:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.539 OF 2004 SECOND APPEAL NO.539 OF 2004 SECOND APPEAL NO.539 OF 2004 Jamunabai Bhalchandra Bhoir Since deceased through her legal heirs and representatives 1)A. Bhanudas Bhlachandra Bhoir Age 56 years, Occ:Business, residing at Kirti Bungalow, Saibaba Mandir, Murdha Village, Bhayander, Uttan Road, Bhayander (W), Tal & Dist. Thane 1)B. Vinayak Bhalchandra Bhoir Age 53 years, Occ: Business, residing at Sai Ashirwad, Village: Murdha Village, Near Murdha Bus Stop, Bhayander (W), Tal & Dist. Thane. 1)C. Hansraj Bhalchandra Bhoir Age 39 years, Occ: Business, residing at Kirti Bungalow, Saibaba Mandir, Murdha Village, Bhayander, Uttan Road, Bhayander (W), Tal & Dist. Thane. 1)D. Smt. Bhagibai Sadanand Patil Age: 59 years, Occ:Household, residing at Pandurang Smruti, Kharigaon, B.P.Road, Kharigaon, Naka, Talao Road, Bhayander (E), Tal and Dist. Thane ...Appellants. v. Moreshwar Mukund Bhoir Adult, Occuaption: Agriculturist, Residing at Murdha, Post: Bhayander, Taluka & District Thane ...Respondent. Mr.A.V.Anturkar with Mr.S.S.Sayyed , adv. for the appellant 1B, advs. for the appellants. Mr.A.A.Joshi with Mr.Alok Singh for M/s.ABG & Associates, advs. for the other Appellants. Mr.I.S.Thakur , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 24th September, 2008. DATE: 24th September, 2008. DATE: 24th September, 2008. :2: ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appeal is filed by the original defendant challenging the judgment and order passed by the learned Joint District Judge, Thane in Civil Appeal No.10 of 2004, whereby the said appeal was allowed, setting aside the dismissal of the regular civil suit no.220 of 2000 by the learned Vth Joint Civil Judge, Junior Division, Thane. 2. To state in brief, the plaintiff/respondent Moreshwar and the deceased defendant/appellant Jamunabai were the real brother and sister. Jamunabai died pending the second appeal and her legal representatives were brought on record. One Mukund Bhoir was their father and Gangabai was their mother. Suit property bearing Survey No.658, Hissa No.3 corresponding to new Survey No.251, Hissa No.3 situated at Village: Bhayander, Taluka & District: Thane was admittedly owned by Mukund, father of the parties. According to the plaintiff, their parents were married in or about 1928 and the defendant Jamunabai was born sometimes in the year 1932. Plaintiff was born on 20th June, 1935. Their father Mukund died intestate sometimes in 1936 leaving behind his widow, daughter and son as the only :3: legal heirs. In 1945 defendant married. At the time of death of their father, plaintiff was infant and was under the guardianship of his mother Gangabai. Under the Hindu Law as prevailing at that time, the plaintiff became exclusive owner of the property left behind by his father. Defendant had no legal right of inheritance. Their mother Gangabai was entitled only to maintenance out of the property of her husband. She had also no right of inheritance or share in the property. Their mother Gangabai died on 10-10-1990. According to the plaintiff, after death of the mother, the defendant approached the revenue authority and got her name entered as shareholder in the property. Plaintiff raised objection and also preferred appeal but without success. Therefore, the plaintiff filed suit for declaration of his exclusive title over the suit property and for perpetual injunction restraining the defendant from causing any interference in his possession over the suit property. 3. The defendant contested suit by filing written statement. She admitted relationship between the parties. According to her, suit property was ancestral property in the hands of their father Mukund as he had inherited the same from his father. It is denied that their parents were married in 1928. According to her, they were married in 1932. According to her, their father died in 1939 and not in 1936 as pleaded by the :4: plaintiff. It is also contended that she herself was aged about 6 years at the time of death of the father. According to her, plaintiff himself was born in 1938. After death of their father, their mother had equal right in the property alongwith the plaintiff and she had become absolute owner to the extent of half share in the property. After her death, defendant is entitled to right of inheritance in that property. It is contended that land was being actually cultivated by Bhalchandra, who was husband of the defendant and after his death, land was being cultivated jointly by the plaintiff and the defendant. The plaintiff can not claim exclusive ownership over the property. Mutation entry has been rightly taken in the revenue record showing the plaintiff and the defendant as the owners. Therefore, she contended that the suit is liable to be dismissed. 4. Several issues were framed by the learned trial Court. The learned Trial Court came to conclusion that the plaintiff was born prior to 1937 and also their father had died prior to 1937. However, the learned trial Court came to conclusion that the plaintiff is not exclusive owner of the suit property nor he is in exclusive possession of the same. According to the learned trial Court, Gangabai mother of the parties was in possession of the property on the basis of right of maintenance and in view of the provisions of Section 14(1) of the Hindu Succession Act, she had become :5: absolute owner of the property. The learned trial Court opined that in view of this after death of the mother, defendant is entitled to share in the property. With these findings, suit came to be dismissed. 