Case: Vidyadhar Krishnarao Mungi &amp; Others Vs. Usman Gani Saheb Konkani &amp; Others

1. There was one Laxman Govind Mungi. He had a mistress, Bhagirathibai. From her he had two sons, Sridhar and Sadashiv. The name of his wife was Jankibai. From Jankibai he had two sons, Krisnaji and Dattatraya. Vimlabai is the wife of Krishnaji. Kumudini is the wife of Dattatraya. Vidyadhar is the son of Krishnaji. Udaykumar and Shri Praksh are the sons of Dattatraya. Laxman Govind Mungi, Jankibai, Bhagirathibai, Sridhar and Sadashiv died before the commencement of the suit out of which this appeal has arisen. Laxman Govind Mungi died on March 26, 1940 and Jankibai on June 15, 1953.2. The suit property is a plot of land situate in Nasik. It bears No. 954. In 1909 it belonged to one Satyabhamabai. She sold it on December 6, 1909 for Rs.The sale is evidenced by a registered sale deed executed by her in favour of Jankibai. After the sale the name of Jankibai was mutated in the Record of Rights. One her death, the names of Krishnaji and Dattatraya were mutated in her place. The plot was allenated by them to Usman Gani Ahmed Saheb Konkani some time in 1963. Their sons and their wives have instituted the suit out of which this appeal has arisen. They asked for setting aside the alienation and for partition of their shares in the plot. It was alleged that the plot belonged to Laxman Goving Mungi and constituted ancestral property in the hands of Krishnaji and Dattatraya. The alienation was made without any legal necessity and without any benefit to the estate. It was ineffective against their interest. Usman Gani Ahmed Saheb Konkani was the first defendant in the suit. Krishnaji and Dattatraya were defendants 2 and 3.3. Usman Gani Ahmed Sahib Konkani contested their claim. He filed a written statement. His allegations were that the suit property belonged to Jankibai and was not ancestral property in the hands of Krishnaji and Dattatraya. They had full right to alienate the property and the plaintiffs had no right in the property. He also pleaded that the alienation was binding on the plaintiffs as they have "received full benefit of the amount of consideration of the said transaction." He also raised several other pleas in his written statement.4. Krishnaji and Dattatraya filed a joint written statement. As usually happens in such cases, they admitted the claim of the plaintiffs. They admitted that the suit plot belonged to Laxman Govind Mungi and was ancestral property in their hands. They also admitted that the plaintiffs had an interest in the land. They also admitted that the sale was without legal necessity and without benefit to the estate.5. The trial Court framed as many as 17 issues. Issueand 2 are relevant for this appeal. TheyWhether plaintiffs prove that theirone Laxman Govind Mungi purchased suit land benami in the name of Jankibai onas alleged?2. Do plaintiffs prove that the suit property ..... is the ancestral property of the joint family consisting of plaintiffs and defendants 2 and 3?"6. The contesting parties produced their oral and documentary evidence. After examining the evidence, the trial court held that Laxman Goving Mungi had purchased the suit land benami in the name of his wife Jankibai and it was ancestral property of the joint family consisting of the plaintiffs 1 to 3 and defendants 2 and 3. The findings on the issue about legal necessity and benefit of the estate and other issues were against the first defendant. In the result, the trial court decreed the suit of the plaintiffs for 17/24 shares in the suit land. Feeling aggrieved with the judgment and decree of the trial court, the first defendant filed an appeal in the Bombay High Court. The High Court has reversed the judgment and decree of the trial court and has dismissed the suit of the plaintiffs. The High Court has held that Laxman Govind Mungi did not purchase the suit land and that Jankibai was the real owner of it. The High Court did not accept the plaintiffs plea of the sale being benami. The High Court also held that the sale was legal necessity and for the benefit of the estate. Hence this appeal by the plaintiffs.

