Friday, 13 November 2015

Case law relating to obtaining of declaration of civil death of person who is missing for seven years

I have  carefully considered  the submission  made by
Mr.   Gavnekar,   learned   counsel   for   the   appellants.   Here,   it   is
necessary   to   look   into   the   provisions   of   Section   108   of   the
Evidence Act, which reads thus:
“108.  Burden  of proving  that  person  is alive
who has not been heard of for seven years.—
Provided that when the question is whether a man
is alive or dead, and it is proved that he has not
been heard of for seven years by those who would
naturally have heard of him if he had been alive,
the burden of proving that he is alive is shifted to
the person who affirms it." 
It   is   not   in   dispute   that   the   husband   of   plaintiffSulochana
went missing in the year 1997 about which report was
lodged to the Police Station concerned.  It is also not in dispute
that the period of seven year was completed in the year 2004.
And she filed a suit in the year 2006 for declaration of the civil
death of her husband.   There is no dispute about the fact that
Rajiv, husband of Sulochana went missing from 1997 and is not

traced or heard for about seven years from 1997 nor it is the case
of the appellants to the contrary. Section 108 of the Evidence Act
does not contemplate any declaration by civil court for civil death
of the person.  On the contrary, she went to the Court after seven
years for a declaration which declaration would obviously operate
upon completion of the period of seven years.  Therefore, in my
opinion,   the   date   of   decree   of   declaration   of   civil   death   is
absolutely   of   no   relevance.   Here,   it   will   be   relevant   to   read
observations of the Hon'ble apex Court in para 14 of the judgment
in the case of L.I.C. of India..vs..Anuradha; AIR 2004 SC 2070,
which are as under:
“On   the   basis   of   the   above   said   authorities,   we
unhesitatingly arrive at a conclusion which we sum
up   in   the   following   words.   The   law   as   to
presumption of death remains the same whether in
Common   Law   of   England   or   in   the   statutory
provisions contained in Sections 107 and 108 of the
Indian   Evidence   Act,   1872.   In   the   scheme   of
Evidence   Act,   though   Sections   107   and   108   are
drafted as two Sections, in effect, Section 108 is an
exception to the rule enacted in Section 107. The
human life shown to be in existence, at a given
point of time which according to Section 107 ought
to be a point within 30 years calculated backwards

from the date when the question arises, is presumed
to continue to be living. The rule is subject to a
proviso or exception as contained in Section 108. If
the persons, who would have naturally and in the
ordinary   course   of   human   affairs   heard   of   the
person in question, have not so heard of him for
seven years the presumption raised under Section
107 ceases to operate. Section 107 has the effect of
shifting the burden of proving that the person is
dead on him who affirms  the fact.  Section  108,
subject to its applicability being attracted, has the
effect of shifting the burden of proof back on the
one who asserts the fact of that person being alive.
The   presumption   raised   under   Section   108   is   a
limited presumption confined only to presuming the
factum of death of the person who's life or death is
in issue. Though it will be presumed that the person
is dead but there is no presumption as to the date
or time of death. There is no presumption as to the
facts   and   circumstances   under   which   the   person
may have died. The presumption as to death by
reference to Section 108 would arise only on lapse
of seven years and would not by applying any logic or
reasoning be permitted to be raised on expiry of 6 years
and 364 days or at any time short of it.     An      occasion
for raising the presumption would arise only when
the question is raised in a Court, Tribunal or before
    an     authority     who     is     called     upon         to

decide as to whether a person is alive or dead.
So   long   as   the   dispute   is   not   raised   before   any
forum and in any legal proceedings the occasion for
raising the presumption does not arise.”
In   the   light   of   the   above   discussion,   the   answer   to
question no.1 must be in the negative, which I do.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Second Appeal No.119/2013
Mr. Santosh Popat Chavan,

...V E R S U S...
Mrs. Sulochana Rajiv @ Raju Chavan,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.

Date of pronouncing the judgment: 12.12.2014
Citation; 2015(5) ALLMR 604

1. Since these two appeals involve common legal question
of importance, they have been taken together for hearing and final
disposal with consent of the counsel for the rival parties and in
accordance   with   order   dated   15.09.2014   in   Second   Appeal
No.405/2013.

2. Mr. P. N. Joshi, learned counsel was requested to act as
Amicus Curiae when order was made on 15.09.2014.  Thereafter,
on the request from this Court, Mr. Anil V. Anturkar, Mr. Rajiv
Patil, Senior Advocates and Mr. C. G. Gavnekar, Advocates also
participated in the hearing for assisting this Court.
FACTS:
Second Appeal No. 119/2013
3. The plaintiff­respondent herein, Sulochana wd/o Rajiv
@ Raju Chavan filed Regular Civil Suit No. 1773/2006 in the
court of Civil Judge Senior Division, Pune for partition, perpetual
injunction   against   the   brothers   and   sister   of   her   deceased
husband.  Briefly stated, her case was that her husband Rajiv was
brother of defendants Santosh, Mohan, Madhukar and their sister
Mrs.Nanda and had a share in the suit property being ancestral
property.  On 28.05.1997, Rajiv @ Raju, husband of the plaintiff,
left the house situated at Sarve Nagar, Pune and never returned.
She reported the matter to police, who took missing entry no.
116/1997.  Despite thorough search, Raju could not be found out.
Since more than 10 years had already passed from the date Rajiv
went missing, she was entitled to claim share in the undivided suit

property and, therefore, she filed suit for partition and separate
possession.   The   plaintiff   had   also   filed   Regular   Civil   Suit
No.1780/2006 for a decree of declaration about the civil death of
husband   and   she   got   the   said   declaration   on   31.07.2007.
Simultaneously, she had also filed the instant suit for partition.
4. Having obtained the said decree for declaration of civil
death of her husband, she filed the decree in the  suit for partition
being Reg. C. S. No.1773/2006.  The partition suit was resisted by
respondents on the ground that the plaintiff had no right to file
the civil suit for   claiming any share.   That the plaintiff had no
cause of action to file the suit for partition or to claim any share in
the property of her absconding husband.   That all the brothers,
including the deceased Raju had agreed to sell the suit property to
one   Hari   Binawat   by   executing   agreement   of   sale   dated
19.01.2000 of which the respondents had received earnest money.
The   appellant,   therefore,   stated   that   the   suit   was,   therefore,
required to be dismissed.
5. The lower  appellate court­District Judge, Pune, while
deciding the two appeals, upheld the judgment of the trial court,

