High Court

Legal Reasoning

1948-sa-104-1996IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 104 OF 19961.Himatrao Hiraman Patil,2.Jagatrao Hiraman Patil,No.1 and 2 residing at Mhasawad,Tal. And District – Jalgaon.3.Shantabai w/o Onkar Patil,R/o Bamhane, Tal. Shindkhede,Dist. Dhule.4.Kamalabai w/o Tukaram Patil,R/o Hingone, Tal – Chopada,Dist. Jaogaon.5.Vimalbai w/o Madhukar Pawar,R/o Amarathe, Tal. Sindhkhede,Dist. Dhule….(Original Plaintiffs)VERSUSYashwant Bhoju Patil,Agriculturist, Residing at Mhasawad,Tal and Dist. Jalgaon….(Original Defendant)...Mr. B. A. Ahemad and Mr. A. B. Gatne, Advocate for AppellantsMr. R. P. Phatake, Advocate for Respondent…..CORAM:ROHIT W. JOSHI, J. Dated:28TH FEBRUARY, 2025ORAL JUDGMENT :-.This is an appeal by the original plaintiffs who had fileda suit for perpetual injunction against the 2948-sa-104-1996respondent/defendant, inter-alia praying that he be restrainedfrom disturbing their possession over suit property whichcomprises of agricultural land bearing Gut No.259 situated atvillage Mhasawad, Taluka and District Jalgaon. The brieffacts of the case are as under.2.The original plaintiffs are real brothers and sisters, thedefendant is biological brother of the plaintiffs. However, thedefendant was given in adoption on 02.06.1966 to hispaternal uncle namely Bhoju Patil. The original name ofdefendant was Pandharinath son of Hiraman Patil and afterhis adoption his name was changed to Yashwant Bhoju Patil.There was a partition in the family of Hiraman Patil on07.03.1967. In this partition, the suit property wherein GutNo.259 was allotted to the share of Mandabai Hiraman Patil,who is the mother of the plaintiffs and also biological motherof the defendant for maintenance. The allotment of land infavour of Mandabai is evidenced by documents at Exhibits 38,39 and 40. 3.The entire land bearing Gut No.259 is allotted toMandabai under the partition. However, three documents at 3948-sa-104-1996Exhibits 38, 39 and 40, provide that after the demise ofMandabai 1/3 portion allotted to Mandabai would go to theshare of her sons; Himatrao, Jagatrao and also to Yashwant,who is the biological son given by adoption on 02.06.1966.Mandabai has expired on 18.08.1882, the question that fallsfor consideration now is after the death of Mandabai on18.08.1982, whether the 1/3 portion in gut No.259 will beinherited by the defendant as mentioned in Exhibits 38, 39and 40, although, he was already given in adoption on02.06.1966.4.The plaintiffs filed the suit as aforesaid seekingsimpliciter relief of injunction that the defendant should berestricted from disturbing their possession and interferingcultivation of land bearing Gut No.259. The defendant hasopposed the suit relying upon the documents at Exhibits 38,39 and 40, which states that after death of his biologicalmother, Mandabai, the said property will come to his share.The defendant has also stated in the written statement thatMandabai was residing with him during her lifetime and hewas already in cultivating possession in the suit propertyduring the lifetime of Mandabai. 4948-sa-104-19965.Apart from this, the defendant has raised a legalobjection to tenability of the suit stating that the suit hasframed and filed was not maintainable in as much as theplaintiffs had not sought any relief of declaration of title. Thedefendant states that having regard to the facts of the case, asuit simpliciter for injunction was not maintainable.6.The learned Trial Court has decreed the suit in favour ofthe plaintiffs vide judgment and decree dated 10.03.1989. Thelearned Trial Court has considered the revenue record i.e.crop statement, Exhibit 30, which records entry with respectto cultivation of the suit property from 1983-1984 to 1987-1988 and 7/12 extract which demonstrates possession of theplaintiffs to grant the decree of perpetual injunction in favourof the plaintiffs. The defendant has relied upon receiptsregarding payment of land revenue at Exhibit 47 to 80, whichhave been discarded by the learned Trial Court on the groundthat the Gut number of land was not mentioned in the saidreceipts and admittedly, the defendant had other agriculturallands also. The learned Trial Court has observed that thereceipts may be pertaining to the other agricultural land 5948-sa-104-1996owned by the defendant and therefore those receipts are notsufficient to establish his possession over the suit property.The defendant had examined witnesses, who had deposedabout his possession over the suit property. However, theirdeposition