18 Both v. Parwatibai

7 (a) Smt. Premabai Sohanlal Baj, Age : Major, Occ. Household. Deleted. 3 S.A. 371/1989 7 (b) Omprakash Sohanlal Baj, Age : Major, Occu. Business. 7 (c) Sudhir Sohanlal Baj, Age : Major, Occu. Business & Agri. R/o Post Gujarwada, Tq. Babai Dist. Hoshangabad M.PM.PM.PM.P. 7 (d) Prashant Sohanlal Baj, Age : Major, Occu. Business, (R. 7a, 7b & 7D are r/o Near Fhadake Hospital, Dharangaon Road, Post Kopargaon Dist. A’nagar. 7 (e) Sou. Vijaya Jaychand Gangwal, Age : Major, Occu. Household, R/o Plot No. 207, Block-B, II nd floor, Balaji Indraprastha Golkond Road apartment, (Murshidabad) Sikanderabad Hyderabad A.P. 7 (f) Sou. Manjusha Ramanlal Shetty (Jain), Age : Major, Occ. Household work R/o C/o Ramanlal Kasturichand Shetty, 3-2/2218, Vasant Kunj, New Delhi-110 070. 7 (g) Sou. Anjusha Vinaykumar Gangwal, Age : Major, Occ. Household work, C/o Vijaykumar Kantilal Gangawal, R/o Sonpuri, Malkajgiri Hyderabad (A.P.) 7 (h) Smt. Sugandhabai Dipchand Baj, Age : Major Occu. R/o Dharangaon Road, near Fadhak Hospital, Post & Tq. Kopargaon Dist. Ahmednagar. 8 9 Shankardas Murlidhar Patel, Gokul Shantilal Bora, 10 11 12 4 S.A. 371/1989 Deoram Dada Jawale, Nivrutti Maruti Girme, State of Maharashtra through the Collector of Ahmednagar. Nos. 1, 3 and 4 r/o Tilaknagar, Kopargaon, District Ahmednagar. No.2 r/o Savali Vihir (Laxmiwadi) Post Office, Tal. Kopargaon, Dist. Ahmednagar. No.5 and 6 r/o Pohegaon (Rajwada) Tal. Kopargaon, Dist. Ahmednagar. Nos. 7, 9 and 11 r/o Kopargaon, Dist. Ahmednagar. No.8 Kopargaon, Dist. Ahmednagar. No.10 r/o Sonewadi, Kopargaon, Dist. Ahmednagar. r/o Ekrukhe, Tal. Tal. Respondents ...........Original defendants No.1 to 12. Mr. A.B. Gatne, Advocate for appellant No.2(B). Mr. S.D. Kulkarni, Advocate for respondent Nos. 9 to 11. Mr. M.N. Navandar, Advocate for respondents No. 7(a) to (d) and (h). Mr. Sanket S. Kulkani, Advocate for respondent No.3(h) and 3(j). CORAM : A.V. NIRGUDE, J. Reserved for judgment on : 16th June, 2011. Pronounced on : 6th July, 2011. ORAL JUDGMENT:

1. Due to passage of time, most of the original parties have expired and they are replaced with their legal representatives in this appeal. So, in order to make narration easy I would refer the parties by their original 5 S.A. 371/1989 designation in the trial Court.

2. The cause of action for their suit was as under. The appellants who are original plaintiffs are sons of one Dharmaji Yesu Kopre. They filed this suit for partition and separate possession. One Dagdu was elder brother of the plaintiffs. When the suit was filed, Dharmaji as well as Dagadu were dead. Dagdu’s L.Rs. Viz. his widow and children are defendants No.1 to 5. Defendants No. 6 to 11 are purchasers of joint family property. Defendant No.12, State of Maharashtra, is made party because prior to filing of the suit, certain piece of land, out of joint family property was acquired and State of Maharashtra had paid certain compensation exclusively to Dagdu’s legal representatives.

