For using the provision of section 14 (1), the
conditions laid down in that section need to be satisfied. The
provision is applicable only if limited estate, interest was created
in favour of the wife and she was holding the property when the
provision came in force. If the property was given to her to hold it
as owner in lieu of maintenance and she was expected to live
separate, such property would become her absolute property.
Hindu Law regarding power to alienate co-parcenery property is
mentioned at para 253 in Hindu Law by Mulla (21st Edition). The
law mentioned in para 240 and 254 shows that the Manager to
the extent mentioned in para 240 and father to the extent
mentioned in para 254 can alienate co-parcenery property. The
Manager/Karta can alienate the property for value for legal
necessity or for benefit of estate. Hindu is under legal obligation
to maintain his wife as a relative and also as member of family of
which he is Karta. Though the obligation of the husband is
personal in nature, if the maintenance is not given and it is in
arrears, the wife can proceed against the property also. In view of
these circumstances, the alienation made by Manager for
maintenance needs to be treated as alienation made for legal
necessity.The alienation made by Manager of joint Hindu family
without legal necessity is not void, but voidable.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 323 OF 1991
Ramrao Nilkanthrao Patil
Versus
Dhondaji @ Ramesh s/o.
Nilkanthrao Patil,
CORAM
: T.V. NALAWADE, J.
DATED
: 16th April, 2014.
Citation; 2014(6) MHLJ 797 Bom
The appeal is filed against judgment and decree of
1.
Regular Civil Appeal No. 239/1982 which was pending in the Court
of 3rd Additional District Judge, Nanded. The judgment and decree
of Regular Civil Suit No. 150/1979 filed by the present appellant
for relief of partition and possession was partly decreed by the
Trial Court, the Court from Degloor, and this decision is confirmed
2.
by the District Court in First Appeal. Both the sides are heard.
The suit was filed in respect of agricultural lands
situated at village Aloor, Tahsil Degloor, District Nanded. The
plaintiff/appellant had claimed 7/18th share in all the agricultural
lands. The relief is given to the plaintiff in respect of few suit
properties, but the Courts below have held that lands Gat Nos.
630, 643 and 96 belonge to defendant No. 5 and she is the
absolute owner of these three lands. The Courts below have given
1/3rd share to the plaintiff in remaining lands. The decision only in
respect of aforesaid three lands is challenged by the plaintiff.
3.
The suit was filed by appellant through his maternal
uncle and the maternal uncle represented as next friend.
Defendant No. 6 - Saraswatibai is the mother of plaintiff.
Defendant No. 5 - Anusayabai is the step-mother of plaintiff.
Nilkanthrao, father of plaintiff, had married two wives. Anusayabai
is first wife and as Nilkanthrao had no son from Anusayabai, he
married with defendant No. 6. Defendant No. 4 is daughter of
defendant No. 5. Defendant No. 1 is a son of defendant No. 6 and
4.
defendant Nos. 2 and 3 are daughters of defendant No. 6.
It is the case of plaintiff that all the suit properties
ig
were ancestral properties of his father, Nilkanthrao. It is
contended that in revenue record of few lands the names of
defendant Nos. 5 and 6 were entered at the instance of
Nilkanthrao, but they never became absolute owners of those
properties as the properties belonged to joint Hindu family. It is
contended that during his lifetime, Nilkanthrao was cultivating all
his properties including the properties which were shown to be
owned by defendant Nos. 5 and 6.
5.
It is the case of plaintiff that his relations with
defendants are not cordial and he is living with is maternal uncle.
It is his case that the defendants are refusing to give his share
and so, he is required to file suit.
6.
The suit proceeded exparte against defendant Nos. 3
and 6, sister and mother of plaintiff. Defendant Nos. 1 and 2 filed
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SA No. 323/1991
5
consent written statement. Only defendant Nos. 4 and 5
7.
contested the suit.
