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2012 DIGILAW 1308 (BOM)

Tulsabai v. Maroti Deosthan Harbaji Maharaj Math

2012-07-18

M.N.GILANI

body2012
Judgment : 1. This is an appeal under section 72 (4) of the Bombay Public Trust Act (for short “Act of 1950”) taking an exception to the judgment and order dated 12/8/1996 passed by the learned Additional District Judge, Nagpur in M.C.A. No.519/1990 thereby confirming the order dated 1/9/1990 passed by the learned Joint Charity Commissioner in Appeal No.72/1993. 2. The facts are thus: One Adkuji Palandurkar owned the house bearing No.866, Ward No.29, Circle No.17/23 at Nagpur. He died leaving behind him widow Manabai, son Shivram and two daughters namely Kasabai and Sarswatibai. Shivram died issue less in the year 1941. Manabai died in the year 1952. Kasabai died in the year 1959 and left behind her son Motiram who died in March 1972 and daughter Sakhubai. Tulsabai is the widow of Motiram. Saraswatibai died in the year 1972 leaving behind her son Rajaram who also died in the year 1972. For better appreciation, the concerned genealogical tree is reproduced below: TABLE 3. Controversy is in respect of the will allegedly executed by Manabai on 1/4/1943 in favour of Motiram thereby bequeathing the entire house property in his favour and the gift deed dated 3/1/1969 whereby Saraswatibai gifted the entire house property in favour of Maroti Deosthan Trust of which Rajaram, the son of Saraswatibai was the then President/Trustee. Thus, on the basis of the will, Tulsabai widow of Motiram, claims ownership over the house property whereas Maroti Deosthan Trust respondent no.1 herein claims ownership over the half portion of the house property on the basis of the gift deed by giving up claim for remaining half portion. 4. On the basis of the Change Report submitted by respondent no.1 the Change Report Enquiry No.635/1971 was initiated before the Deputy Charity Commissioner, Nagpur. Issue involved before the said Authority was whether the house property be recorded as property of the Trust. After considering the evidence adduced by both the sides, the Deputy Charity Commissioner accepted the Change Report holding that the half share in the house property has been validly gifted by Saraswatibai and then it was ordered to be recorded in the name of said Trust. This was challenged before the Joint Charity Commissioner in Appeal No.72/1973. The Joint Charity Commissioner dismissed the appeal by confirming the findings. This was challenged before the Joint Charity Commissioner in Appeal No.72/1973. The Joint Charity Commissioner dismissed the appeal by confirming the findings. The District Judge concurred with the findings of facts recorded by Deputy Charity Commissioner and then confirmed by the Joint Charity Commissioner and thus rejected M.C.A. No.519/1990. 5. This appeal was admitted on 17/2/1997 without formulating the substantial questions of law presumably, till then an appeal filed under section 72(4) of the Act of 1950 was treated as first appeal. However, in view of decision in ShivprasadShankarlal Pardeshi and others V/s. Leelabai Badrinayaran Kalwar and others reported in 1998 (1) Mh.L.J. 444 this appeal shall be subject to the restrictions and limitations imposed on second appeal as prescribed under section 100 of the Civil Procedure Code. 6. Mr. Vyawahare, the learned counsel for the appellants, contended that the substantial questions of law involved in this appeal are about the validity of the gift deed firstly, for the reason that it was in respect of undivided share of Saraswatibai and secondly, for want of acceptance of the same during the life time of Saraswatibai. According to him, the second substantial question of law is regarding returning finding in negative by Courts below, despite a very cogent and clinching evidence demonstrating ‘adverse possession’ of Motiram and thereafter that of Tulsabai over the house property. 7. Before the learned Joint Charity Commissioner decision in case of Hem Chand V/s. Dal Chand and others reported in AIR 1981 S.C. N.O.C.75 (ALL) was relied upon. Dealing with this contention, the learned Charity Commissioner observed thus: “In this regard, it is to be noted that Joint Hindu Family consists of all persons lineally descending from common ancestor and includes their wives and unmarried daughters. A daughter ceases to be member of her father’s family on marriage and become a Member of her husband’s family. In the present case, Kasabai and Saraswatibai both were married and it cannot be said that there was any Joint Hindu Family or Joint Family Property. Character of property and its holder was changed. The property became joint property and its holder became co-sharer. There is no bar to dispose of undivided interest in the joint property. The case law relied upon by Appellant is in respect of gift of undivided share in Joint Family Property. This is not applicable to the present facts of case.” 8. The property became joint property and its holder became co-sharer. There is no bar to dispose of undivided interest in the joint property. The case law relied upon by Appellant is in respect of gift of undivided share in Joint Family Property. This is not applicable to the present facts of case.” 8. There is no dispute about the legal position that gift by coparcener of his coparcenery interest in joint family property without consent of other coparceners is void. So long as coparcenery continues, coparcenery interest is an indeterminate. It may increase or decrease by reason of death or birth in family. It becomes determinate only when status of jointness is broken. In a continuing joint family coparceners have indeterminate interest which cannot be gifted. In that view of the matter, the learned Joint Charity Commissioner in para 10 of his judgment rightly observed that: “This case is in respect of coparcenery property gifted out by Managing Trustee. In the present case, the property in question is neither a coparcenery property nor the donor is coparcener. Article 214 (3) at page 263 of Mulla’s Principle of Hindu Law says that no female can be a coparcener although a female can be a Member of a Joint Hindu Family. As female, namely Saraswatibai, cannot be coparcener, the ruling cited by the appellant is not applicable and it is of no avail to him.” 9. In the instant case, Manabai died in the year 1952 leaving behind her daughters namely Kasabai and Saraswatibai. Thus the property in her hands devolved upon Kasabai and Saraswatibai both succeeding to the property as “tenants in common”. Thus it cannot be said that the property continued to be joint. Status of jointness was broken when the property devolved in equal shares on both daughters of Manabai. In that view of the matter, the gift cannot be held as void. 10. As regards acceptance of the gift deed the learned District Judge in para 15 of his judgment observed that: “Section 122 of Transfer of Property Act shows that the gift must be accepted by or on behalf of donee and such acceptance must be made during the life time of donee and while he is still capable of giving. The donor – Saraswatibai died in 1972. The donor – Saraswatibai died in 1972. The Trust was ever ready to accept the property but on denial of Motiram, the property could not come in possession of Trust. Some period must have been spent for amicable settlement. When no fruitful purpose was served, the Trust initiated the legal proceedings. Thus, by no stretch of reasoning it can be said that donee had not accepted the property, when the property was in possession of third person and when donee was ready to accept the property, it has to be held that donee was ready and willing to accept the property and in such cases this willingness is material to determine the acceptance. In this view of the matter, by no stretch of imagination, it can be said that there was no acceptance by the trust.” 11. The gift is a voluntary gratuitous transfer. Such a gift could also be in favour of deity. In such cases, the only thing required for completion of gift is that some person has to accept the gift on behalf of deity. In the present case none other than Rajaram President/Trustee of the trust initiated a proceedings for recording the house property in the register of Trust being Change Report Enquiry No.635/1971 whereas Saraswatibai died in the year 1972. That means during the life time of Saraswatibai Rajaram in the capacity of the President of the trust initiated proceedings to record the half share in the house property in the Register of the Trust. This is nothing but an acceptance of the gift. Gift in favour of deity is complete when there is evidence to the effect that the donor intended to donate and divest himself of the property without there being element of retaining. Some overt act on the part of the trustee managing the temple is sufficient to presume acceptance of the gift. In that view of the matter, the Courts below were right in declaring that Saraswatibai had validly gifted her half share in the house property in favour of respondent no.1 – Trust. 12. The next point raised is of adverse possession. In this connection, the learned Joint Charity Commissioner in para 12 of his judgment observed that : “It is well settled that adverse possession of one co-sharer against other is not enough to show that one of them is in sole possession and enjoyment of the properties. 12. The next point raised is of adverse possession. In this connection, the learned Joint Charity Commissioner in para 12 of his judgment observed that : “It is well settled that adverse possession of one co-sharer against other is not enough to show that one of them is in sole possession and enjoyment of the properties. Property in possession of one coheir is considered in law as the possession of all the coheirs. Ouster of non-possessing co-heir by coheir in possession should be made out and there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of other so as to constitute ouster” and concurring with this findings the learned District Judge in para 17 observed that : “The plea of adverse possession is also pressed into service submitting that Motiram was in possession of property from 1952 for a period more than 12 years, and therefore, has become the owner of the property by the principles of adverse possession. It is well settled that a co-owner cannot claim the ownership by adverse possession. Moreover, the material ingredients to ripe the ownership by principle of adverse possession are completely lacking in the case. It is to be pleaded and proved that the possession of a person was open and with a hostile animus to the true owner. Both the Courts have negativated the theory of adverse possession put forward by the appellant. On this ground also the appellant’s case has no leg to stand.” 13. There is a real distinction between adverse possession and possession simplicitor. Possession in order to be adverse must be hostile to that of true owner. Fundamental principle of law is that there can be no adverse possession without hostile animus. The starting point of limitation begins from the expression of hostile animus amounting to denial of title of the real owner to his knowledge. This must continue for uninterrupted period of 12 years. Throughout the period, Motiram claimed ownership on the basis of will which has been held to be void. Thus, on the basis of possession under a void transaction and nothing more title by adverse possession cannot be matured. This must continue for uninterrupted period of 12 years. Throughout the period, Motiram claimed ownership on the basis of will which has been held to be void. Thus, on the basis of possession under a void transaction and nothing more title by adverse possession cannot be matured. In that view of the matter, the Courts below were justified in reaching to the conclusion that Motiram and thereafter Tulsabai cannot claim right of ownership over the house property on the basis of adverse possession. 14. In the result, appeal fails. Appeal is dismissed. 15. There shall be no order as to costs.