3. It is case of the plaintiffs that Dharmaji and his sons namely the plaintiffs and Dagadu formed a joint Hindu family. It held certain immoveable and moveable property. The suit lands situated at Kopargaon were properties of such joint family. Dharmaji had died in 1946. As Dagadu was the eldest son of Dharmaji, his name was mutated in record of rights as Karta of the family. So, the lands stood in his name. Dagadu died on 01/07/1965. After his death, defendant No.1’s name was recorded in R.O.R. as karta of the family and she looked after the property. The suit lands were Inam lands of the joint family. The lands were inferior village Inam known as “Mahar Hadola” lands. The Inam was abolished under the provisions of inferior village Inam Abolition Act and after abolition of the Inam, the lands were 6 S.A. 371/1989 mutated in the name of Dagdu as Karta of the family. It is the case of the appellants that Dagdu paid occupancy price of the suit land for and on behalf of the heirs as their representative and therefore, the lands were re-granted to him on “new tenure” on 22/01/1961. After Dagdu’s death, his widow, the defendant No.1 paid remaining amount of occupancy price again for and on behalf of the joint family and on 18/02/1967 the lands were re-granted on “old tenure” in the name of defendant No.1. It is the case of the plaintiffs that she too held the land as representative of the joint family. One of the suit lands namely survey No.43 of Kopargaon was also a Inam land and was acquired by the Government under the provisions of land acquisition Act. The area of acquired land was 1 acre 28 gunthas. Tahsildar passed a land acquisition award on 08/01/1975 and awarded Rs.237.95 as compensation with a direction that the amount should be divided between the members of the family as per the shares. It was the case of the plaintiffs that due to their service, they were residing away from Kopargaon but were visiting their native place from time to time and were enjoying income of the suit lands. They further contended that the suit lands being Inam lands, would not be partitioned unless they were re-granted on “Old tenure”. They say that they have 3/4th share in the suit lands. They further alleged that the defendants took advantage of the fact that the lands stood in the name of the defendant No.1 in the record of rights and although they 7 S.A. 371/1989 had knowledge about the plaintiffs’ right in it, they entered into various transactions whereby they sold most of the lands to the purchasers. They asserted further that permission of the Collector was not obtained prior to such transactions. They also alleged that the transactions were not bona fide etc. and so they are not binding on them.

4. The defendant took up following defence. Admitting the relationship between Dagdu and the plaintiffs, they stated that the plaintiffs left Kopargaon long back and in the year 1936. Soon therafter they got converted to the Christianity and so they no longer remained members of the joint family of Karmaji. They asserted that after Dharmaji’s death, Dagdu held the land in his personal capacity and so the plaintiffs cannot claim partition of the same. They further contended that during the life time of Dharmaji, Dagdu, his wife Parvatibai and Dharmaji himself formed joint Hindu family. They further contended that since the lands were service vatan lands, it was Dagdu who was doing service and therefore, they are entitled to possession. They contended that the plaintiffs never served as per terms of Vatan and so they were not entitled to possession and income of the land. They further contended that the Inam lands were re-granted in the name of Dagdu and thereafter, in the name of defendant No.1, because they were Vatandars etc.. In the alternative, they also took a defence that the plaintiffs had lost title to the suit land because they did not bring the suit within 12 years from the cause of 8 S.A. 371/1989 action.

5. Defendants No. 7 to 11 who are purchasers of the suit lands from Parvatibai and others, contended that they had no knowledge of the share of the plaintiffs in the lands. They believed that the defendant No.1 was the owner of the property on the basis of the revenue record and after making thorough inquiry before purchasing the lands. They asserted that they purchased the property on paying market value etc.

6. The learned judge of the trial Court framed various issues and delivered the judgment in favour of the plaintiffs. The following issues are relevant for the present discussion. Issue No.3: have joint 3/4th share in the suit properties ? Do the plaintiffs prove that they Issue No.15: Are the defendants 7 to 11 entitled to the direction in case of partition to allot the properties purchased by them to the shares of defendant Nos. 1 to 6 ?

7. The learned judge of the trial Court held that the plaintiffs had proved that they had 3/4th share in the suit properties and that the defendants No. 7 to 11 could not prove that they were protected under section 41 as on facts they could not prove the bona fides. Therefore, the learned judge of the trial Court specifically held that they were not entitled to a direction to allot the properties which they purchased from the defendants No. 1 to 6 to the shares of the defendants No. 1 to 6. In other words, it was held by the 9 S.A. 371/1989 learned judge of the trial Court that defendants No. 7 to 11 were not entitled to equity when lands would be put to actual partition.

8. The reasons recorded by the learned judge of the trial Court for coming to the conclusion that the plaintiffs were entitled to 3/4th share in the suit property, can in short be stated as under.

