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PETITIONER: BAI NANI & OTHERS

       Vs.

RESPONDENT: MANILAL LALLUBHAI & ORS.

DATE OF JUDGMENT07/02/1977

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR  970            1977 SCR  (2) 920  1977 SCC  (2) 536

ACT:              Hindu Succession Act--Hindu  Women’s Right to  Property         Act  1937-Whether partition by metes and bounds--Whether new         case can be made out in the absence of issue.

HEADNOTE:             The respondent-plaintiffs filed a suit for partition and         allotment of one half share of the suit house and the  move-         able  properties.   One Faqir Chand had 3  sons,  Nathubhai,         Lallubhai  and Nanabhai.  Nanabhai was the defendant in  the         suit  whose legal representatives are  appellants.   Lallub-         hai’s  heirs are  the plaintiffs.  According to  the  plain-         tiffs  the three brothers were members of a Joint  Undivided         Hindu  Family.  According to the respondents the  properties         were never partitioned though the three brothers were  stay-         ing  and messing separately and each branch carried  on  its         business  separately.  The respondents also  challenged  the         validity of the sale deed executed by Bai Kashi the widow of         Nathubhai in favour of the appellants on the ground that the         sale was not for legal necessity.  The appellants  contended         that  the three brothers were separate and each branch  used         to  do  its business separately.  That as far  as  the  suit         house  was concerned it was divided though not by metes  and         bounds  and that the brothers lived in separate portions  of         the house.   The appellants claimed that they were  entitled         to 2/3 share on the house.   The Trial Court found that  the         3 brothers had separated before the deaths  of Nathubhai and         Lallubhai.  It also found that the defendant and his  broth-         ers  had  separated and the suit house was also  divided  as         alleged by the defendant. It came to the conclusion that the         defendant  had  failed  to prove that there  was  any  legal         necessity for Bai Kashi to sell the share in the suit  house         and that after Bai Kashi’s death the respondent was entitled         to one half share in the suit house.  The Trial Court  found         that  Bai  Kashi became entitled to one’ half share  of  her         husband in the suit house under the Hindu Women’s Rights  to         Property  Act,  1937.  As her interest was  only  a  limited         interest  known as Hindu Women’s Estate when Bai Kashi  died         in  January 1956, she had not become the full owner  of  the         share under the Hindu Succession Act, 1956. The court was of         the  view that on the death of Bai Kashi her share would  go         to  the reversioners.  The court held that the parties  were

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       governed   by Mayukh school which over-rules the  Mitakshara         school  and,  therefore, after the death of  Bai  Kashi  the         defendant and plaintiff No. 1 would inherit together to  the         share  of Nathubhai.  The court held that the claim  of  the         plaintiff for one half share should be decreed though  there         was  no specific claim on the plea of separation  and  heir-         ship.  The High Court dismissed the appeal and confirmed the         findings of the Trial Court.             In  an appeal by Special Leave the appellants  contended         that  the respondents’ plea that the 3 brothers  were  joint         and  the share of Bai Kashi  was inherited by the  remaining         two  branches by survivorship having been negatived  by  the         courts below the suit ought to have been dismissed and  that         the  court erred in making out a new case of  succession  to         the property of Bai  Kashi without necessary pleadings.         Allowing the appeal partly,             HELD:  1.  On the question whether the  respondents  are         entitled  to one half share on her death has not been  dealt         with by the High Court.  This Court agreed with the  concur-         rent findings of the Trial Court and the High Court that the         family  was separate and that the sale deed by Bai Kashi  in         favour  of  the  appellants was  not  for  legal  necessity.         However,  the  claim  of the respondent  for  partition  and         allotment of 1/3 share by metes and bounds         921         cannot  be  resisted.  Though the brothers  became  separate         admittedly   there  was  no division by  metes  and  bounds.         There  is also no dispute that the respondents are  entitled         to 1/3 share in the house. [924 A-C]             2.  The High Court did not deal satisfactorily with  the         contention  of the defendant that the Trial Judge  erred  in         saying  that  Bai Kashi had only a widow’s estate  when  she         died in the absence of any issue as to who were heirs of the         deceased  Bai  Kashi.  On the question  whether  respondents         are  entitled to succeed to Bai Kashis 1/2 share, the  Court         remitted  the  matter to the High Court  for  consideration.         [924 C-D]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1988 of 1968.             Appeal  by  Special Leave from the Judgment  and  Decree         dated 21/22-3-1968 of the Gujarat High Court in First Appeal         No. 760/60.         S.T.  Desai,  I. N. Shroff and H.S. Parihar for  the  Appel-         lants.         J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.         The Judgment of the Court was delivered by             KAILASAM,  J.  This appeal is by the  legal  representa-         tives of the defendant in the suit by special leave  against         the judgment and decree   of the High Court of Gujarat.  The         suit  was filed by Manilal Lallubhai and his widow Bai  Mani         against  Nanabhai Fakirchand for partition and allotment  of         one-half share of the suit house and the moveable properties         mentioned  in  the plaint.  One Fakirchand had  three  sons,         Nathubhai, Lallubhai and Nanabhai.  Nanabhai is the  defend-         ant  whose legal representatives are the present  appellants         in  this  Court.  Lallubhai’s son, Manilal,  was  the  first         plaintiff  and his mother and widow of LaIIubhai, Bai  Mani,         was  the  second plaintiff.  The second plaintiff  is  since         dead and his legal representatives are respondents 2(b)  and         2(c) in this appeal.  Nathubhai, Lallubhai and Nanabhai were         originally the members of a joint Hindu family.             The case of the plaintiffs, respondents in this  appeal,

