1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.21 OF 1998 FIRST APPEAL NO.21 OF 1998 FIRST APPEAL NO.21 OF 1998 WITH WITH WITH CROSS OBJECTION (S) NO. 1102 OF 1998 CROSS OBJECTION (S) NO. 1102 OF 1998 CROSS OBJECTION (S) NO. 1102 OF 1998 Lady Ramabai W/o. Parashuram Bhau Patwardhan, Age 85 years, Resident of Parashuram Niwas, Tarabai Park, Kolhapur since deceased, by her legal representative Mrs.Vijayadevi Vasantrao Deshpande since deceased through her heirs/legal representatives. 1. Vasantrao Dhundiraj Deshpande Age about 76 years, Occ: Retired Army Officer, Agriculturist, R/o.E/24, Tarabai Park, ‘Parshuram Niwas, Kolhapur-416 003. 2. Vinaykumar Vasantrao Deshpande, Age about 30 years Occ: Agriculturist, R/o.E/24, Tarabai Park, ‘Parshuram Niwas, Kolhapur-416 003. .. Appellants (Plaintiffs in the suit) Vs. 1. Pranaya Parshuram Patwardhan Age about 23 years. 2. Pratik Parshuram Patwardhan Age 21 years. 3. Lailaraje w/o. Parashuram Patwardhan Age 50 years. 4. Ramchandra Parshuram Pandit Amatya Alias Bawdekar ‘Raj Prasad’ E/25 Tarabai Park (Opp. Income Tax Office), Kolhapur. 2 5. Indumati Shankarrao @ Appasaheb Patwardhan (since deceased by heirs and Legal representatives) 5(a). Smt. Baurawa Sangappa Kadapatti Adult, Occ: Household. 5(b). Jay Sangappa Kadapatti Adult. 5(c). Rajiv Sangappa Kadapatti Adult. 5(d). Renuka Sangappa Kadapatti Adult. 5(e). Sanjay Sangappa Kadapatti Adult. All Residing at 6-A Boat Club Road, Pune-411 001. 6. Aditya Pranay Patwardhan Adult, Resident of 1 ‘Maze Ghar’ Koregaon Park, Pune. 7. Sou. Pravasini Singh @ Sawhoney Occ: Household(Meera Hsg. Soc. Near C.D.A. Office, Pune.) C/o. Lt. Col. Mohansingh Sawhoney Nermus Heritage Nagar Road, Aga Khan Palace, Pune. .. Respondents (Defendants in the suit) ----- Mr.N.V.Walawalkar with Mr. A.M. Kulkarni for the Appellants. Mr. Paritosh Jaiswal i/b. M/s. Kanga & Co. for Respondent Nos.1 and 6 Mr. A.Y. Sakhare, Sr. Adv. with Mr. N.J.Patil for Respondent No.2. Mr. R.A. Thorat for Respondent No.3. 3 Mrs. Anita A. Agarwal for Respondent No.5A to 5E. Mr.S.V. Sadavarte for Respondent No.4. CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & ROSHAN DALVI,JJ. ROSHAN DALVI,JJ. ROSHAN DALVI,JJ. DATE OF RESERVING THE JUDGMENT : 2ND SEPTEMBER 2005 DATE OF RESERVING THE JUDGMENT : 2ND SEPTEMBER 2005 DATE OF RESERVING THE JUDGMENT : 2ND SEPTEMBER 2005 DATE OF PRONOUNCING THE JUDGMENT: 23RD DECEMBER 2005 DATE OF PRONOUNCING THE JUDGMENT: 23RD DECEMBER 2005 DATE OF PRONOUNCING THE JUDGMENT: 23RD DECEMBER 2005 JUDGMENT : (Per Gokhale, J.) JUDGMENT : (Per Gokhale, J.) JUDGMENT : (Per Gokhale, J.) 1. This is a First Appeal filed by the original Plaintiffs against the Judgment and Decree of the Civil Judge (S.D.) Kolhapur dated 1st May, 1997 dismissing Plaintiffs’ Special Civil Suit No.18 of 1979 and allowing the Defendants’ counter claim. The original Plaintiff - Lady Ramabai was the second wife of late Sir Parshuram Bhau Patwardhan, the erstwhile ruler of Jamkhandi, a Princely State situated in District Bijapur, now in State of Karnataka. She used to reside in a palatial property known as Parshuram Niwas at Kolhapur, which belonged to the estate of her deceased husband. She had filed the said suit against the original Defendants seeking a partition and possession of immovable and movable properties from the estate of her deceased husband situated at various places including at Kolhapur and Pune and this Parshuram Niwas to herself. The counter-claim claimed the Parshuram Niwas property for the concerned 4 Defendants, the heirs of the said Sir Parshuram Bhau from his first wife. This counter-claim has been allowed and the suit has been dismissed under the impugned decree. The heirs of Lady Ramabai have filed this appeal whereas the concerned Defendants have filed their cross-objections to the extent there are findings adverse to them in the impugned judgment. For convenience, the Appellants shall be referred to as the Plaintiffs and the Respondents as the Defendants as mentioned in the suit. 2. The parties are stated to be members of a joint Hindu family (HUF). The Plaintiffs as well as the Defendants claim from a common ancestor, the said Sir Parshuram Bhau Patwardhan Rajesaheb of Jamkhandi (known as "Sir Parshuram Bhau") who died in 1924. Sir Parshuram Bhau had married one Ramabai known as the Senior Rani who had predeceased him in 1907. After her death he married a lady also named Ramabai but known as Lady Ramabai, the Junior Rani (the original Plaintiff). 