1. The above First Appeal is filed by the defendants Nos. 8 and 10, in Special Civil Suit No. 26 of 1963, in the Court of the Civil Judge, Senior Division, at Latur, instituted by the original respondents Nos. 1 to 5, as plaintiffs, for a declaration that the registered sale deed, dated 1st Ardibehest 1353 Fasli (March 5, 1944 A. D.), executed by their father, defendant No. 4, in favour of defendant No. 1, was without legal necessity and illegal; and not binding on their 6/7th share in respect of the property sold.
2. The case made out by the plaintiffs in the plaint can be briefly summarised as under:
3. The suit property viz. Survey No. 323 measuring 19 acres 20 gunthas and Survey No. 332 measuring 15 acres 10 gunthas, situated at Latur, was originally in possession of Ramchandra, the father of defendant No. 4 till his death in 1916. After his death, defendant No. 4 came into possession of the same as his only son; and sold away the property under the suit registered sale deed, dated March 5, 1944, Exh. 217, to defendant No. 1 for an ostensible consideration of Rs. 12,000/- (O.S.).
4. The sale deed was executed in the name of defendant No. 1 as the Karta of the family of defendants Nos. 1 to 3, jointly by defendant No. 4 with defendant No. 8, Shankerrao Kishanrao Dadpe, though the said Shankerrao had no title to the suit land. Defendant No. 8 was merely related to the family of the plaintiffs and came to be included as a joint vendor only to satisfy the vendee, defendant No. 1. Thereafter, an agreement of rectification deed was executed and registered, on Nov. 14, 1944, by defendant No. 4, alone, mentioning the correct Survey No. 332, in place of Survey No. 333, which was in the original deed,
5. According to the plaintiffs, the sale was made without any legal necessity for grossly inadequate consideration; and hence it was invalid and void in its entirety; and in any event, it could bind only the share of defendant No. 4.
6. The plaintiffs are the sons of defendant No. 4. Defendant No. 7 is their mother. Defendants Nos. 5 and 6 are the brothers of plaintiffs. Plaintiffs Nos. 1 to 5 and defendants Nos. 5 and 6 were members of the joint Hindu family along with defendant No. 4. Defendant No. 7, the mother of the plaintiffs was entitled to an equal share amongst the coparceners. The plaintiffs submitted that the suit lands were ancestral joint Hindu family lands of plaintiffs and defendants Nos. 4 to 7.
7. After the written statement was filed by the defendants, the plaint was amended by an order of the Court, dated January 6, 1964. Defendants Nos. 9 and 10 were added as defendants Nos. 1 to 3 sold the suit lands to defendants Nos. 9 and 10 for Rs. 30,000/-, on 6th Meher 1357 Fasli (i. e. sometime in 1948).
8. The suit was resisted by the defendants Nos. 1 to 3 as well as by the defendants Nos. 9 to 10, contending that the suit property was not ancestral property; and hence the plaintiffs had no right by birth therein. Defendants Nos. 1 to 3 denied that the consideration for their sale deed was inadequate. According to them the suit lands belonged to the family of one Kishan Appaji Gawraskar, who was a businessman residing at Kaij. Gawraskar was the brother-in-law of Kishanrao Dadpe, the father of defendant No. 8; and therefore, he was appointed by Gawraskar as his Mukhtiar under a special power of attorney in respect of the suit lands under a Mukhtiarnama, executed and registered on Aug. 2, 1902.
9. According to the said defendants Nos. 1 to 3, after the death of Kishanrao Dadpe, defendant No. 4 came to be in exclusive possession of the lands; and he got his name entered in the revenue record, asserting that he had title to the suit lands. He represented along with defendant No. 8 that he could sell the property to defendants Nos. 1 to 3; and relying on this representation, the defendants obtained the sale deed and possession of the suit lands immediately.
10. It was further averred that thereafter the original owner Kishan Appaji Gawraskar filed Suit No. 299/1 of 1953-54, in the court of the Munsif, at Latur, for the recovery of possession of the lands against the defendants and some third person. In that suit, it was held that the lands were originally of the ownership of Gawraskar but the defendant No. 4 had acquired the title to convey the property to defendants Nos. 1 to 3, on the basis of his adverse possession for more than twelve years prior to suit, as decided finally in Regular Appeals Nos. 16 to 17 in the Court of the Assistant Judge, Osmanabad at Latur and the summary dismissal of the Second Appeal against his decisions.
