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Mt. Sodhan And Another v. L. Khushi Ram And Others
Factual and Procedural Background
This suit was instituted by Mehta Khushi Ram (plaintiff-respondent) on 17 March 1916 for possession of a house which he alleged had been purchased out of joint Hindu family funds by himself and his brother Mehta Mohan Lal (deceased). The plaintiff alleged that on Mohan Lal's death (14 March) he became sole owner by survivorship and that a portion of the house was his residence while the widow of Mohan Lal (Shrimati Sodhan) and her daughters used other portions. Relations later soured and Shrimati Sodhan initiated criminal proceedings against the plaintiff; the plaintiff was arrested and shifted to an adjoining house, and the plaintiff alleged that Shrimati Sodhan then took forcible possession of the portion he had occupied. The plaintiff sought possession except for a portion indicated in a plan (Ex. P-32).
Defendants (Shrimati Sodhan and her two unmarried daughters Sushila and Santosh) resisted, denying that a joint family existed at the time of purchase and asserting a right to residence and maintenance; they also asserted long possession. Before issues were framed the parties were examined and plaintiff's counsel made a concession concerning possession and joint ownership.
A preliminary issue was framed: "Can the question of maintenance and residence be decided in this case?" It was decided against the defendants on 28 June 1945. On the merits the trial Court framed three issues: (1) whether Mohan Lal and the plaintiff were not members of a joint Hindu family; (2) whether the house was joint Hindu family property; and (3) whether the plaintiff was in possession of the portion sued and was dispossessed by the defendants. The trial Court found the family was joint, the house was purchased from joint funds, the plaintiff had been living in a portion and had been dispossessed, and decreed possession accordingly.
Defendants 1 and 2 appealed under S. 39, Punjab Courts Act; Santosh (defendant 3) was impleaded as respondent to the appeal. The appellate Court (Harnam Singh, J., with J.L. Kapur, J. concurring) heard the appeal and remitted the case to the trial Court for determination of maintenance and residence issues.
Legal Issues Presented
- Can the question of maintenance and residence be decided in this suit? (Preliminary issue as framed by the Court)
- Were Mohan Lal and the plaintiff members of a joint Hindu family? (Issue on merits)
- Is the house in dispute joint Hindu family property? (Issue on merits)
- Was the plaintiff in possession of the portion sued and was he dispossessed by the defendants? (Issue on merits)
Arguments of the Parties
Plaintiff-Respondent's Arguments
- Prior to framing of issues plaintiff's counsel admitted that the plaintiff and his brother were members of a joint family and that the disputed property was joint Hindu family property; he asserted the plaintiff was in actual possession of the rooms sued for and conceded that if his possession allegations were incorrect he would be entitled only to joint possession of the whole property.
- The plaintiff pleaded forcible dispossession in May 1943 and led witnesses in support, though the appellate Court found the evidence on dispossession to be conflicting.
Appellants / Defendants' Arguments
- Mr. Daulat Ram Manchanda (learned counsel for the appellants) contended that the trial Court's findings that the brothers formed a joint Hindu family and that the house had been purchased from joint funds were not supported by the evidence.
- He further argued that the plaintiff had never been in possession of the property in suit and, in any event, the appellants had a right of residence and maintenance; accordingly the plaintiff should not have been given an unconditional decree for possession but only a decree subject to provision for the defendants' maintenance and residence.
- The defendants' case at trial was that the widow had been in possession of the whole house after her husband's death, had occupied part herself, and had rented out portions which did not provide sufficient rent to maintain the defendants.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dhanraji Kaur v. Ram Raj, A., I. R. 1942 ALL. 135 : (199 I. C. 595) | The practice/principle that a reversioner should not be allowed to recover family property from a widow entitled to maintenance out of it without first securing proper provision for her maintenance from the property; it is in the interests of justice to make provision so the widow is not forced to bring a separate suit for maintenance. | The appellate Court followed the rule in Dhanraji Kaur, held the trial Court erred in deciding the preliminary issue against the defendants, and remanded the case so the trial Court could determine maintenance and residence before passing final possession decree. |
| Yellawa v. Bhimangavda, 18 Bom. 452 | Cited in Dhanraji Kaur as supporting the practice of not allowing an heir to recover family property from a widow without securing proper maintenance provision out of the property. | Referred to as an antecedent authority noted in Dhanraji Kaur; the appellate Court relied on the same underlying principle that it is proper to secure maintenance/residence provision rather than compel a separate suit. |
Court's Reasoning and Analysis
The appellate Court reviewed factual findings and legal principles as follows:
- On the question whether the family was joint, the Court observed the general presumption that a Hindu family is joint in food, worship and estate and that, in the absence of proof of division, the family remains joint. This presumption was supported by entries in the bahis showing expenditure from joint funds on family occasions (e.g., marriages), and the Court concluded that separation had not been proved and the presumption of unity remained unrebutted.
- Regarding the source of funds for purchase of the house, the Court relied on bahis entries indicating that the purchase money came from joint funds and therefore found the house was purchased by the two brothers as coparceners rather than as joint tenants.