It is the case of defendant No. 5 that after the second
marriage, the dispute started between the two wives of
Nilkanthrao. It is contended that due to the dispute, Nilkanthrao
gave land survey No. 29/1, 29/2, 30 and Malal land No. 6A and 11
ig
to defendant No. 5 in lieu of the maintenance. It is her case that
possession of these properties was given to her by Nilkanthrao
and her name was entered in title column in revenue record.
It is the case of defendant No. 5 that property
8.
admeasuring more than 29.68 Hectors was with Nilkanthrao and
he gave only 6 Hectors 90 R. portion to defendant No. 5. It is
contended that in the year 1960 this property was given to her
and since then she has been cultivating the property separately. It
is her case that in view of provisions of section 14 of Hindu
Succession Act, 1956, she has become absolute owner of these
lands. These lands are now given numbers as Gat Nos. 630, 96
and 643.
9.
It is the case of defendant No. 5 that properties were
given to defendant No. 6 also in lieu of maintenance and the
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SA No. 323/1991
6
name of defendant No. 6 was also entered in the revenue record
of those lands. It is contended that plaintiff, defendant No. 6 and
defendant Nos. 1 to 3 have joined hands to deprive defendant No.
5 of her property. It is contended that defendant No. 1 had taken
some steps and he had got entered his name in the revenue
record in respect of lands given to defendant No. 5. It is
contended that the said entry was challenged by defendant No. 5
ig
and by the last decision dated 16.4.1977 the revenue authority,
owner.
On the basis of aforesaid pleadings, issues were
10.
Revenue Commissioner directed to again enter her name as the
framed by the Trial Court. Both the sides gave evidence. The Trial
Court has held that Gat No. 630, 643 and 96 were given to
defendant No. 5 by Nilkanthrao in 1960 and defendant No. 5 has
become owner of these lands by virtue of section 14 (1) of Hindu
Succession Act, 1956.
11.
The First Appellate Court has held that there is
collusion between plaintiff on one hand and defendant Nos. 1 to 3
and defendant No. 6 on the other. The First Appellate Court has
held that these defendants want to deprive defendant No. 5, the
first wife of Nilkanthrao, of the properties given to her. The First
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SA No. 323/1991
7
Appellate Court has held that Nilkanthrao had made family
arrangement due to the dispute between the two wives and in the
arrangement, he had allotted the aforesaid lands to defendant No.
5. The First Appellate Court has held that since 1960 defendant
No. 5 has been enjoying these properties as absolute owner. It is
held that the properties were given to defendant No. 5 either in
By the order dated 23.8.1991, this Court framed
12.
ig
lieu of maintenance or under family arrangement.
substantial question of law like, "Whether Saraswatibai and
Anusayabai have become absolute owners of properties given to
them by Nilkanthrao in view of section 14 (1) of Hindu Succession
Act, 1956 ?" The learned counsel for the appellant was allowed to
argue on following points also and they are treated as substantial
questions of law formulated by this Court.
(i)
Whether Nilkanthrao was entitled to partition
the suit properties and give the disputed properties to
defendant No. 5 ?
(ii)
Whether the Courts below have committed
error in holding that defendant No. 5 has been
enjoying disputed properties as owner since 1960 ?
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SA No. 323/1991
(iii)
Whether
the
First
Appellate
8
Court
has
committed error in holding that, there was family
arrangement and under the arrangement, Nilkanthrao
gave the disputed properties to defendant No. 5 ?
(iv)
Whether the Courts below have committed
error in giving importance to the revenue entries
Before considering the evidence, it needs to be kept
13.
ig
made in favor of defendant No. 5 ?