is discarded since they had stated in the crossexamination that they could not tell name of the person whowas taking the crops from the suit property.7.Aggrieved by the judgment and decree passed againsthim by the learned Trial Court, the defendant preferred FirstAppeal being Regular Civil Appeal No.118 of 1989. Appealpreferred by the defendant came to be allowed vide judgmentand decree dated 17.07.1995. The learned Appellate Courthas recorded that the mother Mandabai alone was not placedin possession of the suit property. The property was allottedto the share of Mandabai and defendant for maintenance andboth were placed in possession at the time of partition in theyear 1967. The learned Appellate Judge has also recordedthat from 1967 till 1983, the plaintiffs could not prove theirpossession over the suit property. Lastly, it is recorded thatdespite his adoption, portion of suit property was given in thepartition to the defendant Bhoju and he was entitled to retain 6948-sa-104-1996the same.8.The learned First Appellate Court has also observed interms that suit simpliciter for injunction was not maintainable,although, it is not so held in categorical terms.9.The present Second Appeal is filed by the originalplaintiffs in this backdrop of facts, the appeal was admittedvide order dated 20.08.1997 on the following substantialquestion of law;4.The Lower Appellate Court committed an error inlaw in giving a finding on issue no.1 in the negativealthough Section 14(1) of the Hindu Succession Act.Provided clearly that the Appellants being the sons anddaughter of their mother Mandabai, the respondenthaving been adopted by his adoptive father in 1966losing his right, interest in and title to the agriculturalland block no.259 situated in Mhasawad, Tal. AndDistrict. Jalgaon.10.The undisputed facts of the case are that there was apartition in the family of plaintiffs i.e. biological family of thedefendant on 07.03.1967. In this partition the suit propertywas allotted to the share of mother Mandabai formaintenance. It is also undisputed that the defendant wasgiven in adoption to his paternal uncle on 02.06.1966. Thefact of adoption and the fact of partition are not in dispute. 7948-sa-104-1996The dates are also not in dispute.11.The suit property was allotted to the share of Mandabaiin its entirety. The three documents at Exhibits 38, 39 and 40clearly recite that the suit property is allotted to Mandabaitowards her maintenance and that after her demise 1/3rdshare each shall be given to the share of her sons named inthe said documents. It is undisputed that names of plaintiffNo.1, plaintiff No.2 and the defendant are mentioned in thesaid documents at Exhibit 38, 39 and 40, upon whom theproperty was to devolve after demise of Mandabai. It is notdisputed that under the arrangement of partition as evidencedby these three documents, the suit property was allotted toMandabai for her maintenance during her lifetime.12.Before coming to the controversy, as regards, whetherthe defendant, who was given in adoption prior to the date ofpartition can claim right over the suit property by virtue of thesaid document, it is necessary to determine what will be thenature of right of deceased Mandabai under the said threedocuments.13.In this regard, we need to refer to Section 14 of the 8948-sa-104-1996Hindu Succession Act, 1956 which states that a propertypossessed by a female Hindu, whether acquired before or aftercommencement of the Act shall be held by her as a full ownerand not as a limited owner. Explanation to Section 14(1)states that even a property in possession of a Hindu female inlieu of her maintenance will fall within the definition of theterm, ‘property’, for the purpose of Section 14(1). It is settledby a catena of judgments that in families governed by HinduLaw, a wife has right over the properties of her husband, bethey his ancestral properties or personal properties. By way ofstatutory mandate of Section 14(1) of the Hindu SuccessionAct, such limited right of maintenance ripens into a full estateof absolute ownership. The limited right which is conferredunder three documents at Exhibits 38, 39 and 40 is therefore afull ownership right in view of mandate of Section 14(1).14.As stated above, the position is no longer res-integra.However, for ready reference, I may refer to judgment of theHon’ble Supreme Court that in the matter of VaddeboyinaTulasamma Vs. Vaddeboyina Sesha Reddi, AIR 1977 SC 1944.In that view of the matter it has to be held that although,limited