Friday 1 April 2022

Whether step mother can execute agreement of sale regarding immovable property as karta if she has inherited it alongwith her step daughters from her husband?

There is no dispute about the fact that the suit properties were the separate properties of Dajiba. After his demise somewhere

in the year 1966-67 his widow i.e. defendant no.1 and daughters,

who are the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act. However, in view of provision of Section 19 of that Act, all these heirs of Dajiba would inherit as tenants in common and not as joint tenants. Once such a devolution is understood, the matter becomes clear like a day light. The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand. By virtue of such mode of succession by the widow and four daughters of Dajiba receiving the suit properties as his heirs, they take their individual shares as tenants in common. In the bsence of the suit properties being joint, therefore, there was no question of the step mother - defendant no.1 acting as a manager or karta of the family. She, therefore, had no right to deal with the suit properties even for legal necessity.It has been held that under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.1648 OF 2005

Kamalabai  Vitthalrao Jadhav Vs Darubai W/o. Dajiba

CORAM : MANGESH S. PATIL, J.

Pronounced on : 31-03-2022

 Heard the learned advocates of both the sides.

2. The Second Appeal was admitted by the order dated

06-04-2009 by formulating the following substantial question of law:

(A) Whether the learned II Additional District

Judge, Nanded was right in holding that Survey

No.42/B is not available for partition, even though

admittedly only agreement of sale is executed by

defendant no.1 in favour of defendant no.2 and no

sale deed is executed in consequence thereof till

filing of the suit?

3. The question arises from the following facts:

(a) The suit properties, which include 4 agricultural lands and two

house properties, were the properties of one Dajiba. The suit was

filed by his four daughters against their step-mother for partition and

separate possession of their share in the suit properties. The step

mother having agreed to sell one of the suit properties bearing Survey No.42/B to respondent no.2, he was arrayed as defendant no.2.

(b) The trial court framed necessary issues including that of

legal necessity. It decreed the suit in entirety awarding a joint 4/5th

share to the daughters in all the suit properties.

(c) The step mother and the purchaser challenged the

judgment and decree before the district court. By the judgment and

order under challenge, the appeal has been partly allowed. The share

allotted to the daughters in all the suit properties, except Survey

No.42/B, was confirmed. It has been held that the step mother had

agreed to sell it to the purchaser to meet the legal necessity of the

family i.e. marriage of one of the daughters and the medical

treatment of Dajiba.

(d) Being aggrieved and dissatisfied with the judgment of

the district court, one of the daughters, who was plaintiff no.4 has

preferred this Second Appeal arraying her step mother and the

purchaser as also the remaining three sisters as respondents.

4. For the sake of convenience, the parties are hereinafter

referred to by their status in the suit.

5. Learned advocate Shelke for the plaintiffs would submit

that the trial court had given a well reasoned judgment. There was

no perversity or illegality. Still, without there being any sufficient and

cogent reasons, the lower appellate court has disturbed it to the

extent of land Survey No.42/B. He would further submit that since

the properties were inherited under Section 8 of the Hindu

Succession Act by four daughters and the widow of deceased Dajiba,

they would receive the share simultaneously as tenants in common

and not as joint owners. Consequently, when the suit properties are

inherited by all the women, the step mother could not have legally

acted as a karta or manager of the family, which concept would be

inconsistent with the principle of tenancy in common. In support of

his submission, he would rely on the division bench decision of the

Madras High Court in the matter of Thirumalaiswami Gounder Vs.

Parvathiammal (died) and others; AIR 1977 MADRAS 40.

6. Learned advocate Shelke would further submit that even

otherwise, the district court had grossly erred in disturbing the

finding recorded by the trial court regarding absence of evidence to

demonstrate that the step mother - defendant no.1 had agreed to sell

the suit property i.e. Survey No.42/B to meet any legal necessity.

7. Per contra, Mr. P.G. Godhamgaonkar h/f. Mr. M.D.

Godhamgaonkar, learned advocate for the step mother and the

purchaser – the defendants would submit that there was sufficient

evidence before the trial court to demonstrate that out of four

daughters of Dajiba, three were already married and the fourth

daughter, who is the appellant herein, was minor and was being

maintained by the step mother - defendant no.1 alone. There was no

alternative for her, but to lease out the suit properties to the

purchaser and the proceeds were used for meeting for marriage

expenses. There was also evidence regarding Dajiba being ill before

his death and had to be treated by raising money. In spite of such

evidence, the trial court had grossly erred in appreciating the

evidence and had recorded a perverse finding, which has been

corrected by the district court. There is no error or illegality and this

being a Second Appeal, this Court cannot undertake a further

scrutiny of facts.