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       is  that  the three brothers Nathubhai, Lallubhai and Nanab-         hai were members of a joint undivided Hindu family and  when         they were joint in the year 1940 Nathubhai died leaving  his         widow  Bai Kashi.  Subsequently in the year  1942  Lallubhai         died.   On  24th  January, 1956  Bai  Kashi,  the  widow  of         Nathubhai,  died  while the family continued to be  a  joint         undivided  Hindu family.  According to the  respondents  the         properties were never partitioned though the three  brothers         were staying and messing separately and each branch  carried         on  its  business  separately.  The  family  immoveable  and         moveable  properties  were never divided.   The  respondents         also questioned the validity of a sale deed executed by  Bai         Kashi on 25th April, 1955 in favour of the appellants of her         share  in the immoveable property as  it was  not for  legal         necessity.              In the written statement the appellants denied that the         three brothers were members of a joint family.  They pleaded         that the brothers were separated and each branch used to  do         its  own  business  keeping their  earnings  separately  and         messing separately.  So far as the suit house was  concerned         it was divided though not by metes and bounds and the         922         brothers  lived  in  separate portions of  the  house.   The         appellants  claimed that they were entitled to 2/3 share  in         the  house as Bai Kashi the widow of Nathubhai had sold  her         share by registered deed 25th April, 1955 to the appellants.             On  these pleadings 9 issues were framed of which  three         are relevant for the purpose of this appeal.  They are:  (1)         Does   the   defendant   prove   that   he   and   his   two         brothers---Nathubhai  and  Lallubhai had separated  and  the         suit-house  was  also  divided (through  not  by  metes  and         bounds) at the time of the. death of Nathubhai ? (2) Does he         further  prove that the sale-deed executed by Bai  Kashi  in         respect  of  the one-third share of the suit-house  was  for         legal necessity  anti  to satisfy her debts ? and (3) Do the         plaintiffs  prove that after Bai Kashi’s death  they  become         entitled to. a one-half share in the whole of the  suithouse         ?   The  trial  court found that  the  three  brothers   had         become separate in status before the deaths of Nathubhai and         Lallubhai.  It also found that the defendant and his  broth-         ers  had separated and the  suit-house was also  divided  as         alleged by the defendant and recorded the finding in  favour         of the defendant.  Regarding the second issue it found  that         the  defendant  had  failed to prove that  there  was  legal         necessity for Bai Kashi to sell away the share in the  suit-         house.  On the third issue the trial court recorded a  find-         ing  that after  Bai  Kashi’s death the  respondents  became         entitled to 1/2 share in the whole of the suit-house.             On  appeal the High Court confirmed the findings or  the         trial court on three issues and dismissed the appeal.             The findings of both the courts below that the defendant         and  his two brothers had separated and the suit-house   was         also  divided by metes and bounds was not challenged  before         us by the  counsel for the respondents. So also the  finding         that  the sale deed executed by Bai Kashi in respect of  her         1/3 share of the suit-house was not proved to have been  for         legal  necessity.   The only point that was  raised  by  the         counsel  for  the appellants is that the  respondents’  plea         that  the   three brothers were joint and the share  of  Bai         Kashi was inherited by  the remaining two branches by survi-         vorship  having been negatived by the courts below the  suit         ought  to have been dismissed and that the courts  erred  in         finding  a  new case of succession to the  property  of  Bai         Kashi  without the necessary pleadings.  It may be  observed         that  on the accepted finding of the courts below  that  the

