In view of the observations made by the Apex
Court in the case cited supra, this Court has no hesitation
to hold that the plaintiff from partition suit has no
absolute right to withdraw the suit even though the suit
has not reached stage of decision. In the present case
there is decree given by the trial Court not only against
the plaintiff but against defendant No.1. The Trial Court
has declared that in the three properties, defendant No.2
has one-third share. Thus, the defendant No.2 can get
benefit of the judgment and decree. The appeal is
continuation of suit and so withdrawal of appeal in such a
case is also not an absolute right of plaintiff. Further,
when withdrawal would deprive a defendant to get fruits
of the decree given by the trial Court, the appellate Court
is not expected to permit the suit to be withdrawn at
appellate stage. This Court has gone through the terms of
settlement between the two brothers and this Court has
no hesitation to observe that the two brothers want to
deprive the defendant No.2, sister, of the benefits given to
her by the trial Court. They want to prevent defendant No.
2 from claiming relief through original plaintiff in Second
Appeal No.177 of 2005. In view of the aforesaid position of
law, this Court has no hesitation to hold that the prayer of
giving permission to withdraw the suit made by the
plaintiff cannot be accepted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.644 of 2004
Gurudayalsing s/o Mehersing Bindra
Versus
Basant Singh s/o Mehersingh Bindra
Citation;2014(6) MHLJ 186 Bom
CORAM: T.V. NALAWADE, J.
DATE : 21st APRIL 2014
Read original judgment here; click here
1) The appeals are filed against judgment and
decree of Regular Civil Appeal No.39/2000 and 42/2000
which were pending in the Court of the IVth Ad-hoc
District Judge, Aurangabad. Special Civil Suit No.50 of
1971 was filed by Basantsing, appellant from second
proceeding for relief of partition and separate possession
of movable and immovable properties. The suit was partly
decreed in his favour by the trial Court. Both, the plaintiff
and defendant No.1 (appellant from the first proceeding)
challenged the judgment and decree of the trial Court by
filing aforesaid two civil appeals in District Court. The
District Court has confirmed the decision of the trial
Court. Defendant No.2 is the sister of the appellants from
both the proceeding. Heard learned counsel of all the
sides.
2) In these appeals original plaintiff and defendant
No.1, the brothers have filed compromise document and
they have prayed for disposal of both the appeals and also
the original suit as withdrawn. This Court has passed
order to the effect that the prayer made by the plaintiff
and defendant No.1 will be considered at the time of
consideration of both the appeals on merits. In view of this
order, learned counsels for all the sides were heard. The
trial Court has declared that defendant No.2, sister, is
entitled to one-third share in the three properties which
are mentioned in the operative part of the judgment
delivered by the trial Court.
3) For withdrawal of the suit, provisions like Order
23 Rule 1 of the Code of Civil Procedure need to be used.
For withdrawal of the suit, ordinarily no permission of
Court is necessary if plaintiff has no desire to have liberty
to file fresh suit. Ordinarily that permission is given on the
grounds mentioned in Order 23 Rule 1 of the CPC. From
the grounds it can be said that it is ordinarily to be used
before decision of the suit. Though there is such provision,
when the suit is filed for relief of partition, the things are
different. In such a suit plaintiff and defendant are party
of equal status. In the case reported as 2003 CJ (SC) 195
(Chandramohan Ramchandra Patil v. Bapu Koyappa
Patil) at para 13 the Apex Court has made following
observations :
“13. This argument has no merit. In a suit for
partition, plaintiff and defendants are parties of
equal status. If the right of partition has been
recognised and upheld by the Court, merely
because only some of the plaintiffs had
appealed and not all, the Court was not
powerless. It could invoke provisions of Order
41 Rule 4 read with Order 41 Rule 33 of Code of
Civil Procedure. The object of Order 41 Rule 4
is to enable one of the parties to a suit to obtain
relief in appeal when the decree appealed from
proceeds on a ground common to him and
others. The Court in such an appeal may
reverse or vary the decree in favour of all the
parties who are in the same interest as the
appellant. (See Ratanlal v. Firm Lalman Das,
AIR (1970) SC 108).
4) In view of the observations made by the Apex
Court in the case cited supra, this Court has no hesitation
to hold that the plaintiff from partition suit has no
absolute right to withdraw the suit even though the suit
has not reached stage of decision. In the present case
there is decree given by the trial Court not only against
the plaintiff but against defendant No.1. The Trial Court
has declared that in the three properties, defendant No.2
has one-third share. Thus, the defendant No.2 can get
benefit of the judgment and decree. The appeal is
continuation of suit and so withdrawal of appeal in such a
case is also not an absolute right of plaintiff. Further,
when withdrawal would deprive a defendant to get fruits
of the decree given by the trial Court, the appellate Court
is not expected to permit the suit to be withdrawn at
appellate stage. This Court has gone through the terms of
settlement between the two brothers and this Court has
no hesitation to observe that the two brothers want to
deprive the defendant No.2, sister, of the benefits given to
her by the trial Court. They want to prevent defendant No.
2 from claiming relief through original plaintiff in Second
Appeal No.177 of 2005. In view of the aforesaid position of
law, this Court has no hesitation to hold that the prayer of
giving permission to withdraw the suit made by the
plaintiff cannot be accepted.
5) The submissions made for withdrawal of
Second Appeal No.644 of 2004 by original defendant No.1
needs to be looked from different angle. Defendant No.2
has not filed cross-objection in this appeal. On this point
following cases need to be referred :
(1) (1982) 1 SCC 232 (Choudhary Sahu v.
State of Bihar);
(2) (2010) 7 SCC 717 (Laxman Tatyaba
Kankate v. Taramati Harishchandra Dhatrak);
(3) 2004 CJ (Bom) 982 (Porbuko Uma
Mandrekar v. Wencesslay Alex Dsilva).
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6) Law is summed up by the Apex Court in the
case of Choudhary Sahu (supra) at paragraphs 12 to 14
and these paragraphs contain relevant facts also. The
Apex Court has discussed the provisions of Order 41 Rule
33 of the Code of Civil Procedure and the observations are
made at paragraphs 12 to 14 as under :
“12. The object of this Rule is to avoid
contradictory and inconsistent decisions on the
same questions in the same suit. As the power
under this rule is in derogation of the general
principle that a party cannot avoid a decree
against him without filing an appeal or crossobjection,
it must be exercised with care and
caution. The Rule does not confer an
unrestricted right to re-open decrees which have
become final merely because the appellate court
does not agree with the opinion of the court
appealed from.
13. Ordinarily, the power conferred by this
Rule will be confined to those cases where as a
result of interference in favour of the appellant
further interference with the decree of the lower
court is rendered necessary in order to adjust
the rights of the parties according to justice,
equity and good conscience. While exercising
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the power under this Rule the court should not
lose sight of the other provisions of the Code
itself nor the provisions of other laws, viz., the
law of limitation or the law of court fees etc.
14. In these appeals the Collector on the basis
of the material placed before him allowed
certain units to the various appellants. In the
absence of any appeal by the State of Bihar,
there was no justification for the Commissioner
to have interfered with that finding in favour of
the appellants. The facts and circumstances of
these appeals are not such in which it would be
appropriate to exercise the power under Order
41, Rule 33. The Commissioner as well as the
High Court committed a manifest error in
reversing the finding regarding allotment of
units to the various appellants in the absence of
any appeal by the State of Bihar when the same
had become final and rights of the State of Bihar
had come to an end to that extent by not filing
any appeal or cross-objection within the period
of limitation.”
7) The appellant from Second Appeal No.644 of
2004 was defendant No.1 in the suit and decree at least in
respect of three properties is given against him. That
decree is in favour of the plaintiff and defendant No.2. He
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has challenged only that part of the decision. As
withdrawal of Second Appeal No.644 of 2004 will amount
to acceptance of this decision of the trial Court, such
withdrawal can be allowed. So, the prayer made by the
defendant No.1 to allow him to withdraw Second Appeal
No.644 of 2004 is allowed. In the result, the decision
given by the trial Court to that extent becomes final as
against defendant No.1. Thus, this Court is expected to
decide only Second Appeal No.177 of 2005 filed by
original plaintiff on merits. This appeal is continuation of
the suit and so all the claims made by the plaintiff need to
be considered.
