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Babarao and ors. Vs. Hanumant - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 13 and 65 of 1950
Judge
Reported inAIR1959Bom75; ILR1959Bom19
ActsHindu Law
AppellantBabarao and ors.
RespondentHanumant
Appellant AdvocateK.G. Chendke, ;M.R. Bobde, Advs. in F.A. No. 65 of 1950 and ;D.T. Mangalmurti, Adv.
Respondent AdvocateK.G. Chendke, ;M.R. Bobde, Advs. in F.A. No. 13 of 1950 and ;G.R. Mudholkar, Adv.
Excerpt:
.....by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - she could dispose of the properties which had no longer remained zinguji's properties in any way she liked. 13 of 1950 must fail and be dismissed with costs, subject to the compromise arrived at between defendant no. 65 of 1950 must also fail and be dismissed with costs. 16. for the reasons stated above, both the appeals fail and are dismissed with costs, subject, of course, to the compromise which has been arrived at between the plaintiff and defendant no......is to be found in paragraph 1 of the plaint. one zoraji had three sons, balaji, ramji and zinguji. defendants nos. 2,3,4 and 6 are the sons of ramji. defendant no. 5 is the grandson of ramji. zinguji was married to mohanbai. zinguji died in 1911 and mohanabai died in 1917. zinguji and mohanabai had a son of the name of dattuji. dattuji had pre-deceased his parents. he had died in 1908, leaving behind him surviving his two widows, jaiwantabai who is defendant no. 1 and rukhmabai. the present plaintiff was adopted by rukhamabai as a son to her deceased husband dattuji on 14-3-1946. it may be remembered at this stage that one gabruji was also a son of ramji. gabruji died in 1922, leaving behind him surviving his sons govindrao and krishnaro. krishnarao is defendant no. 7 and.....
Judgment:

D.V. Vyas, J.

1. These two first appeals Nos. 13 and 65 of 1950 arise out of a judgment and decree passed by the First Additional District Judge, Amravati, in Civil Suit No. 5-A of 1948. First Appeal No. 65 is filed by the plaintiff.

2. The plaintiff has filed the present suit No. 5-A of 1948 for several reliefs, amongst which are the following reliefs:

(1) Recovery of possession of survey No. 12/4 of Burhanpur and survey Nos. 74, 75/2, 50/1 and 66/1A of Saur from defendants Nos. 3 and 4.

(2) Recovery of possession of a tiled house and a thatched house at Saur.

(3) Recovery of mesne profits for the above-mentioned fields for the years 1946-47 and 1947-48.

The learned Judge of the trial Court has passed a decree directing that defendants Nos. 3 and 4 shall put the plaintiff in possession of the above-mentioned fields. The decree has further directed that defendants Nos. 3 and 4 shall also put the plaintiff in possession of certain two houses, namely, a titled house and a thatched house at Saur. In respect of mesne profits, the learned trial Judge has directed defendants Nos. 3 and 4 to pay to the plaintiff Rs. 1293-12-0 in respect of the abovementioned fields for the years 1946-47 and 1947-48. It is from this decree that First Appeal No. 13 of 1950 has been filed by defendants Nos. 3 and 4. (3) First Appeal No. 65 of 1950 has been filed by the plaintiff, and the grievance of the plaintiff in this appeal is that the learned Judge ought not to have dismissed his suit in respect of the properties which are in possession of defendants Nos. 10 to 18.

3. First Appeal No. 65 of 1950 has been filed by the plaintiff and the grievance of the plaintiff in this appeal is that the learned judge ought not to have dismissed his suit in respect of the properties which are in possession of defendents Nos. 10 to 18

4. Now the relevant genealogy is to be found in paragraph 1 of the plaint. One Zoraji had three sons, Balaji, Ramji and Zinguji. Defendants Nos. 2,3,4 and 6 are the sons of Ramji. Defendant No. 5 is the grandson of Ramji. Zinguji was married to Mohanbai. Zinguji died in 1911 and Mohanabai died in 1917. Zinguji and Mohanabai had a son of the name of Dattuji. Dattuji had pre-deceased his parents. He had died in 1908, leaving behind him surviving his two widows, Jaiwantabai who is defendant No. 1 and Rukhmabai. The present plaintiff was adopted by Rukhamabai as a son to her deceased husband Dattuji on 14-3-1946. It may be remembered at this stage that one Gabruji was also a son of Ramji. Gabruji died in 1922, leaving behind him surviving his sons Govindrao and Krishnaro. Krishnarao is defendant No. 7 and Govindrao's sons Ramchandra and Prahlad are defendants Nos. 8 and 9. It is important to bear this genealogy in mind while appreciating the contentions of the plaintiff in the present suit.

