PETITIONER:
BAI NANI & OTHERS
Vs.
RESPONDENT:
MANILAL LALLUBHAI & ORS.
DATE OF JUDGMENT07/02/1977
BENCH:
KAILASAM, P.S.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 970 1977 SCR (2) 920
1977 SCC (2) 536
ACT
Hindu Succession Act--Hindu Women’s Right to Property
Act 1937-Whether partition by metes and bounds--Whether new
case can be made out in the absence of issue.
HEADNOTE
The respondent-plaintiffs filed a suit for partition and
allotment of one half share of the suit house and the move-
able properties. One Faqir Chand had 3 sons, Nathubhai,
Lallubhai and Nanabhai. Nanabhai was the defendant in the
suit whose legal representatives are appellants. Lallub-
hai’s heirs are the plaintiffs. According to the plain-
tiffs the three brothers were members of a Joint Undivided
Hindu Family. According to the respondents the properties
were never partitioned though the three brothers were stay-
ing and messing separately and each branch carried on its
business separately. The respondents also challenged the
validity of the sale deed executed by Bai Kashi the widow of
Nathubhai in favour of the appellants on the ground that the
sale was not for legal necessity. The appellants contended
that the three brothers were separate and each branch used
to do its business separately. That as far as the suit
house was concerned it was divided though not by metes and
bounds and that the brothers lived in separate portions of
the house. The appellants claimed that they were entitled
to 2/3 share on the house. The Trial Court found that the
3 brothers had separated before the deaths of Nathubhai and
Lallubhai. It also found that the defendant and his broth-
ers had separated and the suit house was also divided as
alleged by the defendant. It came to the conclusion that the
defendant had failed to prove that there was any legal
necessity for Bai Kashi to sell the share in the suit house
and that after Bai Kashi’s death the respondent was entitled
to one half share in the suit house. The Trial Court found
that Bai Kashi became entitled to one’ half share of her
husband in the suit house under the Hindu Women’s Rights to
Property Act, 1937. As her interest was only a limited
interest known as Hindu Women’s Estate when Bai Kashi died
in January 1956, she had not become the full owner of the
share under the Hindu Succession Act, 1956. The court was of
the view that on the death of Bai Kashi her share would go
to the reversioners. The court held that the parties were
governed by Mayukh school which over-rules the Mitakshara
school and, therefore, after the death of Bai Kashi the
defendant and plaintiff No. 1 would inherit together to the
share of Nathubhai. The court held that the claim of the
plaintiff for one half share should be decreed though there
was no specific claim on the plea of separation and heir-
ship. The High Court dismissed the appeal and confirmed the
findings of the Trial Court.
In an appeal by Special Leave the appellants contended
that the respondents’ plea that the 3 brothers were joint
and the share of Bai Kashi was inherited by the remaining
two branches by survivorship having been negatived by the
courts below the suit ought to have been dismissed and that
the court erred in making out a new case of succession to
the property of Bai Kashi without necessary pleadings.
Allowing the appeal partly,
HELD: 1. On the question whether the respondents are
entitled to one half share on her death has not been dealt
with by the High Court. This Court agreed with the concur-
rent findings of the Trial Court and the High Court that the
family was separate and that the sale deed by Bai Kashi in
favour of the appellants was not for legal necessity.
However, the claim of the respondent for partition and
allotment of 1/3 share by metes and bounds
921
cannot be resisted. Though the brothers became separate
admittedly there was no division by metes and bounds.
There is also no dispute that the respondents are entitled
to 1/3 share in the house. [924 A-C]
2. The High Court did not deal satisfactorily with the
contention of the defendant that the Trial Judge erred in
saying that Bai Kashi had only a widow’s estate when she
died in the absence of any issue as to who were heirs of the
deceased Bai Kashi. On the question whether respondents
are entitled to succeed to Bai Kashis 1/2 share, the Court
remitted the matter to the High Court for consideration.
[924 C-D]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1988 of 1968.
Appeal by Special Leave from the Judgment and Decree
dated 21/22-3-1968 of the Gujarat High Court in First Appeal
No. 760/60.
S.T. Desai, I. N. Shroff and H.S. Parihar for the Appel-
lants.
J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.
