Bombay High Court
Govinda Parashram Mahalle vs Kasabai Tulshiram Surve And 15 ... on 28 October, 2021
Bench: S. M. Modak
SA198.2005(1).odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 198 OF 2005
APPELLANT Govinda s/o Parashram Mahalle,
(Ori. Deft. On R.A.) Aged about 45 years, Cultivator and
R/o Kalamba Mahali, Taluka and
District Washim.
...V E R S U S...
RESPONDENTS 1] Kasabai wd/o Tulshiram Survey
(Ori. Pltf. On R.A.) Aged about 74 years, Occu: Nil,
R/o Lathi, Post Shelubazar,
Tq. Mangrulpir, District Washim.
2] Dhrupatabai w/o Kashiram Bhoyar,
Aged about 34 years, Occu: Household,
R/o Kherda, Post-Sonale,
Taluka Mangrulpir, District -Washim.
3] Geetabai wd/o Govinda Raut,
Aged about 49 years.
4] Sopan s/o Jayaji Ugale,
Aged about 49 years.
5] Anusaya w/o Maroti Chaudhari,
Aged about 51 years.
6] Sakhubai w/o Rajaram Chaudhari,
Aged about 46 years.
7] Laxman Shriram Thakre,
Aged about 44 years.
Nos. 3 R/o Borala, Nos. 4 and 5
R/o Kajalamba, No. 6 R/o Kharola,
Taluka and District -Washim.
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SA198.2005(1).odt 2
RESPONDENTS: 8] Tulsabai wd/o Parashram Thakre,
(Ori. Deft. Nos.6 Aged about 44 years, R/o Kharola,
to 10 on R.A.) Taluka and District -Washim.
9] Subhash Dnyanba Mahalle,
Aged about 26 years.
10] Gajanan Dnyanba Mahalle,
Aged about 65 years.
Nos. 9 and 10 Cultivators, R/o Kajalamba
Mahalli, Taluka and District Wahsim.
11] Zingraji Parashram Mahalle,
Aged about 65 Years.
12] Gokarna Zingaraji Mahalle,
Aged about 59 Years.
Nos. 11 and 12 Resident of Kajalamba
Mahalli, Taluka and District Washim.
RESPONDENTS: 13] Kusum w/o Datta Mahalle,
(Ori. Def. Nos. 2 Aged about 35 years.
to 5 on R.A.
14] Shama s/o Datta Mahalle,
Aged about 14 years, Minor.
15] Kishor s/o Datta Mahalle,
Aged about 13 years, Minor.
16] Jayshree d/o Datta Mahalle,
Aged about 10 years, Minor.
Nos. 13 to 16 all Resident of Washim
Shukrawarpeth c/o Madhukar Khotraji
Ghole, Taluka and District Washim, near
Laxminarayan Innani's Primary School,
Nos. 13 to 16 minor by G.A.L. No. 13
their mother i.e. Kusum wd/o Datta
Mahalle.
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SA198.2005(1).odt 3
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Shri R.L. Khapre, Senior Advocate assisted by Shri V.K. Paliwal
with A.S. Shukla, Advocate for appellant.
Shri S.R. Deshpande, Advocate assisted by Advocate Shri S.W.
Kolhe for Respondent Nos. 2, 3, 8, 11, 12, 14, 15 and 16.
-------------------------------------------------------------------------------------------
CORAM : S.M.MODAK, J.
DATE OF RESERVED : 26/08/2021.
DATE OF DECISION : 28/10/2021.
ORAL JUDGMENT
1] This is an appeal preferred by the Original Defendant
No.1 of Regular Civil Suit No. 121/1996. Apart from him, there
were 9 defendants they are his relatives. Whereas there were 7
plaintiffs; plaintiff Nos. 3 to 7 were joined later on when plaintiff
Nos. 1 and 2 filed an application for amendment. Similarly,
defendant Nos. 7 to 10 were joined later on, on the application of
original plaintiffs for amendment.