8) The parties are Sikh/Hindu. Plaintiff Basant
Singh and defendant No.1 Gurudayal Singh are sons of
Laxman Kaur and defendant No.2 Autar Kaur is their
sister. Learned counsel for the plaintiff mainly made
submissions in respect of immovable property. The suit
which was filed for partition of movable property by
defendant No.2 in the past was decided against her and it
was held that movable property belonged to defendant
No.1. Present plaintiff was party to that suit and the trial
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Court has held that the decision given in the previous suit
has become final and it operates as res judicata against
the suit claim in respect of movable property. This
decision was not challenged during arguments. Thus, the
dispute is only in respect of following immovable property
situated at Aurangabad.
(1) Plot No.5-5-26 situated at Kranti Chowk.
(2) Plot No.5-5-29 situated at Kranti Chowk.
(3) Plot No.5-5-52 situated at Kranti Chowk.
(4) Plot No.5-5-27 situated at Kranti Chowk.
(5) House property bearing No.5-1-101 situated at
Osmanpura.
9) The aforesaid first three properties are
standing in the name of Amriksingh and plaintiff Basant
Singh. It is the case of the plaintiff that these properties
were purchased by them out of the income of business
which they were doing together. The last two properties
are standing in the name of Laxman Kaur, the mother of
the parties. It is the case of the plaintiff that last two
properties were also purchased by him and Amriksingh
from the income received from their joint business.
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10) It is the case of the plaintiff that his grand
father Amriksingh and grand mother Gurdevi Kaur took
care of him right from his childhood as they had no male
issue and as they had love and affection for him. Laxman
Kaur mother of the plaintiff was the only issue to this
couple. It is the case of the plaintiff that when he became
major, he joined the timber and tiles business of
Amriksingh. It is his case that he was doing the business
in partnership with Amriksingh. It is his case that all the
suit properties were purchased by Amriksingh and him
from the income of this business. It is the case of the
plaintiff that after death of Amriksingh, he continued to
carry on business in partnership firstly with Gurdevi Kaur
and after her death with Laxman Kaur. It is contended
that though name of Laxman Kaur was in the sale deed, it
was a benami transaction.
11) Amriksingh died on 4-5-1955. Gurdevi Kaur
died on 28-11-1961. Laxman Kaur died on 19-4-1968.
12) The defendant No.1 contested the suit. He
denied that there was partnership between Amriksingh
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and the plaintiff. He contended that Laxman Kaur was
absolute owner of the property Nos.5-5-27 and 5-1-101. It
is contended that the remaining properties were
belonging to Amriksingh though they were purchased in
the name of plaintiff and Amriksingh. It is contended that,
business was done by Amriksingh and the business was in
existence from prior to 1930 and it was not a partnership
concern.
13) It is the case of the defendant No.1 that after
death of Amriksingh, widow of Amriksingh namely
Gurdevi Kaur became owner of the properties which were
left behind by Amriksingh i.e. the first three properties. It
is contended that, by will deed dated 5-9-1958 Gurdevi
Kaur bequeathed her properties in favour of defendant
No.1. It is contended that Laxman Kaur also made Will in
his favour on 5-9-1958 in respect of property Nos.4 and 5.
It is contended that gift document dated 23-3-1965 was
subsequently made by Laxman Kaur and the properties
belonging to Laxman Kaur were gifted to him.
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14) It is the case of the defendant No.1 that
defendant No.2, sister, had filed Special Civil Suit No.
18/1970 against him and present plaintiff for relief of
partition of movable properties. It is contended that said
suit was dismissed and the decision has become final. It is
his case that defendant No.2 Autar Kaur ought to have
included all the properties if they were left behind by
Amriksingh in the same suit and as that is not done the
doctrine of res judicata operates to the present suit. It is
contended that the plaintiff was also party to the suit and
he had appeared in the suit and so bar of res judicata
operates against him also. Defendant No.1 took the
defence that there has been total ouster of plaintiff and
defendant No.2 from many years, the dates on which he
became owner under aforesaid documents.
15) Defendant No.2 Autar Kaur did not appear in
the present suit and ex-parte order was made against her.
However, she appeared in the first appeal and in the
present appeal.
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16) On the basis of the aforesaid pleadings, issues
were framed by the trial Court. Plaintiff and defendant No.
1 gave evidence. The trial Court has held that the decision
of Special Civil Suit No.18/1970 operates as res judicata
but only in respect of two issues like (1) issue regarding
ownership of movable property; and, (2) the issue
regarding proof of the two Wills by defendant No.1
executed in his favour. The trial Court has held that the
plaintiff failed to prove that there was partnership
between him and Amriksingh and out of the income of the
partnership business the suit properties were purchased.
The trial Court has held that due to aforesaid two wills
and also gift deed executed by Laxman Kaur in favour of
defendant No.1, defendant No.1 has become owner of the
properties bequeathed and gifted in these three
documents. The trial Court also held that only one half
portion of the property Nos.5-5-26 and 5-5-29 is available
for partition as this property was belonged to Amriksingh
and this property was neither gifted nor bequeathed by
Gurdevi Kaur or Laxman Kaur in favour of defendant No.1.
The trial Court has held that the three issues of Laxman
Kaur are entitled to have equal share in this remaining
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property and so each is entitled to one sixth share. This
decision is confirmed by the first Appellate Court.
17) Even after considering the terms of settlement
filed by the plaintiff and defendant No.1 in this Court, in
view of the reasons already given, the points formulated
as substantial questions of law by this Court and few other
points need to be decided in the appeal of the plaintiff.
Learned counsels of all the sides were allowed to argue
on the following points, which were framed on the basis of
the grounds mentioned in the appeal memo.
(i) whether the Courts below have
committed error in holding that all the five
immovable properties mentioned in the plaint
were owned by Amriksingh ?
(ii) whether the Courts below have committed
error in holding that the transactions of
purchasing of three properties in the name of
Amriksingh and the plaintiff were benami to
the extent of name of plaintiff shown in the
document ?
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(iii) whether the Courts below have committed
error in holding that the provisions of Benami
Transactions (Prohibition) Act, 1988 are not
applicable to the transactions under which the
properties were purchased in the name of the
plaintiff ?
(iv) whether the Courts below have committed
error in not giving share to the plaintiff in
Municipal House No.1615 (Old No.5-5-27 and
5-1-101) ?
(v) whether the Courts below have committed
error in holding that two Wills and gift deed
made and executed in favour of defendant No.1
are duly proved.
18) Before the trial Court, copies of plaint, written
statement and judgment delivered by the trial Court, the
appellate Court, the High Court in Special Civil Suit No.
18/1970 were produced. The decision of Special Civil Suit
No.18/1970 has become final. The suit was filed by
present defendant No.2 Autar Kaur for partition of only
movable property left behind by her mother Laxman Kaur.
The suit was filed in forma pauperism as the defendant
No.2 had no source of income to file the suit. Present
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plaintiff appeared in the suit but he did not file written
statement. He appeared in the subsequent proceedings
filed in the Appellate Court. Only present defendant No.1
filed written statement. In Special Civil Suit No.18/1970
Gurudayal Singh contented that the properties belonged
to him as Gurdevi Kaur, his grandmother, had given the
suit property to him by Will dated 5-9-1958. He also
contended that his mother Laxman Kaur had also
executed Will in his favour in respect of the suit property
and so he had become owner. It appears that no specific
issues with regard to the two Wills made by Gurdevi Kaur
and Laxman Kaur were framed but in view of the
pleadings it was necessary to consider the Wills for
decision of the suit. The trial Court held that both the
Wills were duly proved by Gurudayal Singh. The trial
Court held that Gurudayal Singh had become owner of
the suit property from Suit No.18/1970 due to Will
executed by Gurdevi Kaur. In the result, the suit filed for
relief of partition in respect to movable property left
behind by Gurdevi Kaur and Laxman Kaur was dismissed.
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19) The previous suit was filed for partition and
though the present plaintiff Basant Singh had not filed
written statement, from the circumstances, it can be said
that he was interested in getting share in the suit property
of Special Civil Suit No.18/1970, the movable properties.
In the present case also share in the same movable
property was claimed by Basant Singh. It is already
observed that nature of the partition suit is different from
the nature of other suits. In the case reported as A.I.R.
(37) 1950 PC 17 (Chandu Lal v. Khalilur Rahaman) the
Privy Council has observed that doctrine of res judicata
applies as between parties who have been co-defendants
in a previous suit provided tests laid down by the Privy
Council are satisfied. The Privy Council has laid down
following three tests :-
(1) existence of conflict of interests between
co-defendants;
(2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief;
and
(3) decision given on the said question
between the co-defendants.
