(1) SA. 821.2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 821 OF 2004 Anant Ramchandra Dhage died through LRs. 1A. Baburao Anand Dhage, Age : 72, Occu.: Agri., R/o Rahuri, Dist. Ahmednagar 1B. Hirabai Anant Gunjal deceased through LRs. 1B-a. Pandurang Anantrao Gunjal, Age: Major, Occu.: Nil 1B-b. Shivaji Anantrao Gunjal Age : Major, Occu.: Agri., 1B-c. Sambhaji Anantrao Gunjal, Age : Major, Occu.: Agri., 1B-d. Sau. Nanda Housabapu Ghattar, Age : Major, Occu.: Agri., 1B-a to 1B-d, R/o Siddeshwarwadi, Tq. Parner, Dist. Ahmednagar .. Appellants (Orig. Plaintiffs) VERSUS Gopala Tukaram Karale, died through his LRs. 1. Jagannath Gopala Karale, Age : Major, Occu.: Agri., 1/1. Laxman Jagannath Karale, Age : 32 years, Occu.: Agri., (2) SA. 821.2004 1/2. Bhagwat S/o Jagannath Karale, Age : 50 years, Occu.: Agri., 1/3. Dnyandeo S/o Jagannath Karale, Age : 40 years, Occu.: Agri., 1/4. Gopabai s/o Jagannath Karale, Age : 80 years, Occu.: Agri., All No.1/1 to 1/4 r/o Rahuri Factory, Near Shetewadi, Tq. Rahuri, Dist. Ahmednagar 1/5. Rakhmabai w/o Vithal Borkar, Age : 45 years, Occu.: Household, R/o Devlai Pravara, Tq. Rahuri, Dist. Ahmednagar 1/6. Vithabai w/o Shivaji Jaware, Age : 42 years, Occu.: Household, 1/7. Narmada w/o Prabhakar Dhus, Age : 38 years, Occu.: Household, R/o Devlai Pravara, Tq. Rahuri, Dist. Ahmednagar 1/8. Bhimabai w/o Gowardharn Yawale, Age : 35 years, Occu.: Household, R/o Near Rahuri Factory, Tq. Rahuri, Dist. Ahmednagar 1B. Laxman Jagannath Karale, Age : Major, Occu.: Agri., R/o Devlai Pravara, Tq. Rahuri, Dist. Ahmednagar 2. Prabhabai Jagannath Musmade, now deceased .. Respondents (3) SA. 821.2004 AND CIVIL APPLICATION NO. 4865 OF 2004 IN SECOND APPEAL NO. 821 OF 2004 Anant Ramchandra Dhage died through LRs. and others .. Applicants VERSUS Gopala Tukaram Karale died through Lrs. and others .. Respondents Mrs. Madhaveshwari D. Thube-Mhase, Advocate for the appellants/applicants Mr. R.N. Dhorde, Advocate for respondent nos. 1/1 to 1/8 and 1- B. S.A. stands abated against respondent no.2 as per Courts order dated 1.10.2007. CORAM : A.V. NIRGUDE, J. DATE OF RESERVING THE JUDGMENT : 12TH OCTOBER, 2009 DATE OF PRONOUNCING THE JUDGMENT : 10TH MARCH, 2010 JUDGMENT 1] This second appeal challenges the concurrent findings of the Courts below while dismissing the suit of the original appellant-plaintiff. 2] The facts leading to the litigation can be narrated in short as under:- (4) SA. 821.2004 . Land gat no. 361/1 and 361/2 admeasuring 1 H 34 R each, situated at Devlali Pravara Tq. Rahuri, Dist. Ahmednagar are the suit lands. One Rabhaji Vithoba Dhage (hereinafter be referred to as "Rabhaji" for short) was the owner of the suit lands. The original appellant Anant, was cousin of Rabhaji. Rabhaji's wife was one Laxmibai. It is common ground that Rabhaji executed a registered will on 12.6.1947. He bequeathed his movable and immovable property including the suit lands to his wife Laxmibai and to his cousin original appellant-Anant. It is the case of the appellants that Rabhaji bequeathed the suit land to his wife Laxmibai only for her lifetime, and after her death bequeathed the suit land to the original appellant-Anant. Rabhaji died sometime in 1957-1958. It is the case of the appellants that Laxmibai was an illiterate and naive person. She was residing in a hut erected in the suit land. She died at the age of 85 when she was very old. Before her death she was suffering from paralysis and was bed ridden for almost 20 years. Due to old age, she was unable to see and hear. The original respondent no.1 Gopala was her brother. He influenced her and got from her 99 years lease of the suit land in 1967. This lease deed was executed due to coercion and undue influence. In 1977 the original respondent no.1 Gopala filed an application before Tenancy Court under section 43(A) the Bombay Tenancy and Agricultural Lands Act, 1948 (herinafter be referred to as "the B.T.A.L. Act" for short) against Laxmibai and got an order passed in his favour. The purported consent of Laxmibai for such passing of such order was not a genuine document. Laxmibai did not sign or marked her thumb impression on such consent statement. (5) SA. 821.2004 . It is the case of the appellant that both the lease deed of 99 years executed in 1967 as well as the order