Bhau v. Raghunath, ('06) ILR 30 Bom 229, 7 Bom LR 936; Bhagwanlal Chunilal v. Bai Divali, AIR 1925 Bom 445, 27 Bom LR 633; Sarubai Balakdas v. Narayandas Devdas, AIR 1943 Bom 224, ILR (1943) Bom 314; Gajanan v. Panurang, AIR 1950 Bom 178, 52 Bom LR 238 (FB); Muthukaruppa Pillai v. Sellathmmal, AIR 1915 Mad 475, ILR 39 Mad 298
(1) The property in dispute is a house, City Survey No. 292 of Somvar peth, Poona which was purchased by one Sonubai, wife of Narhari Kalbhor, by sale- deed, dated 21st May 1930, for Rs. 10,500. Sonubai had paid to the vendor Rs. 1000 before the date of the sale-deed and the balance of Rs. 9,500 was paid in the presence of the Sub- Registrar. After purchasing this house Sonubai let it out to tenants. Sonubai, it appears, was conducting a sweetmeat shop in City Survey No. 15 of Shukarawar Peth, Poona, and in the conduct of that business she was assisted by her son Baburao Narhari. Narhari- husband of Sonubai - it is claimed was living apart from Sonubai. Sonubai made and executed a will on 16th December 1943, by which she purported to appoint Ramchandra Khanderao Korhale, (the plaintiff) as her executor, and she made various devises thereby. She devised the property subtantially to her daughter and provided a legacy of Rs. 20 per month in favour of Shantabai - widow of her son Baburao. She also devised a legacy in favour of the plaintiff. Sonubai died on 28th December 1943. The plaintiff then applied to the District Court at Poona by Miscellaneous Application No. 49 of 1944 for probate of the will of Sonubai. Narhari - husband of Sonubai - contested the proceeding. By order, dated 28th September 1945, the District Court of Poona granted probate to the plaintiff of the will of Sonubai.
Even after probate was granted to the plaintiff, in whom the estate had vested by virtue of his appointment as executor under the will of Sonubai, Shantabai, (the defendant) continued to remain in occupation of the house and declined to deliver possession to the plaintiff. The plaintiff then filed suit No. 180 of 1953 in the Court of the Joint Civil Judge, Senior Divison, Poona, against the defendant, for a decree for possession of the house and for Rs. 3,500 as mesne profits for the three years prior to the date of the suit and for an order for payment of mesne profits from the date of the suit till delivery of possession and for costs the suit. It was the plaintiff's case that the house in dispute had been purchased by sonubai with her won fund, that it was her property and she was competent to make a will of which probate was granted to the plaintiff, and that the plaintiff was entitled to obtain possession of the house from the defendant who had no title thereto.
The defendant by her written statement contended inter alia that the house in dispute belonged to Sonubai's husband Narhari and it had been purchased from the joint family funds in Sonubai's name, and accordingly Sonubai had acquired no title to the house, that Sonubai was not in possession of the property, that Narhari and his son Baburao were all along in possession of the property and were managing the same, that on the death of Narhari and Baburao she - the defendant- had become the owner of the house, that Sonubai had no authority to make a will devising the house, that the defendant was in possession and management of the property as the owner and that she the defendant was receiving an income of Rs. 75 per month from the tenants occupying the house. She also contended that she was in possessio9n of the house as owner even during the life time of Sonubai and was collecting the rents from the tenants.s
The trial Judge negatived the contentions raised by the defendant and decreed the plaintiff's suit for possession and directed an inquiry into mesne profits for a period of three years prior to the date of the suit under. Order 20, Rule 12, of the Civil Procedure Code and also directed ascertainment of mesne profits from the dteof the suit under Order 20, rule 12(1) (c) of the Civil Procedure Code. Against that decree the defendant has appealed to the High Court.
(After stating the facts and, on discussion of the evidence, holding that the house in dispute belonged to Sonubai and it was acquired by her out of a fund in which Narhari and Baburao were not shown to be interested, the judgment continues as follows:)
If the house was purchased from a fund acquired by Sonubai from her sweetmeat business, the house will be regarded as stridhana other than soundayika, and the question which then falls to be determined is whether that property could in law be disposed of by Sonubai by a will without the consent of her husband. A Hindu married woman's power to dispose of her stridhana depends on the character of the Stridhan. For this purpose, stridhan is divided into two classes, (1) Saudayika and (2) other kinds of stridhan. A married woman has absolute power of disposal over her saudayika stridhan. She may dispose of it by sale, gift, will, or in any other way she pleases, without the consent of her husband. Her husband has no control over it. He cannot bind her by any dealings with it. This rule is based upon Katyayana's text.