2] Plaintiff No.1-Kasabai and one Vatsalabai were real
sisters. Dhrupatabai-Plaintiff No.2 is the daughter of said
Vatsalabai. They initially filed suit. Tulsabai - Defendant No.6 is
another sister of Kasabai- Plaintiff No.1. By way of counterclaim,
she also claimed a share in the partition. Those three sisters were
the daughters of one Parshuram Mahalle. Parshuram was having
three sons. They are Defendant No.1-Govinda, Datta [predecessor-
in-title of Defendant Nos. 2 to 5] and one Zingraji [Defendant
No.9]
3] The said Parshuram married with three ladies. The
plaintiffs and the defendants are the children of deceased
Parshuram begotten from different wives. For better
understanding, the genealogical tree is reproduced below.
Parashram Mahalle
Wife Wife Wife
Demabai Radhabai Kausalyabai
Son
Zingruji
(Defn.-9)
Parashram Mahalle
Datta Govind Zingraji Tulsabai Kasabai-P1 Vatsalabai Bhagabai Yashodabai Savitribai
(Deceased) (Defn.1) D-9 (D-6)
Dhrupadabai Geetabai (P-3) Sopan (P4) Laxman (P7)
(P-2) and
Anusayabai (P5)
D2 D3 D4 D5
Kusum Shama Kishor Jayshree
Description of suit properties is as follows:-
Suit Properties
Gat No.382 Gat No.424 Gat No.444 Gat No.439
Standing in the name of D9 & D10
Subsequently added page 59 of Paper Book
4] Gat No. 382 and Gat No. 424 are situated at village
Kalamba Mahali, District Washim were the original suit properties.
Gat No. 444 and Gat No. 439 were included later on by way of
amendment in the plaint. They stands in the name of Zingraji D-9
and his son D-10. After trial, the first two properties were only
held to be joined family properties. Whereas, subsequently joined
properties were held not to be joint family properties.
5] According to the plaintiffs, suit properties being joint
family properties, the plaintiffs have asked for a share in them.
According to them, the D-1 Govinda was in exclusive possession of
the suit properties.
6] Amongst 10 defendants only D-1-Govinda, D-8
Gajanan and D-7 Subhash filed written statements opposing the
reliefs prayed by the plaintiffs. Whereas D-6-Tulsabai filed a
written statement and counterclaim, thereby supporting the case
of plaintiffs. The suit is mainly contested by Govinda D-1. The sum
and substance of his objection is as follows :-
a] Suit properties do not continue to be joint family
properties.
b] The partition effected by his father Parshuram
during his lifetime and sharers were given to D-1
himself, Datta [predecessor-in-title of D- 2 to D-5 and
Zigaruji] was pleaded.
c] Giving of golden ornaments at the time of the
marriage of sisters by father Parshuram and that is
why they have not claimed share for so long years.
d] Suit is time-barred.
e] Execution of Relinquishment Deed by Datta, Kasabai
P-1 and Tulsabai-D-6 [Exhibit-72] on 20.04.1985.
f] Relinquishment of share by Datta by giving consent
letter dated 06.03.1971 [Exhibit 82]
g] Non-joinder of various parties.
7] The plaintiff examined and relied upon the following
evidences:
1] P.W.1 - Kasabai
2] P.W.2 - Sopan Jagoji Ugale [P-4].
3] Mutation entries [Exhibit-49 and 52 and 53]
4] 7/12 Extract --Exhibit No.50.
Defendant No.6 - Tulsabai gave following evidences.
1) Chandrabhan Khanduji Mahalle [Witness-2]
2) Relinquishment Deed [Exhibit No.72]
Defendant No.1 Govinda gave the following evidence :-
a] One Govinda himself
b] Jayram Khanduji Mahalle (Witness No.2)
c) Consent letter by Datta -- Exhibit No.82
d) Relinquishment Deed [Exhibit No.72]
FINDING BY THE TRIAL COURT
8] The theory of [a] Partition by father Parshuram [b]
Theory of Relinquishment Deed by [Datta, Tulsabai D-6 and
Kasabai -P-1] [c] Consenting for relinquishing by Datta [Exhibit-
72] was not believed by the trial Court. The properties
subsequently added were not considered as Joint Family
Properties. The other two properties were considered as joint
family properties. On these observations, the trial Court declared
share of parties, as follows:-
a) Kasabai (P-1) --- 1/5th share
b) Dhrupatabai (P-2) --- 1/5th share
c) Govinda (D-1) --- 1/5th share
d) D-2 to D-5 --- 1/5th share together
e) Tulsabai (D-6) --- 1/5th share
The Trial Court has not granted any share to following persons.
a] D-9 Zingaraji.
b] D-2 to D-5 - heirs of Datta.
