# [1977] 2 S.C.R. 920

- **Citation:** [1977] 2 S.C.R. 920
- **Court:** Supreme Court of India
- **Decided:** 1977-02-07
- **Case number:** Civil Appeal No. 1988 of 1968
- **Bench:** S. Murtaza Fazal Ali, P. S . .Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-920-7123
- **Pages:** 5

## Headnote

Hindu Succession Act-Hindu Women's Rig/zt to Property Act 1937Whether vartition bv metes and bounds-Whether new
case can be made out
in the absence of issue.
The respondent-plaintiffs filed a suit for partition and allotment of one half
share of the suit house and the moveab'.c properties.
One Faqir Cll'.nd b:td
3 sons, N athubhai, Lallubhai and N anabhai. N anabhai was the defendant in
the suit whose legal representatives are appellants.
Lallubhai's heirs are
the
plaintiffs.
According to the plaintiffs the three \Jroth.,ro were
m~mbers of a
Joint Undivided Hindu Family. According to the respondents the properties
were never partitioned thoug~ the three brothers were staying and messing
separntely and each branch carried on its business se,parately.
The respon~
dents also challenged the validity of the sale deed executed by Bai Kashi the
widow of Nathubhai in favour of the appellants on the ground that the sale
.was not for legal neces~ity. The appellants contended that the three brothers
were ~eparate and each branch used to do its business separately.
That as
far as the suit house was concerned it was divided though not by metes and
bounds and that the brothers lived in separate portions of the house.
The
appellants claimed that they were entitled to 2/3 share on the house.
The
Trial Court found that the 3 brothers had separated before the deaths
of
Nathubhai and Lallubhai.
It also found that the defendant and his brothers
had separated and the suit house wiis also divided as alleged by the defendant.
It came to the conclusion that the defendant had failed to prove th"t there
was any legal necessity for Bai Kashi to sell the share in the suit house and
that after Bai Kashi's death the respondent was entitled to one half share in
the suit house. The Trial Court found that Bai Kashi became entitled to one
half share of her husband in the suit house under the Hindu Women's Rights
to Property Act, 1937.
As her interest was only ~ limited interest known as
Hindu Women's Estate when Bai Kashi died in January 1956, she had not
become the full owner of the share under the Hindu ·succession Act, 1956.
The court was of the view that on the death of Bai Kashi her share would
go to ·the reversioners.
The court held that the parties were governed
by
Mayukh school which over-rules the Mitakshara school and, therefore, after
the de&th of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the
plaintiff for one half share should be decreed though there was no specific
claim on the plea cf separation and heirship. The High Court dismissed the
appeal and confirmed the findings of the Trial Court.
In an appeal by Special Leave the appellants contended that the respondents' plea that the 3 brothers were joint and the share of Bai Kashi
was
inherited by the remaining two branches by survivorship having been negatived
by the courts below the suit ought to have been dismissed and that the court
erred in making out a new case of succession to the property of Bai
Kashi
without necessary pleadings.
Allowing the appeal partly,
HELD : 1. On the question whether the respondents are entitled to one
half share on her death has not been dealt with by the High Court. This
Court agreed with the concurrent findings of the Trial Court and the High
Court that the family was separate and that the sale deed by Bai Kashi in
favour of the appellants was not for legal necessity. However, the claim of
the respondent for partition and allotment of 1 /3 share' by metes and bounds
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BAI NANI v. MANILAL LALLUBHAI (Kailasam, J.)
921
cannot be resisted.
Though the brothers became separate
admittedly
there
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was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3 share in the house. (924 A-Cl
2. The High Court did not deal satisfactorily with the contention of the
defendant that the Trial Judge erred in saying that Bai Kashi had onl

## Text

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921
BAI MANI & OTHERS
II.
MANILAL LALLUBHAI & ORS.
February 7, 1977
[S. MURTAZA FAZAL ALI AND P. S . .KAILASAM, JJ.]
Hindu Succession Act-Hindu Women's Rig/zt to Property Act 1937Whether vartition bv metes and bounds-Whether new
case can be made out
in the absence of issue.
The respondent-plaintiffs filed a suit for partition and allotment of one half
share of the suit house and the moveab'.c properties.