11. It was submitted on behalf of the defendants Nos. 1 to 3 that having regard to the said decision which was binding on defendant No. 4, it was not open to the plaintiffs to contend that they had title and that in any event the suit was barred by time in view of the dates of birth of the plaintiffs. The dates of birth mentioned by them were denied by defendants Nos. 1 to 3; and it was contended that they had no right to file the suit as defendants Nos. 5 and 6, their brothers had not challenged the sale deed.
12. Defendants Nos. 5 to 7 supported the plaintiff's claim. Defendants Nos. 9 and 10 adopted the various contentions of defendants Nos. 1 to 3 and further pleaded that they were bona fide purchasers of the suit lands for Rs. 30,000/-from defendants Nos. 1 to 3 who disturbed their possession during the police action. Defendants Nos. 9 and 10 had filed a suit for recovery of possession and mesne profits against defendants Nos. 1 to 3 and defendant No. 4 the father of the plaintiffs. Defendant No. 4 though served remained absent and the suit was ex parte decided against him. That suit was decreed with costs throughout; and defendants Nos. 9 and 10 obtained possession of the lands in pursuance of the decree passed by this Court in Second Appeal No. 499 of 1962, on the basis of the compromise under which the decree for possession passed in their favour was confirmed.
13. It was, therefore, submitted that the plaintiffs were not entitled to challenge the sale in favour of defendants Nos. 9 and 10 who were bona fide purchasers for value without notice of the alleged claim of the plaintiffs. They too submitted that as the suit filed by Gawraskar was dismissed by the court, holding that the title of Gawraskar was extinguished due to the adverse possession of the defendant No. 4, it was not open to the plaintiffs to claim the suit lands to be their ancestral property.
14. The learned Civil Judge framed as many as 17 issues as per Exh. 67. The parties led oral and documentary evidence, on considering which, the learned Civil Judge held that the suit property was ancestral property. He found that the so called unregistered sale deed, produced at Exh. 54/3, relied upon by the plaintiffs for proving their title to the suit property was of no avail to them. He held that Kishan Gawraskar was the real owner of the suit property, but that his ownership was extinguished, as held in the suit filed by Gawraskar, by the adverse possession of defendant No. 4, under the decree dated June 28, 1954, which was passed ex parte against defendant No. 4.
15. Nevertheless he was of the view that the suit land was ancestral property in the possession of defendant No. 4, when he died, observing as follows:
'It is further a proved position that the defendant No. 4 came in possession of the property only from his father. In order that the property is ancestral it need not belong necessarily to the ancestors. In other words, it is not necessary to the party to prove with all possible details that his ancestors were really -the owners of the property. The word ancestral is not given any technical meaning. It means only the property which flows from generation to generation by succession or by survivorship. It is an admitted position or at least proved position that defendant No. 4 has not acquired the suit property. It is not the case of the defendants that defendant No. 4 purchased the property himself from somebody. The defendants have simply denied the allegations of the plaintiffs that the suit property was the ancestral property of defendant No. 4. They have said nothing about it. In order that the property should be ancestral it need not necessarily belong in the proper sense of the word to the ancestors. The property becomes ancestral as soon as a man gets it from his ancestors. It is established that the father of Defendant No. 4 was in possession of the property and it is further proved that defendant No. 4 got it from his father after his death. Therefore, the property has come to defendant No. 4 from his father and therefore it becomes ancestral property in the hands of defendant No. 4.'
16. The absence of legal necessity appears to have been considered before the learned Civil Judge. The learned Judge has observed in the course of his judgment: 'allegation (wrongly printed as alienation) of the plaintiffs that there was no legal necessity was nowhere disputed by the defendants anywhere'. He, therefore, passed the decree declaring that the sale deed Exh. 217 was bad for want of legal necessity to the extent of 2/7th share belonging to plaintiffs Nos. 1 to 3 and defendant No. 7.
17. The decree also directed that they should recover possession of that share from defendants Nos. 1 to 3 and 9 and 10 on effecting a partition of the suit property through the Collector. Osmanabad, under Section 54 of the Civil P. C.; and that they should further recover future mesne profits from the date of the judgment till actual delivery of possession from defendants Nos. 9 and 10 after instituting an enquiry under Order XX, Rule 12 (C) of the Civil P. C.
18. The learned Judge dismissed the rest of the plaintiffs' claim and ordered that plaintiffs Nos. 1 to 3 should recover from defendants Nos. 1 to 3 and 9 and 10 their 2/7th costs of the suit The said judgment and decree dated April 26, 1969 were challenged in the above First Appeal by the defendants Nos. 9 and 10 and the plaintiffs have filed their cross-Objections claiming a higher share to the extent of 4/7th more.
