Second Appeal Nos. 119, 405 of 2013. Case: Santosh Popat Chavan and Ors. Vs Mrs. Sulochana Rajiv and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal Nos. 119, 405 of 2013 |
| Counsel | For Appellant: C.G. Gavnekar, Satish Raut, Advs. and For Respondent: Rajiv Patil, Sr. Adv., with Omkar Warange, Anil V. Anturkar, Amicus Curiae with Prathamesh Bharagude, Ms. Kalyani Tulankar and Dormaan Dalal, P.N. Joshi, Amicus Curiae with Nikhli Pujari, Pratik Rahade and Ruturaj Bankar, Advs. |
| Judges | A. B. Chaudhari, J. |
| Issue | Hindu Succession Act (30 of 1956) - Sections 6, 14; Evidence Act (1 of 1872) - Section 108 |
| Citation | AIR 2016 Bom 29 |
| Judgement Date | December 12, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
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Since these two appeals involve common legal question of importance, they have been taken together for hearing and final disposal with consent of the counsel for the rival parties and in accordance with order dated 15.09.2014 in Second Appeal No.405/2013.
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Mr. P. N. Joshi, learned counsel was requested to act as Amicus Curiae when order was made on 15.09.2014. Thereafter, on the request from this Court, Mr. Anil V. Anturkar, Mr. Rajiv Patil, Senior Advocates and Mr. C. G. Gavnekar, Advocates also participated in the hearing for assisting this Court.
FACTS:
Second Appeal No. 119/2013
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The plaintiff-respondent herein, Sulo-chana wd/o Rajiv alias Raju Chavan filed Regular Civil Suit No. 1773/2006 in the court of Civil Judge Senior Division, Pune for partition, perpetual injunction against the brothers and sister of her deceased husband. Briefly stated, her case was that her husband Rajiv was brother of defendants Santosh, Mohan, Madhukar and their sister Mrs.Nanda and had a share in the suit property being ancestral property. On 28.05.1997, Rajiv alias Raju, husband of the plaintiff, left the house situated at Sarve Nagar, Pune and never returned. She reported the matter to police, who took missing entry No. 116/1997. Despite thorough search, Raju could not be found out. Since more than 10 years had already passed from the date Rajiv went missing, she was entitled to claim share in the undivided suit property and, therefore, she filed suit for partition and separate possession. The plaintiff had also filed Regular Civil Suit No.1780/2006 for a decree of declaration about the civil death of husband and she got the said declaration on 31.07.2007. Simultaneously, she had also filed the instant suit for partition.
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Having obtained the said decree for declaration of civil death of her husband, she filed the decree in the suit for partition being Reg. C. S. No.1773/2006. The partition suit was resisted by respondents on the ground that the plaintiff had no right to file the civil suit for claiming any share. That the plaintiff had no cause of action to file the suit for partition or to claim any share in the property of her absconding husband. That all the brothers, including the deceased Raju had agreed to sell the suit property to one Hari Binawat by executing agreement of sale dated 19.01.2000 of which the respondents had received earnest money. The appellant, therefore, stated that the suit was, therefore, required to be dismissed.
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The lower appellate court-District Judge, Pune, while deciding the two appeals, upheld the judgment of the trial court, insofar as the right to ask for partition by the plaintiff is concerned but modified the decree to some extent by relying upon the judgment in the case of Ms.Vaishali Satish. v. Satish Ganorkar; 2012 (2) All MR 737: (AIR 2012 Bom 101) in which it was held that the date of opening of succession was relevant date and if succession had opened prior to the Amendment Act of 2005, the amended Act would have no application. The lower appellate court also held that the appellant-defendant No.4Mrs. Nanda, who was daughter of Dnyanoba, had already married and was residing separate from 26.10.1991 and, therefore, she was not coparcener as per the prevailing law and, therefore, she could claim share with her brothers only in the share of her father.
Being aggrieved by judgment of the two courts below, the unsuccessful defendants have filed this Second Appeal.
Second Appeal No. 405/2013
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The plaintiff-Smt. Chanda Hanmant Karne, an issueless widow of Hanumant filed Regular Civil Suit No.8/2007 in the court of Civil Judge Junior Division, Phaltan for partition and separate possession in respect of the ancestral suit property. It was her case that the defendant No.1 was her father-in-law while other defendants were his children. The deceased Hanumant has expired on 31.10.2003 and she was thus alone, living with the joint family of the defendants, working with the defendants but then before 78 months of filing of the suit, she was driven out of the house at Sonwadi by brothers of her husband. Hence, she filed the suit for partition and possession as the defendants denied to give any share to her in the suit property.
