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2009 DIGILAW 1066 (BOM)

CHANDRAKANT HARIBHAU ADMANE v. PRASHANT MANOHAR ADMANE

2009-08-24

C.L.PANGARKAR

body2009
( 1 ) THIS Second Appeal is preferred by the original plaintiff who lost in both the Courts below. ( 2 ) FACTS giving rise to this appeal are as follows : plaintiff is the daughter of one Marotrao Rahate. She was married to one i laribhau Admane. Marotrao had only one son who predeceased him. Marotrao died in the year 1955 leaving behind him the suit property. Defendants 6, 7, 8 and 9 are the daughters of said Marotrao. Plaintiff is also one of the daughters. The suit property was the self acquired property of said Marotrao. Plaintiff submits that she is in possession of one block while defendant No. 7 Tulsabai is also in possession of the suit house. Defendants 1 and 9 are also living in some portion of the suit house. Defendant No. 1 is the mother of the plaintiff. Plaintiff submits that Tulsabai, one of her sisters was living with defendant No. 1 Parvatabai who is also in occupation of the part of the suit property. It is her case that it was agreed that in lieu of their share each of the sisters will occupy part of the suit house. Plaintiff contends that she has learnt that Gift Deed has been executed by defendant No. 1 in favour of defendant No. 10 Manohar. It is her contention that the said gift deed has been brought about by exercise of undue influence over parvatabai. She claims share in the suit property. ( 3 ) PARVATABAI the mother of the plaintiff has filed her Written Statement. She admits the relationship. She admits that the suit property belonged to her husband Marotrao and that it was his self acquired property. She also admits that some property belonging to Marotrao was sold for the purpose of marriage of his daughters. Her contention is that she has become full owner of the suit property by virtue of the fact that she is in possession of the suit property when Hindu succession Act 1956 came into force. She denies that the gift deed executed by her in favour of defendant No. 10 was brought about by any undue influence. ( 4 ) DEFENDANT No. 10 has filed his separate Written Statement. According to him he had never exercised any undue influence over Parvatabai, she had voluntarily executed the gift deed since she was being looked after by him. ( 4 ) DEFENDANT No. 10 has filed his separate Written Statement. According to him he had never exercised any undue influence over Parvatabai, she had voluntarily executed the gift deed since she was being looked after by him. Rest of the defendants did not contest the suit. ( 5 ) LEARNED Judge of the trial Court found that the gift deed was not executed by Parvatabai under any undue influence as alleged. Parvatabai was in possession of the suit property. Gift deed is binding on the plaintiff and plaintiff was not entitled to any share in the suit property. Holding so he dismissed the suit. Learned Judge of the first appellate Court concurred with the findings recorded by the trial Court and dismissed the appeal. ( 6 ) FEELING aggrieved thereby Second Appeal is preferred. Second Appeal has been admitted by this Court on the following substantial question of law : 'issue pertaining to application of section 14 of the Succession Act and presumption as available under the Registration Act are substantial. " ( 7 ) I have heard the learned counsel for the appellant and the respondent. ( 8 ) THE pleadings made by the plaintiff are extremely strange and curious and cannot be comprehended. Para 9 of the plaint reads as follows : "9. The alleged gift deed is illegal and was brought into existence with an intention to defeat the legal and proper claims of the plaintiff and other defendants. At any rate, Parvatabai was not in possession of the said property in 1955 or in the year 1956 and as the succession to the estate of deceased Marotrao opened in the year 1955, immediately after death of marotrao on 6-7-1983, all daughters became owner along with parvatabai of the estate left behind by deceased Marotrao. " plaintiff claims that all daughters became owner in 1983. One does not understand what connection this year 1983 has with the question or controversy. Be that as it may. Plaintiff also contends that she having been born in Rahate family has 1/6th share in the suit property. It appears from pleadings in para 9 that plaintiff wants to plead that Parvatabai defendant No. 1 did not become owner as she was not in possession of the suit house in 1956 when the Hindu succession Act came into force. Plaintiff also contends that she having been born in Rahate family has 1/6th share in the suit property. It appears from pleadings in para 9 that plaintiff wants to plead that Parvatabai defendant No. 1 did not become owner as she was not in possession of the suit house in 1956 when the Hindu succession Act came into force. ( 9 ) THE undisputed facts are as follows which are extremely material to resolve the controversy. Marotrao died in the year 1955. He left behind him 5 daughters and a widow. Marotrao's son had