1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.419 OF 2006 WITH SECOND APPEAL NO.420 OF 2006 WITH SECOND APPEAL NO.421 OF 2006 ___ SECOND APPEAL NO. 419 OF 2006. 1) Dattatraya s/o Manoharrao Deshpande (deceased through his L.Rs. 1/A. Yogiraj s/o Dattatraya Deshpande Age: Yrs. occu. Service. r/o Deshpande Galli. Ambejogai, District Beed. 1/B. Sow.Anita w/o Nandkishor Kulkarni Age: Yrs., occu. Household, r/o Gangakhed, Tq. Gangakhed, District Parbhani. 2) Shivroop s/o Manoharrao Deshpande Age: 65 Yrs., occu. Teacher, 3) Yogiraj s/o Nagorao Deshpande, Age: 65 Yrs., occ. Teacher. 4) Vinayak s/o Nagorao Deshpande Age: 65 Yrs., occu. and r/o as above. 5) Digambar s/o Nagorao Deshpande Age: 60 Yrs., occu. and r/o as above. 6) Vimalkar s/o Nagorao Deshpande, Age: 41 Yrs., occu. Govt. 2 Service. 7) Mahesh Digambar Deshpande, Age: 35 Yrs., occu. Business. Appellants Nos. 2 to 7 r/o Deshpande Galli, Tq. Ambejogai, Dist. Beed. - APPELLANTS VERSUS 1) Shamrao s/o Balkrishna Seulukar Age: 54 Yrs., occu. Service, R/o Selukar Wada, Deshpande Galli, Ambajogai. 2) The Chief Officer, Municipal Council, Ambajogai, Tq. Ambajogai, District Beed. 3) Arun Balkrishna Selukar, Age:adult, occu.Service, r/o National Park Wadgaon (Bk.) Singad Road, Pune. District Pune. 4) Vishnu s/o Balkrishna Selukar Age: Yrs., occu. Service, R/o Galli No.1, Under Chjannal Karve Nagar, Pune, District Pune. - RESPONDENTS ***** SECOND APPEAL NO.420 OF 2006. 1) Dattatraya s/o Manoharrao Deshpande (deceased through his L.Rs. 1/A. Yogiraj s/o Dattatraya Deshpande Age: Yrs. occu. Service. 3 r/o Deshpande Galli. Ambejogai, District Beed. 1/B. Sow.Anita w/o Nandkishor Kulkarni Age: Yrs., occu. Household, r/o Gangakhed, Tq. Gangakhed, District Parbhani. = APPELLANTS VERSUS 1) Smt. Radhabai w/o Govindrao Deshpande, (deceased ) 2) Shamrao s/o Balkrishna Seulukar Age: Yrs., occu. Service., r/o Selukar Wada, Deshpande Galli, Ambajogai, Dist.Beed. = RESPONDENTS ____ SECOND APPEAL NO.421 OF 2006. 1) Dattatraya s/o Manoharrao Deshpande (deceased through his L.Rs. 1/A. Yogiraj s/o Dattatraya Deshpande Age: Yrs. occu. Service. r/o Deshpande Galli. Ambejogai, District Beed. 1/B. Sow.Anita w/o Nandkishor Kulkarni Age: Yrs., occu. Household, r/o Gangakhed, Tq. Gangakhed, District Parbhani. 2) Shivroop s/o Manoharrao Deshpande Age: 65 Yrs., occu. Teacher, 3) Yogiraj s/o Nagorao Deshpande, Age: 65 Yrs., occ. Teacher. 4) Vinayak s/o Nagorao Deshpande Age: 65 Yrs., occu. and 4 r/o as above. 5) Digambar s/o Nagorao Deshpande Age: 60 Yrs., occu. and r/o as above. 6) Vimalkar s/o Nagorao Deshpande, Age: 41 Yrs., occu. Govt. Service. Appellants Nos. 1 to 6 r/o Deshpande Galli, Tq. Ambejogai, Dist. Beed. 7) Kamalbai Alias Tai w/o Nagorao Deshpande, Deceased through L.Rs. 7-E) Mrs. Mainawati Alias Rajni w/o Shripad Narekar Age: 41 Yrs., occu. Household, r/o C/o Shripad Dattopant Narekar, Infront of Taklikar Advocate (S.Chikhalwadi) Nanded. 7-F) Mrs. Minakshi Alias Bai w/o Anil Shevadikar, Age: 38 Yrs., occu. Household, r/o Dainik Shramik Ekajut, Behind Ramkrishna, Tq.Kaij, District Beed. 7G) Mrs. Nalini @ Nani w/o Anil Kulkarni, Age: 36 Yrs., occu. Household, R/o Anil Rajarampant Kulkarni, (DID Eng.), Kirloskar company Sholapur. 7H) Mrs. Wanita w/o Shamrao Latkar Age: 35 Yrs., occu. Household, r/o Suresh Niwas, Gangappa Kochanppa Kunchi 5 Kotwe, 33/131, New Panchapeth, Sholapur. - APPELLANTS VERSUS 1) Radhabai w/o Govindrao Deshpande (deceased ) L.Rs. 2) Sow.Rajnibai w/o Shamrao Selukar Age: 52 Yrs., occu. Agril. & Household, r/o Deshpande Galli, Ambajogai, Tq. Ambajogai, District Beed. 3) Shamrao s/o Balkrishna Selukar Age:54Yrs., occu. Agril. & Service., r/o as above. = RESPONDENTS ****** Mr.AM Gaikwad, Advocate for Appellants; Mr.Shrikant Kulkarni, Advocate for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 31st March, 2010. JUDGMENT : 1) Heard learned Counsel for the parties extensively. 2) These three appeals are heard together since they revolve to the common facts and the 6 property. 3) On 20th March, 2007, this Court (Coram:V.R.Kingaonkar,J.), after hearing the counsel, formulated three substantial questions of law between the parties and admitted the appeal. 