SECOND APPEAL 562 of 1980 on 7 August 1980

ORAL JUDGMENT :-

1. This Second appeal was admitted by this Court byorder dated 7th August, 1980 by observing that theSecond Appeal is admitted on the points mentioned in ground No.18 of the Memorandum of appeal. The GroundNo.18 of the Memorandum of appeal reads thus :- "The learned Judge wrongly not applied provisions ofSection 14(1) of the Hindu Succession Act of theproperties (including the assets called as self-acquisition) which came to be given to the plaintiffunder the will of Maruti.

2. I have heard the counsel appearing for theparties on the aforesaid substantial question of law.With a view to appreciate the controversy involved inthe appeal, it is necessary to briefly refer to thefacts of the case. The genealogy showing therelationship between the parties is as under :

Maruti Nana Taralkar(died on 27-10-1949)

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ShankarTanubai(died on 1-7-37)¦¦¦---------------------------------------¦HausabaiKhanderao(Deft.No.1)(Plaintiff)

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¦--------------------¦--------------------------¦HaribaiBhagirathibaiMandodaridied on 31-12-72(Deft.No.2)(deft.No.3)¦(Married to Khanderao)¦¦------------¦------------¦-----------¦-------------¦

RameshBansilal ShaliniDilipParubai(Deft.No.4)(Deft.No.5)(Deft.No.6)(Deft.No.7)(Deft.No.8)The appellant is the original defendant No.1. TheRespondent No.1 is the original plaintiff and therespondent No.2 to 8 are the original defendant No.2 to8. The suit property consists of one house, two opensites and four agricultural lands which are describedin Schedule-I to the plaint. The suit property wasoriginally owned by Maruti Nana who died on 27thOctober, 1949. Maruti had a son Shankar and daughterTanubai. The son Shankar predeceased Maruti on 1stJuly, 1937. The Appellant-Defendant No.1 Housabai isthe widow of Shankar. Shankar had 3 daughters by thenames Haribai, Bhagirathibai and Mandodari. Haribaiexpired on 31st December, 1972 and the respondent No.4to 8 are the legal representatives of Haribai. Tanubaihad a son by the name Khanderao who is the originalplaintiff/respondent No.1. The said Khanderao marriedto Bhagirathibai(Deft.No.2/respondent No.2) who isincidentally the daughter of Shankar and Housabai.

3. According to the respondent No.1/plaintiff, thesuit property was self-aquired property of Maruti. On24th October, 1949, Maruti executed a will. Accordingto the respondent No.1, Maruti had kept a mistress from

whom three sons and one daughter were born to him. Asper the will, Maruti gave some of his movables to thesons of his mistress and remaining movable property wasbequeathed to the Appellant and the Respondent No.1.According to the Respondent No.1, will provided thatthe Appellant and the Respondent No.1 were to enjoy allimmovable property of Maruti jointly during their lifetime. However, the Appellant was given only lifeinterest in the immovable property and she was notallowed to alienate property in any manner and theproperty was to go to the Respondent No.1 after herlife time. The Respondent No.1 filed a suit fordeclaration of his title on the basis of the said willand for permanent injunction against the Appellant andRespondent No.3 to 8. Contention of the RespondentNo.1 is that the Appellant had executed a gift deeddated 15th July, 1972 in respect of some of theproperties in favour of some of the Defendants.Respondent No.1 also challenged the gift deed executedby the Appellant on the ground that the Appellant hadonly a life interest and had no power to execute thegift deed.

4. The suit was resisted only by the Appellant byfiling written statement. The Appellant contended that all the properties comprising of suit property werejoint family properties of Maruti and Shankar and werenot self-acquisition of Maruti. The Appellantsubmitted that Nana,the father of Maruti was doingancestral business of dealing in yarn and clothes andthere were ancestral movable properties and ornaments.Nana was carrying on ancestral business of weaving andalso indulged in money-lending. Maruti inherited allthe ancestral property from Nana. Maruti did not doany separate business and had no separate source ofincome. Although some of the suit properties arepurchased by Maruti, they were purchased with the helpof ancestral joint family funds. The appellant deniedthe execution of the will by Maruti. She contendedthat In any event, Maruti had no authority to executethe will.