3. Sir Parshuram Bhau left behind him from the marriage with his first wife only one son Shri Shankarrao Appasaheb (known as "Shankarrao") who died in 1947. Shankarrao left behind him his wife Leelavati, one daughter Indumati (Defendant No.5) and one son. This son 5 Parshuram II died in 1953 leaving behind him his wife Lailaraje (Defendant No.3), one married daughter Pravasini (Defendant No.7) and two sons. These two sons Pranay and Pratik are the original Defendants 1 and 2. These Defendants 1 to 3 are the main contesting Defendants and shall be referred as "the Defendants". The son of Defendant No.1 Aditya is joined as Defendant No.6. The Defendant Nos.5 to 7 have been joined as party Defendants later though the Plaintiffs contend that they are not the members of the HUF and are not entitled to any of the HUF properties and are only joined by way of caution to obviate the plea of non-joinder of necessary parties. 4. The original Plaintiff Lady Ramabai died in 1988 during the pendency of the suit. She had one daughter Kamladevi who died in 1992. Kamladevi left behind her one daughter Vijayadevi and one adopted son Ramchandra (who has been joined subsequently as Defendant No.4, but with whom the Plaintiffs’ dispute has been settled). The original Plaintiff executed her last Will and Testament under which she bequeathed her entire estate to her grand-daughter Vijayadevi who died in 1996. After her death her husband Vasantrao Deshpande and her son Vinaykumar have been brought on record as the present Plaintiffs 1 and 2 respectively. They are the Appellants 6 herein, being the heirs of the original Plaintiff. 5. The genealogy of the family of Sir Parshuram Bhau shows the relationship amongst the concerned persons as follows:- Sir Parashuram Bhau Rajesaheb of Jamkhandi (died in 1924) ¦ ------------------------------------------- ¦ ¦ Ramabai Sr. Rani. Lady Ramabai - Jr. Rani (Died in 1907) (Orig.Plaintiff) ¦ ¦ ¦ Kamladevi ¦ (Daughter) Leelavati ---- Shankarrao (Appasaheb) (Died in 1992) (wife) (Son) (Died in 1987) (Died in 1947) ¦ -------------- ¦ ¦ ¦ -------------- Vijayadevi Ramchandra ¦ ¦ (Daughter) (Adopted son) Indumati Parshuram II -- Lailaraje L/R of Plff. (Deft. No.4) (Daughter) Bapusaheb (Wife) (Died in 1996) (Deft. 5) (Son) (Deft.3) ¦ (Died in 1953) ------------------ ¦ ¦ ¦ ------------------------ Vasantrao Vinaykumar ¦ ¦ ¦ Deshpande (Son) Pravasini Pranaya Pratik (Husband) (Plff.No.2) (Married (Deft.1) (Deft.2) (Plff.No.1) daughter) (Son) (Son) (Deft.No.7) ¦ Aidtya (Deft.No.6) (Son) 6. The original Plaintiff claims to be a member of the HUF of her husband Sir Parshuram Bhau. She filed this suit for partition and possession of 1/4 share in the joint family 7 property of the HUF consisting of herself and Defendants 1, 2 and 3. The property sought to be partitioned by the Plaintiff by metes and bounds consisted of immovable property shown in Schedule A to the Plaint, and any other property that would be added subsequently to the said Schedule. Schedule A to the Plaint showed three immovable properties (1) Parshuram Niwas at Kolhapur under CTS No.24-A to 24-G which was then valued at Rs.93,000/-, (2) Municipal House No.1 at Koregaon Park, Pune known as "Maze Ghar", and (3) Agricultural lands at Lohagaon at Pune. Schedule "B" consisted of movables and under that it was mentioned - "At present not known". 