IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 486 of 1980 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- PREMIBEN D/O.PARBHUBHAI DAHYABHAI Versus CHHAGANBHAI DAHYABHAI -------------------------------------------------------------- Appearance: MS KJ BRAHMBHATT for Petitioner UNSERVED-EXPIRED (N) for Respondent No. 1 Mr D B Mehta for MR DD VYAS for Respondent No. 2, 3, 4, 5, 6 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 02/05/2001 C A V JUDGEMENT The appellant-original plaintiff has preferred this appeal before this Court under section 96 of the Civil Procedure Code, 1908, (for short, 'the Code') challenging the judgment and decree dated 30.4.1979 recorded by the learned Civil Judge (SD), Valsad in Valsad District in Special Civil Suit No.60/78 wherein the learned trial Judge dismissed the suit of the appellant-original plaintiff and directed her to pay to the respondents cost of the suit. The learned trial Judge further directed the appellant to pay court fees of the plaint in accordance with Order 33 Rule 11 of the Code. The appellant-original plaintiff instituted the aforesaid Special Civil Suit before the aforesaid court for a declaration that she has got one half share in the properties enumerated in Schedule 'A' & 'B' appended to the plaint. She further claimed a decree for partition, separate possession and mesne profit in respect of those properties. She further prayed for a declaration that deceased Dahyabhai Haribhai has not executed any will and that the deceased Dahyabhai had died intestate. 2. The appellant-original plaintiff went to the trial court with a plea that her father Prabhubhai died on 2.12.1937 leaving behind him herself (appellant-original plaintiff) and respondent no.6 as his heir. That the name of her grandfather was Dahyabhai and name of her great grant father was Paragbhai Haribhai. That Dahyabhai had married Sitaben. It was further contended by the appellant before the trial court that respondent no.1-Chhaganbhai was the son of Dahyabhai whereas respondents no.2 to 4 are sons of Chhaganbhai and respondent no.5 is his wife. The appellant contended before the trial court that Dahyabhai had died on 18.4.1990 and that after the death of her father Prabhuhai, respondent no.1 did not keep or maintain them and put them in helpless condition. That therefore, the appellant and her mother, defendant no.6, were compelled to go and reside separately with the parents of respondent no.6. The appellant also contended that there are ancestral properties even since the time of deceased Paragbhai and they were all treated as joint Hindu family properties. That the said property stood in the name of eldest person in the family and as such it stood in the name of Dahyabhai in the Government revenue record till the death of Dahyabhai. That possession of the properties by deceased Dahyabhai was only in the capacity of a Manager of the said undivided joint family and he was occupying the same only for and on behalf of the entire family. That the deceased Dahyabhai was not in possession in exclusion of the present appellant. She further contended that since the property was ancestral one, deceased Dahyabhai had one third share in the said properties whereas the other shares were of Prabhubhai and Chhaganbhai-respondent no.1, who carries one third share. She further claimed before the trial court that she and respondent no.6 inherited the share of her father and she is also entitled to get the share of deceased Dahyabhai in the properties and as such her total share would go to one half as a whole from the entire property. She, therefore, claims that despite her demand, no share has been assigned to her and, therefore, she issued notices to the respondents unsuccessfully. The respondent did not comply with the requirement of the notice and did not allot any share in the said land to the appellant and, therefore, the appellant preferred the aforesaid Civil Suit for declaration, partition, separate possession and mesne profit. 3. The respondents appeared before the trial court and filed written statement. Respondent no.6 filed written statement at Exh.13 supporting the case of her daughter. On the other hand, respondents no.1 to 5 filed their joint written statement at exh.21 and contested the suit of the appellant. Respondents no.1 to 5 mainly contended that the averments made in the plaint were not true, that the property in question was never a joint Hindu family property and that the appellant or respondent no.6 did not have one third share at any point of time, that thereafter they did not have one half share in the said property, That the appellant and respondent no.6 did not have any right, title or interest in the said property and, therefore, she was not entitled to any relief as claimed by appellant in the plaint. That therefore, the suit be dismissed with costs. Respondents no. 1 to 5 further contended that the suit was barred by law of limitation. They therefore, claimed that the suit of the appellant-original plaintiff be dismissed with costs. On the aforesaid set of pleadings, the learned trial Judge framed necessary issues at Exh.18 after affording opportunity to lead evidence and to advance the arguments to the parties, the learned trial Judge pronounced the judgment dismissing the suit of the appellant-original plaintiff as aforesaid. 