1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.125 OF 2010 IN SUIT NO.788 OF 1983 Gajanan Balkrishna Nadkarni .. Appellant (Orig.Defendant) Versus Prema Maheshwar Pandit and Ors. .. Respondents (Orig.Plaintiffs) Mr.S.H.Thatte i/b. Pankaj Thatte with Ms.Suchita Dongre for appellant Mr.Owen Menezes with Mr.Ram Tripathi for defendants. CORAM : ANIL R. DAVE C.J & S.C.DHARMADHIKARI, J. Reserved on : 9th April 2010. Pronounced on : 27th April 2010. JUDGEMENT: - (Per Dharmadhikari, J). 1] This is an appeal under clause 15 of the Letters Patent challenging the preliminary decree dated 2nd February 2009 passed by a learned Single Judge of this Court in the above suit. 2 2] When this appeal was placed before us for admission, it came to our notice that some orders subsequent to the preliminary decree in the suit have been passed by one of us (S.C.Dharmadhikari, J). The subsequent orders are in furtherance of the preliminary decree. We thought it fit to invite attention of the learned Counsel for parties to this aspect because of the constitution of this division bench. However, in all fairness, both sides informed us that they would have no objection if this Division Bench takes up the appeal as only the correctness of the preliminary decree is in question. They fairly stated that further orders are not subject matter of challenge in this appeal. It is on this agreed basis that we took up the appeal and heard it finally at the admission stage itself. 3] The appeal is admitted. Contesting respondents waive service. By consent the appeal is heard finally. 4] Before we set out the relevant facts, it would be necessary to notice that this is an appeal by the original defendant Gajanan Balkrishna 3 Nadkarni (Gajanan for short), who is brother of deceased plaintiff No.1 Sadanand Balkrishna Nadkarni (Sadanand for short). It is common ground that Sadanand expired after the institution of the suit. Plaintiff Nos. 1(a) to (c) are the widow and daughters of deceased Sadanand. 5] One Balkrishna Babaji Nadkarni (Balkrishna for short) died intestate on or about 26th July 1963 leaving as his heirs and legal representatives, his sons, deceased Sadanand and the appellant Gajanan. Further, Balkrishna had two daughters viz., Malti Pandit and Kamla Gaitonde. Malti died intestate on 15th November 1981. She left behind her daughter as the only heir who has been impleaded as plaintiff No.2 in the suit and respondent No.1 to this appeal. The second daughter of Balkrishna viz., Kamla Shantaram Gaitonde died intestate on or about July 1969 leaving behind her son – respondent No.2 original plaintiff No.3 and daughter – respondent No.4 – original plaintiff No.4. 6] Balkrishna at the time of his death was owner of and entitled to several properties and in the plaint, the plaintiffs have made reference to 4 the properties listed at Annexure A to the plaint. The said annexure reads thus:- (a) Immoveable property being residential building known as “Rama Niwas” situate at 24th Road, Khar (West), Mumbai 400 052; (b) Arrears of Rent; (c) Shares in Limited Companies alongwith dividends not collected; (d) Monies in Bankers:- (i) Bank of India Account No.B/89 (ii) Bank of India Account No.B/2170 (e) Monies deposited in Post office at Bandra” 5 7] It is the case of the plaintiffs that the properties were held jointly after the death of Balkrishna and until the death of Kamla Gaitonde, by Sadanand, Gajanan and Malti and Kamla. After the death of Kamla and until the death of Malti, the properties were held jointly by Sadanand and Sunil Gaitonde and Shanta Varde on one hand and Gajanan on the other hand. After the death of Malti, the properties are held by the original plaintiffs and Sadanand. 8] The case of the plaintiffs is that although these properties were to be managed and looked after jointly by Sadanand, Gajanan they have been and are being managed and looked after mainly by Gajanan. It is Gajanan who has been deriving properties and income from the properties. It is alleged that during the course of such management, Gajanan received large amount by way of rent, profit and income which has been not accounted by him. The tenants with the exception of one S.P.Shanbhag were paying rent alternatively to Sadanand and Gajanan. The cheques were issued in these names. However, Shanbhag used to 6 pay rent by cheque only in the name of Gajanan and the cheques were deposited by Gajanan in his personal account. He did not keep account of this payment. The bank accounts were in the joint names of Sadanand, Gajanan and Malati. It could be operated by any of them. With the result Gajanan used to withdraw monies for his personal expenses and did not pay outgoings of the property. The property taxes remained in arrears. Sadanand noticed the arrears. He started withdrawing monies which were received by way of rent and kept them separately for the purpose of paying taxes. Sadanand did not use these monies for any other purpose or expenses. The amount withdrawn by him was utilised for paying the property tax to Mumbai Municipal Corporation. Thereafter, Sadanand informed the bank to honour the cheque signed under joint signatures. 