IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL SIDE JURISDICTION NOTICE OF MOTION NO.738 OF 2014 IN SUIT NO.

Transcription

1 jsn 1 NMS No.738_2014 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL SIDE JURISDICTION NOTICE OF MOTION NO.738 OF 2014 IN SUIT NO.454 OF 2014 Paresh Damodardas Mahant Plaintiff Vs. Arun Damodardas Mahant & 3 ors. Defendants Mr. Sanjay Jain, Adv. Mr. C.D. Mehta, Adv. a/w. Mr. D R Mehta, Adv. a/w. Mr. Lalan Gupta, i/b. M/s. Dhruve Liladhar & Co. for the plaintiff. Dr. Birendra Saraf, Adv. a/w. Ms. Jyoti Ghag, Adv. a/w. Ms. Shivani, Adv. i/b. M/s. Thakore Jariwala Associates for defendant No.1, Ms. Pooja Kshirsagar, Adv. i/b. Kalpesh Joshi for Defendant No.2. Ms. Sonu Tandon, Adv. for defendant No.4. CORAM : MRS. ROSHAN DALVI, J. DATE OF RESERVING THE ORDER : 10 th September, 2014 DATE OF PRONOUNCING THE ORDER : 13 th October, 2014 O R D E R 1. Preliminary issue of limitation has been framed thus : (1) Whether the suit is barred by the Law of Limitation. 2. It is required to be decided under Section 9A of the CPC. Both counsel state that the parties do not desire to lead any evidence and the issue be decided upon the pleadings. 3. The suit is filed by the plaintiff for an undivided 1/5 th share right, title and interest in the suit property claimed by him. The

2 jsn 2 NMS No.738_2014 plaintiff claims as one of the heirs and legal representatives of the deceased Damodardas and also as a co owner with defendant Nos.1 to 4 having an undivided share right, title and interest in the suit property. The suit property consists of a tenanted building with a temple on a ground floor called Hanuman Temple. The suit is for partition of the property by metes and bounds as also for administration of the estate of the deceased father. 4. The plaintiff has averred in paragraph 6 of the plaint that the suit property was originally owned and managed by the lineal ascendants of the plaintiff since the time of his great great grandfather one Mohandasji who was the Mahant of the temple. The plaintiff has claimed his lineage through Kuvarbai, the wife of Mohandasji, her adopted son Dharamdasji, the plaintiffs great grandfather who was bequeathed the suit property and upon the death of the Dharamdasji to his son Ramdas who was his grandfather. The plaintiff has claimed that thereafter the property was managed by the wife of Ramdas, Ratanbai, who is the plaintiffs grandmother after which the plaintiff's deceased father came to be the owner and manager of the suit property and the Mahant of the temple therein. These averments are accepted by the defendants as true. 5. The suit property is, therefore, not the self acquired property of the plaintiff's father. It was his ancestral property. In any event the property became ancestral in the hands of the plaintiff and defendant Nos.1 to 4 upon the death of their father, Damodardas. The property register card also shows the property formerly belonging to Ramdas and then to Damodardas and then sought to be made out in the name of defendant No.1.

3 jsn 3 NMS No.738_ In paragraph 8 of the plaint the plaintiff has averred about the death of his father on 14 th September, 2002 upon which the plaintiff and defendant Nos.1 to 4 as heirs and legal representatives each got an undivided 1/5 th interest in the suit property though it is claimed to be ancestral property. 7. A reading of the entire plaint also shows that the plaintiff claims 1/5 th share right, title and interest as an undivided interest, but upon the death of his father. Though defendant Nos.1 to 4 are shown to be the heirs and legal representatives of the deceased Damodardas, the property is stated to be ancestral or joint family property which is shown to have devolved upon them as co owners. The plaintiff would contend that he is a co owner and a suit by such co owner for partition can be filed at any time. 8. The plaintiff has shown how the property has been managed for a number of years with regard to the temple. The plaintiff has shown how the eldest son is the Mahant of the temple which is as per the rule of primogeniture. 9. The plaintiff has claimed in paragraph 9 of the plaint that in April, 2014 he came to learn from a random search that defendant no.1 is alone entered as owner of the suit property to the exclusion of the other heirs and legal representatives of his deceased father who are siblings. The fact that it is so shown is not denied. Defendant No.1 has accepted that that was shown by mistake. He has sought to make amends. He has executed an indemnity in that behalf which he claims cancelled the entry. In view of the admission, the knowledge acquired by the plaintiff in April, 2014 about that fact becomes

