Bombay High Court
Leelavati Baburao Chaudhari vs Pitambar Shridhar Attarde And ... on 22 March, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.440 OF 2015
Leelavati Baburao Chaudhari APPELLANT
Age - 64 years, Occ - Household
R/o 12, Visemala, HPT College Road,
Nashik, District - Nashik
VERSUS
1. Pitambar Shridhar Attarde RESPONDENTS
Age - 67 years, Occ - Agriculture
R/o Behind Supreme Tyre,
Saduba Nagar, Old Nashirabad Road,
Jalgaon Taluka and District - Jalgaon
2. Pandurang Shridhar Attarde
(Since deceased through legal representatives)
2A. Satish Pandurang Attarde,
Age - 42 years, Occ - Service
2B. Subhash Pandurang Attarde,
Agd - 48 years, Occ - Service
2C. Nirmala Prakash Chaudhari,
Age - 45 years, Occ - Service
2D. Sushila Pandurang Attarde,
Age - 70 years, Occ - Household
Respondents No.2A to 2D
R/o 1/145/1, Sadoba Nagar
Old Nashirabad Road, Jalgaon
Taluka & District - Jalgaon
3. Tulshiram Shridhar Attarde
Age - 63 years, Occ - Agriculture
R/o Plot No.368, Sadderpura,
Badam Galli, Vitthal Peth, Jalgoan
Taluka & District - Jalgaon
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4. Barsu Budha Patil,
Age - Major, Occ - Business
R/o Saduba nagar Hira Pipe Road,
Old Nashirabad road, Jalgaon
Taluka & District - Jalgaon
5. Chudaman Vitthal Rane
(Since deceased through legal representatives)
5A. Sheela Chudaman Rane
Age - 53 years, Occ - Household
5B. Kum. Dipti Chudaman Rane
Age - 23 years, Occ - Education
5C. Kum. Trupti Chudaman Rane
Age - 19 years, Occ - Education
Respondents No.5A to 5C
R/o 213, 'Dnyaneshwari'
Adarsha Nagar, Jalgaon
Taluka & District - Jalgaon
6. Prakash Jagananth Chaudhari,
Age - 56 years Occ - Service
R/o Plot No.2, Saduba Nagar
Old Nashirabad Road, Jalgaon
Taluka & District - Jalgaon
7. Durgadas Barsu Patil,
Age - 57 years, Occ - Business,
R/o Saduba nagar, Hira Pipe Road,
Old Nashirabad Road, Jalgaon
Taluka & District - Jalgaon
8. Sheshrao Barsu Patil,
Age - 63 years, Occ - Business
R/o Saduba Nagar, Hipra Pipe Road
Old Nashirabad Road, Jalgaon
Taluka & District - Jalgaon
9. Khadke and Chaudhari Pvt. Ltd.,
Laxmanbhau Nagar,
In front of S. T. Workshop,
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Old Nashirabad road, Jalgaon
Taluka and District - Jalgaon
10. Maheshkumar Sharma
(Since deceased through Legal Representatives)
10A. Zimudevi Maheshkumar Sharma
Age - 48 years, Occ - Household
10B. Gopal Maheshkumar Sharma
Age - 25 years, Occ - Business
10C. Rajani Maheshkumar Sharma
Age - 22 years, Occ - Education
10D. Mamta Maheshkumar Sharma
Age - 18 years, Occ - Education
Respondents No.10A to 10D
R/o Pot No.35, Chimukale Balaji Mandir
Road, Ayodhya Nagar, Jalgaon
Taluka and District - Jalgaon
11. Sau. Jyotsna Mukund Khadke
Age - 48 years, Occ - Household
R/o Saduba Nagar,
Old Nashirabad Road, Jalgaon
Taluka and District - Jalgaon
12. Prakash Vishnu Kolhe,
Age - Major, Occ - Service
13. Suresh Vishnu Kolhe
Age - Major, Occ - Service
14. Vijay Vishnu Kolhe,
Age - Major, Occ - Business
15. Jagdish Vishnu Kolhe,
Age - Major, Occ - Business
Respondents No.12 to 15
R/o Parbhat Printing Press,
Bhavani Peth, Jalgaon,
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Taluka and District - Jalgaon
16. Sau. Chamelibai Bhaskar Khadke
Age - 58 years, Occ - Household
17. Sarlabai Vilas Rane
(Since deceased through Legal Representatives)
17A. Komal Vilas Rane
Age - Major, Occ - Education
17B. Vilas Trimbak Rane,
Age - 49 years, Occ - Service
Respondents No.16, 17A and 17B
R/o 311, Vitthal Peth, Jalgaon
Taluka and District - Jalgaon
.......
