2002 JTR(SC) 1105
2003 2 AIC 458 ; 2003 AIR(SC) 160 ; 2002 AIR(SCW) 4587 ; 2003 1 AllMR(SC) 398 ; 2003 1 APLJ 31 ; 2003 3 AWC 2192 ; 2003 3 BomCR(SC) 84 ; 2003 1 CHN(SC) 174 ; 2003 1 CTC 254 ; 2003 1 ICC 83 ; 2003 1 JCR(SC) 170 ; 2002 9 JT 314 ; 2002 8 Scale 356 ; 2003 1 SCC 212 ; 2003 1 UJ 190 ; 2003 1 WBLR 159 ; 2003 1 WLC 145 ; 2002 8 Supreme 23
2002(8) Supreme 23
SUPREME COURT OF INDIA
(From Mumbai High Court)
V.N. Khare & Ashok Bhan, JJ.
Gulabrao Balwantrao Shinde & Ors. -Appellants
versus
Chhabubai Balwantrao Shinde & Ors. -Respondents
Civil Appeal No. 7212 of 2002
(Arising out of SLP (C) No. 14839 of 2001)
Decided on 12-11-2002
Counsel for the Parties :
For the Appellants : Sunil Kumar Verma, Ravi Adsure and Gopal Balwant Sathe, Advocates.
For the Respondents : Sanjay V. Kharde and Naresh Kumar, Advocates.
IMPORTANT POINT
High Court was wrong in its finding on question No. 1 but was right on question No. 2 (substantial questions of law framed in second appeal u/s 100 CPC, 1908) and thus appeal is partly allowed accordingly.
(A) The succession matters governed by the Hindu Succession Act are relevant where a female died intestate, and her statutory heirs inherit the ancestral property. Section 14 of the Act operates as a converting provision, vesting absolute ownership upon a female heir in possession who acquired title before the commencement of the Act, thereby enlarging her limited estate into full ownership without extinguishing ancestral character. Where the deceased male ancestor owned ancestral property and died before the Act, the female heirs by virtue of succession rules become entitled to such property, and upon the death of the widow who was in possession, the title vests absolutely in the heir who was in possession, subject to the rights of other heirs.
(B) Key legal principles include (i) distinction between pre-Act and post-Act succession, (ii) scope of Section 14 read with Section 6, (iii) requirement of pleadings and evidence to prove a gift in lieu of maintenance, and (iv) appellate jurisdiction to grant broader relief only when sought by the plaintiff.
Facts of the case:
Balwantrao Shinde died in 1954, owning two ancestral properties. He was survived by his wife Chhabubai, an earlier wife Anjanabai (deceased) and their children. After Anjanabais death, Balwantrao married Chhabubai. The appellants are children of Anjanabai. The respondents are Chhabubai and her children. The trial court decreed 11/24th share to appellants and 13/24th to respondents. The appellate court set this aside, declaring appellants as absolute owners. The High Court, by way of second appeal, held that upon Balwantraos death, Chhabubai took possession in lieu of maintenance and upon the commencement of the Hindu Succession Act her right enlarged to absolute ownership, and further held that the appellate court lacked jurisdiction to decree entire property as the suit was for partition only.
Findings of Court:
The High Court erred in inferring a gift in lieu of maintenance without any pleadings or evidence. The properties were ancestral and a right by birth of the appellant existed. The decree of the appellate court declaring appellants as absolute owners was unsustainable. However, the finding that the appellate court lacked jurisdiction to grant relief broader than sought by the plaintiff is correct, since the suit was for partition only.
Issues:
(i) Whether the finding that Chhabubai became absolute owner of the properties by virtue of Section 14 of the Hindu Succession Act is sustainable in the absence of evidence of a gift in lieu of maintenance. (ii) Whether the appellate court had jurisdiction to pass a decree declaring the appellants absolute owners of the entire property when the suit was only for partition.