The sale executed in favour of defendant Nos. 7 and 8 by
defendant No.1 was held illegal and not binding on plaintiffs.
FIRST APPEAL
Govinda-D-1 and D-2 to D-5 have preferred First
Appeal. The First Appellate Court though dismissed the appeal has
modified the allocation of shares. It is as follows:-
a) Kasabai (P-1) --- 1/6th share
b) Dhrupatabai (P-2) --- 1/6th share
c) Govinda (D-1) --- 1/6th share
d) D-2 to D-5 --- 1/6th share together
e] Tulsabai (D-6) -- 1/6th share
f] Zingruji (D-9) - 1/6th share
9] So, the First Appellate Court also considered the share
of Zingruji and accordingly declared their shares as 1/6 th each as
mentioned above. The trial Court as well as the First Appellate
Court has not given any share to P-3 to P-7. The findings of the
Trial Court were confirmed except the modification of share as
mentioned above.
SECOND APPEAL.
10] D-1- Govinda has preferred this Second Appeal. It was
admitted on 25.08.2006 on following substantial question of law.
"Has the First Appellate Court decreed the suit
correctly considering the Section-6 of Hindu
Succession Act?"
11] On this background, I have heard learned Senior
Advocate Shri R.L. Khapre assisted by learned Advocate Shri
A.S.Shukla and learned Advocate Shri S.R. Deshpande assisted by
learned Advocate Shri S.W. Kolhe for respondent Nos. 2,3,8, 11,
12, 14, 15 and 16.
12] Though in the memo of present appeal, the sole
appellant has suggested various substantial question of law, only
substantial question of law as reproduced above is framed. There
is drastic amendment in the provisions of Section-6 of Hindu
Succession Act, 1956 [hereinafter referred to as "Act of 1956"] in
the year 2005. After 2005 amendment, the daughters born in a
Joint Hindu Family governed by Mitakshara Law is given status
just that of Son. When the Trial Court and the First Appellate
Court decided the proceedings, the provisions of pre-amended
Section-6 of Act 1956 were in force. Both the Courts below have
declared 1/5th-1/6th share on the assumption that they are
entitled to share after the death of common ancestor deceased
Parshuram. It means either male members /female members were
not held entitled to the share during the life time of deceased
Parshuram. Whereas according to the appellant/Govinda :-
a] They ought to have been notional partition presumed
to have been effected during the life time of deceased
Parshuram.
b] Deceased Parshuram and three sons [D-1 Govinda,
Deceased Datta and D-9-Jingruji] ought to have been
awarded 1/4th share each
c] Daughters of deceased Parshuram ought to have been
awarded relevant share in 1/4th share of deceased
Parshuram.
13] When this Second Appeal No.198/2005 was filed in
the month of March-2005, amendment to Section-6 has not come
into force. So, after the amendment come into force on
09.09.2005, the daughters were treated as sons. In other words,
they are also entitled to equal share that of a Son. So, they do not
claim a share in the share of their father but independently.
14] Till the pronouncement by Hon'ble Supreme Court in
the case of Vineeta Sharma v/s Rakesh Sharma and others1 they
were differences of opinion amongst various High Courts. Now, it
has been clarified that the daughters even born prior to
09.09.2005 were held entitled to share just like that of a son
[Para-137.2]. Even, it has been clarified that these observations
are applicable even to appeal proceedings and proceedings filed
for drawing of final decree. [Para-137.4]
15] The learned Senior Advocate had made feeble
1. (2020) 9 SCC
attempt by contending that in spite of those observations, still the
daughters will not be entitled to share as that of Son. It is on the
basis of provision of Section-6(5) of amended provisions of
Section-6 of the said Act. This contention is clarified by saying that
as there there was a partition in between deceased Parshuram on
one hand and three sons on the other hand, the daughters will not
get share as that of Son.
