Case: Bai Nani and Others Vs. Manilal Lallubhai and Others

equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based on succession.5. The contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to the claim made in the plaint. The averment in the plaint is that on 24th January, 1956 Bai Kashi the widow of Nathubhai died and Nanabhai continued as the member of the joint Hindu family.6. There is no alternate claim that in the event of the partition being negatived the plaintiff would be entitled to 1/2 share of Bai Kashi by succession. The 3rd issue that was raised was whether on Bai Kashis death the appellants became entitled to 1/2 share in the whole suit-house. The trial court on that issue found that Bai Kashi became entitled to 1/2 share of her husband in the suit-house under the Hindu Womens Rights to Property Act, 1937. As her interest was only a limited interest known as Hindu Womens Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the Hindu Succession Act, 1956. On this basis the trial court was of the view that on the death of Bai Kashi her share would g o to the reversioners. On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full brothers inherit along with sons of full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the plaintiff for 1/2 share should be decreed though there is no specific claim on the plea of separation and heirship. The defendant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that the Kashi had only a widows estate when she died and that the trial court failed to appreciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial on the basis of the succession. The High Court has not dealt with this issue satisfactorily. The High Court after referring to the pleadings observed that the plaintiffs claimed 1/2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before t he trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashis death and therefore the plaintiff would be entitled to 1/3 share. After making these observations the High Court has referred to the plea in the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether t he defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suit-house was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiffs suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence was led by both the parties on that point. This reference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not supported by legal necessity if on the death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree granted by courts below would be right even though the claim to the 1/2 share is not based onreference, we are afraid, does not relate to issue No. 3 which is about the succession to Bai Kashis share after her death. In the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi. In fact , the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhais 1/3 share in the suit-house absolutely. It was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would 11--206SCI/77 the Mitakshara school in Gujarat. We find that the question that arose mainly whether the respondents are entitled to succeed to Bai Kashis 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants. While we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to. 1/3 share in the house. Therefore though they became separated in status the suit- house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.But so far as the 1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants plea that the respondents are not entitled to succeed to Bai Kashis 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to. whether the respondents are entitled to succeed to 1 /2 of the 1/3 share of Bai Kashi and pass a decree accordingly.