Bhikabai Giram vs Mamtabai Ingle and Others

A.B. Palkar, J.—This second appeal is filed by original plaintiff against the decree passed by the 1st appellate Court on 8-10-1984 in R.C.A. No. 4/81 modifying the decree passed by the Joint Civil Judge, Junior Division, Buldhana in R.C.S. No. 170/78 on 29-11-1989.

This second appeal was admitted on substantial question of law as to whether the appellant was entitled to 5/Gth share in the property and to its partition and possession thereof as specifically prayed for in the plaint though such relief was not claimed in plaint.

The decree to the aforesaid effect was passed by the trial Court.

In view of the short question that is required to be decided the material facts required to be stated are as below :

The suit property belonged to one Bapurao who died in 1946. Bapurao had 3 wives, namely 1) Sundarabai, 2) Tanabai and 3) Thakabai. Sundarabai died on 30-11 -1923 living behind her daughter Mamtabai (defendant No. 1). Thus in 1946 when Bapurao died, he was survived by two widows and defendant No. 1 the daughter of Sundarabai. Plaintiff is daughter of Tanabai who died in 1977, whereas the other widow Thakabai died intestate in 1974. These facts are not in dispute. According to the plaintiff, the defendants i.e. Mamtabai and the persons to whom she had disposed of the property (original defendants No. 2 to 4) have no right to the property, but taking advantage of the death of plaintiff''s-mother they have started obstructing to the plaintiffs possession and, therefore, they be permanently restrained and possession of plaintiff be confirmed or in the alternative if it is found that plaintiff is not in possession the decree be passed in her favour and needless to add that the same decree came to be passed by the trial Court.

While modifying this decree, the 1st appellate Court has stated in para 7 of the judgment that soon after the death of Bapurao in 1946, his two widows Tanabai and Thakabai inherited the property left by Bapurao as joint tenants with right of survivorship. The first wife of Bapurao i.e. Sundrabai mother of defendant No. 1 had already died in Bapurao''s lifetime on 30-11-1923. Therefore, it was obvious that Tanabai and other co-widow Thakabai who died in 1974 inherited the property left by Bapurao as joint tenants with right of survivorship. In fact, to this extent the reasoning of the learned Judge of the 1st appellate Court is not disputed even by the learned counsel for the appellant and in my view rightly.

However, the learned Judge went on to observe further that as soon as Hindu Succession Act came into force on 17th June, 1956, each of the widow became absolute owner to the extent of 1/2 share in the property left by Bapurao. In fact this position cannot be disputed. However, he stated further that when the juniormost widow Thakabai died in the year 1974, the status of the plaintiff-Bhikabai and defendant No. 1 Mamtabai in respect of absolute property possessed by Thakabai to the extent of 1/2 share in the property left by her husband Bapurao was on the same footing and, therefore, the plaintiff and defendant No. 1 both being step daughters of Thakabai got half share and, therefore, the half share of Thakabai was inherited by Bhikabai and defendant No. 1 equally and simultaneously and, therefore, the plaintiff was entitled to 1/4th share.

When it is clear that the widows, who were surviving in 1946 at the time of death of Bapurao, Inherited the property as their widows'' estate as Joint tenants with right of survivorship then on their becoming the absolute owners after coming into force of the Hindu Succession Act, 1956, the right of survivorship inherited by them would continue to be there and if that be so then on the death of Thakabai in 1974, the sole surviving widow Tanabai i.e. mother of the plaintiff would succeed to the entire property by survivorship.

This point is no more res Integra in view of the judgment of the Apex Court reported in Brahmvart Sanathan Dharam Mahamandal, Kanpur and Others Vs. Prem Kumar and Others, to the following effect:

"If a Hindu dies leaving behind two widows they succeed as joint tenants with a right of survivorship. They are entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversioner. If they act together they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any part of the estate. The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned her it does not imply a right to prejudice the claim of the survivor to enjoy full fruits of the property during her lifetime.

AIR 1928 251 (Privy Council) , Relied on."

The position of co-widows under the Mitakshara law was also explained by the Supreme Court in the judgment in the case of Commissioner of Income Tax, Bombay North, Kutch and Saurashtra Vs. Indira Balkrishna, to the following effect :

"co-widows succeed as co-heirs to the estate of their deceased-husband and take as joint tenants with rights of survivorship and equal beneficial enjoyment; they are entitled as between themselves to an equal share of the income. Though they take as joint tenants, no one of them has a right to enforce an absolute partition of the estate against the others so as to destroy their right of survivorship. But they are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom."

In view of the abovesaid legal position, it is clear that the learned Judge of the 1st appellate Court committed an error when he held that after becoming absolute owner of the property when Thakabai died in 1974, the status of plaintiff and defendant No, 1 Mamtabai in respect of absolute property possessed by Thakabai was to the extent of half share is not correct. Admittedly succession opened in 1946 when Bapurao died. Defendant No. 1 daughter of Sundarabai was not a legal heir and any later change in the circumstances cannot have any effect as the succession opens only once and the position has to be considered on the date of opening of succession. It is also the position accepted by the learned District Judge and there is no dispute over it. If defendant No. 1-Mamtabai -- daughter of Sundarabai predeceased wife of Bapurao had no share in the property of Bapurao in 1946. then she has to be excluded. When Thakabai died in 1974, then in view of the above-stated legal position Thakabai and plaintiffs-mother Tanabai were holding the property as joint tenants with right of survivorship. The property would pass to Tanabai by survivorship which would be inherited by her daughter the plaintiff on her death in 1977. That being so, the decree passed by the 1st appellate Court in R.C.A. No. 4 of 1981 on 8th October, 1984 is set aside and the decree passed by the Joint Civil Judge, Junior Division, Buldhana in R.C.S. No, 171 of 1978 on 29-11-1980 is confirmed with appropriate modification for the reasoning aforesaid and not for the reasoning indicated by the trial Court.

Suit is decreed. Plaintiff alone being entitled to succeed to the entire property in suit, the defendants 1 to 4A to F are directed to hand over possession of the suit property to the plaintiff and are permanently restrained from obstructing the plaintiffs possession after it is so delivered. Enquiry be held under Order 20. Rule 12(l)(c) of the CPC into future mesne profits.

In view of the success of plaintiff-on a pure and little vexed question of law, the parties shall bear their own costs throughout.