in mind that defendant No. 5 was admittedly the first wife of
Nilkanthrao. The second marriage with defendant No. 6 took place
only because Anusayabai could not give a son to Nilkanthrao. It is
not disputed that on the basis of the application given by
Nilkanthrao to revenue authority, mutation Nos. 264 and 265
came to be made and the disputed properties came to be given to
Anusayabai. As per the record, the mutation was sanctioned on
14.12.1960. The mutation shows that Nilkanthrao had informed to
the revenue authority that he had two wives like Anusayabai and
Saraswatibai and as there was dispute between them, he had
partitioned the properties and he had given share to Anusayabai
(elder wife) and Saraswatibai. The revenue record shows that as
per the aforesaid mutations, the names of both Anusayabai and
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SA No. 323/1991
9
Saraswatibai were entered in title column and also in crop
cultivation column of the lands given to them. It appears that an
attempt was made to show that application was given by
Anusayabai and she had requested to revenue authority to enter
the name of defendant No. 1 in the revenue record of the lands
given to her by Nilkanthrao. An attempt was made to show that
Anusayabai had informed that partition had taken place and in
ig
view of partition, the entries need to be made. As the defendant
No. 5 - Anusayabai had become absolute owner, there was no
question of transfer of title in respect of these lands in favour of
defendant No. 1 by making such application by her. She could not
have been treated as member of Hindu joint family for this
purpose. The oral evidence and the record shows that no attempt
was made by plaintiff or defendant No. 1 to show that the
partition had really taken place in the year 1965 and in that
partition, some property was given to Anusayabai. It can be said
that everything which was given to Anusayabai was again shown
to be given to defendant No. 1. However, the entry made in
favour of defendant No. 1 was cancelled by the revenue authority
and the order of revenue authority became final in the year 1977.
14.
As per the record, Nilkanthrao was having land
admeasuring
29.68
Hectors.
Out
of
this
area,
the
land
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SA No. 323/1991
10
admeasuring 6 Hector 90 R. was given to Anusayabai and land
admeasuring 4 Hector 20 R. was given to Saraswatibai by
Nilkanthrao. The record shows that the mutation entry made in
favour of Saraswatibai was never challenged by plaintiff or
defendant No. 1, issue of defendant No. 6. Evidence is given by
defendant No. 5 that the lands given to her were of low quality
and so more portion was given to her than Saraswatibai.
ig
Defendant No. 6 did not appear in the suit and in view of the facts
and circumstances, the First Appellate Court has rightly held that
there is collusion between her and plaintiff.
The evidence of next friend of plaintiff, who is
15.
maternal uncle shows that plaintiff, defendant No.1, defendant
No. 2 and defendant No. 6 were living together in the same house.
The revenue proceeding record shows that before revenue
authority Saraswatibai represented plaintiff as his next friend and
also guardian. She represented her other son and daughters also.
The revenue record also shows that name of defendant No. 6 was
entered in revenue record as guardian of defendant Nos. 1, 2 and
plaintiff after the death of Nilkanthrao. All these circumstances are
sufficient to infer that these persons want to deprive defendant
No. 5 of the properties given to her by Nilkanthrao. There is oral
evidence to the effect that defendant No. 5 has been in separate
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SA No. 323/1991
11
possession of these lands. Her possession is since 1960. These
rival cases and while applying the law.
16.
circumstances needs to be kept in mind while appreciating the
The Trial Court has held that under section 14 (1) of
Hindu Succession Act, 1956, defendant No. 5 has become
absolute owner. The aforesaid properties were given to defendant
ig
No. 5 in the year 1960. On the legal point, there is not much
discussion made by both the Courts. The First Appellate Court has
held that the property was given to defendant No. 5 in family
arrangement or in lieu of maintenance. The provision of section
14 (1) of Hindu Succession Act, 1956 is as under :-
"14.
Property of a female Hindu to be her
absolute property.- Any property possessed
by a female Hindu, whether acquired before or
after the commencement of this Act, shall be
held by her as full owner thereof and not as a
limited owner.
Explanation.-
"property"
includes
In
this
both
sub-section,
movable
and
immovable property acquired by a female
Hindu by inheritance or devise, or at a partition,
or
in
lieu
of
maintenance
or
arrears
of
maintenance, or by gift from any person,
whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by
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SA No. 323/1991
12
purchase or by prescription, or in any other
manner whatsoever, and also any such property
held by her as stridhana immediately before the
commencement of this Act."
17.
