Back
IN THE HIGH COURT OF BOMBAY
IN THE HIGH COURT OF BOMBAY
AT NAGPUR
Kotval S.P. and Raju V.B., JJ.
Appellants: Ramaji Batanji
Vs.
Respondent: Manohar Chintaman and Ors.
Appeal No. 27 of 1954
Decided On: 20.11.1959
Counsels:
For Appellant/Petitioner/Plaintiff: D.B. Padhye and S.V. Padhye, Advs.
For Respondents/Defendant: C.S. Dharmadhikari, M.R. Bobde, R.K. Manohar and V.R. Manohar, Advs.
Suit for possession of houses Nos. 190, 580 and 582, New Shukrawari, Nagpur, for declaration of title to the three houses and for mesne profits was dismissed by the Fifth Additional District Judge, Nagpur. The relevant facts which are necessary for the disposal of this appeal are as follows: Maroti son of Damaji died in 1920 leaving behind him his widow Sarubai and two daughters Jaibai and Vithabai. Plaintiff is the son of Jaibai. Defendants Nos. 1 and 2 are the grandsons of Vithabai, their father Namdeo having predeceased them in 1943. Defendant No. 1 who died during the pendency of the suit was represented by his widow Defendant No. 1 (c) and his two minor sons Defendants Nos. 1 (a) and 1(b). Defendants Nos. 3 to 15 are tenants in occupation of the houses in dispute. It is common ground that Maroti who died in 1920 owned three houses bearing Nos. 190, 579 and 582. The suit relates to two of these houses namely Nos. 190 and 582 and another house bearing No. 580. It is also common ground that after the death of Maroti in 1920 his widow Sarubai who succeeded him and had widows life interest died in 1921 and that after 1921 the two daughters of Marotirao became heirs under the Hindu Law. Plaintiff claims that Marotirao owned house No. 580 in addition to the three properties, admittedly owned by him. It is also the Plaintiffs case that he is the next rever-sioner after the death of Vithabai who died in 1950, her sister Jaibai having predeceased her in 1936. According to the plaintiff, he being the daughters son of Marotirao, is the next reversioner in preference to defendants Nos, 1 and 2 who are the daughters sons sons of Marotirao. Plaintiff, therefore, filed the suit for possession of the houses bearing Nos. 190 and 582 which admittedly belonged to Marotirao and house No. 580 in regard to which there is a dispute as to whether it was the property of Marotirao or not.
Fact of the Case:
Maroti son of Damaji died in 1920 leaving behind him his widow Sarubai and two daughters Jaibai and Vithabai. Plaintiff is the son of Jaibai. Defendants Nos. 1 and 2 are the grandsons of Vithabai, their father Namdeo having predeceased them in 1943. Defendant No. 1 who died during the pendency of the suit was represented by his widow Defendant No. 1 (c) and his two minor sons Defendants Nos. 1 (a) and 1(b). Defendants Nos. 3 to 15 are tenants in occupation of the houses in dispute. It is common ground that Maroti who died in 1920 owned three houses bearing Nos. 190, 579 and 582. The suit relates to two of these houses namely Nos. 190 and 582 and another house bearing No. 580. It is also common ground that after the death of Maroti in 1920 his widow Sarubai who succeeded him and had widows life interest died in 1921 and that after 1921 the two daughters of Marotirao became heirs under the Hindu Law. Plaintiff claims that Marotirao owned house No. 580 in addition to the three properties, admittedly owned by him. It is also the Plaintiffs case that he is the next rever-sioner after the death of Vithabai who died in 1950, her sister Jaibai having predeceased her in 1936. According to the plaintiff, he being the daughters son of Marotirao, is the next reversioner in preference to defendants Nos, 1 and 2 who are the daughters sons sons of Marotirao. Plaintiff, therefore, filed the suit for possession of the houses bearing Nos. 190 and 582 which admittedly belonged to Marotirao and house No. 580 in regard to which there is a dispute as to whether it was the property of Marotirao or not.
Finding of the Court:
1. House No. 580 did not belong to Marotirao. 2. The sale-deed, dated 10th January 1921, by Marotiraos widow Sarubai in favour of Vithabai, one of her daughters, was bogus and was not intended to be acted upon. 3. The sale by a Hindu widow was an absolute alienation of the property and was justified under Hindu law. 4. The suit is not barred by limitation. 5. The defendants have not proved adverse possession for 12 years. 6. The parties are governed by the Benares School of Hindu law. 7. The plaintiffs suit, therefore, succeeds in regard to houses Nos. 190 and 582 only but under section 51 of the Transfer of Property Act. We hold that the plaintiff should pay Rs. 4,000 to the defendants in view of the money spent by Vithabai tor reconstructing house No. 582.
Issues: 1. Whether house No. 580 belonged to Marotirao. 2. Whether the sale-deed, dated 10th January 1921, by Marotiraos widow Sarubai in favour of Vithabai, one of her daughters, was bogus and was not intended to be acted upon. 3. Whether the sale by a Hindu widow was an absolute alienation of the property and was justified under Hindu law. 4. Whether the suit is barred by limitation. 5. Whether the defendants have proved adverse possession for 12 years. 6. Whether the parties are governed by the Benares School or by the Bombay School of Hindu law. 7. What orders, if any, should be passed under section 51 of the Transfer of Property Act.
