IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 555 of 1983 with FIRST APPEAL No 1096 of 1983 For Approval and Signature: Hon'ble MR.JUSTICE M.C.PATELsd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? 1to 5 No -------------------------------------------------------------- DEVIBEN JAYANTILAL TALATI Versus ROMESHCHANDRA RAMNIKLAL TALATI -------------------------------------------------------------- Appearance: 1. First Appeal No. 555 of 1983 MR HM PARIKH for Appellant. MR RS SANJANWALA for Respondent No. 1 2. First AppealNo 1096 of 1983 MR HM PARIKH for Appellant. MR RS SANJANWALA for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.C.PATEL Date of decision: 17/02/99 C.A.V. JUDGEMENT 1. These two appeals are filed by the original plaintiff against the common judgment, order and decree dated 31.1.1983 passed by the learned Judge, City Civil Court No.6, Ahmedabad, in Civil Suit No.3941 of 1975 and Civil Suit No.1825 of 1979, which were consolidated and tried together since the parties were common and the issues were inter-related. 2. Plaintiff Deviben Jayantilal Talati in the said suits challenged the legality and validity of a lease deed executed by her grandfather in favour of his brother in 1941 and an adoption made in 1945. She also claimed that two other properties (referred to as items B and C of suit properties) which had been acquired by and had stood in the name of one brother since 1935 and 1936 were not his exclusive properties, but were joint family properties. The plaintiff was unsuccessful in her challenge in the trial Court and her suits were dismissed. She is therefore in appeal against the said judgment and decree of the trial Court. 3. The facts leading to the present litigation are as follows: 3.1 One Narottamdas Bhogilal Talati was the common ancestor of the parties. He had two sons, Ambalal and Gokaldas and a daughter, Jamnaben. Ambalal had two sons, Jayantilal and Ratilal and a daughter, Vijayaben. Gokaldas had one son by name Ramniklal and Jayaben was the wife of Ramniklal. Jayantilal had four sons and five daughters, the plaintiff Deviben being the youngest daughter. Ratilal had three sons and one daughter. The eldest son Romesh was subsequentlly adopted by Jayaben after the death of her husband Ramniklal and he was the main contesting defendant. 3.2 Narottamdas, who belonged to Khadaita Bania community, was a resident of Nadiad, District Kheda. He died on 12.10.1927 leaving three immoveable properties and some moveable properties. Before his death he had made a will on 2.8.1919. In the said will, there was a reference to the will made by his father on 9.5.1912 and there was a recital that after his father's death, he and his brother Motilal had got the properties. Out of the three immoveable properties which he got, two were situated in the City of Nadiad, one was his residential house and the other was a shop. The third property was an agricultural field admeasuring 5 acres and 19 gunthas and he had one-half undivided share. Narottamdas by his will bequeathed the northern portion of the house to Ambalal and southern portion to Gokaldas. The shop was given to Ambalal and his one-half undivided interest in the field was bequeathed to Gokaldas. 3.3 Ambalal and Gokaldas jointly purchased an open piece of agricultural land by a registered sale deed. The said land was part of survey Nos.86 and 87 and admeasured 4 acres and 4 gunthas. It was situated in the sim of Khokhra Mehmedabad, which is now part of the City of Ahmedabad. On 3.4.1941, Ambalal executed a registered lease deed in respect to the said land, giving his one-half undivided share in the said land on lease to his brother Gokaldas for a period of 999 years on a yearly rent of Rs.1611/- commencing from 1.1.1941. Gokaldas was permitted to construct houses, bungaloes, rooms, factories etc. over the same and in case of acquisition of the suit land or a part of it, it was provided that half the compensation amount of the land should be given to Ambalal and the compensation of the structure should be taken by Gokaldas and the rent amount should be proportionately reduced to the extent of acquired portion Gokaldas was also authorities to sell, mortgage, gift or assign in any other manner his leasehold right in the said land to any one on the terms and conditions mentioned in the lease deed. It is this lease deed which is the subject of main challenge in the present litigation. The plaintiff's case is that the land was joint family property and Ambalal's alienation of his share in the land by way of lease-deed was without legal necessity and not binding on his heirs. The said land is referred to as the