1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 349 OF 2004 APPEAL FROM ORDER NO. 349 OF 2004 APPEAL FROM ORDER NO. 349 OF 2004 Jayaram Govind Bhalerao ) (The Legal Representative of ) the deceased Appellant Sitabai ) W/o Narayan Deshmukh in Civil ) Appeal No. 113/2000 ) Age - Adult, Occupation - Agriculturist ) R/At Khaniwali, Taluka - Bhivandi, ) District -Thane. )..Appellant Vs. Shri Jaywant Balkrishna Deshmukh ) Age - Adult, Occupation - Service ) R/At - (A) Thane District Central ) Co-operative Bank, Branch Turhe ) New Bombay, District -Thane And ) R/At - (B) A.A.L.S. 28 Plot No.10, ) Airoli, IInd Floor, Opp. CIDCO, ) Executive Engineer Officer, ) Sector - 10 Vashi, New Bombay. ) 2. Shri Deepak Balkrishna Deshmukh ) Age - Adult, Ocupation-Landlord ) 3. Shri Ramesh Balkrishna Deshmukh ) Age - Adult, Occupation-Landlord ) 2 4. Shri Anant Balkrishna Deshmukh ) Age - Adult, Occupation-Landlord ) 5. Shri Pramod Balkrishna Deshmukh ) Age - Adult, Occupation-Landlord ) 6. Sou Lata Sharad Deshmukh ) Age - Adult, Occupation-Landlord ) 7. Smt. Sumitra Balkrishna Deshmukh ) Age - Adult, Occupation-Household ) 8. Sou Alka Vilas Chaudhari ) Age - Adult, Occupation Household ) 9. State of Maharashtra ) Through the Collector, Dist Raigad ) 10.The Chief Landlord Surveyor Officer ) CIDCO Bhavan, 1st Floor, C.B.D. ) (Konkan Bhavan) New Mumbai, ) Mumbai - 400 600. ).. Respondents Mr. N.V.Walawalkar, Senior Counsel, i/b. Mr. Jeetendra Sachdev a/w Miss Rakhee Sachdev, advocates for the appellant. Mr. S.V.More, AGP, for Respondent No.9. Mr Abhinandan Vagyani, Advocate a/w. Mr. Manoj Patil i/b. Mr. S.R.Borulkar, Advocates for Respondents Nos. 1 to 8. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 10th March,2008. DATE: 10th March,2008. DATE: 10th March,2008. 3 JUDGMENT JUDGMENT JUDGMENT 1. This is an Appeal against rejection of the application made by the present applicant for being impleaded as legal heir of deceased appellant in Civil Appeal No.113 of 2000. 2. To state in brief, deceased Sitabai had filed the Special Civil Suit No.161 of 1995 for partition and separate possession in the suit properties shown in Schedules "A", "B" and "C" in the plaint. According to her, the property was the joint family ancestral property. According to her, her father-in-law Parshuram had two sons - Narayan and Balkrishna. The plaintiff was married to Narayan in 1938. Narayan died in the year 1942 during the lifetime of his father. Parshuram died in 1945. The name of Narayan, the husband of Sitabai, was never entered in the Record of Rights pertaining to the Joint Hindu Family property. After the death of Parshuram, name of his son Balkrishna was entered in the Record of Rights as per the prevailing custom. As Balkrishna was minor, his mother was shown as guardian in the record of rights. According to Sitabai, no partition had taken place in the lifetime of her father-in-law and also during the lifetime of her brother-in-law Balkrishna. Defendant Nos. 1 to 8 are 4 the legal heirs of Balkrishna. Some of the properties which were shown in Schedule "A" were acquired by the Government for the purpose of CIDCO and compensation for the same was accepted by Balkrishna. An amount of Rs.5,000/- was deposited in the joint names of Sitabai and respondent No.1 - Jaywant. The suit came to be decreed in respect of the properties shown in Schedules "B" and "C", but to the extent of the properties shown in Schedule "A", the suit of sitabai was dismissed on the ground that the property was no more in possession of the joint family. Aggrieved by the dismissal of the suit to that extent, Sitabai had filed Civil Appeal No.113 of 2000. Pending that Appeal, Sitabai died and the present appellant Jayaram, who claims to be the brother of the deceased Sitabai, moved an application before the appellate Court to implead him as the legal heir of deceased Sitabai on the ground that she had executed a Will and had bequeathed her property in favour of the appellant. According to him, That Will was also duly registered with the Office of the Sub-Registrar. 3. The application was opposed by the respondents on the ground that the same was forged and not genuine and that Sitabai did not have right to bequeath the property. 4. After hearing the parties, the learned Judge of 5 the appellate Court, relying on the authorities in M.N.Aryamurthi and another vs. M.L.Subbaraya Setty M.N.Aryamurthi and another vs. M.L.Subbaraya Setty M.N.Aryamurthi and another vs. M.L.Subbaraya Setty (dead) by his legal representatives and others, AIR 1972 (dead) by his legal representatives and others, AIR 1972 (dead) by his legal representatives and others, AIR 1972 SC 1279 and A.Raghavamma v. A. Chenchamma, AIR 1964 SC SC 1279 and A.Raghavamma v. A. Chenchamma, AIR 1964 SC SC 1279 and A.Raghavamma v. A. Chenchamma, AIR 1964 SC 136 136 136, came to the conclusion that Sitabai had no right to execute a Will in respect of her undivided share in the Joint Hindu Family and, therefore, the present appellant could not succeed her in respect of the property mentioned in Schedule "A". Being aggrieved by rejection of the said application, the appellant has preferred the present Appeal. 5. Heard learned Counsel for the parties. 