4) One of the appellant – Mahesh s/o Digamber Deshpande, in Second Appeal No.419/2006 expired on 2nd March, 2010. Since it was after fixing the matter for orders and his legal representatives are already on record, hence Counsel filed a purshis on 22.3.2010 that legal representatives of deceased are already on record, he does not desire to make any application. 5) The properties – agricultural and house, were owned by Govindrao Deshpande. He had three sons, viz. Dattatraya, Bhujangrao and Digambar. Digambar had two sons, namely, Govindrao and 7 Ramrao. The litigation is taken over from the branch of Dattatraya, by great-grand son of said Dattatraya. The other members of branch of Bhujangrao are represented through Nagorao. The dispute between the parties mostly centers, as to whether the three sons of Govindrao, i.e. Dattatraya, Bhujangrao and Digambar, separate amongst themselves by metes and bounds, as a result of internal partition effected prior to 1958? 6) The admitted factual position is, Govindrao,(husband of Radhabai) expired somewhere in 1930 and Ramrao – unmarried expired in 1963. After death of Ramrao, the agricultural properties held by him were mutated in the name of Radhabai and she enjoyed separate possession of such properties. 7) Four different suits were filed by the parties. Dattatraya Deshpande filed RCS No. 41/2000 (old No.74/1993) (Dattatraya s/o 8 Manoharrao Deshpande Vs. Chief Officer, Municipal Council, Ambajogai and 3 Ors.) with following Claim/prayers : “ CLAIM – Suit for declaration to the effect that, the certification sanctioned by Defendant no.1 in File Nos.360/18 1991 dated 8.2.1993 with Outward No.549 and 361/18 1991 dated 1.2.1993, with ward No.433 in respect of Municipal House No. New 3.220 and 3-144, pertaining to the entries in column no.7 of P.T.R. as illegal in the name of defendant no.2 to 4 as illegal, null and void with permanent injunction.” “ Prayers : I) That, the acts and omission committed by deft.no.1 in file no. 360/18 – 91 and 361/18 – 91 in respect of the suit property on the application of deft.no.2 of 27/1/93 coupled with Exh.25 from RCS No.8/90 followed by subsequent illegalities committed by deft.no.1 for the benefit of deft.no.2 to 4 be declared as illegal so also the entires made in column no.7 known as column as Bhogawata encircling the name of Radhabai and substituting the name of deft.no.2 to 4 be also declared illegal and cancelled with interim relief to stay the execution and implementation of said illegal entries till final disposal of the suit and after adjudication finding be declared as illegal, null and void against the interest of the defendants. 9 8) Shamrao Balkrishna Selukar filed RCS No. 42/2000(old No.88/1993) (Shamrao s/o Balkrishna Selukar Vs. Dattatraya s/o Manoharrao Deshpande and 6 Ors.), asserting his rights as a legatee of deceased Radhabai, based on Will-deed dated 29.12.1989, with following claim/prayers in respect of the same house property. “ CLAIM – For declaration of ownership and permanent injunction: “ PRAYERS - 1) That, the plaintiff be declared to be the lawful holder and occupant of the suit house; 2) That, the defendants be permanently restrained from causing any interference in the plaintiff’s possession over the suit house in any manner otherwise than by due process of law. They may also be restrained from causing any damage to the suit house by the grant of perpetual injunction; 9) RCS No.467/1989 (Radhabai w/o Govindrao Deshpande, Died L.Rs. i) Sau Rajanibai w/o Shamrao Selukar& Anr. Vs. Dattatraya s/o Manoharrao Deshpande and 6 Ors.) was filed by 10 Radhabai for partition and separate possession of her 1/3rd share in respect of few agricultural lands situate at village Dighulamba and open plot No.3/120, situate at Deshpande Galli, Ambejogai. The claim/prayers precisely are as under : “CLAIM – For partition and Separate possession of 1/3rd share in joint property consisting of lands S. Nos. 65/1, 65/2, 66, 67 at village Dighulamba, Tq. Kaij, and open `site’ bearing Municipal No.3-220 situated at Deshpande Galli at Ambajogai.” “ PRAYERS - 1) That, the plaintiff be declared entitled to 1/3rd share in the suit lands and the suit site. 2) That, regular partition and division of share be effected through the competent authority on measurement and the plaintiff be given separate possession of 1/3rd equitable share of the suit lands and the suit site by dispossessing the defendants. 