1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.255 OF 1989 Ananda Krishna Tate ] since deceased by legal heirs ] ] 1A Shri Sanjay Anand Tate, age 41 yrs. ] ] 1B Shri Hemant Ananda Tate, 38 yrs. ] ] All R/o Kisan Nagar Kameri Road ] Islampur Tal.Walva, Dist.Sangli ] ] 1C Sou.Chhaya Arun Jankar ] age 39 years, R/o Ozarde ] Tal.Walwa, Dist.Sangli ]... Appellants. Versus 1. Draupadibai Krishna Tate ] Age 65 years. ] 2. Bhanudas Krishna Tate ] age 37 years ] 3. Vilas Krishna Tate ] age 27 years. ] 4 Subhash Krishna Tate ] age 35 years ] 5 Kamal Ganpati Tate ] age 30 years ] For self and as natural guardian of ] Respondent Nos. 6 and 7 herein ] 6 Mahadeo Ganpati Tate ] age 11 ] 7 Mavakka Ganpati Tate ] Age 9 ] 8 Alka Madhukar Bandgar ] age 44 years R/o C/o Madhukar ] Ganu Bandgar, Turner Senoteriam ] 2 Maratha Sangh, Near Ram Mandir ] Room No.50, 1/15, Parel Boiwada ] Mumbai – 400 012. ] 9 Yashwanti Ganpati Jadhav ] age 60 ] 10 Hindurao Ganpati Jadhav ] age 50 ] 11 Vasnat Ganpati Jadhav ] age 45 ] 12 Keshav Ganpati Jadhav ] age 40 ] 13 The Maharashtra State Land ] Development Co­operative ] Bank Limited, Bombay ] (Notice be served upon the ] Manager, at & Post Islampur ] District Sangli ] 14 Sitaram Sadashiv Pise ] age 67 ] 15 Ramchandra Rangrao Chavan ] age 37 ] 16 Narayan Babu Jadhav ] age 60 ] 17 Muktabai Maruti Tate ] age 40 ] 18 Rajaram Balaram Jadhav ] age 40 ] 19 Shankar Balaram Jadhav ] age 25 ] ] Nos.6 and 7 minors, by their ] natural guardian Respondent ] No.5 herein ] Nos.5 to 7 residing at ] Kharat Wadi, Post5 Bahe, ] Taluka Walva, Dist.Sangli ] No.4 residing at and post ] Kasegaon, Taluka Islampur, ] District Sangli. ] Nos.9 to 12 and Nos. 16 to 19 ] residing at and post ] 3 Vithalwadi, Taluka Walva ] ... Respondents. Dist. Sangli ](No.1­Org.Plaintiff Nos.1, 2, 3, 8, 14, 15 ]Nos.2 to 4 – Defts residing at and post Islampur ] 2 to 4; Nos.5 to 19­ District Sangli ] Defts. 6 to 20) Mrs. A R S Baxi for the Appellants. Mr. P K Hushing for Respondent No.1. CORAM : C.L.PANGARKAR, J. DATE : 2nd March 2010 JUDGMENT [ DELIVERED IN CHAMBER] 1. This second appeal is filed by the original defendant No.1 who suffers a decree for partition and separate possession as well as setting aside alienation. [The parties shall be hereinafter referred to as the Plaintiffs and Defendants]. Few facts giving rise to this appeal are as under :­ 2. Respondent No.1 – Plaintiff instituted a suit for partition and separate possession. It is her case that the suit property belongs to her husband. Her husband died in the year 1959 leaving behind him, his widow – the Plaintiff, Defendant Nos.1 to 5 as his sons, Defendant Nos.6 to 13 as the heirs of his another son by name Ganpati. After the death of Plaintiff’s husband Krishna, name of Defendant No.1, being the eldest son, came to be recorded as a manager of the joint family in 4 the revenue record. One of the sons of the Plaintiff and Krishna died in the year 1974 and Defendant Nos. 6 to 13 are his heirs. It is the contention of the Plaintiff that the Defendant Nos.2, 3, 4 and 5 have no avocation and they are addicted to vices, and therefore, they are not living in the joint family while Defendant No.2 has been living with the Plaintiff. It is the contention of the Plaintiff that the parties owned C.T.S. No.245. The Defendant Nos.1 to 6 have, however, sold their shares out of the said house to one Bhau Dattatraye Nerlekar. Rest of the portion in the said house is in occupation of the Plaintiff and Defendant No.2 and, no partition is sought for in respect of the said house since other sharers have already sold their shares. It is further contended that the suit land is an irrigated land and it was giving sufficient income to maintain the family. Yet the Defendant No.1 had executed a sale deed with a condition to repurchase in favour of the Defendant No.17. Further the Defendant No.1 has purchased shares of Defendant Nos.3, 4 and 5 and he had purchased those shares out of the income of joint family itself and, therefore, although those shares have been sold to the Defendant No.1, that property is too liable for partition. The Plaintiff contends that she is entitled to a share in the suit property and it should be divided and she should be put in separate possession thereof. 5 3. Except Defendant No.1 all other defendants have admitted the claim of the Plaintiff. 4. The Defendant No.1 however, opposes the claim of the Plaintiff and admits the relationship between the parties. He also admits that his father left behind him the suit property. He further admits that the family had executed a conditional mortgage deed in favour of the defendant No.17. The Defendant No.1 however disputes the contention of the Plaintiff that there was no necessity to sell and mortgage the suit property to Defendant No.17. It is his contention that the land was not giving sufficient income and in order to repay the loans of the banks etc., he has to mortgage the suit property with the Defendant No.17. Further it is his contention that he has purchased the shares of Defendant Nos.3, 4 and 5 from his own money and he is exclusive owner thereof. It is also his case that there was partition amongst brothers and each of the brother was supposed to cultivate his own share of the property. He, therefore, contends that the suit is not maintainable. 5. The learned Judge of the trial Court framed issues and found that the suit property was not sold for legal necessity. He also 6 found that the Defendant No.1 did not purchase the shares of Defendant Nos.3, 4 and 5 from his exclusive income. He, therefore, found that the Plaintiff i.e. the mother of the Defendant No.1 was entitled to partition and separate possession of the suit property. Ultimately he decreed the suit and held the Plaintiff to be entitled to 333/1024th share in the suit lands. 