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2013 Supreme(Bom) 1797
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
A.B. CHAUDHARI, J.
Jagannath Rangnath Chavan
Versus
Suman Sahebrao Ghawte & Others
Second Appeal No. 296 of 1990 with Civil Application No.12580 of 2010
Decided on: 10-09-2013
For the Appellant:V.D. Hon, Advocate.
For the Respondents:Umakant Deshmukh, h/for V.D. Salunke, Advocates.
Headnote:Hindu Succession Act, 1956 - ’ Karta ’ of joint Hindu family.
An eldest married daughter cannot be "karta" of joint Hindu family. - Coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qualifications to become the manager of a joint Hindu family.
It will be revolutionary of all accepted principles of Hindu law to suppose that the seniormost female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family ...........She would be the guardian of her minor sons till the eldest of them attains majority but she would not be manager of the joint family for she is not a coparcener.
Hindu Succession Act, 1956 - " Karta " of joint Hindu family.
Where " A" was eldest son of joint Hindu family, and eldest sister was married and living in her matrimonial home therefore after death of their father, ’A’ major son would be "karta" of family. - It is, thus, clear from the legal position that a female in normal circumstances and particularly as in the instant case when a male is available is not eligible to become a manager or Karta of the family, he being the son and, as such, it was only Tukaram the major son who was left Karta suijuris in the family. Hence, held that Tukaram was the only eligible and competent person of the family after the death of Nana to act as Karta/manager.
Hindu Succession Act, 1956 - Sale of joint Hindu family property.
Where concurrent finding of fact recorded by Courts below that sale deeds were executed out at legal necessity therefore sale of joint family property by son of deceased father upheld. - The finding of fact recorded by both the Courts below is legal and correct. The only ground of attack by the counsel for the respondents is that defendant did not prove that Tukaram had legal necessity. It is an admitted position that Nana had died on 19.7.1967 and the burden of maintenance of minor girl plaintiff No. 2 Shanti and her marriage fell on Tukaram so also for performing rituals upon the death of Nana. Tukaram still made a conditional sale deed and even repurchased the land but thereafter when the marriage of plaintiff No. 2 was to be performed, he had to give in and executed the sale deed (Exh. 108) for her marriage. Obviously there was nobody in the family to look after and maintain them. Eventually, Tukaram had also died in the year 1971 and the suit came to be filed two years thereafter by the respondents/plaintiffs. It is because of those sale proceeds, the marriage of plaintiff No. 2 could be performed. Hence Court answered the Question No. (I) in the affirmative.
1. Being aggrieved by the judgment and decree dated 2nd January, 1989 passed by learned District Judge, Ahmednagar in Regular Civil Appeal No. 6/1984 by which the decree of dismissal of Regular Civil Suit No. 17/1983 dated 30.11.1983 passed by the learned Civil Judge, Junior Division, Newasa was reversed and the lower Appellate Court passed the decree for partition and separate possession, the original defendant no.1, the appellant herein, had filed the instant Second Appeal in this Court.
FACTS:
2. Nana had three children – the only son by name Tukaram and two daughters-Suman (Plaintiff No.1) and Shanti @ Vimal (Plaintiff No.2). The two daughters had filed Regular Civil Suit No.17/1983 against the present appellant, who was defendant no.1 and another defendant, challenging the sale deed dated 28.3.1968 executed by their brother Tukaram in favour of the present appellant/defendant no.1 and, in the alternative, for partition and separate possession. Nana had died on 19.07.1967. The plaintiff no.1-Suman was already married and had gone to reside with her husband at her matrimonial place; whereas plaintiff no.2 Shanti @ Vimal was minor, who resided with Tukaram. Apart from other essential rites and rituals to be performed due to the death of Nana, Tukaram had, on his shoulder, the liability of marrying plaintiff no.2 Shanti @ Vimal since there was no other male member in the family except him. Initially Tukaram by conditional sale deed for a period of five years sold 1/3rd of the suit land on 29.12.1967 for a consideration of Rs. 15,000/- in favour of original defendant no.2-Janardhan Chavan. Thereafter, he sold the suit land on 28.3.1968 for Rs. 6,000/- to defendant no.1 after it was repurchased by him. As there was no other source of livelihood/ income to Tukaram, he applied the sale proceeds for performing rituals, maintenance of the family and for performing marriage of Shanti @ Vimal (Plaintiff No.2). Tukaram died on 03.12.1971. After his death, both the sisters had filed the above-referred Suit on 29.9.1973. The appellant (defendant no.1) filed his written statement and contested the claim made by the plaintiffs, principally on the ground that Tukaram, after the death of Nana, had became the Karta of the family, being the eldest son remaining in the family due to marriage of plaintiff no. 1 and for legal necessity, he was compelled to sell the suit land and the said transaction of sale was binding on the plaintiffs who could not have questioned the sale deed. The trial Court held that Tukaram was the Karta of the family and the legal necessity was duly proved and, therefore, the sale deed was binding and could not be questioned. As a sequel, the trial Court dismissed the Suit filed by the respondents/plaintiffs. The respondents/plaintiffs filed the Appeal being Regular Civil Appeal No. 6/1984 before the District Judge, Ahmednagar who set aside the judgment and decree of the trial Court and decreed the Suit by making partition and also declaring the sale deed in question to be not binding on the plaintiffs. Hence this Second Appeal.
3. In support of the Appeal, Mr.V.D. Hon, learned counsel for the appellant made the following submissions:-
(I) The lower Appellate Court committed an error in reversing the well-reasoned judgment made by the trial Court on the questions of fact and the questions of law.
(II) The lower Appellate Court recorded concurrent and clear finding of fact based on the evidence that there was legal necessity for selling the suit field. Despite this, according to Mr. Hon, the lower Appellate Court committed an error of law in holding that the plaintiffs had share in the suit property and the sale even if made for the legal necessity, would not bind the sisters of Tukaram and were entitled to the partition and separate possession which, according to him, constitutes substantial question of law.
(III) The concept of notional partition introduced by the lower Appellate Court with reference to proviso