9. It was common ground that the suit lands were Inam lands. Such lands were given to persons from Mahar community as per the provisions of Vatan Act. This was admittedly a hereditary Inam. The suit lands thus were held by Dharmaji as Vatan lands. Dharmaji was one of the Vatandars. Since the plaintiffs and Dagdu were sons of Dharmaji, they too were Vatandars. The plaintiffs could not have lost their right, title, interest in the Vatan lands due to their conversion to Christianity, in view of the provisions of Castes Disabilities Removal Act, 1850. The provisions of this Act protected their right of inheritance. Despite of the fact that they renounced their religion, the plaintiffs had share in the Vatan land before they renounced their religion. Because of conversion to Christianity, there occurred severance of joint status between the plaintiffs on one hand and Dharmaji and Dagdu on the other. The conversion also extinguished the rights of the plaintiffs to become owner of the property of coparcenery by survivalship. The plaintiffs on the day of their conversion stood entitled only to their share in the coparcenery property as it stood on such day. 10 S.A. 371/1989 In other words, the shares of the plaintiffs in the suit property remain intact. But due to their conversion, they became tenants in common with Dharmaji and Dagdu. Admittedly, no partition by metes and bounds had taken place after the conversion of the plaintiffs. Thus, the plaintiffs had 3/5th share in the suit property on the day when they adopted Christianity. The vatan was abolished under the Inferior Village Vatan Abolition Act, 1958. Although section 4 of the Act provided that all incidents of Vatan extinguished and the land stands resumed by the State, yet this resumption is made subject to the provisions of section, 5, 6 and 9 of the Act. In other words, though the incident of Vatan extinguished, yet the other rights, title and interest in the property arising from the provisions did not get extinguished by the Abolition of the Vatan. So even after abolition of Vatan, the plaintiffs continued to have share in the property as being members of family of the Vatandar under their personal law. Therefore, Dagdu received re-grant of the land as representative of the joint family, which consisted of Dagdu and three others. (Thus due to death of Dharmaji, the plaintiffs became entitled to 3/4th share in the suit land). The reliance on the judgment of this Court in the case of Dhondi Vithoba Koli vs. Mahadeo Dagadu Koli and others reported in A.I.R. 1973 Page 323 is placed, to come to this conclusion. Even the re-grant of the suit lands on old tenure in the name of defendant No.1 was also in representative capacity. 11 S.A. 371/1989 Defendant No.1 was the representative of the joint family including the plaintiffs. In view of this, the plaintiffs were entitled to 3/4th share in the suit property. For denying equity in partition to the defendants No. 7 to 11, the learned judge of the trial Court recorded following reasons. He observed, the total land for which the suit was filed, is itself a very small piece of land and despite of it, almost entire land was sold by the defendants No.1 to 5 to the defendants No. 7 to 11. So, even if it is desired that some equitable relief should be given to the defendants No. 7 to 11, it is not possible. Defendants No. 7 to 8 were not vigilant when they purchased the suit land. They did not act in good faith at all. They did not make proper inquiry and they purposely avoided to take into consideration the entries in the revenue record regarding the share of the plaintiffs and so they do not deserve any equitable relief as prayed. In the peculiar facts and circumstances of the case also, it was not practicable to effect partition as sought in alternative by the defendants No. 7 to 11.

10. The learned District Judge in appeal held that the plaintiffs were not entitled to 3/4th share but were entitled to 3/5th share. For coming to this conclusion, the learned District Judge recorded following reasons. “Conversion a member of a joint family to Mohammedanism or to Christianity or to any other relation, operates as a severance of the joint status as between him and the other members of the family, but not as a severance among the other members interse. It extinguishes the right of survivorship as between 12 S.A. 371/1989 the convert and his coparceners. He ceases to be a copercener from the moment of his conversion, and is entitled to receive his share in the joint family property as it stood at the date of his conversion. A member of a joint Hindu family does not by his conversion forfeit his interest in the joint family property, as per the provisions of the Caste Disabilities Removal Act, 1950. This proposition of law is not challenged before me. Consequently there would be a severance of the family as on 31st May 1936. Even though Dharmaji did not hold a partible land, yet the shares of the parties will have to be calculated as a notional partition, having taken place on 31st May 1936 as on account of the severance of the joint Hindu family. Now, at that time, the joint Hindu family consisted of Dharmaji and his four sons and they were each entitled to 1/5th share. This is the share that the plaintiffs would be entitled to and nothing more; the reason being that a joint Hindu family continued after 1936 also till Dharmaji died in the year 1947 and the share of Dharmaji therefore would go by survivorship to Dagadu and would not revert back to the plaintiff. The trial court, therefore, ought to have allowed 3/5th share to the present plaintiffs and not 3/4th.”