5. The learned Trial Judge dismissed the suit filedby the Respondent. In an Appeal preferred by theRespondent, the learned District Judge interfered andpartly decreed the suit in favour of the Respondent.The Appellate Court held that properties at Sr.Nos.1and 2 in Schedule 1-A and the open site at Sr.No.3 inSchedule 1-B were self-acquisitions of Maruti.Therefore, the Appellate Court granted declaration that the Respondent No.1 had a reversionary right in respectof the said properties and the Appellant who was havingonly life interest over the said property was notentitled to alienate the same. Hence declaration wasgranted that gift deed executed by the appellant inrespect of land bearing Survey No. 327/2 was notbinding on respondent No.1 after the death ofappellant. Being aggrieved by the Judgment and decreeof the Appellate Court, the Appellant(Defendant No.1)has preferred this Second Appeal.

6. Shri Sakhare, the learned senior counselappearing for the appellant submitted that the willexecuted by Maruti was not duly proved and findingsrecorded by the court in that behalf are perverse. Hesubmitted that all the properties comprising of suitproperty were ancestral properties held by Maruti andtherefore, will could not have been executed in respectof the said properties by Maruti. He submitted thateven assuming that the will was valid, section 14(1) ofthe Hindu Succession Act, 1956, will apply and the suitproperty in respect of which life interest inperpetuity is created will become absolute property ofthe appellant. The learned counsel for the Appellantrelied upon various judgments which are as under :

(i) AIR 1961 Punjab Page 395(Jai Ram Devi DittaV/s Tota Ram Hardev Ram).

(ii) AIR 1963 Orissa Page 167(Ganesh Mahanta andOrs. V/s Sukria Bewa and Ors.)Ors. V/s Sukria Bewa and Ors.)

(iii) AIR 1965 Madras Page 497(Chinnakolandai V/sThanji Gounder & Ors.)

(iv) AIR 1970 Supreme Court Page 1963(BadriPershad v/s Smt. Kanso Devi.)

(v) AIR 1970 Punjab & Haryana Page 309(Jagat Singh & Ors V/s Teja Singh & Ors.)

(vi) 1999(1) Bom.C.R. Page 119(Raghubar Singh &

Ors. V/s Gulab Singh & ors.)

7. The learned counsel appearing for the respondentNo.1 Shri Walawalkar submitted that a clear finding offact has been recorded by both the courts below asregards execution of the will by Maruti. He pointedout the finding of fact recorded by the District Courtto the effect that certain properties out of the suit properties were self-acquired properties of Maruti. Hesubmitted that the said finding of fact cannot bedisturbed in Second Appeal. He submitted that in viewof section 14(2) of the said Act 1956, the appellant isnot entitled to benefit of sub-section (1) of section14 of the Act.

8. I have carefully considered the submissions ofcounsel appearing for the parties. In so far as theproof of will executed by Maruti is concerned, thoughthe trial court dismissed the suit filed by therespondent, the trial court accepted the case of therespondent No.1 that Maruti had executed a will dated24th October, 1949. The appellate court has referredto the evidence on record, especially the evidence ofone of the attesting witness to the will and evidenceof the scribe of the will. The appellate court hasalso referred to the fact that the will was dulyregistered in the office of sub-registrar. Afterhaving appreciated the oral evidence on record, theappellate court has confirmed the finding of the trialcourt on this aspect. In my view, the said finding isneither perverse nor illegal.

9. The second contention of the learned counsel

9. The second contention of the learned counsel appearing for the appellant is that none of theproperties in the suit were self-acquired properties ofMaruti. He submitted that the appellant hadestablished that there was a nucleus available of thejoint family property from which properties comprisingof suit property were purchased. By referring to theparagraph-16 of the Appellate Court Judgement, thelearned counsel made a grievance that only prima faciefinding has been recorded by the Appellate Court.Perusal of paragraph-16 of the Judgment shows thatthough the appellate court has used the word"prima-facie", the entire evidence has been consideredand finding of fact has been recorded. The appellatecourt came to the conclusion that the father of Marutiwas holding landed property having area of not morethan 2 acres and 13 gunthas. There was no evidence toshow that Nana had purchased or possessed any otherproperty. After considering evidence in that behalf,the appellate court came to the conclusion that therewas no evidence led by the appellant No.1 to show thatNana had left sufficient funds or moveables whichMaruti had inherited or that the properties purchasedunder sale deed at Exh. 57 could have been purchasedby Maruti with the aid of the said funds. The learnedJudge rejected the observations made by the learned trial Judge that Nana was holding more than 20 acres ofland. After considering the evidence carefully, theappellate court came to the conclusion that theproperties purchased under the sale deed at Exh. 57were self-acquisitions of Maruti and rest of theproperties cannot be held to be as self-acquiredproperties of the Maruti. After having perused saidfinding recorded by the learned appellate court andafter having perused the pleadings and notes ofevidence, I am of the view that the said finding isbased on legal evidence on record and there is noperversity in the same.