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In view of this ratio and the facts and circumstances
of Special Civil Suit No.18/1970 already discussed, this
Court has no hesitation to hold that the decision on two
issues of the previous suit like (1) the issue with regard to
relief of partition in respect of movable property; and (2)
the issue with regard to proof of two Wills executed by
Gurdevi Kaur and Laxman Kaur in favour of defendant
No.1 operate as res judicata under section 11 of CPC to
that extent to the present suit and the said decision given
in the previous suit, on the two issues, need to be used in
the present suit.
20) Submission was made by the learned counsel
for the original defendant No.1 that the doctrine of res
judicata applies to the entire suit. This proposition cannot
be accepted. He drew attention of this Court to the
provisions of Order 2 Rule 2 of the Code of Civil
Procedure. The provision reads as under :-
“2. Suit to include the whole claim.-- (1) Every
suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause
of action; but a plaintiff may relinquish any portion
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of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of claim.-- Where
a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) Omission to sue for one of several
reliefs.-- A person entitled to more than one relief
in respect of the same cause of action may sue for
all or any of such reliefs, but if he omits, except
with the leave of the Court, to sue for all such
reliefs, he shall not afterward sue for any relief so
omitted.
Explanation.-- For the purposes of this rule
an obligation and a collateral security for its
performance and successive claims arising under
the same obligation shall be deemed respectively
to constitute but one cause of action.”
From bare reading of the provision, it can be said
that the provision is against the plaintiff. There may be
circumstance that when defendant of previous suit could
not have claimed relief which only the plaintiff could
have claimed. In the suit filed for partition, the defendant
can defend the suit simply by contending that all the
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properties which can be subjected to partition are not
included in the suit and the suit is not tenable in view of
provisions of Hindu Law. In view of this circumstance only
because present plaintiff was also party defendant in a
suit previously filed by defendant No.2, it cannot be said
that there is bar of provision of Order 2 Rule 2, CPC
against the present plaintiff. It was not open for the
present plaintiff to file suit for partition in respect of
movable properties for the reasons already given but law
does not prevent him from filing suit for partition of
immovable properties. This Court has no hesitation to hold
that in view of the facts and aforesaid circumstances, even
plaintiff of previous suit could not have been prevented
from filing suit for partition in respect of immovable
properties. Further she is defendant in the present suit
and she cannot be denied the relief which she is entitled
to get along with the plaintiff and other defendant from
the present suit. There is one more circumstance like the
claim of the plaintiff of his ownership of half share in the
immovable properties in view of his case of purchase of
the properties from the joint income. On this point
reliance can be placed on the observations made by the
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Apex Court in the case reported as AIR 1989 SC 879
(Shankarrao v. Vithalrao). Thus, the claim in respect of
immovable properties of both the plaintiff and defendant
No.2 can be considered in the present suit.
21) On the basis of oral evidence and the
admissions given in the previous suits, the Courts below
have held that the plaintiff was born in or about 1927. At
least three suit properties were purchased before
attaining majority by plaintiff. His contention that he
started business in partnership with Amriksingh after his
attaining majority needs to be kept in mind in this regard.
The property bearing No.5-5-27 is shown to be purchased
in the year 1945-46 (1355 Fasli). Property bearing No.
5-5-29 is shown to be purchased in the year 1939-40 (1349
Fasli) and the property bearing No.5-1-101 is shown to be
purchased in the year 1932-33. Thus, at least the
aforesaid properties were purchased when plaintiff had
not attained majority and he had not started doing
business in partnership as per his case. The third property
was purchased in the name of Laxman Kaur.
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22) There are three sale deeds in respect of
property Nos.5-5-26 and 5-5-29 and they include one lane
situated between two constructions. This property was
purchased in the name of Amriksingh and plaintiff before
1945. The evidence on the record is sufficient to prove
that prior to 1930 Amriksingh was in the business of
timber and tiles and it was the only source of income for
his family. Pleadings show that plaintiff and his mother
had no independent source of income. Copies of
depositions given by the present plaintiff and Amriksingh
in a suit between Amriksingh and Shantawan Saule are
produced. In that previous suit plaintiff had given
evidence that Amriksingh was the sole owner of the
aforesaid business, shop. Similarly, Amriksingh had given
evidence that he was owner of the shop and present
plaintiff was working with him to learn the job. It appears
that as the plaintiff was son of only daughter of
Amriksingh, his name was entered in the shop name and
the shop was named as "Amriksingh and Basant Singh
Shop" Only due to this circumstance inference is not
possible that the business was being run in partnership.
There are the aforesaid circumstances which are against
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the plaintiff. Further, other evidence shows that after the
death of Amriksingh, in 1955, it is the defendant No.1
Gurudayal Singh who started running the business. Thus,
there is nothing with the plaintiff to prove that he was
doing the business in partnership firstly with Amriksingh
then with Gurdevi Kaur and then with Laxman Kaur. In
view of this record and circumstances both the Courts
below have held that it was the business of Amriksingh
alone and the properties were purchased by Amriksingh.
It is finding of fact.
23) Property No.5-5-52 was allotted to Amriksingh
by Municipal Council as Amriksingh was asked to shift the
shop from thickly populated area to a place situated at
some distance from the city. There is record to that effect.
In view of this record, the Courts below have held that this
property also belonged to Amriksingh alone. The plaintiff
has admitted that Amriksingh had given him shelter and
plaintiff had no other source of income. The record and
circumstances lead to only one inference that only
because the plaintiff was living with Amriksingh,
Amriksingh had no son and plaintiff was the son of only
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daughter of Amriksingh, name of the plaintiff was shown
in the sale deeds as one of the purchasers. Same can be
said in respect of the properties which were purchased in
the name of Laxman Kaur, mother of the plaintiff.
Findings of the Courts below are finding of facts on this
issue and there is no possibility of interference in the
concurrent findings given by the two Courts below.
24) In the case reported as AIR 1996 SC 238 (R.
Rajgopal Reddy v Padmini Chandrasekharan) the Apex
Court has laid down that provisions of Benami
Transactions (Prohibition) Act, 1988 cannot be applied to
pending proceedings. As on the date of the coming into
force of the said Act, the present proceeding was pending
said provision could not have been used. On one hand,
plaintiff tried to protect property standing in his name by
taking such defence and on the other hand he claimed
that the properties standing in the name of Laxman Kaur
were benami. Thus there is no force in this case of the
plaintiff.
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25) Laxman Kaur had no separate source of income
of her own and she was living with the family of
Amriksingh, with her issues. As per the record and
circumstances, at the time of purchase of properties,
Amriksingh, his wife Gurdevi Kaur and the family of
Laxman Kaur were living with Amriksingh in his property.
In view of the discussion already made and the other
circumstances, there is no reason to interfere in the
finding given by the Courts below that the two properties
like No.5-1-101 and 5-5-27 were also purchased in the
name of Laxman Kaur by Amriksingh.
26) By will deed dated 5-9-1956 Gurdevi Kaur
bequeathed property like entire plot of shop with timber
shop situated on it, half portion of property Nos.5-5-26
and 5-5-29 to defendant No.1, Gurudayalsingh. On the
same date Laxman Kaur bequeathed property standing in
her name like property Nos.5-1-101 and 5-5-29 to
defendant No.1 Gurudayalsingh by separate Will. Though
she was not owner on 5-9-1958 she did not change the
Will and the Will remained in existence and further she
executed gift deed in favour of Gurudayal sing and so the
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will can be given effect.
27) Admittedly Amriksingh died in 1955 leaving
behind his heirs like widow and daughter. Gurdevi Kaur,
widow died on 28-1-1961. In view of the discussion
already made, it is clear that on the date of the Will made
by Gurdevi Kaur, on 5-9-1958 she was the owner of the
properties left behind by Amriksingh. She bequeathed
properties mentioned in the Will to Gurdayalsing,
defendant No.1. After death of Gurdevi Kaur i.e after
28-1-1961, Laxman Kaur became owner of the property
which was left behind by Gurdevi Kaur, the properties
which were not bequeathed or disposed of in any manner
by Gurdevi Kaur during her life time. Thus after 28-1-1961
Laxman Kaur had a right to dispose of the remaining
properties. There was Will made by her in 1958 itself and
she then made gift deed in favour of defendant No.1 on
23-3-1965. These documents show that she had intention
to give the properties mentioned in her Will and gift deed
to Gurudayalsingh, defendant No.1. The gift deed was
proved at least as against Autar Kaur in suit filed against
her by Gurudayalsingh for eviction from those properties.
