2000 Supreme(Bom) 836

IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Kishore Narsingh alias Hirala Shah others.... Plaintiffs.
Versus
Prakash Narsingh Shah others.... Defendants.
Suit No. 1294 of 1986, decided on 20-10-2000.
Advocates appeared :
N.C. Parekh i/b. Mansukhlal Hiralal Co., for plaintiffs.
M.L. Palan with Prakash Ganwani i/b. N. N. Vaishnawa Co., for defendants.

Headnote:Section 8-Claim for partition -Right for-Old Hindu Law-Application of-Proof of plaintiffs being member of H.U.F. necessary-Such proof is necessary when the property is ancestral-Property in question is self acquired one-No other brother shared in it-Such proof had no relevancy.-Defendants are labouring under a mistaken belief that plaintiffs can succeed or fail or defendants can succeed or fail only if they establish existence of Hind" Undivided Joint Family. It is nobodys case that Narsingh Shah inherited some property from his father or forefathers. It is nobodys case that Narsingh Shah owned some property along with his brothers. It is nobodys case that Narsingh Shah had some joint family property in his hands wherein his brothers had any share. The admitted fact is that whatever property is there it is of Narsingh Shahs singly and his self acquired property. It was not sufficient to show that the family possessed some joint property. The case was therefore decided in that background. In this case there is no dispute nor any question is raised as to whether property owned by Narsingh Shah was his self acquired or was ancestral in his hands therefore this judgment will be of no help to the defendants. Plaintiffs contention was that he was along with the first defendant and the husband of second defendant were sons of Gopalaraju and were in possession of joint family. Gopalaraju died in 1931 and after his death the plaintiff and his brothers continue to be members of the joint family. The joint status of the family was severed by issue of registered notice by the first defendant to the plaintiff in 1951. Plaintiff who was the respondent before the Privy Council had brought a suit for half share in the property possessed by appellants. There the Court was concerned with the status of the family with reference to 3-4 earlier generations between the rights of various branches of a family and the property possessed by the original ancestor. Long and exclusive possession of property by one coparcener is evidence of exclusion of another and the man who is out has to make out a prima facie title and establish either an agreement of some jural relation to account for the exclusive possession of his opponent. If he fails to establish that a suit by him for partition of such property is liable to fail it is true that suit property in the present suit continued to be in possession of the defendants, but mere continuous possession cannot result in plaintiff loosing their right in the property. Therefore, objections regarding limitation raised by the defendants are required to be rejected. For all the reasons stated above and considering position of law and authorities relied upon by the parties, the plaintiffs are entitled to the reliefs claimed, suit of the plaintiffs will have to be decreed.

       Section 8-Hindu Law as Session/Partition-Evidence Act, 1872, Sections 3 and 6-Scope for Hindu Law as partition-Plaintiffs heirs of second wife of owner-Right to share in property claimed-Suit on stoppage of maintenance by other party contention-No proof of second marriage-Held-Evidence available of payment of maintenance.- There is evidence of PW 4 Sukhlal Kothari coupled with his affidavit Exhibit P-16 wherein the witness has admitted that on 3/4 occasions he has paid maintenance to Sushilabai at the instance of Narsingh Shah. In all these letters and correspondence and notices from the plaintiffs side to the defendants there is assertion of payment of maintenance by the defendants. Evidence of this witness which could not be shaken in the cross-examination has to be accepted and therefore plaintiffs have succeeded in proving that they were getting maintenance from Rs. 500/- to Rs. 200/- as per the allegations in the plaint. Finding on Issue No.5 is therefore, in the affirmative.