One Faqir Cll'.nd b:td
3 sons, N athubhai, Lallubhai and N anabhai. N anabhai was the defendant in
the suit whose legal representatives are appellants.
Lallubhai's heirs are
the
plaintiffs.
According to the plaintiffs the three \Jroth.,ro were
m~mbers of a
Joint Undivided Hindu Family. According to the respondents the properties
were never partitioned thoug~ the three brothers were staying and messing
separntely and each branch carried on its business se,parately.
The respon~
dents also challenged the validity of the sale deed executed by Bai Kashi the
widow of Nathubhai in favour of the appellants on the ground that the sale
.was not for legal neces~ity. The appellants contended that the three brothers
were ~eparate and each branch used to do its business separately.
That as
far as the suit house was concerned it was divided though not by metes and
bounds and that the brothers lived in separate portions of the house.
The
appellants claimed that they were entitled to 2/3 share on the house.
The
Trial Court found that the 3 brothers had separated before the deaths
of
Nathubhai and Lallubhai.
It also found that the defendant and his brothers
had separated and the suit house wiis also divided as alleged by the defendant.
It came to the conclusion that the defendant had failed to prove th"t there
was any legal necessity for Bai Kashi to sell the share in the suit house and
that after Bai Kashi's death the respondent was entitled to one half share in
the suit house. The Trial Court found that Bai Kashi became entitled to one
half share of her husband in the suit house under the Hindu Women's Rights
to Property Act, 1937.
As her interest was only ~ limited interest known as
Hindu Women's Estate when Bai Kashi died in January 1956, she had not
become the full owner of the share under the Hindu ·succession Act, 1956.
The court was of the view that on the death of Bai Kashi her share would
go to ·the reversioners.
The court held that the parties were governed
by
Mayukh school which over-rules the Mitakshara school and, therefore, after
the de&th of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the
plaintiff for one half share should be decreed though there was no specific
claim on the plea cf separation and heirship. The High Court dismissed the
appeal and confirmed the findings of the Trial Court.
In an appeal by Special Leave the appellants contended that the respondents' plea that the 3 brothers were joint and the share of Bai Kashi
was
inherited by the remaining two branches by survivorship having been negatived
by the courts below the suit ought to have been dismissed and that the court
erred in making out a new case of succession to the property of Bai
Kashi
without necessary pleadings.
Allowing the appeal partly,
HELD : 1. On the question whether the respondents are entitled to one
half share on her death has not been dealt with by the High Court. This
Court agreed with the concurrent findings of the Trial Court and the High
Court that the family was separate and that the sale deed by Bai Kashi in
favour of the appellants was not for legal necessity. However, the claim of
the respondent for partition and allotment of 1 /3 share' by metes and bounds
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BAI NANI v. MANILAL LALLUBHAI (Kailasam, J.)
921
cannot be resisted.
Though the brothers became separate
admittedly
there
A
was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3 share in the house. (924 A-Cl
2. The High Court did not deal satisfactorily with the contention of the
defendant that the Trial Judge erred in saying that Bai Kashi had only a
widow's estate when she died in the absence of any issue as to who were
heirs of the deceased Bai Kashi. On the question whether respondents are
entitled to succeed to Bai Kashi's 1/2 share, the Court remitted the matter
to the High Court for consideration. [924 C-Dl
B:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1988 of 1968.
Appeal by Special Leave from the Judgment and Decree dated
21/22-3-1968 of the Gujarat High Court in First Appeal No. 760/60.
S. T. Desai, I. N. Shroff and H. S. Parihar for the Appellants.
J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.
The Judgment of the Court was delivered by
KArLASAM, J.
This appeal is by the legal representatives of the
defendant in the suit by special leave against the judgment and decrC'e
of the High Court of Guiarat.
The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one-half share of the suit house and the moveable
properties mentioned in the plaint.
One Fakirchand had three sons,
. Nathubhai, Lallubhai and Nanabhai.
Nanabhai is the defendant whose
legal representatives are the present appellants in this Court.
Lallubhai's son, Manila!, was the first pla!intiff and his mother and widow
of Lallubhai, Bai Mani, was the second plaintiff.
The second plaintiff
is since dead and his legal representatives are respondents 2 (b) and
2(c) in this appeal.
