V.R. Kingaonkar, J.@mdashBoth these appeals are being disposed of together in as much as some of the questions of facts and law involved therein are of identical nature.
2. Challenge in these appeals is to judgement rendered by learned Additional District Judge, in an appeal bearing R.C.A. No. 384/1988 and appeal bearing R.C.A. No. 540/1988 whereby and whereunder judgements rendered in suits (R.C.S. No. 53/1984 and R.C.S. No. 91/1986, respectively) of the trial Court was confirmed.
3. There is no dispute about following pedigree table.
Said Kushaba died on 16th March, 1948. He had no male issue from either of the three (3) wives. Out of the three (3) wives left by him, Taibai, who was the senior widow amongst them, died issueless .One of the widows, namely, Bhagubai adopted Nivrutti (appellant) on 17th November, 1949 as per custom and tenets of Hindu religion. She executed a registered Adoption Deed dated 18th November, 1949 in respect of such adoption of Nivrutti. There is no dispute about the fact that after some years, Bhagubai re-married. Thus, Kasabai is the adoptive married sister of Nivrutti whereas Sakhubai, Thakubai and Muktabai are his stepsisters.
4. For sake of convenience, I shall refer to the parties by their first names.
5. Nivrutti filed suit (R.C.S. No. 145/1950) against his stepsisters and others - Sakhubai, etc. for declaration of his status as adopted son and recovery of possession of family properties including eight (8) parcels of agricultural lands and a house property. All these agricultural lands and the house property are situated at village Rumanwadi under Akole Tahsil (District Ahmednagar). The suit was decreed by the Trial Court. An appeal was preferred by original defendants, Sakhubai and others which bore R.C.A. No. 255/1953. During pendency of the said appeal before the District Court, Ahmednagar, the parties arrived at compromise. As per terms of the compromise, it was admitted by defendants Sakhubai and others that Nivrutti was adopted son of deceased Kushaba. He surrendered his rights to the extent of 1/2 share in respect of the agricultural lands as shown in the terms of the compromise. The residential house property and an open space situated in gaothan area and remaining agricultural lands were, however, to be owned by Nivrutti. It was agreed by defendants - Sakhubai and others that they would deliver possession of such properties to Nivrutti within a week or else, he would be entitled to recover the same through Court. The defendants in that suit i.e. Sakhubai and others were not given any right in the house properties.
6. It appears that the compromise decree was put to execution by Nivrutti and the same was materially executed in respect of the agricultural lands shown in the suit. The decree remained unexecuted only to the extent of a house and one (1) of the land. Admittedly, Kasabai, who is the adoptive sister of Nivrutti, was not a party to the earlier litigation and the compromise, which was effected in that appeal (R.C.A. No. 255/1953).
7. The three (3) stepsisters of Nivrutti, namely, Sakhubai, Thakubai and Muktabai filed suit (R.C.S. No. 53/1984) mainly against him, joining his adoptive sister Kasabai and the Ahmednagar District Cooperative Land Development Bank Limited as other two (2) defendants, for recovery of half share out of the agricultural land survey No. 21, hissa No. 3A, admeasuring 3 hectares 27 Rs plus pot-kharab 14 Rs, by effecting partition and separation thereof.
8. Briefly stated, case of plaintiffs Sakhubai and others was that they are the co-sharers of the suit land to the extent of half share which they jointly owned. It was agreed between them and defendant No. 1 Nivrutti that the suit land would be developed by obtaining loan from the defendant No. 3 - Cooperative Bank and other financial institutions. In order to facilitate proper documentation to obtain such loans, their names were got deleted from the revenue record by mutual consent. Thereafter, loan was raised and a well was dug in the suit land (Survey No. 21 hissa No. 3A). The land was irrigated through an electric pump set and siphon system. They enjoyed their half share in the suit land uptill January, 1984. The defendant No. 1 - Nivrutti subsequently denied their share. He refused to give them their crop share in the suit land and, therefore, they filed suit for separate possession to the extent of half share.
9. Nivrutti resisted the suit by filing his written statement (Exh-22). He asserted that Sakhubai and others - plaintiffs were not entitled to half share in the suit land. He denied all the material averments made in the plaint as regards mutual agreement to develop the suit land and deletion of the names of Sakhubai and others from the revenue record for raising of loans by him. He asserted that in 1960, Sakhubai and others demanded house property for their residence. They agreed to surrender their rights in respect of the suit land (Survey No. 21, hissa No. 3A) in his favour. Accordingly, they surrendered their rights in his favour and he exchanged the house property and agricultural land bearing No. 62/1B in lieu thereof. Thus, Sakhubai and others became owners of house property and land survey No. 62/1B whereas he became exclusive owner of the suit land. He asserted further that since such mutual arrangement and time of surrender, he is in exclusive possession of the suit land (survey No. 21, hissa No. 3A) to the exclusion of the plaintiffs - Sakhubai and others. He submitted that the suit for partition and separate possession was barred by limitation in as much as Sakhubai and others were excluded from enjoyment of the suit land since 1960 onwards. They never exercised possession over the suit land for more than 12 years before the suit. He asserted that the rights of Sakhubai and others have been exchanged due to surrender effected in 1960. On these premises, he sought dismissal of the suit.