5. Now, the plaintiff's case is that Zinguji was the last surviving coparcener and he was the owner of the properties described in Schedules A and B to the plaint. Upon Zinguji's death, his widow Mohanabai inherited his properties as a limited owner under the Hindu law. Be it remembered that I am stating the plaintiff's case. The plaintiff contends that by virtue of his adoption on 14-3-1946 by Rukhmabai as a son to her deceased husband Dattuji who had died in 1908, he became entitled to the entire property of Zinguji which was in existence at the date of the death of Zinguji. According to the plaintiff, the said property is in possession of the defendants, and it is, therefore, that he has filed the present suit for several reliefs, out of which I have mentioned the material reliefs so far as defendants Nos. 3 and 4 are concerned. It may be noted at this stage that defendants Nos. 3 and 4 are in possession of the houses which are described in paragraph 3 and 4 of Schedule B to the plaint. They are also in possession of the fields bearing survey No. 12/4 of Burhanpur and survey Nos. 74, 75/2, 50/1 and 66/1A of Saur.

6. The suit of the plaintiff is resisted by defendants Nos. 3 and 4. Defendants Nos. 3 and 4 have denied the adoption of the plaintiff. According to them, the adoption was invalid as it was brought about by practising undue influence upon Rukhmabai. It is then contended by defendants Nos. 3 and 4 that this family is governed by the Benares School of Hindu law and the adoption which is made without authority from the husband is an invalid adoption. It is contended by defendants Nos. 3 and 4 that Rukhmabai, the widow of Dattuji, was not authorised by Dattuji to make an adoption of a son. It is also the case of defendants Nos. 3 and 4 that Dattuji had been given away to the Mahant of the Mahur Sansthan, that the Mahant had accepted him as his son, and that, therefore, Dattuji had ceased to be a member of the family. In these circumstances, say defendants Nos. 3 and 4, the plaintiff would not be entitled to get any property by reason of his adoption. It is upon these contentions that the plaintiff's suit is resisted by defendants Nos. 3 and 4.

7. Now, the learned Advocate Mr. Mangalmurti appearing for defendants Nos. 3 and 4 in First Appeal No. 13 of 1950 says that when Zinguji died in 1911. he was the last surviving coparcener in the family. He left behind him surviving his widow Mohanabai and the widows of his pre-deceased son, namely, Rukhmabai and Jaiwantabai. Mr. Mangalmurti says that upon the death of Zinguji, Mohanabai inherited his (Zinguji's) properties as a limited owner. Mohanabai thereafter made certain alientions in favour of the various defendants and those alienations were made between the years 1912 to 1916. Mohanabai herself died in 1917, as I have already stated. When Mohanabai died, Ramji's sons were the next reversioners and they succeeded to the property. These reversioners filed Civil Suit No. 347 of 1927 against the aliences in whose favour Mohanabai had made alienations between the years 1912 and 1916. A decree was passed in the above-mentioned suit of 1927. It was passed on 28-2-1929. As a result of that decree the reversioners i.e., the sons of Ramji, got possession of two-third portions of survey No. 12 of Burhanpur and survey No. 50/1 of Saur. Then in the year 1929, the reversioners filed Civil Suit No. 191 against the alienees survey No. 75/2. In that suit, a decree was passed in favour of the reversioners and the decree awarded possession of survey No. 75/2 of Saur to the reversioners. Yet another suit (No. 44 of 1930) was filed later by the reversioners (Ramji's sons) for recovering possession of survey No. 39 of Kalamgaohan from the alienees, but that suit was dismissed. Mr. Mangalmurti says that so far as survey Nos. 66/1 and 74 were concerned, the reversioners got possession thereof directly upon the death of Mohanabai. Mr. Mangalmurti makes a distinction between the reversioners obtaining possession of survey Nos. 66/1A and 74 directly upon the death of Mohanabai on the one hand and their getting back possession of survey Nos. 75/2, 50/1 and 12 from the alienees on the other hand. Mr. Mangalmurti says that so far as survey Nos. 75/2, 50/1 and 12 are concerned, the reversioners did not get possession directly upon the death of Mohanabai, but they had to file suits against Mohanabai's alience and it was as a result of the decrees obtained by them in those suits that the possession of the above-mentioned three survey numbers was obtained by the reversioners from the aliences. Mr. Mangalmurti makes a point out of the distinction drawn by him between the reversioners taking possession of survey Nos. 66/1A and 74 on the one hand, & their getting back possession of survey Nos. 75/2, 50/1 and 12 from the aliences on the other hand. Mr. Mangalmurti concedes that so far as the reversioners' possession of survey Nos. 66/1A and 74 is concerned, the case of defendants Nos. 3 and 4 would be hit by the principle laid down by the Full Bench of the Bombay High Court in Ramchandra v. Balaji, (S) : AIR1955Bom291 (A), and he concedes that since the reversioners got these lands directly upon the death of the widow Mohanabai, the plaintiff as the adopted son of Dattuji would be entitled to have these properties divested. But, so far as the other properties, namely, survey Nos. 75/2, 50/1 and 12 are concerned, Mr. Mangalmurit says that these lands were lost to the family of Zinguji once they were alienated by Mohanabai in favour of the aliences. According to Mr. Mangalmurti, these three lands had ceased to be the properties of the last surviving coparceener after the alienations. Then Mr. Mangalmurti says that when the reversioners avoided the alienations by filing suits and got back the possession of these lands, the said lands, S. Nos. 72/2. 50/1 and 12, became the self-acquisitions of the reversioners. To put it differently, Mr. Mangalmurti says that after the reversioners got the above three lands back from the alienees, the said lands could not be looked upon as being the properties of Zinguji. It is this way that Mr. Mangalmurti contends that since survey Nos. 72/2, 50/1 and 12, upon their being got back by the reversioners, became their self-acquisitions and lost their original character, namely the character of being Zinguji's property, the plaintiff would not be entitled to have these lands divested from the reversioners.