passed by the tenancy Court under section 43(A) of the B.T.A.L. Act are not binding on them and that the original respondent could not claim ownership or right on the basis of such documents on the suit lands. On 14.12.1980 Laxmibai died. In 1981, original plaintiff Anant filed this suit seeking following reliefs:- (i) The possession of the suit lands be delivered to the appellant. (ii) In case the original respondent no.1 is held to be tenant of the suit lands, the appellant should be delivered symbolic possession of the suit lands as the land holder. (iii) Mesne profits etc. . The respondents filed written statement and took up a stand that Laxmibai was the absolute owner of the suit lands and on her own in 1967, she executed 99 years registered lease deed in favour of the original respondent Gopala and that the land was in his possession of as tenant. They stated that Rabhaji on 18.1.1955 had executed a registered "lease deed" of 18 years in favour of the original respondent Gopala. They further stated that in view of this transaction, the original respondent Gopala was "deemed purchaser" of the suit land in view of the provisions of section 32(G) of the B.T.A.L. Act, 1948. They even stated that in the proceedings under section 43(A) of the B.T.A.L. Act, the tenancy Court fixed the price of the land, which the original respondent paid to Laxmibai and became the owner. (6) SA. 821.2004 . The respondents also took up a stand that the Civil Court had no jurisdiction to decide, as to whether the lease deed was legal or otherwise and that whether the decision of the tenancy Court under section 43(A) of the B.T.A.L. Act was legal. They denied having practised fraud, undue influence etc. on Laxmibai when she executed the documents in their favour. In view of these rival contentions, the learned Judge of the trial Court framed certain issues, allowed the parties to lead evidence and came to a conclusion that the appellants could not prove fraud, undue influence etc. on the deceased Laxmibai. The original respondent Gopala had purchased the suit land under the tenancy Act and become owner of the land. . The appellants challenged this judgment and decree passed by the trial Court before the District Judge, Ahmednagar. The 2nd Additional District Judge, Ahmednagar, heard the appeal and dismissed it. The learned Judge of the first appellate Court held that the appellants could not prove that the original respondent Anant practised fraud, undue influence on deceased Laxmibai while getting the lease deed as well as the order under section 43(A) of the tenancy Act. 3] Upon hearing the submissions of both the counsel appearing for the parties, following substantial questions of law arose for my consideration:- (i) Whether Laxmibai inherited the suit land only for her life? (7) SA. 821.2004 (ii) Whether Laxmibai became the absolute owner of the suit land due to the provisions of section 14(1) of the Hindu Succession Act? (iii) What is the legal effect of mutation of 1957? (iv) Whether the original respondent Gopala used undue influence and fraudulently got the lease deeds of 1966 and 1970 from Laxmibai? (v) Whether the original respondent Gopala used undue influence and fraud to get the order from the tenancy Court under section 43(A) of the Act? .(vi) If the answers to point nos.(iv) and (v) are in the negative, does this Court have jurisdiction to examine the legality of the lease deeds of 1966 and 1970 and the orders of the tenancy Court under section 43(A) of the B.T.A.L. Act? (vii) Was Gopala the original respondent a deemed purchaser of the suit land under section 32(G) of the B.T.A.L. Act? If yes, what is the effect of section 32(F) of the B.T.A.L. Act? . Point nos. (i) and (ii) can be discussed together as they are inter-linked. With the help of the learned Advocates appearing for the parties, I went through the will of Rabhaji. This will is in Marathi and it being my mother tongue, I could minutely examine the intention of the testator. Rabhaji in his will initially described his movable and immovable property. Then he stated that during his lifetime, he would enjoy fruits of the property but he said that after his death, his wife Laxmibai would become full owner of his property. He further contemplated that upon her death if any property remains, the same would be devolve on his counsin Anant. He also (8) SA. 821.2004 considered possibility of Laxmibai dying before him. He said in that case his property, would devolve upon his brother. 