insofar as the right to ask for partition by the plaintiff is concerned
but   modified   the   decree   to   some   extent   by   relying   upon   the
judgment   in   the   case   of  Ms.Vaishali   Satish..vs..   Satish
Ganorkar; 2012 (2) ALL MR 737 in which it was held that the
date of opening of succession was relevant date and if succession
had opened prior to the Amendment Act of 2005, the amended
Act would have no application.   The lower appellate court also
held   that   the   appellant­defendant   no.4­Mrs.   Nanda,   who   was
daughter   of   Dnyanoba,   had   already   married   and   was   residing
separate from 26.10.1991 and, therefore, she was not coparcener
as per the prevailing law and, therefore, she could claim share
with her brothers only in the share of her father. 
Being aggrieved by judgment of the two courts below,
the unsuccessful defendants have filed this Second Appeal.
Second Appeal No. 405/2013
6. The plaintiff­Smt. Chanda Hanmant Karne, an issueless
widow of Hanumant filed Regular Civil Suit No.8/2007 in the
court of Civil  Judge  Junior Division,  Phaltan for partition  and
separate possession in respect of the ancestral suit property.   It
was her case that the defendant no.1 was her father­in­law while
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other defendants were his children.  The deceased Hanumant has
expired on 31.10.2003 and she was thus alone, living with the
joint family of the defendants, working with the defendants but
then before 7­8 months of filing of the suit, she was driven out of
the house at Sonwadi by brothers of her husband.   Hence, she
filed the suit for partition and possession as the defendants denied
to give any share to her in the suit property.
7. The suit was resisted by the defendants on the ground
that the same was not maintainable as there was no enabling
provision for a widow to file the suit under the Hindu Succession
Act, 1956, (For short the “Act of 1956”). In fact, such a provision
existed in Section 3 (3) of the Hindu Woman's Right to Property
Act, 1937 (For short the “Act of 1937”).  The suit was resisted on
the ground that the property was self acquired and not the joint
family property and was not liable to be partitioned. The trial
court   decreed   the   suit   in   part   and   the   lower   appellate   court
confirmed the decree passed by the trial court and also modified
the decree to the extent of shares of the parties to the suit.  Hence,
this second appeal.
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ARGUMENTS:
8. Mr.   C.   G.   Gavnekar,   and   Mr.   Satish   Raut,   learned
counsel for the appellants in both these second appeals, made the
following submissions:
(i) In the case of Ananda Krishna Tate since deceased by
Legal Heirs..vs..Draupadibai Krishna Tate and others; 2010 (1)
BCJ 714, a learned Single Judge of this Court has taken a view
that a Hindu woman (mother, in that case) has no right to file the
suit for partition under the provisions of the Act of 1956, which
was earlier available as per Section 3 (3) of the Act of 1937.  In
the absence of any other coparcener in the joint family demanding
partition of the joint family property, the suit on her own was not
maintainable.   None of the courts below have noticed the said
judgment of the learned Single Judge and, therefore, the   suits
ought   to   have   been   dismissed   as   admittedly   none   of   the
coparceners in the family had demanded any partition and the
widows in both these second appeals went ahead and filed suits in
the absence of any enabling provision for doing so.
(ii) In   Second   Appeal   No.119/2013,   plaintiff­Sulochana
filed a suit for partition  in the year 2006 when there was no
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declaration about civil death of her husband from any competent
court, for which she had already filed the suit No.1780/2006.  She
has got the declaration only on 31.07.2007 and, therefore the suit
filed for partition in the year 2006 was premature and untenable
in law, therefore there was no cause of action for filing the suit.
(iii) The judgment rendered by the learned Single in the
case of Ananda's case (supra) is the correct view of the matter in
that   the   Parliament   was   fully   aware   about   the   then   existing
provision of Section 3 (3) of the Act of 1937 but still decided not
to make a provision of such a nature in the Act of 1956 though the
Act of 1937 was repealed.  The Act of 1956 would have provided
remedy to a widow, mother or woman alike the one provided by
Section 3 (3) of the Act of 1937 enabling the widow, mother or a
woman  to  file  a  suit  on  her   own  without  another  coparcener
demanding the partition of the property.
(iv) The personal laws of Hindus cannot be tested on the
anvil of Article 14 or any other Constitutional provisions since the
personal   laws   of   Hindus   are  not  subject   to   or   are   out   of   the
perview of Constitutional provisions including fundamental rights.
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(v) The concept of coparcener and the joint family as per
the ancient Hindu law is distinct and clear and only male could
become  the  coparcener   of   the   family  and   females   were   never
recognized as coparceners in the family.  It is a different matter
that the daughters have been given similar status like the sons, of
late either by the State Legislature or by the Parliament in the year
2005.  But then the status given to the daughters as coparceners
or right by birth, cannot be extended to other categories of women
including a widow or mother since Parliament did not think so
while amending the Hindu Succession Act.
(vi) Under the  Hindu Law, the logic was that a woman
comes after marriage from a family which is stranger and in case
her husband dies, the woman could not be allowed to destroy the
jointness of the family or create dispute about the property unless
and until the other coparcener in the family ask for partition.  This
being  the   personal   law  of  Hindus,  the   question   of   allowing   a
woman  to  lodge  a suit  for  claiming right  by way  of  partition
would not arise.
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(vii) The right that was given under the Act of 1937 to a
woman was only for a 'limited estate' and could seek nothing
more than the limited estate; and after her death reversion would
take place and this limited right given to the woman under section
3(3) of the Act was also fluctuating and would come to an end
after her death.  It is thus for the survival of the woman, limited
right was given by Section 3(3) of the Act of 1937 and not for
creating any perpetual right in the property even of her deceased
husband.  
(viii) Section  14, that was introduced in the Act of 1956
merely gives a right to a woman in respect of the property, which
she had been in possession in lieu of maintenance as absolute
right but then mere grant of absolute right by virtue of Section 14
(1) would not partake the character of the woman asking for a
partition   in   the   joint   family   property   since   these   are   separate
issues.
(ix) The judgment rendered by the learned Single Judge in
Ananda's case is not per incuriam and if at all a contrary view is to
be   taken,   reference   should   be   made   for   constitution   of   larger
Bench or the issue should not be touched.
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(x) Article 14 of the Constitution of India, even otherwise,
will have no application since every female being the daughter of
her father would obviously get share in her father's property, in
her relationship as sister with her brothers, in accordance with the
amending law providing the status of coparcener to a daughter
and,   therefore,   the   question   of   discrimination   does   not   arise.
Mr.Gavnekar,   therefore,   submitted   that   the   appeal   should   be
allowed holding that the suit filed by the widow was not tenable.
(xi) Mr. Gavnekar then contended that the husband of the
plaintiff­Sulochana w/o Rajendra @ Raju Chavan went missing
from 28.05.1997 and seven years would expire on 28.05.2004 and
the suit that was filed for declaration about the civil death of her
husband was decreed on 31.07.2007 but the suit was filed before
the said declaration was obtained by the widow in the year 2006
and,   therefore,   there   was   no   cause   of   action   for   the   widow
namely; Sulochana to file suit.  Hence, the suit should not have
been entertained on that count also.
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9. Per contra, Mr. Joshi, learned Amicus Curiae appointed
by   this   Court,   submitted   that   Parliament   amended   the   Hindu
Succession Act providing status as coparcener to a daughter on
the   ground   that   there   should   be   upliftment   of   a   woman,   in
accordance with the constitutional provisions. There is no reason
why a widow or a mother who is also a woman like a daughter,
should be deprived of the remedy of obtaining her right to get
property  from  the  share  of  her  husband.  Mr. Joshi,   therefore,
submitted that such a right must be given to the woman or widow