8. Mr. Mangalmurti is not right. When the fields, survey Nos. 75/2, 50/1 and 12, were got back by the reversioners by filing Civil Suits Nos. 847 of 1927 and 191 of 1929, they were got back as properties in which 'all the reversioners were jointly interested'. In other words, they were got back as the property of Zinguji. Mr. Mangalmurti has invited our attention to a decision of the Punjab High Court in Rameshwar v. Mt. Ganpati Devi, AIR 1936 Lah 652 . In that case, the learned Judges of the Punjab High Court observed at page 654 that in considering the preliminary objections which were urged on behalf of the defendants of that case, it had to be borne in mind that Mr. Ganpati Devi, the widow of the last surviving coparcener, was still alive, and the learned Judges said that upon the allegations in the plaint succession would open out to the reversioners of Joti Parshad on the death of Mt. Ganpati Devi. Then the learned Judges observed:

'It was for this reason that the suit had been brought by Rameshwar in a representative capacity, he claiming to be the presumptive heir, and the relief asked for was for declaration that the alleged alienation by Mt. Ganpati Devi would be ineffectual against the reversioners after the death of the alienor.'

We do not understand what difference it would make whether the widow of the last surviving co-parcener was alive or not. The fields which were recovered by the reversioners in this case by filing Civil Suits Nos. 347 of 1927 and 191 of 1929 were got back as being the property of Zinguji. In the hands of the reversioners, they would be Zinguji's property in which all the reversioners were jointly interested.

9. The learned Advocate Mr. Chendke appearing for the plaintiff relies on the Full Bench decision of the Bombay High Court in Ramchandra v. Balaji (A), and contends that after the field was got back by the reversioners from the alience, they must be looked upon as the property of Zinguji, the last surviving coparcener, in the hands of the reversioners and, therefore, the property could be divested by the adopted son, i.e., the plaintiff. On the other hand, the learned Advocate Mr. Mangalmurti says that under the principle laid down by the Full Bench in Ramchandra v. Balaji (A), the adopted son would be entitled to have the property divested in a case where the reversioners had got possession of the property directly upon the death of the widow of the last surviving coparcener and not from the alinees. But says Mr. Mangalmurti, where upon the death of the widow, the reversioners elected to avoid the alienations made by the widow and succeeded in avoiding them and got back the properties from the alienees, the properties would be the self-acquisitions of the reversioners and they would not possess the character of the joint family property and the principle of the Full Bench, decision would not apply.