16] Before dealing with all above contentions, it will be
material to consider certain background:
BACKGROUND
Deceased Parshuram was having three wives, they are Demabai,
Radhabai and Kausalyabai. It is not known, whether deceased
Parshuram married to them after the first marriage is dissolved or
during subsistence of the first marriage or whether all married
earlier to 1955. So, we are proceeding on the assumption that the
issues born to deceased Parshuram from respective wives are the
legitimate issues. Either plaintiffs or contesting defendants have
not adduced any evidence as to how deceased Parshuram acquire
two suit properties. There are mutation entries at Exhibit No.49
[adding the names of Kasabai P-1 Vatsalabai [mother of P-2], D-6
Tulsabai, Datta and D-1 Govinda, as legal heirs of deceased
Parshuram. Parshuram expired on 17/07/1963. There are 7/12
extracts at Exhibit Nos. 50 and 51 regarding names of other above
5 persons. These are the only documents. Other document
pertains to relinquishment deed and consent letter. On the basis
of this evidence, trial Court as well as First Appellate Court
concluded that the two properties are joint family properties.
17] Appellant/Govinda has contended in the present
appeal that "relinquishment deed can be said to be a document
regarding oral relinquishment and as such it does not require
registration". Even he has contended that "the possession of
appellant can be considered to be adverse to those of other
sharers". At one stage, even he has pleaded that "the two
properties [subsequently added in the plaint] belonging to D-9
Zingraji can be said to be joint family properties [ This contention
is on the basis that the Courts below have not believed the theory
of partition as claimed by him]". So, in the memo of appeal he has
not challenged the findings of the Courts below that "two suits
properties are joint family properties. In view of that there is no
reason for this Court to interfere in those findings. So also, the
trial Court as well as First Appellate Court has not believed three
defences taken by the appellant/Govinda.
FINDINGS ON THE POINT OF THEORY OF PARTITION
18] The trial Court observed "as per the evidence of
Govinda, partition took place during the life time of father
Parashram in the year 1983 whereas in the cross-examination, he
has admitted that father expired in the year 1963". Therefore,
partition during the life time of the father around 1983 is not
believable [para-25]. The trial Court noted down inadequate
pleadings in the written statement about the partition. The trial
Court has also taken a note of fact of not filing any document
about partition [Para-24]. Whereas nothing from the appellate
Court judgment is pointed out to me about theory of partition.
FINDINGS ON THE POINT OF RELINQUISHMENT DEED AND
CONSENT LETTER
The trial Court observed :-
a] Witness Chandrbhan Mahalle [Examined by D-6-
Tulsabai] is not aware anything about the contents
of the documents.
b] No revenue record was changed after 1971 or 1985,
in view of the documents at Exhibit Nos. 72 and 82.
c] Mutation Entry [Exhibit No.49] still shows the names
of plaintiffs and defendant Nos. 1 to 6. It seems that
Exhibit Nos. 72 and 82 were not acted upon.
d] Relinquishment deed is compulsorily registerable
document and they are not registered and hence in
admissible in evidence. [Para-21, 29 and 30].
Whereas the Appellate Court have also confirmed those findings.
19] It means that on the basis of above findings, the
appellant/Govinda while arguing the appeal has restricted his
arguments to the issue of interpretation of Section-6 of the Hindu
Succession Act.
PROVISIONS OF SECTION-6 OF THE HINDU SUCCESSION
ACT, 1956.
20] The provisions of Section-6 of the said Act can be
invoked only when there is an interest in Mitakshara Coparcenary
Property. The position prior to the amendment of 2005 is as
follows:-
a] The interest devolves by survivorship upon the
surviving numbers of the coparcenor.
b] If there is a female member then above rule of
succession is deviated. In that case, the interest
devolves by testamentory or intestate succession and
not by surivorship.
21] So, even if it is presumed that there was Mitakshara
Coparcenary Property forming deceased Parshuram and his three
sons, the question arises that how the interest of deceased
Parshuram will devolve as per the Rule of Survivorship? Because
at that time, deceased Parshuram was having three daughters.