9] It is in such circumstances that disputes and differences arose between Sadanand and Gajanan and by Advocates letter dated 28th January 1981, it was stated that he desired to separate his share in the properties. A reply was received from Gajanan who was willing to settle 7 the matter amicably. He acknowledged his liabilities and agreed to render accounts and hand over various shares mentioned in the list. The copies of the letters in this behalf are annexed to the plaint. 10] Since Gajanan did not take any steps as agreed and on the other hand made certain false allegations that Sadanand filed a suit alleging that the properties are owned and held jointly and not just Sadanand but each of the plaintiffs together with defendant is entitled to equal 1/4th share therein. The properties are not being partitioned or divided by metes and bounds and, therefore, it is necessary to institute the instant suit and claim such reliefs. That is how the suit was filed in this Court in March 1983. 11] Prayer clause (a) of the plaint reads thus:- (a) That it may be declared that each of the 1st plaintiff, the 2nd plaintiff, the 3rd and 4th plaintiffs collectively and the defendant own and are entitled to equal 8 one fourth share in the properties of the deceased Balkrishna Babaji Nadkarni including the properties described in the list Exh.A hereto”. 12] After the suit was filed and the writ of summons was served Gajanan filed his written statement and raised various objections, including non joinder of the necessary parties. His other objection was that the structure known as Rama Niwas consists of ground plus two story building. On each floor there are two flats and on terrace there is one two room flat. The flat No.1 on the ground floor is occupied by one tenant Mitra. Flat No.2 is rented out to State Bank of India, Flat No.3 on the first floor is rented out to one Shanbhag and flat No.4 is rented out to one Mr.Natu. On second floor Flat No.5 is occupied by first plaintiff i.e. Sadanand and Flat No.6 is occupied by Gajanan. Terrace flat is occupied by plaintiff No.2, being unmarried daughter of Malti. Plaintiff Nos. 3 and 4 being the son and daughter respectively of Kamla are staying elsewhere. 9 13] It is stated that the properties left by Balkrishna should have been jointly managed but Sadanand hardly took any interest excepting monthly rent of flat Nos. 1 and 4 and it is in such circumstances that the management of the property was taken over by the defendant and all allegations made are false and were denied. 14] It is stated that the allegation that Gajanan is withdrawing amounts from the joint account for his personal expenses is false and an explanation is offered by Gajanan in that behalf. Some sort of an account is given by him and finally it is contended that immovable property described at Annexure A to the plaint includes Rama Niwas. It is one unit and since it is not partible estate, it cannot be partitioned as desired by the plaintiffs. However, as far as moveable properties are concerned, Gajanan has no objection to they being divided and/or partitioned as per the respective shares of parties. That is how the written statement filed in the year 1983 proceeds. 15] There was an interim order made in the suit on 16th January 1984, 10 wherein without prejudice agreement of both sides agreeing not to part with possession of property or create third party rights therein has been recorded. 16] It appears from the record that through out the matter proceeded on the basis that the suit is for partition and that the property is a joint family property, the relationship between parties is admitted. The ad- interim orders dated 3rd July 1991 and 6th August 1993 passed in separate notices of motions would demonstrate the same. Thereafter, the suit was listed for framing of issues and on 21st July 2008 and the Court framed following issues:- “(1) Whether the plaintiffs prove that the properties mentioned in Exh.A to the plaint is joint family property? (2) Whether the plaintiffs prove that the original plaintiff and the defendant along with late daughters of the deceased Balkrishna Babaji Nadkarni were joint owners/ co-owners of the suit properties more particularly described in the 11 Exh.A to the plaint? (3) Whether the plaintiffs prove that the plaintiff Nos.1 (a) to 1(c) through the original deceased plaintiff N.1 and the plaintiffs Nos. 2 and 3 are entitled to 3/4th share in the estate of the deceased properties mentioned in Exh.A to the plaint? (4) Whether the plaintiffs prove that the properties described in Exh.A to the plaint is liable to be partitioned by metes and bounds? (5) Whether the plaintiffs prove that the defendant is liable to render the true and correct accounts of the estate of the deceased Balkrishna Babaji Nadkarni? (6) Whether the plaintiffs are entitled to recover any amount from the defendant?” 