R.A. Masodkar, J.
1. This is an appeal of the original plaintiff, who filed the suit on the basis of agreement of sale (Exhibit 55) of January 17, 1963, seeking specific performance thereof and also praying for relief of declaration that the judgment and decree (Exhibits 38 and 39) of July 10, 1962 in Regular Civil Suit No. 50 of 1962, obtained earlier, be declared to be collusive and as such not binding. The suit agreement is admittedly executed by defendant No. 1 Baburao. The judgment and decree which was questioned was obtained by defendant No. 2 Parwatibai against defendant No. 1 Baburao.
2. The case of the plaintiff had been that Baburao was the owner of the property, being the suit house which was purchased by his father Dagadu under a registered deed of purchase of May 4, 1933 (Exhibit 50). After Dagadu's death, which occurred in July 1942, Baburao became the sole owner of the property. He had under Exhibit 56 initially agreed to convey this property to one Rajaram (P.W. 2), for a consideration of Rs. 9,000/- and had received an earnest money of Rs. 2,000/-. After cancelling that agreement, the suit agreement was entered into for a consideration of Rs.10,000/- and Baburao received Rs. 2500/- as earnest money, out of which 2000/- were paid to Rajaram whose agreement was duly cancelled. In spite of the fact that the plaintiff was ready and willing to perform his part, Baburao was avoiding the same. With regard to the decree obtained by Parwatibai against Baburao, it was the case of the plaintiff that it was all collusive and was obtained with a view to shield the property.
3. At Exhibits 20 and 21 are the written statements of Baburao and Parwatibai. Briefly stated, these written statements disclaimed the plaintiff's assertion. Even Baburao's written statement asserts that the suit house was the joint property of his father Dagadu and Parwatibai's husband Shankarrao, Dagadu's brother. It is further stated that Dagadu before his death had directed that Parwatibai should be maintained and further that the half share of Parwatibai in the suit house was got recorded the City Survey Record as per the wish of Dagadu. It was asserted that defendant No. 1 was incurring loans for his own vices and, therefore, Parwatibai instituted a suit for the purpose of partition which was not filed in collusion and it was then stated that defendant No. 2 took out Darkhast proceedings and attached the undivided half share in the house and when defendant No. 1 engaged one Zulal B. Patil, Pleader, in the matter, it was that Pleader who by practising fraud and holding out false representations with regard to the Darkhast got executed the suit agreement. The said agreement, therefore, was not binding. It was further stated that under that agreement only Rs. 200/- were paid and in spite of demand on the said Pleader Patil, the further amounts were not paid. It was asserted that the decree obtained by Parwatibai was valid and binding.
4. Parwatibai's written statement asserts that the house property was not exclusively owned by Baburao. Her husband Shankarrao was running the business of motors for about 14 to 15 years prior to his death and had earned lot of profits, while Dagadu merely a fee clerk and earned very little income and was not even able to maintain himself. They were living in joint family and from the profits earned in the business of motors, her husband Shankarrao purchased the suit house. As Dagadu was elder to Shankarrao the house was purchased in the name of Dagdu. Her husband Shankarrao died in the suit house. At the time of his death, he had left three motors (passenger service) owned by him. He had similarly left properties in the form of several ornaments of silver and gold. He had also a gold waist chain, rings and buttons. All those ornaments were purchased by Shankarrao from his business profits. All this property was with defendant No. 2 Parwatibai and after the death of Shankarrao, monies were ralised by sale of ornaments to the tune of Rs. 7000/- to Rs. 8000/- from which the dilapidated suit house was reconstructed. Dagadu, who died in 1942, before his death had told the wife and defendant No. 1 that one-half share in the property should be given to defendant No. 2 Parwatibai and, accordingly, one-half share was entered in the name of defendant No. 2 Parwatibai. It was further asserted that the value of the suit house was Rs 20,000/- and not Rs. 10,000/- in paragraph 9 of her written statement of Parwatibai has asserted that the assertion the Dagadu acquired the property was wrong. So also exclusive ownership of defendant No. 1 Baburao was denied. Defendant No. 1, according to the written statement of Parwatibai, was addicted to vices like womanizing and drinking and, for the purpose, had sold even the household articles and, therefore, Suit No. 50 of 1962 was filed and the decree in that suit was not taken in collusion and as such was binding. It was further stated that under section 141(1) of the Hindu Succession Act, defendant No. 2 became the absolute owner to the extent of undivided half share.
5. On the basis of these pleadings, the parties went to trial, the plaintiff examining as many as six witnesses, including Pleader Patil, while both the defendants examining themselves only as their own witnesses. The trial Court found in favour of the plaintiff, holding that the decree obtained by Parwatibai in Suit No. 50 of 1962 was collusive and as such not binding, Parwatibai had no interest in the property and the decree would not confer any right on her, the suit property was of the sole ownership of defendant No. 1, the suit house was acquired with the joint family funds belonging to defendant No. 1's father and defendant No. 2's husband, but the house was built from the funds belonging to defendant No. 1's father, the case that Dagadu had acknowledged Parwatibai's half share was not established and was in fact futile and a mere entry in the City Survey Record (Exhibit 36) does not confer any right on Parwatibai. The trial Court also held that the suit agreement was not obtained by any fraud and misrepresentation and was a valid agreement, under which Rs. 2,500/- as earnest money were paid and received by the parties. Avoiding the former decree, therefore, the trial Court decreed the claim for specific performance and directed execution of the sale-deed of the suit property in favour of the plaintiff upon the deposit of the balance of consideration. Against that judgment and decree, First Appeal No. 651 of 1966 was filed in this Court by Parwatibai alone. By the impugned judgment, the said appeal was allowed, holding that the earlier suit filed by Parwatibai was not collusive and the decree made could not be avoided and in view of the provisions of section 14(1) of the Hindu Succession Act, Parwatibai would become the full owner of her share in the property and the suit against dependent No. 2 Parwatibai was liable to be dismissed and, therefore, it was liable to be dismissed against defendant No. 1 Baburao, Accordingly, the appeal was allowed, the judgment and decree of the trial Court was entirely set aside and the plaintiff's suit dismissed with costs.