10. This takes me to last submission made by the learned Senior counsel for the appellants. Hesubmitted that the life interest which was created infavour of the appellant will become full interest byvirtue of Section 14(1) of the said Act, 1956. Relyingupon the judgments to which reference has been madeearlier, he submitted that where a Hindu widow, alimited owner, is possessed of a property when theHindu Succession Act, 1956 came into force, she becomesits full owner by virtue of provision of Section 14(1)of the Act. He therefore, submitted that therespondent No.1 as a reversioner was not entitled to challenge alienation made by the appellant by way ofgift deed. He relied upon the judgment of Punjab HighCourt in the case of Jai Ram Devi Ditta as well as thejudgment of Madras High Court in the case ofChinnakolandai in support of his contention. Hesubmitted that the contention of the Respondent No.1that as the suit was filed by the Respondent No.1 aftercoming into force the Act, 1956, gift deed executed byappellant will not bind him after demise of Appellantwas not tenable in view of section 14(1) of the saidAct, 1956. The learned counsel has also relied on thejudgment of Apex Court in Badri Pershad’s case andJudgment of Full Bench of Punjab and Haryana High Courtin case of Jagat Singh.

11. It is pertinent to note that the Appellate Courthas granted relief to the Respondent No.1 only inrespect of those properties out of the suit propertieswhich have been held as self-acquired properties ofMaruti. As Shankar is the son of Maruti whopredeceased him, the Appellant being the widow ofShankar, could not have claimed any right or interestin respect of self-acquired property of Maruti duringhis life time. Therefore, Maruti had absolute right toexecute a will in respect of his self-acquired

property. Accepting case of the appellant as it is,life interest was created in her favour in respect ofself-acquired properties by the will. The onlyquestion is whether such life interest created by will,was converted into full interest by virtue ofsubsection (1) of section 14 of the said Act of 1956.

12. On plain reading of sub-section 2 of section 14of the said Act of 1956, the Appellant will not beentitled to claim benefit of sub-section 1 of the saidsection as the life interest was created in her favourunder the will of Maruti. As the Appellant does haveany other pre-existing right in the self-acquiredproperty held by Maruti, sub-section 1 of section 14will not have any application in favour of theAppellant.

13. As stated earlier, decree granted by theappellate court is only as regards self-acquiredproperties of Maruti and claim of respondent No.1 inrespect of other properties in the hands of Maruti hasbeen negatived. In the circumstances, no fault can befound with the impugned Judgment and decree. SecondAppeal is accordingly dismissed with no order as tocost.

14. Parties to act on the ordinary copy of the orderduly authenticated by court sheristedar.

JUDGE

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 562 OF 1980.

DATE OF DECISION : 12TH JULY, 2004.

FOR APPROVAL AND SIGNATURE OF

THE HON’BLE SHRI JUSTICE A.S.OKA.

1. Whether Reporters of Local Papersmay be allowed to see the Judgement ?2. Whether to be referred to theReporter or not ?may be allowed to see the Judgement ?2. Whether to be referred to theReporter or not ?

3. Whether Their Lordships wish tosee the fair copy of the Judgement ?see the fair copy of the Judgement ?

4. Whether this case involves asubstantial question of law as tointerpretation of the Constitution ofIndia 1950 or any order madethereunder ?

5. Whether it is to be circulated tothe Civil Judges ?

6. Whether the case involves animportant question of law and whethera copy of the judgement should besent to Nagpur, Aurangabad & GoaOffices ?important question of law and whethera copy of the judgement should besent to Nagpur, Aurangabad & GoaOffices ?

ast.

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