Civil Judge Dahyabhai Ratanlal Himself & Heirs Of Ratanlal P ­ vs Dahiben D/O Chhaganlal Parshotamdas & 5 ­ Defendants

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 59 of 1991 For Approval and Signature:

HONOURABLE MR.JUSTICE M.R. SHAH =========================================

========================================= DAHYABHAI RATANLAL HIMSELF & HEIRS OF RATANLAL P. ­ Appellant(s) Versus DAHIBEN D/O CHHAGANLAL PARSHOTAMDAS & 5 ­ Defendant(s) ========================================= Appearance :

UNSERVED­EXPIRED (N) for Appellant(s) : 1,MR HM PARIKH for Appellant(s) : 1.2.1 MR RASESH H PARIKH for Appellant(s) : 1.2.1 None for Defendant(s) : 1,3 ­ 6.

MR MEHUL S SHAH for Defendant(s) : 2, MR SURESH M SHAH for Defendant(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/12/2012 CAV JUDGMENT

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant ­original plaintiff challenging the impugned judgment and decree passed by the learned Civil Judge (S.D.), Petlad dated 30.4.1985 passed in Regular Civil Suit No.121 of 1980, by which, the learned trial Court has dismissed the said suit. The appellant original­plaintiff has also challenged the impugned judgment and order passed by the learned Appellate Court ­learned Assistant Judge, Nadiad dated 17.7.1990 passed in Regular Civil Appeal No. 203 of 1985, by which, the learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.

2.0 The appellant herein ­original plaintiff instituted Regular Civil Suit No.203 of 1985 in the Court of learned Civil Judge (S.D.), Petlad against the defendants ­heir of Bai Ganga wd/o Chhaganlal Parshotamdas for declaration and permanent injunction. It was the case on behalf of the plaintiff that he is the owner and occupier of the land bearing Survey No.381, Block No.600 situated at village Agas Tal: Petlad. That the mother of the defendant deceased Bai Ganga was widow of the son of said Parshotamdas Jamnadas. That the deceased Bai Ganga has got right of maintenance from the suit field. Pursuant to the deed of maintenance dated 9.7.1926 executed between Bai Ganga and Shah Parshotamdas Jamnadas (Exh.83). That under the said agreement she was entitled to get maintenance out of suit field during the lifetime. That the Bai Ganga died on 19.4.1980 and therefore, the plaintiff is entitled to take possession of the suit field as revisioner because they are the legal heirs of Parshotamdas Jamnadas. It was the case on behalf of the plaintiffs that after the death of Bai Ganga, her daughters have no right, title or interest in the suit field, therefor, it was prayed for declaration that the defendants have no right, title or interest in the suit land and still interfered with the possession of the plaintiff and therefore, the plaintiff instituted the aforesaid suit for declaration and permanent injunction.

2.1. That the suit was resisted by the defendants by filing written statement at Exh.57. It was denied that deceased Bai Ganga has limited rights of maintenance only. It was submitted that the suit land is ancestral property of Ratanlal who was the great grandfather of the parties. It was denied that Bai Ganga was only entitled to get maintenance out of suit land during her lifetime and the defendants have no right, title or interest in the suit land. It was contended on behalf of the defendants that the deceased Bai Ganga was full owner of the suit land and her name was also mutated in the revenue record as owner and occupant. Therefore, it was submitted that Bai Ganga was in actual possession of the suit land and was cultivating the same. It was submitted that the deceased Bai Ganga has acquired right, title and interest in the suit land vide writing dated 9.7.1926. It was submitted that right of maintenance was in existence prior to writing dated 9.7.1926 and therefore, Bai Ganga had become absolute owner of the suit land as per Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as the “Act”) and after the death of Bai Ganga, defendants have inherited the suit land and they have right, title and interest in the suit land and therefore, the injunction cannot be granted.

Therefore, it was requested to dismiss the suit.

2.2. That the learned trial Court framed the issues at Exh,63. That both the parties led evidence and also relied upon the deed of maintenance dated 9.7.1926 (Exh.83) executed between Bai Ganga wd/o Chhaganlal Parshotamdas and Shah Parshotamdas Jamnadas. However, considering the Section 14(1) of the Act the learned trial Court held that Bai Ganga wd/o Chhaganlal had become the full owner of the suit land and consequently dismissed the suit.