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The evidence is also given by defendant No.1 to prove the
execution of gift deed and it was registered gift deed.
28) Argument was advanced by learned counsel for
Gurudayal Singh, defendant No.1, that Laxman Kaur was
left behind as one of the heirs along with widow of
Amriksingh and so as per position of Hindu Law in regard
to inheritance and succession which existed prior to
coming into force of Hindu Succession Act 1956, Laxman
Kaur had one half share in the property left behind by
Amriksingh. By making such submission, learned counsel
made further submission that Gurdevi Kaur had no right
to bequeath the share of Laxman Kaur and so share of
Laxman Kaur is available for partition. It was submitted
that Laxman Kaur had one half share in all the five
immovable properties and so the Will executed by Gurdevi
Kaur to that extent cannot be given effect to. As against
this submission, the trial Court has held that only half
portion of the property Nos.5-5-26 and 5-5-29 is available
for partition as this portion was not bequeathed by
Gurdevi Kaur. She was under impression that half portion
was already belonging to plaintiff, Basant Singh. This
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portion was not bequeathed by Laxman Kaur also and she
did not dispose of this portion in any manner.
29) Hindu Law relating to inheritance and
succession which was in existence prior to Hindu
Succession Act 1956 and also the provision of Hindu
Succession Act 1956 need to be considered to ascertain as
to whether there is force in the aforesaid submissions
made by the learned counsel for defendant No.2 – Autar
Kaur.
30) Hindu Law quoted in Para 34 of the Hindu Law
by Mulla (21st Edition) was prevailing on this point prior to
coming into force of Hindu Succession Act 1956. It shows
that, if a Hindu had self acquired property, the property
was succeeded by his heir and this property did not
devolve on other coparceners by survivorship. This para
shows that heirs used to succeed to the separate property
as provided in para 43. Admittedly the suit property was
separate property of Amriksingh. Para 43 shows that such
property could be succeeded by Sapindas. If Sapindas
were not available then the property was succeeded by
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Samanodakas and if Samanodakas were not available the
property was succeeded by bandus. In para 36 and para
38 there is mention to the effect that in the past,
propinquity, proximity of relationship was the governing
factor in this regard. In para 38 law is mentioned which is
to the effect that three classes of heirs are recognised by
Mitakshara, namely, (a) Gotraja sapindas, (b)
Samanodakas, and (c) bandus. It is also mentioned that
the first class succeeds before the second, the second
succeeds before the third. In para 39 list of Gotrja
sapindas is given and both wife and daughter are included
in class gotraja sapindas. The order of succession of
males in cases governed by Mitakshara is given in para
72 and it shows that widow gets along with son. It can be
said that due to the provisions of Hindu Women's Rights
to Property Act 1937 the widow is placed in the same
category as that of son. The first category excludes the
second and so on. In the past widow was listed in separate
category and she was not placed along with son. Act of
1937 changed this position and widow came to be listed to
the category of sons. Daughter remained in next category.
In view of the provision of Hindu Law as mentioned in
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paragraphs 43 and 72 son and widow of the deceased
started inheriting simultaneously. Only if nobody from
that category was available then the daughter was to
inherit. Under this Hindu Law which was in existence
prior to 1956 daughters did not inherit until all the
widows were dead.
31) In view of the Hindu Law which was prevailing,
it needs to be presumed that only Gurdevi Kaur inherited
the property of Amriksingh. As Hindu Women's Right to
Property Act 1937 came in force on 14-4-1937, the
provisions of this Act need to be applied. Section 3 of this
Act runs as under :--
“3. Devolution of property.--- (1) When a Hindu
governed by Dayabhaga School of Hindu law dies
intestate leaving any property, and when a Hindu
governed by any other school of Hindu law or by
customary law dies intestate leaving separate
property, his widow, or if there is more than one
widow all his widows together, shall subject to the
provisions of sub-section (3), be entitled in respect
of property in respect of which he dies intestate to
the same share as a son :
Provided that the widow of a predeceased
son shall inherit in the like manner as a son if there
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is no son surviving of such predeceased son, and
shall inherit in like manner as a son's son if there is
a surviving son or son's son of such predeceased
son :
Provided further that the same provision
shall apply mutatis mutandis to the widow of a
predeceased son of a predeceased son.
(2) When a Hindu governed by any school of
Hindu law other than Dayabhaga School or by
customary law dies having at the time of his death
an interest in a Hindu joint family property, his
widow shall, subject to the provisions of subsection
(3), have in the property the same interest
as he himself had.
(3) Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited
interest known as a Hindu woman's estate,
provided however that she shall have the same right
of claiming partition as a male owner.
(4) The provisions of this section shall not apply
to an estate which by a customary or other rule of
succession or by the terms of the grant applicable
thereto descends on a single heir or to any property
to which the Indian Succession Act, 1925, applies.”
32) In section 3(1) right of widow in respect of self
acquired property of Hindu is mentioned. In section 3(2)
right of widow in respect of the interests of deceased
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male in Hindu joint family property is mentioned. Both
these provisions show that they are subject to provisions
of Section 3(3). Section 3(3) shows that any interest
devolving on a widow shall be the limited interest known
as a Hindu woman’s estate.
33) After coming into effect Hindu Succession Act
1956, due to the provisions of Section 14 Gurdevi Kaur
became full owner of the property which was held by her
as limited owner after the death of her husband,
Amriksingh. After the death of Gurdevi Kaur, in view of
provision of Section 15 of the said Act, Laxman Kaur
became owner of the property left behind by Gurdevi
Kaur. In view of this position of law, this Court has no
hesitation to observe that only those properties which are
held to be available for partition by the Courts below ere
available for partition.
34) Learned counsel for the plaintiff and defendant
No.1 placed reliance on the case reported as 2009 (6)
Mh.L.J. 765 (Chandrakant v. Prashant). In this case
section 3 of the Hindu Women’s Right to Property Act,
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1937 and section 14 of the Hindu Succession Act 1956 are
discussed. The facts of the reported case show that
husband had left behind him a daughter and widow and
death had taken place prior to 1956. The Court held that
daughter was not the heir under section 3 of the Act 1937
and the property devolved upon the widow. Though the
provisions of the Hindu Law which were in force prior to
the Act of 1937 were not referred, it can be said that the
decision was correct and the ratio needs to be applied.
35) Learned counsel for the Autar Kaur defendant
No.2 placed reliance on a case reported as 2005 (3)
Mh.L.J. 506 (Laxman v. Smt. Bendrabai). In this case this
Court held that the aforesaid provisions of Mitakshara
Law (Bombay School) are applicable to the residents of
Berar. There is no dispute that the aforesaid provisions of
Mitakshara School are applicable in this area. The object
of provision of section 14(1) of the Hindu Succession Act
1956 is discussed at para 15. It is observed that daughter
of the deceased was entitled to have equal share when
death had taken place in 1955 and when deceased had left
behind him two widows and a daughter. With due respect,
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it needs to be observed that the position of law which was
prevailing prior to coming into force of Hindu Succession
Act 1956 was not considered by this Court. The first case
on which reliance is placed by the learned counsel for
the plaintiff came to be decided on 24-8-2009 but in this
case the previously decided case of Laxman cited supra
was not referred. This Court holds that the ratio of the
case of Chandrakant (cited supra) needs to be applied.
Reliance was placed on one more case reported as AIR
1951 Orissa 337 (Radhi Bewa v. Bhagwan Sahu) by the
learned counsel for Autar Kaur. The facts of this reported
case were altogether different and only widow was left to
succeed. Similarly facts of the case reported as 1965
Mh.L.J. 745 (Indubai Pandhari Naik v. Vyankati Vithoba
Sawadha) were also altogether different and so the
observations made in this case need not be discussed.
36) In view of the discussion made above, this
Court has no hesitation to hold that the trial Court and
the First Appellate Court have not committed any error in
holding that only properties mentioned in the operative
order of the judgment of the trial Court viz. property Nos.
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5-5-26 and 5-5-29 are available for partition and each
issue of Laxman Kaur has equal share in these properties.
No need is felt to interfere in the decision. In the result
following order.
37) Second Appeal No.177 of 2005 is dismissed.
Second Appeal No.644 of 2004 is disposed of as
withdrawn. All civil applications stand disposed of.
Amendments are allowed in civil application, as payed, to
bring legal representatives on record.