'What a woman, either after marriage or before it, either in the mansion of her husband or of her father, receives from her lord or her parents, is called a gift from affectionate kindred; and such a gift having by them been presented through kindness, that the women possessing it may live well, is declared by law to be their absolute property; the absolute exclusive dominion of women over such a gift is perpetually celebrated; and they have power to sell or give it away as they please, even though it consist of lands and houses. Neither the husband, nor the son, nor the father, nor the brother, have power to use or to alienate the legal property of a woman'. (See Colebrooke's Digest of Hindu Law, Book V, p. 475). Stridhan other than Saudayika is subject to her husband's dominion; heis entitled to use it at his pleasure even if there be no distress, and it cannot be disposed of by a woman without her husband's consent. She cannot sell it, or make a gift of it, or bequeath it by her will, or otherwise deal with it wthout her husband's consent.
'But whatever wealth she may gain by arts, as by painting or spinning, or may receive on account of friendship from any but the kindred of her husband or her parents, her Lord alone has dominion over it; of her other property she may dispose without first obtaining his assent' ( Katyayana) Colebrook's Degest Book V 581; and the text of Vyavahara Mayukha, Ch. IV, Section X, p. 93 (Mandlik's translation):
'As for the text - 'A wife, a son, and a slave are all incapable of property. Whatever they earn, belongs to him to whom they belong', that too has reference to wealth acquired by mechanical arts and the like.................. Hence, says Manu (Ch. IX, v. 199): - 'a woman should never make any expenditure out of the family (property) belonging to several or even (out of) her own wealth without the assent of her husband.'
(2) The rule is, however, subject to an exception, that where the husband and wife have drifted apart and the wife is not under the control of her husband, she is regarded as competent to dispose of her non-Saudayika stridhan without the assent of her husband. In Bhagvanlal Chunilal v. Bai Divali 27 Bom LR 633 : AIR 1925 Bom 445 a Division Bench of this Court held that a Hindu wife, who had lived apart from her husband for nearly 30 or 40 years, was competent to dispose of by will the property which she had inherited from her father, without the consent of her husband. Sir Norman Macleod, C. J., who delivered the judgment of the Court in that case, held that the husband and wife in that case had lived apart for many years and the husband had lost al rights of control over the wife so as to lose also the right to validate any disposition which she might make by will of property inherited by her from hr paternal relations. He then observed:
'We think this decision is in consonance with the views which would prevail at the present day in the community'.
(3) In the present case, the evidence of the plaintiff and of Nikam shows that Sonubai was living apart from her husband Narhari for about 35 years before her death. That evidence is supported by the admission made by the defendant that the grainration card was obtained in the name of Sonubai as the head of the family and not in the name of Narhari, and by the evidence of Godse, the photographer, who has stated that Narhari was not staying with Sonubai in 15, Shukrawar Peth, and that he had not seen him, and also by the recitals made in the will made by Sonubai in first Paragraph of which it is recited that Narhari was addicted to vices and thirty or thirty-five years before the date of the will on account of incompatibility of temperament the testatrix had separated from Narhari and had never lived with him thereafter, and that she herself had by starting a sweetmeat shop acquired the property devised thereby.
(4) Mr. Bal contends that the evidence of the plaintiff is interested evidence and that of Nikam whois an insolvent is unreliable. Mr. Bal says that it was possible for the plaintiff to prove, it Narhari was staying apart from Sonubai, that he was paying rent for occupation of the premises in which it is alleged he resided but the plaintiff has not led tht evidence. It is urged that the trial Judge was in error in relying upon the story of Godse that he had never seen Narhari living with Sonubai which was related by the witness in answer to the Courts' question after the re-examination of the witness was conducted and the defendant had no opportunity to cross-examine the witness on the truth of the assertion made by him. Mr. Bal also submitted that the recitals made in the will by Sonubai must have been made at the instance of the plaintiff and under the advice from some lawyer who prepared the will in the light of Bhagwanlal Chunilal's case 27 Bom LR 633: AIR 1925 Bom 445. He also relies upon the evidence of one Datar and contends that Narhari and Sonubai were living together and Sonubai was 'under coverture' at the time when she made the will. and accordingly the will was inffective, Narhari not having assented to the dispositions contained therein.