4. The learned Judge found that the appellant had failed to prove that the family had property since the time of nearest common ancestor Paragbhai. The trial court also found that the suit was not barred by non-joinder of necessary parties but the suit was barred by limitation. The trial court also found that the properties are in village Khambhada were the separate properties of Dahyabhai. The trial court also recorded finding that the appellant had failed to prove that the properties in question continued to be joint till the death of Prabhubhai, the appellant's father, in October, 1937. The trial court also recorded a finding that the appellant had failed to prove her one third share in the said property. The trial court also recorded finding that the appellant had failed to prove that on the death of Dahyabhai she become entitled to one half share in the said property. The trial court also found that the appellant had failed to prove that the will executed by Dahyabhai was not a genuine one. The trial court also found that the decree passed in the suit for maintenance by respondent no.6 had no bearing, that the appellant was not entitled to any decree and, therefore, the trial court dismissed the suit of the appellant with costs of the respondent. 5. Feeling aggrieved by the said judgment and decree passed by the trial court, the appellant has preferred this appeal before this court under section 96 of the Code. On receipt of the appeal it was admitted. M/s. D D Vyas appeared on behalf of the contesting respondents no. 1 to 5. I have heard the learned Advocates for the parties and have perused the papers. It is required to be considered here that the main dispute between the parties is as to whether or not the property in question is a joint Hindu family property. The second issue which is required to be considered is as to whether the suit is barred by law of limitation. 6. It has been mainly contended here that the trial court has erred in holding that, (a) the suit property is not an undivided joint Hindu family property; (b) the appellant has no share therein; (c) the will in question is valid and genuine; (d) the suit is time barred. That therefore, the judgment and decree of the trial court are illegal and erroneous and deserve to be set aside. The appellant therefore, prays that the present appeal be allowed, the judgment and decree of the trial court be set aside and the suit of the appellant original plaintiff be decreed in terms of the relief claimed in the plaint. 7. In sofar as the limitation is concerned, the trial court has discussed the said issue in para 11 onwards. It would, therefore, be appropriate to consider as to whether the said finding is sustainable. The appellant had filed the suit by obtaining permission to file the same as an indigent person. The said application was initially registered as Civil Misc.Application NO.103/75. At that point of time, the appellant has shown to be aged around 39 years. That would mean that the appellant must have been born somewhere in 1936. Her father has passed away in October, 1937. That would also show that she must have been born in or around 1936. Even if we take it that she was born in 1937, then she would complete 18 years of age in 1955 and if the period of limitation of 12 years mentioned in Section 110 of Limitation Act, 1963 is taken into account, then the limitation would expire in 1967 and the suit has been filed in 1976 which would go to show that the suit was apparently time barred. 8. Another aspect of the case is that the appellant had not remained silent at home with respect to her alleged right of share in the suit property. She had issued notice to the contesting respondents on 28.2.1963. The notice has been produced at exh.94. It has been given by an Advocate who would naturally be aware of legal aspects of the case. Here the appellant had claimed her share in the said property. The learned trial Judge has considered this aspect in para 14 of the judgment. The appellant had, in very clear terms deposed before the trial court that it is true that on receipt of the notice, the present contesting respondents had immediately refused to give her the share. That, at that time the deceased Dahyabhai was alive and within a month or two after the service of notice, they refused to give them their share. As said above, the notice was issued on 28.2.1963. Even if we take it that the period of two months would expire in April, 1963, then also 12 years limitation would again expire in March/April, 1975. The suit has been filed as late as in September, 1975. Even if we consider the application filed by the appellant for permitting her to file the suit as indigent person, even the date of presentment of that application was in September, 1975. Therefore, even that application was barred by law of limitation. 9. The learned Advocate for the appellant has extensively argued at length that this was an undivided joint Hindu family property and the respondents were holding the property as Managers and the members of the family and, therefore, the suit would not be time barred at any point of time. 10. If the property remained as joint property for all purposes and if the appellant was not excluded from enjoyment, possession or share thereof, then the above arguments are to be treated to be good on the issue of limitation. Here the position is different. The appellant was never in enjoyment or possession of the suit property. The appellant was never getting share from the said properties or from their crops and income. On the contrary, she was required to demand her share by notice Exh.94 dated 28.2.1963 and within no time a reply was given to her that she was not entitled to any share in the said property. This shows that the appellant was apparently excluded from enjoyment, possession and share of the said property as back as in March or April, 1963, and yet the appellant did not