suit land. 3.4 Gokaldas also purchased in his own name two plots of land by registered sale deeds dated 1.2.1936 and 27.11.1935. They were subplots Nos.17 and 26 admeasuring 756 and 955 sq. yards in Desai Housing Society, situated at Maninagar in Ahmedabad. Gokaldas also constructed builgings over them which are the subject matter of the suit described at item No.B of the suit properties. Gokaldas also purchased another piece of land in Bombay on instalments from Deputy Commissioner, Improvement, Bombay Municipality on 16.8.1938 for Rs.7000/- and constructed a house over it in 1939 and it is known as "Boring House". It is the subject-matter of the suit described at Item No.C of the suit properties. The plaintiff's case is that these properties are joint family properties and she had an interest in them as an heir of the branch of Ambalal. 3.5 Ramniklal, the son of Gokaldas, died on 12.12.1946. Soon after his death, his widow Jayaben adopted Romnesh, who was the son of Ratilal as a son to her deceased husband. The plaintiff has challenged the legality and validity of the said adoption made on 11.1.1945 in Civil Suit No.1825 of 1979. The plaintiff's father Jayantilal made a will on 29.6.1959 and he died on 5.3.1960. Gokaldas also made his last will on 7.4.1958 in which after referring to the fact that Romesh, the defendant No.1 had been adopted by his daughter-in-law Jayaben after the death of his son Ramniklal, bequeathed the suit properties to him. He also made it clear that he bequeathed all the properties to defendant No.1 even in case his adoption was challenged and set aside. Gokaldas died on 14.10.1958. 3.6 In 1975, defendant No.1 who had inherited the properties of his grandfather Gokaldas under his will entered into negotiations with defendant No.2 for sale of part of the suit land and the public notice was given in a newspaper for obtaining title clearance certificate. In response to the notice, Sumitraben, the wife of Jayantilal and mother of the plaintiff Deviben, sent telegram on 10.5.1975 through her Advocate claiming that the land was joint property and the defendant No.1 had no right to sell it. There was further notice correspondence between the parties. Thereafter, Sumitraben filed Civil Suit No.3408 of 1976 against Romesh and other defendants on 7.11.1975 praying for a declaration that she had 1/4th undivided interest in the suit land and contending that the defendants had no right to make any construction over the same. However, that suit was dismissed for default on 26.4.1976. 3.7 In the meantime, the plaintiff, who was at that time a minor, filed Civil Suit No.3941 of 1975 through her mother and guardian Sumitraben on 26.12.1975. She contended that the suit land was purchased by Ambalal Narottamdas and Gokaldas Narottamdas on 15.12.1930 with the aid of the income derived by them from the properties of their father and so it was an ancestral and joint family property. She, therefore, challenged the legality and validity of the permanent lease deed dated 3.1.1941 executed by Ambalal in favour of Gokaldas in respect of his one-half undivided share on the ground that the alienation made by Ambalal in favour of Gokaldas was without the consent of other coparceners and without any legal necessity for the alienation and hence it was not binding to his heirs. The plaintiff also pleaded that the will dated 29.6.1959 executed by her father Jayantilal in respect of the suit land was not legal and binding to her as he had no right to make any will in respect of the same. She, therefore, prayed for a declaration that the permanent lease deed dated 3.1.1941 in respect of the suit land was null and void and for a declaration that the will dated 29.6.1959 was not legal and binging to her and for a further declaration that she has an undivided share in the suit land. She prayed for permanent injunction restraining the defendant No.1 from transferring any part of the suit land or from putting any construction on the same. She claimed that she had 1/40th undivided share in the suit land. She claimed the relief of partition and separate possession of her share. There was also a prayer for rendition of accounts by the defendant No.1. 