(5) It is true that the plaintiff may be regarded as interested in the will because he himself is a devisee. Nikam has admitted that he was adjudicated an insolvent. But on that account we are unable to hold that his testimony is unreliable. The witness, it appears, has written the accounts of the business conducted by Sonubai for 24 years and those account books were produced in the trial Court. The entries in the books of account relate to th business of the shop and the house which was purchased in the name of Sonubai. The story of the witness that he had occasion to meet Sonubai almost every day appears to he true. It is not suggested that this witness was interested in the subject-matter of the suit and we see no reason to disbelieve his testimony when he says that Sonubai and her husband Narhari were living apart for many years.
(6) Even apart from this testimony, the recital in Sonubai's will that Narhari was addicted to vices and that on that account she had been leaving apart from him for 30 or 35 years has strong probative value. If Sonubai was living with Narhari, there was no reason for her to make this false recital lin the will. We are unable to agree with the contention that relying upon the decision in Bhagvanlal Chunilal's case some lawyer advised that in order to enable sonubai to make a will of her property she had to allege that she was living apart from her husband for many years prior to the date of execution of the will, and with a view to make that recital effective the plaintiff persuaded sonubai to maake a false recital that Narhari was addicted to vices and on that account Sonubai was living apart from him. If Sonubai, who was aged 65 years at the time of her will, had been living happily with her husband Narhari, and even if she was minded to dispose of the property in favour of the plaintiff and her daughter, there was no reason why she should be willing to make a false reital in the will and add thereto that her husband Narhari was addicted to vices and on that account she was living apart from her husband.
(7) Witness Datar, who was a mortgagee of houses Nos. 14 and 15 in shukrawar Peth in one of which Sonubai resided, has it is true stated that Narhari was living with Sonubai till 1938. The learned trial Judge who saw the witness in the witness-box has criticised the testimony of this withness and observed that his story was a 'most shabby story' and he has given good reasons for discarding the testimony of this witness. The witness stated that when the house was morgaged with possession before 1910 the management was with his father Dattatraya and after the death of his father in 1910, the management devolved upon Ramchandra Narayan - brother of the witness - who died in 1925 and since 1925 he, the witness. was managing the property till 1938 when it was redeemed. The witess also stated that about the year 1925 he had been told by Narihari that rent receipts in respect of the premises occupied by Sonubai in the house under mortgage should be made out in the name of Sonubai and not in his name. and that accordingly the rent receipts were so made out. In cross-examination the witness admitted that he started manging the house some timein 1927-28 and that he had no personal knowledge about any earlier period. That evidently shows that his story that Narhari had told him that the rent receipts should be made out in the name of Sonubai cannot be true. The witness was shown a photograph in his cross-examination and he was able to identify Sonubai sitting at the counter of her shop but he was unable to say whether Narhari or his son Baburao were in the photograph. If, as the witness pretends, he was familiar with narhari and his son Baburao. it would not have been difficult for him to identify from the photograph, which icludes a large number of persons, Baburao who, it is conceded. was actually in the photograph, and to state that Narhari was not in the photograph. The non-comment,that the witness did not know Narhari and Baburao. The witness has not produced his books of account on the pretext that they had been destroyed in 1948. Admittedly the witness carries on the business of moneylending and it is difficult to accept the story that he had destroyed his books of account. He is unable to say who the other tenants residing in the house were. His memory with regard to several matters other than the one fact which he came to depose before the Court, viz., that Sonubai and Narhari were living together, appears to be extremely vague. The learned trial Judge who saw the withness and head his testimony was not satisfied with the testimony, and sitting in appeal we are unable to disagree with the appreciaion of the evidence of thiswitness by the learned trial judge.
(8) On the evidence which we have already referred to there can be no doubt that Sonubai and Narhari were living apart for many years prior to the date of Sonubai's will. Once we reach that conclusion, there is no reason why the recital made by Sonubai in the will that for more than thirty years prior to the date of the will she had been living apart because her husband Narhari was addicted to vices may not be accepted as true.
(9) Mr. Bl contends that in Sarubai Balakdas v. Narayandas Devas Sir John Beaumont, C. J., differed from the principle of 27 Bom LR 638 : AIR 1925 Bom 445 and we may accept the view in the latter case as a correct exposition of the law. In Sarubai's case, on account of quarrels the plaintiff and his wife had lived apart for some twenty or twenty-five years. The plaintiff was living in a temple which belonged to him and the wife also resided in the same temple but in a separate room. The wife made a will a few days before her death and left her non-saudayika stridhana to her niece. After the death of the wife, a suit for a declaration of the title of the plaintiff to the property was filed, on the plea that the wife was not competent to dispose of the property as she had not obtained the plaintiff's consent before making the will. On these facts, in second appeal the larned Chief Justice held confirming the decree of theDistrict Court, that the testatrix must be presumed to be 'under coverture' when she made the will and she had no power to dispose of the property without the consent of her husband. Beaumont, C. J., observed. after referring to Bhau v. Raghunath ILR 30 Bom 229, that
'the rule is expressed to apply to a woman under coverture, which is the expression used in the translation of the texts, and I must assume that the translations are accurate. The word 'coverture' under the English Law is synonymous with marriage and a woman under coverture is simply a married woman ........ In English law a woman does not cease to be under coverture because she ceased to live with her husband'.
