1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.500 of 1989 Manik s/o Hanmantrao More, deceased through L.Rs.: 1/1 Vishwambhar Manikrao More, since deceased, through L.Rs.: a) Padminbai w/o Vishwambhar More, b) Kusum w/o Vishwambhar More; c) Shailaji d/o Vishwambhar More (minor) d) Deedi d/o Vishwambhar More (minor) e) Krushna s/o Vishwambhar More (minor) All R/o Nitur, Taluka Nilanga, District Latur. 1/2 Subhadrabai w/o Manik More; 1/3 Saraswatibai w/o Ambadasrao Patil, age: 61 years, Occ: Household, R/o Chikta, taluka Latur, District Latur. Appellants Versus 1 Sumitrabai w/o Shankarrao Gaikwad; age: 51 years, Occ: Agriculture, resident of Kasarkheda, taluka Latur. 2 2 Venubai w/o Digambarrao Deshmukh; age: 46 years, Occ: Agriculture, R/o Wadhwana, taluka Udgir. 3 Namunabai w/o Vithalrao Kshirsagar; age: 41 years, Occ: Agriculture, R/o Chera, taluka Ahmedpur. 4 Godavaribai w/o Sudhakarrao Jadhav; age: 36 years, Occ: Agriculture, R/o Dhanora, taluka Ahmedpur. Respondents Mrs.Vaishali Patil-Jadhav, advocate for appellants. Mrs.C.S.Deshmukh, advocate holding for Mr.P.R.Deshmukh, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th August, 2009. ORAL JUDGMENT: 1 Heard Mrs.Vaishali Patil-Jadhav, learned Counsel for appellants and Mrs.C.S.Deshmukh, learned Counsel holding for Mr.P.R.Deshmukh, advocate for Respondents. 2 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the Courts below. 3 While admitting the appeal, this Court found Grounds No.I, III & IV, set out in the memo of appeal, involve substantial questions of law. Those are: (I) In the absence of issue regarding the year and date of death of 3 Bhaurao, finding recorded by Trial Court that Bhaurao died in the year 1954-55 is totally erroneous. (III) Specific case of Appellant that Bhaurao died in August 1953 has been negatived by both the Courts below only on the basis of entries in Pahani Patrak. (IV)Both the Courts below committed grave error of law in apply provisions of Hindu Women’s Right to Property Act when Respondents have led no evidence that Bhaurao died after the enforcement of that Act to this region. 3 Respondents-original plaintiffs instituted Regular Civil Suit No. 9 of 1978 claiming partition and separate possession of suit land. One Bhaurao and Manikrao were real brothers. Bhaurao had wife by name Gayabai, who died in the year 1977. According to plaintiffs, Bhaurao died in winter season of 1954 i. e. some 24 years prior to filing of the suit. After demise of Gayabai, plaintiffs, being daughters of Bhaurao and Gayabai, became entitled to have share in the property. Defendant no.1 Vishwambhar is son of Manikrao, whereas defenant no.2 is wife of Manikrao and defendant no.3 is daughter. After demise of Gayabai, plaintiffs claimed share in the property, however, defendants refused to partition the property and as such, they were constrained to approach the Court by filing suit. 4 Defendants appeared and contested the suit by filing written statement. According to the defendants, deceased Bhaurao died in the year 1953 and prior to applicability of provisions of Hindu Women’s Right to Property Act. The property belonging to deceased Bhaurao had fallen to the share of coparcener by survivorship and as such, plaintiffs have no entitlement to have partition and separate possession of ancestral agricultural properties. 4 5 Parties led evidence before the trial Court. The trial Court, after scrutinising the evidence placed on record, came to the conclusion that deceased Bhaurao met death in winter season of 1954 and certainly after the provisions of Hindu Women’s Right to Property Act were made applicable. The subsequent development of applicability of provisions of Hindu Succession Act, 1956, has confirmed ownership in the property upon Gayabai widow of Bhaurao and after demise of Gayabai, plaintiffs became entitled to claim shares in the property. The contention raised by defendants that Bhaurao died in 1953 has been turned down by the trial Court. The suit presented by plaintiffs was decreed by the trial Court and they were held entitled to claim ½ share in the suit property. 6 The judgment and decree passed by the trial Court was subjected to challenge at the instance of original defendants in Regular Civil Appeal No.30 of 1984, which came to be heard and disposed of by Iind Additional District Judge, Latur, who was pleased to dismiss same by judgment and decree dated 15 th April, 1989. Original defendants have approached this Court impeaching the concurrent judgments delivered by both the Courts below. 7 I have heard arguments advanced by learned Counsel for respective parties. It is strenuously contended by learned Counsel for appellants that Bhaurao died in 1953 prior to Hindu Women’s Right to Property Act became operational in Marathwada region. As such, his widow Gayabai did not become entitled to claim even limited interest in the property and as such, further applicability of provisions of Hindu 5 Succession Act, 1956, has no effect on the entitlement of Gayabai or plaintiffs to secure share in the property. It is contended that pleadings and evidence of the plaintiffs in respect of date of death of Bhaurao is quite vague and both the Courts below have committed a serious error in recording a finding that he (Bhaurao) died in winter season of 1954. 