19. Mr. Kanade, the learned counsel appearing for the heirs of defendant No. 9 and for defendant No. 10, submitted that after having come to the conclusion that defendant No. 4 acquired title to the suit lands by adverse possession, it was incumbent on the part of the learned Civil Judge to hold that they were not ancestral properties in which plaintiffs Nos. 1 to 3 had any right by birth as coparceners.
20. The question as to what is ancestral property has been the subject-matter of many decisions; and it is well settled that the only property that can be ancestral is property inherited by a male Hindu from any one of his three immediate paternal ancestors, namely, his father, father's father and father's father's father; and the only persons who are entitled to an interest in it by birth are the sons, sons' sons, and sons' son's sons, of the inheritor. See Mulla's Principles of Hindu Law, 14th Edition, 1974, page 270 and Mayne's Treatise on Hindu Law and Usage, 11th Edition, 1950 pp. 338 and 339 para 275.
21. So far as this court was concerned, the law appears to have been settled since as far back as 1886, by Sargent C. J. and Bayley J. in Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy ILR (1886) Bom 528, where the question was whether a property acquired under a Will by 'A' was ancestral property in which A's son, grand-son and great grand-son had a right by birth. At pages 579, 580, Sargent C. J. said: 'But it was said that, even if the texts referred to in Muddun Gopal v. Ram Buksh (1866) 6 Suth WR 71, did not establish the plaintiff's right to partition, the property given to the first defendant by Nathubhoy's will was ancestral as between him and his sons; which it was said, included everything that had ever formed part of the grandfather's estate, But this broad interpretation of the term ancestral is inconsistent with the very principle upon which grandsons are said to have by birth a right in the grandfather's estate equally with the sons, viz., that they constitute a coparcenary for the due performance of sacred rites, and as such, have a common interest in the enjoyment of the grandfather's property, a principle which can have no application to property which the grandfather of his own free will, and acting ex hypothesi within his power, separated from his estate. In other words, the eon has acquired by the gift of his father a title in which the grandson has no concern, except as the possible heir when his father dies. That the Smriti writers or their commentators ever contemplated a power of disposition by a father over self-acquired property, such as the decisions of English Courts in this country have conferred on him, may well admit of a doubt.'
22. Even in the present case, it is doubtful whether the Smriti writers or their commentators had ever contemplated that property acquired by a father by adverse possession would be property which would be ancestral merely because the property was in his father's possession end continued to he in his possession after his father had died.
23. The concept of more than 12 years 'adverse possession', arising under the Law of Limitation was unknown to Dharmashastras or to Indians before the British came here though there was a lot of controversy about title following long possession. (See Dr. P.V. Kane, Hindu Dharmasastra, Vol. III, pp. 322-325). Therefore, it will be too much to assume that the concept of 'ancestral property' under the Hindu Law included the property acquired by adverse possession by a father in accordance with the modern laws of Limitation, as in the present case, The position in law is made further very clear by Sir Shadi Lal, in the judgment of the Privy Council, in Muhammad Husain Khan v. Babu Kishva Nandan Sahai , by saying, at pases 266, 267 (of Ind App): (at pp. 238, 339 of AIR), as follows:
'The rule of Hindu Law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely, his father, father's father and father's father's father, is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it. But the question raised by this appeal is whether the son acquires by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather. Now, Vijnanesvara, the author of Mitakshara, expressly limits such right by birth to an estate which is paternal or grand-paternal. It is true that Cole-brooke's translation of the 27th sloka of the first section of the first chapter of Mitakshara, which deals with inheritance, is as follows: 'It is settled point that property in the paternal or ancestral estate is by birth.' But Colebrooke apparently used the word 'ancestral' to denote grand-paternal, and did not intend to mean that in the estate which devolves upon a person from his male ancestor in the maternal line his son acquires an interest by birth, The original text of the Mitakshara shows that the word used by Vijnanesvara, which has been translated by Colebrooke as 'ancestral,' is paitamahal firkeg -which means belonging to paitamahal, firkeg -.Now, paitamahal ordinarily means father's father, and though it is sometimes used to include any paternal male ancestor of the father, it does not mean a maternal male ancestor ........................There can, therefore, be no doubt that the expression 'Ancestral estate' used by Colebrooke in translating the 27th sloka of the first section of the first chapter was intended to mean grand-paternal estate. The word 'ancestor' in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the 'ancestral' estate, in which, under the Hindu Law, a son acquires jointly with his father an interest by birth, must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line, The expression has sometimes been used in its ordinary sense, and that use has been the cause of misunderstanding.'
24. Having regard to the above well settled law, it must be held that the learned Civil Judge erred in holding that the property which defendant No. 4 had acquired by adverse possession, was ancestral property merely because his father Ramchandra and his brother Krishnarao had first possessed the property under the Mukhtiarnamas, executed by the real owner, Gawraskar, in 1902 as per Exh. 151 and a further Mukhtiarnama, executed in 1934, in favour of Krishnarao, the father of defendant No. 8; and defendant No. 4 claimed successfully adversely to the real owner Gawraskar in the letter's suit.
25. If the property inherited frommaternal grand-father is not ancestralproperty as held in Muhammad HusainKhan's case by the Privy Council, certainly the property acquired by thefather by adverse possession by dismissal of a suit filed against him by thereal owner can never be ancestral property. The only category of propertytreated as ancestral property, accordingto Hindu Law is property which is^iarkeg* that is inherited by a fatherfrom his paternal ancestor. In the present case, it is nobody's case that Ramchandra the father of defendant No, 4or defendant No. 4 inherited the suitlands from their paternal ancestors. Itmust, therefore, be held that the learned Civil Judge erred in law in decreeingthe plaintiffs' suit wrongly assuming thatthe suit property was^iarkeg* or ancestral property as the property acquired by a father by adverse possessioncan never be described as ^iarkeg* or ancestral.
26. Mr. Deshpande, the learned counsel appearing for the plaintiffs, submitted that as the possession of the suit property in plaintiffs' family started in 1902 with Krishnarao the coparcener of Ramchandra, the property became coparceneryproperty as soon as the defendant No. 4's title by adverse possession was perfected by the decree dismissing Gawraskar's suit for possession against defendants Nos. 1 to 4. This submission, in our opinion, is again based on a misconception of the nature of the coparcenary property as understood in Hindu Law.
27. It is well settled that the propertyaccording to ancient Hindu Law, maybe divided into two classes (1) jointfamily property (unobstructed orvizfrca/k and (2) separate property(obstructed or lgizfrca/k : Joint family property is either ancestral property or property jointly acquired with or without the aid of ancestral property or property acquired separately but thrown into the common stock. See Dr. P.V. Kane's History of Dharmasastra, Second Edition, Vol. III, 1973, page 576 and Mulla's Hindu Law. 16th Edition, 1974, paras. 213, 214, 218, 220 and 223.
28. It is not the case of the plaintiffs that the suit property was jointly acquired by Krishnarao or Ramchandra or defendant No. 4 and their coparceners with or without the aid of ancestral property, As stated above, it was acquired only by adverse possession by defendant No. 4 alone as a result of the decree passed in his favour in the suit filed by the real owner, Gowraskar, Such property is not included in any of the categories of ancestral property or joint family property or coparcenary property under the Hindu Law.
29. It was argued by Mr. Deshpande relying on the observations about the concept of possession in Gurucharan Singh v. Kamla Singh : 1SCR739 that the possession of Krishnarao and Ramchandra, through whom defendant No. 4 got possession, constituted the suit land as the ancestral property in the hands of defendant No. 4.
30. As already stated above, the category of 'ancestral property' is limited to the property inherited from paternal ancestors and not to such property as has been held in a suit filed by the original owner to be acquired by adverse possession of defendant No. 4 for more than 12 years before the suit. Such property would be the self-acquired property of defendant No. 4 and not the property inherited from his father Ramchandra as contended by Mr. Deshpande. Mere continuance in possession of property not owned by Ramchandra cannot be considered in law to be inherited. It was not pleaded and it was not found in the earlier litigation also that Ramchandra was in adverse possession of the property or that Ramchandra had perfected his title by adverse possession. It is clear from the two Mukhtiarnamas that Krishnarao and Ramchandra were in possession of the suit lands only as agents of the real owner. There is nothing to show that they had set up any title adverse to the real owner. Having been in possession as agents, the property could not be part of their estate which could be inherited by defendant No. 4.
31. In view of the above conclusion. It is unnecessary to consider the other arguments made by Mr. Kanade in support of the appeal viz. (1) that the suit filed by the plaintiffs was not within time; (2) that defendants Nos. 9 and 10 were bona fide purchasers for value without notice; and (3) that the remark made by the learned Civil Judge that 'the allegation of the plaintiffs that the sale was without legal necessity was not disputed,' was not correct, because the learned Judge had delivered his judgment a year after he heard the arguments as seen from the Rozanama.
32. In the result, the First Appeal is allowed with costs. The judgment and decree passed by the learned Civil Judge on April 26, 1969 are set aside and the plaintiffs' suit is dismissed with costs throughout. The cross-objections are also, therefore, dismissed with costs.
33. Appeal allowed.