6. The Defendant No.1 preferred an appeal before the District Judge. The Additional District Judge, Sangli, who decided the appeal, concurred with the findings recorded by the learned Judge of the trial Court and dismissed the appeal. Feeling aggrieved thereby, the Defendant No.1 preferred this second appeal. 7. This second appeal came to be admitted by this Court on ground Nos. 1 and 3 as substantial questions of law which are as under :­ Ground No.1 :­ Was the Court below correct in holding th at the Respondent No.1 was having 333/1024th share in the suit property? It is submitted that in view of Sections 6 and 8 of Hindu Succession Act, the Respondent No.1 was at the most entitled to get 11/64th share. 7 Ground No.3 :­ The Court below has totally failed to consider the admitted position on record that all the sons of Krishna were staying separately and cultivating the lands separately. The appellant purchased the lands of other sons i.e. Respondent No.2 to 4 by registered sale­deeds. It is submitted that the appellant became the absolute owner of the same and the court below has erred in treating those properties as joint family properties and granting share to Respondent Nos.2 to 4. However, during the course of arguments it was felt that the appeal should also be admitted on the following substantial question of law in addition to the ones already formulated :­ “Whether a mother has a right to institute a suit for partition and separate possession and to set aside alienation made by the sons? 8. I have heard the learned counsel for the Appellants and the Respondents. 9. If the averments in the plaint are seen, it would be clear that the Plaintiff comes out with a case that the suit property is ancestral joint family property of the parties. The Appellant – 8 Defendant No.1, who is the only contesting defendant, however, contends that there was partition amongst all sharers orally and each of them was directed to cultivate his share. Although the defendant No.1 pleads that there was oral partition, no details, such as date of partition and description of separate share of each sharers, are to be found in the written statement. For want of this, it is clear that the defence is raised only for the purpose of raising the defence. If the contents of the sale deeds executed by the Defendant Nos. 4 and 5 (Exhibits 56 and 57) are seen, they would go to show that Defendant Nos.4 and 5 have sold their undivided shares in the suit property to the Defendant No.1. The recitals in the sale deeds of the year 1977 make it more clear that in fact there was no partition between the brothers at all. The Defendant No.1 himself pleads having purchased the shares of his three brothers i.e. Defendant Nos. 3 to 5. We have seen that the suit property was ancestral property which came into hands of the Plaintiff and Defendants. There cannot be two opinions on the proposition that a co­parcener has a right to alienate his share in the joint family property intervivos. If the suit property was a joint family property in the hands of the Defendant Nos. 1 to 5, each of the sons of the Defendant Nos.1 to 5 had a right by birth in the suit property. It was therefore for the sons of Defendant Nos.1 to 5, and deceased Ganpati 9 who had interest in the suit property by birth to challenge the alienation made by their father and uncles. A mother does not have a right independently to challenge the alienation of the joint family property since she does not have a right in it by birth. Even if the defendant No.1 may have sold certain property exceeding his share, it was for the sons of defendant No.1 as well Defendant Nos. 2 to 5 to challenge the sales since they had interest in the joint family property. They did not challenge. Neither a wife nor a mother has a right to file a suit for setting aside alienation since she does not have right by birth in the co­parcenery property at all. Right to her to have a share in the joint family property accrues to her only when the co­parceners decide to partition the joint family property otherwise she is bound to be joint with her sons. This suit at the instance of mother is, therefore, not maintainable for setting aside alienation. 10. This takes me to consider the third substantial question of law. A male member of the Hindu Joint Family is a copracener under the Hind Law. Although by recent amendment to the Hindu Succession Act by Government of Maharashtra a female is also to be treated as co­ parcener, We are required to take into the position of 1978, when suit was filed. In 1978, however only a male member of the joint family 10 was treated as a coparcener. Under Shastric Hindu Law a female did not have a right to claim partition of joint family property. I may quote here the commentary of Mullas Hindu Law in 20th Edition, Para 315 :­ “A mother cannot compel a partition so long as to sons remain united. However, if a partition takes place between the sons, she is entitled [except in Southern India (Madras state)] to a share euqal to that of a son in the coparcenary property. She is also entitled to a similar share on a partition between the sons and the purchaser of the interest of mone or more of them. Where unmarried son sued his two brothers for partition, but died during the pendency of the suit and the mother was brought in as the legal representative, she was held entitled only to his share and not a mother’s share” It is therefore clear that mother did not have a right under old Hindu Law to compel a partition. 