Our attention has, however, not been invited to any text which can approximately be regarded as paraphrased by the rule stated by the learned Chief Justice. It is true that Jenkins, C. J., in Bhau's case ILR 30 Bom 229 (which it may incidentally be observed was on the question expressly decided thereby was overruled in Gajanan v. Pandurang, (FB), after setting out Nilkanth Bhatt's text in the Vyavahara Mayukha, observed at page 238:
This passage clearly indicates that, except as to the kind shown as saudayika, a woman's power of disposal over her stridhan is during coverture subject to her husband's consent'.
But it would be unduly exalting the dictum of Sir Lawrence Jenkins to hold that by using the expression 'during coverture' it was intended to convey that so long as the marriage tie subsisted the power of disposal ofa Hindu woman over her stridhanwas inexorably subject to her husband's consent.
(10) The reason of the rule why non-saudayika stridhan is subject to the control of the husband is as stated by Seshagiri Ayyar, J. in Muthukaruppa Pilla v. Sellathammal. ILR 39 Mad 29 : AIR 1915 Mad 475 as follows:
There is, however, an exception as regards gifts from strangers nt given at the nupital fire or during the marriage procession, and acquisitions made by means of mechanical arts by a married woman. They are subject to the control of the husband because the spirit of the Hindu Law is against a married woman receiving gifts from strangers except at the time of marriage or frommaking acquisitions during coverture as she is excepted to gave her time and attention solely to the welfare of her husband and children and to the management of the sousehold affairs'.
Where a married Hindu woman is on account of incompatibility of temperament or other causes separated from her husband and the marital home is broken up, we are unable to appreciate why the wife should, before making an effective disposition of her property, be require to obtain the assent of her husband who is separated from her. The texts relating to the powers of Hindu woman over their stridhan property were evolved at a period when the law-givers proclaimed the perpetual tutalage of woman (Manu IX 3) and as a necessary corollary thereto enjoined frugality in enjoyment of property held by them (Colebrook's Digest of Hindu Law, Book V, p. 477) and placed restrictions upon disposal thereof Vyavhara Mayukha, ch. IV, Section 8 pl. 3). At the time when the sages propounded the Law, there was very little property a Hindu oman could possess and the society did not countenance a woman living apart from her husband. If in the context of that social order the law-givers ordained that stridhan other than saudayika cannot be disposed of by a Hindu woman without her husband's assent, that rule cannot, in our judgment, be made applicable to the Hindu society in the present days. We are unable to hold that the Hindu Law is so static or so inelastic that in interpreting the texts the Courts are powerless to mould it to meet situations not contemplated at the time when it was declared and in the light of the consciousness of the society. If, having regard to the conditions prevailing many centuries ago, the rule was laid down by the law-givers that a Hindu married woman was not competent to dispose of her non-saudyka stridhana without the consent of her husband in the contedxt of a society which did not contemplate separate of a society which did not contemplate separate residence of a Hindu woman from her husband, we will not in the present days be justified in holding, in a society which favours emancipation of woman and does not look with disfavour upon a married woman for sufficient cause living apart from her husband, that even after the marital home is broken up the wife is still liable, before disposing of property acquired by her own exertions and of which she is the absolute owner, to obtain the assent of her husband. We are of the view that when a Hindu husband. We are of the view that when a Hindu husband and wife have drifted apart and the marita home is broken up, the husband not only loses conirol over the wife but also loses control over the non-saudayika stridhan of the wife.
(11) We may observe that in Sarubai's case from the facts found proved it appeared that the husband had not lost all control over the wife. They were living under the same rook and the husband had even control over the residence of the wife. Sir John Beaumont C. J. in Sarubai's case did not, and could not, say that the principle of the judgment in Bhagvanlal Chaunilal's case was incorrect; and with great respect, we regard the view expressed in Bhagvanlal Chunilal's case as consistent with the notions of the present-day Hindu society.
(Rest of the Judgment is not material for reporting.)
(12) Appeal dismissed.