For using the provision of section 14 (1), the
conditions laid down in that section need to be satisfied. The
provision is applicable only if limited estate, interest was created
in favour of the wife and she was holding the property when the
provision came in force. If the property was given to her to hold it
as owner in lieu of maintenance and she was expected to live
separate, such property would become her absolute property.
Hindu Law regarding power to alienate co-parcenery property is
mentioned at para 253 in Hindu Law by Mulla (21st Edition). The
law mentioned in para 240 and 254 shows that the Manager to
the extent mentioned in para 240 and father to the extent
mentioned in para 254 can alienate co-parcenery property. The
Manager/Karta can alienate the property for value for legal
necessity or for benefit of estate. Hindu is under legal obligation
to maintain his wife as a relative and also as member of family of
which he is Karta. Though the obligation of the husband is
personal in nature, if the maintenance is not given and it is in
arrears, the wife can proceed against the property also. In view of
these circumstances, the alienation made by Manager for
maintenance needs to be treated as alienation made for legal
18.
necessity.
The alienation made by Manager of joint Hindu family
without legal necessity is not void, but voidable. According to
Mitakshara Law as administered in this area, even a co-parcener
may sell or otherwise alienate for value his undivided interest in
co-parcenery property without the consent of other co-parceners.
When the Manager of joint Hindu family governed by Mitakshara
Law as administered in this area alienates more than his own
interest in joint family property, the alienation which is not for
legal necessity can be challenged by the other members of joint
family. In such a suit, alienation made to the extent of the shares
of such members can be set aside, but the alienation of his own
interest made by the co-parcener or Karta cannot be set aside.
19.
As per the provisions of Hindu Law, the alienation can
be challenged by member of Hindu joint family who was in
existence or atleast who was in mother's womb on the date of
alienation. Present plaintiff was not in existence on the date of
alienation or partition made by his father and so, there was no
right to plaintiff to challenge the disposal of the property made by
his father prior to his birth. Further, if the alienee takes possession
of the property, then in view of Article 109 of Limitation Act (Old
Article 126), such alienation needs to be challenged within 12
years. If the son was minor on the date of alienation, he would get
concession and he can challenge it within three years from the
20.
date of attaining the majority.
Para 322 of Hindu Law by Mulla shows that father has
power to divide joint Hindu family property at any moment during
his lifetime provided that he gives his sons equal shares with
himself. The consent of sons for such partition is not necessary. In
the case reported as AIR 1983 SUPREME COURT
409
[Apoorva Shantilal Shah Vs. Commissioner of Income-Tax,
Gujrat I, Ahmedabad], the Apex Court has observed that father
is entitled to effect even partial partition of joint Hindu family
property by virtue of his right as patria potestas. If shares are
unequal, the partition made by father will be binding on them as
family arrangement, if it is acquiescence in by them. Thus, the
partition will be good until it is set aside. Further the partition can
be partial in respect of property or in respect of persons making it.
21.
In the present case, on partition Anusayabai and
Saraswatibai (two wives together) were entitled to have share
equal to that of a son. At the relevant time, partition would have
taken place amongst Nilkanthrao, his two wives and one son.
Plaintiff was not born in the year 1960 and so, there was no need
to carve out share for him. Thus, each wife had 1/6th share.
Nilkanthrao had 1/3rd share and he could have given his own
1/3rd share also to Anusayabai in lieu of maintenance. So, it was
possible for Nilkanthrao to partition the properties and give
intimation to revenue authority to give effect to the partition
effected by him. In view of provisions of Hindu Law, there was no
this case.
The aforesaid discussion shows that if the matter is
22.
need of execution of any separate document of conveyance in
considered from both the angles like the power of Manager to
alienate the property for legal necessity and power of father to
effect partition, the plaintiff had no right to challenge such act of
his father.
23.
Defendant No. 1 had already contested the matter
against defendant No. 5 before revenue authority. He was there
on the day when cause of action arose for him, in the year 1960.
Defendant No. 1 preferred not to challenge the aforesaid partition.