7. It has been the original Plaintiff’s case that she was not paid any maintenance from the family estate. She has however set out maintenance amount paid to her as the Dowager of Sir Parshuram Bhau out of State funds and as bequeathed by him in his last Will and Testament dated 19th January 1918. 8. The original Plaintiff was widowed in 1924. At that time her step son Shri Shankarrao was minor aged about 16 years. Since Sir Parshuram Bhau was the Rajesaheb of Jamkhandi, Shri Shankarrao became the Raja of Jamkhandi during his minority. The original Plaintiff was therefore, appointed Regent in which capacity she served the State for a 8 period of 2 years until 1926 when Shri Shankarrao attained majority. 9. It is her case that she continued to reside in the said bungalow known as Parshuram Niwas belonging to the HUF free of rent as a widow in the joint family since prior to 17th June 1956 and thereafter and the same was in her possession all throughout. The Plaintiffs therefore claim that the original Plaintiff became an absolute owner of the said property Parshuram Niwas under the provisions of Section 14(1) of the Hindu Succession Act, 1956 which came into force on 17th June 1956 and which provides that any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as a full owner and not as a limited owner. 10. It is not disputed that Defendants 1, 2 and 3 have executed a partial partition of the HUF properties between themselves in 1973 (There is shown to be another such partition in 1956, with which this suit is not concerned). Hence, as a Hindu widow in a joint Hindu family the original Plaintiff demanded and is claiming her share in the family property upon the said partition. 11. It is seen from the Plaint that the original 9 Plaintiff only sued for allotment and possession of her share in the HUF properties upon Defendants 1,2 and 3 having executed a partial partition. It is further seen therefrom that it was the case of the original Plaintiff that she makes a distinction and states that she was not maintained out of the family estate (though she was maintained out of the State funds) and that this was contrary to the bequest made by her husband Sir Parshuram Bhau in his Will dated 19th May 1918. 12. The original Plaintiff executed her last Will and Testament during the pendency of the suit in 1980 leaving behind her entire estate to her grand daughter Vijayadevi. The original Plaintiff expired in 1988. The said Vijayadevi was brought on record of the suit as the Plaintiff upon the cause of action surviving to her under that testamentary disposition. Vijayadevi expired in 1996. The present Plaintiffs who are her heirs and legal representatives being her husband and her son have been brought on record upon the right to sue surviving to them. 13. The Plaint has been amended from time to time. Under the amended Plaint the present Plaintiffs claim a declaration that the original Plaintiff was the absolute owner of the property known as Parshuram Niwas belonging to the HUF, she having resided therein prior to 1956 in her capacity as the widow of the joint family in lieu of her right to 10 maintenance. They therefore, claim her absolute ownership rights in the said property under Section 14(1) of the Hindu Succession Act. The Plaint has been accordingly amended for a declaration of absolute ownership and alternatively for partition. The Plaint has later been further amended to claim 1/2 share in the HUF properties in the place and stead of the 1/4 share claimed by the original Plaintiff. This amendment is based upon the claim of the original Plaintiff as a Hindu widow under a Local Act of the erstwhile State of Jamkhandi being Jamkhandi State Act I of 1937. 