Sd/-
(T.V. NALAWADE, J.)
rsl
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Print Page
Court in the case cited supra, this Court has no hesitation
to hold that the plaintiff from partition suit has no
absolute right to withdraw the suit even though the suit
has not reached stage of decision. In the present case
there is decree given by the trial Court not only against
the plaintiff but against defendant No.1. The Trial Court
has declared that in the three properties, defendant No.2
has one-third share. Thus, the defendant No.2 can get
benefit of the judgment and decree. The appeal is
continuation of suit and so withdrawal of appeal in such a
case is also not an absolute right of plaintiff. Further,
when withdrawal would deprive a defendant to get fruits
of the decree given by the trial Court, the appellate Court
is not expected to permit the suit to be withdrawn at
appellate stage. This Court has gone through the terms of
settlement between the two brothers and this Court has
no hesitation to observe that the two brothers want to
deprive the defendant No.2, sister, of the benefits given to
her by the trial Court. They want to prevent defendant No.
2 from claiming relief through original plaintiff in Second
Appeal No.177 of 2005. In view of the aforesaid position of
law, this Court has no hesitation to hold that the prayer of
giving permission to withdraw the suit made by the
plaintiff cannot be accepted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.644 of 2004
Gurudayalsing s/o Mehersing Bindra
Versus
Basant Singh s/o Mehersingh Bindra
Citation;2014(6) MHLJ 186 Bom
CORAM: T.V. NALAWADE, J.
DATE : 21st APRIL 2014
Read original judgment here; click here
1) The appeals are filed against judgment and
decree of Regular Civil Appeal No.39/2000 and 42/2000
which were pending in the Court of the IVth Ad-hoc
District Judge, Aurangabad. Special Civil Suit No.50 of
1971 was filed by Basantsing, appellant from second
proceeding for relief of partition and separate possession
of movable and immovable properties. The suit was partly
decreed in his favour by the trial Court. Both, the plaintiff
and defendant No.1 (appellant from the first proceeding)
challenged the judgment and decree of the trial Court by
filing aforesaid two civil appeals in District Court. The
District Court has confirmed the decision of the trial
Court. Defendant No.2 is the sister of the appellants from
both the proceeding. Heard learned counsel of all the
sides.
2) In these appeals original plaintiff and defendant
No.1, the brothers have filed compromise document and
they have prayed for disposal of both the appeals and also
the original suit as withdrawn. This Court has passed
order to the effect that the prayer made by the plaintiff
and defendant No.1 will be considered at the time of
consideration of both the appeals on merits. In view of this
order, learned counsels for all the sides were heard. The
trial Court has declared that defendant No.2, sister, is
entitled to one-third share in the three properties which
are mentioned in the operative part of the judgment
delivered by the trial Court.
3) For withdrawal of the suit, provisions like Order
23 Rule 1 of the Code of Civil Procedure need to be used.
For withdrawal of the suit, ordinarily no permission of
Court is necessary if plaintiff has no desire to have liberty
to file fresh suit. Ordinarily that permission is given on the
grounds mentioned in Order 23 Rule 1 of the CPC. From
the grounds it can be said that it is ordinarily to be used
before decision of the suit. Though there is such provision,
when the suit is filed for relief of partition, the things are
different. In such a suit plaintiff and defendant are party
of equal status. In the case reported as 2003 CJ (SC) 195
(Chandramohan Ramchandra Patil v. Bapu Koyappa
Patil) at para 13 the Apex Court has made following
observations :
“13. This argument has no merit. In a suit for
partition, plaintiff and defendants are parties of
equal status. If the right of partition has been
recognised and upheld by the Court, merely
because only some of the plaintiffs had
appealed and not all, the Court was not
powerless. It could invoke provisions of Order
41 Rule 4 read with Order 41 Rule 33 of Code of
Civil Procedure. The object of Order 41 Rule 4
is to enable one of the parties to a suit to obtain
relief in appeal when the decree appealed from
proceeds on a ground common to him and
others. The Court in such an appeal may
reverse or vary the decree in favour of all the
parties who are in the same interest as the
appellant. (See Ratanlal v. Firm Lalman Das,
AIR (1970) SC 108).
4) In view of the observations made by the Apex
Court in the case cited supra, this Court has no hesitation
to hold that the plaintiff from partition suit has no
absolute right to withdraw the suit even though the suit
has not reached stage of decision. In the present case
there is decree given by the trial Court not only against
the plaintiff but against defendant No.1. The Trial Court
has declared that in the three properties, defendant No.2
has one-third share. Thus, the defendant No.2 can get
benefit of the judgment and decree. The appeal is
continuation of suit and so withdrawal of appeal in such a
case is also not an absolute right of plaintiff. Further,
when withdrawal would deprive a defendant to get fruits
of the decree given by the trial Court, the appellate Court
is not expected to permit the suit to be withdrawn at
appellate stage. This Court has gone through the terms of
settlement between the two brothers and this Court has
no hesitation to observe that the two brothers want to
deprive the defendant No.2, sister, of the benefits given to
her by the trial Court. They want to prevent defendant No.
2 from claiming relief through original plaintiff in Second
Appeal No.177 of 2005. In view of the aforesaid position of
law, this Court has no hesitation to hold that the prayer of
giving permission to withdraw the suit made by the
plaintiff cannot be accepted.
5) The submissions made for withdrawal of
Second Appeal No.644 of 2004 by original defendant No.1
needs to be looked from different angle. Defendant No.2
has not filed cross-objection in this appeal. On this point
following cases need to be referred :
(1) (1982) 1 SCC 232 (Choudhary Sahu v.
State of Bihar);
(2) (2010) 7 SCC 717 (Laxman Tatyaba
Kankate v. Taramati Harishchandra Dhatrak);
(3) 2004 CJ (Bom) 982 (Porbuko Uma
Mandrekar v. Wencesslay Alex Dsilva).
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6) Law is summed up by the Apex Court in the
case of Choudhary Sahu (supra) at paragraphs 12 to 14
and these paragraphs contain relevant facts also. The
Apex Court has discussed the provisions of Order 41 Rule
33 of the Code of Civil Procedure and the observations are
made at paragraphs 12 to 14 as under :
“12. The object of this Rule is to avoid
contradictory and inconsistent decisions on the
same questions in the same suit. As the power
under this rule is in derogation of the general
principle that a party cannot avoid a decree
against him without filing an appeal or crossobjection,
it must be exercised with care and
caution. The Rule does not confer an
unrestricted right to re-open decrees which have
become final merely because the appellate court
does not agree with the opinion of the court
appealed from.
13. Ordinarily, the power conferred by this
Rule will be confined to those cases where as a
result of interference in favour of the appellant
further interference with the decree of the lower
court is rendered necessary in order to adjust
the rights of the parties according to justice,
equity and good conscience. While exercising
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the power under this Rule the court should not
lose sight of the other provisions of the Code
itself nor the provisions of other laws, viz., the
law of limitation or the law of court fees etc.
14. In these appeals the Collector on the basis
of the material placed before him allowed
certain units to the various appellants. In the
absence of any appeal by the State of Bihar,
there was no justification for the Commissioner
to have interfered with that finding in favour of
the appellants. The facts and circumstances of
these appeals are not such in which it would be
appropriate to exercise the power under Order
41, Rule 33. The Commissioner as well as the
High Court committed a manifest error in
reversing the finding regarding allotment of
units to the various appellants in the absence of
any appeal by the State of Bihar when the same
had become final and rights of the State of Bihar
had come to an end to that extent by not filing
any appeal or cross-objection within the period
of limitation.”
7) The appellant from Second Appeal No.644 of
2004 was defendant No.1 in the suit and decree at least in
respect of three properties is given against him. That
decree is in favour of the plaintiff and defendant No.2. He
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has challenged only that part of the decision. As
withdrawal of Second Appeal No.644 of 2004 will amount
to acceptance of this decision of the trial Court, such
withdrawal can be allowed. So, the prayer made by the
defendant No.1 to allow him to withdraw Second Appeal
No.644 of 2004 is allowed. In the result, the decision
given by the trial Court to that extent becomes final as
against defendant No.1. Thus, this Court is expected to
decide only Second Appeal No.177 of 2005 filed by
original plaintiff on merits. This appeal is continuation of
the suit and so all the claims made by the plaintiff need to
be considered.