3.8 In the said suit, defendant No.1 was Romeshchandra Ramniklal, the adopted son of Ramniklal and the grandson of Gokaldas who had inherited all the properties of Gokaldas under his will. The defendant No.3 was Ratilal Ambalal, who was the brother of Jayantilal and who was the natural father of Romeshchandra, the defendant No.1 and who had given his son in adoption. The other defendants Nos. 4 to 12 were the surviving members of the two families of Ambalal and Gokaldas. The contesting defendants were defendant No.1 and defendant No.3. They contended that the suit land was purchased by Ambalal and Gokaldas from their own income and it was a self-acquired property and by virtue of the permanent lease deed executed by Ambalal in favour of Gokaldas, the heirs of Ambalal were entitled to rent only and other rights of transfer were vested in defendant No.1 as an heir of Gokaldas Narottamdas. They also pleaded the bar of limitation. They contended that the plaintiff's suit was not maintainable. The defendant No.1 also claimed, in the alternative, that he had become owner of the suit land by adverse possession. Defendant No.3 Ratilal died during the pendency of the suit. After his death, one of his sons, Rohit who was impleaded as defendant No.3/B supported the plaintiff but the other two heirs stuck to the original stand of defendant No.3. 3.9 In Civil Suit No.1825 of 1979 the plaintiff contended that the adoption deed dated 11.1.1945 whereby Romeshchandra was adopted by Jayaben, widow of Ramniklal Gokaldas, was not legal and valid. She pleaded that the properties which had been acquired by Gokaldas were ancestral or joint family properties and she had an interest in them. She also claimed a decree for partition and accounts. Romeshchandra whose adoption was chllaneged, was impleaded as defendant No.1 to this suit. Defendants Nos. 2 and 3 were Ratilal Ambalal and his wife Kamlaben, who had given their son Romeshchandra in adoption. The remaining defendants Nos. 4 to 14 were the other members of the families of Ambalal and Gokaldas. Defendants Nos. 1 to 3 contested the suit. They denied that the adoption was not legal and valid or that the suit properties were ancestral and joint family properties. They asserted that the suit properties were self-acquired properties and the plaintiff had no right, title or interest in them. They also pleaded the bar of limitation. Ratilal Ambalal, the defendant No.2 died during the pendency of the suit. Of his heirs who were brought on record, one son Rohit supported the plaintiff while the other two heirs adopted the defence pleaded by Ratilal. 4. The learned trial Judge raised the necessary issues arising from the pleadings of the parties. The parties led oral and documentary evidence in support of their respective cases. 5. The plaintiff examined three witnesses; (1) her mother Sumitraben, (2) Manchhaben, who was the mistress of Gokaldas, and (3) Anandrao, who was a neighbour of Ambalal and Gokaldas at Nadiad. Their evidence was to the effect that the suit land was acquired by Ambalal and Gokaldas with the income derived from the properties of their father. It was an ancestral and joint family property. The execution of permanent lease deed dated 3.1.1941 in favour of Gokaldas in respect of his one-half undivided share was not for any legal necessity. Sumitraben also stated that the will dated 29.6.1959 executed by her husband Jayantilal was not legal and binding as he had no right to make any will in respect of the ancestral property. According to her, the family of Narottamdas was joint and so was the family of Ambalal and Gokaldas and the suit properties at Items Nos.B and C were also joint family properties. All these properties had never been divided and they had a share in it. Manchhaben stated in her evidence that the two plots described at item 'B' of the suit properties were kept by Ambalal and Gokaldas and three buildings were constructed over them while Gokaldas kept one property at Bombay. According to Anandrao, one plot which was purchased by Gokaldas and described at item 'B' of the suit properties was purchased from the joint funds of Gokaldas and Ambalal and three buildings were constructed over it from the rental income realised from the tenants occupying the buildings on the suit land. Gokaldas purchased one plot of land at Mahim in Bombay from the Bombay Municipal Corporation in his name, but it was from the joint funds of both these brothers and Gokaldas got a building constructed over it during the year 1939-40. He also stated that the business carried on in the name of Ramniklal Ratilal and sons was the family cconcern and it was commenced in the year 1930 and from the savings of that business, additional buildings were constructed at Maninagar and over the plot at Mahim. 6. As against this, the defendant No.1 Romeshcnandra deposed that the suit land was purchased by Ambalal and Gokaldas from their own income and it was their self-acquired property and by virtue of the permanent lease deed dated 3.1.1941 executed by Ambalal in favour of Gokaldas, the heirs of Ambalal were entitled to rent only and other rights of transfer etc. were vested in him as an heir of Gokaldas. The suit properties described at items B and C were self-acquired properties of Gokaldas and they have been bequeathed to him under the will of Gokaldas. 