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Parshottam Dahyabhai Dave Vs. Desaibhai Chunthabhai Patel - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 992 of 1928
Judge
Reported in(1932)34BOMLR852
AppellantParshottam Dahyabhai Dave
RespondentDesaibhai Chunthabhai Patel
DispositionAppeal dismissed
Excerpt:
.....142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - the management and ownership of the property was retained by motilal, as he says in his will during lifetime, and being the owner of the property, he was perfectly competent to sell it to the present defendant......becoming a sanyasi, and that during his lifetime he will retain control of his property. as the learned judge of the lower appellate court has pointed out, the very terms of this will, which was made before he become a sanyasi, show that there was no complete and final renunciation such as the law requires, inasmuch as he retained control over his properties. the conduct of motilal also shows he did not regard himself as having lost his interest in the property, because after going through these ceremonies he sold this property by a deed dated september 21, 1910, to the present defendant. ha subsequently presented the document for registration. not only that, but when his brother ambalal on the assumption that motilal's interest in the property had ceased, sold the same property to.....
Judgment:

Baker, J.

1. The plaintiffs sued to recover possession of the plaint property, alleging that it belonged to one Motilal Harjivan, their uncle, who made a will in their favour on July 7, 1910, that Motilal thereafter became a sanyasi on July 13, 1910, and therefore his civil death took place on that date, and they became entitled to the property under the will, that Motilal had no right left in the property, but he sold it to the defendant on September 21,1910, that the deed is void and the defendant had no right under it, and hence they claim possession of the property. The first Court, the Subordinate Judge of Borsad, dismissed the suit, and on appeal the First Class Subordinate Judge with A.P. at Nadiad dismissed the appeal, although his reasons were slightly different from those of the Subordinate Judge. There is no dispute as to the actual facts, which are that Motilal made a will on July 7, 1910, that a few days after that he became a sanyasi, that however he sold the property in dispute to the defendant for Rs. 1,200 on September 21,1910, the amount being required for payment of a debt due by Motilal to his brother Dahyabhai, the father of the plaintiff, and Dahyabhai joined in executing the deed. Subsequently Motilal died. The learned Counsel for the appellant has quoted various texts of Manu and the Mitakshara to show that when a man has gone through the necessary ceremonies by which he becomes a sanyasi, he renounces all interest in worldly affairs, and the Court must conclude that his civil death has taken place, and that his property vests in his heirs from the date of his renunciation of the world. In order, however, that this should happen, it must be proved that he has as a matter of fact renounced the world, and the circumstances of the present case will show that Motilal did not do so. The only observations necessary to quote are from Mayne's Hindu Law, 9th Edition, p. 867, Section 590, and p. 883, Section 603. After referring to the various persons who are excluded from inheritance as having abandoned all interest in worldly affairs, the learned author says that in order to bring a person under these circumstances it is necessary to show absolute abandonment by him of all secular property and a complete and final withdrawal from earthly affairs. The will which Motilal made expressly states that it is to take effect from the date of his death and not from the date of his becoming a sanyasi, and that during his lifetime he will retain control of his property. As the learned Judge of the lower appellate Court has pointed out, the very terms of this will, which was made before he become a sanyasi, show that there was no complete and final renunciation such as the law requires, inasmuch as he retained control over his properties. The conduct of Motilal also shows he did not regard himself as having lost his interest in the property, because after going through these ceremonies he sold this property by a deed dated September 21, 1910, to the present defendant. Ha subsequently presented the document for registration. Not only that, but when his brother Ambalal on the assumption that Motilal's interest in the property had ceased, sold the same property to one Fulabhai who brought a suit in which Motilal was impleaded as a defendant along with Ambalal and others including the present plaintiff and the present defendant, Motilal put in a written statement and stated that the property had been sold by him to the present defendant to discharge a debt due to Dahyabhai, and it was on that that Ambalal and Fulabhai came to a compromise, by which the purchase money was returned to Fulabhai. It is quite clear, therefore, in the present case, that whatever ceremonies Motilal may have gone through, he neither intended to divest himself of his property, nor did he as a matter of fact do so. But he continued to retain an interest in it after his alleged civil death, and he actually entered into various transactions in connection with it as if he was still in the secular world.

2. Apart from this, in the will itself the executors were enjoined to pay off this debt due to Dahyabhai, which as a matter of fact Motilal did himself by the sale to the defendant during his lifetime. In these circumstances, the view taken by the learned Judge of the lower appellate Court must be upheld. It is not proved that Motilal relinquished all interest in worldly affaire whatever the ceremonies he may have gone through, and the conditions mentioned in the paragraphs in Mayne quoted above are not fulfilled, Even in the case on which the learned Counsel for the appellant has relied, Kondal Row v. Iswara Sanyasi : AIR1918Mad402 the headnote begins-

The essential feature of an orthodox Sanyasam is the actual relinquishment of all property and an actual abandonment of all worldly concerns, down to even a desire for them.

3. There has not, therefore, in the present case been any actual relinquishment. The management and ownership of the property was retained by Motilal, as he says in his will during lifetime, and being the owner of the property, he was perfectly competent to sell it to the present defendant.

4. A further difficulty is that out of the two survey numbers mentioned in the plaint, one is not mentioned in the will, and must be therefore treated as if there is an intestacy in respect of it, and the plaintiffs not being the deceased's next heirs (they are his nephews while he had brothers), they will not be entitled to succeed to it.

5. In these circumstances, the appeal fails and is dismissed with costs.


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