11. The learned advocate appearing for the appellants contended that these observations of the learned District Judge were patently incorrect and I am inclined to agree with him.

12. The learned District Judge did not at all discuss as to why he would not accept the contention/proposition that on conversion of the plaintiffs to Christianity, though they no longer were entitled to the property as coparceners, they still held the property as “tenants in common” with the other sharers. The learned judge of the trial Court has given 13 S.A. 371/1989 reason as to why he held that that the plaintiffs held the property as tenants in common, he specifically mentioned, the said conclusion was based on the judgment of the High Court in the case of Dhondi Vithoba Koli (supra) The learned judge quoted following paragraph of the judgment of Dhondi Vithoba Koli’s case in his judgment. I would also quote the same for ready reference. “It seems to me, therefore, that what section 4, sub-section (1) and (2) seek to abolish and extinguish is the inferior village hereditary office together with the tenant of Vatan property held, acquired or assigned under the Vatan law for providing remuneration for the performance of the duty appertaining to an inferior village hereditary office and all the incidents thereto including the right to hold office or to levy customary fees or perquisites in money or in kind and the liability to render service. It does not affect the ordinary incidence of the property under personal law. In other words, if such property is joint family property or the property held by tenants- in-common, its incidences are not extinguished by the abolition of the Vatan and extinction of its incidents.”

13. Surprisingly the learned District Judge ignored this area of the judgment of the trail court altogether. He did not even refer to the judgment in Dhondi Vithoba’s case. Neither he referred to the judgment of the full Bench of this Court, whether the judgment in the case of Dhondi Vithoba was confirmed. This Court in Dhondi Vithoba’s case has specifically mentioned that despite abolition of Vatan, the ordinarily incidents of Vatan property under personal law, do not get affected. Such property after abolition becomes joint family property of the plaintiffs and the other members 14 S.A. 371/1989 of their joint family. Despite of their conversion, they did not lose the jointness in the family and so they became tenants in common with other members of the family qua the suit property.

14. The learned District Judge then held that the plaintiffs continued to hold 3/5th share even after their father Dharmaji’s death in 1947. He held that Dharmaji’s 1/5th share would go to his Hindu son by survivorship.

15. The learned advocate Shri Gatne appearing for the appellants contended that the logic behind this observation is incorrect. He pointed out that when Dharmaji died, the suit land was still a Vatan land. The same was held by five persons as tenants in common. On death of one such tenants in common, he said his share would not get separated to pass on to his legal heir as per his personal law but it would merge into the shares of remaining tenants in common.

16. In order to appreciate this submission one must understand the meaning of the term “Tenants in common”. It is a form of concurrent ownership of real property in which two or more persons possess the property simultaneously; it can be created by deed, will, or operation of law.

17. Generally, concurrent ownership can take three forms:joint tenancy, tenancy by the entirety and tenancy in common. These forms of concurrent ownership give individuals a choice in the way that co-ownership of property will be carried out. Each type of tenancy is 15 S.A. 371/1989 distinguishable from the others by the rights of the co- owners.

18. Usually, the term tenant is understood to describe a person who rents or leases a piece of property. In the context of concurrent estates, however, a tenant is a co- owner of real property.

19. All tenants in common hold an individual, undivided ownership interest in the property. This means that each party has the right to alienate, or transfer the ownership of, her ownership interest. This can be done by deed, will, or other conveyance. In other words tenancy in common is held by two or more persons, in which each has an "undivided interest" in the property and all have an equal right to use the property, even if the percentage of interests are not equal or the living spaces are different sizes. Unlike "joint tenancy" there is no "right of survivorship".