The Judgment of the Court was delivered by
KAILASAM, J. This appeal is by the legal representa-
tives of the defendant in the suit by special leave against
the judgment and decree of the High Court of Gujarat. The
suit was filed by Manilal Lallubhai and his widow Bai Mani
against Nanabhai Fakirchand for partition and allotment of
one-half share of the suit house and the moveable properties
mentioned in the plaint. One Fakirchand had three sons,
Nathubhai, Lallubhai and Nanabhai. Nanabhai is the defend-
ant whose legal representatives are the present appellants
in this Court. Lallubhai’s son, Manilal, was the first
plaintiff and his mother and widow of LaIIubhai, Bai Mani,
was the second plaintiff. The second plaintiff is since
dead and his legal representatives are respondents 2(b) and
2(c) in this appeal. Nathubhai, Lallubhai and Nanabhai were
originally the members of a joint Hindu family.
The case of the plaintiffs, respondents in this appeal,
is that the three brothers Nathubhai, Lallubhai and Nanab-
hai were members of a joint undivided Hindu family and when
they were joint in the year 1940 Nathubhai died leaving his
widow Bai Kashi. Subsequently in the year 1942 Lallubhai
died. On 24th January, 1956 Bai Kashi, the widow of
Nathubhai, died while the family continued to be a joint
undivided Hindu family. According to the respondents the
properties were never partitioned though the three brothers
were staying and messing separately and each branch carried
on its business separately. The family immoveable and
moveable properties were never divided. The respondents
also questioned the validity of a sale deed executed by Bai
Kashi on 25th April, 1955 in favour of the appellants of her
share in the immoveable property as it was not for legal
necessity.
In the written statement the appellants denied that the
three brothers were members of a joint family. They pleaded
that the brothers were separated and each branch used to do
its own business keeping their earnings separately and
messing separately. So far as the suit house was concerned
it was divided though not by metes and bounds and the
922
brothers lived in separate portions of the house. The
appellants claimed that they were entitled to 2/3 share in
the house as Bai Kashi the widow of Nathubhai had sold her
share by registered deed 25th April, 1955 to the appellants.
On these pleadings 9 issues were framed of which three
are relevant for the purpose of this appeal. They are: (1)
Does the defendant prove that he and his two
brothers---Nathubhai and Lallubhai had separated and the
suit-house was also divided (through not by metes and
bounds) at the time of the. death of Nathubhai ? (2) Does he
further prove that the sale-deed executed by Bai Kashi in
respect of the one-third share of the suit-house was for
legal necessity anti to satisfy her debts ? and (3) Do the
plaintiffs prove that after Bai Kashi’s death they become
entitled to. a one-half share in the whole of the suithouse
? The trial court found that the three brothers had
become separate in status before the deaths of Nathubhai and
Lallubhai. It also found that the defendant and his broth-
ers had separated and the suit-house was also divided as
alleged by the defendant and recorded the finding in favour
of the defendant. Regarding the second issue it found that
the defendant had failed to prove that there was legal
necessity for Bai Kashi to sell away the share in the suit-
house. On the third issue the trial court recorded a find-
ing that after Bai Kashi’s death the respondents became
entitled to 1/2 share in the whole of the suit-house.
On appeal the High Court confirmed the findings or the
trial court on three issues and dismissed the appeal.
The findings of both the courts below that the defendant
and his two brothers had separated and the suit-house was
also divided by metes and bounds was not challenged before
us by the counsel for the respondents. So also the finding
that the sale deed executed by Bai Kashi in respect of her
1/3 share of the suit-house was not proved to have been for
legal necessity. The only point that was raised by the
counsel for the appellants is that the respondents’ plea
that the three brothers were joint and the share of Bai
Kashi was inherited by the remaining two branches by survi-
vorship having been negatived by the courts below the suit
ought to have been dismissed and that the courts erred in
finding a new case of succession to the property of Bai
Kashi without the necessary pleadings. It may be observed
that on the accepted finding of the courts below that the
sale in favour of the appellants by Bai Kashi is not sup-
ported by legal necessity if on the death of Bai Kashi the
other two branches i.e. that of the appellants and the
respondents, are entitled to share equally the decree grant-
ed by courts below would be right even though the claim to
the 1/2 share is not based on succession.
The contention of the counsel for the appellants is that the
courts below have found an entirely new case on the basis of
succession which is contrary to the claim made in the
plaint. The averment in the plaint is that on 24th January,
1956 Bai Kashi the widow of Nathubhai died and Nanabhai
continued as the member of the joint Hindu family.