Mr. Vijay B. Patil, Advocate for the appellant
Mr. A.R.Vaidya h/f Mr. B.S.Deshmukh, Advocate for respondents
No.2A to 2D
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 22nd MARCH, 2017
ORAL JUDGMENT :
1. Heard learned advocates for the appearing parties.
2. It is plaintiff's second appeal being unsuccessful in two
stages hitherto, questioning legality and validity of decisions
rendered by trial and appellate courts, purporting to pose a
question -
" Whether disposition of property received in partition
among father and sons, by father, by a will only between
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two sons, is possible while nature of property before
partition being coparcenery ?"
3. Shorn of unnecessary details, factual position which has
not been disputed is that - property inherited by the father had
been partitioned in 1978 among father and three sons, under
which there were four equal divisions, each male member of
coparcenery getting one fourth share. In furtherance of said
partition, entries were taken in revenue record and accordingly
members of the family had been enjoying the partitioned
properties, as their separate properties. Subsequently, the father
had executed a registered will dated 19th November, 1990
bequeathing property received in partition to only two out of his
three sons. After death of father, the bequeathed property was
recorded in revenue offices according to the wishes expressed in
the will and as such, said property bequeathed to them was
being enjoyed by the two sons.
4. Regular Civil Suit No. 132 of 2001 came to be instituted by
present appellant - married daughter of aforesaid deceased
father seeking partition and separate possession in respect of
the property inherited by her deceased father.
5. In the meanwhile, it appears that quite a few transactions
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have taken place. Brothers of the plaintiff have dealt with certain
properties.
6. The defendants, in written statement, resisted claims of
the plaintiff giving rise to issues - as to whether the plaintiff is
entitled to declaration of having one twenty fourth share in suit
properties; whether she is entitled to partition and separate
possession and whether she is further entitled to declaration that
sale deeds executed by brothers in favour of third persons to be
illegal and void. All the issues were decided in the negative
against the plaintiff by trial court.
7. A proceeding therefrom had been carried to district court
bearing Regular Civil Appeal No.161 of 2007. In the appeal, the
appellate court had taken up points for determination viz;
whether there was any property left to be partitioned by
deceased father of plaintiff; whether will executed by deceased
father in respect of his share of partitioned property was legal
and whether sale deeds executed by defendants No.1 to 3 were
illegal and not binding on the plaintiff and whether the plaintiff is
entitled to partition.
8. The appellate court has considered that no property had
been left to be partitioned by deceased father of the plaintiff, the
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will executed by him, in respect of his one fourth share in the
inherited property, to be legal and had given negative findings in
respect of declaration sought about sale deeds executed by
brothers of the plaintiff being illegal and not binding and about
entitlement of the plaintiff to partition and separate possession
of suit properties. The appeal, as such, came to be dismissed
under judgment and order dated 16th July, 2015.
9. Learned advocate for the appellant Mr. Vijay B. Patil,
submits that both the courts have committed grave error in
absolutely declining claim of the plaintiff for partition and
separate possession and the same ought to have been
considered at least in respect of one fourth share taken by
deceased father in partition which had taken place in 1978.