4] The learned Advocate appearing for the appellants contended that the will clearly shows that the testator did not intend to bequeath his property absolutely to his wife. But he created 'interest for life' in favour of his wife. She pointed out further that the intention of the testator seems to be that his property should not go beyond his own family and should ultimately go to the original appellant Anant. But I do not agree with this submission. The testator clearly indicated that after his death, if Laxmibai is alive, the entire property would go to her. He also considered the probability that Laxmibai would use the property as per her wish. He expressed no reservation and imposed no restriction on Laxmibai for further transfer etc. of his property including the suit property. He thought, that in case at the time of death of Laxmibai, any of his property remains with Laxmibai, the same should go to his cousin Anant. This mode of devolution was beyond the control of the Testetor. He could not controlled Laxmibai's wishes to leave some of the property for Ananta after her death. He did not realise that there was possibility that during her lifetime, Laxmibai would dispose of all his property and would not leave anything for Anant to inherit. 5] Assuming that Laxmibai, was given interest in the suit property only for her lifetime, what would be the effect of section 14 of the Hindu Succession Act, 1956 on her such rights? (9) SA. 821.2004 . 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 prescribe a restricted estate in such property. . The law on this subject is extensively discussed by the Supreme Court firstly in the case of V. Tulasamma v. Sesha Reddy (dead) by LRS. reported in AIR 1977 S.C. 1944. The Supreme Court culled out the following principles on this subject namely:- "(1) that the provisions of section 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times; (2) it is manifestly clear that sub-section [2] of section 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in (Badri Prasad v. Smt. Kanso Devi) 2, (1969) 2 S.C.C. 586: A.I.R. 1970 S.C. 1963) (3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the (10) SA. 821.2004 spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession; (4) that sub-section (2) of section 14 is merely a proviso to sub-section (1) of section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision." 6] The learned Advocate appearing for the appellant placed reliance on the judgment of the Supreme Court in the case of Sharad Subramanyan V. Soumi Mazumdar and others reported in 2006(6) Bom. C.R. 342. She pointed out that similar to reported case, there is no material on record from which one could conclude that the disposition of life estate in favour of Laxmibai was in view of her right of maintenance and so, section 14(1) of the Hindu Succession Act will not apply to the facts of this case. She suggested that sub section 2 of section 14 of the Hindu Succession Act would apply. . As against this, the learned Advocate appearing for the respondents placed reliance on another Supreme Court judgment in the case of Raghubar Singh V. Gulab Singh and others reported in 1999(1) Bombay Cases Reporter page 119. He contended that the will shows the clear intention of the testator that if he dies before his wife Laxmibai, she would survive utilising the fruits of the properties he would leave for her. He asserted that the will also indicates that Laxmibai had no independent source of income and she would depend entirely on the properties of her husband, after his death. He therefore contended that the explanation to sub section (1) of section 14 of the Hindu Succession Act would apply to the facts of the case and one can say that the suit property was left for (11) SA. 821.2004 Laxmibai by her husband in lieu of maintenance. 