8) The parties are Sikh/Hindu. Plaintiff Basant
Singh and defendant No.1 Gurudayal Singh are sons of
Laxman Kaur and defendant No.2 Autar Kaur is their
sister. Learned counsel for the plaintiff mainly made
submissions in respect of immovable property. The suit
which was filed for partition of movable property by
defendant No.2 in the past was decided against her and it
was held that movable property belonged to defendant
No.1. Present plaintiff was party to that suit and the trial
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Court has held that the decision given in the previous suit
has become final and it operates as res judicata against
the suit claim in respect of movable property. This
decision was not challenged during arguments. Thus, the
dispute is only in respect of following immovable property
situated at Aurangabad.
(1) Plot No.5-5-26 situated at Kranti Chowk.
(2) Plot No.5-5-29 situated at Kranti Chowk.
(3) Plot No.5-5-52 situated at Kranti Chowk.
(4) Plot No.5-5-27 situated at Kranti Chowk.
(5) House property bearing No.5-1-101 situated at
Osmanpura.
9) The aforesaid first three properties are
standing in the name of Amriksingh and plaintiff Basant
Singh. It is the case of the plaintiff that these properties
were purchased by them out of the income of business
which they were doing together. The last two properties
are standing in the name of Laxman Kaur, the mother of
the parties. It is the case of the plaintiff that last two
properties were also purchased by him and Amriksingh
from the income received from their joint business.
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10) It is the case of the plaintiff that his grand
father Amriksingh and grand mother Gurdevi Kaur took
care of him right from his childhood as they had no male
issue and as they had love and affection for him. Laxman
Kaur mother of the plaintiff was the only issue to this
couple. It is the case of the plaintiff that when he became
major, he joined the timber and tiles business of
Amriksingh. It is his case that he was doing the business
in partnership with Amriksingh. It is his case that all the
suit properties were purchased by Amriksingh and him
from the income of this business. It is the case of the
plaintiff that after death of Amriksingh, he continued to
carry on business in partnership firstly with Gurdevi Kaur
and after her death with Laxman Kaur. It is contended
that though name of Laxman Kaur was in the sale deed, it
was a benami transaction.
11) Amriksingh died on 4-5-1955. Gurdevi Kaur
died on 28-11-1961. Laxman Kaur died on 19-4-1968.
12) The defendant No.1 contested the suit. He
denied that there was partnership between Amriksingh
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and the plaintiff. He contended that Laxman Kaur was
absolute owner of the property Nos.5-5-27 and 5-1-101. It
is contended that the remaining properties were
belonging to Amriksingh though they were purchased in
the name of plaintiff and Amriksingh. It is contended that,
business was done by Amriksingh and the business was in
existence from prior to 1930 and it was not a partnership
concern.
13) It is the case of the defendant No.1 that after
death of Amriksingh, widow of Amriksingh namely
Gurdevi Kaur became owner of the properties which were
left behind by Amriksingh i.e. the first three properties. It
is contended that, by will deed dated 5-9-1958 Gurdevi
Kaur bequeathed her properties in favour of defendant
No.1. It is contended that Laxman Kaur also made Will in
his favour on 5-9-1958 in respect of property Nos.4 and 5.
It is contended that gift document dated 23-3-1965 was
subsequently made by Laxman Kaur and the properties
belonging to Laxman Kaur were gifted to him.
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14) It is the case of the defendant No.1 that
defendant No.2, sister, had filed Special Civil Suit No.
18/1970 against him and present plaintiff for relief of
partition of movable properties. It is contended that said
suit was dismissed and the decision has become final. It is
his case that defendant No.2 Autar Kaur ought to have
included all the properties if they were left behind by
Amriksingh in the same suit and as that is not done the
doctrine of res judicata operates to the present suit. It is
contended that the plaintiff was also party to the suit and
he had appeared in the suit and so bar of res judicata
operates against him also. Defendant No.1 took the
defence that there has been total ouster of plaintiff and
defendant No.2 from many years, the dates on which he
became owner under aforesaid documents.
15) Defendant No.2 Autar Kaur did not appear in
the present suit and ex-parte order was made against her.
However, she appeared in the first appeal and in the
present appeal.
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16) On the basis of the aforesaid pleadings, issues
were framed by the trial Court. Plaintiff and defendant No.
1 gave evidence. The trial Court has held that the decision
of Special Civil Suit No.18/1970 operates as res judicata
but only in respect of two issues like (1) issue regarding
ownership of movable property; and, (2) the issue
regarding proof of the two Wills by defendant No.1
executed in his favour. The trial Court has held that the
plaintiff failed to prove that there was partnership
between him and Amriksingh and out of the income of the
partnership business the suit properties were purchased.
The trial Court has held that due to aforesaid two wills
and also gift deed executed by Laxman Kaur in favour of
defendant No.1, defendant No.1 has become owner of the
properties bequeathed and gifted in these three
documents. The trial Court also held that only one half
portion of the property Nos.5-5-26 and 5-5-29 is available
for partition as this property was belonged to Amriksingh
and this property was neither gifted nor bequeathed by
Gurdevi Kaur or Laxman Kaur in favour of defendant No.1.
The trial Court has held that the three issues of Laxman
Kaur are entitled to have equal share in this remaining
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property and so each is entitled to one sixth share. This
decision is confirmed by the first Appellate Court.
17) Even after considering the terms of settlement
filed by the plaintiff and defendant No.1 in this Court, in
view of the reasons already given, the points formulated
as substantial questions of law by this Court and few other
points need to be decided in the appeal of the plaintiff.
Learned counsels of all the sides were allowed to argue
on the following points, which were framed on the basis of
the grounds mentioned in the appeal memo.
(i) whether the Courts below have
committed error in holding that all the five
immovable properties mentioned in the plaint
were owned by Amriksingh ?
(ii) whether the Courts below have committed
error in holding that the transactions of
purchasing of three properties in the name of
Amriksingh and the plaintiff were benami to
the extent of name of plaintiff shown in the
document ?
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(iii) whether the Courts below have committed
error in holding that the provisions of Benami
Transactions (Prohibition) Act, 1988 are not
applicable to the transactions under which the
properties were purchased in the name of the
plaintiff ?
(iv) whether the Courts below have committed
error in not giving share to the plaintiff in
Municipal House No.1615 (Old No.5-5-27 and
5-1-101) ?
(v) whether the Courts below have committed
error in holding that two Wills and gift deed
made and executed in favour of defendant No.1
are duly proved.
18) Before the trial Court, copies of plaint, written
statement and judgment delivered by the trial Court, the
appellate Court, the High Court in Special Civil Suit No.
18/1970 were produced. The decision of Special Civil Suit
No.18/1970 has become final. The suit was filed by
present defendant No.2 Autar Kaur for partition of only
movable property left behind by her mother Laxman Kaur.
The suit was filed in forma pauperism as the defendant
No.2 had no source of income to file the suit. Present
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plaintiff appeared in the suit but he did not file written
statement. He appeared in the subsequent proceedings
filed in the Appellate Court. Only present defendant No.1
filed written statement. In Special Civil Suit No.18/1970
Gurudayal Singh contented that the properties belonged
to him as Gurdevi Kaur, his grandmother, had given the
suit property to him by Will dated 5-9-1958. He also
contended that his mother Laxman Kaur had also
executed Will in his favour in respect of the suit property
and so he had become owner. It appears that no specific
issues with regard to the two Wills made by Gurdevi Kaur
and Laxman Kaur were framed but in view of the
pleadings it was necessary to consider the Wills for
decision of the suit. The trial Court held that both the
Wills were duly proved by Gurudayal Singh. The trial
Court held that Gurudayal Singh had become owner of
the suit property from Suit No.18/1970 due to Will
executed by Gurdevi Kaur. In the result, the suit filed for
relief of partition in respect to movable property left
behind by Gurdevi Kaur and Laxman Kaur was dismissed.
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19) The previous suit was filed for partition and
though the present plaintiff Basant Singh had not filed
written statement, from the circumstances, it can be said
that he was interested in getting share in the suit property
of Special Civil Suit No.18/1970, the movable properties.
In the present case also share in the same movable
property was claimed by Basant Singh. It is already
observed that nature of the partition suit is different from
the nature of other suits. In the case reported as A.I.R.
(37) 1950 PC 17 (Chandu Lal v. Khalilur Rahaman) the
Privy Council has observed that doctrine of res judicata
applies as between parties who have been co-defendants
in a previous suit provided tests laid down by the Privy
Council are satisfied. The Privy Council has laid down
following three tests :-
(1) existence of conflict of interests between
co-defendants;
(2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief;
and
(3) decision given on the said question
between the co-defendants.