14. In 1982, during the pendency of this suit and during the life time of the original Plaintiff Defendant No.1 had filed Suit No.23 of 1982 in the Court of Munsiff at Jamkhandi against Defendants 2 and 3 for injunction restraining them from dealing with the unpartitioned HUF properties. The original Plaintiff applied for being joined in that suit as a necessary party. However, Defendant No.1 withdrew that suit. Nevertheless from that suit the original Plaintiff obtained for herself the information concerning further immovable and movable properties of the HUF hitherto unknown to her. Consequently by way of a further amendment the original Plaintiff added those properties as Schedules A-1, A-2, B-1, B-2, B-3, B-4, B-5, B-6, B-7 and B-8 for partition and possession. 11 15. It is accordingly seen that Plaintiffs Nos.1 and 2 claimed 1/2 share in all the movable and immovable properties belonging to the joint family of the original Plaintiff and Defendants 1,2 and 3 by partition, allotment and consequent possession thereof. The Plaintiffs also claim the declaration and absolute ownership of the property in Schedule A-1 of the Plaint which mentions the Parshuram Niwas. 16. Defendant No.1 filed his written statement denying the original Plaintiff’s claim for partition. (i) He contended in his written statement that the original Plaintiff was entitled to maintenance and was paid maintenance from the time of the death of her husband until her death. He has disputed that the amount of maintenance was paid from the State funds and not from the family estate. He also disputed the Plaintiffs claim of having taken away from her the ornaments given to the original Plaintiff at the time of her marriage as her Stridhan. He has disputed the fact of the HUF of the original Plaintiff with the Defendants 1,2 and 3. He has disputed original Plaintiff’s claim of residence in Parshuram Niwas in her capacity as the widow of the HUF. It is his case that the original Plaintiff was allowed to live in the said house on humanitarian consideration and only as his licensee gratis. He has 12 admitted the execution of the partial partition amongst Defendant Nos.1 to 3 but disputed the original Plaintiff’s right to claim her share thereupon. (ii) He has claimed absolute ownership to all the properties of the HUF which earlier belonged to his father Parshuram II as the Late Ruler of Jamkhandi upon the merger of the said State in the Union of India in 1948. He claims to have been regranted, free of any encumbrances, innumerable properties including the suit properties. He has further claimed that those properties were never the properties of the joint family in the hands of the Ruler. He has disputed the rights of any other members of the Royal Family to claim any share in any of these properties. Accordingly he claims all the properties under the Rule of Primogeniture. He has however claimed to have purchased certain agricultural lands claimed in the suit along with Defendant NO.2 in 1963 during the minority of these Defendants. He has further claimed possession of Parshuram Niwas and a legal right therein consequent upon the fact that it stood in his name. Under the partial partition he claims that the said property was allotted to Defendant No.2 and thereafter stood in the name of Defendant No.2. 17. Defendants 2 and 3 in their written statement have claimed that the suit properties were never joint family properties and that the original Plaintiff had no share in 13 any of those properties. They have set out the maintenance amount paid to the original Plaintiff by the Government free of any taxes. They claim that the original Plaintiff was provided accommodation in a part of the main bungalow of Parshuram Niwas on humanitarian grounds to stay therein during her life time free of rent. They have disputed the original Plaintiff’s claim for partition of any of the movable and immovable properties. They claim that the Plaintiff resided in Parshuram Niwas along with the Defendants and was not in exclusive possession thereof (They further claim that the original Plaintiff lived in an undefined portion of Parshuram NIwas and hence could not bequeath her undefined share to her grand daughter). They further claim that because a specific and limited bequest is made in favour of the original Plaintiff under the Will of Sir Parshuram Bhau, she (as also her daughter) are not entitled to claim anything more and are divested of all other properties. 