4 jsn 4 NMS No.738_2014 inconsequential. 10. It is argued on behalf of the defendant that the plaintiff should have led evidence about his search and the consequent knowledge and would require to be cross examined. It is argued that only because of that averment the suit is sought to be saved from the bar of limitation though it is a suit for administration of the estate of the deceased father of the plaintiff who expired in 2002 and hence is barred by limitation, it having been filed 12 years after the cause of action accrued. 11. If the suit is taken to be the suit for administration of the estate of the deceased, the plaintiff would be entitled to a separate and distinct 1/5 th share as devolving upon the intestacy of the plaintiff's father who left behind 4 sons and 1 daughter in In fact the defendants have claimed in paragraph 9 (v) that the father died testate but application for probate of his Will has not been made. The defendant No.1 claimed that under the Will the father left his property to his four sons in equal shares. In that event the plaintiff would be entitled to 1/4 th admitted share in the suit property. In paragraph 9 (v) (b) it is claimed that the temple in suit property was not HUF property and consequently not ancestral property. This would implicitly show that the rest of the property was HUF property. A reference to the co owners has been made in paragraph 31 of the affidavit in reply showing the disclosure of accounts made to them in respect of the income of the temple. 13. Even if the suit property is ancestral it would devolve by succession and not survivorship under the initial part of Section 6 of

5 jsn 5 NMS No.738_2014 the Hindu Succession Act, 1956 (HSA) since there is female in the family, the plaintiff's sister, defendant No.3. The succession opened in The HSA,1956 was in operation then. 14. Dr. Saraf on behalf of the defendants, relied upon the case of Commissioner of Wealth Tax, Kanpur Vs. Chander Sen etc., AIR 1986 Supreme Court 1753 in which the Supreme Court considered the purport of the amendment to old Hindu Law upon the enactment of the HSA as reflected in the preamble to the Act. In that case there was a partial partition between the father and his son who constituted an HUF. Under the partition the business was divided between the father and son. Thereafter they carried on the same business in the partnership. The father expired. There was a credit balance in the books of accounts of the firm. The amount was shown by the son as having been inherited by him individually by succession. He filed his wealth tax return showing that amount not having devolved upon by him by survivorship, but by succession under Section 8 of the HSA. The house property of the family continued to remain joint. The return was not in respect of the house property. The judgment has considered only the amount to the credit of the account of the partnership firm and not the HUF property or the ancestral property. The judgment is, therefore, only for the separate or self acquired property of the father upon and after the partial partition of that property which did not belong to the joint family and passed by inheritance. 15. The Supreme Court considered whether such property could be inherited by the son in his individual capacity or as Karta of

6 jsn 6 NMS No.738_2014 the joint family consisting of himself and his sons. In paragraph 7 of the judgment the Supreme Court observed that this amount could not have belonged to the HUF. It was the separate property of the father. The amount passed to his son by inheritance. The Supreme Court considered Section 8 of HSA under which the property of a male Hindu who died intestate devolved upon the heirs in Class I of the schedule thereto. The son was the only heir. He inherited the property of his father from whom he had separated by partition. Such property was not the income of the HUF. The Supreme Court in paragraph 8 of the judgment held that such property inherited by a son from his father could not be assessed as income of the HUF of the son. In paragraph 11 of the judgment the Supreme Court held that such property when inherited would be inherited in the individual capacity of the son. 16. In paragraph 14 of the judgment the Supreme Court observed that the old Hindu Law under which the son gets a share in the father's ancestral property from the moment of his birth is coparcenary property. The right accrues to the son not on the death of the father by inheritance from the father but by the very fact of his birth. But when the father dies such property would devolve by succession to the son in his individual capacity. In paragraph 16 the Supreme Court referred to the judgment of the Madras High Court in the case of Addl. Commissioner of Income Tax Vs. P L Karuppan Chettiar, 114 ITR 523 : (AIR 1979 Mad 1). In that case also upon partition a person was alloted certain properties. That was his share when he got separated. That became his separate property. On his death that property would devolve upon his legal

7 jsn 7 NMS No.738_2014 heirs under Section 8 of the HSA. 17. Hence the ratio descendi of the case is that the self acquired or separate property of a person would devolve by succession under Section 8 of the HSA and not by survivorship as per old Hindu Law. A property obtained upon partition would be his separate property. He alone would be entitled to it. A similar property obtained by purchase or by gift would be his separate property. He alone would be entitled to it. The judgment is about such properties. In that case the property came to him as the share of the father in the partition. That became the father's separate property. The son inherited that property under Section 8 of HSA. Consequently, the Supreme Court held that in view of Section 8 it would devolve only upon the son and not upon the son's son. Such property did not form a part of the joint family properties. 18. Hence the Supreme Court observed that under Section 4(1) of the Act the provisions of Section 8 would override the established provisions in the texts of Hindu Law. Such properties which were given at the time of partition even if they were ancestral properties earlier would devolve under Section 8 of the HSA. The Supreme Court further observed in paragraph 16 A of the judgment that the property which devolved upon a Hindu on the death of his father intestate did not constitute HUF property with his sons. This had to be individual, separate or self acquired property of the father who died intestate. The Supreme Court further observed in paragraph 17 of the judgment that such properties would become the absolute properties of the son upon them devolving upon the son under Section 8 and consequently the son's son will not have a right