Learned advocate submits that while nature of property being
ancestral is not in dispute, when it had been inherited by
deceased father, having regard to amendments to Hindu
Succession Act, 1956, one in 1994 in Maharashtra, and the other
of section 6 in 2005, daughter being accorded status of a
coparcener, the will executed by father would not affect rights
accrued to the plaintiff as a coparcener. He submits that in any
case, one fourth share of the inherited property having fallen to
deceased father's share, its nature being ancestral, while the
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plaintiff being alive, disposition of his share by father is not
proper and would be illegal.
10. In support of his submissions, learned advocate purports
to rely on a decision of the Supreme Court in the case of "Rohit
Chauhan V/s Surinder Singh and Others" reported in 2013 DGLS (SC) 545 :
2013 AIR (SC) 3525, particularly paragraphs No.10 and 11
thereunder, reading, thus -
" 10. Mr. L.Nageshwar Rao, learned Senior Counsel appearing on
behalf of the plaintiff-appellant submits that at the time when the
plaintiff's father Gulab Singh got the property in partition, it was his
separate property vis- à-vis his relations but after the birth of the
plaintiff on 25th of March, 1982, plaintiff acquired interest in the
property as a coparcener. Mr. Satinder S. Gulati, learned Counsel
appearing on behalf of the defendant- respondents, however, submits that
once the property fell into the share of the plaintiff's father Gulab Singh,
it lost the character of a coparcenary property and the said status will
not change on the birth of the plaintiff. He points out that even if plaintiff
Rohit Chauhan was born at the time of partition between defendant no.
2, his father and brothers, plaintiff would not have got any share under
Section 8 of the Hindu Succession Act. In support of the submission he
has placed reliance on a judgment of this Court in the case of Bhanwar
Singh V. Puran, (2008) 3 SCC 87 and our attention has been drawn to
the following passage from the said judgment:
"13. Section 6 of the Act, as it stood at the relevant time, provided
for devolution of interest in the coparcenary property. Section 8
lays down the general rules of succession that the property of a
male dying intestate devolves according to the provisions of the
Chapter as specified in Clause (1) of the Schedule. In the
Schedule appended to the Act, natural sons and daughters are
placed as Class I heirs but a grandson, so long as father is alive,
has not been included. Section 19 of the Act provides that in the
event of succession by two or more heirs, they will take the
property per capita and not per stripes, as also tenants-in-
common and not as joint tenants."
11. We have bestowed our consideration to the rival submission and
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we find substance in the submission of Mr. Rao. In our opinion
coparcenary property means the property which consists of ancestral
property and a coparcener would mean a person who shares equally
with others in inheritance in the estate of common ancestor.
Coparcenary is a narrower body than the Joint Hindu family and before
commencement of Hindu Succession (Amendment) Act, 2005, only male
members of the family used to acquire by birth an interest in the
coparcenary property. A coparcener has no definite share in the
coparcenary property but he has an undivided interest in it and one has
to bear in mind that it enlarges by deaths and diminishes by births in the
family. It is not static. We are further of the opinion that so long, on
partition an ancestral property remains in the hand of a single person, it
has to be treated as a separate property and such a person shall be
entitled to dispose of the coparcenary property treating it to be his
separate property but if a son is subsequently born, the alienation made
before the birth cannot be questioned. But, the moment a son is born, the
property becomes a coparcenary property and the son would acquire
interest in that and become a coparcener. The view which we have taken
finds support from a judgment of this Court in the case of M. Yogendra V.
Leelamma N., (2009) 15 SCC 184, in which it has been held as follows:
"29. It is now well settled in view of several decisions of this Court
that the property in the hands of a sole coparcener allotted to him in
partition shall be his separate property for the same shall revive
only when a son is born to him. It is one thing to say that the
property remains a coparcenary property but it is another thing to
say that it revives. The distinction between the two is absolutely
clear and unambiguous. In the case of former any sale or alienation
which has been done by the sole survivor coparcener shall be valid
whereas in the case of a coparcener any alienation made by the
karta would be valid. "
11. He further draws attention to judgment in the case of
"Devisingh Balaramsingh Raghuwanshi and Others V/s Smt. Shailabai
Rajendrasingh Raghuwanshi and Others" reported in 1996 (2) Bom. C. R. 183
decided by division bench of this court at Nagpur, making
reference to paragraphs No. 90 to 94 thereunder, reading, thus -
" 90. If the Will (Exh. 265) is not accepted as a valid document, the
interest of Rajendrasingh in the ancestral property in his hands would
devolve upon his wife i.e. the plaintiff and his mother Hirabai i.e. the
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defendant No. 2 in equal shares. Thus, the specifications of shares given
hereinbefore would show that in the ancestral property allotted to the
share of Rajendrasingh in the family partition effected on 1-10-1952, the
plaintiff will have 5/6th share and 1/6th share would go to Hirabai in the
said property.