8 I have perused the judgments delivered by both the Courts below as well as scanned the relevant evidence, in that regard. The oral evidence of plaintiffs that Bhaurao died in the year 1954 is supported by documentary evidence in the form of Pahani Patrak and Khasra Patrak, placed on record. The revenue record shows the entry in the name of Bhaurao in respect of suit property forn the year 1953-54. The entries in the revenue record in the name of Manikrao appear for the year 1954-55 onwards. It is, thus, clear on the basis of ocular evidence supported by documentary evidence in the form of revenue record, that Bhaurao was alive till 1954. Even if the contention raised by defendants that Bhaurao died after `Nag Panchami’ festival of 1953, is accepted, still it will not make any change in respect of entitlement of the plaintiffs to have share in the property. The provisions of Hindu Women’s Right to Property Act were made applicable to Hyderabad Region by virtue of Hyderabad (Application of Central Acts) Act, 1952, which received assent of the President on 22 nd July 1953. The Hyderabad Women’s Right to Property Act (Extension to Agricultural Lands) Act, 1954, received assent of the President on 15 th October 1954 and was published in the State Gazette on 22 nd October 1954. Although it has been clarified in the subsequent enactment that the provisions of Hindu Women’s Right to Property Act would also be deemed to be applicable to the agricultural properties, it 6 does not rule out the applicability of the Act i.e. Hindu Women’s Right to Property Act,1937, in respect of agricultural properties, prior to coming into force of Hyderabad Act of 1954. The subsequent Act is merely explanatory in character and it does not exclude the applicability of earlier enactment i.e. Hindu Women’s Right to Property Act to the agricultural properties in Hyderabad Region. 9 Reliance can be placed on the judgment of the Apex Court in the matter of Vaijanath and others Vs. Guramma and another, reported in AIR 1999 SC 555. The question before the Apex Court was in respect of applicability of Hyderabad Hindu Women’s Rights to Property (Extension to Agricultural Land) Act, 1954, and the claim raised by the plaintiff in the reported judgment, wherein the male holder died sometime in July 1954. The objection was raised in respect of applicability of the Act to the agricultural properties on the ground that the Act of 1954 has become operational in the region after it received assent of the President on 15 th October 1954 and certainly the provisions would not apply in relation to the matter wherein death of male holder has occurred prior to October 1954. While considering the contentions raised in the matter, the Apex Court has observed: “7 The same constraint do not apply to the said Hyderabad Act of 1952 passed by the legislature of the State of Hyderabad, which has received the assent of the President on 22 nd of July, 1953. The relevant Legislative entries under the Constitution of India are somewhat different. Entry 5 in the Concurrent List, being List III in the 7 th Schedule of the Constitution, is as follows: 7 “Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.” There is no exclusion of agricultural lands from Entry 5 which covers wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women’s Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words `property’ as well as `interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present contest would clearly cover agricultural lands under the word `property’. This Act also received the assent of the President under Article 254 (2) and, therefore, it will prevail. 8 The appellants, however, rely upon a 8 subsequent Act passed by the State of Hyderabad, namely Hyderabad Hindu Women’s Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 of the said Act provides that `term property’ in the Hindu Women’s Rights to Property Act as in force in the State of Hydrabad shall include agricultural land.” This act received the assent of the President on 15 th October, 1954 and was published in the State Gazette dated 22 nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women’s Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu Women’s Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women’s Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word `property’ is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women’s Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women’s Right to Property Act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply. There is, therefore, no substance in the contention that the subsequent Act of 1954 restricted the application of the Hindu Women’s Right to Property Act, 1937 brought into force by the earlier Hyderabad Act of 1952. As is pointed out by the High Court, the Act of 1954 was enacted by way of abundant caution, to make sure that the agricultural lands were not considered as excluded 9 from the scope of the Hindu Women’s Right to Property Act as enacted in 1952. The second Act is, therefore, clarificatory.” 10 In this view of the matter, the view taken by both the Courts below cannot be said to be erroneous. It is to be noted that, firstly respondents / original plaintiffs have proved by placing cogent evidence on record that death of Bhaurao occurred in winter season of 1954; and secondly, even if assuming the contention raised by defendants in the suit, still applicability of the provisions of Hindu Women’s Rights to Property Act, in respect of agricultural properties, situate in Hyderabad Region, cannot be ruled out. Defendants have specifically contended that Bhaurao died after `Nag Panchami’ festival of 1953 i. e. certainly after the provisions of the Act became operational in Hyderabad Region. As by virtue of Hindu Women’s Rights to Property Act, Gayabai became limited owner of the property and her limited rights turned into full ownership after applicability of the provisions of Hindu Succession Act, 1956, after demise of Gayabai in the year 1977, plaintiffs, being heirs of Gayabai, became entitled to claim share in the ancestral property. The view adopted by both the Courts below, in these premises, cannot be said to be erroneous. There is no substance in the appeal and same deserves to be dismissed. 11 Appeal is, thus, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa50089a