or mother, enabling her to file a suit as her right to get share in
the suit property due to her husband cannot be defeated merely
because the other coparceners did not demand partition. Mr.Joshi,
however, contended that the issue is, therefore, clearly not within
the domain of the courts of law and hence in the absence of
necessary amendment to the Hind Succession Act, the remedy for
a widow cannot be made available.  Referring to Section 4 (1) (a)
of the Act, Mr. Joshi, then contended that the laws inconsistent
have no effect. He also referred to Section 23 of the Act in relation
to the dwelling house and omission thereof by amendment by
Parliament.  
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10. Mr. Patil, learned Senior Advocate for the respondents,
relying on decision in the case of  V. Tulasamma & Ors ..vs..
V.Sesha Reddi (Dead) By L. Rs. 1977 (3) SCC 99, contended that
right to a widow should not be frustrated by holding that she had
no remedy in law.
11. Mr. Anturkar, learned Senior Advocate  appearing as
Amicus Curiae for assisting the court on the request of the Court,
made the following submissions.
(i) The judgment rendered by the learned Single Judge in
the case of Ananda is clearly per incuriam and must be held so.
The reference to the larger Bench should not be made since the
judgment is per incuriam.  
(ii) There   is   no   need   to   hold   that   there   should   be
amendment to the Hindu Succession Act for providing remedy to
a   widow,   mother   or   woman   for   recovering   the   property   as   a
member of the joint family, after his death. Undoubtedly, the right
to property to a widow is provided after death of her husband
equally with his other brothers and, therefore, it cannot be said
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that   the   said   right   should   not   be   allowed   to   be   exercised   by
allowing a widow to file a suit on her own since in that case, the
right   would   get   automatically   frustrated   which   was   never   the
intention of the Legislature that is to provide right but not the
remedy for recovery of such property.
(iii) The doctrine of  ubi jus ibi remedium  must be pressed
into service to hold that the widow/woman has right to file suit
for partition in order to recover the property due to her husband
in joint family notwithstanding the fact that the other coparceners
in the joint family do not desire to have the partition.  The reason
is   that   such   a  widow   has   an   independent   right   given   by   law
through her husband to have a share in the property of the joint
family of her husband.
(iv) The right to have a share in the property through her
husband   provided   to   a   widow   cannot   be   made   nugatory   by
projecting an artificial distinction that the Act of 1956 does not
provide enabling provision to a widow, mother or a woman to file
suit on her own or independently in the court of law seeking
partition of the share of her deceased husband.
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(v) Mr.   Anturkar,   learned   Senior   Advocate,   vehemently
contended that there is no prohibition in the Hindu Succession
Act, 1956 prohibiting a claim of widow or mother of filing the suit
independently   on   her   own   for   share   in   the   property   of   her
husband.   No such prohibition can be read in the Act of 1956
merely because similar provision of Section 3 (3) in the Act of
1937 was not brought in the Act of 1956.
(vi) The judgment in the case of  Ananda  is  per incuriam
since for the said proposition, the learned Single Judge also relied
on the decision in the case of  Gurupad Khandappa Magdum
..vs.. Hirabai Khandapa Magdum and ors.; AIR 1978 SC 1239
when the ratio decidendi in the case of Gurupad is not what the
learned   single   Judge   has   understood   and   held.   The   case   of
Gurupad  (supra)   was   the   one   of   notional   partition   or
interpretation   of   provision   under   section   6   of   the   Hindu
Succession Act and the said decision is not on the point where a
widow could independently file suit for partition of the property.
The learned Single Judge in Ananda's case, therefore, was wrong
in holding that it was so held in Gurupad's case that the widow
does not have right to file suit independently or for her own for
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partition or unless such partition is demanded by other coparcener
in  the  family.    The  very foundation  of  reliance  placed by the
learned Single Judge in Ananda's case is, therefore, faulty and the
said judgment should be held to be per incuriam.
He   cited   decision   in   the   case   of  Commissioner   of
Income Tax.vs.Sun Engineering Works (P) Ltd.(1992)4 SCC363,
particularly paragraph no. 39 on this aspect.  
(vii) Mr.   Anturkar   then   contended   that   the   question   of
making any recommendation to the Law Commission for seeking
any  amendment  to   provide   remedy   to   file   suit   does  not   arise
because that is not necessary.  On the contrary, according to him,
the right to get share in the property of her husband is provided
by law by the Act of 1956 and, therefore, in the absence of any
prohibition in the Act of 1956 to file suit on her own, it will have
to be held that an ordinary civil remedy is available to her under
ordinary civil jurisdiction.
(viii) Distinguishing the scheme of Section 3 (3) of the Act of
1937, Mr.Anturkar, submitted that the said provision was inserted
because the woman did not have any right to have any property
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even for her maintenance and was left to starve whereas under
the Act of 1956 she gets the share of her deceased husband in
entirety as a class­I heir.  This being the clear distinction, there is
no propriety or reason to give any importance to the fact that
similar provision like Section 3(3) of the Act of 1937, was not
brought into the Act of 1956.  Section 3 (3) provides for limited
estate, which would revert back after her death but then under the
Act of 1956 that is not the position.
(ix) Mr. Anturkar, then  referred to the  history of Hindu
personal law right from 1929 and the Constitutional provisions
including various judgments of the apex Court and the obligation
of the State to provide laws for uplifting the status of women. 
(x) Lastly, Mr. Anturkar, submitted that it would be wholly
unjust to hold that the widow has right to share in her husband's
joint family property but will have no right to get the same by
filing the suit for partition against the members of the joint family
and,   therefore,   according   to   him,   this   Court   should   take   a
pragmatic view of the matter.
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CONSIDERATION:
12. I have heard learned counsel for the rival parties as
well as learned Amicus Curiae Mr. P. N. Joshi, Mr. Anil Anturkar
on a few dates.  I have carefully heard Mr. Gavnekar, Mr. Patil,
learned counsel for appellants.  I have perused the entire record.
Upon   hearing   learned   counsel   for   the   rival   parties,   following
substantial questions of law arise for determination.
(i) Whether the suit filed by plaintiff­Sulochana
in the year 2006 for partition namely; Regular Civil
Suit   No.1773/2006   was   premature,   the   same
having been filed without she having declaration
about the Civil death of her husband Rajiv and,
therefore, the suit did not have any cause of action
and was liable to be dismissed?
Answer:­ No.
(ii) Whether   the   widow­Sulochana,   plaintiff   in
Regular Civil Suit No. 1773/2006, Smt. Chanda in
Regular Civil Suit No. 8/2007, could file the suit for
partition and separate possession in respect of the
claim for share of their respective husbands in the
suit   property   held  by   defendants   in   the  wake  of
decision in the case of Ananda (supra) and if yes,
whether   consequentially   decision   in   the   case   of
Ananda is per incuriam?
Answer:­  Yes.
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(iii) Whether the widow can file a suit on her own
for   claiming   the   share   of   her   husband   in   the
ancestral property of joint family of her husband in
the   absence   of   other   coparcener   in   the   family
deciding to partition the joint family property?
Answer:­ Yes.
As to question nos. 2 & 3:
13. In the case of Ananda, the learned Single Judge of this
Court was required to decide,  “Whether a mother has right to
institute a suit for partition and separate possession and to set aside
alienation made by the sons?”   In that case, the facts were that
Draupadibai, mother of Ananda instituted a suit for partition and
separate possession and also prayed for setting aside alienation
made by her sons.   The property was admittedly the ancestral
property.  The learned Single Judge held thus, 
“9. …..Neither a wife nor a mother has a right to
file a suit for setting aside alienation since she does
not have right by birth in the co­parcenery property
at all. Right to her to have a share in the joint
family property accrues to her only when the coparceners
  decide   to   partition   the   joint   family