10. Kasabai - defendant No. 2 gave consent written statement (Exh-49).
11. It is not necessary to set out pleadings of the Cooperative Bank. For, the Bank is concerned with recovery of loan amount which was raised by defendant No. 1 Nivrutti.
12. On merits, the suit came to be decreed. Nivrutti preferred appeal against the judgement and decree passed in suit (R.C.S. No. 53/1984). His appeal (R.C.A. No. 384/1988) came to be dismissed. Hence, he has preferred the Second Appeal No. 233/2000.
13. Another suit (R.C.S. No. 91/1986) was filed by Kasabai against Nivrutti and six (6) others including her three (3) stepsisters i.e. Sakhubai, Thakubai and Muktabai , two (2) sons of Nivrutti and the Cooperative Bank. She sought partition and separate possession of half share in respect of seven (7) agricultural lands including land survey No. 21/3A.
14. Case of Kasabai before the Trial Court was that Nivrutti was allotted the suit lands as per terms of the compromise rendered in previous litigation (R.C.A. No. 255/1953). These agricultural lands are, therefore, jointly inherited by him alogn with her, being the successors of Bhagubai. Both of them are entitled to equal shares in the suit lands as the legal heirs of deceased Kushaba, through their mother Bhagubai. Consequently, she sought the partition decree.
15. By his written statement (Exh-22), Nivrutti resisted the suit. He denied that Kasabai is entitled to share in the suit lands. According to him, he alone became the successor to the properties left by deceased Kushaba as his adopted son and became owner thereof. He contended that in the previous litigation, the share in the suit lands was allotted to the stepsisters i.e. Sakhubai, Thakubai and Muktabai only because of the settlement and due to their cordial relationship. He surrendered such shares in their favour though they were legally not entitled to claim any right or concern with the same. He contended that being married adoptive sister, plaintiff Kasabai cannot be regarded as member of his Joint Hindu Family and was never entitled to seek right of partition. He submitted that due to doctrine of ''relation back'', he became sole male successor to the properties of deceased Kushaba on account of his valid adoption by Bhagubai. Consequently, he sought dismissal of the suit.
16. It is not necessary to set out pleadings of original defendant No. 7 - the Ahmednagar District Cooperative Land Development Bank Limited. The original defendants No. 4 to 6 i.e. Sakhubai, Thakubai and Muktabai did not file any written statement.
17. Original defendants No. 2 and 3 are the sons of defendant No. 1 Nivrutti and adopted his written statement.
18. The parties went to trial over issues settled below Exhibit-23. On merits, the learned Civil Judge came to conclusion that plaintiff Kasabai was entitled to seek partition and separate possession of her half share in the suit land, which was in the hands of defendant No. 1 Nivrutti. Hence, the partition decree was rendered in her favour.
19. Nivrutti and his two (2) sons preferred an appeal (R.C.A. No. 504/1988). The first Appellate Court dismissed their appeal and confirmed the decree for partition and separate possession, rendered in favour of Kasabai.
20. Feeling aggrieved, the second appeal No. 299 of 2000 is preferred by Nivrutti and his sons. 21. In both these appeals, grounds No. (V), (XI) and (XII) shown in the appeal memos were treated as the substantial questions of law at the time of admissions thereof. Instead of reproducing these grounds as such, I deem it proper to redraft these substantial questions of law, as follows :
(i) Whether, in the facts and circumstances of the present case, the suit of Sakhubai and others (R.C.S. No. 53/1984) ought to have been dismissed as the same was barred by limitation because of subsequent arrangement interse the parties for exchange of the share in the suit land (survey No. 21/3A) in lieu of the house property and another land as alleged to have been effected in or about 1960 ?
(ii) Whether, in the facts and circumstances of the present case, Nivrutti was denied opportunity to lead evidence and was, therefore, prejudiced due to framing of issue No. 8A and 8B at the time of judgement rendered by the Civil Court in above suit and the first Appellate Court committed patent error while holding that framing of the said issues did not affect merits of the case ?
(iii) Whether, in the facts and circumstances of the present case, both the Courts below committed patent error while interpreting provisions of the Hindu law as applicable to the parties prior to commencement of the Hindu Succession Act, 1956 and it ought to have been held that Kasabai could not inherit any of the properties left by deceased Kushaba ?