3) That, if it is found that equitable division of any piece of property by metes and bounds is not feasible, the plaintiff be granted appropriate compensation in lieu of her share in that piece of property. 11 10) Regular Civil Suit No.283/1980 (Dattatraya s/o Madhavrao Deshpande Vs. Smt. Radhabai w/o Govindrao Deshpande and Anr.) was filed by Dattatraya for possession concerning Survey No.79 and also declaration of ownership, claiming to be exclusive owner of the property. The claim/Prayer are under : “ CLAIM - Declaration with possession. “ PRAYERS - a) The suit of the plaintiff may kindly be decreed against the defendants jointly and severally as follows - b) That, the acts and omissions of the defendant no.1 promoting to confer any kind of interest in the ancestral suit property, i.e. suit land Sy.No. 79 admeasuring 31 acres 25 gunthas assessed at Rs.9-59 paise situated at village Kodri of the plaintiff be declared as illegal, void and inoperative against legal successive interest of the plaintiff.” 11) The pedigree of the parties in the light of above details is reproduced as herein below - 12 Govindrao s/o Manoharpant Deshpande | | | Dattatraya Bhujangrao Digambar | | | Devrao Nagorao -------------------------------- | | | | | | | Govindrao Ramrao Godavaribai (Died in 1930) (Died in 1963) Manoharrao ----------------------------------- | | | | | | | ------------ ---------------------------- | Vinayak Digambar Yograj Vimlakar | | ----------------------- Radhabai Bal- Hari- Sadashiv | | (Def.No.1) krushnrao bhau Dattatraya Shivrup (Died on | Plaintiff 06.09.91 | | | ------------------------ | | | Shamrao Arun Vishnu (Def.No.2) | Rajnibai (Wife of Def.No.2) (The will deed dtd. 29.12.89 was executed by Radhabai in favour of above persons) 12) The concurrent findings recorded against the appellant are challenged in the Second Appeal, on following substantial questions of law. “(i) Whether in the facts and circumstances of the present case, it is proved that deceased Digambar and his two brothers, namely, 13 Dattatraya and Bhujangrao the sons of Govindrao had separated by metes and bounds on account of internal family partition.? If yes, what was the separate share allotted to deceased Digambar.? (ii) Whether in the facts and circumstances of the present case, deceased Radhabai was competent to bequeath the house properties situated at Ambejogai, in which she could not have claimed share or right except that of right to residence.? (iii) Whether in the facts and circumstances of the present case, deceased Radhabai was competent to execute the will deed in respect of undivided shares for which she had filed the suit (R.C.S.No. 467/1989) inasmuch as she was not claiming any rights by survivorship whereas, the sons of Dattatraya and Bhujangrao were the only male surviving members who could come within ambit of Section 6 of the Hindu Succession Act.? ” 13) Govindrao, pre-deceased his son Digambarrao. The record illustrate, the parties had enjoyed the properties separately including separate residence. Exhibits- 131 to 145 concerning, the revenue record shows agricultural properties were indeed enjoyed separate. The agricultural properties at Digholamba, there was 14 no partition, however, 1/3rd share of each branch was shown in revenue records. 