property otherwise she is bound to be joint with her
sons.   This   suit   at   the   instance   of   mother   is,
therefore,   not   maintainable   for   setting   aside
alienation.” 
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It was further held in para 10 as under:
“10. This takes me to consider the third substantial
question of law. A male member of the Hindu Joint
Family   is   a   copracener   under   the   Hind   Law.
Although   by   recent   amendment   to   the   Hindu
Succession  Act by Government  of Maharashtra  a
female is also to be treated as co­parcener, We are
required to take into the position of 1978, when
suit   was   filed.   In   1978,   however   only   a   male
member   of   the   joint   family   was   treated   as   a
coparcener. Under Shastric Hindu Law a female did
not have a right to claim partition of joint family
property.   I   may   quote   here   the   commentary   of
Mullas Hindu Law in 20th Edition, Para 315 :­ 
"A mother cannot compel a partition so
long as to sons remain united. However,
if a partition  takes place between  the
sons, she is entitled [except in Southern
India (Madras state)] to a share equal to
that   of   a   son   in   the   coparcenary
property. She is also entitled to a similar
share on a partition between the sons
and   the   purchaser   of   the   interest   of
more or more of them. 
Where unmarried son sued his two brothers for
partition, but died during the pendency of the suit
and   the   mother   was   brought   in   as   the   legal
representative, she was held entitled only to his
share and not a mother's share" 
It is therefore clear that mother did not have a
right under old Hindu Law to compel a partition.”
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In the same judgment, in para 13 it is held as under:
“Subsection (3) of Section 3 no doubt gave a right
to the woman to seek partition. However, this Act
has been repealed by Hindu Succession Act 1956.
Krishna died in 1959. Therefore the plaintiff cannot
take advantage of Section 3 of the Hindu Women's
Right to Property Act. If the provisions of Hindu
Succession Act 1956 are read, it would be clear that
there is no provision similar to subsection (3) of
Section 3 of the Hindu Women's Right to Property
Act. The legislature in its wisdom has not thought it
fit   to   continue   this   right   in   a   woman.   It   was
contended that section 14 of Hindu Succession Act
makes a  woman full  owner  of the property  and
therefore it must be assumed that a woman has a
right to seek partition. This argument has no force.
What Section 14 did was to confer upon a woman
to own absolutely a property in possession which
she got against her right of maintenance or for preexisting
right. Section 14 has no application.” 
The   learned   Judge   then   relied   on   the   following
observations   of   the   apex   Court   in   the   case   of  Gurupad
Khandappa   Magdum  (supra)   for   supporting   the   conclusion
arrived at in the case of Ananda's case.
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"The   Plaintiff   not   being   a   co­parcener   was   not
entitled to demand partition." If these observations
are considered, to my mind, the Plaintiff did not
have a right to claim partition of the joint family
property at all. I have not referred to the judgment
of this Court in AIR 1975 Bombay 257 since the
very same judgment is referred to in AIR 1978 SC
1239. The suit itself was misconceived.”
14. From   the   perusal   of   the   reasons   recorded   by   the
learned Single Judge, it is clear that the reliance was placed on
the decision in the case of Gurupad's case (supra).  Reading of the
decision in the case of Gurupad and as argued by Mr. Anturkar,
learned Amicus Curiae, it appears that the  ratio decidendi of the
said  decision was interpretation of proviso and explanation­I to
Section   6   of   the   Hindu   Succession   Act   and   the   mode   of
determination,   in   particular,   with   reference   to   the   notional
partition in the family.   The question, “whether a widow would
have right to file the suit after coming into force of the Act of
1956” did not even fall for consideration of the apex Court and,
therefore, in my opinion, that was not the  ratio decidendi of the
case.
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15. The ratio of the decision in the case of Gurupad's case,
in my humble opinion and with due respect to the learned Single
Judge, was not correctly appreciated. Here, it will be relevant to
see the observations of the Hon'ble Supreme Court in the case of
Commissioner of Income Tax (supra) wherein, in paragraph 39 it
is observed thus:
“39. Such an interpretation would be reading that
judgment   totally   out   of   context   in   which   the
questions arose for decision in that case. It is neither
desirable   nor   permissible   to   pick  out   a   word   or   a
sentence from the judgment of this Court, divorced
from   the   context   of   the   question   under
consideration and treat it to be the complete 'law'
declared by this Court. The judgment must be read
as a whole and the observations from the judgment
have to be considered in the light of the questions
which  were before  this  Court.  A  decision  of  this
Court takes its colour from the questions involved in
the case in which it is rendered and while applying
the decision to a later case, the courts must  carefully
try to ascertain the true principle laid down by the
decision of this  Court and not to pick out words or
sentences   from   the   judgment,   divorced   from   the
context of the questions under consideration by this
Court, to support their reasonings. In Madhav Rao
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Jiwaji Rao Scindia Bahadur and Ors. v. Union of
India this Court cautioned: 
“It   is   not   proper   to   regard   a   word,   a
clause   or   a   sentence   occurring   in   a
judgment of the Supreme Court, divorced
from   its   context,   as   containing   a   full
exposition of the law on a question when
the   question   did   not   even   fall   to   be
answered in that judgment.”
16. My   above   observations   are   also   fortified   by
observations   in   paragraph   10   of  State   of   Maharashtra..vs..
Narayan  Rao Sham  Rao  Deshmukh  & others;(1985)  2 SCC
321; wherein the Hon'ble apex Court, after having considered the
case of Gurupad (supra), observed thus:
“10. We   have   carefully   considered   the
above decision and we feel that this case has to be
treated as an authority for the position that when a
female member who inherits an interest in the joint
family property under Section 6 of the Act files a
suit for partition expressing her willingness to go
out of the family she would be entitled to get both
the interest she has inherited and the share which
have been notionally allotted to her, as stated in
Explanation I to Section 6 of the Act. But it cannot
be an authority for the proposition that she ceases
to be a member of the family on the death of a male
member of the family whose interest in the family
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property  devolves  on  her  without  her volition  to
separate   herself   from   the   family.   A   legal   fiction
should no doubt ordinarily be carried to its logical
end to carry out the purposes for which it is enacted
but it cannot be carried beyond that.”
Even   in  Gurupad's  case,   the   apex   Court   clearly
expressed in paragraph 14 as under:
“14. …..By restricting  the operation of
the fiction created by Explanation I in the manner
suggested by the appellant, we shall be taking a
retrograde step, putting back as it were the clock of
social reform which has enabled the Hindu Woman
to acquire an equal status with males in matters of
property. Even assuming that two interpretations of
Explanation   I   are   reasonably   possible,   we   must
prefer   that   interpretation   which   will   further   the
intention of the legislature and remedy the injustice
from which the Hindu women have suffered over
the years.”
17. The   observation   relied   upon   by   the   learned   single
Judge, quoted above from the Gurupad's decision, may not even
amount to  obitar dicta.   It is true that under the  Shastric  Hindu
law, a female did not have a right to claim partition of a joint
Hindu family property and would be entitled to a share equal to
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that of a son only on partition between the sons.  It is also true
that Section 3 (3) of the Act of 1937 was enacted to give a right to
a widow or a woman for demanding partition but the same was
for a limited estate.   However, with the advent of Act of 1956,
which materially altered the Hindu Personal Law with regard to
the succession, the widow has been placed as a Class­I heir  of her
husband in the Schedule.  In other words, by virtue of a widow
being a Class­I heir in the Schedule, under Act of 1956, she would
be entitled to succeed to the entire share of her deceased husband
in the joint property or ancestral property of the family with the
same magnitude of estate, which her husband would have got had