8 jsn 8 NMS No.738_2014 by birth in such properties. Consequently in paragraph 20 of the judgment the Supreme Court observed that when the son inherits the property in the situation contemplated by Section 8, he does not take as Karta of his own undivided family and such property cannot be the son's HUF property. 19. It may be mentioned that the judgment did not concern itself with the house property of the father and the son which continued to remain joint. Hence the law laid down in the judgment would not apply to any property which was the joint property of a Hindu in an HUF. 20. This judgment has been considered by this Court in the case of Shalini Sumant Raut & Ors. Vs. Milind Sumant Raut & Ors, 2013(5) Bom C R 430 thus : In that case there was a partition. Upon partition the share coming to the coparceners would be their separate individual property acquired by them on partition. The property would no longer be coparcenery. That property would have to succeed; it can never survive to the other coparceners, because there are no coparceners upon the partition. The joint Hindu family comes to an end upon the partition. That property being the self acquired property of a given coparcener, who no longer is a coparcener because the joint Hindu family no longer continues joint, would succeed under Section 8 to Class I heirs initially. It would, therefore, be incorrect to state that the Supreme Court held in the case of Chander Sen (supra) that all the properties left by a Hindu would only devolve by succession to his heirs. That would not only be simplistic but erroneous. In that case the property was partitioned and the share that the deceased Hindu male, being the father of Chander Sen, got on partition was his self acquired property which remained in partnership and his son succeeded thereto only; his son did not succeed to the house property which had remained joint.

9 jsn 9 NMS No.738_2014 It would be interesting to see how the Supreme Court has considered the judgments with which it found favour. The case of Commissioner of Income tax, U. P. Vs. Ram Rakshpal, Ashok Kumar MANU/UP/0255/1966 : (1968) 67 ITR 164 was in the case of a son and a father of HUF which was partitioned. The assets inherited by his son from his father from whom he had separated by partition was held not capable of being the income of the HUF of the son. This was because partition took away the character of coparcenary property. The father left behind his widow, married daughter, his son and his son's son. The estate left by him devolved by succession as per Section 6 of the HSA under Section 8 thereof. There were, therefore, 3 shares; for his widow, his married daughter and the son. There was no share for his sons' son Ashok Kumar. Madras High Court's Full Bench judgment in the case of Additional Commissioner of Income tax, Madras Vs. P.L. Karuppan Chettiar, MANU/TN/0348/1979 : 114 ITR 523 was also a case of partition effected between a father, his wife, their sons and daughter in law. The father was separated. The son constituted HUF with his wife and his subsequently born son. When the father died leaving behind his widow and the divided son who was Karta of his HUF as his legal heirs under Section 8 of the HSA, those 2 persons succeeded him to the partitioned properties of the father/husband. They could divide the properties amongst themselves. Since the father had left behind a female relative (heir) being his widow, the properties succeeded to the widow and the son as per the provisions of Section 6 of the HSA as per Section 8 thereof. The case of Shrivallabhdas Modani Vs. Commissioner of Income tax, M. P. I, MANU/MP/0097/1981 : 138 ITR 673 : 1983 Tax LR 559 of Madhya Pradesh High Court was the case where no coparcenery was subsisting between a Hindu and his sons at the time of the death of the father. It was held that such property, which was not ancestral property, received by the son on his father's death could not be blended with other property, in that case the property allowed to the son on partition. Accordingly that property devolved by succession under Section 8 of the HSA. Again this was not coparcenery property which devolved upon the son. The Supreme Court also accepted the judgment of the Andhra Pradesh High Court in the case Wealth tax, A.P. II Vs. Mukundgirji,