10. Mr. Mangalmurti, in our view, is not right. According to the Full Bench, the test whether the adopted son would divest the property or not is this: At the date of the adoption, where was the property which was once the property of the last surviving coparcener and which was sought to be divested by the adopted son? If the property was in the hands of the reversioners, the principle of the Full Bench would apply and the property would be divested by the adopted son. But if the property had, in the meantime, i.e., before the adoption, devolved upon the reversioners' heirs, the adopted son would not be entitled to have it divested. Say, for instance, the property was in the hands of A at the time of the adoption. The divesting of the said property by the adopted son would depend upon the answer to the question whether before the property went into the hands of A it was the property of the last surviving coparcener or whether it was the property of the reversioners. If the former, it could be divested: if the latter, it could not be divested. In the Full Bench case, Balaji and Ramchandra were brothers. Ramchandra died on 10-10-1903, leaving behind him surviving his widow Tarabai who died two days later on 12-10-1903. Ramchandra and Tarabai had a son Hanmant, who had predeceased his parents, as Dattuji in the present case had also predeceased his parents Zinguji and Mohanabai. Hanmant left behind him surviving his widow Sitabai, as Dattuji in the present case left behind him surviving his widows Jaiwantabai and Rukhmabai. Sitabai adopted the plaintiff of that case: Ramchandra v. Balaji (A), on 21st January 1945 as Rukhmabai, the widow of Dattuji, adopted the plaintiff in the present case on 14th March 1946. Ramchandra's brother Balaji in the above-mentioned Bombay case had a son Dattu who died on 20-1-1916. Balaji, the defendant of that case, was the adopted son of Dattu. The plaintiff of that case who was adopted on 21-1-1945 filed a suit for divesting the property of Ramchandra. Just as Mr. Mangalmurti contends in this case that upon avoiding the alienations which were made by Mohanabai, the reversioners had become the full owners of the properties recovered from the alienees, so also in the Full Bench case Dattu had an absolute interest in the property which he inherited, subject to the defeasance. He was the full owner of the property and he could deal with the property as his own. If the property had remained with Dattu when the plaintiff was adopted, no question could have arisen with regard to the right of the plaintiff to divest the property vested in Dattu. But the question that arose in that case: Ramchandra v. Balaji (A), was whether the right to divest which the plaintiff had, so long as the property remained with Dattu, could be exercised against Balaji who was the heir of Dattu. The learned Chief Justice delivering the judgment of the Full Bench observed:

'The matter may be looked at in this way. Balaji has succeeded to the estate of his father Dattu, and what the plaintiff is really claiming is not the property of Ramchandra but the property of Dattu which Balaji has inherited as his son. If the property had been with Dattu, the result of the plaintiff's adoption would have been that the doctrine of relation back would have come into force and by legal fiction it would have been assumed that the plaintiff was alive at the date when Ramchandra died. Therefore, really, the plaintiff would have displaced Dattu as the preferential heir to his own grandfather. But it is difficult to understand how that principle can apply when we are dealing with the property in the hands of Dattu's heir.'

In the present case, therefore, if the property had been not with the reversioners but with the reversioners' heirs, the doctrine of relation back would not have come into force. But at the date of the plaintiff's adoption, the property was with the reversioners, and before it went to the reversioners, it was the property of Zinguji, the last surviving coparcener. Therefore, the doctrine of relation back would come into operation and the plaintiff would be entitled to have the property divested.

11. Mr. Mangalmurti has invited our attention to certain observations which are to be found in paragraph 176 of Mulla's Principles of Hindu Law. In paragraph 176 the learned author, while dealing with widow's estate, observed:

'The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case', her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but..... so long as she is alive no one has any vested interest in the succession''.

Relying upon these observations Mr. Mangalmurti has pressed a contention and the contention is that upon the death of Zinguji, his widow Mohanabai became the owner of Zinguji's properties. She could dispose of the properties which had no longer remained Zinguji's properties in any way she liked. She was entitled to do whatever she chose to do with those properties. In the present case, she alienated those properties. Mr. Mangalmurti says that what the reversioner could do, the widow of the last surviving coparcener could also do, and Mr. Mangalmurti contends that in the Bombay case of Ramchandra v. Balaji (A), there is no doubt that Dattu could have disposed of the properties in any manner he chose. In the Bombay case, Dattu was a reversionary heir to Ramchandra and he became the owner of Ramchandra's properties. Mr. Mangalmurti says that the position which Mohanabai occupied in the present case was analogous to the position which Dattu occupied in the Bombay case. In this manner, says Mr. Mangalmurti, when the properties of Zinguji were alienated by Mohanabai, they ceased to be Zinguji's properties. Therefore, when the reversioners got back the properties by filing civil suits against the alienees, the properties got back by the reversioners were no longer Zinguji's properties: they became the self-acquisitions of the reversioners. Mr. Mangalmurti's contention sounds attractive, but upon analysis, it is found without force. It is true, as the learned author of the Principles of Hindu Law says in paragraph 176, that a widow's right is of the nature of a right of property and her position is that of owner. But it is to be remembered that when adoption takes place in a Hindu family, a legal fiction comes into operation and the doctrine of relation back comes into play. When an adopted son comes into the family, he has a title paramount. That paramount title would supersede the rights of widows and reversioners. By a legal fiction, the adopted son would be assumed to have been born in the family not on the date of the adoption, but his birth would relate back to the date upon which the last surviving coparcener had died. Upon the coming into force of this legal fiction, the adopted son could claim the properties of Zinguji. Upon this view of the matter, the properties which were alienated by Zinguji's widow Mohanabai must be looked upon as properties of Zinguji which the adopted son was competent to divest. In the present case, the reversioners by filing suits got the fields back from the alienees, but they got them back as Zinguji's properties to which they succeeded by reversion. In these circumstances, we are unable to accept Mr. Mangalmurti's contention that upon the fields being got back by the reversioners, they became self-acquisitions of the reversioners and ceased to possess the character of being Zinguji's properties. The net result of what has been stated above is that Appeal No. 13 of 1950 must fail and be dismissed with costs, subject to the compromise arrived at between defendant No. 7 and the plaintiff.