Reasoning: It is also important to observe that Dattatraya, who appeared as a witness for the plaintiffs, did not speak about this motive. On the contrary, he admitted in histhat he had made "no inquiry about the purchase of suit land from mother." He further admitted that he "never questioned father why he purchased the suit land benami in the name of mother." So his evidence does not bear out the alleged motive. None of the plaintiffs have entered the witness box. Under the Hindu Law Sadashiv could claim maintenance from Laxman only from ancestral property in his hand. Sadashiv could not claim maintenance from anyproperty of Laxman. This legal position is not disputed by counsel for the appellants. But he says that Laxman could have hardly known the law. It is difficult to believe that Laxman was ignorant of the law. He was a petition writer. His occupation brought him in constant touch with lawyers and litigants. Accordingly, it is not improbable that he had acquired information that thisproperty was in no danger. So there was no reason why Laxman should have concealed the purchase of the suit land from Sadashiv.21. There is yet another important circumstances which discounts the suggested motive. It may be recalled that Sadashiv settled his claim for maintenance on March 26, 1925. Laxman had agreed to give him a part of land which stood in his own name in lieu of maintenance, while Sadashiv relinquished his claim to the other properties specified in his plaint. Laxman died in 1940. Although after the settlement there was no danger whatsoever from Sadashiv in regard to it, the suit land continued to be shown in the revenue records in the name of Jankibai. Laxman did not get his name mutated in her place. It seems to us that if the property had really belonged to Laxman, he would have got his name mutated after March 1925 as there was no further need of wearing a mask.The trial court took the view that the words "our ancestral ownership" in Ex. 100 connoted that the suit land came to the hands of Krishnaji and Dattatraya from the side of their father. According to the trial court, the aforesaid passage from theof the first defendant indicated that he was aware of this fact at the time of purchasing the property. The trial Court thought that this admission of the first defendant shifted the onus from the plaintiffs to him. As the first defendant did not explain as to how the words "our ancestral ownership" were understood by him, the trial court held that he knew that Laxman was the owner of the suit land. Here again, the High Court did not agree with the trial court. For the reasons to be stated hereafter we would agree with the High Courts evaluation of the probative weight of Ex. 100.25. Firstly, it should be noticed that Ex. 100 is an unregistered document. It was in the custody of the first defendant. It was filed by him court in this case. He is a Muslim. To a Muslim the words "our ancestral ownership" would connote not only paternal ancestral property but also maternal ancestral property. We are satisfied that the first defendant understood those words in the sense of maternal ancestral property. If he had known that these words would only apply to paternal ancestral property, he would have never filed the document in court in support of his case. And he could have easily withheld it, for it was an unregistered document.26. No adverse inference can be drawn against him from his admission in histhat he and his brothers have inherited some ancestral property from their father, Ahmed Latif Saheb Konkani. As already stated, a Muslim would consider the property inherited from his father as well as from his mother as ancestral property. For the same reason we are unable to draw an adverse inference against him from his admission that Ex. 100 mentioned that the land was ancestral land of the defendants 2 and 3. In this connection it is necessary to remember that in the tenancy case No. 37 of 1956 (in which the first defendant was a party) Dattatraya has appeared as a witness. In his statement in that case he had said: "The suit land was purchased by my mother. After her death myself and my brother are the owners." It may be presumed that the first defendant also knew that the suit land was entered in the revenue records in the names of Krishnaji and Dattatraya after the death of their mother. Jankibai as her heirs. So in the context of the statement of Dattatraya in the tenancy case and the entry of his and his brothers name in the revenue record on the death of their mother as her heirs the first defendant could easily have understood the words "our inherited ownership" in the sense of property inherited from a maternal ancestor, that is to say, from mother and not from father.27. Secondly, Dattatraya has not deposed that he had told the first defendant that the suit property was inherited by him and his brother from their father. He has not explained as to how the words "our ancestral ownership" were understood by him and the first defendant at the time Ex. 100 was executed by him.28. Thirdly, no question was put into the first defendant as to how he understood the words "our ancestral ownership" in Ex. 100. In the absence of suchwe think it will be unfair to the first defendant to draw any adverse inference againstthe trial court fell in error in relying on documents of dubious evidentiary value. The documents were, as already discussed, also consistent with the real ownership of Jankibai. So the trial court was wrong in thinking that it was reasonably probable that Laxman was the real owner of the suit land. In our view, the High Court has correctly appraised the entire evidence and has come to the right conclusion that the real owner of the suit land was Jankibai, and not Laxman.