10 jsn 10 NMS No.738_2014 MANU/AP/0044/1983 : 144 ITR 18 : 1983 Tax LR 1370 where the property devolved under Section 8 of the HSA. It was observed by the Andhra Pradesh High Court that the Parliament wanted to make a clean break from the old Hindu Law in certain respects consistent with modern egalitarian concepts. The intention of the law was to depart from the pre existing Hindu Law as is reflected also from Section 19 of the HSA. Hence it was observed by the Supreme Court in the case of Chander Sen (supra) that when any property devolved upon a Hindu under Section 8 of the Act it could never be HUF property in the hands of successor vis a vis his own sons because if it was not so, it would amount to creating two classes amongst Class I heirs viz. the male heirs in whose hands it would be joint family property and the female heirs for whom such concept could not have been applied or contemplated then (prior to 2005). Hence any property which devolves under Section 8 of the HSA upon the death of a Hindu male would be his own individual property incapable of partition. It would be his own property in which his son or grandson would have no interest during his lifetime. The properties which devolve under Section 8 of the HSA are self acquired properties or partitioned HUF properties. They are not ancestral HUF properties which are not partitioned. The law which was laid down by the Supreme Court considering the aforesaid judgments of various High Courts was in respect of separate or partitioned properties. 21. Further in the case of Yudhishter Vs. Ashok Kumar, AIR 1987 Supreme Court 558, the Court followed and set out how the question of separate property was dealt with by the judgment in the case of Chander Sen (Supra). In paragraph 10 of the judgment the Court observed how in the case of Chander Sen (Supra) the position of old Hindu Law was affected by Section 8 of HSA and, therefore, after the enactment of HSA when the son inherited the property in the situation contemplated by Section 8, he did not take it as Karta of his own HUF but took it in individual capacity. What the Supreme Court, therefore, held was that if the property

11 jsn 11 NMS No.738_2014 devolved under Section 8 it would devolve individually. Such property could only be separate or self acquired property of the Hindu who died intestate. It would be only such property which would devolve under Section 8. Such property could not be HUF property or ancestral property. HUF property or ancestral property could not devolve under Section 8 of HSA. Hence in the last portion of paragraph 10 of the judgment the Supreme Court observed if that is so i.e. if the property was the self acquired property it could devolve under Section 8 of the HSA. In that case the appellant took the property on rent from the previous landlord. The respondent purchased the premises. This was, therefore, self acquired property claimed by the appellant as also respondent. The Court dealt with the self acquired property. It was such property as would devolve by succession under Section 8 of the HSA. 22. The aforesaid judgment would, therefore, apply only to properties which would devolve under Section 8 of the HSA. The judgments would not apply to HUF or ancestral properties. 23. The reference to and reliance upon the judgment in the case of Chander Sen (Supra) becomes inconsequential when Section 6 of HSA as applicable in 2002, when the succession of the father of the plaintiff opened is considered. 24. Section 6 of the Hindu Succession Act enacted in 1956 runs thus : 6. Devolution of interest in coparcenary property. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a

12 jsn 12 NMS No.738_2014 Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. 25. In fact even under Section 6 (3) of the amended HSA of 2005 the same principle applies to succession of interest in HUF properties of Hindus. The relevant part of Section 6(3) reads thus : 6 (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place The plaintiff has claimed partition of the suit property belonging to his father. The plaintiff claims to have a 1/5 th undivided share right, title and interest in the suit property. The plaintiff has claimed such share along with his brothers and sister as the heirs and legal representatives of his father. This claim is upon revoking Section 6 of the HSA, though that is not mentioned in the plaint. The plaintiff has further made a grievance that defendant No.1 has sought to appropriate the entire property to himself to the exclusion of the other co owners. Hence in paragraph 3 of the plaint the plaintiff claims to be the co

13 jsn 13 NMS No.738_2014 owner who has applied for partition as also the heir of the his deceased father. In paragraph 4 of the plaint the plaintiff claims that all the children of the deceased father are co owners 'as' heirs and legal representatives of the deceased. (The expression is anomalous.) Further in paragraph 6 of the plaint how the property was originally owned and acquired and how later it devolved from generation to generation is set out. In paragraph 11 of the plaint it is claimed that the deceased father of the parties died intestate and left behind the 5 legal heirs being the plaintiff and defendant Nos.1 to 4. Each is entitled to 1/5 th share of the undivided share right, title and interest in the suit property. Again in paragraph 13 of the plaint the plaintiff would make a grievance of the defendant No.1 claiming to be the sole surviving heir and legal representatives of the deceased and entitled to the estate of the deceased. But to the detriment of the 'co owners' (which is again an anomalous legal position.) The plaintiff has prayed for a declaration that the plaintiff and defendant Nos.1 to 4 are co owners of the suit property to the extent of 1/5 th share each therein and has called upon the Court to partition the suit property, to handover such shares and for other ancillary reliefs. 27. Whatever be the form of the plaint, its substance has to be seen. Whatever be the relief claimed by the parties, the kind of property which would be amenable for such reliefs would require to be seen. The suit property is seen to be ancestral property. It would belong to the HUF initially of the great great grandfather of the parties and thereafter to his son's, son's sons, his son's son's sons. The