Nathubhai, Lallubhai and Nanabhai were originally the members of a joint Hindu family.
The case of the plaintiffs, respondents in this appeal, is that the
three brothers Nathubhai, Lallubhai and Nanabhai were mempers of
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a joint undivided Hindu family and when they were joint in the year
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1940 Nathubhai died leaving his widow Bai Kashi.
Subsequently in
the year 1942 Lallubhai died.
On 24th January, 1956 Bai Kashi,
the widow of Nathubhai, died while the family continued to be a
joint undivided Hindu family.
According to the respondents the properties were never partitioned though the three brothers were staying
and messing separately and each branch carried on its business separately. The family immoveable and moveable prqperties were never
Gdivided. The respondents also questioned the validity of a sale deed
executed by Bai Kashi on 25th April, 1955 in favour of the appellants
of her share in the immoveable property as it was not for legal
necessity .
In the written statement the appellants denied that the three brothers
were members of a joint family.
They pleaded that the brothers were
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separated and each branch used to do its own business keeping their
earnings separately and messing separately.
So far as the suit house
was concerned it was divided though not by metes and bounds and the
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SUPREMJl COURT REPORTS
(1977] 2 s.C.R.
.brothers liv~d in separate portions of the house.
The appellants claimed that t)ley were entitled to 2/3 share in the house as Bai Kashi ·the
widow of Nathubhai had sold her share by registered deed 25th April,
1955 to the appellants.
On these pleadings 9 issues were framed of which three are relevant for the purpose of this appeal.
They are: (1) Does the defendant prove that he and his two brothers-Nathubhai and Lallubhai
had separated and the suit-house was also divided (through not by.
metes and bounds) at the time of the, death of Nathubhai ? (2) Does
he further prove that the sale-deed executed by Bai Kashi in respect of
the one-thlfd share of the suit-house was for legal necessity and
to
satisfy her debts ? and (3) Do the plaintiffs prove that after Bai Kashi's
death they become entitled to a one-half share in the whole of the suithouse ? The trial court found that the three brothers had become
separate in status before the deaths of N athubhai and Lallubhai.
It
also found that the defendant and his brothers had separated and the
suit-house was also divided as alleged by the defendant and recorded
the finding in favour of the defendant.
Regarding the second issue it
found that the defendant had failed to prove that there was legal necessity for Bai Kashi to sell away the share in the suit-house.
On the
third issue the trial court recorded a finding that after Bai Kashi's
.death the respondents became entitled to 1 /2 share in the whole of the
suit-house.
On appeal the High Court confirmed the findings of the trial court
on three issues and dismissed the appeal.
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The findings of both the courts below that the defendant and his
two brothers had separated and the suit-house
was also divided by
metes and bounds was not challenged before us by the counsel for
the respondents. So also the finding that the sale deed executed by Bai
Kashi in respect of her 1/3 share of the suit-house was not proved to
have been for legal necessity.
The only point that was raised by the
counsel for the appellants is that the respondents' plea that the three
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brothers were joint and the share of Bai Kashi was inherited by the
remaining two branches by survivorship having been negatived by the
courts below the suit ought to have been dismissed and that the courts
erred in finding a new case of succession to the property of Bai Kashi
without the necessary pleadings.
It may be observed that on the
accepted finding of the courts below that the sale in favour of the
appellants by Bai Kashi is not supported by legal necessity if on the
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death of Bai Kashi the other two branches i.e. that of the appellants
and the respondents, are entitled to share equally the decree granted by
courts below would be right even though the claim to the 1(2 share is
not based on succession.
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The contention of the counsel for the appellants is that the courts
below have found an entirely new case on the basis of succession which
is contrary to fhe claim made in the plaint. The averment in the p~aiint
is that on 24th January, 1956 Bai KasM the widow of Nathubhai died
.aqd Nanabhai continued as the μiember of the joint Hindu family.
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BAI MANI v. MANILAL LALLUBHAI (Katlasam, J.)
923
There is no alternate claim that in the event of the partition being negatived the plaintiff would be entitled to 1 /2 share of Hai Kashi by succession.
The 3rd issue that was raised was whether on Bai Kashi's death
the appellants became entitled to 1/2 share in the whole suit-house.