       Section 8-Evidence Act, 1872, Section 3-Proof of marriage under old Hindu Law-Partition suit-Filed by heirs of second wife of last holders-Contention-Proof of second marriage not given-Partition suit due to stopping of maintenance expenses-Held-Though there is no proof of actual marriage it is not ground to reject the claim-When man and woman are accepted as husband and wife by all concerned marriage stands proved-Marriage can be given full credence.-So far as actual marriage ceremony is concerned, there is no evidence forthcoming from the plaintiffs. However, that cannot be a ground for rejecting the claim and contentions of the plaintiffs because as rightly argued by counsel for the plaintiffs proof of marriage ceremony is not mode of proving marriage relationship and the same can be established by evidence of the fact that a man and woman were accepted and recognised by the society and all concerned as husband and wife and they lived together as husband and wife. There is no provision of law which requires that for proving the particular fact a particulars number of witnesses should be examined. Defendants have not been able to shake the credit of tl1e witness in the least. Nothing is brought on record as to why a man of 82 years of age having no fiscal or contractual relationship with Narsingh Shah no concern with the business of Narsingh Shah would give false evidence only to help the plaintiffs. As such the evidence of this witness has to be accepted and relied upon completely and totally, net result would be therefore that even though the plaintiffs had examined only one witness in the form of PW 1 Khare they have succeeded in proving that Narsingh Shah and Sushilabai were married and they lived as husband and wife together for about 18 years before the death of Narsingh Shah. Evidence of Sukhlal Kothari (PW 4) has to be read in conjunction with the said affidavit. He had to admit the contents of the affidavit though he tried to explain in the cross-examination that he does not know English. Testimony of witness could not be relied upon, firstly, because he was not fully supporting the plaintiffs and secondly because he was removed from services by Narsingh Shah because Narsingh Shah had lost faith in hin1. So far as relationship of husband and wife between Sushilabai and Narsingh Shah is concerned, evidence of PW 4 Sukhlal Kothari and PW 1 B-8. Khare is more than sufficient apart from other evidence on record. Evidence of PW 4 also proves the contentions of the plaintiffs that Narsingh Shah was paying them maintenance separately is true.

       Article 58-Hindu Successions Act, 1956, Section 4-Effect of limitation on-Declaratory suit-Share in family property-Last holder died in 1953-Suit filed in 1986-Other side stopped making payment for maintenance-Contention-Right to have partition governed under Article 58 of Limitation Act-To be filed within 3 years of accrual of right-Held-Contention not sustainable-The suit mainly for partition of property-Plaintiffs right of partition is not affected merely on reason that declaratory relief was included.-Because a declaration is merely the assertion of a right and getting a judgment from the Court regarding certain and particular right. If the substantial right existed then whether the relief of declaration is barred or not will not effect the reliefs claimed by the plaintiffs. The relief of declaration even if time barred will not effect the claims of the plaintiffs because in the suit for partition no declaratory relief is necessary and Court can decide the rights of the parties with reference to the main relief of partition.

       Articles 58, 66 and 110-Hindu Succession Act, 1956, Section 4Family property-Share in-Limitation-Death of last holder in 1953-Share suit filed in 1986-Maintenance of house was stopped by sons--Daughters of other wife-Held disputed property was not ancestral but self-acquired one-Suit simple are for partition among heirs-Death of last holder prior to coming into effect of Hindu Succession Act-Both wives are entitled to share in it Limitation to start from day night to claim partition is asserted by a side and denied by other-No proof that any such demand had been made-Within 12 years of filing suit-Mere non-assertion of right does not amount to exclusion of plaintiffs from share.- This is a suit in respect of the self acquired property of Narsingh Shah, who died in 1953 and is therefore a simple suit for partition. The question of giving any share to plaintiffs or to their mother Sushilabai does not arise at all because they failed to prove their case and secondly because the suit is barred by limitation. The parties are governed by Mitakshara Hindu Law. When the suit is filed both Sushilabai and Banubai were dead and therefore their share which was a limited share as per then existing provisions of Hindu Law will revert to Narsingh Shah and it will be again divided into three sons and since both Sushilabai and Banubai died after coming into force of Hindu Succession Act, 1956, the daughters will also get share in the sad property. Therefore, in any case, all the plaintiffs and the defendants will be entitled to share in the property. Even if it is held that plaintiffs have proof to prove such an existence, the suit is purely and Simply a suit for claiming share in the property of Narsingh Shah and therefore the question would be whether limitation would start running against the plaintiffs as contended by the defendants or it would continue till plaintiffs demand partition of the property of Narsingh Shah and there is refusal or denial to partition the property by the defendants. There is nothing on record to show that the demand for partition of the property of Narsingh Shah was openly, clearly and specifically made by the plaintiffs 12 years before the filing of the suit and that such a demand was denied, rejected and turned down by the defendants expressly and openly. Since in the instant case there is no specific demand by the plaintiffs of partition of their share in the property of Narsingh Shah and since there is no refusal or denial by the defendants, the period of limitation would not start against the plaintiffs under any of the provisions of Limitation Act as contended by counsel for the defendants. Mere non-assertion of right in the property by the plaintiffs will not amount to their exclusion. Even from the evidence of the witnesses of the plaintiffs it is clear that maintenance was being paid up to 1978 and therefore if payment of maintenance can be considered to be an act of the defendants in recognition of the right of the plaintiffs then period of limitation would start from 1978 and the suit would be within limitation.