18. In their additional written statement Defendant Nos.2 and 3 have contended that upon the death of the original Plaintiff’s husband in 1924 the entire property passed by survivorship to Shri Shankarrao as the sole surviving co-parcener. They have contended that the original Plaintiff received maintenance allowance under the Will of her husband 14 dated 19th January 1918 and that her residence in Parshuram Niwas was because of the compassionate gesture. She was put in possession in a part of the bungalow and that was to be only during her life time and hence have denied her claim of absolute ownership under Section 14(1) of Hindu Succession Act, 1956. 19. Defendant No.2 has filed a counter claim for possession of Parshuram Niwas from Plaintiffs upon the ground that the original Plaintiff was allowed to live in the said bungalow only on humanitarian considerations and as a gratuitous licensee. He claims his title pursuant to the allotment of Parshuram Niwas to him in the partial partition between Defendants 1, 2 and 3 executed in 1973. 20. The Plaintiffs have denied the Defendants’ claim of possession to Parshuram Niwas by filing a reply to the counter-claim. 21. The learned Civil Judge (S.D.) Kolhapur has dismissed the Plaintiff’s suit with costs and has allowed the counter claim of Defendant NO.2 with costs. The learned Judge has framed a number of issues relating interalia to the original Plaintiffs’ possession in Parshuram Niwas, the original Plaintiffs’ claim of partition and stridhan, which alone are 15 disputed in the appeal (Other issues, including the issue relating to the birth/adoption of Plaintiff No.2 are not pressed by the Defendants in this appeal - Plaintiff No.1 being entitled to sue whatever be the legal status of Plaintiff No.2). THE POINTS ARISING FOR DETERMINATION: THE POINTS ARISING FOR DETERMINATION: THE POINTS ARISING FOR DETERMINATION: 22. The lis between the parties requires determination of mainly 3 points:- (i). The Plaintiffs’ claim of partition of the suit properties as joint family properties belonging to the HUF (of which the original Plaintiff was the member) and the claim for 1/2 or 1/4th share. (ii). The Plaintiffs’ independent claim of absolute ownership of Parshuram Niwas stated to be in her possession in lieu of her right to maintenance since prior to 1956 (in view of Section 14(1) of the Hindu Succession Act, 1956). (iii). The Plaintiffs claim to Stridhan. 23. The Plaintiffs claim of partition of the HUF 16 properties is largely based upon the actual partition between Defendants 1,2 and 3 (which can only be of HUF properties) and the suit filed by Defendant No.1 against Defendants 2 and 3 in 1982 showing various other properties claimed by him. It will have to be seen whether the properties claimed in that suit can be taken to be HUF properties to allow the Plaintiffs claim of partition and the allotment of the 1/2 share to them. That apart, it will have to be examined as to whether the original Plaintiff as a member of the HUF can claim a share on such partition. 24. The Plaintiff’s claim of absolute ownership to Parshuram Niwas is based entirely upon documentary evidence contained in the correspondence between the original Plaintiff and the Administrator of the Estate of Sir Parshuram II during the minority of Defendants 1 and 2. The correspondence is admitted. In fact both the parties have separately relied upon it. Though both parties have led oral evidence on this score, it stands excluded by the said documentary evidence. 25. The Plaintiffs’ claim to stridhan has to be considered upon the correspondence with regard thereto. 26. To determine the Plaintiff’s aforesaid rights, it 17 would be material to first set out the admissions of facts by both parties as emerging in this case and the extent to which the parties defer. They are as follows:- .