right of maintenance is granted under the documents 9948-sa-104-1996at Exhibit 38, 39 and 40, the property allotted under the saiddocument was absolute property of the mother Mandabai,who has expired on 18.08.1982.15.Rules of succession of a female Hindu are governed bySections 15 and 16 of the Hindu Succession Act. It is not indispute that husband of Mandabai namely Hiraman had pre-deceased her. Therefore, by virtue of Section 15(1) (a) readwith section 16, the sons and daughters of Mandabai willinherit her property. Now since, the defendant was alreadygiven in adoption on 02.06.1966, he was not Mandabai’s sonas on the date of her demise on 18.08.1982. The successionopens immediately on demise of Mandabai on 18.08.1982, onwhich date, the defendant cannot be treated to be her son andas such he will not be entitled to inherit the property ofMandabai.16.This deals with the above discussion with right ofownership and title of plaintiffs over the suit property.17.However, the suit is for injunction and therefore, it isnecessary to determine as to who was in possession of the suitproperty after death of Mandabai. It cannot be disputed thatMandabai alone was in possession of the property and was 10948-sa-104-1996enjoying the same during her lifetime. The learned AppellateCourt has held that the defendant was in possession of the suitproperty alongwith Mandabai. The learned First AppellateCourt recorded that the property was not given to Mandabaialone, but it was given to Mandabai alongwith defendant. Thisfinding is absolutely perverse and contrary to the expressrecitals of the documents at Exhibits 38, 39 and 40.18.The contention of the defendant is that although, hewas given in adoption, Mandabai was residing with himduring her lifetime and therefore he was cultivating theproperty. He claims to be in possession of the suit propertyaccordingly. This contention is falsified by the documents i.e.crop statements and 7/12 extract, which have been properlyconsidered by the learned Trial Court in its judgment to holdthat the plaintiffs had properly established their possessionover the suit property. I am afraid even if during lifetime ofMandabai, the defendant was cultivating the suit property, itcannot be said that he was in possession of the suit property.It is obvious that the property belonged to Mandabai and evenif the version of the defendant is accepted on its face value, itwould mean that he was merely cultivating it for and on 11948-sa-104-1996behalf of Mandabai. The defendant cannot claim independentpossession and oppose prayer for injunction on the basis ofsuch alleged possession. Possession of Mandabai during herlifetime cannot be disputed. The finding of the learned FirstAppellate Court regarding joint possession is absolutelyperverse and contrary to the undisputed documents on recordincluding the document at Exhibit 40, which is the foundationof the right of defendant.19.With this, I come to the legal objection raised by thedefendant that suit simpliciter for injunction was notmaintainable and the suit should not have been dismissed onthis ground alone. To buttress this contention, the learnedCounsel for the defendant has placed reliance on threejudgments of the Hon’ble Supreme Court viz;i.Kayalulla Parambath Moidu Vs. Namboodiyil VinodanAIRONLINE 2021 SC 699ii.T. V. Ramkrishna Reddy Vs. M. Mallappa AIR 2021 SC4293.iii.Un-reported judgment dated 20.02.2024 in Civil AppealNo.722 of 2012.20.In the case of Kayalulla, relied upon by the learned 12948-sa-104-1996counsel for the defendant, the case of the plaintiff was basedon a registered assignment deed executed in the year 1977.On the other hand, the defendant staked claim over the suitproperty contending that the suit property was not included inthe assignment deed relied upon by the plaintiff. Thedefendant claimed that the suit property belonged to hisfather by virtue of a document of the year 1974. It was thecase of the defendant that after the death of the father, thedefendant and his mother had applied for a purchasecertificate under the provisions of Kerla Land Reforms Act andthe land was allotted to them by the competent authorityunder the said Act. It is thus clear that in the said judgmentbefore the Hon’ble Supreme Court, parties were staking claimon the basis of different documents. Claim of the defendantwas based on allotment order and document issued bycompetent statutory authority. Apart from this, whether thesuit property was included in the alleged title deed of theplaintiff was also