91. Apart from the above ground of challenge to the Will (Exh. 265) viz.
about the valid execution of the Will and the suspicious circumstances
surrounding the same, the learned Counsel for the plaintiff has
challenged the Will (Exh. 265) as invalid also on the ground that the
testator Rajendrasingh had an undivided interest in the coparcenery
property governed by Mitakshara Law which he is not entitled to and
which is not capable of being disposed by testamentary disposition by
him. Even otherwise, he has contended that assuming that he can do so,
in view of our finding that it is only his interest to the extent 1/3rd share
in the property allotted to him on family partition effected on 1-10-1952
which is capable of being disposed of by him by testamentary disposition
since he has disposed by Will (Exh. 265) the whole of the property
allotted to his share in the aforesaid family partition effected on 1-10-
1952, the said Will (Exh. 265) is illegal and cannot be sustained.
91A. As regards the first question, the contention urged on behalf of the
plaintiff that the deceased Rajendrasingh is not entitled to dispose of his
undivided interest in the coparcenery property governed by Mitakshara
Law or the said property is not capable of being disposed of by
testamentary disposition, cannot be upheld in view of the clear provision
of Section 30 of the Hindu Succession Act, 1956. Section 30deals with
the question of testamentary succession. It provides that any Hindu can
dispose of by Will or other testamentary disposition any property, which
is capable of being disposed of by him, in accordance with the provisions
of the Indian Succession Act, 1925, or any other law for time being in
force. The explanation to the said section particularly shows that the
interest of a male Hindu in a Mitakshara coparcenery property is
deemed to be property capable of being disposed of by him within the
meaning of the said Section 30. It is, therefore, clear that the deceased
Rajendrasingh was entitled to dispose of his undivided interest in a
Mitakshara coparcenery property by Will or other testamentary
disposition.
92. As regards the question of Mitakshara coparcenery property, we have
already pointed out that the property in the hands of Rajendrasingh
allotted to him in the family partition effected on 1-10-1952 would be
coparcenery property belonging to him and his son Jagjitsingh. We have
also pointed out hereinbefore that after the death of Jagjitsingh share of
Rajendrasingh in the said property would be 1/3rd and that of his wife
i.e. the plaintiff would be 2/3rd in view of the provisions of Section 6 of
the Hindu Succession Act, 1956. Therefore, if at all, it is his aforesaid
1/3rd share in the property allotted to him on family partition effected on
1-10-1952 which the deceased Rajendrasingh can dispose of by his Will
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in view of the provisions of Section 30 of the said Act. The disposition of
the whole of the said property made by him as per his Will Exh. 265 in
thus clearly illegal and cannot be sustained.
93. The next question which arises for consideration is whether the Will
Exh. 265 can be held to be valid to the extent of the aforesaid 1/3rd share
of the deceased Rajendrasingh in the property allotted to him on family
partition effected on 1-10-1952. In considering the said question it has to
be seen that the Rules enacted in the Indian Succession Act, 1925 are
made applicable by Section 30 of the Hindu Succession Act, 1956 to the
Wills or other testamentary disposition of property made by any Hindu.
It is a primary rule of construction of Will that it must be interpreted
according to the intention of the testator which has to be primarily
gathered from the words used by him in the Will. Section 81of the Indian
Succession Act, 1925 makes an extrinsic evidence to ascertain the
intention of the testator inadmissible in case of patent ambiguity or
deficiency on the face of a Will. Section 87of the said Act requires that
the intention of the testator should not be set aside because it cannot take
effect to the full extent, but effect is to be given to it as far as possible.