11. Shri.Hushing, the learned counsel appearing for the Respondent No.1 contends that the suit cannot be held to be not maintainable for two reasons. First in a suit for partition every party is deemed to be Plaintiff and defendants 2 to 10 in this suit have also prayed to effect a partition and secondly a Hindu woman got such right 11 to seek partition under Section 3 of the Hindu Women’s Right to Property Act 1937. 12. There is no doubt that status of each of the defendants having a share in suit property is that of the plaintiff. The difficulty however is that the defendants are not enforcing their right of partition. It is only the mother who is enforcing it. She not only files a suit for partition but also for setting aside alienation too. The question therefore is whether their is any cause of action for the plaintiff who has instituted suit. I would say that there was none and could not be any cause of action in favour of the plaintiff at all. What defendants say is that if the court grants a decree, their shares may be carved out. If plaintiff’s suit fails, the defendants cannot get their shares carved out unless they lay a counter claim. 13. Let us consider the submission about a female’s right to claim partition under the Hindu Women’s Right to Property Act. Hindu women’s Right to Property Act came into force in 1937. Section 3 of the said Act redas as follows :­ “3(1) When a Hindu governed by the Dayabhag school of Hindu Law dies intestate his property, and when a Hindu governed by any other school of Hindu Law or by 12 customary law dies intestate leaving separate property that separate property shall, subject to the provisions of sub­ section(3), devolve upon his widow along with his lineal descendants, if any, in like manner as it devolves upon a son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) when a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub­section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession descends to a single heir or to any property to which the Indian Succession Act, 1925 applies.” Subsection (3) of Section 3 no doubt gave a right to the woman to seek partition. However, this Act has been repealed by Hindu Succession Act 1956. Krishna died in 1959. Therefore the plaintiff cannot take 13 advantage of Section 3 of the Hindu Women’s Right to Property Act. If the provisions of Hindu Succession Act 1956 are read, it would be clear that there is no provision similar to subsection (3) of Section 3 of the Hindu Women’s Right to Property Act. The legislature in its wisdom has not thought it fit to continue this right in a woman. It was contended that section 14 of Hindu Succession Act makes a woman full owner of the property and therefore it must be assumed that a woman has a right to seek partition. This argument has no force. What Section 14 did was to confer upon a woman to own absolutely a property in possession which she got against her right of maintenance or for pre­ existing right. Section 14 has no application. 14. Shri Hushing the learned counsel appearing for Respondent No.1 further contends that Section 6 of the Hindu Succession Act confers right to a woman to seek partition. He particularly invites my attention to the proviso to the Section. Section 6 too cannot have any application since Section 6 deals with the question as to how a property of member of co­parcenery, would go to heirs upon death when he leaves, no female heir and also when he leaves behind a female heir of class I. The section only speaks of succession and notional partition. 14 15. Shri Hushing had cited to me a decision reported in AIR 1978 SC 1239 in the case of Gurupad Khandappa Magdum v/s Hirabai Khandappa Magdum and ors. This decision, according to Shri Hushing, applies in all fours. He submits that the facts of reported case too are identical. I have gone through this decision. The question that fell for determination before their Lordships was as to what would be share of a widow upon interpretation of Section 6 of the Hindu Succession Act. Their Lordships found that a widow would not only get a share in the share of her husband along with her sons but she will also have to be allotted her own share in the co­parcenary property along with son upon death of husband i.e. she would get her own share equal to son and a share in her husband’s share. The question as to whether a female has a right to institute a suit for partition never fell for determination before their Lordships nor such points seems to be argued before their Lordships. In para 9 of the said judgment the Supreme Court observes thus :­ The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a 15 Hindu Mistakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demandpartition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and, his sons.” The important observation in the said judgment is that “The Plaintiff not being a co­parcener was not entitled to demand partition.” If these observations are considered, to my mind, the Plaintiff did not have a right to claim partition of the joint family property at all. I have not referred to the judgment of this Court in AIR 1975 Bombay 257 since 16 the very same judgment is referred to in AIR 1978 SC 1239. The suit itself was misconceived. As a result, the appeal will have to be allowed and the judgments and decree passed by the Courts below are set aside and the suit dismissed. No order as to costs. [C.L.PANGARKAR, J]