5. Plaintiff preferred regular civil appeal no.10 of 2004. The learned Lower Appellate Court noted that the learned counsel for the defendant had fairly conceded that the evidence on record could not come to her rescue to suggest that their father Mukund had died after 1937. The learned Appellate Court also agreed with the findings of the trial Court that their father Mukund had died prior to 1937. Having come to this conclusion, the learned Appellate Court found that even though their mother Gangabai was entitled to maintain from that property, she had never acquired nor possessed that property and, therefore, she could not claim to have become absolute owner of the property under Section 14(1) of the Hindu Succession Act, 1956. The learned Appellate Court came to conclusion that the plaintiff alone was exclusive owner of the suit property since the time of death of his father and the defendant does not get any right, title or interest in the suit property. In the result, appeal was allowed. Judgment and decree passed by the trial Court came to be set aside. The suit filed by the plaintiff was decreed. Being aggrieved by the said judgment of the Appellate Court, the defendant has preferred the second appeal. :6: 6. The appeal was admitted observing that substantial questions of law are raised in ground nos.12, 15 and 18 in the appeal memo. These grounds read as follows: "12) The Lower Appellate Court erred in holding that Mukund Jagu Bhoir died prior to 1937. In this connection, the Appellant/Defendant submit that there was no any documentary evidence before the Trial Court that the said Shri Mukund Jagu Bhoir died prior to 1937. However, the advocate of the Appellant/Defendant had fairly conceded before the Ld. Lower Appellate Court that there was no any documentary evidence to show the date of death of late Shri Mukund Bhoir. However, the Ld. Lower Appellate Court has taken a different meaning of the said statement made by the Advocate of the Appellant/Defendant during the course of argument of the said appeal. 15) The Lower Appellate Court had given much importance to the provisions of Hindu Women’s Right to Properties Act, 1937. In this connection, the Appellant/Defendant submit that the said Act has become redundant by virtue of enactment of Hindu Succession Act, 1956 and not only that the said fact has been elaborately discussed by the Hon’ble Supreme Court, in a judgment reported in AIR-1977, Supreme Court, 1944. However, the Ld. Lower Court failed to appreciate the said legal provisions and without considering the said legal provisions, the Ld. Lower Court was pleased to hold that late Smt. Gangabai Mukund Bhoir had not inherited any rights in the suit properties by giving much reliance to the uncodified Hindu Law and also the provisions of Hindu Women’s Right to Properties Act, 1937, when in fact, the provisions of Hindu Succession Act overrides the provisions of uncodified Hindu Law and the provisions of Hindu Women’s Right to Properties Act, 1937. Hence, the findings given by the Ld. Lower Appellate Court are contrary to the provisions of Hindu Succession Act. 18) The Lower Appellate Court ought to have held :7: that right of maintenance of Hindu Women was pre-existing rights, which flows from the Shastric Law. However, the Ld. Lower Appellate Court failed to appreciate the law interpreted by the Hon’ble Supreme Court in Judgment Reported in AIR-1977, Supreme Court, 1944 and Judgment reported in AIR-1998, Supreme Court, 2401. The Appellant/Defendant further submit that the facts involved in the said Judgment Reported in AIR-1977, Supreme Court, 1944 and Judgment reported in AIR-1998, Supreme Court, 2401, are identical to the facts involved in the present matter. However, the Ld. Lower Appellate Court had wrongly interpreted the provisions of law enunciated in the said Judgments, which resulted into miscarriage of justice." 7. Heard the learned counsel for the Parties. From the ground no.12, it appears that defendant/appellant has challenged the concurrent findings of both the Courts below that their father had died prior to 1937. Infact, when the concurrent finding of the fact is there, it does not present any substantial question of law. However, date of death of their father is relevant only to find out whether their mother Gangabai would be entitled to share in the property equal to her son, i.e. plaintiff under Hindu Women’s Rights to Property Act, 1937 and if so whether the limited estate has been converted into absolute ownership by virtue of Section 14(1) of the Hindu Succession Act, 1956. Undoubtedly, if their father had expired prior to 14-4-1937, when the Hindu Women’s Rights to Property Act had come into force, their mother Gangabai could not claim any right to the property under that Act. Grounds 15 and 18 present another question. If their father had expired :8: before 1937, what would be rights of their mother. According to the learned counsel for the defendant/appellant, their mother was entitled to be maintained and that was the pre-existing right. She was in possession of the suit property alongwith her son and she used to exercise her right of ownership and as she was in occupation and possession of the suit property on the basis of the right of maintenance. When Hindu Succession Act came into force, she would become absolute owner of the property in view of the provisions of Section 14(1) of Hindu Succession Act. Before the question of law is considered, it will be useful to consider the evidence about the date of death of their father. 