6. From the facts noted above, it is clear that the husband and brother-in-law of Sitabai were members of the Joint Hindu Family along with their father. Sitabai was married in 1938 and her husband had died in 1942 during the lifetime of his father. In 1945, his father also died and thus the Joint Family property of the coparcener was in the hands of Balkrishna. There is no dispute that the coparcenery had joint family property shown in Schedules "A", "B" and "C" in the plaint. Admittedly, under the old Mitakshara Hindu Law, on death of the father and brother, when there was no other male member in the family except Balkrishna, he alone would get whole of the property by survivorship and the female members would be entitled only to maintenance from that 6 property. However, a drastic change was brought in the law by Hindu Women’s Rights to Property Act, 1937 (hereinafter referred to as "the said Act"). Under Section 3(2) of the said Act, when a Hindu governed by any school of Hindu Law other than the Dayabhaga school or by customary law dies 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 same interest as he himself had. Sub-section (3) only declares that the Hindu widow would get only a limited interest known as a Hindu woman’s estate, provided however that she shall have the right of claiming partition as a male owner. It means she could claim partition, get possession and enjoy the property, but she could not dispose of the property except in special circumstances. In 1942, when Narayan, husband of Sitabai died, he had an interest in the Joint Hindu Family property and admittedly the properties were governed by Mitakshara School of Hindu Law as applicable in Maharashtra. In view of the provisions of sub-sectison 3(2) of the said Act, Sitabai would get the same interest in the Joint Hindu Family property as her husband had at the time of her death, but that interest was a limited interest. As the partition did not take place, after death of her husband or after the death of father-in-law, the joint family and the joint family property continued till Hindu Succession Act, 1956 was enacted. 7 7. Section 14 of the Hindu Succession Act, 1956 reads as under :- "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. Explanation - In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (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 8 prescribe a restricted estate in such property." From this it is clear that 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 and not as a limited owner. The preamble of this Act clearly shows that the Hindu Succession Act was enacted to amend and codify the law relating to inteste. Thus, Section 14 amended the Hindu Law in relation to the intestate succession in respect of female Hindus. Thus, what Sitabai had received as the limited estate on death of her husband in 1942 by virtue of Section 3(2) of the said Act, she became full owner of the same by virtue of Section 14(1) of the Hindu Succession Act,1956. Admittedly, in view of this legal provision, her suit for partition and separate possession was decreed in respect of the property shown in Schedules "B" and "C". She was required to prefer an appeal only in respect of the properties mentioned in Schedule "A" about which the suit was dismissed on the ground that the property was not possessed by the family and it was already acquired by the Government. It is not necessary to enter into the merits of that appeal. Possibly, she would get share in the compensation received from the Government in the same ratio in which she had share in the joint family property. 8. According to the appellant, Sitabai had executed 9 a Will bequeathing her property to him. After her death, on the basis of that Will, the appellant had made an application before the appellate Court to implead him or to bring him on record as legal heir of the appellant - Sitabai. That appeal came to be rejected by the learned appellate Court relying on M.N.Aryamurthi M.N.Aryamurthi M.N.Aryamurthi (supra) and Addagada Raghavamma and other (supra) supra) and Addagada Raghavamma and other (supra) supra) and Addagada Raghavamma and other (supra) in which it was held that a Hindu cannot bequeath his share or interest in the joint family property by executing a Will. Mr. Walawalkar, learned Senior Counsel for the appellant pointed out that if these two judgments are carefully read, it would become clear that in both these matters, interest in the Joint Hindu Family property was sought to be bequeathed by executing a Will prior to the enactment of the Hindu Succession Act,1956. He rightly pointed out that Section 30 of the Hindu Succession Act has made important departure from the legal position as it prevailed prior to the enactment of the Hindu Succession Act, 1956. Section 30 of the said Act reads as follows :- "30. Testamentary succession - Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. 10 Explanation - The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhiillom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section." It will be useful to quote following observations from Mulla on Hindu Law 17th Edition, Vol. II page 374, in respect of the effect of Section 30: " According to Mitakshara law, no coparcener, not even a father, can dispose of by will his undivided coparcenary interest even if the other coparceners consent to the disposition, the reason being that at the moment of the death the right of survivorship (of the other coparceners) is in conflict with the right by device. Then the title by survivorship, being the prior title, take precedence to the exclusion of that by device. That rule of Mitakshara law is now abrogated by the Explanation which lays down in explicit terms that such interest is to be 11 deemed to be property capable of being disposed of by will notwithstanding anything contained in any provision of the Act or any other law for the time being in force." .... "Prior to the coming into force of this Act neither under Mitakshara nor under Dayabhaga law could a widow or other limited female heir in any case dispose of by will any property inherited by her or any portion thereof, whether the property was movable or immovable. The effect of s 14 of this act inter alia is to abrogate that traditional limitation. She is now full owner of all property howsoever acquired and held by her and can dispose of it by will..." From this, it is clear that inspite of the restrictions on the disposition of undivided coparcenary interest by coparcener or by a widow by will under the Mitakshra School of law, in view of the drastic change brought in by Section 30 and particularly Explanation to section 30 of the Hindu Succession Act, the interest of a male Hindu in a Mitakshara coparcenary property shall be deemed to be property capable of being disposed of by a 12 male or female within the meaning of this Section. 