14) The mutation entry for share of Ramrao is at Exhibit-120, being mutation entry no.223. This was not objected by any of the appellants. Deceased Radhabai even during her life time paid separate land revenue for the agricultural properties she held. On 24.7.1968, there was mutation (Exhibit-121) concerning land Survey No. 79 of Kodri in the name of Radhabai. The house property, being House No.3/108 was also mutated in the name of Radhabai. The revenue record of Survey No.80 of village Kodri showed mutation in the name of Manoharrao and Nagorao, representing the branches of Dattatraya and Bhujangrao. Land Survey No.80 from share of Manoharrao was sold to Nagu Kadam on 18.8.1958. While the mutation entry for Survey No.84 of village Kodri recorded in the name of Manoharrao from branch of Dattatraya. Survey No.83 was in the name of Nagorao (branch of Bhujangrao). Evidence on behalf of Dattatraya 15 in RCS No.74/1993 (New No.41/2000)suggestion rendered, accepts that partition has taken place. 15) The severance of the status, as even provenly reflected by the conduct of the parties flowing from a Kararnama (Agreement), accepting the parties by different branch (Exhibit-118). In tenancy proceedings no.89/TEN/3, Yogiraj from the branch of Bhujangrao, Nagorao, confirmed about the partition and separate enjoyment by Radhabai. In the Written statement filed on behalf of Dattatraya and Shivroop (members of 1st branch, i.e. Dattatraya s/o Govindrao Deshpande) to Tenancy application, i.e. 3/1989 filed by Yogiraj, it is 0-5-4 share of each branch in lands at Digholamba is admitted. In RCS No. 467/1989, while dealing with the pleadings, the appellants accepted having partition between the parties. At Exhibit-39 in RCS No.74/1993, a map was produced by Dattatraya, showing separate share of each branch concerning the house property. 16 On this background, the contentions of the appellants need to be evaluated. 16) Mr.Gaikwad submits, that in any event Radhabai, being a widow of 1920, had no rights in the coparcenary property, as The Hindu Women’s Rights to properties Act, 1937 was made applicable in the region of Hyderabad in the year 1954; secondly, the effect of Section 6 of the Hindu Succession Act indicates that since Ramrao being a Hindu male died after commencement of the Act, without leaving behind any female relative, specified in Class-I of the Schedule, his undivided interest will devolve by survivorship upon surviving coparceners, i.e. the appellants (original defendants). The second contention advanced by Mr. Gaikwad is, in RCS No.283/1990, survived coparcener, i.e. Dattatraya Deshpande claimed rights in respect of Survey No.79, situate at village Kodri left over by Ramrao; and in the Written Statement by Radhabai, she indeed stated that there was earlier partition and she 17 asserted her rights, based on Section 14(1) of the Hindu Succession Act. According to him, except the vague statements regarding earlier partition, there is no pleading as to when the properties were partitioned; she did not refer to the agreement dated 16.5.1958 concerning the parties. Her case was revolving to Section 14 of the Hindu Succession Act. According to him, Radhabai could not be a limited owner of the suit property. She could not get absolute/full ownership as it was not in conformity with some pre-existing right to hold the property. The Counsel relied upon the following judgments. (i) Mangal Singh and Ors. Vs. Smt. Rattno (dead) by her legal representatives and another – AIR 1967 1786. In this matter, the Apex Court, in paragraph 7 has held as under : “(7) It is significant that the Legislature begins s. 14(1) with the words "any property possessed by a female Hindu" and not "any property in possession of a female Hindu". If the expression used had been "in possession of" instead of "possessed by", the proper interpretation would probably have been to hold that, in 18 order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession. The constructive possession may be through a lessee. mortgagee, licensee, etc. The use of the expression "possession of" in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession. The expression "possessed by" is quite frequently used in testamentary documents, where the method of expression `the property’, which is to pass to the legatee, often adopted is to say that "all property I dipossessed (Sic) of shall pass to...........” In such documents, Wills, etc., where this language