Ratio Decidendi: 1. The judgment in another suit which is not Inter partes may be evidence under Section 13 of the Evidence Act for certain purposes, namely to prove the fact of the judgment; to show who the parties to the suit were; to show what was the subject-matter of the suit; to show what was decided or declared by the judgment; to show what documents had been filed by the parties in the proceedings; to establish the transaction referred to in the judgment; as evidence to show the conduct of the parties or particular instances of the exercise of a right or assertion of title (vide Harihar Prasad Singh v. Must. of Munshi Narh Prasad, 1956 SCR 1 at p. 6: ((S) AIR 1956 SC 305 at p. 309))or to identity property; or to show how properly had been previously dealt with; to establish a particular transaction in which a right is asserted and the name of the person, if any, who is declared in the judgment as entitled to possession; but the judgment is not evidence to establish the truth of the matters decided in that judgment. Kesho Prasad v. Bhagjogna Kuer, AIR 1937 PC 69 at p. 74. The findings of fact arrived at on the evidence in one case are not evidence of that fact in another case. Gopika Raman Roy v. Atal Singh, 56 Ind App 119 at p. 125 :(AIR 1929 PC 99 at p. 102). 2. As already observed, even if the judgment is evidenced for certain purposes, the finding of tact that defendant No. 2 was a benamidar in respect ot certain transactions is not evidence in the present proceedings. 3. Moreover, as already observed, there is nothing to identify the property referred to in the judgment exhibit P-8. It is impossible to conclude that that judgment relates to House No. 580 or even part of house No. 580 as the boundaries of that house as given in the present plaint do not correspond or tally with the boundaries as given in the sketch referred to by the learned counsel for the appellant. The judgments relied on by the learned counsel for the appellant therefore do not assist him in establishing that House No. 580 originally belonged to Marotirao.
Final Decision: Appeal partly allowed.
1. This is a first appeal by Plaintiff Ramaji whose suit for a declaration of title to three houses Nos. 190, 580 and 582, New Shukrawari, Nagpur, for possession and for mesne profits was dismissed by the Fifth Additional District Judge, Nagpur. The relevant lacts which are necessary for the disposal of this appeal are as follows:
2. One Maroti son of Damaji died in 1920 leaving behind him his widow Sarubai and two daughters Jaibai and Vithabai. Plaintiff is the son of Jaibai. Defendants Nos. 1 and 2 are the grandsons of Vithabai, their father Namdeo having predeceased them in 1943. Defendant No. 1 who died during the pendency of the suit was represented by his widow Defendant No. 1 (c) and his two minor sons Defendants Nos. 1 (a) and 1(b). , Defendants Nos. 3 to 15 are tenants in occupation of the houses in dispute. It is common ground that Maroti who died in 1920 owned three houses bearing Nos. 190, 579 and 582. The suit relates to two of these houses namely Nos. 190 and 582 and another house bearing No. 580. It is also common ground that after the death of Maroti in 1920 his widow Sarubai who succeeded him and had widows life interest died in 1921 and that after 1921 the two daughters Jaibai and Vithabai became heirs under the Hindu Law. Plaintiff claims that Marotirao owned house No. 580 in addition to the three properties, admittedly owned by him. It is also the Plaintiffs case that he is the next rever-sioner after the death of Vithabai who died in 1950, her sister Jaibai having predeceased her in 1936. According to the plaintiff, he being the daughters son of Marotirao, is the next reversioner in preference to defendants Nos, 1 and 2 who are the daughters sons sons of Marotirao. Plaintiff, therefore, filed the suit for possession of the houses bearing Nos. 190 and 582 which admittedly belonged to Marotirao and house No. 580 in regard to which there is a dispute as to whether it was the property of Marotirao or not.
3. The defence of Defendants Nos. 1 and 2 was that house No. 580 never belonged to Marotirao, that the two other houses Nos. 190 and 582 which admittedly belonged to Marotirao had been sold by Sarubai widow of Marotirao to Vithabai in 1921 for the payment of the debts of her husband and for her maintenance and that after the sale-deed, Vithabai, the grandmother of Defendants Nos. 1 and 2 became the absolute owner of the two houses. It was also their case that Marotirao was governed by the Bombay School of Hindu law and that the two daughters of Marotirao became absolute owners of Marotiraos property as his heirs. A will, dated 28th December 1949, by Vithabai was also alleged by these two Defendants. But this will ia not the subject of arguments in appeal. They also claimed that they were in adverse possession of the houses for more than 12 years before the suit. In the alternative they claimed that if the plaintiff succeeded in his claim the defendants should be reimbursed to the extent of Rs. 10,000 which were spent on reconstructing the houses Nos. 190 and 582, in view of the provisions of Section 51 of the Transfer ol Properly Act.
4. The defence of defendants Nos. 1 (a) and 1(b) was similar. Defendant No. 10 denied his liability. The other defendants did not appear though served and were treated as ex parte.
5. The learned Additional District Judge held that the parties were governed by the Benares School of Hindu law, that Marotirao owned only the houses Nos. 190, 579 and 582 but not house No. 580, that Sarubai, widow of Marotirao, sold the houses Nos. 190 and 582 on 10-1-1921 to her daughter Vithabai for paying off the debts of Marotirao, that the sale-deed was not bogus, that after the sale-deed dated 10-1-1921, Vithabai and after her defendants Nos. 1 and 2 were in exclusive and adverse possession of the houses. The learned Additional District Judge, therefore, held that the plaintiffs suit in regard to house No. 580 should fail as it was not proved to be the property of Marotirao and that the su
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