7. The learned trial Judge found that the oral evidence of defendant No.1 was much more reliable than the evidence of the witnesses examined on behalf of the plaintiff as his evidence was amply corroborated by overwhelming documentary and circumstancial evidence while evidence of the plaintiff's witnesses was inconsistent with those documents and circumstances. 8. After considering all the evidence on record and the submissions made on behalf of the parties, the learned Judge recorded the following findings in Civil Suit No.3941 of 1975. The plaintiff had failed to prove that the suit land was purchased by Ambalal Narottamdas and Gokaldas Narottamdas with the aid of the income derived by them from the properties of their father and so it was an ancestral and joint family property. On the contrary, it was established that the suit land was purchased by them from their own income and it was their self-acquired property. In view of this finding, the issue as to whether the execution of the permanent lease-deed dated 3.1.1941 by Ambalal in favour of Gokaldas in respect of his on-half undivided share in the suit land was legal and binding to his heirs did not survive. By virtue of the said permanent lease deed, the heirs of Ambalal were entitled to rent only and other rights were vested in Romesh as an heir of Gokaldas Narottamdas. The plaintiff had also failed to prove that the will dated 29.6.1959 executed by her father Jayantilal Ambalal in respect of the suit land was not legal and binding to her. The learned Judge also held that the plaintiff's suit for declaration was barred by limitation. 9. In Civil Suit No.1825 of 1979, the learned Judge recorded the finding that the adoption was legal and valid. He also came to the conclusion that the suit properties were self-acquired properties and not ancestral and joint family properties or acquired from the income of such properties as alleged by the plaintiff. He held that the plaintiff's suit for declaration was barred by limitation. The plaintiff had no right, title or interest in the suit properties. 10. In view of the above findings, the learned trial Judge dismissed both the suits filed by the plaintiff. 11. The main questions which have been agitated in this appeal are whether the suit land and the suit properties were joint family properties as asserted by the plaintiff or were self-acquired properties as maintained by the defendant No.1; whether the permanent lease deed executed by Ambalal in favour of Gokaldas was legal and valid or not; whether the adoption was legal and valid or not; whether the suits were barred by limitation and whether the suits were maintainable or not. 12. The learned Advocates for the rival parties took me through what they considered to be relevant evidence in support of their respective cases. The learned Advocate for the appellant assailed the findings recorded against the appellant no.1, the original plaintiff while the learned Advocate for respondent No.1, the original defendant No.1, supported them. 13. Now, the following facts emerge from the evidence on record. Narottamdas Bhailalbhai Talati, who was the common ancestor of the parties, was a resident of Nadiad, District Kheda. He had three immoveable properties and some moveable properties at the time of his death on 12.10.1927. But before his death, he had made a will on 2.8.1919, copies of which are produced at Exhs.127 and 128. The will referred to the earlier will made by his father on 9.5.1912 and the fact that after his father's death, he and his brother Motilal had got the properties. Out of the three immkoveable properties which he got, two were situated in the sity of Nadiad, one was his residential house and the other a shop, the third property was an agricultural land situated at village Narsanda, Taluka Nadiad in which he had one half undivided share. Narottamdas by his will bequeathed the northern portion of the house of Ambalal and the southern portion to Gokaldas. The shop was given to Ambalal and his one-half undivided share was bequeathed to Gokaldas. He also made some provision for his widowed daughter Jamnaben and gave her some moveable properties and ornaments and some arrangement was made for her clothing and the residuary was directed to be divided between Ambalal and Gokaldas. He also left certain debts which were divided between these two brothers, Ambalal and Gokaldas. As per the terms contained