he been alive.  In other words, her right to get an estate after the
death of her husband like that of other coparceners in the family
has been fully recognized and accepted by the Act of 1956.  The
concept of limited right or the concept of reversion after her death
also stood abolished upon enactment of the Act of 1956 and as a
result, she can deal with the property of her husband without any
threat of reversion of her estate to the family of her husband.  The
right, that was given by Section 3 (3) of the Act of 1937, however,
was of limited extent, in that, after her death, the property would
revert back to the family of her husband.
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18. To trace the relevant history, it would be appropriate to
quote   the   following   observations   in   paragraphs   15   and   17   in
Thota   Sesharathamma   and   another..vs..Thota   Manikyamma
(Dead) by LRs and others; (1991) 4 SCC 312   in which the
Supreme Court gave the historical background.   Paragraphs 15
and 17 read thus:
“15. Sir   Henry   Maine   in   his   "Earlier   History   of
Institutions" at p. 339 stated that, "the degree in
which personal immunity and proprietory capacity
of women are recognised in a particular state or
community is a test of the degree of the advance of
its civilisation. It is, therefore, clear that the esteem
in which woman is held, the status occupied by her
in society and the treatment meted out to her are
regarded as index to the degree of civilisation and
culture attained in a country. Manu in his Smriti,
Chapter   III   Verses   55   to   57   stated   that   where
women are honoured and adorned there Gods are
pleased,  but   where  women   are   not   honoured   no
sacred fire yields rewards. What is the status held
by   women   in   the   Hindu   society   is   a   matter   of
history reflected from Vedic culture, Smrities, the
Shastric law, the statutory provision and ultimately
converged and recognised in the supreme law of the
land, i.e. egalitarian socialist Indian Constitution.
16. …..
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17. In Vedic society woman enjoyed equal status
economically, socially and culturally with men, vide
p. 335,339 and 409 of The Position of Woman in
Hindu   Civilization,   (1955   Edn.)   by   Altakar.   He
stated   that   initiation   to   education   upanayanam
was performed in Vedic period to the girls as well as
boys.   Women   studied   the   Vedas,   even   composed
Vedic rhymes. They participated in public life freely.
Vishvavara, Apala, Lopamudra and Shashayasi are
only   few   examples   in   the   initial   Vedic   period.
Thereafter   Ghosha,   Maitrai   and   Gargi   occupied
price of place for equality in intellectual excellence
and equal status with men. Selfishness and male
chauvinism made woman to gradually degrade and
were given no voice even in the settlement of their
marriages or so on. She was denied participation in
public   affairs.   Though   Yajnavalkya   was   a
proponent   to   her   economic   status   but   ultimately
Manu Smriti took firm hold and in Chapter IX Verse
18, Manu stated that woman had no right to study the
Vedas.   Thereby,   denied   the   right   to   education,
fundamental human right to  acquire knowledge and
cultural and intellectual excellence. In Chapter IX Verse
149, he stated that woman must not seek. separation
from father, husband or  son and bondaged her for
ever.   In   Chapter   IX   Verse   45,   the   husband  was
declared to be one with the wife that the wife can seek
no divorce but allowed immunity to a male to discard
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an unwanted wife. All through the ages till Hindu
Marriage   Act   was   made   a   male   was   allowed
polyandry. In Chapter IX Verse 416, he stated that
a wife, a son and a slave are declared to have no
property and if they happened to acquire it would
belong to male under whom she is in protection.
Thus she was denuded or her right to property or
incentive   to   decent   and   independent   living   and
made her a dependent only to rare children and
bear the burdens. When she becomes a widow, she
was declared to have only maintenance and if in
possession of her husband's property or coparcenery,
to be (sic have( a widow's estate with reversionery
right to the heirs of last male holder. Fidelity was a
condition   precedent   to   receive   maintenance.   In
Chapter   IX   Verse   299,   he   prescribed   corporeal
punishment to a wife who commits faults, should be
beaten with a rope or a split bamboo. If she was
murdered it was declared to be an Upapattaka that
is a minor offence vide Chapter XI Verse 67. I did
not adhere to literal translation but attempted to
portray their sweep and deep incursion on social
order. Thus laid firm foundation to deny a Hindu
female of equality of status. opportunity and dignity
of person with no independent right to property and
made her a subservient, socially, educationally and
culturally. Widows were murdered by inhuman Sati
and now by bride burnings.”
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In the same decision, the apex court further stated in
paragraph 20 thus:
“20. To   enliven   and   alongate   this   constitutional
goal   to   render   socioeconomic   justice,   to   relieve
Hindu   female   from   degradation,   disabilities,
disadvantages and restrictions under which Hindu
females have been languishing over centuries and to
integrate them in national and international life,
Bharat Ratna Dr. Baba Saheb Ambedkar, the first
Law   Minister   and   rounding   father   of   the
Constitution drafted Hindu Code Bill. The Hindu,
Marriage   Act,   Adoption   and   Maintenance   Act;
Minority and Guardianship Act and Succession Act
1956,   for   short   'the   Act'   became   a   part   of   this
package.  They   ensue   equal   status   and   socioeconomic
  justice   to   Hindu   female.   In   a   socialist
democracy governed by rule of law, law as a social
engineering should bring about transformation inthe
  social   structure.   Whenever   a   socio­economic
legislation or the rule or instruments touching the
implementation   of   welfare   measures   arise   for
consideration, this historical evidence furnishes as
the   foundation   and   all   other   relevant   material
would be kept at the back of the court's mind.” 
The case of Thota   Sesharathamma is a   classic  example
of interpretation of Section 14 of the Hindu Succession Act, 1956.
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Preamble of the Constitution, which guarantees to all its citizens
justice, social, economic and political, read with Article 15 (3) and
further if Article 39 (e) is kept in mind, which finds place due to
the   advent   of   the   Constitution,   the   following   observations   in
paragraph 21 of the said judgment, which are relevant, read thus:
“21. …..when   this   Court   upheld   the   validity   of
Section 14(1) on the anvil of Article 15(3) what
should   be   the   message   thus   intended   to   be
conveyed?   It   would   mean   that   the   court   would
endeavour   to   give   full   effect   to   legislative   and
constitutional vision of socio­economic equality to
female   'citizen   by   granting   full   ownership   of
property to a Hindu female. As a fact Art. 15(3) as
a fore runner  to  common  code  does animate  'to
'make   law   to   accord   socio­economic   equality   to
every female citizen of India, irrespective of religion,
race cast or region.”
19. The Supreme Court, in  C. Masilamani Mudaliar &
others   ..vs..   Idol   of   Sri   Swaminathswami   Swaminathswami
Thirukoil & others; (1996) 8 SCC 525,  went ahead in laying
down the principle for interpretation in the light of Constitution
while overruling observations in the case of  Gumpha..vs..Jaibai
(1994) 2 SCC 511 and in paragraph 15 held thus:
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“15. It   is   seen   that   if   after   the
Constitution came into force the right to equality
and dignity of person enshrined in the Preamble of
the Constitution, Fundamental Rights and Directive
Principles which are a Trinity intended to remove
discrimination   or   disability   on   grounds   only   of
social   status   or   gender,   removed   the   pre­existing
impediments  that stood in the way of female or
weaker segments or the society.  In S.R. Bommai v.
Union of India   this Court held that the Preamble is
part   of   the   basic   structure   of   the   Constitution.
Handicaps should be removed only under rule of
law to enliven the Trinity of justices equality and
liberty with dignity of person. The basic structure
permeates equality to status and opportunity.  The
personal   laws   conferring   inferior   status   on
women is anathema to equality. Personal laws
are derived not from the Constitution but from
the religious scriptures. The laws thus derived
must  be consistent   with the Constitution lest
they   became   void   under   Article   13   if   they
violated fundamental rights. Right to equality is
a   fundamental   right.   Parliament,   therefore,   has
enacted   Section   14   to   remove   pre­existing