predeceased him. Suit property was his self acquired property. ( 10 ) WITH these admitted facts three things are clear, (1) Marotrao died before coming into force of Hindu Succession Act 1956; (2) he was the sole surviving coparceners when he died; and (3), the property was his self acquired property. ( 11 ) SINCE Marotrao died prior to coming into force of 1956 Act the case is governed by the Hindu Women's Right to Property Act, 1937. The succession opened in the year 1955 itself. Section 3 of the said Act reads as follows : "section 3. (1) When a Hindu governed by the 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 like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son; provided further that the same provisions 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 the 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 sub-section (3), have in the property the same interest as he himself had. (2) When a Hindu governed by any school of Hindu law other than the 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 sub-section (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 to a single heir or to any property to which the Indian Succession Act, 1925, applies. This section makes it clear that a widow is an heir along with the son. The son of marotrao predeceased him therefore the only heir that was available under section 3 was Parvatabai defendant No. 1. A daughter is not an heir under section 3 of the Hindu Woman's Right to Property Act. Thus by virtue of provisions of section 3 the property devolved upon Parvatabai under the Act of 1937 itself to the exclusion of the daughters. ( 12 ) SECTION 14 of the Hindu Succession Act makes Parvatabai defendant no. 1 full owner of the suit property. Section 14 of the Hindu Succession Act reads as follows : 14. Property of a female Hindu to be her absolute property.- (1) 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. In this sub-section "property" includes both 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 purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhan immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. The property is acquired by Parvatabai by inheritance under section 3 of the hindu Woman's Right to Property Act. By virtue of section 14 she becomes the full owner of the suit property. P. W. 1 Bhagirathabai plaintiff admits in cross examination that after the death of the father the property was in exclusive possession of defendant No. 1 Parvathabai and it was recorded in her name. She admits that in 1962 she was at Ward in Yavatmal district. Thus in 1956 parvatabai was in exclusive possession of the suit property under her right under section 3 of the Hindu Woman's Right to Property Act and as soon as 1956 Act came into force she became full owner of the suit property. ( 13 ) A very strange argument is being advanced on behalf of the appellant which is to be rejected to be stated. In the Synopsis filed for final hearing following proposition is made as point No. 2 in the points to be considered by the court : "the property was 'acquired' by the plaintiff after the H. S. A. comes into existence and she was in peaceful possession thereof. It is not disputed that the plaintiff was in possession in 1983. As per the section 14 of the H. S. A. "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". Submission is that the plaintiff became the owner as the property was acquired by her after the 'act' comes into force. The word 'female' in the section include daughters. " The appeal has been admitted on the question whether the defendant No. 1 had become full owner by virtue of section 14 of the Hindu Succession Act and what is being urged is an acquisition of right under section 14 by plaintiff. The word 'female' in the section include daughters. " The appeal has been admitted on the question whether the defendant No. 1 had become full owner by virtue of section 14 of the Hindu Succession Act and what is being urged is an acquisition of right under section 14 by plaintiff. Section 14 of the Hindu Succession Act cannot be applied to the plaintiff or to other defendants except No. 1 because neither of them was an heir in 1955 of Marotrao nor were they in possession of the suit property in 1956. ( 14 ) MRS. Maldhure had cited a decision reported in Vithappa Bin Kasha hegde and others vs. Savitri Kon Ganapbhatta and another, 1910 ILR 510. The decision has no relevance at all. Another decision reported in Sadhu Singh vs. Gurdwara Sahib Narike and others, (2006) 8 SCC 75 was also placed before me. This decision too has no bearing on the case at hand. In the reported case the property was given by husband by Will to wife till her life time and it was to go to nephews upon her death. The question was whether section 14 (1) or (2)applied. Such is not the case here. ( 15 ) FROM what has been discussed above it is clear that defendant No. 1 widow had become full owner and she had a right of disposition. In the circumstances the substantial question of law is answered accordingly and the appeal is dismissed with costs. Appeal dismissed.