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IN THE HIGH COURT OF BOMBAY
Masodkar B.A. and Mehta D.N., JJ.
Nanasaheb Vishwasrao Devre….Petitioner.
Versus
Parwatibai Shankar Chavan and another….Respondents.
Appeal No. 46 of 1975, decided on 27-2-1979.
Advocates appeared:
M.A. Rane, for appellant.
S.R. Rajguru, for respondent No. 1.
HINDU SUCCESSION ACT - SECTION 3(1)(A), 8, 12 - INTERPRETATION - AGNATE - DEFINITION - INCLUDES PATERNAL AUNT - HINDU MARRIAGE - EFFECT - WIFE BECOMES INTEGRAL PART OF HUSBAND'S FAMILY - SHASTRIC HINDU LAW - MARRIAGE - SACRAMENT - HOLY UNION - WIFE ENTERS GOTRA OF HUSBAND - BECOMES SAPINDA OF HIS FAMILY - CONCEPT OF SAPINDA - DEPENDS ON COMMUNITY OF CORPORAL PARTICLES - NOT ON PRESENTATION OF FUNERAL OFFERINGS TO PITRIS - PATERNAL AUNT - GOTRAJA SAPINDA OF NEPHEW - HEIR OF AGNATIC CLASS - HINDU SUCCESSION ACT - DOES NOT EXCLUDE PATERNAL AUNT FROM AGNATE - DEFINITION OF AGNATE - INCLUDES RELATIVES WHOSE KINSHIP IS TRACEABLE EXCLUSIVELY THROUGH MALES - PATERNAL AUNT'S RELATIONSHIP WITH NEPHEW - TRACEABLE THROUGH FATHER - HENCE, PATERNAL AUNT IS AGNATE - HINDU SUCCESSION ACT - SCHEME OF SUCCESSION - SECTION 8 - CLASS I AND CLASS II HEIRS - INCLUDE RELATIVES RELATED BY MARRIAGE - SECTION 8(C) - AGNATES - INCLUDES PATERNAL AUNT - SECTION 8(D) - COGNATES - DOES NOT INCLUDE WIFE'S RELATIONS IN HER ORIGINAL FAMILY - HINDU SUCCESSION ACT - BASED ON PRINCIPLES OF BIRTH AND MARRIAGE - RECOGNISES RELATIONS ARISING FROM BOTH BIRTH AND MARRIAGE - TERM "BY BLOOD" IN DEFINITION OF AGNATE - NOT RESTRICTED TO BIOLOGICAL OR GENETIC RELATIONSHIP - INCLUDES RELATIONSHIP ARISING FROM MARRIAGE - PATERNAL AUNT - RELATED TO NEPHEW BY BLOOD - HINDU SUCCESSION ACT - INTENDS TO AVOID FAILURE OF SUCCESSION - RECOGNISES NEARER RELATIVES FROM FAMILY - PATERNAL AUNT - NEARER RELATIVE OF NEPHEW - HINDU SUCCESSION ACT - CLASS I AND CLASS II HEIRS - DESCRIBED AS RELATIVES - LEGISLATURE AWARE OF RELATIONS ARISING FROM MARRIAGE - CLASS III HEIRS - AGNATES - INCLUDES PATERNAL AUNT - CLASS IV HEIRS - COGNATES - DOES NOT INCLUDE WIFE'S RELATIONS IN HER ORIGINAL FAMILY - HINDU SUCCESSION ACT - SCHEME OF SUCCESSION - CONSISTENT WITH PRINCIPLES OF BIRTH AND MARRIAGE - PATERNAL AUNT - HEIR OF NEPHEW - APPEAL - ABATEMENT - LEGAL HEIR ON RECORD - APPEAL DOES NOT ABATE - MERE OMISSION TO DELETE DECEASED'S NAME AND SHOW LEGAL HEIR AS SOLE REPRESENTATIVE - DOES NOT RENDER JUDGMENT NULL AND VOID.
Fact of the Case:
Baburao, the original plaintiff, filed a suit for specific performance of an agreement of sale and declaration that a judgment and decree obtained by defendant No. 2 Parwatibai against defendant No. 1 Baburao was collusive and not binding. The suit agreement was executed by Baburao for the sale of a property to the plaintiff. The judgment and decree obtained by Parwatibai was for partition of the suit property, which she claimed was jointly owned by her and Baburao. Baburao died during the pendency of the first appeal filed by Parwatibai against the trial court's judgment in favor of the plaintiff. The issue arose whether Parwatibai, as the paternal aunt of Baburao, had the legal capacity to represent Baburao's interest in the suit cause after his death.