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In view of this ratio and the facts and circumstances
of Special Civil Suit No.18/1970 already discussed, this
Court has no hesitation to hold that the decision on two
issues of the previous suit like (1) the issue with regard to
relief of partition in respect of movable property; and (2)
the issue with regard to proof of two Wills executed by
Gurdevi Kaur and Laxman Kaur in favour of defendant
No.1 operate as res judicata under section 11 of CPC to
that extent to the present suit and the said decision given
in the previous suit, on the two issues, need to be used in
the present suit.
20) Submission was made by the learned counsel
for the original defendant No.1 that the doctrine of res
judicata applies to the entire suit. This proposition cannot
be accepted. He drew attention of this Court to the
provisions of Order 2 Rule 2 of the Code of Civil
Procedure. The provision reads as under :-
“2. Suit to include the whole claim.-- (1) Every
suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause
of action; but a plaintiff may relinquish any portion
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of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of claim.-- Where
a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) Omission to sue for one of several
reliefs.-- A person entitled to more than one relief
in respect of the same cause of action may sue for
all or any of such reliefs, but if he omits, except
with the leave of the Court, to sue for all such
reliefs, he shall not afterward sue for any relief so
omitted.
Explanation.-- For the purposes of this rule
an obligation and a collateral security for its
performance and successive claims arising under
the same obligation shall be deemed respectively
to constitute but one cause of action.”
From bare reading of the provision, it can be said
that the provision is against the plaintiff. There may be
circumstance that when defendant of previous suit could
not have claimed relief which only the plaintiff could
have claimed. In the suit filed for partition, the defendant
can defend the suit simply by contending that all the
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properties which can be subjected to partition are not
included in the suit and the suit is not tenable in view of
provisions of Hindu Law. In view of this circumstance only
because present plaintiff was also party defendant in a
suit previously filed by defendant No.2, it cannot be said
that there is bar of provision of Order 2 Rule 2, CPC
against the present plaintiff. It was not open for the
present plaintiff to file suit for partition in respect of
movable properties for the reasons already given but law
does not prevent him from filing suit for partition of
immovable properties. This Court has no hesitation to hold
that in view of the facts and aforesaid circumstances, even
plaintiff of previous suit could not have been prevented
from filing suit for partition in respect of immovable
properties. Further she is defendant in the present suit
and she cannot be denied the relief which she is entitled
to get along with the plaintiff and other defendant from
the present suit. There is one more circumstance like the
claim of the plaintiff of his ownership of half share in the
immovable properties in view of his case of purchase of
the properties from the joint income. On this point
reliance can be placed on the observations made by the
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Apex Court in the case reported as AIR 1989 SC 879
(Shankarrao v. Vithalrao). Thus, the claim in respect of
immovable properties of both the plaintiff and defendant
No.2 can be considered in the present suit.
21) On the basis of oral evidence and the
admissions given in the previous suits, the Courts below
have held that the plaintiff was born in or about 1927. At
least three suit properties were purchased before
attaining majority by plaintiff. His contention that he
started business in partnership with Amriksingh after his
attaining majority needs to be kept in mind in this regard.
The property bearing No.5-5-27 is shown to be purchased
in the year 1945-46 (1355 Fasli). Property bearing No.
5-5-29 is shown to be purchased in the year 1939-40 (1349
Fasli) and the property bearing No.5-1-101 is shown to be
purchased in the year 1932-33. Thus, at least the
aforesaid properties were purchased when plaintiff had
not attained majority and he had not started doing
business in partnership as per his case. The third property
was purchased in the name of Laxman Kaur.
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22) There are three sale deeds in respect of
property Nos.5-5-26 and 5-5-29 and they include one lane
situated between two constructions. This property was
purchased in the name of Amriksingh and plaintiff before
1945. The evidence on the record is sufficient to prove
that prior to 1930 Amriksingh was in the business of
timber and tiles and it was the only source of income for
his family. Pleadings show that plaintiff and his mother
had no independent source of income. Copies of
depositions given by the present plaintiff and Amriksingh
in a suit between Amriksingh and Shantawan Saule are
produced. In that previous suit plaintiff had given
evidence that Amriksingh was the sole owner of the
aforesaid business, shop. Similarly, Amriksingh had given
evidence that he was owner of the shop and present
plaintiff was working with him to learn the job. It appears
that as the plaintiff was son of only daughter of
Amriksingh, his name was entered in the shop name and
the shop was named as "Amriksingh and Basant Singh
Shop" Only due to this circumstance inference is not
possible that the business was being run in partnership.
There are the aforesaid circumstances which are against
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the plaintiff. Further, other evidence shows that after the
death of Amriksingh, in 1955, it is the defendant No.1
Gurudayal Singh who started running the business. Thus,
there is nothing with the plaintiff to prove that he was
doing the business in partnership firstly with Amriksingh
then with Gurdevi Kaur and then with Laxman Kaur. In
view of this record and circumstances both the Courts
below have held that it was the business of Amriksingh
alone and the properties were purchased by Amriksingh.
It is finding of fact.
23) Property No.5-5-52 was allotted to Amriksingh
by Municipal Council as Amriksingh was asked to shift the
shop from thickly populated area to a place situated at
some distance from the city. There is record to that effect.
In view of this record, the Courts below have held that this
property also belonged to Amriksingh alone. The plaintiff
has admitted that Amriksingh had given him shelter and
plaintiff had no other source of income. The record and
circumstances lead to only one inference that only
because the plaintiff was living with Amriksingh,
Amriksingh had no son and plaintiff was the son of only
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daughter of Amriksingh, name of the plaintiff was shown
in the sale deeds as one of the purchasers. Same can be
said in respect of the properties which were purchased in
the name of Laxman Kaur, mother of the plaintiff.
Findings of the Courts below are finding of facts on this
issue and there is no possibility of interference in the
concurrent findings given by the two Courts below.
24) In the case reported as AIR 1996 SC 238 (R.
Rajgopal Reddy v Padmini Chandrasekharan) the Apex
Court has laid down that provisions of Benami
Transactions (Prohibition) Act, 1988 cannot be applied to
pending proceedings. As on the date of the coming into
force of the said Act, the present proceeding was pending
said provision could not have been used. On one hand,
plaintiff tried to protect property standing in his name by
taking such defence and on the other hand he claimed
that the properties standing in the name of Laxman Kaur
were benami. Thus there is no force in this case of the
plaintiff.
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25) Laxman Kaur had no separate source of income
of her own and she was living with the family of
Amriksingh, with her issues. As per the record and
circumstances, at the time of purchase of properties,
Amriksingh, his wife Gurdevi Kaur and the family of
Laxman Kaur were living with Amriksingh in his property.
In view of the discussion already made and the other
circumstances, there is no reason to interfere in the
finding given by the Courts below that the two properties
like No.5-1-101 and 5-5-27 were also purchased in the
name of Laxman Kaur by Amriksingh.
26) By will deed dated 5-9-1956 Gurdevi Kaur
bequeathed property like entire plot of shop with timber
shop situated on it, half portion of property Nos.5-5-26
and 5-5-29 to defendant No.1, Gurudayalsingh. On the
same date Laxman Kaur bequeathed property standing in
her name like property Nos.5-1-101 and 5-5-29 to
defendant No.1 Gurudayalsingh by separate Will. Though
she was not owner on 5-9-1958 she did not change the
Will and the Will remained in existence and further she
executed gift deed in favour of Gurudayal sing and so the
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will can be given effect.
27) Admittedly Amriksingh died in 1955 leaving
behind his heirs like widow and daughter. Gurdevi Kaur,
widow died on 28-1-1961. In view of the discussion
already made, it is clear that on the date of the Will made
by Gurdevi Kaur, on 5-9-1958 she was the owner of the
properties left behind by Amriksingh. She bequeathed
properties mentioned in the Will to Gurdayalsing,
defendant No.1. After death of Gurdevi Kaur i.e after
28-1-1961, Laxman Kaur became owner of the property
which was left behind by Gurdevi Kaur, the properties
which were not bequeathed or disposed of in any manner
by Gurdevi Kaur during her life time. Thus after 28-1-1961
Laxman Kaur had a right to dispose of the remaining
properties. There was Will made by her in 1958 itself and
she then made gift deed in favour of defendant No.1 on
23-3-1965. These documents show that she had intention
to give the properties mentioned in her Will and gift deed
to Gurudayalsingh, defendant No.1. The gift deed was
proved at least as against Autar Kaur in suit filed against
her by Gurudayalsingh for eviction from those properties.