17] The suit was placed for hearing and final disposal before the learned Single Judge of this Court on 10th December 2008 and the following order was made:- 12 “1. Heard learned Ccounsel appearing for the parties. It appears to me that there is no dispute between the parties that late Balkrishna Babaji Nadkarni was the exclusive owner of the suit property and he died intestate on 26th July 1963. It is not in dispute that apart from the plaintiffs and the defendants, there are no class – I heirs of the deceased Balkrishna. 2. In the circumstances, in the present suit, a preliminary decree can be passed by declaring the shares of the parties and by appointing a Commissioner to suggest the partition. The Commissioner for taking Accounts can be directed to take the accounts. 3. To expedite the process of partition, the parties may suggest name of some Architect for effecting/ suggesting the partition. Learned counsel for the parties agree that 13 they will make an endeavour to produce agreed consent terms before this Court. Hence, the suit shall be adjourned to 7th January 2009 for passin preliminary decree. The counsel for the plaintiff states that plaintiff No.2 Vidya is personally present in the Court.” 18] In pursuance of the observations in the above order, the suit came to be placed for preliminary decree and it was passed on 2nd February 2009. Thereafter, the Court Commissioner took cognisance and issued directions to parties. The parties appear before the Court commissioner as is evident from the further orders made in the suit on 31st August 2009, 29th September 2009 and 3rd November 2009 and 17th November 2009. 19] It is common ground that parties filed their affidavits and number of documents before the Court Commissioner and he submitted a report on 13th November 2009. The matter was thereafter, listed for hearing as far as the final decree proceedings. It is at that stage that Gajanan 14 decided to file the instant appeal challenging the preliminary decree. 20] Mr.Thatte, appearing for appellant Gajanan submitted that the preliminary decree is contrary to law. In his submission, if prayer (a) of the plaint is perused, it is apparent that the shares of the properties in the estate of Balkrishna have to be ascertained. For that purpose, it will have to be decided as to whether the properties are joint family properties or not. The matter cannot proceed only on the basis of concession allegedly recorded inasmuch as, even if that is taken into account, it cannot be held that the Court has concluded that the properties at Annexure A to the plaint are self-acquired property of late Balkrishna. It is, therefore, apparent that the learned Judge proceeded to pass preliminary decree without recording any reasons and the learned Judge overlooked the Issue No.1 which was framed by him viz., “Whether the plaintiffs prove that the property mentioned at Annexure A to the plaint is joint family property or not”. Mr.Thatte was at pains to point out that prayer clause (a) of the plaint is for a declaration that the plaintiffs collectively and Gajanan are entitled to equal 1/4th share in the properties of Balkrishna 15 which include those listed at Annexure A to the plaint. Therefore, for the declaration to be claimed, it was incumbent upon the plaintiffs to establish and prove that the property was joint family property. It is only after that is done and shares of the parties are that a preliminary decree could have been passed and not otherwise. Therefore, the impugned order is contrary to law and must be set aside. 