20. In view of this, the finding of the learned District Judge that after death Dharmaji his share would not revert back to surviving tenants in common is correct. Dharmaji's share would have then gone his hindu son Dagdu as per their personal law of inheritance. should be upheld. The plaintiffs would thus get 3/5th and not 3/4th share in the suit property

21. The learned judge recorded his finding regarding the finding of the learned judge of the trial Court on issue 16 S.A. 371/1989 no. 15. The observations of the learned District Judge are as under. “The learned author Mulla on his Transfer of Property Act on page 197 of 6th Edition has given the conditions necessary for the application of this section as (1) the transfer is the ostensible owner; (2) he is so by the consent, express or implied, of the real owner; (3) the transfer is for consideration; (4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Ostensibly all these conditions are not fulfilled by the defendant Nos. 7 to 11 here and therefore, they are not entitled to the protection of section 41 of the Transfer of Property Act. The learned judge however it appears has deprived them of the equitable right which usually follows in this case. They are atleast entitled to the share of the defendant Nos. 1 to 5. Such a right cannot be denied to them.”

22. It is clear from the judgment of the learned District Judge that he completely ignored the reasons recorded by the learned judge of the trial Court for not awarding the equitable relief to the defendants No. 7 to 11. I have quoted above reasons as to why such relief was not granted to defendants No. 7 to 11 and I find no error in them. Despite of that, learned District Judge without dealing with the reasons given by the learned judge of the trial Court simply observed that such equitable relief is usually given and so it should be given. I am not inclined to agree with this reason and so I am inclined to reverse the finding of the learned District Judge on issue No.15 and to restore the same to that of learned judge of the trail Court.

23. At this stage, it must be mentioned that during 17 S.A. 371/1989 the pendency of second appeal, there occurred compromise between the plaintiffs / appellants on one side and the defendants No. 1 to 5 and defendants No. 8 to 11 on the other. The terms of the compromise are recorded before the Court and the relevant portion of the same reads as under. i) The plaintiffs Appellant in second Appeal No. 483 of 1983 abandon a part of their claim viz. with respect to property (B) i.e. survey No. 214/21A, 214/21B, 214/21C, 214/21D and 214/21E as against defendants Nos. 1 to 5 and defendants 8 to 11 and the plaintiffs restrict their claim for partition and separate possession with respect to property (A) i.e. Survey No. 214/17, 214/18, 214/19 admeasuring 25 acres now in possession of defendant No.7. In view of this, the decree passed by the Trial Court and the decree passed by the Appeal Court in respect of property B. i.e. Survey No. 214/21A, 214/21B, 214/21C, 214/21D and 214/21E is set aside against Defendant No.1 to 5 and Defendant No.8 to 11 and the appellants have no claim for said property. ii) These parties are now agreed that the plaintiffs have 3/4th share in the suit properties as decreed by the trial courts and that defendants 1 to 5 and defendants 8 to 11 have satisfied the plaintiffs claim out of court with respect to property (B). iii) As the plaintiffs have abandoned their claim with respect to property (B), defendants 1 to 5 withdraw their second appeal stamp No. 13911 of 1983, defendant No.8 18 S.A. 371/1989 withdraws his second Appeal No. 385 of 1983, defendant No. 9 withdraws his second appeal No. 425 of 1983, and defendants Nos. 10 and 11 withdraw their second appeal No. 426 of 1983 and the parties to these appeals do not press for their costs. iv) Survey No. 214/21A admeasuring 34 Acres sold by defendant 1 to 5 and the plaintiff 1 to 3 to defendant No. 9 Shri Gokul Shantilal Bora of Kopargaon and sale deed is executed as on 18/03/1985 and the defendant No. 9 is put in possession of property S. No. 214/21A, the plaintiffs have received due compensation for abandoning their claim for partition in respect of the said property.

24. In view of this, the decree passed now would be in respect of land survey No.214/17, 214/18 and 214/19. The appeal is partly allowed. ORDER The judgment of the District Court awarding 3/5th share in the suit land to the extent of survey No. 214/17, 214/18 and 214/19 situated at Kopargaon is retained. But defendant Nos. 7 to 11 are not entitled to the protection of section 41 of the Transfer of Property Act and shall not be entitled to share of the other defendant (Dagdu) at the time of partition of the suit land. The appellants / plaintiffs are also entitled to receive Rs.178.47 as their share in the amount of compensation. The appellants / plaintiffs shall also be entitled to future mesne profit from the date 19 S.A. 371/1989 of filing of the suit till the date of actual possession and same shall be asserted as per provisions of Civil Procedure Code. The plaintiffs / appellants shall also be entitled to proportionate cost of this appeal as against respondent No.7. [A.V. NIRGUDE,J.] ts k/2011/July6/sa371.89/ok