Plaintiff-1 Kasabai, Vatsalabai P-2 Tulsabai D-6. So, interest will
devolve as per the succession and not as per the survivorship. In
that eventuality, what will be the interest of deceased Parshuram
at the time of death in joint family property, is the question? At
this juncture, the theory of notional partition will come into
picture.
22] So, the learned Senior Advocate Shri R.L. Khapre is
right that the Trial Court as well as the First Appellate Court has
not considered these principles of the Hindu Succession Act. Both
the Courts have presumed that every sharer will get equal and
independent share. The principle of notional partition was not at
all considerd. The Courts below ought to have done calculation of
shares as follows :-
Deceased Parshuram (1/4th share)
Govinda Datta Zinruji
D-1 1/4th 1/4th D-9
¼th
So, ¼th share of deceased Parshuram will devolve on his death as
follows :-
Parshuram (¼th share)
Kasabai Vatsalabai Tulsabai Govinda Datta Zingraji P3 P-4 & 5 P-7
P-1 P-2 D-6 D-1 P-3-5 D-9 Gitabai 1/36 1/36
1/36 1/36 1/36 1/36 1/36 1/36 1/36
(+1/4) (+1/4) (+1/4)
However, this apportionment is only of academic interest.
Because, the law has changed after 2005 amendment.
2005 AMENDMENT
23] One of preamended Section-6 of the said Act comes
into picture only when there is a female member. Otherwise
interest devolves by survivorship on surviving members of
coparcenary. Till 2005 amendment, only male members were
forming coparcenary. However, as per 2005 amendment, even
daughter is considered as a coparcenor.
24] As there were differences of opinion, the Hon'ble
Supreme Court in the case of Vineeta Sharma had put to rest the
controversy. Now, the daughter born even prior to 09/09/2005 is
to be considered as a coparcenor. The three daughters were
admittedly born prior to 09/09/2005. Even it has been clarified
that the interpretation given will be applicable to pending appeals
and even to proceedings pending for drawing up a final decree.
There was a feeble attempt to rely upon the provisions of Section
6(5) of amended provision. The amended provisions will not be
applicable in following contingencies.
a] If there is already partition effected prior to
20/12/2004.
b] The partition shall either be registered deed of
partition or partition effected by decree of Court.
24-A. The Hon'ble Supreme Court in Vineeta Sharma's case
have also interpreted this provision as follows :-
"Oral partition in exceptional case can be accepted, if
it is supported by public documents and the evidence
should be of such degree that it has to be presumed
that partition was effected by decree of Court".
25] In this case, even though there was a theory of
partition alleged by appellant-Govinda, there was never public
document, even there was no document evidencing the partition
effected during the lifetime of father Parshuram.
26] Even though this Court has concluded that both the
Courts below have erred in considering the provisions of Section 6
of 1956 Act in view of the observations by the Hon'ble Supreme
Court in the case of Vineeta Sharma v/s Rakesh Sharma and
others [which is binding by this Court too], this Court has to
answer the substantial question in the affirmative. It means that
decision about decreeing the suit has to be confirmed.
DECLARATION OF SHARES
27] Both the Courts below were right in concluding that
Gut No. 382 and Gut No. 424 were the only joint family
properties. There is an objection that Zigaruji ought not to have
granted 1/6th share by the First Appellate Court. The reason is he
has not challenged the findings [not granting share] of the trial
Court.