file suit for partition and separate possession as well as for mesne profit within 12 years from the date of refusal to give her the alleged share to her. That would also show that the suit filed by her was apparently time barred. The appellant has tried to improve her position by saying that the respondents had agreed to give her share. But that statement of fact made by her is in apparent contradiction with her earlier statement made in para 14 of her evidence at Exh.87 wherein the appellant admitted that soon after the receipt of notice Exh.94 dated 28.2.1963, the respondents herein immediately refused to part with her share in the suit property, i.e. within a month of two of receipt of notice Exh.94 by them. It would be relevant to consider here that respondent no.6-mother of the appellant and the co-sharer son had filed R.C.Suit. being 18/64 on 13.3.1964 in Civil Court at Valsad and on 24.10.1964, a compromise was arrived at and in the said compromise, it was clearly stated before the court that the present respondents did not have any ancestral property with them and the plaintiff of that suit i.e. respondent no.6 herein, had absolutely no share, right, title or interest in the said property. Respondent no.6 was the plaintiff in that suit and deceased Dahyabhai was defendant no.1 thereon. 11. It is true that the present appellant was not a party to the said suit and as such it may be argued that the decree passed in R.C.Suit. No.18/64 may not operate as res judicata with respect to her right. However, an important aspect of the case is that the appellant was aware of the said litigation and was also aware of her alleged right in the properties in question when the said compromise was arrived at as aforesaid. That would indirectly show that the respondents had again refused to give any share to the appellant by way of the said compromise which arrived at in October, 1964 which showed that this was not a matter of mere demand or refusal but it was a clear case of exclusion of the appellant from the share in the suit property. 12. Another aspect of the case is that the appellant herself has produced at Exh.5 before the trial court certified extracts of revenue record of right in village Form no.6 in respect of entry no.163 dated 27.5.1938. The said entries show that the land stood in the name of Dahyabhai and respondent no.6 applied vide application dated 2.2.1938 for entering name of her minor daughter, the appellant herein, and after hearing the parties, the Mamlatdar has recorded an order on 17.5.1938 to the effect that name of Dahyabhai shall be retained. The said entry has been produced by the appellant before the trial court, which also shows that she was aware of the aforesaid proceedings when the suit was filed by her before the trial court. The trial court has also considered one more aspect with respect to the knowledge of guardian with respect to the exclusion of the appellant from the properties in question. For this purpose, the learned trial Judge has considered a decision of Andhra Pradesh High Court in the case of Uppala Sambasiva Rao v. Uppala Kana Komma, reported in AIR 1960, Andhra Pradesh, 213. There it has been laid down that the starting point of limitation is the date of knowledge of the plaintiff regarding his exclusion from enjoyment of family property. It has also been observed that in case of minor, who has a guardian, knowledge of guardian is quite sufficient and time begins to run from the date of minor's exclusion if the guardian can be shown to have knowledge and in the present case, the guardian had the knowledge of exclusion of the guardian as well as of the appellant from the aforesaid property, when she was a party to the compromise in RCS No.18/64. Moreover, the trial court has also observed that respondent no.6, as guardian of the appellant, knew as back as in 1938 that the appellant's right was challenged and the period of limitation would start running from that day. If that is to be considered, then the suit was apparently time barred. It is seen that the learned Judge has dealt with this issue from different angles and the case law cited before him was properly considered. This Court is unable to differ from the view taken by the learned trial Judge while holding that the suit filed by the appellant was clearly time barred. Therefore, I confirm the said finding and hold that the trial court was right in holding that the suit was time barred even considering the provisions of section 110 of the Limitation Act, 1963 which provides that the period of limitation for the suit by the person excluded from joint family properties would be 12 years commencing from the date when the exclusion becomes known to the plaintiff. 13. Then we can turn to the main issue about the nature and status of the properties involved in the present appeal. As per the case of the appellant herein the property in question is a joint Hindu family property and therefore, she is entitled to her share in the said property. The contesting respondents have disputed this factual aspect and have denied that the property in question is a joint Hindu family property. They have also denied that the appellant has her share in the said property. The trial court has found that the appellant has failed to prove that the property in question is a joint family property. Therefore, we are required to consider this aspect of the case as to whether or not the property in question is a joint family property and as to whether the appellant has her share therein. 