disabilities fastened on the Hindu female limiting
her  right to property without full ownership  thereof.
The   discrimination   is   sought   to   be   remedied   by
Section 14[1] enlarging the scope of acquisition of
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the   property   by   a   Hindu   female   appending   an
explanation with it.” 
Thus,   while   interpreting   Section   14   of   the   Hindu
Succession   Act,   the   apex   Court   adopted   interpretation   thereof
under the floodlight of the Constitutional provisions.  
20. Now, harking back to the decision in the case of Atam
Prakash.vs.State of Haryana and ors.; 1986 (2) SCC 249  in
paragraph 5, the apex Court had stated thus:
“5. Now, to the question at issue and first, a word
about interpretation. Whether it is the Constitution
that is expounded or the constitutional validity of a
statute that is considered, a cardinal rule is to look
to the Preamble to the Constitution as the guiding
light and to the Directive Principles of State Policy
as the Book of Interpretation. Preamble embodies
and   expresses   the   hopes   and   aspirations   of   the
people. The Directive Principles set out proximate
goals. When we go about the task  of examining
statutes against the Constitution, it is through these
glasses that we must look, 'distant vision' or 'near
vision'. The Constitution being sui generis, where
Constitutional   issues   are   under   consideration,
narrow   interpretative   rules   which   may   have
relevance   when   legislative   enactments   are
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interpreted   may   be   misplaced.   Originally   the
Preamble   to   the   Constitution   proclaimed   the
resolution of the people of India to constitute India
into 'a Sovereign Democratic Republic' and set forth
'Justice, Liberty, Equality and Fraternity', the very
rights mentioned in the French Declarations of the
Rights of Man as our hopes and aspirations. That
was in 1950 when we had just emerged from the
colonial­feudal   rule.   Time   passed.   The   people's
hopes   and   aspirations   grew.   In   1977   the   42nd
amendment   proclaimed   India   as   a   Socialist
Republic. The word 'socialist' was introduced into
the Preamble to the Constitution. The implication of
the introduction of the word 'socialist', which has
now become the centre of the hopes and aspirations
of the people a beacon to guide and inspire all that
is enshrined in the articles of the Constitution ­ is
clearly   to   set   up   a   "vibrant   throbbing   socialist
welfare society" in the place of a "Feudal exploited
society". Whatever article of the Constitution it is
that   we   seek   to   interpret,   whatever   statute   it   is
whose   constitutional   validity   is   sought   to   be
questioned, we must strive to give such an interpretation
as   will   promote   the   march   and   progress   towards   a
Socialistic   Democratic   State.   For   example,   when   we
consider the question whether a statute offends Article
14 of the Constitution we must also consider whether a
classification  that  the  legislature  may  have made is
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consistent  with   the  socialist   goals  set   out   in   the
Preamble and the Directive Principles enumerated
in Part IV of the Constitution. A classification which
is   not   in   tune   with   the   Constitution   is   per   se
unreasonable and cannot be permitted. With these
general   enunciation   we   may   now   examine   the
questions raised in these writ petitions.”
21. It is true that before coming into force of the Act of
1937,  a Hindu widow  did not have  any absolute right to the
property.  Even a mother, who had a right to share in the property
could not enforce it by filing a suit for partition and was required
to wait till the son or the father decide to effect partition in the
family property.  The Act of 1937 was brought into force in order
to give some enforceable right to widow in the property but then
the right was made a limited right that too subject to reversion.  In
other words, the widow was given a right to file suit to get right in
the property but only to the limited extent, that means, after her
death, property reverts back to the family and she did not have
any exclusive right over the property to deal with the property.
However, the Hindu Succession Act was brought into force in the
year 1956 and for emancipation of right to the women, the widow
was given exclusive right to the property by removing the limited
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right that was given to her and the widow is a Class­I heir as per
schedule to the Hindu Succession Act.  
22. Mr.   Gavnekar,   learned   counsel   for   the   appellants,
submitted that there is a right given under the Act of 1956 to a
widow to the extent of share of her deceased husband. But then
that   does   not   necessarily   mean   that   in   the   absence   of   any
provision under the Act of 1956, enabling her to file the suit in the
Court for partition, such a right has also been given.  As observed
above, the Act of 1956 gave her a right to claim her husband's
share from the joint family property.   The right to recover the
property, due to the death of her husband must be held to be
integral part of right to property given to her as per the Act of
1956; otherwise the very intention of the Legislature to give her a
right would become nugatory and useless.
23. I am further fortified by the following view in the case
of Chhote Khan, deceased, represented by his son, Harmat and
others..vs..Mal Khan & ors.; AIR 1954 SC 575, in paragraph 23,
the Supreme Court observed thus:
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“23. We agree with the High Court in holding that
partition is a right incident to the ownership of
property and once the defendants are held. as coowners,
their right to partition cannot be resisted.”
24. There is another distinction which stares at the face
and  is an answer to the argument that the Act of 1956 does not
provide for a right to file a suit for partition in the absence of any
demand by son or any other coparcener in the joint Hindu family
property after death of her husband alike Section 3 (3) of the Act
of 1937.  In my opinion, there is fallacy in the argument in that,
Section 3 (3) provides for a right to file a suit for partition because
there was no right at all in a widow even for her survival to get
the property of her husband.   In order that she must survive or
must have some source of income for maintenance, Section 3 (3)
was engrafted with a view to have her share but then in terms of
the personal law of Hindus, a limited right was given to her. As
against it, the Act of 1956 provides for a full right to a widow to
the   share   of   her   deceased   husband   without   any   restriction   of
putting limited right or for dealing with share of her husband as
per her choice.  That was the progressive reason for uplifting the
woman for which, Act of 1956 was brought.
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25. Sui juris/aequali jura:
Sui juris means “one's own right.”  As discussed earlier,
right  to share  has been  given  to  a  widow  upon  death  of  her
husband as per the Act of 1956, which was as per Section 3 (3) of
the Act of 1937 of limited nature.  Hence, she can act sui juris.
Further, the Act of 1956 does not carve out any prohibition on her
from filing the suit independently.   Hence,  sui juris,  it must be
held that she has a right to file the suit independently.  
26. Ubi jus ibi remedium:
Here, in this context, it will be necessary to have a look
to the judgment of the apex Court in Smt. Ganga Bai ..vs.. Vijay
Kumar and ors.; (1974) 2 SCC 393; wherein, in paragraph 15,
the apex Court held thus:
“15. …..There is an inherent right in every person
to bring suit of a civil nature and unless the suit is
barred by statute one may, at one's peril, bring a
suit   of   one's   choice.   It   is   no   answer   to   a   suit
howsoever frivolous the claim, that the law confers
no such right to sue. A suit for its maintainability
requires no authority of law and it is enough that
no statute bars the suit.”
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So   also,   in  Dhannalal  ..vs..  Kalawatibai  and ors.;
(2002) 6 SCC 16, the apex Court, while dealing with the principle
of ubi jus ibi remedium, in paragraph 21, observed thus:
“21. Reference   to,   or   deriving   aid   from,   certain
legal maxims will be useful. Ubi jus ibi remedium
there is no wrong without a remedy. Where there is
a   right   there   is   a   forum   for   its   enforcement.
According to Broom's Legal Maxims (Tenth Edition,
pp.118­119),   the   maxim   has   been   considered   so
valuable that it led to the invention of the form of
action   called   an   action   on   the   case.   Where   no
precedent of a writ can be produced, the clerks in
Chancery shall agree in forming a new one. The
principle adopted by courts of law accordingly is,
that the novelty of the particular complaint alleged
in an action on the case is no objection, provided