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The evidence is also given by defendant No.1 to prove the
execution of gift deed and it was registered gift deed.
28) Argument was advanced by learned counsel for
Gurudayal Singh, defendant No.1, that Laxman Kaur was
left behind as one of the heirs along with widow of
Amriksingh and so as per position of Hindu Law in regard
to inheritance and succession which existed prior to
coming into force of Hindu Succession Act 1956, Laxman
Kaur had one half share in the property left behind by
Amriksingh. By making such submission, learned counsel
made further submission that Gurdevi Kaur had no right
to bequeath the share of Laxman Kaur and so share of
Laxman Kaur is available for partition. It was submitted
that Laxman Kaur had one half share in all the five
immovable properties and so the Will executed by Gurdevi
Kaur to that extent cannot be given effect to. As against
this submission, the trial Court has held that only half
portion of the property Nos.5-5-26 and 5-5-29 is available
for partition as this portion was not bequeathed by
Gurdevi Kaur. She was under impression that half portion
was already belonging to plaintiff, Basant Singh. This
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portion was not bequeathed by Laxman Kaur also and she
did not dispose of this portion in any manner.
29) Hindu Law relating to inheritance and
succession which was in existence prior to Hindu
Succession Act 1956 and also the provision of Hindu
Succession Act 1956 need to be considered to ascertain as
to whether there is force in the aforesaid submissions
made by the learned counsel for defendant No.2 – Autar
Kaur.
30) Hindu Law quoted in Para 34 of the Hindu Law
by Mulla (21st Edition) was prevailing on this point prior to
coming into force of Hindu Succession Act 1956. It shows
that, if a Hindu had self acquired property, the property
was succeeded by his heir and this property did not
devolve on other coparceners by survivorship. This para
shows that heirs used to succeed to the separate property
as provided in para 43. Admittedly the suit property was
separate property of Amriksingh. Para 43 shows that such
property could be succeeded by Sapindas. If Sapindas
were not available then the property was succeeded by
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Samanodakas and if Samanodakas were not available the
property was succeeded by bandus. In para 36 and para
38 there is mention to the effect that in the past,
propinquity, proximity of relationship was the governing
factor in this regard. In para 38 law is mentioned which is
to the effect that three classes of heirs are recognised by
Mitakshara, namely, (a) Gotraja sapindas, (b)
Samanodakas, and (c) bandus. It is also mentioned that
the first class succeeds before the second, the second
succeeds before the third. In para 39 list of Gotrja
sapindas is given and both wife and daughter are included
in class gotraja sapindas. The order of succession of
males in cases governed by Mitakshara is given in para
72 and it shows that widow gets along with son. It can be
said that due to the provisions of Hindu Women's Rights
to Property Act 1937 the widow is placed in the same
category as that of son. The first category excludes the
second and so on. In the past widow was listed in separate
category and she was not placed along with son. Act of
1937 changed this position and widow came to be listed to
the category of sons. Daughter remained in next category.
In view of the provision of Hindu Law as mentioned in
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paragraphs 43 and 72 son and widow of the deceased
started inheriting simultaneously. Only if nobody from
that category was available then the daughter was to
inherit. Under this Hindu Law which was in existence
prior to 1956 daughters did not inherit until all the
widows were dead.
31) In view of the Hindu Law which was prevailing,
it needs to be presumed that only Gurdevi Kaur inherited
the property of Amriksingh. As Hindu Women's Right to
Property Act 1937 came in force on 14-4-1937, the
provisions of this Act need to be applied. Section 3 of this
Act runs as under :--
“3. Devolution of property.--- (1) When a Hindu
governed by Dayabhaga School of Hindu law dies
intestate leaving any property, and when a Hindu
governed by any other school of Hindu law or by
customary law dies intestate leaving separate
property, his widow, or if there is more than one
widow all his widows together, shall subject to the
provisions of sub-section (3), be entitled in respect
of property in respect of which he dies intestate to
the same share as a son :
Provided that the widow of a predeceased
son shall inherit in the like manner as a son if there
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is no son surviving of such predeceased son, and
shall inherit in like manner as a son's son if there is
a surviving son or son's son of such predeceased
son :
Provided further that the same provision
shall apply mutatis mutandis to the widow of a
predeceased son of a predeceased son.
(2) When a Hindu governed by any school of
Hindu law other than Dayabhaga School or by
customary law dies having at the time of his death
an interest in a Hindu joint family property, his
widow shall, subject to the provisions of subsection
(3), have in the property the same interest
as he himself had.
(3) Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited
interest known as a Hindu woman's estate,
provided however that she shall have the same right
of claiming partition as a male owner.
(4) The provisions of this section shall not apply
to an estate which by a customary or other rule of
succession or by the terms of the grant applicable
thereto descends on a single heir or to any property
to which the Indian Succession Act, 1925, applies.”
32) In section 3(1) right of widow in respect of self
acquired property of Hindu is mentioned. In section 3(2)
right of widow in respect of the interests of deceased
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male in Hindu joint family property is mentioned. Both
these provisions show that they are subject to provisions
of Section 3(3). Section 3(3) shows that any interest
devolving on a widow shall be the limited interest known
as a Hindu woman’s estate.
33) After coming into effect Hindu Succession Act
1956, due to the provisions of Section 14 Gurdevi Kaur
became full owner of the property which was held by her
as limited owner after the death of her husband,
Amriksingh. After the death of Gurdevi Kaur, in view of
provision of Section 15 of the said Act, Laxman Kaur
became owner of the property left behind by Gurdevi
Kaur. In view of this position of law, this Court has no
hesitation to observe that only those properties which are
held to be available for partition by the Courts below ere
available for partition.
34) Learned counsel for the plaintiff and defendant
No.1 placed reliance on the case reported as 2009 (6)
Mh.L.J. 765 (Chandrakant v. Prashant). In this case
section 3 of the Hindu Women’s Right to Property Act,
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1937 and section 14 of the Hindu Succession Act 1956 are
discussed. The facts of the reported case show that
husband had left behind him a daughter and widow and
death had taken place prior to 1956. The Court held that
daughter was not the heir under section 3 of the Act 1937
and the property devolved upon the widow. Though the
provisions of the Hindu Law which were in force prior to
the Act of 1937 were not referred, it can be said that the
decision was correct and the ratio needs to be applied.
35) Learned counsel for the Autar Kaur defendant
No.2 placed reliance on a case reported as 2005 (3)
Mh.L.J. 506 (Laxman v. Smt. Bendrabai). In this case this
Court held that the aforesaid provisions of Mitakshara
Law (Bombay School) are applicable to the residents of
Berar. There is no dispute that the aforesaid provisions of
Mitakshara School are applicable in this area. The object
of provision of section 14(1) of the Hindu Succession Act
1956 is discussed at para 15. It is observed that daughter
of the deceased was entitled to have equal share when
death had taken place in 1955 and when deceased had left
behind him two widows and a daughter. With due respect,
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it needs to be observed that the position of law which was
prevailing prior to coming into force of Hindu Succession
Act 1956 was not considered by this Court. The first case
on which reliance is placed by the learned counsel for
the plaintiff came to be decided on 24-8-2009 but in this
case the previously decided case of Laxman cited supra
was not referred. This Court holds that the ratio of the
case of Chandrakant (cited supra) needs to be applied.
Reliance was placed on one more case reported as AIR
1951 Orissa 337 (Radhi Bewa v. Bhagwan Sahu) by the
learned counsel for Autar Kaur. The facts of this reported
case were altogether different and only widow was left to
succeed. Similarly facts of the case reported as 1965
Mh.L.J. 745 (Indubai Pandhari Naik v. Vyankati Vithoba
Sawadha) were also altogether different and so the
observations made in this case need not be discussed.
36) In view of the discussion made above, this
Court has no hesitation to hold that the trial Court and
the First Appellate Court have not committed any error in
holding that only properties mentioned in the operative
order of the judgment of the trial Court viz. property Nos.
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5-5-26 and 5-5-29 are available for partition and each
issue of Laxman Kaur has equal share in these properties.
No need is felt to interfere in the decision. In the result
following order.
37) Second Appeal No.177 of 2005 is dismissed.
Second Appeal No.644 of 2004 is disposed of as
withdrawn. All civil applications stand disposed of.
Amendments are allowed in civil application, as payed, to
bring legal representatives on record.
Sd/-
(T.V. NALAWADE, J.)
rsl
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