8. Plaintiff specifically pleaded that he was born on 20th June, 1935 and in 1936 his father had died. He produced school record supporting his claim. In the school record, date of his birth is recorded as 20th June, 1935. According to him, defendant was born in 1932 and the age difference between the two was about three years. Defendant pleaded that she was born in 1933 and was aged about 6 years in 1939 when their father died. She also pleaded that plaintiff was born in 1938 and he was aged about six months at the time of death of their father. It appears that both the parties admit that the plaintiff was aged about six months or so when his father died. Question is when the father died. :9: If the date of birth of the plaintiff recorded in the school record is correct, he was born on 20th June, 1935 and a few months after that their father died. Period of death comes to 1936. Evidence on record reveals that on 3rd October, 1945 Gangabai had executed a conditional sale deed in favour of one Nanubai for a period of ten years by registered document. Admittedly, Exhibit 55 is the true copy of that document. In that document, age of plaintiff Moreshwar was shown to be 11 years. Exhibit 56 is the true copy of the reconveyance deed executed by Nanubai in favour of Gangabai and Moreshwar on 4th November, 1950. In that reconveyance deed, age of plaintiff Moreshwar is shown to be 16 years. In view of this, it appears that Moreshwar must have born in 1935 or so. These documents show approximate age and not date of birth. In any case, these two documents provide corroboration to plaintiff’s claim and run contrary to the contention of the defendant that plaintiff was born in 1938. 9. P.W.2 Vijay Agarwal was working as salt inspector in the salt department. His evidence reveals that Mukund J. Bhoir, father of the parties, was holding licence for the salt work in the name and style of Rai Salt Factory. For the purpose of salt manufacturing, it was necessary to obtain licence. Record was maintained in the form of Jamin Kharda by the Collector of Revenue for Bombay. His evidence shows :10: that he had produced before the Court Kamin Kharda exhibit 79A, which reveals that prior to 1937 the said Rai Salt Factory was in the name of Mukund and after his death as per the order of the Collector bearing no.3958 dated 6-5-1937, licence was transferred in the name of plaintiff Moreshwar. From this it appears that before 6-5-1937, Mukund had expired. Of-course, this order does not specifically point out date of death of Mukund. The learned counsel for the defendant/appellant vehemently contended that the entries taken in the record of rights have got presumptive value under Section 157 of the Land Revenue Code and it can be presumed that entries are correct. According to him, no such presumption is available to the entry taken in Jamin Kharda by the salt department. He contended that when the Collector’s order was not produced before the Court, the said entry only about transfer of name of the plaintiff was not sufficient to prove that Mukund had died prior to 1937. It is material to note that D.W.1 Bhanudas, who is son of the defendant, admitted in cross-examination that his ancestors had owned salt pans. He also admitted that entries in respect of salt pans are maintained by salt department and are recorded in Jamin Kharda. He also admitted that Kurus Agar is situated in Murdha village and the plaintiff is extracting salt from the Kurus Agar. Thus, admissions of D.W.Bhanudas provides corroboration to the documentary evidence in the form of entry in Jamin :11: Kharda. From the evidence of Vijay Agarwal and admission of D.W.1 Bhanudas, there remains no doubt that the Jamin Kharda was maintained by the salt department in respect of licensees, who held licence of land for the purpose of manufacturing salt on the land. Therefore, it is clear that Collector Revenue was required to maintain that record as a part of his official duty. Section 114 of the Indian Evidence Act provides that "Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Illustration (e) provides that it may be presumed that judicial and official acts have been regularly performed. The maintenance of Jamin Kharda in respect of salt pans was official act of the Collector and, therefore, in view of Illustration (e) to Section 114, it may be presumed that the said official acts have been regularly performed and the entries were correctly taken unless contrary is proved. There is nothing on record to show that the said entry was wrongly taken. There is nothing to show that the said entry was added later on. Even if said entry in Jamin Kharda does not specifically mention the date of death of Mukund, it certainly reveals that the said entry about transfer of the licence of salt pan in favour of the plaintiff was taken on 6-5-1937 on the ground that his father Mukund had :12: expired. Therefore, atleast from this it can be safely held that Mukund had died prior to 6-5-1937. 