The suit was filed in the year 1978. As per the record and oral
evidence, the possession of the property given to defendant No. 5
was with her since 1960. Thus, the suit filed in the year 1979 was
barred by limitation as it was not filed within 12 years. The
aforesaid facts show that father had got his share in the partition
and so, under Hindu Law, the plaintiff, who was born subsequently
24.
had no right to reopen the partition.
The revenue record containing information like that of
partition, family arrangement given by Hindu Karta, father is
always relevant. In view of powers of Karta and father, if the
partition is not challenged, the entries made in revenue record at
the instance of father can be accepted as the record of partition
made on the basis of partition effected by father. In such a case,
the report given by father becomes base for mutation. In view of
the provisions of Hindu Law in such a case, the mutations cannot
be ignored altogether.
25.
Reliance was placed by the learned counsel for the
plaintiff on the case reported as 1997 CJ (Bom) 82 [Bhaguji
Bayaji Pokale Vs. Kantilal Baban Gunjawate and Ors.]. The
facts of the reported case were altogether different. There was no
base at all for mutation and so, some observations were made.
26.
For appellants reliance was placed on some reported
cases like (i) AIR 1966 SC 1879 [Eramma Vs. Veerupana],
(ii) AIR 1967 SC 1786, [Mangal Singh Vs. Rattno], (iii) 1982
(0) BCI 34 (Nagpur Bench) [Shantabai Tajaram Kunbi Vs.
Kashiram Doma Kunbi and Ors.], (iv) 1991 (4) Bom. C.R.
115 (Supreme Court) [Kalawatibai Vs. Soiryabai & Ors.]
(v)
AIR
2006
SUPREME
COURT
1993
[Sharad
and
Subramanyan Vs. Soumi Mazumdar and Ors.]. In all these
ig
cases, the provision of section 14 of Hindu Succession Act, 1956 is
discussed. There is no dispute over the propositions made in
these cases. In the case of Kalawati cited supra, there is
discussion of use of Article 65 of Limitation Act also. But, the facts
of this case were totally different. In the last case of Sharad
cited supra, under the will, right to enjoy the property was given
after 1956 and so, it was held that limited interest had not
become absolute property. There cannot be dispute over the
propositions made in all these cases.
27.
In the case reported as 2003 (3) Bom.C.R. 84
(Supreme Court) [Gulabrao Balwantrao Shinde & ors. Vs.
Chhabubai Balwantrao Shinde & ors.], when property was
given in lieu of maintenance by co-parcener and the plaintiff was
in existence as other co-parcener and he had right by birth in
co-parcenery property, the Apex Court held that to the extent of
which the co-parcener had share in joint Hindu family property, he
could have given the said property to his wife in lieu of
maintenance. In this case 1/2 portion was claimed by way of
partition by co-parcener and the suit was decreed to that extent.
The relevant facts and circumstances of the present
28.
case are altogether different and they are already discussed. As
ig
per the mutation, the partition was effected by father, Karta in
1960. He allotted 6 Hector 90 R. portion to his first wife,
defendant No. 5 and he gave almost similar share to his second
wife. Even after giving such shares to two wives, there was
sufficient property left, around 18 Hectors and this property came
to defendant No. 1, atleast after the death of Nilkanthrao. It is
already observed that evidence is given by defendant No. 5 that
land allotted to defendant No. 5 was of low quality and so more
area was given to her than the area given to defendant No. 6. In
view of power of Karta and father, it was necessary to challenge
the said act and within limitation. It is already observed that
Nilkanthrao could have also given his 1/3rd share to his two wives.
Thus, it cannot be said that something in excess to the share of
wives or share of Nilkanthrao was given in partition by Nilkanthrao
or he had exceeded his powers. This Court holds that there was
no need to consider the provision of section 14 of the Hindu
Succession Act, 1956 in favour of defendant No. 5. All other points
formulated as substantial questions of law are answered against
the appellants.
In the result, the appeal stands dismissed.
29.
[ T.V. NALAWADE, J. ]
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