9. As pointed out earlier, Sitabai got interest of her husband in the coparcenary property in 1942 as a limited estate but she became full owner of that interest in 1956 and by virtue of Section 30, she could bequeath her share or interest by executing a will. It appears that this legal position was not brought to the notice of the learned appellate Court and the learned appellate Court rejected the application of the applicant holding that Sitabai could not bequeath her interest in the joint family property by a will in view of the above referred two authorities. As Their Lordships were concerned with the disposition of property by a Will executed prior to the enactment of the Hindu Succession Act,1956 those authorities could not have been made applicable to the facts of the present case. I find support to this view from Gopal Gopal Gopal Singh and another vs. Dile Ram (Dead by Lrs. and Singh and another vs. Dile Ram (Dead by Lrs. and Singh and another vs. Dile Ram (Dead by Lrs. and others AIR 1987 SC 2394 others AIR 1987 SC 2394 others AIR 1987 SC 2394 wherein the Supreme Court held that the effect of the Hindu Succession Act, 1956 was that a female can transfer her property by will and since that case was subsequent to 1956, she had absolute estate and full capacity to make the Will. This legal position was also followed in several authorities by the Supreme Court, including Pavitri Devi vs. Darbari Singh Pavitri Devi vs. Darbari Singh Pavitri Devi vs. Darbari Singh 1993 (4) SCC 392. 1993 (4) SCC 392. 1993 (4) SCC 392. 13 10. It is true that Sitabai was not in physical or actual possession of the property mentioned in Schedule "A" when the Hindu Succession Act, 1956 came into force. But that will not make any difference because she had interest in the Joint Hindu Family property which was recorded in the name of her brother-in-law and naturally, he would be treated as Karta. He held and possessed the property for and on behalf of coparceners as well as the members of the family who held interest in coparcenary property. In Dr. Mahesh Chand Sharma Dr. Mahesh Chand Sharma Dr. Mahesh Chand Sharma vs. Smt. Raj Kumari Sharma and others AIR 1996 SC 869, vs. Smt. Raj Kumari Sharma and others AIR 1996 SC 869, vs. Smt. Raj Kumari Sharma and others AIR 1996 SC 869, while dealing with the interpretation of words "any property possessed of by a female Hindu" as used in Section 14 of the Hindu Succession Act, Their Lordships observed as follows ;- "...It has been repeatedly held by this Court (see the several decisions refererd to under the heading "possessed - meaning of in Mulla’s Hindu Law (Sixteenth Edition at page 810) while construing the expression "possessed" in Section 14(1) that the said expression means and refers to a right to possession and not necessarily actual or physical possession. So long as she has a right to possession, the mere fact that the female Hindu was not in physical possession matters very little. Therefore, it is immaterial whether Satyawati was physically 14 occupying the said first floor or not. So long as she had the right to possession over the said first floor, Section 14(1) is attracted..." In view of this legal position, even though she was not in physical possession of the property, she was presumed to be in possession of the property as a person having share in the Joint Family property and her brother-in-law Balkrishna was possessing that property as Karta of the joint family and therefore she was supposed to be in the joint possession of the property. 11. Taking into consideration the legal position stated above, it is clear that Sitabai was entitled to bequeath her interest or share in the joint family property by executing a Will in view of the provisions of Section 30 of the Hindu Succession Act. Whether the Will allegedly executed by her and propounded by the present appellant is a genuine or not is a different question which will be required to be looked into when the applicant will be called upon to prove the Will. However, it was wrong to reject the application to bring him on record as legal representative of deceased Sitabai in the Appeal at the threshold holding that she was not entitled to bequeath property by Will. Thus, the impugned order is clearly illegal and wrong and is liable to be set aside. 15 12. In the result, the Appeal is allowed and the impugned order is hereby set aside. The application made by the present appellant to bring him on record as legal representative of the deceased Sitabai in the Appeal is hereby allowed. 13. In view of this, Civil Appeal No.113 of 2000 which was disposed of as abated, is hereby restored to the file of the District Judge, Alibag for disposal as per law. 14. The parties shall appear before the District Judge, Alibag, on 15.4.2008. As the Appeal is very old, the learned District Judge shall see that the Appeal is heard and disposed of as early as possible. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)