a fact and dispute. In the case of T. V.Ramakrishna Reddy, the plaintiff claimed right over suitproperty through registered sale deed dated 13.04.1992whereas the defendant also claimed to have purchased the 13948-sa-104-1996same property under a registered sale deed dated 05.04.1984.Thus, the claim of the defendant was based on a registereddocument executed prior in point of time. In the case ofGanga Bai Menariya, the plaintiff claimed right over theproperty on the basis of alleged lease granted to her by theGram-Panchayat. However, right of Gram-Panchayat over theproperty and it’s authority to grant lease itself was doubtful.21.In all these cases, the Hon’ble Supreme Court has heldthat the question of ownership was a vexed and contestedquestion which could not have been decided in a suitsimpliciter for injunction. In the peculiar facts of the saidcases, it was held that suit simpliciter for injunction was notmaintainable and it was necessary for the plaintiffs to seekdeclaration of title.22.However, it is pertinent to state that in the matter ofKayalulla Parambath Moidu in paragraph 13, the Hon’bleSupreme Court has held that when necessary pleadingsregarding title are already existing and appropriate issues areframed on which parties lead the evidence, the Court candecide the issue of title in a suit simpliciter for injunction, ifthe answer involves simple and straight forward questions. 14948-sa-104-199623.In my considered opinion in the present case, theparties are not staking claims over the property on basis of anydisputed documents like in the cases before the Hon’bleSupreme Court. The parties are staking claim throughdeceased Mandabai, who is mother of the plaintiffs and alsobiological mother of the defendant, who was given inadoption prior to her demise. The documents at Exhibits 38,39 and 40 are not in dispute. The fact of adoption ofdefendant is also not in dispute. The question of title isrequired to be answered in the light of interpretation ofundisputed documents on record. The documents at Exhibits38, 39 and 40 which are admitted documents, grant a right ofmaintenance to Mandabai during her lifetime and recite thatafter her demise, the property mentioned in the saiddocuments will be allotted to the plaintiff no.1, 2 and to thedefendant No.3. The question to be decided is as to whetheron the basis of said documents, the defendant No.3 who wasalready given on adoption will be entitled to inherit the saidproperty of Mandabai or the said property will go to the legalheirs of Mandabai as per Sections 15 and 16 of the HinduSuccession Act. This is a pure and simple legal question which 15948-sa-104-1996can be decided in a suit simpliciter for injunction. Thequestion has been decided as above holding that the adoptiondisrupts cord of the defendant with his biological family andtherefore on the date of death of his biological mother, thedefendant cannot inherit her property as a son.24.As regards physical possession over the suit propertyalso, the learned Trial Court has recorded proper findings oninterpretation of evidence on record, the findings of thelearned First Appellate Court on the question of possession areabsolutely perverse and contrary to the document at Exhibit40, which is the foundation of the claim of defendant.25.In that view of the matter, I am not inclined to acceptthe legal submission made by the learned Advocate for thedefendant that suit simpliciter for injunction was notmaintainable in the present case.26.The question of law is accordingly answered holdingthat in view of Section 14(1) of the Hindu Succession Act,Mandabai had become absolute owner of the suit property byvirtue of documents at Exhibits 38, 39 and 40 and further thatthe defendant had lost right to inherit the property of his 16948-sa-104-1996biological mother by virtue his adoption on 02.06.1966. It isheld that after the demise of Mandabai, the propertymentioned in Exhibits 38 and 39 will go to the plaintiff Nos.1and 2 as per the said documents and the property mentionedin Exhibit 40 will devolve on all the plaintiffs in equal share.27.The Second Appeal is accordingly allowed by quashingand setting aside the judgment and decree dated 17.07.1995passed by learned Joint District Judge, Jalgaon in RegularCivil Appeal No.118 of 1989 and confirming the judgment anddecree dated 10.03.1989 passed by the learned joint CivilJudge Junior Division, Jalgaon in Regular Civil Suit No.30 of1988.28.Parties are directed to bear their own cost.( ROHIT W. JOSHI, J )Rushikesh/2025