Ratio Decidendi:
In the absence of pleadings or evidence showing that the property was given to the widow in lieu of maintenance, the court cannot infer such a gift to enlarge her ownership into absolute title. Ancestral property gives a birthright to heirs; therefore, the High Courts finding on Section 14 is reversed. The appellate courts lack of jurisdiction to decree more than what was sought is affirmed.
Result:
The appeal is partly allowed. The High Courts finding on absolute ownership under Section 14 is set aside and the trial decree is restored, decreeing the appellants to their 11/24th share, with costs borne by the respective parties.
(A) The succession matters governed by the Hindu Succession Act are relevant where a female died intestate, and her statutory heirs inherit the ancestral property. Section 14 of the Act operates as a converting provision, vesting absolute ownership upon a female heir in possession who acquired title before the commencement of the Act, thereby enlarging her limited estate into full ownership without extinguishing ancestral character. Where the deceased male ancestor owned ancestral property and died before the Act, the female heirs by virtue of succession rules become entitled to such property, and upon the death of the widow who was in possession, the title vests absolutely in the heir who was in possession, subject to the rights of other heirs.
(B) Key legal principles include (i) distinction between pre-Act and post-Act succession, (ii) scope of Section 14 read with Section 6, (iii) requirement of pleadings and evidence to prove a gift in lieu of maintenance, and (iv) appellate jurisdiction to grant broader relief only when sought by the plaintiff.
Facts of the case:
Balwantrao Shinde died in 1954, owning two ancestral properties. He was survived by his wife Chhabubai, an earlier wife Anjanabai (deceased) and their children. After Anjanabais death, Balwantrao married Chhabubai. The appellants are children of Anjanabai. The respondents are Chhabubai and her children. The trial court decreed 11/24th share to appellants and 13/24th to respondents. The appellate court set this aside, declaring appellants as absolute owners. The High Court, by way of second appeal, held that upon Balwantraos death, Chhabubai took possession in lieu of maintenance and upon the commencement of the Hindu Succession Act her right enlarged to absolute ownership, and further held that the appellate court lacked jurisdiction to decree entire property as the suit was for partition only.
Findings of Court:
The High Court erred in inferring a gift in lieu of maintenance without any pleadings or evidence. The properties were ancestral and a right by birth of the appellant existed. The decree of the appellate court declaring appellants as absolute owners was unsustainable. However, the finding that the appellate court lacked jurisdiction to grant relief broader than sought by the plaintiff is correct, since the suit was for partition only.
Issues:
(i) Whether the finding that Chhabubai became absolute owner of the properties by virtue of Section 14 of the Hindu Succession Act is sustainable in the absence of evidence of a gift in lieu of maintenance. (ii) Whether the appellate court had jurisdiction to pass a decree declaring the appellants absolute owners of the entire property when the suit was only for partition.
Ratio Decidendi:
In the absence of pleadings or evidence showing that the property was given to the widow in lieu of maintenance, the court cannot infer such a gift to enlarge her ownership into absolute title. Ancestral property gives a birthright to heirs; therefore, the High Courts finding on Section 14 is reversed. The appellate courts lack of jurisdiction to decree more than what was sought is affirmed.
Result:
The appeal is partly allowed. The High Courts finding on absolute ownership under Section 14 is set aside and the trial decree is restored, decreeing the appellants to their 11/24th share, with costs borne by the respective parties.
JUDGMENT
Bhan, J.-Leave granted.
2. Plaintiffs, hereinafter referred to as the appellants, have filed this appeal challenging the final judgment and order dated 2nd February, 2001 passed by Bombay High Court Bench at Aurangabad whereby the High Court while allowing the appeal has set aside the judgment and decree passed by the courts below and held that defendant-respondent No. 1 as the absolute owner of entire suit property.