in the will of their father, they divided the properties and as per the endorsement dated 4.12.1940 made by Gokaldas below the will of his father, Ambalal disposed of the agricultural land at village Narsanda after obtaining the consent of Gokaldas and the amount realised was spent by Gokaldas in making additions and alterations in the house at Nadiad which belonged to him and so he had no claim in the land. 14. It is also not in dispute that Ambalal was serving in B.B. and C.I. Railway from 1911 till 1942 and in 1930 he was working as Signal Inspector at Ahmedabad. Then he was transferred to Bombay and his salary for the year 1934-35 was Rs.5016/-. His income for the year 1936-37, 1937-38 and 1938-39 was Rs.5313/-, 5798/- and 5999/- respectively as per income tax assessmnent orders. Gokaldas started his career by joining Government service in the Boring Department of Bharuch Municipality in 1922. He also commenced his business as Boring Contractors in the name of his son and Ambalal's son as M/s. Ramniklal Ratilal and Sons in that very year and during the period from 1925 to 1928 he opened an office at Reid Road in Ahmedabad where he established himself. The said firm had a flourishing business in various parts of Gujarat and the progress made by the said firm during the period from 1922 to 1949 was published in the form of a book-let which is at Exh.268. Gokaldas became a widower at the young age of 22 in 1916. He came in contact with one Manchhaben who was a Brahmin during his stay at Bharuch and since 1925 she had been residing with him as his mistress. Gokaldas shifted to Ahmedabad in 1928 or so where he was employed as a Store Keeper in Boring Works at Asarva in Ahmedabad. He resigned from that post in 1930 and thereafter he was exclusively attending to his aforesaid business. 15. Ambalal and Gokaldas jointly purchased an open piece of agricultural land admeasuring 4 acres and 4 gunthas situated in the sim of Khokhra-Mehmedabad, Talula and District Ahmedabad for Rs.8351/- by registered sale deed dated 15.12.1930. It was mutated in the joint names of both the brothers in the revenue record. In some portion of the suit land, certain houses and chawls were constructed between 1932 and 1940 and out of them one blcok was given to Ambalal's daughter Vijayaben as a gift by registered gift deed dated 30.4.1936. It was executed by Ambalal and Gokaldas and attested by Ramniklal, Ratilal and Jayantilal. 16. Gokaldas in his own name purchased two plots of lands for Rs.1230/- and Rs.1910/- in Maninagar, Ahmedabad by registered sale deeds dated 1.2.1936 and 27.11.1935 and they were entered in his name in the revenue record. In 1936 Gokaldas constructed buildings over them. Gokaldas also purchased one piece of land in Bombay on instaments from Deputy Commissioner, Improvement, Bombay Municipality on 16.8.1938 for Rs.7,000/-. 17. It is an admitted fact that Ambalal and Gokaldas made a joint will in respect of their properties on 30.4.1936, but that is not on record. On 4.12.1940, these two brothers made their separate wills in respect of their properties which are at Annexures I and III respectively of the subsequent will of Gokaldas executed on 3.4.1958 which is produced at Exh.79. The contents of Annexure II of the said will reveal that Gokaldas and Ramniklal made a declaration before the Presidency Magistrate, Bombay on 8.2.1943 to the effect that from 1.11.1940 there had been a complete severence of joint family status between them, if not for the last several years as they had been living and earning separately and whatever they had earned and acquired was always kept as their separate property. This declaration was made to avoid any misunderstanding in the matter. 18. It is not in dispute that Ambalal and Gokaldas executed a registered lease deed on 3.1.1941 in respect of the suit land, the copies whereof are produced at Exhs.59 and 76. By the said deed, Ambalal gave on lease one-half undivded share in the suit land to Gokaldas for a period of 999 years on an yearly rent of 1611 commencing from 1.1.1941. Gokaldas was permitted to construct houses, bungalows, rooms, factories, etc. over the same. In case of acquisition of the suit land or part thereof, it was provided that half of the compensation amount of the land should be given to Ambalal and the compensation of the structure should be taken by Gokaldas and the rent should be proportionately reduced to the extent of the acquired portion. Gokaldas was also authorised to sell, mortgage, gift or in any other manner assign the leasehold right in the suit land on the terms and conditions mentioned therein. Gokaldas and Ramniklal also executed