(iv) Whether, in the facts and circumstances of the present case, both the Courts below committed patent error while decreeing suit of plaintiff Kasabai (R.C.S. No. 91/1986) without adhering to the legal position that due to valid adoption, Nivrutti divested her of the suit properties, and the doctrine of ''relation back'' is attracted ?
22. Heard learned Counsel for the parties.
23. It is not necessary to elaborately set out and discuss oral evidence of the parties. The evidence on record reveals that Kasabai was born to Bhagabai after about 10 days of Kushaba''s death. After the death of Kushaba, there were three (3) widows who could succeed to his properties alongwith three (3) daughters, namely, Sakhubai, Thakubai and Muktabai. Kasabai was in her mother''s womb and could succeed to the properties, had there been no further development of adoption of Nivrutti by her mother. Since Taibai, the eldest widow died issueless, there is no question of inheritance of the suit properties by her. The adoption of Nivrutti under a registered adoption deed dated 18th November, 1949 is duly proved in view of admitted facts and in view of the previous litigation. There is no dispute about the factum of his adoption in 1949 by Bhagubai.
24. The legal status of an adopted son under the old Hindu law may be considered. Article 498 of the Hindu Law ( By Mulla Vol. I 20th Edi. - P-832) deals with subject of vesting and divesting of estate by an adopted son. Article 498 of Hindu Law would make it amply clear that a property vesting on adoption by a widow may divest an estate of other heirs claiming it by inheritance. It would divest rights acquired by survivorship. The widow has authority to adopt a son in order to perpetuate the adoptive father''s name by securing an heir as incorporated in Article 499 of the Hindu Law. In
(7) In the present case, Krishnabai owned the property as full owner on the death of her father Narasappagouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband, Vasappa and, after him, his sons, inherited this property of Krishnabai and thus the appellants claimed under Krishnabai. Their such claim is therefore defeasible on the adoption of a son by Tungabai. The fact that Krishnabai inherited the property of her father absolutely, does not affect this question of title being defeated on the adoption of a son by Tungabai. The character of the property does not change, as suggested for the appellants, from coparcenary property to self-acquired property of Krishnabai so long as Tungabai, the widow of the family, exists, and is capable of adopting a son, who becomes a coparcener.
25. It is well settled that as a preferential heir, an adopted son would divest his mother of the estate of his adoptive father and also would divest his adoptive mother of the estate she gets as an heir of her son who died after the death of her husband. The legal position which existed as on death of Kushaba ought to have been seen by the Courts below in proper perspective. As on death of Kushaba, only female heirs were left in his family. The widows had no right to claim his property by inheritance. The rights of the three (3) widows were limited u/s 3(3) of the Hindu Women''s Right to Maintenance Act. The three (3) widows could take lifetime interest for maintenance out of the landed properties left by Kushaba. They could not, however, become absolute owners of the said properties. Where there are two (2) or more widows succeeding as co-sharers to the estate of their deceased husband, they would take as joint tenants with the right of equal joint enjoyment. The daughters of Kushaba had no birth right to claim the suit lands and the house properties as his heirs. Needless to say, the female heirs were not the coparceners of deceased Kushaba, nor they had right to exclusively seek shares by way of partition. In other words, there was no vesting of the properties in either of them immediately after death of Kushaba. So, when Nivrutti was adopted as on 17th November, 1949, as per the custom and tenets of the Hindu law, by Bhagabai, then it must be held that he was born in the adopted family on 16th June, 1948 i.e. at the time of death of Kushaba. The doctrine of ''relation back'' is attracted in such a case. Nivrutti became the sole surviving male member of the family by legal fiction, as on the date of death of Kushaba.
26. The Trial Court and the first Appellate Court considered Section 6 of the Hindu Succession Act while holding that Kasabai is entitled to claim separate share by way of partition in view of her notional share as heir of deceased Kushaba. This approach is improper and incorrect. The succession had opened before commencement of the Hindu Succession Act, 1956. Not only that, but the adoption took place prior to commencement of the Hindu Succession Act and Hindu Adoption and Maintenance Act of 1956. The right of inheritance ought to be, therefore, considered under the provisions of the old Hindu law which prevailed as on 16th June, 1948. Since Nivrutti alone was the male heir available in the family, he was entitled to inherit the properties of deceased Kushaba to the exclusion of other female heirs. Under these circumstances, plaintiff Kasabai had no right to seek partition and separate possession of the suit properties. It goes without saying that her suit (R.C.S. No. 91/1986) was liable to be dismissed. Though she is married sister of Nivrutti, yet, erroneously, the first Appellate Court observed that she was in joint possession of the suit properties with him being member of their Joint Hindu Family. The first Appellate Court inferred that due to such a reason, she was not included in the previous suit filed by Nivrutti (R.C.S. No. 145/1950). The first Appellate Court observed that possession of Kasabai continued to remain jointly with Nivrutti. It was for such reason that she became absolute owner of her share u/s 14(1) of the Hindu Succession Act, 1956. The inferences drawn by the first Appellate Court are misconceived and contrary to the settled legal position. There is absolutely no material on record to show that due to her joint enjoyment of possession of the suit properties, Nivrutti did not join her as a party in the previous suit (R.C.S. No. 145/1950). Nor there is any shred of evidence to show that she enjoyed joint possession with him and was "possessed of half share" in the suit properties in her own right or on basis of any right available to her when the Hindu Succession Act came into force.
