AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.796 OF 2005 APPEAL NO.796 OF 2005 APPEAL NO.796 OF 2005 WITH WITH WITH SECOND SECOND SECOND APPEAL NO.42 OF 2005 APPEAL NO.42 OF 2005 APPEAL NO.42 OF 2005 Smt Vanita Victor Mckenzie & Ors. ...Appellants (In both the Appeals) Versus. Daniel George Mckenzie & Ors. ...Respondents (In both the Appeals) --- Shri G.S.Godbole with Shri Pankaj J. Das for the Appellants in both the Appeals. Shri T.D.Deshmukh for the Respondent Nos.1,2-A,2-B, 3, 4, 6 to 8 and 10 to 12. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th & 8th April, 2008. : 07th & 8th April, 2008. : 07th & 8th April, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Counsel appearing for the parties were heard on 13th February, 2008 and the Judgment was reserved. The Second Appeal is kept today for dictation of Judgment. 2. These Second Appeals are pending in this Court from the year 2005 at the stage of admission. As the appeals were adjourned from time to time to enable the parties to arrive at an amicable settlement, the Appeals could not be heard for admission. After the parties failed to arrive at settlement, the Appeals were taken up for hearing with notice to the Counsel appearing for the parties that the Second Appeal will be heard : 2 : 2 : 2 : on substantial questions of law which are indicated hereinafter:- "1. Whether the learned Appellate and Trial Courts were justified in applying certain principles applicable to Hindus in relation to a of Joint Family, the Karta of the joint family, Joint Family Property, self-acquired property, etc to the facts of the case in when all the parties are Indian Christians, who are governed by the Indian Succession Act, 1925? 2. Whether certain recital unknowingly incorporated by reference to Plot No.19 in the document of Mortgage of Plot No.20, will decide the nature of the rights of the parties in respect of the suit Plot No.19? 3. Despite the Plot No.19 being a yearly lease-hold property at the time of death of George Mckenzie, whether it becomes an ancestral property after his demise notwithstanding its allotment in favour of one of his sons? 4. Whether dual ownership is a concept alien : 3 : 3 : 3 : to Indian Laws? 5. Whether the suit was barred by limitation? 3. I have heard the submissions of the learned Counsel appearing for the parties at some length. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. 4. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the Trial Court. The suit was filed by one Daniel. It will be necessary to refer to the genealogy showing the relationship between the parties. George Meckenzie ¦ ------------------------------------------------- ¦ ¦ ¦ ¦ Samuel Francis Benjamin Daniel (D-1) (D-2) (Dead) Plff. (dead) ¦ ¦ ------------------------ ¦ ¦ ¦ ¦ ¦ Tarabai Victor Nalini ¦ (dead) (dead) ¦ ¦ ¦ ¦ ¦ ------------------------ ¦ ¦ ¦ ¦ ¦ Vanita Ritesh Siyona ¦ ¦ ¦ ----------------------------------------------------------- : 4 : 4 : 4 : ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ Smt Saroj Richard Peter Alex Reeta Roopa Pournima Aneeta Lave- Hilda (D-4) (D-5) (D-6) (D-7) (D-8) (D-9) (D-10) (D-11) eena (D-3) (D-12) 5. There is no dispute between the parties that they are Indian Christians. The case made out by the original plaintiff Daniel in the suit is that two plots bearing CTS No.7103/19 and No.7103/20 were leased by the State Government in favour of his father George on yearly rental basis. The case made out by the said Daniel is that the land bearing CTS No.7103/20 (hereinafter referred to as "plot No.20") was later on permanently granted by the State Government to his father. It is alleged that after the demise of the father George, the original 1st defendant Samuel was looking after both the plots. He was recovering rent from the tenants on the property. It is contended that the rent payable in respect of C.T.S. No.7103/19 (hereinafter referred to "the suit plot" or "plot No.19") was being paid by the deceased father to the State Government. There was a request made by the deceased father to the State Government to allot the said plot No.19 permanently. It is alleged that the order of allotment was passed in the name of the 1st defendant Daniel by the Collector. It is alleged that the order was passed in the name of the 1st defendant on behalf of all the brothers. The plot No.19 was an open plot of land upto the year 1969. It is alleged that the said plot was all along in possession of the father George during his life time. The case of the plaintiff is that all the brothers had undivided share in the said plot No.19 though the said plot was purportedly granted in the name : 5 : 5 : 5 : of the 1st defendant. 6. It was pointed out that as per the terms and conditions of the Kabulayab, a building was required to be built upon within a period of two years from the date of execution of the Kabulayab. It is alleged that the 1st defendant with the consent of the 2nd defendant Francis, the plaintiff and deceased Benjamin applied for a loan of Rs.35,000/- by mortgaging the other plot No.20. Thereafter, the construction of a building on Plot No.19 was carried out. A portion of the constructed building was placed in possession of the Bank of Maharashtra. It is stated that as the building was used for non-residential purposes, the State Government recovered fine amount and regularised the breach. The prayer in the suit filed by the plaintiff is for partition and separate possession of his alleged 1/4th share in the suit plot No.19 and the building thereon. 