that an injury cognizable by law be shown to have
been   inflicted   on   the   plaintiff,   in   which   case,
although there be no precedent, the common law
will judge according to the law of nature and the
public good. If a man has a right, he must, "have a
means to vindicate and maintain it, and a remedy if
he is injured in the exercise and enjoyment of it,
and,   indeed,   it  is   vain   thing   to  imagine  a  right
without a remedy, for want of right and want of
remedy are reciprocal".
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27. In the light of above basic doctrine of jurisprudence, I
hold that the right having been given to a widow or mother or
women under the Act of 1956, she cannot be told that though she
has a right to get share, but she cannot file a suit for recovery of
share of her deceased husband as she has no right to file a suit.
When a right is given, the remedy has to be there namely; remedy
to file a suit for partition, which cannot depend upon the desire or
demand of other coparceners in the family to have a partition of
the   joint   family   property.   I   don't   think   that   personal   law   of
Hindus, in this context, can be said to be affected in any manner.
Any   contrary   interpretation   would   be   in   violence   to   the   dicta
discussed above by me on the subject, and would be a retrograde
step. 
28. Per incuriam:
A Constitution Bench of the apex Court in the matter of
Jaisri Sahu ..vs.. Raidewan Dubey and ors.; AIR 1962 SC 83 had an
occasion to deal with the issue and the subject of exceptions to the
general rule of binding precedents, the following exceptions as stated
in Halsbury's Laws of England, third edition, Vol. 22, para 1687,
pp. 799­800,
“The Court is not bound to follow a decision of its
own if given per incuriam. A decision is given per
incuriam when the Court has acted in ignorance of
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a previous decision of its own or of a Court of a
coordinate   jurisdiction   which   covered   the   case
before it, or when it has acted in ignorance of a
decision of the House of Lords. In the former case it
must decide which decision to follow, and in the
latter it is bound by the decision of the House of
Lords.” 
The   principle   has   also   been   explained   by   the   apex
Court,   relying   on   the   observations   in   paragraphs   28   to   34   of
judgment   in  Madhya   Pradesh   Rural   Road   Development
Authority & anr..vs..L.G.Chaudhary Engineers & Contractors;
(2012)3 SCC 495, which read thus:
“28. The   principle   of   per   incuriam   has   been   very
succinctly   formulated   by   the   Court   of   Appeal   in   18
Young vs. Bristol Aeroplane Company, Limited.   Lord
Greene, Master of Rolls formulated the principles on the
basis   of   which   a   decision   can   be   said   to   have   been
rendered 'per incuriam'. The principles are: (KB p. 729) 
"Where the court has construed a statute or
a   rule   having   the   force   of   a   statute   its
decision stands on the same footing as any
other   decision   on   a  question   of   law,   but
where the court is satisfied that an earlier
decision was given in ignorance of the terms
of a statute or a rule having the force of a
statute   the   position   is   very   different.   It
cannot, in our opinion, be right to say that
in   such   a   case   the   court   is   entitled   to
disregard   the   statutory   provision   and   is
bound to follow a decision of its own given
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when that provision was not present to its
mind. Cases of this description are examples
of decisions given per incuriam."
29.   The   decision   in   Young   was   subsequently
approved by the House of Lords in Young vs. Bristol
Aeroplane Company, Limited at page 169 of the
report.  Lord Viscount Simon in the House of Lords
expressed His Lordship's agreement with the views
expressed by the Lord Greene, the Master of Rolls in
the Court of Appeal on the principle of per incuriam
(see the speech of Lord Viscount Simon in Bristol
Aeroplane Co. Ltd. case, AC at p. 169 of the Reprot)
30.   Those   principles   have   been   followed   by   the
Constitution   Bench   of   this   Court   in   The   Bengal
Immunity Company Limited vs. The State of Bihar
(See the discussion in SCR at pp. 622 and 623 of
the report)
31. The same principle has been reiterated by Lord
Evershed,   Master   of   Rolls,   in   Morelle   Ld.   vs.
Wakeling QB 3 at p. 406. The principle has been
stated as followed: 
"...As a general rule the only cases in which
decisions should be held to have been given
per incuriam are those of decisions given in
ignorance   or   forgetfulness   of   some   20
inconsistent statutory provision or of some
authority binding on the court concerned;
so   that   in   such   cases   some   part   of   the
decision or some step in the reasoning on
which it is based is found, on that account,
to be demonstrably wrong......."
32. In the case of State of U.P. vs. Synthetics
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and Chemicals Ltd.,  this Court held (SCC p. 162,
para 40) the doctrine of “per incuriam” in practice
means   “per   ignoratium”   and   noted   that   English
Courts have developed this principle in relaxation of
the rule of stare decisis and referred to the decision
in the case of Bristol Aeroplane Co. Ltd. (supra).
The learned Judges also made it clear that the same
principle has been approved and adopted by this
Court   while   interpreting   Article   141   of   the
Constitution   (see   Synthetics   and   Chemicals   Ltd.
case, SCC para 41).
33. In MCA v. Gurnam Kaur, a three­ Judge Bench
of   this   Court   explained   this   principle   21   of   per
incuriam very elaborately in paragraph 11 at page
110 of the report and in explaining the principle of
per incuriam the learned Judges held: 
"11.......A   decision  should   be  treated   as
given per incuriam  when it is given in
ignorance of the terms of a statute or of a
rule having the force of a statute......."
34. In paragraph 12 the learned Judges observed as
follows:(Gurnam Kaur case, SCC p. 111) 
“12.......One   of   the   chief   reasons   for   the
doctrine of precedent is that a matter that
has   once   been   fully   argued   and   decided
should not be allowed to be reopened. The
weight   accorded   to   dicta   varies   with   the
type   of   dictum.   Mere   casual   expressions
carry no weight at all. Not every passing
expression of a judge, however eminent, can
be   treated   as   an   ex   cathedra   statement,
having the weight of authority."
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29. Looking to the above decisions and the discussions, I
think the contentions raised by Mr. Anil Anturkar, learned Senior
Advocate,   must   be   accepted   that   the   decision   in   the   case   of
Ananda (supra),   rendered by the learned Single Judge of this
Court is per incuriam.  All the more so, as stated by the apex Court
in the case of  Narayan Rao  (supra) while analysing the  ratio
decendi in the case of  Gurupad(supra).
To   sum   up,   question   nos.   2   and   3   are,   therefore,
answered in the affirmative.
As to question no.1:
30. Question no.1 now falls for consideration.  In Second
Appeal No.119/2013, plaintiff­Sulochana, the widow filed a suit
for partition and separate possession vide Reg.C.S.No.1773/2006.
Her husband had gone missing in the year 1997 and the period of
seven years for declaration of his civil death was thus completed
in the year 2004.   However, she had filed suit for declaration
about   civil   death   of   her   husband   in   2006   vide   Reg.C.S.
No.1780/2006 and actually got declaration on 31.07.2007.  The
contention raised by Mr. Gavnekar, is that since the declaration about
civil death was granted only on 31.07.2007, the suit filed by her for
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declaration   in   the   year   2006   i.e.   Reg.C.S.No.   1773/2006   was
without   any   cause   of   action   and   was   premature   and   thus
untenable.  
31. I have  carefully considered  the submission  made by
Mr.   Gavnekar,   learned   counsel   for   the   appellants.   Here,   it   is
necessary   to   look   into   the   provisions   of   Section   108   of   the
Evidence Act, which reads thus:
“108.  Burden  of proving  that  person  is alive
who has not been heard of for seven years.—
Provided that when the question is whether a man
is alive or dead, and it is proved that he has not
been heard of for seven years by those who would
naturally have heard of him if he had been alive,
the burden of proving that he is alive is shifted to
the person who affirms it." 
It   is   not   in   dispute   that   the   husband   of   plaintiffSulochana
went missing in the year 1997 about which report was
lodged to the Police Station concerned.  It is also not in dispute
that the period of seven year was completed in the year 2004.
And she filed a suit in the year 2006 for declaration of the civil
death of her husband.   There is no dispute about the fact that
Rajiv, husband of Sulochana went missing from 1997 and is not

