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2016 Supreme(Bom) 1354
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Shri Shaikh Mustafa Yasin - Appellant
Versus
Shri Sharad Ganesh Tisgaonkar and Ors. - Respondents
SECOND APPEAL NO. 197 OF 2013 WITH CIVIL APPLICATION NO. 526 OF 2013 IN SECOND APPEAL NO. 197 OF 2013
Decided On : 13-10-2016
For the Appellant : Mr. D.M. Gupte.
For the Respondent: Mr. Jaydeep Deo.
Headnote:Civil Procedure Code, 1908 - Section 100-Powers of Court.-Court has power to mould reliefs and grant smaller reliefs than larger reliefs prayed by plaintiffs.
Hindu Succession Act, 1956 - Section 14(2)-Civil Procedure Code, 1908, Section 100-Right/ Title to property.-A person holding life interest in property, cannot create any right, title or interest of any nature.
The suit property originally belonged to "S". On 13th October, 1935, he executed a Will and granted life interest in 1/2 of his suit property each in favour of "P", his first wife and "G" his second wife. While interpreting said. Will, it was held that the two wives of said "S" had life interest in the suit house is binding on "P" daughter of "P" and "G" and the persons claiming through them. Since "G" herself had life interest in the suit property, after her demise, no party could claim any right, title and interest even in respect of half of the suit property through "G". A party who had life interest in the property cannot create any right, title or interest of any nature and more particularly transfer of the alleged ownership in favour of any third party.
The judgment dated 12th July, 1972 is binding on the parties, including the defendant, who is claiming through "G", who was admittedly the appellant in the said second appeal. The said judgment which squarely applied to the facts of this case is binding. Since the defendant had admittedly claimed to be in possession of only 4 Khans premises situated on the second floor of the suit property, the first appellate Court was right in passing a decree of possession against the defendant to the extent of the suit property illegally possessed by the defendant. Since "G" did not have any interest more than life interest in the half share of the suit property which life interest came to an end upon her demise, the first appellate Court thus rightly held that the defendant had no right, title of interest of any nature whatsoever in the suit property in his possession and has accordingly directed to hand over possession to the plaintiffs.
The first appellate Court has considered the oral and documentary evidence in right perspective and has rightly followed the judgment dated 2th July, 1972 in the second appeal and the findings being not perverse, cannot be interfered with in this second appeal, filed under Section 100 of the Code of Civil Procedure, 1908.
1. By this appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellant (original defendant) has impugned the judgment and decree dated 9th January, 2013 passed by the learned District Judge – 5, Pune, allowing the appeal (Civil Appeal No. 102 of 2007) filed by the respondents (original plaintiffs) and setting aside the judgment and decree passed by the learned Second Joint Civil Judge, Senior Division, Pune in Special Civil Suit No. 113 of 1994 dated 20th November, 2006 and partly allowing the said suit.
2. The learned District Judge – 5, Pune directed the appellant (original defendant) to deliver possession of 4 Khan premises situated at second floor, CTS No. 212, Nana Peth, Pune to the original plaintiffs on or before 15th April, 2015 and directed the defendant to deliver the symbolic possession of the share of Godubai to the extent of half share.
3. The first appellate Court also declared that the plaintiffs had acquired the right, title and interest in the suit property in pursuance of the Will Deed dated 13rd October, 1935 executed by Shankar Daji Tisgaonkar to the extent of half share and the right of Godubai. The first appellate Court declared that the Will Deed dated 18th April, 1988 executed by Godubai in favour of the defendant was illegal and not binding on the plaintiffs. The first appellate Court however, dismissed the prayer for damages to the extent of Rs.36,500/- claimed by the plaintiffs and ordered a separate enquiry for future mesne-profits under Order 20 Rule 12 of the Code of Civil Procedure, 1908. The first appellate Court also granted perpetual injunction against the defendant from alienating the portion of the house No. 212, Nana Peth, Pune. Some of the relevant facts for the purpose of deciding this appeal are as under :
4. The parties are referred in this judgment as per their original status before the trial Court.
5. It is the case of the plaintiffs that the land bearing CTS No. 212, situated at Nana Peth, Pune is the subject matter of the suit which property originally belonged to Shankar Daji Tisgaonkar. The said Shankar Daji Tisgaonkar had two wives i.e. first wife viz. Parvatibai and second wife viz. Godubai. A daughter i.e. Prayagbai was born from the wedlock of the said Shankar Daji Tisgaonkar with the first wife viz. Parvatibai. On 13th October, 1935, the said Shankar Daji Tisgaonkar executed a Will and granted life interest in ½ of his suit property each in favour of Parvatibai, his first wife and Godubai, his second wife. It is the case of the plaintiffs that in the said Will, it was also provided that after the demise of Parvatibai, their daughter Prayagbai through Parvatibai will have half of the property during her life time. It is the case of the plaintiffs that thereafter the suit property was to devolve from the legal heirs and representatives of the said Shankar Daji Tisgaonkar i.e. adopted son Ganesh.
6. On 16th October, 1935, the said Shankar Daji Tisgaonkar adopted Ganesh. There was no issue out of the wedlock of the said Shankar Daji Tisgaonkar with Godubai. It is the case of the plaintiffs that after the demise of Prayagbai, who had life interest in the half of the suit property, in which the legal heirs and representatives of the said Shankar Daji Tisgaonkar i.e. Ganesh had an exclusive right, title and interest in the suit property.
7. On 19th October, 1935, the said Shankar Daji Tisgaonkar expired. In the year 1949, the said Parvatibai, the first wife of the said Shankar Daji Tisgaonkar expired. In the year 1955, the said Prayagbai, daughter of Shankar Daji Tisgaonkar and Parvatibai filed a suit against Godubai, the second wife of the said Shankar Daji Tisgaonkar for possession of the entire suit property. The second appeal arising out of the said dispute between Prayagbai and Godubai (1190 of 1964) came to be filed in this Court by Godubai. By an order and judgment dated 12th July, 1972 passed by this Court in the said Second Appeal No.1190 of 1964