is used, it is clear that whatever rights the testator had in the property would pass to the legatee, even though, at the time when the Will is executed or when the will becomes effective, the testator might not be in actual, physical or constructive possession of it. The legatee will, in such a case, succeed to the right to recover possession of that property in the same manner in which the testator could have done. Stroud in his Judicial Dictionary of Words and Phrases, Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words "possess" and "Possessed". When dealing with the meaning of the word 19 "possession", Stroud defines " possession" as being in two ways, either actual possession or possession in law. He goes on to say that "actual possession is when a man enters in deed into lands or tenements to him descended, or otherwise. Possession in law is when lands or tenements are descended to a man, and he has not as yet really, actually, and in deed, entered into them." In Wharton's Law Lexicon, 14th Edn.; at p. 777, the word "possession" is defined as being equivalent to 'the state of owning or having a thing in one's own hands or power." Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own bands, and the third is having a thing in one's own power. In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power. Then, there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression; "the state of owning". In fact, elaborating further the meaning of the word "possession', Wharton goes on to say that "it is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abater, intruder, or disseisor, who died 20 seised; in law, when lands, etc., have descended to a man, and he has not actuary entered into them, or naked, that is, mere possession, without colour of right." It appears to us that the expression used in s. 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of s. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.” (ii) Eramma Vs. Veerupana and Ors. - AIR 1966 SC 1879. In para nos. 4, 5 and 7, the Apex Court has observed thus : “(4) There is nothing in the language of this section to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. Reference may be made, in this connection, to s. 6 of the Act which states : "6. When a male Hindu dies after 21 the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:” Provided that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. (5) It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of s. 8 must be construed in the context of s. 6 of the Act. We accordingly hold that the provisions of s. 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, s. 8 of the Act will have no application. (7) It is true that the appellant was in possession of Eran Gowdas's properties but that fact alone is not sufficient to attract the operation of s. 14. The property possessed by a female Hindu, as 22 contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S. 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-s.(1) of s. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, s. 14(1) of the Act contemplates that a Hindu female( who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called limited estate or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to sub-s.(1) of s. 14 defines the word 'property' as including "both movable and immovable property acquired by a female Hindu by inheritance or devise........... Sub-section (2) of s. 14 also refers to acquisition of 23 property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in sub-section(2) of s. 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of s. 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the 'date of the commencement of the Act when she is only a trespasser without any right to property.” Based on these judgments, he reiterate that Radhabai had no right, conferred by any statute in 1930 on death of her husband, even if she possessed the property, it would not tantamount to her holding the same absolutely. 17) The Counsel for the respondents 24 contended that the concurrent findings of the Courts are based on