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The suit was resisted by the defendants on the ground that the same was not maintainable as there was no enabling provision for a widow to file the suit under the Hindu Succession Act, 1956, (For short the "Act of 1956"). In fact, such a provision existed in Section 3 (3) of the Hindu Woman's Right to Property Act, 1937 (For short the "Act of 1937"). The suit was resisted on the ground that the property was self acquired and not the joint family property and was not liable to be partitioned. The trial court decreed the suit in part and the lower appellate court confirmed the decree passed by the trial court and also modified the decree to the extent of shares of the parties to the suit. Hence, this second appeal.
ARGUMENTS:
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Mr. C. G. Gavnekar, and Mr. Satish Raut, learned counsel for the appellants in both these second appeals, made the following submissions:
(i) In the case of Ananda Krishna Tate since deceased by Legal Heirs v. Draupadibai Krishna Tate and others; 2010 (1) BCJ 714: (AIR 2010 Bom 83), a learned single Judge of this Court has taken a view that a Hindu woman (mother, in that case) has no right to file the suit for partition under the provisions of the Act of 1956, which was earlier available as per Section 3 (3) of the Act of 1937. In the absence of any other coparcener in the joint family demanding partition of the joint family property, the suit on her own was not maintainable. None of the courts below have noticed the said judgment of the learned single Judge and, therefore, the suits ought to have been dismissed as admittedly none of the coparceners in the family had demanded any partition and the widows in both these second appeals went ahead and filed suits in the absence of any enabling provision for doing so.
(ii) In Second Appeal No.119/2013, plaintiff-Sulochana filed a suit for partition in the year 2006 when there was no declaration about civil death of her husband from any competent court, for which she had already filed the suit No.1780/2006. She has got the declaration only on 31.07.2007 and, therefore the suit filed for partition in the year 2006 was premature and untenable in law, therefore there was no cause of action for filing the suit.
(iii) The judgment rendered by the learned single Judge in the case of Ananda's case (supra) is the correct view of the matter in that the Parliament was fully aware about the then existing provision of Section 3 (3) of the Act of 1937 but still decided not to make a provision of such a nature in the Act of 1956 though the Act of 1937 was repealed. The Act of 1956 would have provided remedy to a widow, mother or woman alike the one provided by Section 3 (3) of the Act of 1937 enabling the widow, mother or a woman to file a suit on her own without another coparcener demanding the partition of the property.
(iv) The personal laws of Hindus cannot be tested on the anvil of Article 14 or any other Constitutional provisions since the personal laws of Hindus are not subject to or are out of the perview of Constitutional provisions including fundamental rights.
(v) The concept of coparcener and the joint family as per the ancient Hindu law is distinct and clear and only male could become the coparcener of the family and females were never recognized as coparceners in the family. It is a different matter that the daughters have been given similar status like the sons, of late either by the State Legislature or by the Parliament in the year 2005. But then the status given to the daughters as coparceners or right by birth, cannot be extended to other categories of women including a widow or mother since Parliament did not think so while amending the Hindu Succession Act.
(vi) Under the Hindu Law, the logic was that a woman comes after marriage from a family which is stranger and in case her husband dies, the woman could not be allowed to destroy the jointness of the family or create dispute about the property unless and until the other coparcener in the family ask for partition. This being the personal law of Hindus, the question of allowing a woman to lodge a suit for claiming right by way of partition would not arise.
(vii) The right that was given under the Act of 1937 to a woman was only for a 'limited estate' and could seek nothing more than the limited estate; and after her death reversion would take place and this limited right given to the woman under section 3(3) of the Act was also fluctuating and would come to an end after her death. It is thus for the survival of the woman, limited right was given by Section 3(3) of the Act of 1937 and not for creating any perpetual right in the property even of her deceased husband.
(viii) Section 14, that was introduced in the Act of 1956 merely gives a right to a woman in respect of the property, which she had been in possession in lieu of maintenance as absolute right but then mere grant of absolute right by virtue of Section 14 (1) would not partake the character of the woman asking for a partition in the joint family property since these are separate issues.
(ix) The judgment rendered by the learned single Judge in Ananda's case is not per incuriam and if at all a contrary view is to be taken, reference should be made for constitution of larger Bench or the issue should not be touched.
(x) Article 14 of the Constitution of India, even otherwise, will have no application since every female being the daughter of her father would obviously get share in her father's property, in her relationship as sister with her brothers, in accordance with the amending law providing the status of coparcener to a daughter and, therefore, the question of discrimination does not arise. Mr.Gavnekar, therefore, submitted that the appeal should be...
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