923
There is no alternate claim that in the event of the parti-
tion being negatived the plaintiff would be entitled to 1/2
share of Bai Kashi by succession. The 3rd issue that was
raised was whether on Bai Kashi’s death the appellants
became entitled to 1/2 share in the whole suit-house. The
trial court on that issue found that Bai Kashi became enti-
tled to 1/2 share of her husband in the suit-house under the
Hindu Women’s Rights to Property Act, 1937. As her interest
was only a limited interest known as Hindu Women’s Estate
when Bai Kashi died in January 1956 she had not become
the full owner of the share under the Hindu Succession Act,
1956. On this basis the trial court was of the view that on
the death of Bai Kashi her share would go to the reversion-
ers. On the question as to who the heirs of Nathubhai are
at the time of the death of Bai Kashi the trial court held
that as the parties were in Gujarat the Mayukh school will
govern the inheritance and in Gujarat the Mayukh school
overrules the Mitakshara school and therefore full broth-
ers inherit along with sons of full brothers who are dead
and therefore after the death of Bai Kashi the defendant and
plaintiff No. 1 would inherit together to the share of
Nathubhai. The court held that the claim of the plaintiff
for 1/2 share should be decreed though there is no specific
claim on the plea of separation and heirship. The defend-
ant, present appellants, in their appeal to the High Court
submitted that the trial Judge erred in saying that the
Kashi had only a widow’s estate when she died and that the
trial court failed to appreciate that no issue was framed as
to who were the heirs of the deceased Bai Kashi and that the
parties to the suit had not gone to the trial on the basis
of the succession. The High Court has not dealt with this
issue satisfactorily. The High Court after referring to the
pleadings observed that the plaintiffs claimed 1/2 share in
the suit properties on the ground of survivorship and that
at the time of the arguments it was contended before the
trial court that even if the brothers had separated the
defendant and the plaintiff No. 1 inherited together to
Nathubhai after Bai Kashi’s death and therefore the plain-
tiff would be entitled to 1/3 share. After making these
observations the High Court has referred to the plea in the
written statement that the three brothers were separated
and has observed that the trial Judge had framed the issue
as to whether the defendant proves that he and his two
brothers Nathubhai and Lallubhai had separated and the
suit-house was divided and concluded that this issue which
was raised by the learned trial Judge clearly arose out of
the contention which was raised by the defendant to the
plaintiff’s suit and a specific issue was raised on that
point by the learned trial Judge and therefore there is no
prejudice to any of the parties because the issue was framed
and evidence was led by both the parties on that point.
This reference, we are afraid, does not relate to issue No.
3 which is about the succession to Bai Kashi’s share after
her death. In the Memorandum of Grounds in the appeal to
the High Court as well as in the special leave petition the
ground that is taken specifically is that the plaintiff has
not proved how he became entitled to the share of Bai Kashi.
In fact, the contention is that on the death of Nathubhai
his widow Bai Kashi inherited under the Mayukh law Nathub-
hai’s 1/3 share in the suit-house absolutely. It was also
contended before the High Court that the trial Judge was in
error in saying that Mayukh school of Hindu law would
11--206SCI/77 the Mitakshara school in Gujarat. We find
that the question
924
that arose mainly whether the respondents are entitled to
succeed to Bai Kashi’s 1/2 share on her death has not been
satisfactorily dealt with by the High Court especially when
the point was specifically raised on behalf of the appel-
lants. While we agree with the concurrent finding of the
trial court and the High Court that the family became
separated and that the sale deed by Bai Kashi in favour of
the appellants is not for legal necessity we are satisfied
that the claim of the respondents for partition and allot-
ment of 1/3 share by metes and bounds cannot be resisted.
Though the brothers became separate admittedly there was no
division by metes and bounds. There is also no dispute that
the respondents are entitled to. 1/3 share in the house.
Therefore though they became separated in status the suit-
house was not divided by metes and bounds and therefore they
will be entitled to division and separate possession of 1/3
share in the house. To this extent the decree of the courts
below will be modified.
But so far as the 1/3 share of Bai Kashi is concerned as
the courts below have not considered the appellants’ plea
that the respondents are not entitled to succeed to Bai
Kashi’s 1/2 share the question is remitted to the High Court
for consideration. The High Court will consider as to.
whether the respondents are entitled to succeed to 1/2 of
the 1/3 share of Bai Kashi and pass a decree accordingly.
To this extent the appeal is allowed and the decree of the
trial court and the High Court modified. The parties will
bear their own costs in this appeal.
P.H.P. Appeal
allowed.
925