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2007 Supreme(Bom) 221
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ABHAY S. OKA, J.
Gangaram Sakharam Dhuri, since deceased through legal representatives Vishnu and others -Appellants
Versus
Gangubai Raghunath Ayare and others-Respondents
First appeal no.116 of 1988
Decided on: February 20/21, 2007.
Advocates appeared :
Shri Navin Parekh with Smt. Hetal Patel for the Appellants.
Smt G.P. Bharucha for the Respondent Nos.1,3, 3(A) to 3(D), 4, 4(a) and 5.
Shri K.D.Shah for the Respondent No.2.
Headnote:Civil Procedure Code, 1908 - Order II, Rule 6 - Power of Court. - Trial Court by exercising power under Rule 6 of Order II of Code cannot grant a liberty to plaintiff to take out separate proceedings for administration of estate of deceased.
Hindu Succession Act, 1956 - Section 15, Schedule 1 - Registration Act, 1908, Section 17 - Right to property - Father dying intestate in 1967 - One of daughters claiming equal share alongwith her brother and 4 sisters - Brother sold his share to one of sisters claiming to be sole owner - Challenged by plaintiffs (sisters) - Deed of alleged relinquishment of right over immovable property not registered - Lower Court decreed suit holding plaintiffs with brother entitled to equal share each - Appeal - Held - Brother entitled to 1/6 share - He can transfer his share to anyone - Transfer deed by him in favour of sister is valid - Finding of lower Court not correct - Plaintiff (sister) can get only 1/5 of it - Suit filed for administration of estate not maintainable - Judgment and decree of lower Court set aside - Cross- objection also dismissed. - In the present case on the date on which the sale was executed by Vishnu he had one- sixth undivided share in the property of the deceased. Though he has professed to sell one-half of the entire property the deed will not become void or illegal only on that ground. The purchaser under the sale deed will certainly get what Vishnu was entitled to transfer namely his undivided share in the property. There- fore in view of what is held by the Division Bench the sale deed dated 10th January 1969 will be valid to the extent of the undivided share of Vishnu. The finding of the trial Court is that the sale deed is null and void. The said finding is obviously contrary to law. It will have to be held that the sale deed is valid only to the extent of one-sixth undivided share of Vishnu.
The trial Court has passed a decree for possession against the second defendant purchaser. The sub- mission of the counsel for the plaintiff is that the plaintiff has filed the suit on behalf of the her three sisters and therefore the plaintiff is entitled to possession of one-half share in the property. The third to fifth defendants have not filed any suit and they have not paid any court-fees on their claim regards possession of their share. Share of the plaintiff was only to the extent of one-fifth when the suit was filed. Therefore by no stretch of imagination the plaintiff could have obtained possession of one-half portion of the entire property. Moreover, the relief of grant for possession of one-fifth separate share could have been granted only in a properly instituted partition suit. If the plaintiff was desirous of having possession of the one-fifth share in the property, the only recourse available to the plaintiff was to file a suit for general partition. Even while effecting general partition, it is not necessary that the half of the property which is sold to the second defendant will be allotted to the share of the plaintiff. The plaintiff may get a share in the other part of the property which is not purportedly sold to the 2nd defendant.
1. I have heard the submissions of the learned counsel appearing for the parties on the last date and today the Appeal is kept for dictation of Judgment.
The original Appellant is the original second Defendant who has taken exception to the Judgment and Decree dated 19th September, 1987 passed by the trial Court in a suit filed by the first Respondent-Plaintiff. The suit has been partly decreed. For the sake of convenience, parties are hereinafter referred to with reference to their status in the trial Court.
2. With a view to appreciate the submissions which are made by the learned counsel appearing for the parties, it will be necessary to refer facts of the case. The Plaintiff, first Defendant and the third to fifth defendants are closely related to each other. The genealogy reads thus:
Gangaram Sakharam Dhuri Sunderabai wife Gangaram
(died in 1967) (died in 1972)
Vishnu Gangubai Ladubai Shantabai Tai
(son) (married (married (married (married
(died in 1971) daughter) daughter) daughter) daughter)
Plaintiff Defendant Defendant Defendant
Laxmibai (widow)
Defendant no.1
(second respondent) (first No.3 No.4 No.5
Respondent) (third (fourth (fifth
Respondent) Respondent) Respondent)
3. The dispute in the suit pertains to property bearing C.T.S. No.1048 admeasuring 398.5 Sq.yards altogether with a building thereon by the name "Sai Niwas" situated at Bandra, Bombay-50. There is hardly any dispute between the parties that one Gangaram Dhuri was the exclusive owner of the said property.
The said Gangaram Dhuri expired on 13th May, 1967. The fact that the said Gangaram died intestate is also not in dispute. At the time of his death, Gangaram was survived by his widow Sunderabai, his son Vishnu and four daughters namely, the Plaintiff and the third to fifth Defendants. According to the case of the Plaintiff, she herself and her sisters being illiterate allowed their brother Vishnu to look after the said property. It is the case of the Plaintiff that while said Vishnu was managing the said property, he obtained signatures of the Plaintiff and the third to fifth Defendants on several papers by making a representation that their signatures were required for transferring the said property in their joint names.
The widow of Gangaram, Sunderabai was not impleaded as a party to the suit. She died somewhere in the year 1972. Gangaram Dhuri’s son Vishnu was impleaded as the first Defendant who died in the year 1971.
Vishnu’s widow Laxmibai was impleaded as the legal representative of deceased Vishnu. It is an admitted position that Vishnu was survived by his widow, five daughters and two sons.
4. The Plaintiff’s husband received a letter dated 10th January, 1969 sent to him by the second Defendant alleging that the Plaintiff was in possession of room No.1 in the said property as the licensee of the deceased Vishnu. According to the Plaintiff she learned from the said letter for the first time that Vishnu had sold one half portion of the said property to the second Defendant without her consent. Plaintiff’s husband replied to the said letter by pointing out that he was a tenant in respect of the suit room No.1 and not a licensee. It was contended in the reply that the Plaintiff being one of the co-owners of the said property, the said transaction in favour of the second Defendant was not binding on her. The case of the Plaintiff is that she had undivided one fifth share in the said property alongwith Vishnu and third to fifth Defendants.
According to the case of the Plaintiff as Vishnu had no right to sell one half portion of the said property to the second Defendant, the sale deed in favour of the second Defendant was null and void. A suit for administration of the estate of deceased Gangaram was filed by the Plaintiff. Prayer clauses (a) to (c) in the plaint read thus:
"a) Estate and life of the deceased be ascertained and thereafter the same be administered by and under the direction of this Hon’ble Court; b) that
