1) also does not throw any proper light or specifications about the alleged fraud or forgery. The document of partition-deed dated 16/ 17-2-1971 has been duly proved. We, therefore, hold that the said document is not vitiated by fraud or forgery, as claimed by the appellants.
14. Now coming to the second limb of argument of learned Counsel for the appellants and opposition to the same by the learned Counsel for the respondent, we find that the Amending Act No. 39 of 2005 would clearly have effect on the pending proceedings including the present appeal. It is well settled that appeal is a continuation of the suit as held by Apex Court in the case of The State of Kerala v. KM. Charia Abdulla & Co. . The decision relied upon by the learned Counsel for the appellants on the case of United Bank of India, Calcutta v. Abhijit Tea Co. Put. Ltd. , particularly paragraph 20, aptly apply in the instant case. The Hont'ble Apex Court has clearly held that it becomes the duty of the Court hearing an appeal to take notice of changes in law and also give effect to the same.
15. Mr. Deshpande, learned Counsel for the respondents, relied upon the judgment of the Apex Court in the case of Shyam Sundar and Ors. v. Ram Kumar and Anr. and submitted that the change in law in the instant case would not affect the present appeal and the same is required to be decided in the light of the law existing on the date of suit or on the date of passing of the decree by the Court of first instance.
16. We have gone through the said decision of the Apex Court. We find that in that case, suit was filed on the basis of Section 15(l)(b) of the Punjab Pre-emption Act, which provided for a vested right of a co-sharer to pre-empt a sale. During the pendency of appeal in the Apex Court, Section 15(l)(b) was substituted by Section 15, introduced by Act No. 10 of 1995, whereby the said right to pre-empt was taken away. The Apex Court held that a right which is already Vested' cannot be affected by the amending Act and it has no retrospective operation.
17. In the present case, what we find is that Section 23 of the Hindu Succession Act, 1956 prohibited a female heir from claiming partition until the male heirs choose to divide their respective shares. By Amending Act No. 39 of 2005, effective from 05-09-2005, this provision of Section 23 has been deleted. Thus, the embargo contained in Section 23 stood removed for the first time by Amending Act No. 39 of 2005. In the statement of objects and reasons, the reason for omission of Section 23 is stated in the following words:
...It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
18. The Apex Court in the case of Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors. , held that it is well settled that an Appellate Court is entitled to take into consideration any change in law. Similarly in the case of United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. and Ors. , the Apex Court in para 20 held as under:
Now, it is well settled that it is the duty of a Court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh : Interpretation of Statues, 7th Edn., p. 406). If, while a suit is pending, a law like the 1993 Act that the Civil Court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit-even after its remand-cannot be disposed of by it.
We, therefore, hold that deletion of Section 23 from the Hindu Succession Act, 1956 though has taken place during the pendency of the present appeal, its effect will have to be taken into consideration while deciding the present appeal and consequently we hold that as a result of such omission the plaintiffs are entitled to share in the dwelling house(s) also and consequently the shares of the plaintiffs in the dwelling house(s) would be to the extent of l/30th each. We, therefore, do not agree with the learned Counsel for the respondents that the provisions of Amending Act No. 39 of 2005 would only apply prospectively, as such not to the present appeal.
19. The last point urged on behalf of the appellants about the applicability of Section 57 of the Tenancy Act could easily be decided holding that the same having been not raised in the suit and there being no issue framed, cannot be allowed to be raised in the appeal for the first time. We, however, having carefully considered the said point found that on the admitted facts the same would be a pure question of law and, therefore, could be allowed to be raised for the first time in the present appeal. Accordingly, we allowed the counsel for the appellants to raise the said point.
20. Section 57 of the Tenancy Act is reproduced below:
(1) No 1 and purchased by a tenant under Section 41 or 46 (or 49-A]) (or 57-D) or 130 or sold to any person under Section 91 or 122 (shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government.
(2) Any transfer of land in contravention of Sub-section (1) shall be invalid:
Provided that nothing in this section shall apply to the lands purchased by an occupancy tenant.
21. The above reproduction of Section 57 is after deletion of the words 'or partitioned' 'or partition' by the Maharashtra Act No. 5 of 1982. Deletion in respect of partition was thus made in 1982 and it has been emphasised that the aforesaid two terms shall be deemed always to have been deleted. In the instant case, the partition was effected on 16/17-2-1971 and as such on that date, i.e. In the absence of amendment of 1982, previous sanction of the Collector was necessary. However, by virtue of the said amendment the words 'or partitioned' 'or partition' have been deleted and shall be deemed always to have been deleted. The net effect of the said deletion is that these words 'or partitioned' were never to be found in Section 57. In other words, it will have to be held that there was no requirement of obtaining previous sanction of the Collector, as contemplated by Section 57 of the Tenancy Act, before effecting partition-deed dated 16/17-2-1971. The above amending provision came to be considered by the learned Single Judge of this Court in Namdeo Govinda Hiwale v. Arjun Namdeo Hiwale 2005 (4) Bom.C.R. (N.B.) 199, and in paragraphs 9 and 10 it has been observed as under:
Shri Deshpande submitted that Section 57 of the B.T.L. Act was amended by Maharashtra Act No. V of 1982 and by virtue of Section 8(1)(a) of the Amending Act, the words 'or partitioned' in Sub-section (1) of Section 57 and by virtue of Section 8(1)(b) the words 'or partition' in Sub-section (2) of Section 57 were deleted. Shri Deshpande submitted that the Amending Act clearly shows that words 'or partitioned' in Section 57(1) and 'or partition' in Section 57(2) shall be deemed to have never been there. The said amendment thus is retrospective. Consequently Section 57(1) and (2) of the B.T.L. Act would not affect the partition which took place during 1977-78. The first Appellate Court neglected this amendment and came to a wrong conclusion.
I find considerable force in the submission made by Shri Deshpande. It may be noticed that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Section 8 of the Amending Act clearly shows that the words 'or partitioned' in Section 57(1) and the words 'or partition' in Section 57(2) were deleted and shall be deemed always to have been deleted. This clearly means that we have to read Section 57 as if these words were never there. The plain meaning thereof would be that there was no restriction on transfer of land purchased under B.T.L. Act as regards partition thereof. It therefore, follows that no previous sanction of the Collector for partition was necessary and the absence of such previous sanction would not render the partition invalid.
22. We concur with the view taken by the learned Single Judge of this Court and accordingly hold that the previous sanction of the Collector for partition was not necessary before making the partition dated 16/17-2-1971.
23. In the result, the appeal is partly allowed. The decree of the trial Court is modified as under:
(i) It is hereby declared that the plaintiffs are having 1 /30th share each in suit fields bearing S. No. 2/5 and % of mouza Tarkheda, Pragane-Badnera, District Amravati.
(ii) It is further declared that the plaintiffs are entitled to l/6th share each in dwelling house/s forming one unit described in item 3 and 4 of Schedule to the plaint.
(iii) The defendants No. 1 to 3 and 4 to 19 in common are having 7/30 shares each.
(iv) The precept be sent to the Collector, Amravati, for effecting the partition and putting the parties in possession of their respective shares in the above suit fields.
(v) Rest of the claim of the plaintiffs is hereby rejected. Modified decree be drawn up accordingly.
(vi) In the peculiar circumstances of the case, no order as to costs.