2.3. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (S.D.), Petlad, dated 30.4.1985 passed in Regular Civil Suit No. 121 of 1980, the appellant herein­original plaintiff preferred Regular Civil Appeal No. 203 of 1985 before the District Court, Kheda and by impugned judgment and order dated 17.7.1990 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.

2.4. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in dismissing the suit, the appellant herein­original plaintiff has preferred present Second Appeal under Section 100 of the Code of Civil Procedure.

3.0 At the outset, it is required to be noted that while admitting the present Second Appeal learned Single Judge has raised the following substantial question of law.

“Whether in the facts and circumstances of the case, the courts below erred in not holding that the case of the respondent does not fall within the ambit of Section 14 (2) of the Hindu Succession Act?”

4.0 Shri H.M. Parikh, learned advocate has appeared on behalf of the appellant ­original plaintiff and Shri S.M. Shah, learned advocate has appeared on behalf of the respondent­original defendants.

5.0 Shri H.M. Parikh, learned advocate for the appellant has vehemently submitted that both the Courts below have materially erred in holding that the case would fall under Section 14(1) of the Act and that considering Section 14 (1) of the Act Bai Ganga wd/o Chhaganlal had become the full owner of the suit land and not as limited owner. It is submitted that both the Courts below have materially erred in holding that the case would not fall under Section 14(2) of the Act. It is submitted that as the suit land in question was given to Gangaben pursuant to the instrument / deed of maintenance dated 8.7.1926 (Exh.83) for maintenance during her lifetime and in the said instrument / document it has been specifically mentioned that after the death of Bai Ganga, the said field (suit land) will go into possession of the heir of Shah Parshotamdas Jamnadas (grandfather) and in that case Parshotamdas Jamnadas or his heir to pay Rs. 25/­ per year to Dahiben, daughter of Bai Ganga­defendant no.1 till she is alive, both the Courts below ought to have applied Section 14(2) of the Act and ought to have decreed the suit.

5.1. Shri Parikh, learned advocate for the appellant has heavily relied upon the deed of maintenance produced at Exh.83 as well as decision of the Hon'ble Supreme Court in the case of Kothi Satyanarayana vs. Galla Sithayya and others reported in AIR 1987 SC 353. By making above submissions and relied upon the above decision, it is requested to allow the present Second Appeal.

6.0 Present Second Appeal is opposed by Shri S.M. Shah, learned advocate for the respondents­original defendants. Relying upon the partition deed produced at Exh.16 it is submitted that as such Bai Ganga had acquired right of maintenance even prior to Exh.83 and therefore, thus there was pre­existing right of maintenance which was only declared by Exh.83 and therefore, both the Courts have rightly held that Section 14(1) of the Act would be applicable and Bai Ganga was the full owner of the suit land. It is submitted that not only that even the name of Bai Ganga was mutated in the revenue record as full owner and occupant of land (Exhs. 79, 80 and 82). Shri Shah, learned advocate for the respondents­original defendants has also relied upon the decision of the Hon'ble Supreme Court in the case of Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Reddi (dead) by L.rs reported in AIR 1977 SC 1944 in support of his submissions that case would fall under Section 14(1) of the Act in support of his submissions that Bai Ganga had become the absolute owner of the suit land and after her death the defendants become the owner and occupant of the disputed land under the Will executed by Bai Ganga. By making above submissions and relying upon the above decisions, it is requested to dismiss the present Second Appeal.

7.0 Heard the learned advocates for the respective parties at length and considered impugned judgment and order passed by both the Courts below and considered documentary evidences on record from the record and proceedings received from the learned trial Court. The short question which is posed for consideration of this Court is whether in the present case the case would fall under Section 14(1) of the Act or under Section 14(2) of the Act and whether Bai Ganga Wd/o Chhaganlal possessed the suit land as full owner or as limited owner ?