12. Regarding Appeal No. 65 of 1950, it is to be remembered that the grievance of the plaintiff-appellant is that the learned Judge of the trial Court dismissed the suit, so far as it related to the properties which were in possession of defendants Nos. 10 to 18 Now, it may be noted that the property which is in possession of defendant No. 10 is one-third portion of survey No. 12 of Burhanpur. The property which is in possession of defendant No. 11 is survey No. 25/2 of Jainpur. The property which is in possession of defendants Nos. 12, 13 and 14 is survey No. 25/1 of Jainpur; and the property which is in possession of defendants Nos. 15 to 18 is survey No. 75/1-A and survey No. 75/1 of Saur. Mr. Chendke for the plaintiff contends that the learned Judge of the trial Court should have passed a decree in favour of the plaintiff in regard to possession of these properties. We have considered Mr. Chendke's submissions, but we are not impressed by them. In our opinion, First Appeal No. 65 of 1950 must also fail and be dismissed with costs. So far as the property in possession of defendant No. 10 is concerned, nemely, a portion of survey No. 12 of Burhanpur, it is to be remembered that when the reversioners filed Civil Suit No. 347 of 1927 against the alienees for recovering possession of survey No. 12, the decree which was passed in favour of the reversioners awarded to them possession of two-thirds portion of it. The remaining one-third portion of S. No. 12, which was in possession of defendant No. 10 even before the institution of the suit, remained with defendant No. 10 and it has ever since continued to remain with him. It is to be remembered that defendant No. 10 is a trustee for Shri Vithal Rukhamai Sanstan. Having regard to these circumstances, we are of the view that so far as the one-third share of survey No. 12 of Burhanpur is concerned, the plaintiff has no case.

13. So far as the property in possession of defendant No. 11 is concerned, it is to be remembered that this property, survey No. 25/2 of Jainpur, was gifted to a Deosthan. Besides, as the learned Judge of the Court below has observed, it is an infinitesimally small property. There is hardly any substance in the plaintiff's appeal so far as the property in possession of defendant No. 11 is concerned.

14. So far as the property in possession of defendants Nos. 12, 13 and 14 is concerned, they are in possession of survey No. 25/1 of Jainpur, and it is to be remembered that defendants Nos. 12, 13 and 14 are alienees from the reversioners. Therefore, upon the principle laid down by the Full Bench of the Bombay High Court in Ramchandra v. Balaji (A), the plaintiff would not be entitled to divest this property from the alienees. The same observations would apply to the properties which are in possession of defendants Nos. 15, 16, 17 and 18. These properties are survey Nos. 75/1-A and 75/1. Defendants Nos. 15 to 18 are also alienees from the reversioners, and, therefore, the plaintiff would not be entitled to have these properties divested from the alienees.

15. So far as the mesne profits of the properties survey No. 12 of Burhanpur (2/3rds portion) and survey Nos. 75/2, 50/1, 66/1-A and 74 of Saur, are concerned, the learned Judge has relied upon the evidenced of the plaintiff's witness Nilkanth and has come to the conclusion that even according to Nilkanth, the mesne profits could not be more than Rs. 100 to Rs. 125 per tifan . The learned Judge has allowed mesne profits at the rate of Rs. 100 per tifan. Now, a tifan consists of four acres. In no case, would the plaintiff be entitled to mesne profits at a rate higher than Rs. 125 per tifan. Rs. 100 per tifan have been awarded to the plaintiff, and the difference boils down to a difference of Rs. 6-4-0 per acre, a difference hardly justifying interference in appeal.

16. For the reasons stated above, both the appeals fail and are dismissed with costs, subject, of course, to the compromise which has been arrived at between the plaintiff and defendant No. 7 in appeal No. 13 of 1950.

17. Appeals dismissed.


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