27. The material on record reveals that Kasabai was never in the enjoyment of any part of the suit property. She could not be regarded as joint owner and possessor of the suit properties. After her marriage, she started residing with her husband. There is no single revenue entry to show that she was joint possessor of either of the suit land and the suit house property. Under these circumstances, both the Courts should not have decreed her suit. Hence, the impugned judgement rendered in appeal (R.C.A. No. 540/1988) is unsustainable. It follows that Second Appeal No. 299/2000 will have to be allowed.
28. So far as suit filed by Sakhubai and others is concerned, it is important to note that Nivrutti sought exception on ground that after the surrender effected vide compromise decree in appeal (R.C.A. No. 255/1953), there was re-allocation of the properties by way of exchange. It was his case before the Trial Court that Sakhubai and others i.e. his stepsisters demanded house property for residence. He asserted that he gave land survey No. 62/1B and house property to them in lieu of land survey No. 21/3A (suit land). The burden of proof was on defendant No. 1 Nivrutti to establish that the so called exchange of properties was validly done in or about 1960.
29. An exchange of property as contemplated u/s 118 of the Transfer of Property Act must be effected by a registered instrument. A plain reading of Section 118 of the Transfer of Property Act reveals that such transfer would be valid only when it is effected likewise that of a sale as contemplated u/s 54 of the said Act. An immovable property valued more than Rs. 100/- cannot be transferred without execution of a registered instrument. The so called exchange is, admittedly, not supported by any registered instrument. There is hardly any evidence on record to show that Sakhubai, Thakubai and Muktabai surrendered their half shares in the suit land (survey No. 21/3A) in favour of defendant No. 1 Nivrutti as alleged by him. The case of defendant No. 1 Nivrutti merely hinges upon certain entries in the revenue record. It is well settled that mere revenue entries do not create title. The Apex Court in
...Be that as it may, we have already noticed that mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. That being the position, Mutation No. 1311 cannot be construed as conveying title in favour of Balwant Singh and Kartar Singh or extinguishing the title of Durga Devi in the suit property. Consequently, the title to the suit property always vested with the widow notwithstanding the Mutation No. 1311. Viewed in this manner, the decision in the earlier proceedings namely, decree in Suit No. 194/55 even assuming operates as res judicata, will not be of any avail to the contesting respondents (plaintiffs) in the present suit because the reliefs sought in the prior proceeding was for a simple declaration that the mutation gift of 1954 would not affect the reversionary rights of reversioners.
There is a catena of case-law in this behalf. In
30. Once it is found that by virtue of compromise decree rendered in appeal (R.C.A. No. 255/1953), Sakhubai, Thakubai and Muktabai acquired rights to claim half share in the suit land i.e. survey No. 21/3A, then it goes without saying that after commencement of the Hindu Succession Act, 1956, their such rights were crystalized and transformed into full ownership. They could not be deprived of the suit land only by effecting mutation entry and deleting their names. It cannot be said that they were lawfully excluded from the suit land on account of such arrangement. The mere change in the revenue record does not amount to valid exclusion of Sakhubai and others from the suit land. The concurrent findings of both the Courts below, in this context, cannot be interfered with in the second appeal in view of
31. Considering the foregoing reasons, I am of the opinion that the suit filed by Sakhubai and others (R.C.S. No. 53/1984) was not barred by limitation. Their rights were not defeasible on account of so called exchange or surrender through the mutation entry relied upon by defendant No. 1 Nivrutti. The suit for separate possession and partition was, therefore, rightly decreed by both the Courts below and hence, the Second Appeal No. 233/2000 is destitute of substance.
32. In the result, the second appeal No. 233/2000 is dismissed. The second appeal No. 299/2000 is, however, allowed. The impugned judgements in the appeal (R.C.A. No. 540/1988) and the suit (R.C.S. No. 91/1986) are set aside. The suit (R.C.S. No. 91/1986) filed by Kasabai stands dismissed.
All the parties to these appeals shall bear their own costs throughout.