The trial court on that issue found that Bai Kashi became entitled to
1/2 share of her husband in the suit-house under the Hindu Women's
Rights to Property Act, 1937. As her interest was only a limited
interest known as Hindu Women's Estate when Bai Kashi died in
January 1956 she had not become the full owner of the share under
the Hindu Succession Act, 1956.
On this basis the trial court was of
the view that on the death of Bai Kashi her share would go to the
reversioners.
On the question as to who the heirs of Nathubhai are
at the time of the death of Bai Kashi the trial court held that as the
parties were in Gujarat the Mayukh school will govern the inheritance
and in Gujarat the Mayukh school overrules the Mitakshara school
and therefore full brothers inherit along with sons Q_f full brothers who
are dead and therefore after the death of Bai Kashi the defendant and
plaintiff No. 1 would inherit together to the share of Nathubha;i. The
court held that the claim of the plaintiff for l /2 share should be decreed though there is no specific claim on the plea of separation and
heirship.
The defendant, present appellants, in their appeal to the
High Court submitted that the trial Judge erred in saying that Bai
Kashi had only a widow's estate when she died and that the trial court
failed to appr-eciate that no issue was framed as to who were the heirs
of the deceased Bai Kashi and that the parties to the suit had not gone
to the trial oa the basis of the succession.
The High Court has not
dealt with this issue satisfactorily.
The High Court after referring to .
the pleadings observed that the plaintiffs claimed 1 /2 share in the suit
properties on the ground of survivorship and that at the time of the
arguments it was contended before the trial court that even if the
brothers had separated the defendant and the plaintiff No. 1 inherited
together to Nathubhai after Bai Kashi's death and therefore the plaintiff
would be entitled to 1/3 share.
After making these observations the
High Court has referred to the plea ~n the written statement that the
three brothers were separated and has observed that the trial Judge had
framed the issue as to whether the defendant proves that he and his
two brothers Nathubhai and Lallubhai had separated and the suithouse was divided and concluded that this issue which was raised by
the learned trial Judge clearly arose out of the contention which was
raised by the defendant to the plaintiff's suit and a specific issue was ·
raised on that point by the learned trial Judge and therefore there is no
prejudice to any of the parties because the issue was framed and evidence wa$ led by both the parties on that point.
This reference, we
are afraid, does not relate to issue No, 3 which is about the succession
to Bai Kashi's share after her death.
In the Memorandum of Grounds
in the appeal to the High Court as well as in the special leave petition
the ground that is taken specifically is that the plaintiff has not proved
how he became entitled to the share of Bai Kashi.
In fact, the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhai's 1/3 share in the suit-house
absolutely.
It was also contended before the High Court that the trial
Judge was in error in saying that Mayukh school of Hindu law would
override the Mitakshara school in Gujarat.
We find that the question·
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[1977] 2 S.C.R.
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that arose mainly whether the respondents are entitled to succeed to
Bai Kashi's 1/2 share on her death has not been satisfactorily dealt
with by the High Court especially when the point was specifically
raised on behalf of the appellants.
While we agree with the concurrent finding of the trial court and the High Court that the family
became separated and that the sale deed by Bai Kashi in favour of the
appellants is not for legal necessity we are satisfied that the claim of the
respondents for partition and allotment of 1/3 share by metes and
bounds cannot be resisted.
Though the brothers became separate
admittedly there was no division by metes and bounds.
There is also
no dispute that the respondents are entitled to 1/3 share in the house.
Therefore though they became separated in status the suit-house was
not divided by metes and bounds and therefore they will be entitled to
division and separate possession of 1/3 share in the house. To this
extent the decree of the courts below will be modified.
But so far as the.1/3 share of Bai Kashi is concerned as the courts
below have not considered the appellants' plea that the respondents are
not entitled to succeed to Bai Kashi's 1/2 share the question is remitted
to the High Court for consideration. The High Court will consider
as to whether the respondents are entitled to succeed to 1/2 of the
1/3 share of Bai Kashi and pass a decree accordingly.
To this extent
the appeal is allowed and the decree of the trial court and the High
Court modified.
The parties will bear their own costs in thi! appeal.
P.H.P.
Appeal allowed.