8. I have carefully considered the rival submissions and

perused the record and the proceeding. Needless to state that since

the plaintiff’s step mother and the purchaser having not challenged

the judgment and decree of the trial court to the extent it upholds the

plaintiff’s claim to have a share in all the suit properties except

Survey No.42/B and they also having not put up any challenge to the

extent of the decision of the district court, the scope of the Second

Appeal is restricted to the dispute regarding Survey No.42/B.

9. There is no dispute about the fact that the suit properties

were the separate properties of Dajiba. After his demise somewhere

in the year 1966-67 his widow i.e. defendant no.1 and daughters,

who are the plaintiffs simultaneously succeeded to his estate in view

of Section 8 of the Hindu Succession Act. However, in view of

provision of Section 19 of that Act, all these heirs of Dajiba would

inherit as tenants in common and not as joint tenants. Once such a

devolution is understood, the matter becomes clear like a day light.

The very theory of existence of a karta and legal necessity

presupposes that the sharers are joint, which is not the case in the

matter in hand. By virtue of such mode of succession by the widow

and four daughters of Dajiba receiving the suit properties as his heirs,

they take their individual shares as tenants in common. In the

absence of the suit properties being joint, therefore, there was no

question of the step mother - defendant no.1 acting as a manager or

karta of the family. She, therefore, had no right to deal with the suit

properties even for legal necessity.


10. It would be apt to rely upon the decision of the supreme

court in the matter of Commissioner of Income-Tax, Madhya Pradesh,

Nagpur and Bhandara Nagpur Vs. Seth Govindram Sugar Mills; AIR

1966 SC 24. It has been held that under Hindu Law coparcenership

is a necessary qualification for becoming a manager of joint Hindu

family and since a widow cannot be a coparcener she is not legally

entitled to become a manager. Conspicuously, this was a position even

prior to the coming into force of the Hindu Succession Act. By virtue

of Section 19 it has been explicitly made clear that if two and more

heirs succeed together to the property and in estate, they take the

property as tenants in common and not as a joint tenants.

11. Relying upon this very judgment of the supreme court,

the division bench of the Madras High Court in Thirumalaiswami

Gounder (supra) has held that when all the members who succeed to

properties of a deceased are female, the interest received by each of

them is as tenant in common.

12. In view of such a legal position, about which, apparently,

both the courts were oblivious, the whole dispute regarding there

being existence of any legal necessity or otherwise, in fact, was

redundant. Once it is concluded that step mother - defendant no.1

was not entitled to act as a manager or karta of the family, there was

no question of she having any power to deal with the suit properties

to the detriment of the step daughters - plaintiffs. Once having

reached such a conclusion the result is inevitable. The judgment and

decree passed by the trial court will have to be confirmed by quashing

and setting aside that of the district court.

13. Even in the alternative, if it is to be considered as to if

the evidence brought on record was sufficient to disclose existence of

legal necessity for step mother – defendant no.1 to agree to sell suit

property Survey No.42/B, as was rightly noticed by the trial court,

there was a material variance between the pleading and the proof led

by the defendants step mother and the purchaser. Lower appellate

court clearly refused to consider and overlooked this part of the

reasoning by the trial Court. The reason that was pleaded was not

sought to be proved and the facts regarding which the proof was

tendered had no foundation in the pleadings. In spite of the fact that

observations and the conclusions of the learned judge of the trial

court well founded and legal, the lower appellate court has clearly

erred in reversing it.

14. In the result, I answer the substantial question (supra) in

the negative and allow the Second Appeal. Since the step mother -

defendant no.1 is not disputing about having agreed to sell the suit

property i.e. Survey No.42/B to the purchaser defendant no.2, it

would have been appropriate to direct adjustment of equities,

however in the absence of any cross objection by them even that is

not possible in this Second appeal.

15. The Second Appeal is allowed.

16. The impugned judgment and order passed by the district

court is quashed and set aside and one passed by the trial court is

restored.

17. In view of disposal of the Second Appeal, nothing

survives for consideration in the pending Civil Application No.1377 of

2022 and the same stands disposed of.

( MANGESH S. PATIL )


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