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       sale  in favour of the appellants by Bai Kashi is  not  sup-         ported  by legal necessity if on the death of Bai Kashi  the         other  two  branches  i.e. that of the  appellants  and  the         respondents, are entitled to share equally the decree grant-         ed  by courts below would be right even though the claim  to         the 1/2 share is not based on succession.         The contention of the counsel for the appellants is that the         courts below have found an entirely new case on the basis of         succession  which  is  contrary to the  claim  made  in  the         plaint. The averment in the plaint is that on 24th  January,         1956  Bai  Kashi the widow of Nathubhai  died  and  Nanabhai         continued as the member of the joint  Hindu  family.         923         There is no alternate claim that in the event of the  parti-         tion being negatived the plaintiff would be entitled to  1/2         share  of Bai Kashi by succession.  The 3rd issue  that  was         raised  was  whether  on Bai Kashi’s  death  the  appellants         became  entitled to 1/2 share in the whole  suit-house.  The         trial court on that issue found that Bai Kashi became  enti-         tled to 1/2 share of her husband in the suit-house under the         Hindu Women’s Rights to Property Act, 1937.  As her interest         was  only  a limited interest known as Hindu Women’s  Estate         when  Bai  Kashi  died  in January 1956 she had  not  become         the full owner of the share under the Hindu Succession  Act,         1956.  On this basis the trial court was of the view that on         the death of Bai Kashi her share would go  to the reversion-         ers.   On the question as to who the heirs of Nathubhai  are         at  the time of the death of Bai Kashi the trial court  held         that as  the parties were in Gujarat the Mayukh school  will         govern  the  inheritance and in Gujarat  the  Mayukh  school         overrules the  Mitakshara  school and therefore full  broth-         ers  inherit along with sons of full brothers who  are  dead         and therefore after the death of Bai Kashi the defendant and         plaintiff  No.  1  would inherit together to  the  share  of         Nathubhai.  The court held that the claim of  the  plaintiff         for 1/2 share should be decreed though there is no  specific         claim  on the plea of separation and heirship.  The  defend-         ant, present appellants, in their appeal  to the High  Court         submitted  that the trial Judge erred in  saying   that  the         Kashi  had only a widow’s estate when she died and that  the         trial court failed to appreciate that no issue was framed as         to who were the heirs of the deceased Bai Kashi and that the         parties  to the suit had not gone to the trial on the  basis         of the succession.  The High Court has  not dealt with  this         issue satisfactorily.  The High Court after referring to the         pleadings observed that the plaintiffs claimed 1/2 share  in         the  suit properties on the ground of survivorship and  that         at the time of    the arguments it was contended before  the         trial court that  even  if    the brothers had separated the         defendant  and  the plaintiff No. 1  inherited  together  to         Nathubhai  after Bai Kashi’s death and therefore the  plain-         tiff  would  be entitled to 1/3 share.  After  making  these         observations the High Court has referred to the plea in  the         written  statement that   the three brothers were  separated         and  has observed that the trial Judge had framed the  issue         as  to  whether  the defendant proves that he  and  his  two         brothers  Nathubhai  and Lallubhai had  separated  and   the         suit-house  was divided and concluded that this issue  which         was  raised by the learned trial Judge clearly arose out  of         the  contention  which  was raised by the defendant  to  the         plaintiff’s  suit  and a specific issue was raised  on  that         point by the learned trial Judge and therefore  there is no         prejudice to any of the parties because the issue was framed         and  evidence  was led by both the parties  on  that  point.         This reference, we are afraid, does not relate to issue  No.

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       3  which is about the succession to Bai Kashi’s share  after         her  death.  In the Memorandum of Grounds in the  appeal  to         the High Court as well as in the special leave petition  the         ground that is taken specifically is that the plaintiff  has         not proved how he became entitled to the share of Bai Kashi.         In  fact, the contention is that on the death  of  Nathubhai         his  widow Bai Kashi inherited under the Mayukh law  Nathub-         hai’s  1/3 share in the suit-house absolutely.  It was  also         contended before the High Court that the trial Judge was  in         error  in  saying  that Mayukh school  of  Hindu  law  would         11--206SCI/77  the  Mitakshara school in Gujarat.   We  find         that the question         924         that  arose mainly whether the respondents are  entitled  to         succeed  to Bai Kashi’s 1/2 share on her death has not  been         satisfactorily dealt with by the High Court especially  when         the  point  was  specifically raised on behalf of the appel-         lants.   While we agree with the concurrent finding  of  the         trial  court  and the High Court  that  the   family  became         separated  and that the sale deed by Bai Kashi in favour  of         the  appellants is not for legal necessity we are  satisfied         that  the claim of the respondents for partition and  allot-         ment of 1/3 share by  metes  and bounds cannot be  resisted.         Though the brothers became separate admittedly there was  no         division by metes and bounds.  There is also no dispute that         the  respondents  are entitled to. 1/3 share in  the  house.         Therefore  though they became separated in status the  suit-         house was not divided by metes and bounds and therefore they         will be entitled to division and separate possession of  1/3         share in the house.  To this extent the decree of the courts         below will be modified.             But so far as the 1/3 share of Bai Kashi is concerned as         the  courts below have not considered the  appellants’  plea         that  the  respondents are not entitled to  succeed  to  Bai         Kashi’s 1/2 share the question is remitted to the High Court         for  consideration.   The High Court will  consider  as  to.         whether  the respondents are entitled to succeed to  1/2  of         the   1/3 share of Bai Kashi and pass a decree  accordingly.         To  this extent the appeal is allowed and the decree of  the         trial court and  the High Court modified.  The parties  will         bear their own costs in this appeal.         P.H.P.                                                Appeal         allowed.         925