21] Mr.Thatte then submitted that even if one assumes that the learned Judge could have passed a preliminary decree yet, it was incumbent upon him to have assigned reasons for the preliminary decree. There are no reasons assigned and straight away the learned Judge has referred the matter to the Commissioner for taking account. Thus, the learned Judge proceeds on a erroneous basis that the parties are agreed insofar as the shares are concerned. It is only for the purpose of effecting partition of the properties that an Architect will have to be appointed and further the Court Commissioner will have to take account, so that he can fix the liability. Mr.Thatte submits that the learned Judge overlooked the fact that one property is immovable property viz., Rama Niwas. That is a 16 dwelling house. Mr.Thatte submits that the expression “Dwelling House” not merely means structure or the building but includes the land on which the structure stands. Even if the major portion of the house is allotted to a tenant, the house may be regarded as a dwelling house of undivided family. Mr.Thatte relied upon a decision of Calcutta High Court (A.I.R. 1950 Cal 142 – Abani Mohan Vs. Bishwanath Mukherjee) to support his submission that it is not necessary that all members of family should actually live in the dwelling house. He submits that requirements are satisfied if the house is undivided and the members occasionally reside in the house nor is it necessary that they should be joined in mess. Therefore, the character of the house will remain as such till it is divided. Further, the words “undivided family” are not restricted to mean a family joint in status but includes a family divided in status but undivided qua properties in question. 22] Mr.Thatte has placed reliance on the documents, compilation of which has been filed in this appeal. He submits that Sadanand has filed an affidavit dated 16th May 1988 in which he had stated that Balkrishna 17 died on 26th July 1963 leaving behind him Sadanand (himself) and Gajanan (appellant). The affidavit stated that there are no other legal heirs except as mentioned in this affidavit. Therefore, the question of any shares being allotted to the other plaintiffs does not arise on the own showing of Sadanand. Sadanand and others viz., plaintiff Nos. 2, 3 and 4 have been joined as plaintiffs to the suit. When Sadanand is stating so, that itself means that no preliminary decree can be passed so as to confer any right or share on plaintiff Nos. 2 to 4. Therefore, the very basis of the conclusion reached that the property is a self-acquired property of Balkrishna and that the shares are undisputed is incorrect and erroneous. Mr.Thatte submits that this is a case where the parties have proceeded on the basis that the male members are coparceners. Thus, the property is a coparcenary property. If it is a coparcenary property and the jont Hindu family consists of male members then, rule of succession as set out in Hindu Succession Act, 1956 is inapplicable. The matter must be decided on the touch stone of the principles of Mitakshara School of Hindu Law. Mr.Thatte submits that Hindu Succession Act, 1956 itself saves a coparcenary property because, then, the principles of old Hindu Law will 18 apply. It is only the male members in the family who will get the right by birth. Further, section 23 of the Act would then apply. Assuming without admitting that Hindu Succession Act 1956 is amended firstly by the State and secondly by the Parliament, yet, the amendment made by deleting section 23 and addition of section 29A would not apply in this case because of the non obstante clause in both State amendment and the Parliament enactment. In such circumstances, the question of applicability of sections 8 and 15 of the Hindu Succession Act is ruled out. For all these reasons, this is is a fit case where the preliminary decree should be set aside and the suit should be tried in accordance with law. 23] Mr.Thatte relied upon the following judgements in support of his contentions:- 1. A.I.R. 1928 Cal 539 (Nil Kamal Bhattachariya & Anr. Vs. Kamakshya Charan Bhattachariya & Anr) 2. A.I.R. 1929 All 414 (Mastitullah & Anr. Vs. Umrao & Anr.) 3.A.I.R. 1964 Cal 52 (Satyendu Kundu Vs. Amar Nath Ghosh and 19 Ors.) 4. A.I.R. 1950 Cal 41 (Mantipragada Sivaramayya Vs. (Kapa) Venkata Subbamma and Ors.) 5. A.I.R. 1977 All 437 (Ram Bilas Tewari Vs. Smt. Shiv Rani & Ors) 6. A.I.R. 1930 Mad 561 (Abani Mohan Vs. Bishwanath Mukherjee) 7. (1948) 1 MLJ 150 (Narasimhule Vs. Someshwar Rao) 8. (2008) Bom. C.R. 445 (Late @ Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram Ganjare & Ors.) 9. 1996 (3) SCC 644 (Narashimahamurthy Vs. Susheelabai) 24] On the other hand, Mr.Menezes, learned Counsel appearing on behalf of respondents – original plaintifffs submit that the appeal filed by Gajanan is nothing but an attempt to delay the envitable. The inevitable conclusion is that the parties agree that late Balkrishna was the exclusive owner of properties and they were his self-acquired properties. Once the properties are not coparcenary properties and are the self-acquired properties of late Balkrishna, then, the rule of succession as outlined in Hindu Succession Act would apply. Section 6 then would have no application but rules enshrined in sections 8 to 15 would be in place. 