14. The trial court has dealt with this issue in para 23 onwards in the judgment. The trial court has considered the evidence of the appellant at Exh.87 wherein she had referred to some documentary evidence in order to show that the properties in question are the family properties. The trial court has referred to the certified extract at Exh.54. There the properties are shown to be standing in the name of Haribhai Paragji. The trial court has observed that the document does not show that the properties were inherited by Paragji from his ancestor. Unless Paragji had received the property from his ancestor, the property in the hands of Haribhai would not be called ancestral properties and, therefore, there is absence of material and the link on this aspect of the evidence produced by the appellant. 15. The trial court has also observed that the father of Dahyabhai was Haribhai Vallabhbhai and not Haribhai Paragji and there is no person named Haribhai Paragji Desai and that the reference in Exh.54 is to that person and not to the father of Dahyabhai. Now on this aspect of the case, no light has been thrown by the appellant by leading any cogent evidence. Therefore, this observation of the trial court cannot be lightly brushed aside. The learned trial Judge has also made an effort to compare the entries in different documents on record. They are at Exhs. 90, 91 and 54. The trial court has compared the entries in these documents and has recorded finding that none of the survey numbers are found to be forming part of or particle of any of the block numbers mentioned in Exhs. 90, 91 and 54. In other words, Exh.54 is the solitary documentary evidence to show the survey numbers standing in the name of Haribhai Paragji. However, the entries there do not dally with the survey and block numbers stated in other documents on record as discussed by the trial court in para 26 of the judgment. The trial court has accordingly found that when documentary evidence at Exh.54 is the only document to show that the suit properties are the family properties of Paragji in the hands of Dahyabhai and inherited by him in due course, then the appellant has to be held as having failed to establish the said point. The trial court has also observed in para 28 that even otherwise the entry made in the register at exh.54 throws grave doubt over the truth of what the appellant has pleaded. It would be relevant to consider that apart from the properties said to have been inherited, the document at Exh.54 shows that certain other properties were also standing in the name of Haribhai. The appellant did not plead that Dahyabhai had acquired some other properties in life time of Haribhai. Then the trial court has observed that the appellant has failed to explain as to how these properties are shown to be standing in the name of Dahyabhai in document at Exh.54. This doubt has not been cleared by the appellant even before this Court. 16. Ms. Kalpana Brahmbhatt, learned Advocate appearing for the appellant before this Court has not been able to throw any light on this doubt raised by the trial court with respect to the entries made in document at Exh.54. The contesting respondents have also pleaded before the trial court that the suit properties originally belonged to the father of one Bechar Morar, son of Bai Ratan by her first marriage and that Bechar Morar and Dahyabhai Haribhai the second son of Bai Ratan both through second marriage, were brought together and by way of grace, Bechar Morar had given certain properties to Dahyabhai Haribhai. 17. Ms. Brahmbhatt, learned Advocate for the appellant has argued here that when Bechar Morar had given some properties to Dahybhai, then there was no reason for him for not giving any property to the present appellant or to her father. Now the properties belonged to Bechar Morar and it was for him to decide to whom his property should be given. If he had opted to give some property to Dahyabhai and not to the father of the appellant and the husband of respondent no.6, then Bechar Morar could not be blamed for the said act. At the same time, the appellant could not claim any share in the property belonging to Bechar Morar. Same way, she also cannot claim any share in the property going in the hands of Dahyabhai from Bechar Morar. Neither the appellant nor respondent no.6 nor the father of the appellant could claim legitimate claim in the property of Bechar Morar. An evidence has been produced by the appellant at Exh.80 which is Village Form No.6. This document shows that there was oral partition between Bechar Morar and Dahyabhai on 14.5.1931. Ms. Brahmbhatt has argued here that during that partition, even father of the appellant was a sharer and his share could not be ignored by Bechar Morar or Dahyabhai. In fact, it was the property of Bechar Morar and if he opted to part with some property in favour of Dahyabhai, then the appellant or her father could not make any grievance against the said distribution made by Bechar Morar with respect to his property. Therefore, it is not acceptable to this court that the appellant or her father was entitled to any share in the said property covered by Exh.80 which has been orally partitioned on 14.5.1931. 18. An attempt was also made by Ms. Brahmbhatt to argue that as per the evidence of the appellant at Exh.87, the suit properties were initially owned by Paragji and then they stood in the name of Haribhai. Thereafter, they were mutated in the name of Dahyabhai, who held the same as the Manager of the joint family. This has not been properly proved by placing any evidence on record. An attempt was also made to show that Dahyabhai was adopted by Bechar Morar. There is nothing on record to prove the said event. Any way, since it was the