28] Even both the Courts below have not given share to
legal heirs of deceased-Datta [subsequently added plaintiffs]. It is
a known fact that Court is bound to declare shares of persons
entitled in a suit for partition. Once they have been joined,
whether they have claimed share or not and whether they have
contested the suit or not, it is immaterial. So, the contention about
defendant No.9 Zingruji not entitled to share [as he has not asked
for it] cannot be accepted. The trial Court observed that "only the
original parties so that the P-1, P-2, D-1, D-2 to D-5 and D-6 are
the sharers of the suit property". The trial Court has considered
them as five heirs and granted 1/5 th share[ Para-34]. Whereas the
Appellate Court held that "each daughter and each son is entitled
for 1/6th share. Accordingly, granted 1/6 th share to defendant No.9
also. It is true that the First Appellate Court corrected the mistake
committed by the trial Court. Even this Court feels that plaintiff
Nos. 3 to 5 and 7 are entitled to share in two properties. Out of
them, Plaintiff No.4- Sopan has given evidence. These plaintiffs
are the heirs of daughters of Parshuram. So, they will get the share
of their predecessor-in-title. So far as, the plaintiff No.6-Sakubai is
concerned her relationship with Parshuram is not cleared. Hence,
this Court is unable to consider her claim. In view of that, fresh
allocation of shares will be as follows :-
a) Kasabai (P-1) --- 1/9th share each
b) Dhrupatabai (P-2) --- 1/9th share each
c) Geetabai (P-3) --- 1/9th share each
d) Sopan (P-4) and ---1/9th share collectively
Anusayabai (P-5)
e) Laxman (P-7) --- 1/9th share each
f) Govinda (D-1) --- 1/9th share each
g) D-2 to D-5 --- 1/9th share each
h) Tulsabai (D-6) --- 1/9th share each
i) Zingaraji (D-9) --- 1/9th share each
EXECUTION OF SALE-DEED IN FAVOUR OF DEFENDANT
29] The Defendant No.1 has sold 1 Guntha each of the
land to Defendant Nos. 7 and 8. It is admitted by Defendant No.1
during cross-examination. Those defendants have not disputed
this position [Para-31]. It was considered by the trial Court while
dealing with the prayer of plaintiff for grant of permanent
injunction. Those sale-deed were considered as illegal and
unauthorized and not binding of other parties [Para-37]. Those
sale-deeds were not declared illegal by passing an operative order.
On this background, this Court can only say that when the suit
lands will be partitioned by Revenue Authorities, the area sold by
defendant No.1 in favour of defendant Nos. 7 and 8 be considered
in the share to be allotted to defendant No.1. At the same time,
decree of permanent injunction needs to be confirmed against
defendant No.1.
DAMAGES
30] The trial Court has directed defendant No.1 to give
share of Rs. 6000/- each to Plaintiff Nos. 1, 2 and D-6 for the last
three years. Discussion find place in para-36 of the trial Court
judgment. Apart from amount granted to P-1, P2 and D-6 (by the
trial Court), the Appellate Court granted Rs. 6,000/- to D-9 and
D2 - 5 (Collectively). While fixing the amount of mesne profit in
subsequent inquiry, this amount be adjusted. Others are entitled to
similar relief.
FRAGMENTATION
31] If during execution, issue of fragmentation will arise,
the trial Court has taken care by observing share of defendant
No.6 be added in the share of Plaintiff Nos.1 and 2. The Appellate
Court has modified the share from 1/5 th to 1/6th. Whereas this
Court has modified to 1/9th share. The Executing Authority/
Revenue Authorities are at liberty to adjust the shares by addition
of share of one member with other, if he or she consent in order to
avoid fragmentation of land.
32] In view of the above discussion, the following order is
passed :-
ORDER
1] The appeal is dismissed.
2] The share of two suit lands i.e. Gat Nos. 382 and 424
is modified as follows :-
a) Kasabai (P-1) --- 1/9th share each
b) Dhrupatabai (P-2) --- 1/9th share each
c) Geetabai (P-3) --- 1/9th share each
d) Sopan (P-4) and ---1/9th share collectively
Anusayabai (P-5)
e) Laxman (P-7) --- 1/9th share each
f) Govinda (D-1) --- 1/9th share each
g) D-2 to D-5 --- 1/9th share each
h) Tulsabai (D-6) --- 1/9th share each
i) Zingaraji (D-9) --- 1/9th share each
3] In addition to plaintiff Nos.1 and 2, D2- D-5
(collectively), Defendant No.6 and Defendant No.9,
Defendant No.1 is directed to pay Rs. 6,000/- to
Plaintiff Nos. 3, 4 & 5 (collectively) and to P-7.
4] The direction to defendant No.1 not to alienate two
suit lands is confirmed.
5] The order of conducting inquiry as to mesne profit is
confirmed.
6] Preliminary decree be drawn.
7] In view of the above modification, the appeal is
disposed of.
JUDGE
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