Finding of the Court:
The court held that Parwatibai, as the paternal aunt of Baburao, was his heir under the Hindu Succession Act and had the legal capacity to represent his interest in the suit cause after his death. The court interpreted the definition of "agnate" in section 3(1)(a) of the Act to include relatives whose kinship is traceable exclusively through males, and held that Parwatibai's relationship with Baburao was traceable through his father, making her an agnate. The court also held that the scheme of succession under section 8 of the Act recognized relations arising from both birth and marriage, and that the term "by blood" in the definition of agnate was not restricted to biological or genetic relationship but included relationship arising from marriage. Therefore, the court held that Parwatibai was related to Baburao by blood and was his heir under the Act.
Issues: 1. Whether Parwatibai, as the paternal aunt of Baburao, had the legal capacity to represent his interest in the suit cause after his death. 2. Whether the definition of "agnate" in section 3(1)(a) of the Hindu Succession Act includes relatives whose kinship is traceable exclusively through males. 3. Whether Parwatibai's relationship with Baburao was traceable through his father, making her an agnate. 4. Whether the scheme of succession under section 8 of the Act recognizes relations arising from both birth and marriage. 5. Whether the term "by blood" in the definition of agnate is restricted to biological or genetic relationship or includes relationship arising from marriage. 6. Whether Parwatibai was related to Baburao by blood and was his heir under the Act.
Ratio Decidendi: 1. The court interpreted the definition of "agnate" in section 3(1)(a) of the Hindu Succession Act to include relatives whose kinship is traceable exclusively through males. 2. The court held that Parwatibai's relationship with Baburao was traceable through his father, making her an agnate. 3. The court held that the scheme of succession under section 8 of the Act recognized relations arising from both birth and marriage. 4. The court held that the term "by blood" in the definition of agnate was not restricted to biological or genetic relationship but included relationship arising from marriage. 5. The court held that Parwatibai was related to Baburao by blood and was his heir under the Act.
Final Decision: The court allowed the appeal and set aside the judgment and decree of the trial court, dismissing the plaintiff's suit.
2. The case of the plaintiff had been that Baburao was the owner of the property, being the suit house which was purchased by his father Dagadu under a registered deed of purchase of May 4, 1933(Ex. 50). After Dagadus death, which occurred in July 1942, Baburao became the sole owner of the property. He had under Ex. 56 initially agreed to convey this property to one Rajaram(P. W. 2) for a consideration of Rs. 9,000 and had received an earnest money of Rs. 2,000. After cancelling that agreement, the suit agreement was entered into for a consideration of Rs. 10,000 and Baburao received Rs. 2,500 as earnest money, out of which Rs. 2,000 were paid to Rajaram whose agreement was duly cancelled. In spite of the fact that the plaintiff was ready and willing to perform his part, Baburao was avoiding the same. With regard to the decree obtained by Parwatibai against Baburao, it was the case of the plaintiff that it was all collusive and was obtained with a view to shield the property.
3. At Exs. 20 and 21 are the written statements of Baburao and Parwatibai. Briefly stated, these written statements disclaimed the plaintiffs assertion. Even Baburaos written statement asserts that the suit house was the joint property of his father Dagadu and Parwatibais husband Shankarrao, Dagadus brother. It is further stated that Dagadu before his death had directed that Parwatibai should be maintained and further that the half share of Parwatibai in the suit house was got recorded in the City Survey Record as per the wish of Dagadu. It was asserted that defendant No. 1 was. incurring loans for his own vices and, therefore, Parwatibai instituted a suit for the purpose of partition which was not filed in collussion and it was then stated that defendant No. 2 took out Darkhast proceedings and attached the undivided half share in the house and when defendant No. 1 engaged one Zulal B. Patil, Pleader, in that matter, it was that pleader who by practising fraud and holding out false representations with regard to the Darkhast got executed the suit agreement. The said agreement, therefore, was not binding. It was further stated that under that agreement only Rs. 200 were paid and in spite of demand on the said Pleader Patil, the further amounts were not paid. It was asserted that the decree obtained by Parwatibai was valid and binding.
4. Parwatibais written statement asserts that the house property was not exclusively owned by Baburao. Her husband Shankarrao was running the business of motors for about 14 to 15 years prior to his death and had earned lot of profits, while Dagadu was merely a fee clerk and earned very little income and was not even able to maintain himself. They were living in joint family and from the profits earned in the business of motors, her husband Shankarrao purchased the suit house. As Dagadu was elder to Shankarrao, the house was purchased in the name of Dagadu. Her husband Shankarrao died in the suit house. At the time of his death, he had left three motors(passanger service) owned by him. He had similarly left properties in the form of several ornaments of silver and gold. He had also a gold waist chain, rings and buttons. All those ornaments were purchased by Shankarrao from his business profits. All the property was with defendant No. 2 Parwatibai and after the death of Shankarrao, monies were realised by sale of ornaments Jo the tune of Rs. 7
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