(i) The relationship of the parties shown in the genealogy chart.- The same is admitted, though however the original Plaintiff’s claim of being a member of the HUF of Defendants 1,2 & 3 is denied by defendants. .(ii) The properties shown in the schedules annexed to the Plaint (original as well as amended) as the properties belonging to the family of Sir Parshuram Bhau - The Plaintiffs claim these properties as belonging to the HUF of which the original Plaintiff was the member. The Defendants claim these properties as the absolute properties of the Ruler of Jamkhandi State. .(iii) There is no dispute on the dates of the births and deaths of the members of the family of the Ruler of Jamkhandi Sir Parshuram Bhau. .(iv) The execution of the Will of the Ruler of Jamkhandi Sir Parshuram Bhau on 19.5.1918 marked 18 Exhibit-590 in evidence is admitted though the parties defer on the effect thereof. .(v) The correspondence entered into between the original Plaintiff and the Administrators of the Estate of her deceased husband, Sir Parshuram Bhau is admitted, though the parties defer on their interpretation thereof. .(vi) The residence of the original Plaintiff in the property Parshuram Niwas at Kolhapur from 1955 - it is the Plaintiffs case that this residence has been granted to her by the Administrator of the Kingdom of Jamkhandi one Mr.Narayan Dandekar I.C.S. in lieu of maintenance. It is the case of the Defendants that the residence has been provided to her on humanitarian grounds by way of a gratuitous licence for her life time in her capacity as their great- grandmother and the Rani of the Late Ruler of Jamkhandi, Sir Parshuram Bhau. The Plaintiffs claim exclusive possession in the entire property; on the other hand the defendants claim joint possession by certain overt acts. .(vii) The receipt of maintenance by the original 19 Plaintiff in a sum of Rs.1250 per month initially, which was later increased to Rs.1600/- per month, received by her during her life time - It is the case of the Plaintiffs that that amount having been settled upon her under the Will of the original Plaintiff’s Late husband and paid out of the State Funds, initially by the State of Jamkhandi and later by the Union of India, was not the maintenance paid to her in her capacity as his widow. It is the case of the Defendants that the amount of maintenance has been paid to her in her capacity as the Hindu widow under the Jamkhandi State Act I of 1937. That having been done, it results in disentitling her to claim residence. . The claim of the Plaintiffs will have to be examined in the backdrop of these admitted facts and the extent of divergence. THE CLAIM OF PARTITION AND THE ORIGINAL CLAIM FOR 1/4TH THE CLAIM OF PARTITION AND THE ORIGINAL CLAIM FOR 1/4TH THE CLAIM OF PARTITION AND THE ORIGINAL CLAIM FOR 1/4TH SHARE SHARE SHARE: 27. The original Plaintiff in the original Plaint claimed 1/4 right in the joint family property consisting of the Plaintiffs and the Defendants. She mentioned in Schedule-A to the Plaint 3 immovable properties mentioned above. She 20 annexed as Schedule-B her claim to movable properties which was then not known to her. She applied for leave to add other properties as and when they would be known to her. 28. The original Plaintiff sued for partition primarily upon a registered deed of partial partition having been executed by and between Defendants 1,2 and 3 (who were the only Defendants in the original suit) on 29th July, 1973. She sued within 12 years of being excluded from the HUF properties under the said Partition i.e. within the statutory period prescribed under Article 110 of the Limitation Act. The said partition deed Exhibit-512 shows Defendant No.1 to be the Karta of the Joint Hindu Undivided Family, Defendant No.2 as the coparcener of the said Joint Hindu Undivided Family and Defendant No.3 as a Member