6. It is pertinent to observe, as was contended for the appellant, that the impugned judgment in the first appeal proceeds mainly on the footing that the earlier decree was binding and further proceeds to apply the provisions of section 14(1) of the Hindu Succession Act without taking into account the respective pleas raised in defence and the evidence tendered by the parties. That has obviously introduced an infirmity in the judgment under appeal and we will have to refer to the evidence tendered by the parties to find out whether the case set out in their pleadings has or has not been established.
7. For the purpose of the present appeal and as the evidence stands, few facts are not in dispute, though they were stated to the contrary in the written statements to which we have made somewhat detailed reference. Sakharam had two sons by name Dagadu and Shankarrao. Parwatibai is the wife of Shankarrao. Shankarrao died in the year 1931. Dagadu had his wife by name Laxmibai. Dagadu died in the year 1942, while Laxmibai died in the year 1944. Baburao, defendant No. 1, was their son. Baburao died during the pendency of the first appeal on June 19, 1968. In relations to Baburao, Parwatibai is paternal aunt, that is, the father's brother's widow. To this relationship we will have to make a reference a little later for deciding the question whether after the death of Baburao, Parwatibai had any legal capacity to be the legal representative representing Baburao's interest in the suit cause. Turning to the admitted facts again, it is not in dispute that the suit house was purchased by Dagadu, two years after the death of Shankarrao, that is on May, 4, 1933 vide Exhibit 50. It was Dagadu who mortgaged during his lifetime the suit house under deeds of mortgage produced at Exhibit 47 of date October 5, 1934 and at Exhibit 48 of date May 20, 1936. In both these mortgage deeds, Dagadu has declared that the property was of his ownership. Dagadu was by profession a fee clerk in Court. There is no documentary evidence with regard to the profession followed by Shankarrao. There is no documentary evidence with regard to the so-called earnings of Shankarrao or the so-called business of Shankarrao with regard to the motor vehicles or any gold or silver. About the earning capacity of Shankarrao, except the assertion of Parwatibai, it is not in dispute that no other evidence has been tendered. Under Exhibit 36, which is a City Survey Record, after the death of Dagadu in July 1942, Parwatibai's name has been shown along with Baburao upon an application made by Baburao's mother Laxmibai.
8. After setting out these undisputed facts, we have to first dispose of the legal submission advanced on behalf of the appellant that after the death of Baburao during the pendency of the first appeal, the entire appeal had abated and the judgment rendered by the learned Single Judge of this Court is void. This argument is met by the submission that Parwatibai being the paternal aunt of Baburao was on record and, therefore, the appeal would not abate and more inadvertant omission to bring the fact of death on record and omitting the name of Baburao would not render the judgment of the learned Single Judge as void. We may state that considerable arguments were advanced as to whether paternal aunt could succeed under the provisions of the Hindu Succession Act to the interest of the propositus like Baburao. In this regard, the abate is raised on the basis that she does not fall within the definition of agnate or cognate and is not a person of heirs of Class I and Class II specificed under section 8 of the Hindu Succession Act. It is submitted that the term 'agnate' having been defined only takes in relatives 'by' 'blood' or in other words, those who are biologically or genetically related to each other and not those who are related by marriage in the family. Therefore, the submission is that whatever may be the position of law before the Act was made by the Parliament, the female like Parwatibai who gets related to the father's brother could not be an agnate within the contemplation of section 3(1)(a) of the Act.
9. Giving careful consideration to various facts of law and the position of a widow that becomes a kinsmaid in a Hindu family by marriage, we find it difficult to accede to the submission that the definition as enacted in section 3(1)(a) should be so interpreted so as to exclude a relative of the type like paternal aunt. No doubt, the provisions of the Hindu Succession Act were meant to codify the law relating to intestate succession among the Hindus and to achieve uniformity and certainty about various otherwise nebulous and shifting matters. Need to have legislation doing away and dispelling all uncertainties has, however, to be understood against the backdrop of the existing interpretative system of personal law. It would not be appropriate to being with any legislative premise that the term 'related by blood' has been introduced in any narrow sense. Effort will have to be made to reach its applicative connotation. Before we closely examine the contemplation of the word 'agnate', we may indicate that as far as Mitakshara law applicable to Bombay School was concerned, position of the paternal aunt was that of the recognised heir, she being the Gotroja-sapinda. See Lallubhai Bapubhai and others v. Mankuvarbai and others, I.L.R. Bom 388 , affirmed in Lallubhai Bapubhai and others v. Cassibai others, I.L.R. Bom P C 110 and followed in Rachava v. Kalingapa, I.L.R.16 Bom 716, and Kashibai v. Moreshvar Raghunath, I.L.R. 35 Bom 389; and also Raghunath v. Lakshmibai, 37 BomLR 150; and Pranjivan v. Bai Bhikhi, 23 BomLR. 553.
10. In Lallubhai Bapubhai's case (supra), the Privy Council observed that by the Hindu Law in force in Western India the widow of a collateral relation, although she is not specified in the texts among the heirs to members of the husband's family, may come into the succession as one of the classes of gotraja sapindas of that family. The right to inherit in the classes of gotraja sapindas is to be determined by family relationship, or the community of corporal particles, and not only by the capacity of performing funeral rites. The principle of the general incapacity of women for inheritance did not stand in the way of the widow's claim subject, however, to the fact being established that she is the gotraja sapinda of her husband's family. It was further stated that as a result of the marriage, the wife enters the gotra of her husband, and in some sense becomes a sapinda of his family. As to the concept of sapinda it was approval observed that the doctrine depended upon community of corporal particles, and not upon the presentation of funeral offerings to the pitria.
11. Thus, the capacity of the widow and also of the paternal aunt (cases supra) has been founded on distinct principles flowing from the interpretation of the texts governing the personal law of Hindus, being entry into kinship or gotra and partaking into the corporal particles. Both these were the resultants of the union brought about by marriage into family. Effect of a Hindu marriage which brings about a holy union of man and woman is to forge distinctly a family relation having regard to the spouse leading to mixing of corporal particles. After the marriage, the wife becomes an integral part of her husband's family. We have the observations of the Supreme Court on this aspect that bring out the distinctive character of Hindu marriage, in the case of V. Tusamma v. V. Sesha Reddi, A.I.R. 1977 S C 1944, it observed :---
'In order to determine this factor we have to look to the concept of a Hindu marriage. Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament---a religious ceremony which results in a sacred and holy union of man and wife by virtue of which the wife is completely transplanted in the house hold of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the body of the husband. To a Hindu wife her husband is her God and her life becomes one of selfless service and unstinted devotion to her husband. She not only shares the life and love, the joys and sorrows, the troubles and tribulations of her husband but becomes an integral part of her husband's life and activities... ... ...As the wife is in a sense a part of the body of her husband. She becomes co-owner of the property of her husband though in a subordinate sense.' (Emphasis provided).
12. Conceptually, therefore, a Hindu marriage as far as the wife is concerned clearly brings out consanguine results, the wife merging and sharing the particles of the body of her husband and as such that of the common ancestor. Such kinship or consanguinity conceptually as well as physically cannot be less than of the blood relationship.
13. Sapinda as understood by the applicative pronouncements and age old doctrines available under the Hindu Law is clearly equivalent to the relationship that comes by blood and gotraja is indicative of the kinship of the relatives. Not only juridically but sociologically, relations inter se in a Hindu family have a nuclear appearance, in that it has a male descent and follow the lines traced through the male line. That may emphasise, no doubt, the biological preference towards male than female, but in the matters of law regarding kinship, such preferences will have restrictive application, for incidents flowing from accepted modes of admitting persons into kinship would necessarily add new lines or bonds of equal validity and accepted effectiveness. Marriage is not only social but religious fact to a Hindu. It distinctively brings about union of two persons involving acceptance of a female into the family of the mala spouse. Relation that ensues is not restricted to male that marries but to the entire family of the male. Married wife in a family thus becomes related to it wholly through her male spouse.
14. The term 'agnate' in common parlance simply indicates relatives whose kinship is traceable exclusively through males or any paternal kinsmen as contracted with 'cognate' as indicative of those relatives generally on the mother's side. We have little hesitation in holding that a father's brother's wife would be related to the propositus like Baburao through his father and as such would be 'an agnate' in common parlance. Even turning to the definitions enacted by the Hindu Succession Act, 1956, we do not find any indication to exclude a father's brother's widow from agnate by reason of the text of that definition.
15. We may usefully extract the following provisions of the Act to understand reasonably the scheme in this regard :---
'3. (1) In this Act, unless the context otherwise requires,---
(a) 'agnate'---one person is said to be an 'agnate' of another if the two are related by blood or adoption wholly through males;.. ..... ........
(C) 'cognate'---one person is said to be a 'cognate' of another if the two are related by blood or adoption but not wholly through males;.. ..... ........
(j) 'related' means related by legitimate kinship;
Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly'.
The provisions of section 8 of the Hindu Succession Act along with the relative entry of the Schedule read as follows :---
'8 The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :---
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs being the relatives specified in Class II of the Schedule :
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
12. Order of succession among agnates and cognates---The order of succession among agnates or congnates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder :---
Rule 1---Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2---Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3---Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.'
The definition of the word 'related' shows that to be related, persons could be treated as related to each other only if they belong to lawful or legitimate kinship. It is significant that this definition makes a reference to 'kinship'. The accepted modes by which such 'kinship' results are clearly implied. Kinship is blood relationship. In social unit like family marriage is an apparent mode of forging such relation. As far as the definition of 'agnate' is concerned, the statute contemplates that this relationship should arise firstly, 'by blood or adoption', and secondly, 'wholly through males'. As far as 'cognate' is concerned, this relationship should arise firstly 'by blood or adoption' and secondly, 'not wholly through males.' It is enough to observe that as far as cognate is concerned, it is wider term, that is, the relation not required to be wholly through males, suggesting thereby that it may arise either partly through males and partly through females or wholly through females. The words employed by the defining clauses having reference to 'blood' will have to be understood and interpreted so as to further the obvious object of the Act and, as far as possible, to provide uniform system of succession. Law here is not merely a biological text tracing decent and ascent. It is a sociological sanction in favour of those who can claim succession to the deceased. Sociology and history of given law often speak through the legislated words. The choice of the word 'blood' in the definitions above along with 'adoption' is clearly intended to recognise all social modes resulting in the legitimate relationship. We cannot be asked to read the words 'by blood' as 'by birth' and restricted them to genetical incidence of family, for legislature, had it intended, would have surely spoken in that way.
16. With regard to the female heirs, historically the applicative law was not settled and was riddled with territorial differences about the interpretation and application of holy texts, though, as far as Bombay School and application of Mitakshare were concerned, the position had to be settled by judicial interpretations admitting no doubt that a paternal aunt would be the gotraja sapinda and as such the heir of agnatic class. In the face of law's post can it be said that by introducing the definition, it was intended to do away with the class of heirs like the one with whom we are concerned No doubt, in the matter of interpretation, mere matters of public policy or mere matter of supposed hardship would not be a valid ground for enlarging its scope, for the letters of the law as enacted will have to be given effect to. If the words 'related' by blood' be indicative only of relationship 'by birth' in the family and no other, then, obviously, the relation that comes by marriage will have to be excluded. If, on the other hand, the terms 'related by blood' is capable of yielding meaning in consonance with the concept of a Hindu marriage and the results thereof as including those that also become related by marriage and acquire kinship in the family, then we would be right in keeping consistency and continuity by including within that term the relationship that results from marriage.
17. What then is the meaning of the word 'blood' Does it signify only the vital fluid that sustains the life or is it also indicative of relationship which results in kinship by known and accepted modalities There are various meanings assigned to the word 'blood', including the one biologically attributed. From Webster's Third new International Dictionary, pages 236 and 237, the following relevant meanings can be extracted :
'Blood' : I a. the fluid that circulates in the principal vascular system of vertebrate animals carrying nourishment and oxygen to all parts of the body and bringing away waste products for excretion and that consists of a liquid plasma containing dissolved nutrients, waste products and other substances and suspended red blood cells, leukocytes, and blood platelet---see Circulation, Respiration; Coagulation; 2a, blood regarded as a vital principle :Lifeblood; broadly Life, b : human blood regarded as a hereditary differentiating factor typical of and specific to a given family, stock lineage, or race (English---) : sap : the national royal---used with the (a prince of the---), c : the whole body of physical traits passed from parent to offspring whether in men, animals, or plant d : relationship by decent from a common ancestor (the Delawere grape shows a strong strain or vinifora---) : Kinship Consanguinity (---is thicker than water), a : person related through a common familial or racial descent : Kindred, Lineage, Stock, Race; also obs : Kinsman, Relative.'
The connotation of the word, therefore, is not merely biological but includes familial, racial and other recognised modes of kinship amongst men. It is futile to submit that the words 'related by blood' should be equated with 'related by birth', though birth may be the primary incident of relationship between the two human beings. That is, however, of the only incident that brings about human relations into existence. When community of men develops and social relationship evolves, manifold relations come into being and in the context of relations, when the word 'blood' is used, it suitably indicates the relationship by descent from a common ancestor or a kinship or consanguinity amongst a recognised social group. Marriage is an acknowledged social form bringing two beings together amongst the society of Hindus as a result of which the female enters the family of the male and becomes kindred of the family of the male and as such gets related as a kin of that family having common ancestor in the husband's family. The term 'by blood', therefore, in our view, has no biological or genetic limitation, but, including that, has a wider reach in the context of the personal law of Hindus and takes in female that enters by marriage the family of the male. Only because after the words 'by blood', the legislature has put the words 'or adoption', thus indicating another legal form by which a person becomes the kin in the family, it is not possible to exclude the marriage from the connotation of the term 'by blood'. To have the relationship of the kind of agnate, it follows that relationship should arise wholly through males and should be a relationship of blood. As we have indicated, even prior to the present enactment, the applicative law held that as a result of marriage, a widow truly became gotraja sapinda in her husband's family. The principle on the basis of which the applicative judgments were rendered was clearly the principle to hold that by marriage the wife shared the community of the common particles of the body and was as such a relative 'by blood'.
18. A submission was made that this would lead to enlarging the class of heirs even from wife's side and difficulties would arise in applying Rule 12, for whoever upon this interpretation is related to the wife would also be related to the husband. This submission is fallacious for two reasons. Firstly, we have held that in the case of a female married into the family, relationship by blood arises because of the marriage and secondly, she becomes kin in the family. Her relations in her original family would not answer any of these tests. Hardly, therefore, there is any scope for any such apprehension. We have preferred to put this somewhat comprehensive interpretation, for in our view, that better furthers the scheme available in section 8 of the Hindu Succession Act. If we were not to recognise the effect of a Hindu Marriage in this manner, obviously the cases will arise and the present one will be one of them where succession would fail, though a nearer relative from the family would be available. When succession is laid down by statutory enactment, we should lean to interpret it so as to avoid such a result. The scheme of section 8 of the Hindu Succession Act shows that with regard to a male Hindu dying intestate, it codifies the Rules of succession and, by reference to the Schedule, states the heirs who will take the intestate succession of a male Hindu. The Schedule which is to be treated as part of section 8 describes several relations with reference to the male whose intestate succession is being provided for. Reference to relatives in class I and class II clearly shows that the entries therein are qualifying or descriptive entries having references to the relation of the heirs described therein and the person whose succession is being governed. In this regard, the legislature while describing the heirs in class I and class II has not in any manner disregarded the relations that arise because of marriage. On the other hand, not only the relation by birth but also kinship that arises because of marriage appear to be the predominating considerations in the choice of the heirs grouped under Class I and Class II. The heirs in class I and Class II having reference to Clause (a) and Clause (b) of section 8 respectively are thus nominated relatives under the statute, but nonetheless are described as relatives. It can, therefore, be safely inferred that in the matter of specification of relatives, the present legislation is based and is not averse to recognise the relation that comes because of the marriage along with the relations that arise because of birth of family. Similarly, it treats the male and female heirs with evenhandedness and with a sense of obvious justice. Keeping in view this internal evidence of acceptance of principles of birth and marriage available in the enactment of Class I and Class II along with the provisions of section 8(a) and (b), it will not be unreasonable to understand the provisions of Clause (c) of section 8, which provides that when the heirs of Class I and Class II are not available, then the property of a male Hindu dying intestate devolves upon the agnates of the deceased, as also the provisions of Clause (d) which provides for similar result, namely, that failing agnates, the property devolves on the cognates of the deceased. The principles of birth and of marriage that go to make relational kinship run through and through the veins of these provisions. What is apparent in Class I and Class II does shed light on what is implicit in Class III having reference to Clause (c) of section 8, for the legislature was well aware of the relations that spring up because of the marriage in Hindu society. Only because the term 'by blood' is capable of having restrictive meaning as 'by birth', it will not be proper nor reasonable to attribute to the legislature an intent to exclude the female heirs who become related because of the marriage ties in a family. It is indeed difficult to conceive such a legislative situation, particularly in the context of the object of the Act itself. The obvious two sociological principles which go to make family as the social unit are the incident of birth and the incident of marriage which unite persons by bond. There may be other relative principles which have the sanction of law, like the modality of adoption, but, as far as the natural principle is concerned, birth is primary principle which is the concomitant result of a marriage of two heterogeneous beings. It is to these primary and basic principle that the law of succession apparently makes a reference to make a scheme for succession and there must be strong evidence to suggest that while interpreting we should exclude application of the same principle that gives rise to relations.
19. Reliance placed on the decision of the Madras High Court in In re p. Kousalya Ammal, : AIR1959Mad184 , is hardly sufficient. We respectfully find that there are no reasons in support of the reasoning available in the judgment itself nor any discussion with regard to the phraseology which is being debated before us.
20. In the view we have taken, we cannot but hold that Parwatibai, the respondent in the present appeal, being the widow of the brother of the father of Baburao, was the heir available after the death of Baburao, during the pendency of the first appeal, on June 19, 1968. There is no evidence nor any materials has been produced as indicating that Baburao had left any other heir. That being the position, we cannot treat that the judgment under appeal was a nullity. What was omitted to be done by the appellant Parwatibai in that appeal was merely to put a proper application for deleting the name of Baburao and showing herself as the sole heir representing the estate and interest of the deceased Baburao. As the legal heir was very much on record, the appeal had not abated and was completely continued.