20 That was the agreed and undisputed position through out. Conveniently, the appellant Gajanan challenges the preliminary decree. However, he does not lay any challenge to the order dated 10th December 2008 recording the concession of parties and the basis on which the matter must proceed. That order has gained finality. By not challenging that order and impugning only the preliminary decree, Gajanan is taking chances. Therefore, the appeal should not be entertained. Further Mr.Menezes submits that the conduct of Gajanan is such that he is disentitled from invoking the appellate remedy. He has accepted the order dated 10th December 2008 and the preliminary decree impugned in this appeal. The matter was referred to Commissioner for taking accounts wherein Gajanan actively participated by filing affidavits and objections. He also raised objections to the Commissioner’s report and urged that he would like to argue the matter as far as the contents of the report, before the Court. That was the stage at which the matter rested before the learned Single Judge after submission of report in November 2009. Suddenly, Gajanan turned around and questioned the basis of the preliminary decree. This is obvious because he was informed that he 21 would have to accept the shares as set out in the preliminary decree. He had already consented to the movable being partitioned by metes and bounds on the basis of the shares of the parties but when it came to the immovable property and considering the market potential thereof, he changed his mind and has filed instant appeal. It is not proper on the part of Gajanan to challenge the preliminary decree because even he has been maintaining in the correspondence prior to the suit that late Balkrishna had acquired the immovable properties. As far as building Rama Niwas is concerned, Gajanan admitted that there will be four sharers in the building, including him. He outlined the sharers as Sadanand, Mrs.Pandit and son and daughter of the deceased eldest daughter Mrs.Gaitonde. He asserted that Mrs.Pandit and son and daughter of Mrs.Gaitonde have relinquished their share in favour of Gajanan with the result that he gets in all 3/4th share in the building. It is clear from this stand that he never disputed the basis of the preliminary decree. Mr.Menezes placed reliance upon the contents of the letter dated 19th May 1981 addressed by the Advocate for Gajanan to the Advocate for Sadanand. Further, he submits that Gajanan had prepared a will 22 wherein he clearly stated that the building Rama Niwas is self-acquired property of his father late Balkrishna. In these circumstances, to now question the preliminary decree is too late in the day and this Court, therefore, should not countenance any such attempts. 25] As far as the affidavit of 16th May 1988 of Sadanand is concerned, Mr.Menezes submits that none of the plaintiffs are aware of the said affidavit, then, it is a bogus and got up document. If the affidavit was true and Gajanan had the same in his possession, he would have definitely used the contents of the same in previous proceedings between parties. Having not done so far all these years, he should not be permitted to rely upon the contents of the same now. Assuming further that such an affidavit was filed, the shares of the parties in the suit property cannot be surrendered. In fact, Gajanan in the consent terms filed before the Commissioner had categorically admitted the shares of plaintiffs in the immovable property. Therefore, he is estopped from raising the question of Mitakshara, a school of Hindu law being applicable. He should not be allowed to aprobate and reprobate, 23 according to his own whims and fancies. Mr.Menezes distinguished all the decisions brought to our notice by Mr.Thatte by urging that the matter must proceed on the basis of preliminary decree and Hindu Succession Act applies to properties which are self-acquired. In these circumstances, his submission is that all decisions relied upon by Mr.Thatte are inapplicable and consequently, the appeal should be dismissed. 26] With the assistance of learned Counsel for parties, we have perused the plaint, written statement, issues and all orders including the impugned preliminary decree. We have also perused the relevant statutory provisions and the decisions brought to our notice. 27] In our view, it will not be permissible for the appellant to raise the issues which are being raised in this appeal for the first time. The appellant has not challenged the order 10th December 2008. If that order is perused, it is clear that the same is rendered after the issues have been framed. The parties have been given opportunity to file documents after 24 the issues