7. The 1st defendant in the written statement did not dispute the genealogy and relationship between the parties. The 1st defendant admitted that the plot Nos.19 and 20 were taken by the deceased George on lease from the State Government. It is an admitted position that subsequently the plot No.20 was permanently allotted to the deceased George on payment of necessary occupancy price to the Government. Though it was admitted in the written statement of the 1st defendant that the deceased George was in possession of the said plot No.19 during : 6 : 6 : 6 : his lifetime, it is contended that after the demise of the said George, the said plot No.19 was taken by the 1st defendant Samuel on lease. It is the contention of the 1st defendant that in the year 1965, the said plot No.19 was permanently allotted to him and he paid the occupancy price thereof. It is submitted that the building was constructed on the said plot by the 1st defendant and there was no contribution made by the other brothers while the construction of the building was carried out. The case made out by the 1st defendant is that his none of the brothers were entitled to claim any share in the said plot No.19 or the two storied building constructed thereon. The other defendants supported the case made out by the plaintiff and they also claimed their share in the suit property. 8. Various issues were framed by the Trial Court. The said issues and the findings recorded thereon read thus :- ISSUES FINDINGS (i) Does the plaintiff prove that the suit house bearing C.S.No.7103/19 as described in para No.1A of the plaint Partly in is the joint family property respect of and hence he has 1/4th joint open plot share in it? No.19 only. (ii) If yes, whether the plaintiff 1/4th share is entitled to claim separate in value of share by partition? plot. (iii) Do the defendants No.1A and 1B prove that the suit house Only the bearing C.S.No.7103/19, is building on self-acquired property of the plot is : 7 : 7 : 7 : their father late Samuel? self-acquired. (iv) Whether the plaintiff is entitled to future mesne profit? No. (v) What order and costs? As per final order. 9. Thereafter the trial Court proceeded to partly decree the suit by passing the following decree:- "(1) The plaintiff has 1/4th share, the branch of deceased Samuel collectively has 1/4th share, defendant No.2 Francis has 1/4th share and the defendant Nos.3 to 12 branch of deceased Benjamin having collectively 1/4th share in the open plot No.7103/19(tank plot) under constructed building at Solapur, north Sadar bazaar. (2) The commissioner be appointed for fixing market price of the open plot bearing CTS No.7103/19 of north Sadar bazaar Solapur and the value of the said plot be distributed among the plaintiff and defendant as per their share on payment of C.F. (3) The suit of the plaintiff in respect of partition and separate possession : 8 : 8 : 8 : regarding the building construction on the open plot No.7103/19 is hereby dismissed." 10. There were two Appeals preferred before the District Court. One Appeal was preferred by the original plaintiff and the other Appeal was preferred by some of the legal representatives of the original defendant No.1. Both the Appeals were heard together by the Appellate Court. The learned District Judge, Solapur held that the plaintiff has proved that the suit plot was of common ownership of the four brothers. learned Judge held that the legal representatives of the deceased-1st defendant have failed to prove that the two storied building on the suit plot was exclusively owned by the 1st defendant Sameul. Therefore the learned District Judge dismissed the Appeal preferred by the legal representatives of the original defendant No.1. The learned Judge allowed the Appeal preferred by the original plaintiff as well as Cross Objection preferred by the original defendant Nos.5 to 15. The modification made by the learned District Judge to the decree passed by the Trial Court was to the extent that the parties will be entitled to 1/4th share not only in the suit plot but also in the building constructed on the suit plot. The Appellate Court passed a decree for partition and separate possession of 1/4th share in plot No.19 and the building thereon in favour of the plaintiff. 11. These two Second Appeals have been preferred by some of : 9 : 9 : 9 : the legal representatives of the original defendant No.1. 12. The learned Counsel appearing for the appellants in both the Appeals has taken me through the impugned Judgments, notes of evidence and other relevant documents forming part of the compilation. 13. The first submission made by the learned Counsel appearing for the appellants is that the Judgment of the trial Court shows that the submissions were made on the point of bar of limitation of the suit. He invited my attention to the finding recorded by the trial Court on the submissions made on the ground of the bar of limitation of suit in paragraph No.48 onwards of the Judgment. He submitted that the said finding of the trial Court on the issue of limitation is erroneous. He submitted that in the Appeal preferred by the legal representatives of the defendant No.1 before the District Court, a specific ground of challenge to the decree was incorporated on the ground of bar of limitation and the said ground was canvassed at the time of the hearing of the Appeal. It is submitted that the learned District Judge has committed an