8.0 It is the case of the plaintiff that the suit land was given to Bai Ganga under the deed of maintenance dated 9.7.1926 (Exh.83) executed between Bai Ganga and Shah Parshotamdas Jamnadas (Exh.83) for her maintenance during her lifetime and maintenance of her daughter Bai Dahi (defendant no.1) who was also widow and under said deed of maintenance it was agreed that after the death of Bai Ganga the suit field will go into possession of the heir of Shah Parshotamdas Jamnadas (grandfather) and in that case Parshotamdas Jamnadas or his heir to pay Rs. 25/­ per year to Dahiben, daughter of Gangaben­defendant no.1 till she is alive. Therefore, it is the case of the plaintiff that as the suit property was given under the instrument/ writing / deed of maintenance dated 9.7.1926 with a restricted right of maintenance during lifetime of Bai Ganga the case would fall under Section 14(2) of the Act and provision of Section 14(1) of the Act would not be applicable.

9.0 On the other hand, it is the case of the defendants that as such Bai Ganga had already pre existing right to get maintenance even prior to deed and the same was reduced in writing only vide Exh.83 and even the name of Bai Ganga was also mutated in the revenue record as absolute owner and occupant of the land in question, both the Courts below have rightly held that the suit land held by Bai Ganga as full owner and not as limited owner. It is submitted that even as per the explanation to sub­section (1) of Section 14 “property” includes both movable and immovable property acquired by a female Hindu in lieu of maintenance and therefore, when the suit land in question was given to Bai Ganga pursuant to the deed of maintenance dated 9.7.1926 (Exh.83) which was in lieu of maintenance, both the Courts below have rightly held that the case would fall under Section 14(1) of the Act and both the Courts below have rightly dismissed the suit by holding that the defendants have become owner pursuant to the Will executed by the Bai Ganga.

10. To appreciate the aforesaid submissions, deed of maintenance dated 9.7.1926 executed between Bai Ganga and Shah Parshotamdas Jamnadas is required to be considered, which reads as under;

“Deed of maintenance o Rs.50/­ for food and clothes and Rs.6/­ for house rent, executed on Samvat 1982 Jeth Vad Fourteen, Thursday, 08.07.1926 at Village Petlad, in between Bai Ganga Wd/o. Sha. Chhaganlal Parshotam, Nagar Vaniya, Occupation: Household, ­ First Party and Shah Parshotam Jamnadas B. Pitambardas, Nagar Vaniya, Occupation: Business, ­ Second Party, to the effect that, the First Party happens to be Widow of son of the Second Party and therefore, the Second Party and therefore, Second Party is responsible for maintenance of the First Party and therefore, the first Party will not have to bother for livelihood till she lives jointly with the First Party and if she does not like to live jointly with the Second Party, then in that case, the Second Party assigns to the first Party for her maintenance the below mentioned field (farm), the products o which is of Rs.50/­ at present. The First Party will maintain her livelihood from the said income as well as her daughter namely Dahi who is also a widow. The Second Party also undertakes to give the upper floor of House No.1, Travadi Pada Maholla, Petlad, the rent of which is Rs.6/­. The Second Party and her daughter Dahi cannot create any charge on this field (Farm) and the second Party cannot also create any charge till the First Party is alive. After the death of First Party, the said field (Farm) will go into the possession o heirs of the Second Party and in that case, the Second Party or his heirs will pay Rs.25/­ (Rupees Twenty Five only) per year to Dahiben, Daughter o the First Party till she is alive. After the death of First Party the possession of the upper floor o the said house will go to Dahiben till she is alive. The First Party will have to maintain her livelihood jointly with the first Party till the First Party is alive. After the death of Second Party, the field (Farm) determined as above, will go to the First Party and she will be entitled to receive income therefrom. The possession of the upper floor of the house for the residence of the First Party is handed over to the First Party. 1 field – 1 known as Jambudiwado of Revenue Survey No.381 admeasuring 5­0­0 Five Vighas assess at the rate of 6­8­0 situated in the village of Second Party, taluka Petlad, District: Vadodara, which is being run in the name o Second Party as a result of partition. The upper floor of the House­1 constructed of bricks having main entrance towards eastern side and having Varandah situated at Travadi Pada’s Maholla, village: Petlad, Taluka Petlad, District Vadodara, is provided for the residence o the First Party. The four corners of the said house are as under:

East: One Chowk – Varandah – Road West: House o Bhikhalal Bahechar North: House of Sha. Babar Gabad South: House of Sha. Mohan Bahechar The area (measurement of the above described house) is Gaj – 16 East­West, Gaj­7 North­South and Sq. Gaj – 112 approximately. The sanad of the said house is in the custody of Sha. Babar Gabad being partner in the Street. Therefore, Tikka No. and Survey No. are not available. The Sanad of this house and house of Babar Gabad and front side of northern street are combined. The way of this house is passing through Street facing northern side”.

11. Considering the aforesaid deed of maintenance, it appears that the suit land was given to Bai Ganga for her maintenance during her lifetime with a restricted right in the estate and it is also provided in the said instrument that on the death of Bai Ganga the suit field will go to Parshotamdas or his heir and ­Bai Dahi daughter of Bai Ganga who was also at the relevant time widow ­defendant no.2 will be entitled to Rs.25 per year towards maintenance during her lifetime. Thus under the instrument at Exh.83 not only Bai Ganga had limited right of maintenance during her lifetime from the income from the suit land even thereafter on the death of Bai Ganga the suit land will go back to the Parshotamdas or heir and her ­Bai Dahi would have limited right to get Rs.25 per year towards her maintenance.

12. Thus, the aforesaid settlement deed /deed is an instrument contemplated under sub­section (2 )of Section 14 of the Act and admittedly it created restricted estate in favour of Bai Ganga and on the death of Bai Ganga the suit field will revert back to the Parshotamdas. Therefore, sub­section (1) of Section 14 of the Act would not be attracted. In an identical facts and circumstances of the case, the Hon’ble Supreme Court in the case of Kothi Satyanarayana (supra) has held that widow in whose favour the settlement deed was executed with similar restricted estate does not get absolute proprietary right in the property and it is held that sub­section (1) of Section 14 of the Act would not be attracted.

13. Now, so far as reliance placed upon the decision of the Hon’ble Supreme Court in the case of Vaddeboyina Tulasamma and Others (supra) relied upon by the learned advocate for the defendants and on considering the same it appears to the Court that on facts the said decision would not be applicable in the present case and / or same shall not be of any assistance of the defendants. In the case before the Hon’ble Supreme Court there was already decree passed in favour of the widow in a suit claiming out of the joint Family property and in execution of decree for maintenance, a compromise was arrived at between the parties allotting the properties in question to the widow / Hindu Female for her maintenance and giving her limited interest in such properties and to that the Hon’ble Supreme Court has held that since the properties in question were acquired by the widow of Hindu Female under the compromise in lieu of satisfaction of her right of maintenance, it was sub­section (1) and not sub­section (2) of Section 14 which should be applicable.

14. Considering the aforesaid facts and circumstances facts and circumstances of the case and deed dated 9.7.1996 produced at Exh.83 it appears to the Court that both the Courts below have materially erred in dismissing the suit and holding that Bai Ganga widow of Parshottamdas had acquired proprietary rights applying Section 14(1) of the Hindu Succession Act. Consequently, present Second Appeal succeeds and is allowed and impugned judgment and decree passed by the learned Civil Judge (S.D.), Petlad dated 30.4.1985 passed in Regular Civil Suit No.121 of 1980 and impugned judgment and order passed by the learned Appellate Court ­learned Assistant Judge, Nadiad dated 17.7.1990 passed in Regular Civil Appeal No. 203 of 1985 are hereby quashed and set aside and Regular Civil Suit No.121 of 1980 preferred by the appellants herein ­original plaintiffs is hereby consequently decreed so far as agriculture suit land is concerned and consequently it is held that on the death of Bai Ganga the suit land in question shall revert back to the Parshotamdas Jamnadas and consequently upon his heirs subject to right of Bai Dahi to get Rs.25/­ per month till she is alive (as mentioned in deed at Exh.83). Present Second Appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.

( M. R. Shah, J. ) “kaushik”