Section 89 of the said Act then provides that Will or bequest not
expressive of any definite intention is void for uncertainty.
94. In the light of the relevant rules of construction of a Will, if we
examine the Will (Exh. 265) made by the deceased Rajendrasingh, it is
clear from the said Will that the deceased Rajendrasingh has disposed of
by his testamentary disposition the whole of his property allotted to him
on family partition on 1-10-1952 which as we have shown hereinbefore
is a patent defect and illegality in the said Will. Further the testator
Rajendrasingh had given specific shares in property to his nephew
Surjitsingh the defendant No. 4 and his wife i.e. the plaintiff. However, as
regards the specific shares given to his wife, he has created only a life
estate in her and the property allotted by him to her in the said Will has
to vest in his nephew Surjitsingh after her death or if she remarries. She
cannot alienate the property bequeathed to her by him. The main
purpose in allotting the property to her is to provide her maintenance
during her life time. Thus ultimately under the Will it is his nephew
Surjitsingh who becomes the owner of the entire property allotted to the
share of the testator Rajendrasingh in the family partition effected on 1-
10-1952. The allotment of shares to the said nephew Surjitsingh and to
the plaintiff do not show in what proportions, if any, they are allotted. "
12. However, both aforesaid decisions appear to be dealing
with altogether different contexts and it is difficult to draw any
analogy from the same, as would seem to be applicable to facts
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and circumstances of present case. The Supreme Court decision
in the case of "Rohit Chauhan" (supra) deals with birth of a son after
partition had taken place among father and other members of
coparcenery and father dealing with whole of the property
derived under partition of coparcenery property. There also it has
been clearly mentioned that if the disposition of the property had
taken place before birth of the son, that would not have been
affected by subsequent birth of the son. Whereas, the other
citation relates to a different factual scenario and would hardly
have any nexus with the present matter.
13. It is clearly emerging factual and legal position in the
matter that there had been partition among father and three
sons in 1978 whereunder each of them received one fourth
share in the inherited coparcenery property and that in 1990,
the father under a registered will, had bequeathed his one fourth
separate share received in partition, to only two sons. The third
son though being alive, had not received anything under the
bequest. Father of the plaintiff died in 1991. Thereafter, the
properties bequeathed were being enjoyed by the two sons as
their independent properties. That enjoyment had never been
questioned by the third son. The Maharashtra amendment to
Hindu Succession Act had been effective since 1994 and
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amendment to section 6 to Hindu Succession Act had been made
effective from 2005. Disposition of the property by the father of
the plaintiff, as such, obviously has been before 20 th day of
December, 2004. On partition, the property had become
separate property of father and as such, he had an absolute
right to deal with the same and which he did by executing a
registered will, which appears to have been acted upon.
Coparcenery nature of the property had ceased to continue upon
partition of the properties among the partitioning members of
the coparcenery, since 1978. It is not the case that any male
member had been born after 1978 to deceased father in order to
lay claim to any share in the property. Father admittedly had
executed will of his partitioned separate share in 1990 and in
1991, he has expired. Disposition of suit property among
coparceners then had taken place before Maharashtra
Amendment of 1994 to Hindu Succession Act, 1956. Even if it is
assumed that amendment to section 6 of the Hindu Succession
Act, is retroactive, the legislature has already made its intention
clear that disposition of properties made before 20 th December,
2004 would remain unaffected.
14. In the circumstances, although learned advocate Mr. Patil
has exerted himself very strenuously, it does not appear that it is
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likely to yield any fruitful result in favour of the appellant.
15. Second appeal is devoid of any substance and the same,
as such, stands dismissed. Question as framed stands answered
accordingly.
16. In view of aforesaid Civil Application No. 10880 of 2015
stands disposed of.
[SUNIL P. DESHMUKH, J.]
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