error by not even framing a point for determination on the point of bar of limitation and by not discussing the issue regarding bar of limitation. He submitted that in view of section 3 of the Limitation Act, 1963, (hereinafter referred to as "the said Act of 1963), it was the duty of the Appellate Court to examine the plea of bar of limitation and to record a finding especially : 10 : 10 : 10 : when before the trial Court, both the parties had argued on the point of limitation and there is a finding recorded by the trial Court on the issue of limitation. He has placed reliance on several decisions of the Apex Court, trial Court and other High Courts. He submitted that even assuming without admitting that the issue of limitation was not canvassed at the time of the hearing of the Appeal, in view of the mandate of section 3 of the said Act of 1963, it was the duty of the Appellate Court to apply its mind to the plea of bar of limitation and to record a finding thereon. As there was a finding recorded on the said issue by the Appellate Court, it was the duty of the Appellate Court to consider the merits of the said finding and to decide whether the suit was within limitation. I have referred to the decisions relied upon by the learned Counsel appearing for the appellant in the later part of the Judgment. 14. The other submission made by the learned Counsel appearing for the appellants is on the perversity of the Appellate Court Judgment. He pointed out that in paragraph No.11 of the Judgment of the Appellate Court, a completely erroneous view has been taken by the Appellate Court that the concept of dual ownership is unknown to the law. He invited my attention to various exhibited documents on record which were not considered by the Appellate Court. After taking me through various documents, it is submitted that non-consideration of the said documents makes the Judgment of the 1st Appellate Court perverse. It is submitted that the contention raised by the : 11 : 11 : 11 : plaintiff and supporting defendants that the 1st defendant and his three brothers had a joint family has been considered and rejected. He submitted that the deceased father was holding only lease hold rights in respect of the suit plot No.19 and the first defendant had obtained an allotment in his favour on payment of occupancy price. He submitted that none of his brothers can claim ownership rights or a share in the suit plot. He submitted that the 1st defendant had arranged for a loan from a bank (Bank of Maharashtra) in his individual capacity and only on the ground that other two brothers were parties to the deed of mortgage, there was no occasion to record a finding that the entire building was jointly owned. 15. The learned Counsel appearing for the original plaintiff and the supporting defendants has also made detailed submissions. His submission is that there is nothing in the Judgment of the Appellate Court to show that the issue of bar of limitation was canvassed before the Appellate Court. His submission that merely taking a ground in the Memorandum of Appeal was not sufficient. He has invited my attention to the various decisions of this Court as well as Apex Court. I have adverted those decisions in the later part of the Judgment. He has also taken me through the various findings recorded by the Appellate Court. He pointed out that the decision of the Apex Court is not based only on the concept of dual ownership. He submitted that the Appellate Court has carefully considered the evidence and has recorded a finding on merits. He submitted : 12 : 12 : 12 : that the recitals in various documents to which a reference was made by the Counsel for the appellants clearly proves the case of the original plaintiff. He submitted that there is a clear finding of fact recorded by the Appellate Court on the basis of oral and documentary evidence on record that the 1st defendant cannot be the exclusive owner of the building as well as the suit plot. he submitted that the said finding cannot be disturbed in the Second Appeal. He submitted that the plea of bar of limitation is always a mixed question of law and fact and therefore for the first time, the said plea cannot be agitated in the Second Appeal when there is nothing on record to show that the appellants have argued the said plea at the time of hearing of the Appeal before the District Court. He submitted that when admittedly the deceased father George was in possession of the suit plot as the lessee thereof during his life time, by no stretch of imagination the 1st defendant can claim the same to be his exclusive property. He submitted that no interference is called for. 16. By way of reply, the learned Counsel for the appellants submitted that he is prepared to demonstrate as to how the finding of the trial Court on the issue of limitation is incorrect. He submitted that as this Court did not have the benefit of a finding on the issue of limitation which is a mixed question of law and fact, this Court will have to send back the matter to the District Court so that a proper finding can be recorded on the issue of limitation. : 13 : 13 : 13 : 17. I have given careful consideration to the submissions of the learned Counsel appearing for the parties. It will be necessary to refer to the Judgment of the trial Court. As pointed out earlier, there is no specific issue framed by the Trial Court on the bar of limitation. It must be stated here that an application for amendment of the written statement was made on behalf of the 1st defendant for the purposes of raising a plea of bar of limitation. The said application was rejected. On the issue of limitation, the learned Trial Judge has observed thus :- "...However, on the basis of the evidence on record and facts and circumstances of this case the learned advocate Shri Kumbhakoni and Shri Valsangkar have argued on the point of limitation". 