traced or heard for about seven years from 1997 nor it is the case
of the appellants to the contrary. Section 108 of the Evidence Act
does not contemplate any declaration by civil court for civil death
of the person.  On the contrary, she went to the Court after seven
years for a declaration which declaration would obviously operate
upon completion of the period of seven years.  Therefore, in my
opinion,   the   date   of   decree   of   declaration   of   civil   death   is
absolutely   of   no   relevance.   Here,   it   will   be   relevant   to   read
observations of the Hon'ble apex Court in para 14 of the judgment
in the case of L.I.C. of India..vs..Anuradha; AIR 2004 SC 2070,
which are as under:
“On   the   basis   of   the   above   said   authorities,   we
unhesitatingly arrive at a conclusion which we sum
up   in   the   following   words.   The   law   as   to
presumption of death remains the same whether in
Common   Law   of   England   or   in   the   statutory
provisions contained in Sections 107 and 108 of the
Indian   Evidence   Act,   1872.   In   the   scheme   of
Evidence   Act,   though   Sections   107   and   108   are
drafted as two Sections, in effect, Section 108 is an
exception to the rule enacted in Section 107. The
human life shown to be in existence, at a given
point of time which according to Section 107 ought
to be a point within 30 years calculated backwards

from the date when the question arises, is presumed
to continue to be living. The rule is subject to a
proviso or exception as contained in Section 108. If
the persons, who would have naturally and in the
ordinary   course   of   human   affairs   heard   of   the
person in question, have not so heard of him for
seven years the presumption raised under Section
107 ceases to operate. Section 107 has the effect of
shifting the burden of proving that the person is
dead on him who affirms  the fact.  Section  108,
subject to its applicability being attracted, has the
effect of shifting the burden of proof back on the
one who asserts the fact of that person being alive.
The   presumption   raised   under   Section   108   is   a
limited presumption confined only to presuming the
factum of death of the person who's life or death is
in issue. Though it will be presumed that the person
is dead but there is no presumption as to the date
or time of death. There is no presumption as to the
facts   and   circumstances   under   which   the   person
may have died. The presumption as to death by
reference to Section 108 would arise only on lapse
of seven years and would not by applying any logic or
reasoning be permitted to be raised on expiry of 6 years
and 364 days or at any time short of it.     An      occasion
for raising the presumption would arise only when
the question is raised in a Court, Tribunal or before
    an     authority     who     is     called     upon         to

decide as to whether a person is alive or dead.
So   long   as   the   dispute   is   not   raised   before   any
forum and in any legal proceedings the occasion for
raising the presumption does not arise.”
In   the   light   of   the   above   discussion,   the   answer   to
question no.1 must be in the negative, which I do.
Last,   but   not   the   least,   I   must   express   gratitude   to
Advocates Mr. Gavnekar, Mr. P. N. Joshi, Mr. Anil  Anturkar and
Mr. Rajiv Patil, the Senior Advocates, all of them who took pains
to assist this Court.
32. The upshot of the above discussion is, the following
order is inevitable.
O R D E R
(i) Second   Appeal   No.   119/2013   and   Second
Appeal No. 405/2013 are dismissed.
(ii) No order as to costs.
(iii) Interim   order   made   by   this   Court   in   both
these   appeals   shall   continue   to   operate   for
another period of ten weeks.
JUDGE

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