1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 142/2005 ( Hanuman Namdeo Ganvir & another vs. Savitra wd/o Govinda Kamble and 7 others) ------------------------------------------------------------------------------------------------ Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... Mr. R.V. Gaikwad, Adv. for appellants CORAM: Smt. VASANTI A. NAIK,J. DATED: 16th July, 2008. *** P.C.: Heard Shri Gaikwad, learned counsel for appellants. 2. Appellants are the original plaintiffs. The suit was filed by the plaintiffs against the respondents/defendants for possession of the suit property. It was the case of the plaintiffs that the property belonged to one Lahanu. Lahanu had purchased the plot from his own earnings. Though Lahanu had three brothers they were separately living in independent houses. After the death of Lahanu some time in 1930, according to the plaintiff, Baiji, his widow, became the owner of the suit property. Lahanu's daughter Yashodi was married to one Namdeo Ganvir. During her lifetime, Baiji has executed gift-deed of the property in favour of her daughter Yashodi. It is the case of the plaintiffs that after the death of Yashodi some time in the year 1941, the plaintiffs being the sons of Yashodi, 2 became the owners of the suit property. It is pleaded by the plaintiffs that the respondents were residing in the suit property as licensees. It was pleaded that the defendants do not have any interest in the suit property and since the defendants failed to vacate the suit premises in spite of issuance of notice, the suit for possession was filed. 3. The defendants denied the claim of the plaintiffs. The defendants further pleaded that their real paternal grandfather was the real brother of Lahanu and the brothers of Lahanu and Lahanu, were living jointly in Hindu joint family. Lahanu was the elder brother of their grandfather, by name, Jairam. It was pleaded that the plots were purchased in the name of Lahanu as Karta of the joint family and hence the property is not self-acquired property of Lahanu and is the joint family property. It was pleaded that after the death of Lahanu in 1930, Baiji resided with them in the joint family till her death in 1935. Yashodi also died in the year 1946. It was pleaded that the defendant was residing in the suit house since the time of his forefathers and was paying municipal taxes. Both houses were recorded in his name. It was further pleaded that the alleged gift-deed executed by Baiji in favour of Yashodi was void and Baiji has no right to execute the gift-deed in respect of joint family property. According to the defendant, the gift deed did not confer any title on the plaintiff'smother. The defendant also claimed title to the suit property by adverse possession. 4. Both the Courts on proper appreciation of material evidence on record, 3 recorded a finding that Baiji, the widow of Lahanu, had no right to make the gift of the suit property in favour of Yashodi. Though the trial Court held that there was no acceptance of the gift by Yashodi, the first Appellate Court held that there was valid acceptance of the gift by Yashodi; but, the gift itself was void as Baiji had no right whatsoever to make the gift of the property, of which she was a limited owner. Having recorded the aforesaid findings, both the Courts dismissed the the suit holding that the plaintiffs were not entitled to a decree for possession. Both the judgments are challenged in the instant Second Appeal. 5. It is submitted on behalf of the appellants by the learned counsel that both the Courts committed serious error in not holding that the Yashodi had inherited the property from Baiji after Baiji'sdeath. Learned counsel for the appellants, then, submitted that the gift-deed executed by Baiji in favour of Yashodi may be considered as a surrender-deed, by which Baiji had surrendered her limited right to the suit property in favour of Yashodi. Learned counsel for the appellants, then, relied on the judgments reported in AIR 1999 SC Page 1944 :(Bhagat Ram vs. Teja Singh) ; AIR 1991 Allahabad 291: (Manvendra Singh vs. Rameshwar Dayal & others) and paragraph 530 of Maine's Hindu Law. 6. I have considered the submissions made on behalf of appellants. I have also perused both the judgments in detail. It is the plaintiff's case that the plaintiff'smother became the owner of the suit property in pursuance of the gift- deed executed by Baiji in favour of Yashodi and since the appellants/plaintiffs were the sons of Yashodi, they became the owners of the suit property. It is also 4 not in dispute that the defendant is the grand son of the real brother of Lahanu, by name, Jairam. Both the Courts have rightly considered that after the death of Lahanu, Baiji had a limited interest in the suit property. It was further held by the Courts that Baiji was not empowered to make a gift of the suit property in favour of her daughter as she was merely a limited owner thereof. The Courts held that the Bombay School of Hindu Law did not apply to the case and instead Benaras School of Hindu Law applied to it, as held in the decision reported in AIR 1961 BOM page 169. The Courts further observed that the limited owner, like the widow, under the old Hindu Law had a limited power to dispose of the property. The submission made on behalf of the appellants that the gift-deed may be treated as a surrender-deed is totally ill-founded as it is not the case of the appellants / plaintiffs that they became the limited owner of the suit property through their mother Yashodi, as Baiji had transferred her limited right in the suit property in favour of Yashodi. The facts are otherwise. The plaintiffs have pleaded that they became the absolute owners of the suit property in pursuance of gift-deed executed by Baiji in favour of Yashodi as they are the only sons of Yashodi. The judgments reported in AIR 1999 SC 1944 and AIR 1991 All 291 (supra) cannot be made applicable to the facts of the case. It has been laid down in the decision of the Hon'bleSupreme Court that when a Hindu inherits the property from her mother on her death, the property would devolve on her sister, as per the provisions of Section 15 (2) of the Hindu Succession Act. Similarly in the other decision of the Allahabad High Court, it was held that when a gift was made by a widow who had acquired the property as widow's estate in favour of 5 her daughter'sson without joining her daughter to the gift there would be no surrender of property by widow in favour of donee and the donee would acquire the limited interest of the widow and on the death of the widow the property would revert back to the reversionary daughter. There is no doubt that Baiji became the limited owner of the property and was not entitled to make a valid gift in favour of Yashodi as she was the limited owner. It is not the case of the plaintiffs that their mother Yashodi also became limited owner of the suit property after the death of Lahanu. Even if it is assumed that she became the limited owner of the suit property, her ownership cannot be transformed into an absolute ownership as she expired much before coming into force of the Hindu Succession Act, 1956 and it is nobody's case that the limited ownership of the Yashodi , if any, had been transformed into absolute ownership. 7. Since no substantial question of law arises for consideration in this Second Appeal, the same is dismissed, with no order as to costs. JUDGE sahare