10. The said entry in Jamin Kharda, conditional sale deed of 1945, reconveyance deed of 1950 and the school record showing date of birth of the plaintiff to be 20th June, 1935 certainly go to falsify the contention of the defendant that defendant was born in 1938. If he would have been born in 1938, his name could not have been recorded in Jamin Kharda in May, 1937. In the written statement, defendant admits that at the time of death of their father, plaintiff was aged about 6 months. If he was six months old at the time of death of his father, he could not have been born in 1938 because his father had died prior to May, 1937. In view of this material, contention of the defendant was rightly rejected by both the Courts below and I find that before the learned Lower Appellate Court, the counsel appearing for the defendant had rightly conceded that there was no material to show that their father had died after 1937. In view of this, I am in agreement with the both the Courts below that Mukund had died sometimes in 1936 and in any case, prior to 14-4-1937, when the Hindu Women’s Rights to Property Act came in force. 11. Section 3 of the Hindu Women’s Rights to Property Act reads as follows: :13: 3.(1) When a Hindu governed by the Dayabhag school of Hindu Law dies intestate his property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property that separate property shall, subject to the provisions of sub-section (3), devolve upon his widow along with his lineal descendants, if any, in like manner as it devolves upon a son; Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. Thus under Section 3(1), if Hindu dies intestate leaving separate property that separate property shall, devolve upon his widow along with the lineal descendants subject to the provisions of sub section (3) and under subsection (2), if a Hindu governed by Mitakshara School :14: of Hindu Law died intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub-section (3) provides that the interest was to be limited interest known as Hindu Women’s estate. Section 4 of that Act declared that nothing in the said Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. Gangabai could claim share in the property under Section 3 of this Act if her husband would have died after the commencement of this Act. As stated earlier this Act came into force on 14-3-1937. As her husband had died prior to that date, this Act is not applicable to the facts of this case and she could not get any share or interest in the property. Admittedly, under the Shastric Hindu Law, widow was not entitled to inherit any right or share in the joint family property or even in the separate property of her husband. She had only right of maintenance from the property. 12. In view of the fact that it is proved that Mukund had died prior to commencement of Hindu Women’ Rights to Property Act and his widow Gangabai did not get any interest in the property under that Act, now we have to consider what would be her right in the property left behind by Mukund particularly in the light of provisions of Section 14(1) of Hindu Succession Act. :15: Section 14 reads as follows: "14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. From the provisions of Section 14(1), it becomes clear that any property possessed by a female Hindu whether acquired before or after commencement of Hindu Succession Act shall be held by her as full owner thereof and not as a limited owner. Sub-section (2) is an exception to sub-section (1). Sub-section (2) is not relevant for the purpose of present matter. 13. Admittedly, Mukund died leaving behind his widow Gangabai, daughter Jamunabai and son Moreshwar. Both the children were minor. It appears that daughter was aged about 3 or 4 years, though according to her she was 6 years and the son was aged about six months at the time of his death. In view of this naturally both of them were under the guardianship of their mother, Gangabai. She was looking after not only the children but also the property left behind by her husband. Under :16: the law, in force at that time neither she herself nor her daughter could claim any right of inheritance or share in the said property. Their son Moreshwar alone would be entitled to inherit property if it was separate property of their father and even if the property had come to his father from his grandfather, still as the sole surviving male member of the joint family, he would become exclusive owner of that property. His mother and sister could only claim to be maintained from that property. Defendant was maintained and her marriage was performed. Thus, it becomes clear that their mother Gangabai was in possession of the property not under her own right but as the guardian of her minor son. Even though she had right of being maintained, she herself was maintaining children and herself. There was never any dispute about the right of her maintenance, nor there was any occasion for any suit, decree, compromise, settlement in respect of her right of maintenance. The learned counsel for the defendant vehemently