18. Thus it appears that the Advocates appearing for the plaintiff as well as the 1st defendant argued the point of limitation before the Trial Court. The submission before the Trial Court was based on Article 110 of the said Act of 1963. The Trial Court noted the fact that admittedly the lease in respect of the suit plot was granted to the deceased George. The Trial Court observed that the dispute regarding the payment of penalty as regards the construction on the suit plot was going on till the year 1986. Thereafter a notice was issued in : 14 : 14 : 14 : the year 1989 by the plaintiff to the 1st defendant. As the 1st defendant did not give share, the suit was filed on 4th July, 1989. The Trial Court noted that by order dated 27th April, 1981 passed by the State Government, the construction was regularised by the State Government. Therefore, the learned Trial Judge held that it cannot be said that the suit was not within limitation. 19. Perusal of the Judgment of the Appellate Court shows that a point for determination has not been framed by the learned District Judge on the bar of limitation. It will be necessary to refer to paragraph No.7 of the Judgment of the District Court. In the said paragraph, the learned District Judge has reproduced the submissions made by the learned Advocates appearing for the parties in the Appeals. The submissions made on behalf of the legal representatives of the deceased-1st defendant have been also noted in some detail. Perusal of the paragraph No.7 shows that there was no submission made at the time of hearing of the Appeal on behalf of the Advocate appearing for the legal representatives of the 1st defendant on the finding recorded by the learned Trial Judge on the plea of bar of limitation. It is sought to be contended that submissions were made before the 1st Appellate Court on the plea of bar of limitation. In the face of the Judgment of the Appellate Court and especially the paragraph No.7 thereof, it is very difficult to accept the submission made by the learned Counsel appearing for the appellants that a submission based on : 15 : 15 : 15 : the bar of limitation was canvassed before the Appellate Court and that the same has not been decided. It must be also stated here that the appellants have not chosen to approach the same Court for getting the issue clarified. Moreover, in the memorandum of Second Appeals, there is no ground pleaded that the issue of limitation was argued but the District Court has not considered the said issue. Therefore, this Court will have to proceed on the footing that at the time of the hearing of the Appeals before the District court, the advocate for the legal representatives of the 1st defendant did not argue on the issue of limitation. 20. Now the question which remains to be decided in this behalf is whether it was the duty of the first Appellate Court to consider the plea of bar of limitation by going into the merits of the finding recorded by the Trial Court on the plea of bar of limitation. In this behalf it will be necessary to refer to various decisions on which reliance has been placed by the learned Counsel appearing for the parties. Shri Godbole, learned counsel appearing for the appellants placed reliance on a decision of the Apex Court in the case of Punjab State Co-operative Milk Prod.Fed.Ltd and others Vs. R.P.Soni [(2006) 9 SCC 190). However, the said decision of the Apex Court is only an order of remand which does not decide the controversy involved in the present appeal. The second judgment on which reliance was placed is in the case of Madhukar and others Vs. Sangram and others [(2001) 4 Supreme Court Cases Page 756). The : 16 : 16 : 16 : Apex Court in the said decision has discussed the duties of the first Appellate Court. In the said judgment the Apex court has quoted with approval its earlier decision in the case of Santosh Hazari Vs. Purshottam Tiwari (deceased) By legal representatives [(2001) 3 Supreme Court Cases Page 179]. The submission on the basis of the said decision is that it is the duty of the first Appellate Court to record its findings only after dealing with all the issues of law as well as fact. Another decision relied upon by the learned counsel for the appellants is in the case of Syed Abdul Wahab (dead) by legal representatives Vs. Ayisha Beevi (deceased) through legal representatives and another [(2005) 10 Supreme Court Cases Page 455]. This was a case where though a substantial question of law was formulated by the High Court, while deciding Second Appeal, the said question on the issue of bar of limitation was not decided by the High Court. Therefore, the Apex Court passed an order of remand. Reliance was placed on what is held by the Apex Court in paragraph 3 of its decision in the case of H.K.N.Swami Vs. Irshad Basith (dead) by legal representatives [(2005) 10 Supreme Court Cases Page 243). Paragraph No.3 reads thus: "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate Court is required to address itself to : 17 : 17 : 17 : all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding