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Meghaji Mohanji Thakkar Vs. Anant Pandurang Chhatre - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1008 of 1941
Judge
Reported in(1948)50BOMLR274
AppellantMeghaji Mohanji Thakkar
RespondentAnant Pandurang Chhatre
DispositionAppeal dismissed
Excerpt:
.....father's separated deceased brother's son,;that both the claimants were entitled to succeed to her stridhan property in equal shares.;jagubhai v. kesarlal (1924) i.l.r. 49 bom. 282 : s.c. 27 bom. l.r. 226, followed.;tukaram v. narayan ramchandra (1911) i.l.r. 36 bom. 339 : s.c. 14 bom. l.r. 89, f.b., chandika bakhsh v. muna kuar (1902) l.r. 29 i.a. 70 : s.c. 4 bom. l.r. 376, haribhai gulab v. mathur lallu (1923) i.l.r. 47 bom. 940 : s.c. 25 bom. l.r. 929, manilal rewadat v. bai rewa (1892) i.l.r. 17 bom. 758, 763, 764, gojabai v. shrimant shahajirao maloji raje bhosle (1892) i.l.r. 17 bom. 114, and jotiram dalsukhram v. bai diwali (1938) 41 bom. l.r. 239, referred to.;the plaintiff's right to maintain a suit for a declaratory decree is not affected, under the proviso to section 42 of the..........bringing a suit for partition. the defendant contended that anna was the sole heir to ahilya's stridhan property, that the plaintiff had no interest in the property in suit and that anna had in any event acquired title to the entire property by his adverse possession for more than twelve years after ahilya's death. both the courts below held that ahilya died in 1926 and as this suit was filed in september, 1937, that is to say within twelve years after ahilya's death, the defence that anna acquired title by adverse possession for over 12 years was not sustainable and that contention is not pressed in this court. it was further held that both the plaintiff and anna were the heirs of ahilya and declared that the plaintiff was the owner of an undivided one-half share in the property in.....
Judgment:

Lokur, J.

1. This second appeal raises an important question regarding succession to the stridhan of a maiden governed by Vyavahara Mayukha, the competing claimants being her father's brother and the son of her father's predecessor. The facts are not disputed. The property in suit belonged to one Vishnu who bequeathed it to his daughter's daughter Ahilya. On Vishnu's death the property devolved on Ahilya and she died unmarried, leaving behind her her father's brother Anna and her father's deceased brother's son Anant. Anna and Anant were already separated, and after Ahilya's death, Anna took possession of her property and paid its Municipal and other taxes. In execution of a decree against Anna the property was sold and was purchased by the defendant at the auction sale on March 30,1937. Before the defendant took possession of the property as the auction purchaser, Anant filed this suit on the basis that he and Anna were both the heirs of Ahilya, that he had a half share in the property in suit and that the defendant had not become the owner of the entire property by his auction purchase. He, therefore, prayed for a declaration that he was the owner of half the property and for an injunction restraining the defendant from taking possession of the property without bringing a suit for partition. The defendant contended that Anna was the sole heir to Ahilya's stridhan property, that the plaintiff had no interest in the property in suit and that Anna had in any event acquired title to the entire property by his adverse possession for more than twelve years after Ahilya's death. Both the Courts below held that Ahilya died in 1926 and as this suit was filed in September, 1937, that is to say within twelve years after Ahilya's death, the defence that Anna acquired title by adverse possession for over 12 years was not sustainable and that contention is not pressed in this Court. It was further held that both the plaintiff and Anna were the heirs of Ahilya and declared that the plaintiff was the owner of an undivided one-half share in the property in suit. But the defendant having taken possession of the property during the pendency of the suit, the plaintiff's claim for an injunction was rejected. It was contended for the defendant that the plaintiff was bound to amend his plaint by asking for possession after the defendant took possession of the property, and as he failed to do so, his suit, which thereafter became a suit for a mere declaration, was not maintainable under the proviso to Section 42 of the Specific Relief Act. That contention did not find favour with the trial Court and a mere declaratory decree was passed, and it was confirmed in appeal. Both the contentions are urged on behalf of the defendant in this Court.

2. The question of inheritance to the stridhan of a Hindu maiden was considered by this Court in Tukaram v. Narayan Ramchandra I.L.R. (1911) 36 Bom. 339 and it was held there that in default of either brother, mother or father, the heir to her stridhan was her father's nearest sapinda. That rule was held to rest on the ground that a Hindu maiden, dying without leaving a brother, mother or father as heir, must be treated, for the purposes of succession to her stridhan, as a woman married according to one of the unapproved rites, and dying childless. In the case of such a woman, according to the Mitakshara, her stridhan is inherited, in default of a brother, mother or father, by her father's nearest sapinda (tatpratyasannah). It is admitted in this case that succession to Ahilya's property is governed by the Mayukha law and in the Vyavahara Mayukha Nilakantha has explained the expression 'tatpratyasannah' as meaning 'her nearest sapinda through (dwara) her father'. Mr Dharap argues from this that for the purpose of determining the heirs to the stridhan of a maiden dying without leaving a brother, mother or father, according to the Mitakshara, her father has to be regarded as the propositus, while, according to the Mayukha, the woman herself is the proposita, and though the heir is to be found among the sapindas of her father, he who is nearest to her in propinquity is to be preferred to one more remote. If the father be treated as the propositus, then according to the Mayukha law, the son of his deceased brother shares equally along with his surviving brother (Chandika Bakhsh v. Muna Kuar (1902) L.R. 29 IndAp 70 .This is apparently in conflict with the fundamental rule of succession laid down by Manu that 'the wealth of the deceased shall belong to his nearest sapinda.' But as Lord Macnaghten says. in Chandika Bakhsh v. Muna Kuar it may well be that the rule was in force in earlier times, and on this point the Mayukha only embodied and defined a preexisting custom. But as held in Haribhai Gulab v. Mathur Lallu I.L.R. (1928) 47 Bom. 940 this exception is not to be extended beyond brothers and brothers' sons, since even the Vyavahara Mayukha has laid down the rule that 'all the Sapindas and the Samanodakas follow in the order of propinquity'. It is, therefore, contended that this exception would not be of any avail to the plaintiff, if Ahilya herself be regarded as the proposita for the purpose of determining her heirs. In that case, when once a list of her father's sapindas is made, whoever is nearest to her in propinquity, viz. her father's brother, would succeed to her stridhan in preference to the plaintiff who is. one degree more remote. This view, which was considered by Telang J. in Manilal Rewadat v. Bai Rewa I.L.R. (1892) 17 Bom. 758 has been discussed at length by Chandavarkar J. in the full bench case of Tukaram v. Narayan Ramchandra I.L.R. (1911) 36 Bom. 339 . After combating the contention that there is a difference of opinion between the Mitakshara and the Mayukha on the point, Chandavarkar J. has thus summed up his conclusions (p. 358):

Therefore, to make his explanation more emphatic and free from all ambiguity, Nilakantha further explains that we must seek the nearest sapinda of the woman in her husband's or father's hula or family by entering that family with the husband or the father as the dwara, which means door or way. This word dwara conveys here a sense stronger than the English word 'through'. This is not the only place where Nilakantha uses this metaphorical expression,. For instance, he defines daya (joint divisible estate) as that species of property 'which has come from the father or mother as the dwara or door'. Dwara, therefore, indicates the stock, the source.

3. In Gojabai v. Shrimant Shahajirao Maloji Raje Bhosle I.L.R. (1892) 17 Bom. 114 Telang J. observed (p. 118): 'The wife having, by her marriage, been 'born again in the husband's family', and having become 'half the body of the husband', the sapindas of the husband necessarily become her sapindas, and their degrees of propinquity to the husband and wife must be held to be identical.

4. In this way as regards the succession to the stridhan of a woman married in an approved form, the rule laid down by the Mitakshara becomes in effect the same as the explanation given by the Mayukha. Both agree and mean the same thing. Applying to this rule the canon of construction known as the law of 'the loaf and the staff', Chandavarkar J. says in Tukaram's case (p. 856):.if in the principal case of marriage, the wife's sapindas are the same 'as the husband's without distinction, the same must have been intended as between a daughter and her father also.... If dwara and kula mean the identical heirs for husband and wife, they must mean that also for father and daughter.

5. On this principle the stridhan of a Hindu maiden was held in that case to devolve upon her father's sister in preference to her male gotraja sapindas five or six degrees removed.

6. In Jotiram Dalsukhram v. Bai Diwali (1938) 41 Bom. L.R. 239 it was held that according to the Vyavahara Mayukha the technical stridhan of a woman, married in an approved form of marriage, descended on her death to her husband and his nearest sapindas in preference to her father and his nearest sapindas, while the technical stridhan of a widow governed by the Vyavahara Mayukha, who was married in an unapproved form and died childless, went, on her death, to her brother's son in preference to her sister. In repelling the contention that the widow herself should be regarded as the proposita, Wassoodew J. observed (p. 247):

We have...to decide the contest by reference to the nearness of the claimant to the father of the woman... The argument of Mr. Thakor assumes that the woman should be regarded as a proposita independent of her father. But the theory of merger has been recognised by the full bench in Tukaram's case according to which 'the father is brought in as taking the place which the husband would have taken, if the marriage had been in one of the approved or principal forms.' The rule of merger must prevail as against the normal rule of propinquity which would be applicable only on the assumption that the woman is an independent proposita who she is not.

7. At the top of p. 247, however, Wassoodew J. appears to have agreed in the view expressed by M. M. P. V. Kane in his treatise on the Vyavahara Mauykha on the explanation of Nilakantha (p. 299):

That explanation distinctly makes the woman the proposita and says that the heir is to be found through the husband or father as the door. Therefore the Mitakshara and the Mayukha refer to the same heirs and there is really no conflict between the two.

8. But ultimately he seems to have come to the conclusion that the woman is not to be regarded as an independent proposita and that the rule of merger must prevail as against the normal rule of propinquity. In that case the deceased woman was held to have been married in one of the approved forms and it was unnecessary to discuss who would have been the heirs to her stridhan had she been married in an unapproved form. But as the contention that her marriage was in an approved form prevailed, Macklin J. preferred to express no opinion on that question. Yet the remarks of Wassoodew J., though obiter, are illuminating and helpful in appreciating the decision of the full bench in Tukaram's case. I am inclined to think, however, that so far as the question arising in the present case is concerned, I am bound by the answer given to that question by a division bench of this Court in Jagubhai v. Kesarlal I.L.R. (1924) 49 Bom. 282 . There one Himatlal died issueless bequeathing his property to his wife Chaturba whom he had married in an approved form. On her death the claimants to her stridhan property were her husband's brother Hiralal and his nephews. Fawcett J. observed (p. 285):.the marriage between Himatlal and Chaturba being presumably in an approved form, and Chaturba having died leaving no issue, her stridhan inherited from her husband goes to his, and not her, heirs. There is no dispute on this point. The sole question, therefore, before us is whether Hiralal was entitled to succeed to Chaturba's stridhan alone, or whether the nephews, being sons of predeceased brothers, are entitled to share along with plaintiff No. 1.

9. In answer to this question it was held that both Hiralal and his nephews were entitled to share his property. Had Chaturba herself been regarded as the proposita,. Hiralal alone would have been her heir, as his nephews, though her & sapindas, would be one degree more remote. But Hiralal was deemed to be the propositus, as Chaturba was merged in him and so his heirs were held to be the heirs to her stridhan property. By parity of reasoning both Anna and Anant must be held to have succeeded to Ahilya's stridhan as she was married in an approved form and as they are both her father's heirs under the Mayukha Law. The plaintiff is, therefore, entitled to a half share in the property in suit.

10. On the second question, it is not disputed that Anna was in possession of the entire property when the suit was filed, and, therefore, the plaintiff could not claim to recover its possession or his share in it from the defendant. He, therefore, asked for a declaration of his title to half the property and for an injunction restraining the defendant from recovering possession of the entire property without suing for partition. The suit as framed was, therefore, maintainable when it was filed. But during the pendency of the suit the defendant recovered possession of the entire property from Anna. It is, therefore, contended that the plaintiff's prayer for the injunction became useless and the suit remained one for a bare declaration. The consequential relief, viz. recovery of possession or partition could have been prayed for by an amendment in the plaint. As this was not done till the decree was passed, it is contended that the suit was bad under the proviso to Section 42 of the Specific Relief Act and should have been dismissed. This very question arose in Hurmat Ali Shah v. Tufail Mohammad I.L.R. (1934) Lah. 729 where it was held that the plaintiff's right to maintain a suit for a declaratory decree is not affected by the fact that during the pendency of the suit the right to possession had also accrued to him. The same view was taken in Sarada Prosad v. Rai Mohant : AIR1925Cal819 . The ordinary rule is that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. But as held in Krishnaji v. Motilal (1928) 31 Bom. L.R. 476 the Court is bound to take notice of events that had happened since the institution of the suit and to mould its decree according to the circumstances as they stood at the time the decree was made. This does not mean that the suit which was maintainable at the institution of the suit becomes bad by reason of the subsequent event which required the moulding of the decree in a manner appropriate to the altered circumstances. After considering several decisions Mookerjee J. came to this conclusion in Nun Mian v. Ambica Singh I.L.R. (1916) 44 Cal. 47

Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application, and in a long. series of decisions ,. the doctrine has been recognised that there are cases where it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.

11. In this case the trial Court has taken into consideration the altered circumstances resulting from the defendant's taking possession of the property after the institution of the suit and, therefore, has not granted the relief of an injunction against the defendants and has rightly confined its decree to a declaration of the plaintiff's title to half the property. It will be open to the plaintiff to seek his remedy to recover his share by partition, but the decree as framed by the trial Court is appropriate.

12. The appeal is, therefore, dismissed with costs.


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