3. One Balwantrao Shinde (who died on 27th June, 1954) owned two suit properties, namely, Gat No. 441 (Survey No. 204 admeasuring 2 Hectors 27 Ares at Tarsod, Taluku and District Jalgaon, Maharashtra and Gram Panchayat House No. 2 and 26 at Tarsod, Taluka and District Jalgaon, Maharashtra, Balwantrao Shinde married Anjanabai who died in the year 1940. After her death he married Chhabubai. Plaintiffs-appellants are the children from Anjanabai whereas the respondents are Chhabubai and her children. Appellants filed the suit for recovery of half share of the property left by Balwantrao Shinde whereas respondents claimed ownership of the entire property.
4. Trial Court on the pleadings of the parties decreed the suit filed by the plaintiffs-appellants to the extent of 11/24th share of the suit property leaving the remaining 13/24th share to the respondents. Respondents being aggrieved filed an appeal. The appellate Court while dismissing the appeal filed by the respondents held that the plaintiffs-appellants were owners to the extent of entire suit property left by Balwantrao Shinde. Respondents thereafter filed the second appeal in the High Court. The High Court formulated the following two questions as substantial questions of law arising from the order of the courts below :
"(a) Balwantrao the husband of Chhabubai (Appellant herein Orig. deft. No. 1) had died in the year 1954 before the Hindu Succession Act had come into force. The Appellant No. 1 was in possession of the suit property even before the Hindu Succession Act come into the force but after the Hindu Succession Act the original defendant No. 1 became the absolute owner of the suit property which in her actual possession, as per Section 14 of the Hindu Succession Act. Even if it is taken for granted that after the death of Balwantrao in 1954, original defendant No. 1 come in possession of the suit property as an alienated owner, her ownership rights had become absolute after the Hindu Succession Act had come into force. Hence the respondents are not entitled to claim any share in the suit property?
(b) Did the Lower Appellate Court have jurisdiction to give relief other than relief sought by the plaintiff because the plaintiff had filed a suit for partition i.e. for only half of portion, of the suit property, therefore, could the District Court have passed an Order that plaintiff became the absolute owner of the entire suit property?"
5. On question No. 1 it was held that Chhabubai possessed the property left by Balwantrao Shinde in lieu of maintenance and after coming into force of the Hindu Succession Act her right was enlarged to full ownership. Under Question No. 2 it was held that the appellate Court could not grant decree for the entire property in favour of the appellants as the appellants themselves had claimed half portion of the property by way of partition. The judgments of the courts below were accordingly set aside and the suit filed by the appellants was ordered to be dismissed. The defendants were held to be the owners in possession of the entire property.
6. Counsel for the parties have been heard.
7. Counsel for the appellants vehemently argued that in the absence of any pleadings and evidence to the effect that the Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, the High Court has erred in recording a finding that the property in possession of Chhabubai was in lieu of maintenance which could be enlarged into full ownership rights on her. Counsel for the respondents virtually conceded that Chhabubai did not either raise the plea nor lead any evidence to prove that the property were given to her by way of maintenance by Balwantrao Shinde. It is also not disputed that properties in the hands of Balwantrao Shinde were ancestral in nature. We agree with the plea raised by the counsel for the appellants that in the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way of maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could no be recorded. The High Court was clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Another factor which persuades us to take this view is that the properties were ancestral hands of Balwantrao Shinde in which plaintiff No. 1 had a right by birth. The entire property therefore could not have been given a Chhabubai by way of maintenance.
8. For the reasons stated above, the findings recorded by the High Court on question No. 1 are reversed.
9. We agree with the view taken by the High Court that since the appellants had claimed only half share of the property by way of partition they could not be declared owners to the entire extent of the property. Finding of the High Court on question No. 2 is therefore upheld.
10. For the reasons stated above, the judgment of the High Court is modified and the appeal is partly allowed. The judgment of the High Court is set aside to the extent indicated above and the decree passed by the trial Court is restored. The suit shall stand decreed in terms of the decree passed by the trial Court. Parties shall bear their own costs.
(N.K.R.) Appeal partly allowed accordingly.
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