14 jsn 14 NMS No.738_2014 HUF would continue for four generations including the propositus. The interest of the deceased in such property devolves by succession and not survivorship. The right to a claim upon succession accrues on the date of the death of the deceased holder of the interest in such HUF property. 28. The plaintiff has applied for partition more than a decade after the death of his father. Any co owner may apply for partition any time of an ancestral property. Hence in a suit for partition the death of an earlier co owner is not material. If the plaintiff has acquired an interest by birth in the ancestral property of his greatgreat grandfather and if the plaintiff was entitled to apply for and obtain partition of the ancestral property, the plaintiff may apply for such partition at any time, in that case, after the death of his father. The death of the father would not be material but for the averments in the plaint that the plaintiff and defendant Nos.1 to 4 are the heirs and legal representatives of his deceased father upon his death. However, if the property continued joint and the plaintiff applied for partition the sons and the daughter of all the parties would be coparceners and entitled to an equal undivided share of the suit property under the principle of community of interest and unity of possession of an HUF or ancestral property. All these coparceners are not shown. Their share is not computed. The suit is, therefore, not for simplicitor partition of HUF property amongst all the co parceners upon survivorship. The suit is for administration and partition of the suit property which is claimed to be the estate of the deceased father of the parties upon succession. 29. Defendant No.1 is managing the suit property. He is

15 jsn 15 NMS No.738_2014 looking after the temple which is a part of the suit property. His brothers and his sister and their sons and daughters would be the members of such HUF. 30. This would be the crux of the relationship between the parties and the devolution of the interest in the suit property even if the plaint is not happily worded or may require the amendment to the extent of the shares. 31. This Court is only concerned with whether the suit is barred by the Law of Limitation. If the plaintiff claims as an heir and legal representatives of his deceased father, suit property would devolve under Section 6 of the HSA by succession and not by survivorship, the devolution would be complete on the date of the death of the father. The right to sue any of the heirs and legal representatives of the father would accrue on the date of the death of the father. Hence within three years from such date a suit for administration of the estate of the deceased upon such succession would have to be filed. 32. The case of partition of the ancestral property which belonged to the great great grandfather of the parties and which has devolved for four generations prior to the parties would be rather different if the property continued as such even after the death of the father of the plaintiff. Such case would be under un codified Hindu Law. In such case the property would not vest upon the death of the predecessor of the parties. The legal right would not accrue thereunder upon such death. The right to partition may accrue at any time. Such a suit, only for partition of HUF property by a coparcener

16 jsn 16 NMS No.738_2014 would be a wholly different cause of action. 33. The argument of Mr. Saraf that a reading of the plaint shows that the suit is for the administration of the estate of the deceased may, therefore, not be incorrect given the estate of the deceased father of the plaintiff which would devolve by succession and not by survivorship upon the averments of the plaintiff, the parties being the heirs and legal representatives of the deceased and entitled to 1/5 th share each. 34. The case of the plaintiff that he has sued only when he learnt that defendant No.1 sought to appropriate the entire suit property to himself to the exclusion of the other co owners in April, 2014 which act is admitted by defendant No.1, would not start the period of limitation from The plaintiff should have filed a suit for administration of the estate of his deceased father within 3 years of the death of his father when the cause of action to sue accrued to the plaintiff upon succession. 35. Mr. Jain relied upon the judgment in the case of Syed Shah Gulam Ghouse Mohiuddin & Ors. Vs. Syed Shah Ahmad Mohiuddin Kamisul Qadri (dead) by his LRs., AIR 1971 Supreme Court 2184 to show that an express ouster or denial of the title would start the period of limitation between co owners. The co owner would not hold property adverse to the other co owners. That case was under Mohammedan Law where parties would succeed to the estate on the death of Mohammedan as tenants in common in specific shares which does not apply to this case. When the cause of action would accrue has been set out in the case of Mubarakunnis Mohammed

17 jsn 17 NMS No.738_2014 Naseem & Ors. Vs. Moinuddin Mohd Usman Khan, 2009(3) Bom C R 2 and Antony Eugene Pinto & Ors. Vs. Eugene Cajetan Pinto & Anr., 2009(2) ALL MR 718 relied upon by Dr. Saraf. 36. Hence the preliminary issue of limitation is answered in the affirmative. The suit as filed is barred by the Law of Limitation and is accordingly dismissed. 37. The ad interim order shall continue for 4 weeks. ( ROSHAN DALVI, J. )