7] I think, even though it is assumed the will created only lifetime interest in favour of Laxmibai, the interpretation of the will would suggest that the property was given in full control of Laxmibai who did not have any source of independent income and she was expected to ulitlise the same for her livelihood and maintenance. I am not inclined to accept the contention of the learned Advocate appearing for the appellants that there is no material on record from which one could conclude that disposition of life estate in favour of Laxmibai was in lieu of her right of maintenance. 8] Point No.(iii): what is the legal effect of mutation of 1957 during the lifetime of Rabhaji? In November, 1957 on his request the Revenue Officers recorded Laxmibai's name as the owner of the suit property. This in itself would not create independent right in favour of Laxmibai. This act on the part of Rabhaji would further strengthen my view that he intended to bequeath all his property to his wife after his death. 9] Point nos. (iv) and (v): These factual aspects of the matter were discussed by the Courts below and they held that the appellants could not prove that Laxmibai was under undue influence of her brother Gopala. I am not inclined to disturb such finding, being concurrent ones. The learned Advocate appearing for the appellants tried to bring to my notice rather unusual incidents, that took place in this case and asserted (12) SA. 821.2004 that these events would not have occurred in normal circumstances, but they occurred only because Laxmibai was under influence of her brother Gopala. She pointed out that if Gopala had got the suit land from Rabhaji on lease basis, there was no reason for him to get fresh lease deeds executed from Laxmibai in the year 1966 or in the year 1970. I am afraid, these factual aspects of the case are elaborately discussed by the Courts below, and as said above, the findings of facts cannot be disturbed at this stage. 10] Point No. vii : Was Gopala, the original respondent a deemed purchaser of the suit land under section 32(G) of the B.T.A.L. Act and what was the effect of the proceedings of Section 43-A of the B.T.A.L. Act ? Section 32 lays down a rule that on the tillers day i.e. on 01.04.1957, every tenant would be deemed to be the purchaser of the land in his possession as tenant from his landlord free from encumbrances. The provision further provides the procedure as to how a tenant would get the title through issuance of purchase certificate. It is all along the case of original respondent Gopala that he became deemed purchaser of the suit land on the tillers day. The learned Advocate appearing for the appellant questioned this, saying that the original respondent Gopala never produced on record the purchase certificate. She then asserted that the tenancy proceedings initiated by the original respondent Gopala under Section 43-A of the Act could not have been decided in favour of the original respondent Gopala. The question is, the civil court can decide the following issues? (13) SA. 821.2004 Whether the original respondent Gopala became a deemed purchaser of the suit land? Whether the order passed under Section 43-A of the B.T.A.L. Act in respect of the suit land, in his favour was lawful? The learned Advocate appearing for the appellant asserted that it can and it should. She in order to support her point of view placed reliance on the Judgment of this Court in the case of Madhav Kesu Khuspe V. Sundrabai Mugutrao Phadatare Since Deceased By Heirs Krishna Dagdu Khuspe and and others (BCI 1978 (O) 37). Having gone through the Judgment, I realized that the ratio of this Judgment would have no application to the facts of this case. In the reported case, the appellant, as the plaintiff, contended that the inquiry under Section 32 (G) of the Act and the adverse decision made pursuant to such inquiry, were illegal and can be challenged in the Civil Court. This contention was upheld by this Court. The basic difference in the facts of these two cases is that the appellant had no locus to oppose the proceedings that were initiated by the original respondent Gopala against Laxmibai. He was not and could not be a party to such proceeding. So, the decisions rendered by the Tenancy Court in the proceedings between the original respondent Gopala and Laxmibai are unassailable by the appellant in this proceeding. The appeal should therefore fail. Appeal stands dismissed. Consequently, Civil Application no. 4865 of 2004, seeking injunction also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp/