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Balu Parasu Magadum Vs. Hirabai Alias Anusuya Ramchandra Patil - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 808 of 1976
Judge
Reported in1982(1)BomCR713
ActsHindu Succession Act, 1956 - Sections 14(1) and 14(2)
AppellantBalu Parasu Magadum
RespondentHirabai Alias Anusuya Ramchandra Patil
Appellant AdvocateN.D. Hombalkar, Adv.
Respondent AdvocateAjit P. Shah, Adv.
DispositionAppeal dismissed
Excerpt:
.....(supra) wherein the earlier ratio was over-ruled, the supreme court observed :for the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the division bench decision of this court in naraini devi's case (supra) was not correctly decided and is, therefore,..........entitled to the possession of the property this aspect is conceded on behalf of the appellants. apart from the contentions the merits also deserves the same view, especially in view of the clear dicta of the supreme court.8. in view of this position the decree of the courts below under which the plaintiff's suit was decreed and she was directed to be put in possession of the suit property must be confirmed.9. it appears that cross objections were filed on behalf of the respondent which mainly pertained to the wrong valuation of the appeal by the appellant in the district court with reference to the jurisdiction. a statement is however, made at the bar on behalf of the respondent that the said cross objections are not being pressed on merits and as such no orders are necessary.the appeal.....
Judgment:

V.S. Kotwal, J.

1. One Parasu had a son by name Rama who died in the year 1932 leaving behind his widow Bayabai. It is after the death of Rama that Parasu adopted one Balu who is the present appellant and the original defendant. There was an earlier litigation in the year 1950 when Rama's widow Bayabai filed a suit for maintenance against the present appellant Balu. That suit being No. 396 of 1950 resulted in Compromise in the year 1952 and under the terms of compromise a decree was passed, Bayabai was granted agricultural lands and a part of house in lieu of the maintenance. It is these lands that are the subject matter of the present proceedings. Under the said decree however, Bayabai was restricted in her right to alienate the said property or to burden it with any liability. In pursuance thereof Bayabai was to be in possession of the said land and was continued to be so till she died in the year 1971.

2. Hirabai is the daughter of Bayabai and it is this Hirabai who filed Regular Suit No. 199 of 1973 for possession of the said land against the present appellant Balu. It was her main contention that by reason of the relevant provisions of Succession Act Bayabai had become full owner of the property and after her death she had inherited in her own right and, therefore, she was entitled to possession as the owner. Claim for mesne profits was also made.

3. The suit was resisted by the present appellant-defendant. According to him only a restricted right was allotted in favour of Bayabai to possess the said land during her life time towards her maintenance and as such the plaintiff Hirabai could not be the full owner after the passing of the Hindu Succession Act and, therefore, he claimed dismissal of the suit.

4. The trial Court held that Bayabai was the full owner of the petitioner since according to the said Court provisions of section 14(1) of the said Act were applicable. According to the learned trial Judge, after the death of Bayabai in the year 1971 the present plaintiff Hirabai being only her daughter became the full owner of the property. In keeping with there findings the plaintiffs' suit was decreed.

5. 'However, Appeal No. 219 of 1981 was directed against the said decree in the District Court at Sangli. The learned District Judge endorsed all the findings of the trial Court and confirmed the decree and thus the appeal came to be dismissed on August 23,1976 which decree is being impugned in the second appeal on behalf of the original defendant.

6. The main contention that was raised in the courts below pertained to the applicability of the provisions containing section 14(2) of the Act and not section 14(1). This contention was negatived by the courts below. Shri Hombalkar no doubt wanted to rely on the same provisions; however, it must be said to the credit of the learned Counsel that in fairness he conceded that the argument that is sought to be advanced about the applicability of section 14(2) was essentially based not only on the said provisions but also on the ratio of certain decisions including a decision in Smt. Naraini Devi v. Smt. Ramo Devi and others, : [1976]3SCR55 wherein it was specifically held that in similar situation provisions of section 14(2) and not 14(1) would be applicable. The learned Counsel further fairly submitted and conceded that this view has been over-ruled by the Supreme Court in a later judgment in the matter of Vaddeboyina Tulsamma and others v. Vaddeboyina Sesha Reddi, reported in A.I.R. 1977 S.C. 1944 and it is also reiterated by the Supreme Court,' in yet another decision in the matter of Santhanam Kachapalaya Gurukkal v. Subramanya Gurukkal. The learned Counsel quite fairly conceded that in view of the ratio in the later decisions of the Supreme Court, it in clear terms overruled the earlier view and as such it may not be possible for him to oppose the said decree. In view of the applicability of section 14(1) of the Act the learned Counsel, therefore, practically conceded that in the face of the positive dictum of the Supreme Court the plaintiff must succeeded and his client's claim is liable to fail.

7. In view of this position it is not necessary to go in the details of the matter though I have already indicated the nature of controversy in the skeleton from which is enough to dispose off the appeal. It is in paragraph 68 of Tulasamma's case (supra) wherein the earlier ratio was over-ruled, the Supreme Court observed :

'For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi's case (supra) was not correctly decided and is, therefore, overruled.'

After having the resume of various ratio and the facts in the said case the Supreme Court held that since the property in question were acquired by the appellants under compromise in view of satisfaction of her right of maintenance it was sub-section (1) and not sub-section (2) of section 14 which would be applicable and the further consequence accepted by the Supreme Court was to the effect that in view of this finding the appellant therein was deemed to have become full owner of the property notwithstanding that the compromise described a limited interest for her in the property. Since the ratio squarely applies to the facts of the instant case there is no escape from the conclusion that Bayabai had become the full owner of the property; the present plaintiff obviously claimed the capacity of the full owner as being the only heir as daughter of Bayabai and consequently in her own right she was entitled to the possession of the property This aspect is conceded on behalf of the appellants. Apart from the contentions the merits also deserves the same view, especially in view of the clear dicta of the Supreme Court.

8. In view of this position the decree of the courts below under which the plaintiff's suit was decreed and she was directed to be put in possession of the suit property must be confirmed.

9. It appears that cross objections were filed on behalf of the respondent which mainly pertained to the wrong valuation of the appeal by the appellant in the District Court with reference to the jurisdiction. A statement is however, made at the bar on behalf of the respondent that the said cross objections are not being pressed on merits and as such no orders are necessary.

The appeal stand dismissed. No order as to costs.


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