21. Having disposed of this submission, we have to address ourselves to the merits in the light of the evidence tendered by the parties. At the threshold, we may point out that though in her written statement Parwatibai contended that the property was the joint property of the two brothers acquired during the lifetime of her husband, for the purpose of the present appeal, as stated above, it was not in dispute that the property was acquired after the death of Shankarrao, the husband of Parwatibai. Therefore, the first, primary and pivotal question is about the character of the property on the basis of which alone application of the provisions of section 14(1) of the Hindu Succession Act would be possible, once the character or nature of the property is dermined, Parwatibai's entitlement or otherwise will follow. We have already noticed that what the trial Court found was somewhat contradictory with regard to the ownership of the suit property. There is no finding on this aspect in the first appeal judgment and, therefore, we will have to proceed to find out ourselves from the evidence the character of the suit property.
22. Turning to the evidence, on behalf of the plaintiff on this aspect we have the sale-deed in favour of Dagadu of Exhibit 50 of May 4, 1933. That sale-deed shows that Dagadu alone purchased the property. Then there are two mortgage deeds at Exhibits 47 and 48 of the years 1934 and 1936, wherein Dagadu had declared in no uncertain terms that the property was of his ownership. These are all registered documents. Then, we have the evidence of further two documents, being the agreements of sale. At Exhibit 56 is the agreement of sale executed by defendant No.1 in favour of Rajaram wherein the property is described as owned and belonging to the executant. In Exhibit 55, which is the suit agreement, the executant has stated that the house was occupied by four tenants and in one portion of the house, he was residing and that the tenants would pay the rent, after the sale-deed was executed, to the plaintiff and that Dagadu would hand over possession of the portion in his occupation to the plaintiff and Dagadu would have no right and title thereafter. These documents unmistakably show that right from the time of purchase, the property was asserted to be that of Dagadu and after Dagadu's death to be that of Baburao. No other documents have been produced by the defence, except the City Survey Record entry at Exhibit 36 of date August 10, 1942. That entry shows Parwatibai's name as the holder of share in the property along with Baburao by his mother Laxmibai. It is significant that Laxmibai's name is not recorded and Baburao is shown as minor. The entry by itself does not accord well even with the case of joint family property. Under what circumstances the said entry came to be made is anybody's guess. Such entries have merely presumptive value and they cannot by themselves outweigh the documents of title. If the case of Parwatibai would be true, after the death of Shankarrao and during the lifetime of Dagadu the records would have been otherwise. No such record is produced. Therefore, as far as the documentary evidence is concerned, it is heavily loaded in favour of holding that Dagadu acquired the property by the registered sale-deed produced at Exhibit 50 and dealt with as his own and on that basis mortgaged the same and raised loans for the purpose of its construction. There is total lack of documentary evidence with regard to any other interest having gone to make the consideration for the purchase of the property or for the purpose of any construction on the said property.
23. This being the state of affairs of the documentary evidence on record, we have to turn to the oral evidence to find out whether the assertions of Parwatibai or Baburao, which are in their own interest and which are obviously meant to defeat the case set up by the plaintiff, can at all explain the purchase of Dagadu in this manner and his treating the property as his own. Before we appreciate the evidence of Baburao and Parwatibai, reference may be made to the oral evidence tendered on behalf of the plaintiff. The plaintiff Nanasaheb has examined himself as P.W. 1 and he has stated how the earlier agreement with Rajaram was cancelled and how he entered into the present agreement for the purchase of the suit house property for Rs. 10,000/- and how he paid Rs. 2,500/- as earnest. He has specifically denied that any role was played by Pleader Patil with regard to the transaction in suit. He has stated that the suit house was an old one and the rear portion was in a dilapidated condition. He has denied the suggestion that he was merely a binamidar for Pleader Patil. He has asserted that the entire house was of the ownership of defendant No. 1 and defendant No. 2 had never any right. He has been cross-examined with regard to Rajaram's agreement of sale and its consideration, so also with regard to his relation with Pleader Patil and also with regard to the earlier litigation. He has stated in further cross-examination that the suit house was constructed about 30 years back and denied the suggestion that it was of the value of Rs. 20,000/-. As to the character of the property, no pointed questions appear to have been asked to the plaintiff.
24. The evidence of Rajaram, who had earlier entered into an agreement of sale in respect of the suit house with Baburao, defendant No. 1, and who had cancelled that transaction, is to the effect that the value of the house was not more than Rs. 10,000/-, as the house itself was old and was not in good condition. He had in fact purchased the adjoining house for Rs. 5,600/-. In cross-examination, it was suggested to him that he was related to Pleader Patil, which suggestion he has denied. No questions with regard to the character of the property have been put to the witness, except as to the value of the property.
25. The third witness, Rajaram Bapuji Ratnaparkhi, speaks about Dagadu being a shareholder of Government Servant's Co-operative Bank at Dhulia and Dagadu borrowing a debt on the security of the suit house. According to the witness, that debt was satisfied in 1938. He has stated that the debt was advanced after making inquires into the title of the property to be mortgaged for the debt. From the Bank's records he has stated that the property belonged to Dagadu Sakharam. No question on this aspect have been at all put to the witness in his cross-examination.
26. Motiram Dalal (P.W. 4), claimed to be the tenant of the suit house from 1936 to 1938, occupying the upper storey of the house on a monthly rent of Rs. 13/-. Motiram has stated that he had seen Dagadu living on the ground floor of the house. According to the witness, Dagadu was a fee Clerk in the Civil Court and his earning, according to his estimates, was Rs. 200/- to Rs. 300/- per month. In cross-examination, he has admitted that he had no documents to show that Dagadu earned Rs. 200/- to 300/- per month, nor had he any rent receipts to show that he paid rents to Dagadu. He had no writing as to the earning capacity of Dagadu. It is significant that nothing was asked to the witness about any other owner being there of this property.
27. It is not necessary to refer to the evidence of Bhivsan Devra, who was the attesting witness to the suit agreement.
28. It appears that there being allegations of fraud and misrepresentation against Pleader Patil, he has been put in witness box as P.W. 6 and he has stated that the plaintiff is his wife's brother and whenever the plaintiff used to come to Dhulia, he used to reside with his younger sister, whose place was near an S.T. motor stand. He has denied that he used to give any advice to the plaintiff as a Pleader or as a relative in the matters of his estate. Sometimes when casually asked, he used to give his opinion, but the plaintiff had his own Pleaders. About the suit transaction, he had never advised the plaintiff, nor had he any consultation with him. He knew defendant No. 1. The witness had denied that the suit transaction was benami made by him and taken in the name of the plaintiff. He has stated that he was not present at the time of making that agreement and he had never the intention to purchase the suit house. He had never seen any documents regarding the suit house. He never promised defendant No. 1 Baburao that he would be given some employment in the Maratha Boarding House, nor did he give any promise about service in the Cotton Market at Dhulia nor any promise about his marriage being got performed. Pleader Patil has asserted that he had no occasion to speak to defendant No. 1 with regard to the suit transaction. He has denied that he persuaded defendant No. 1 to execute the suit agreement so as to extricate defendant No. 1 from the decree obtained by defendant No. 2 Parwatibai. He has denied that he paid any amount against the suit agreement. He has denied all suggestions of fraud and misrepresentation. In fact, he has asserted that defendant No. 1 was not his client nor was he connected with him in any way. In cross-examination for defendant No. 1, he has denied that the suit agreement was written as per his dictation, or that defendant No. 1 had approached him demanding Rs. 2,300/- and he had refused to pay it. In the cross-examination for defendant No. 2, he has stated that he was a Chairman of Jaihind Co-operative Housing Society. He has stated that the cost of building a new house was Rs. 10/- to Rs. 20/- per sq. ft. He had seen the suit house. One Panditrao, who is his distant relative, used to stay there. According to the witness, Panditrao occupied front portion of the house. Panditrao was there for a period of two to three years. He has denied the suggestion that the suit house was worth Rs. 20,000/- to Rs. 25,000/-.
29. We have already made reference to the plea in defence with regard to the fraud and misrepresentation and it is significant to observe that not a single suggestion, which would even remotely tend to indicate any such result, has been put to Pleader Patil, who appears to be a practising Advocate and a man of respectable avocation. Similarly, no questions have been directed with regard to the character of the property.
30. As far as the evidence of the two defendants is concerned, a brief reference to it clearly shows that not only they are speaking in their own interest, but their say is highly discrepant and contains several statements which show that both the witnesses are of low veratity. Baburao, who was the Executor of the suit agreement, has asserted everything against Pleader Patil, to whose evidence we have already made reference. According to Baburao, it was Pleader Patil who took the suit agreement. Because his tenant one Pandit Parashram, who has not been examined, insisted that he should sell the half portion of the suit house to Pleader Patil for Rs. 10,000/- the agreement was executed. According to Baburao, he was paid only Rs. 200/-, though Pleader Patil was to pay Rs. 2,500/-. Baburao has further stated that Pleader Patil wanted to purchase the front portion of the suit house. According to Baburao, Pleader Patil paid Rs. 200/- on the pretext that the remaining amount would be paid after the attachment was raised. Baburao has further stated that he had executed three documents on the promise of Pleader Patil. Baburao has then spoken of the promises with regard to the obtaining of the service and getting him married and further that Pleader Patil would pay him Rs. 10,000/- more if the whole house was sold to him. Baburao has then stated that he only half share in the house. According to Baburao, the other half share belonged to defendant No. 2 Parwatibai. He had received the plaintiff's notice before the suit, but he could not reply, because he was poor. There was a decree obtained against him by defendant No. 2. He has denied the suggestion that the said decree was collusive. After this, he was examined in examination-in-chief itself by defendant No. 2. In that examination, he stated that he was married twice and lost two wives. After the death of his father, his mother and he were managing the affairs of the family and on the death of his mother, he and defendant No. 2 managed the affairs. At the time of the death of his second wife, he had movables worth Rs. 3,000/- to Rs. 4,000/-. Defendant No. 2 was residing at Chalisgaon, because she became afflicted with cancer since 1958-59. Before that, she was staying with him. All movable property, according to him, he had spent in vices, like womanizing and drinking. His mother was literate. At the time of the death of his father, his father had told him that his aunt had a share in the house and his mother should live jointly with her without quarrel. In the cross-examination for the plaintiff, Baburao has admitted that he was a matriculate and was looking after his affairs since the age of 16 or 17 years. He had no personal knowledge about the transaction of his father regarding the purchase of the house. He was unable to state from where he used to purchase liquor. He has further stated that he was never prosecuted for any prohibition offence. He has stated that he had eventually stopped drinking. He was never drunk in the presence of any stranger, but, according to him, defendant No. 2 knew about it. He was unable to state the place from where and the persons from whom he used to take liquor. According to him, he had kept a keep by name Vimal Gurav. She is a married lady having her husband alive. Vimal, according to the witness, is a resident of Dhulia. But she has not been examined. Baburao did not know the whereabouts of Vimal. She was his mistress for six years. According to Baburao, defendant No. 2 knew about her and all his tenants also knew about her, but her name was not reported to the rationing authorities. Baburao has stated that defendant No. 2 resided with him till the last one and a half years and was jointly looking after the family affairs. He never sent any money for her operation and the relations between him and defendant No. 2 for five to six years were strained.
31. Baburao has stated in cross-examination that one Balasaheb Pawar, who is a relative, was looking after this litigation on his behalf as well as on behalf of the other defendant. According to Baburao, he had decided to sell the half portion for the purpose of getting money for his marriage. The municipal taxes were also in arrears. He had no other debts to pay. Many customers had approached him and had given him bids. He has admitted that the suit house was constructed in 1935-36. He had never inquired with his father about the construction. Originally, the house was constructed in Dhaba fashion and it was his father who had purchased it. He did not know about the cost of construction. According to him, the suit agreement incorporated all the oral agreements between the parties. There was no term which remained unincorporated. Baburao was even ready to act as per the terms of the suit agreement. He has admitted that there was no deception in setting the terms of the suit agreement. He had no evidence to indicate that at any time he had demanded Rs. 2,300/- as asserted by him. He had himself purchased the stamp paper. He has denied to have any knowledge about the plaintiff or even Rajaram. He had not even asked Pleader Patil about them. When confronted with Rajaram's agreement of sale, he admitted that he had himself purchased the stamp paper on January 7, 1963. He has also admitted that the entire document was in his own handwritting. He had never made any complaint with regard to the suit agreement until he filed his written statement. He has stated that he had informed defendant No. 2 by sending her a postcard, but defendant No. 2 never replied. He has further admitted that he had no money dealings with his tenant Pandit Parashram. According to him, Pleader Patil was also the Chief Officer of D.L.B. According to him, at the time of the suit agreement, his marriage was settled with the daughter of one Laxman Dyanoba, but he could not marry her as he could not collect money. He has also stated that he never attempted to get money from Pleader Patil for that purpose. He has denied that Pleader Patil was being falsely roped in. According to him, before, filling the earlier partition suit, he had received a notice, but he never replied to it. The suit by defendant No. 2 was filed in forma pauperis. He never contested that pauper application. Though he appeared in the suit, he did not file his written statement on account of his poverty. He had no other reason to offer as to why he did not contest that suit. He did not owe any debt. He has denied the suggestion that the suit was filed collusively with a view to screen the property. According to him, at the time of the death, his father had asserted that the house was constructed with the earnings of himself and his brother, in their own lifetime. When the house was half-built, his uncle was alive. The rear portion of the house was built during his lifetime. According to Baburao, he had no document with regard to the construction nor any documentary evidence with regard to the joint earnings. He had no documentary evidence to show that both the brothers were alive when the house was purchased or built. He has, however, admitted that the house was built by his father by incurring debts and the monetary condition of his father was ordinary. According to him, he had another house at the time of the death of his father, which he had sold. There was no documents with regard to the suit house. He had sold the documents as waste papers. He has further stated that he did not even contest the Darkhast filed by defendant No. 2. There was no dispute between him and defendant No. 2. He has admitted that for the last two to three years, he himself was collection rents of the suit house. According to him, he and defendant No. 2 formed the joint family, because they used to mess and live jointly. Defendant No. 2 had gone to Chalisgaon as she was suffering from cancer.
32. The evidence of this type can hardly inspire confidence. It is riddled with contradictions and clearly shows that Baburao can easily speak that he was addicted to vices, but eventually he had to admit that the house was constructed by raising loan's by his own father and he had no knowledge about the purchase by his father.
33. That leaves Parwatibai's evidence and there is hardly anything that can substantiate her claim of the acquisition of the property from the joint earnings or exclusive earnings of her husband. Though in the examination-in-chief she begins by asserting that the suit house was purchased with the earnings of both the brothers and during the lifetime of her husband Shankarrao the rear portion of the suit house was constructed and the sale-deed of the house was made during the lifetime of her husband and Dagadu being the elder his name was shown as the purchaser, in her cross-examination she had to admit that when the house was purchased, her husband was already dead. She has admitted that Shankarrao died in Dhulia in the year 1931. Though she asserted in the examination-in-chief that Shankarrao was a man of means owing motor cars and having given to her gold ornaments, in the cross-examination she had to admit that she had no evidence beyond her word to indicate that her husband owned motor buses, that he followed motor business and that his income from the business was Rs. 400/- per month. She was unable to state the number of the buses, their makes, the names of the vendors from whom they were purchased and the names of the buyers to whom they were sold. She had no documentary evidence nor did she attempt to get any papers from the Government department regarding the motor buses. She was only giving the information by approximation. Even about the income, she was unable to say which particular person gave her information about the earnings of her husband. Similarly, she had no documents to indicate that there were ornaments on her person and the person of Laxmibai, weighing 40 or 50 tolas of gold. She was unable to state about the construction of the house or about the condition of the house when it was purchased. She was made to admit that her husband was not alive when the sale-deed in regard to the suit house was made. Then she took a summersault and asserted that she came to reside in the very suit house after the marriage and she was residing there continuously till the date of the evidence. She further stated that she never shifted from the house even for a short period. Before purchasing the house, according to her, the entire family was residing in the house as tenant, the fact which is not spoken to by any one. She did not know about vendor Pandurang Baburao, so also about his occupation. She had no knowledge about the sale transaction or about the passing of the consideration or about the fact how the consideration money was procured. She had also no knowledge about the mortgages of 1931 and 1936. She has no knowledge about the construction of the house or the artisans who constructed the house. She was not acquainted with the tenants of the house and till the time of giving the evidence she had no concern with the tenants of the house. She had no knowledge as to what was the rent that was being paid by the tenants. She, however, admitted that during the lifetime of Dagadu, he was collecting the rents and managing the affairs and after his death, his widow Laxmibai did the work. After Laxmibai's death, according to her, she and Baburao did the work, but since six years before Baburao alone was recovering the rents. According to her, that was being done because of her consent. She eventually admitted that not even on a single occassion she did recover rents of the suit house. She also admitted that there was no evidence to indicate that she ever recovered the rents. So is the position with regard to the payment of municipal taxes. According to her, interest in the house is that of a widow of the coparcener in the joint family and, therefore, she has a share in the house and she has no other claim to the suit house. About Dagadu's statement that she has a half share, she has admitted eventually that the story set up was not related by her to any one. Though Baburao has stated that one Pawar was assisting and managing the litigation, she has stated that he was not assisting in the conduct of the suit, but eventually she has admitted that she used to take his help. She has admitted that Balasaheb Pawar attended the Court on every date of hearing of the suit and had even accompanied her for preparing the written statement. She has stated that she never inquired from the municipal record in whose name the house stood. She has denied the fact that defendant No. 1 had ever informed her about the suit agreement by any letter. She had no knowledge of defendant No. 1's indebtedness, but has asserted that he was lavish. She has denied the suggestion that the partition suit was collusively brought and the decree was entirely collusive.
34. This evidence of Parwatibai has no samblance of crodibility. She had absolutely no knowledge about the purchase or the construction of the house, nor, on his own showing, she appears to be connected with the management of the house, and taking her evidence along with Baburao's evidence, we have no hesitation in holding that they have set up the case referred to above hand in glove. There is no evidence of any vices on the part of Baburao. Similarly, there is no evidence to hold that any declaration was made by Dagadu in favour of Parwatibai that she had any half share in the house. The evidence of both Baburao and Parwatibai does not command to us so it is full of assertions without any basis.
35. Taking the entire evidence, therefore, together, the only reasonable conclusion that can be drawn from the evidence on record is that the suit house was the property purchased by Dagadu out of his own earnings. The case set up by the defendants that it was a joint family property of Dagadu and Shankarrao cannot be accepted. There is no material to come to any such conclusion that Shankarrao was in a position at all to leave any property in the hands of Dagadu for the purpose of the joint acquisition. Shankarrao having died in 1931 and the property being of Dagadu, Parwatibai had no inheritable interest through Shankarrao in this property. The property, therefore, devolved upon the death of Dagadu upon his son and widow. After Laxmibai's death, Baburao became the sole owner of the property. Baburao thus was competent to make the agreement of sale with regard to his property.
36. Turning to the decree obtained by Parwatibai in Civil Suit No. 50, 1962, produced at Exhibits 38 & 39, we have already referred to the evidence of Baburao and that itself shows that it was a collusive affairs between defendent No. 1 and defendant No. 2. Even though Baburao has asserted that there was some notice sent by Parwatibai, he has never replied and even though there was an application for prosecuting the suit in forma pauperis, he never contested, nor in the suit he put in any written statement. Under those circumstances, the decree was obtained by Parwatibai and was put to execution therein and the suit house was got involved. It is interesting to refer to the stand taken by Parwatibai while obtaining that decree, which also further casts doubt on her veracity. In Suit No. 50 of 1962, Parwatibai approached the Court by asserting in the plaint on the basis that after the death of Shankarrao, that is her husband, she was residing in the joint family of Dagadu, that is the father of Baburao, and after some time, Dagadu purchased the house using the funds collected by Shankarrao from his business and by selling certain ornaments of Parwatibai. After some years, the house was pulled down and Dagadu constructed a new house and during the lifetime of Dagadu it was entered in his name. After Dagadu died, the house was entered in the name of Parwatibai and defendant No.1 Baburao, having half share each, and the share of defendant No. 1 Baburao, who was then minor was entered in the name of his guardian Laxmibai (Baburao's mother), who died in the year 1944. These allegations in that suit read with the written statement in the present suit leave no manner of doubt that Parwatibai was setting up quite a contrary case with regard to the property, for in the present suit, according to her, the house itself was purchased during the lifetime of her husband and it was a benami purchase in the name of Dagadu. Not only that, the written statement of Parwatibai asserts that Shankarrao died in the same house, leaving three motor cars and several valuable ornaments owned by him, which were eventually utilised for the purpose of construction. All said and done, not only Parwatibai's stand is contradictory but her evidence lacks all credibility.
37. Therefore, Parwatibai having no right, title or interest in the property could not have filed the suit and the conduct of Baburao clearly goes to show that it was just a collusive affair. The finding in that regard recorded by the trial Court is well merited.
38. Once the claim of Parwatibai with regard to the title to the suit house, either on the basis of the joint acquisition of her husband along with his brother or on the basis of exclusive title of her husband, is so negatived, she is not entitled to rely on the provisions of section 14 of the Hindu Succession Act. Those provisions are hardly applicable, for there is no property acquired by Parwatibai in any manner.
39. Faced with this difficulty and the judgment under appeal being based on section 14(1) of the Hindu Succession Act, Mr. Rajguru for the respondent strenuously argued that Parwatibai should be treated to be in adverse possession with regard to her undivided share in the property. He further pleaded that her title is perfected by lapse of prescriptive period and lastly, he contended that the suit transaction should be avoided and should not be enforced because the property in reality is of much higher value than Rs. 10,000/-.
40. As far as the plea of adverse possession is concerned, we do not find any specific pleading in that regard in the written statement. It will be a totally contradictory pleading, for, as we have stated, Parwatibai was contending that she was the rightful owner of her share. No doubt, the trial Court has answered the plea, presumably, on the basis of the arguments advanced during the course of the trial against the present respondent. We have already referred to the evidence of both Baburao and Parwatibai. There is not even a semblance of any hostile title being set up by Parwatibai to the property of Baburao. On the other hand, even on their own showing, it appears to be a matter of family. There is no hostile act evidenced by the conduct, even assuming it to be true, showing her occupation as a member of the family of Baburao. The submission on the footing of adverse possession is totally futile.
41. Then, with regard to the so-called declaration of Dagadu at the time of his death conferring the property upon Parwatibai and its record (Ex. 36), we cannot believe the words of Baburao and Parwatibai in this regard. Had there been any truth in such assertion, Parwatibai would not keep such a statement to herself, for she has admitted in her evidence that till the date she was giving the evidence, she had not spoken about it to any one nor on any occassion. Furthermore, in the earlier suit, we would have expected her to make a mention thereof. The evidence on this aspect is clearly a got up one.
42. There is no basis even for the so-called prescriptive title. All throughout, the evidence suggests that during the lifetime of Dagadu he was managing his estate. After his death, his widow took over the affairs and even after Laxmibai's death, Baburao must have been recovering the rents. There is no question of Parwatibai being in exclusive possession or prescribing any period on the basis of any hostile title so set up against the true owner.
43. Mr. Rajguru on the decisions in Annasaheb v. Gangabai, 73 BomLR 407 Gulab Chand v. Sheo Karan Lall : AIR1964Pat45 Harmal Kaur v. Kartar Kaur Kasturi v. Lote Major, A.I.R. 1920 Nag 196 and Vasudewa Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrula Garu, I.L.R. Mad (P.C.) 387 in support of his submission with regard to prescriptive and adverse title. Once the facts are the one to which we have already made reference, in that the property was never in the possession, much less in the hostile possession, of Parwatibai, these decisions by themselves do not held the learned Counsel.
44. The last submission with regard to the value of the property, similarly, has no force. Even the transaction with Rajaram was for Rs. 9,000/- and the evidence shows that the property was not in a very good condition. Under such circumstances, the price settled by the parties was not at all low and there is no evidence to indicate that the real price of the property was Rs. 20,000/-, as claimed by the defendants.
45. In the result, therefore, the present appeal is allowed with costs throughout, the impugned judgment is set aside and the decree made by the trial Court is restored for the reasons stated above.
46. Mr. Rajguru applies orally for leave to appeal to the Supreme Court. The same is refused.