- On the issue of actual possession (issue 3), the Court found the plaintiff failed to prove he had been in actual physical possession up to the time of alleged forcible dispossession. The plaintiff's witnesses gave conflicting evidence as to the time of dispossession; by contrast the defendant maintained a consistent case that she had been in possession of the whole house after her husband's death, that she lived in part and rented other parts, and that rents were insufficient for maintenance. The Court concluded the burden on the plaintiff to prove dispossession was not discharged.
- With respect to the preliminary issue (whether maintenance and residence could be decided in the case), the appellate Court analysed Hindu law principles: where a coparcener takes property by survivorship, he takes it subject to the burden of maintaining the widow and unmarried daughters. The Court held that this maintenance right is connected to the property and is not merely personal; thus provision should be made for maintenance and residence before granting possession to the survivor.
- The appellate Court relied on the precedent in Dhanraji Kaur v. Ram Raj to adopt the practice that courts should not force defendants (widow and daughters) to bring a separate suit for maintenance and that the trial Court should secure proper provision for maintenance/residence out of the estate before decreeing possession to the reversioner. Applying that principle, the appellate Court found the trial Court erred in deciding the preliminary issue against the defendants without determining maintenance/residence entitlements.
- Because no evidence had been taken on the quantum of maintenance or on the accommodation sufficient for the defendants' residence, the appellate Court remitted the case to the trial Court to determine two specific issues: (1) How much maintenance are the defendants entitled to; and (2) What portion of the house would be sufficient for their residence.
Holding and Implications
Final Ruling: The appellate Court allowed the appeal, set aside the decree of the trial Court, and remitted the case to the trial Court to determine (1) the amount of maintenance to which the defendants are entitled and (2) the portion of the house sufficient for their residence; the trial Court was directed to examine evidence on these issues and then pass a decree in accordance with law.
Implications:
- The direct effect is that the trial Court's decree for possession in favour of the plaintiff has been set aside and the matter is remitted for specific determination of maintenance and residence claims of the widow and unmarried daughters before a final possession decree is granted.
- The appellate Court followed existing authority (Dhanraji Kaur v. Ram Raj) in applying the principle that the defendant entitled to maintenance should not be compelled to bring a separate suit; the opinion does not purport to lay down a novel or separate precedent beyond applying that rule to the facts here.
- As to costs, the parties were ordered to bear their own costs throughout.
Harnam Singh, J.
1. Mehta Khushi Ram plaintiff-respondent instituted the suit out of which this appeal has arisen on 17th March 1916 for possession of the suit property alleging that be and his brother Mehta Mohan Lal deceased formed a joint Hindu family and that the house in suit had been purchased out of the joint Hindu family funds. He, further alleged that on the death of Mehta Mohan Lal on 14th March he had become sole owner of the suit property by survivorship. The plaintiff then alleged that a portion of the house had been used by the plaintiff for his residence and the other portion by the widow of Mehta Mohan Lal, adding that for some time Shrimati Sodhan widow of Mehta Mohan Lal deceased and her two daughters were joint in mess with him, but later on they started separate mess although the expenses of that mess were borne by the joint Hindu family. In 1941, the relations between the plaintiff and Shrimati Sodhan defendant, however, became attained with the result that Shrimati Sodhan brought a criminal complaint under S. 420, Penal Code, against Mehta Khushi Ram and then on 14th March, she brought a complaint under S. 107 read with S. 151, Criminal P. C., against the plaintiff. In the security proceedings, Mehta Khushi Ram was arrested. He then shifted to the adjoining house and then Shrimati Sodhan took forcible possession of that part of the house which had been in possession of the plaintiff. Upon these allegations the plaintiff claimed possession of the house in suit excepting the portion shown black in the plan, Ex. P-32.
2. Shrimati Sodhan, Sushila and Santosh, two unmarried daughters of Mehta Mohan Lal, resisted the suit pleading that though the property in suit was purchased jointly, yet Mehta Khushi Ram and Mehta Mohan Lal did not form a joint Hindu family at that time. In any case the defendants pleaded that ever since the purchase of the house, defendant 1 had been living in the house and that the house in dispute was insufficient for the residence and maintenance of the defendants. Before the issues were framed the parties were examined. At that stage counsel for the plaintiff stated:
The plaintiff and his brother L. Mohan Lal were members of joint family. The property in dispute is a joint Hindu family property. The plaintiff was in actual possession of the rooms for which he sues. He concede that in case his allegations about the possession are incorrect, he wilt only be entitled to joint possession of the whole property.
3. Upon the pleadings of the parties, the following preliminary issue was framed:
(1) Can the question of maintenance and residence be decided in this case?
4. Now, the preliminary issue was decided against the defendants on 28th June 1945. After deciding the preliminary issue the trial Court framed the following issues on merits:
(1) Were Mohan Lal and the plaintiff not members of joint Hindu family?
(2) Is the house in dispute joint Hindu family property?
(3) Was the plaintiff in possession of the portion sued and was he dispossessed by the defendants?
5. On issue 1 the trial Court found that Mohan Lal deceased and the plaintiff formed a joint Hindu family. On issue 2 the Court found that the house in suit had been purchased out of the joint Hindu family funds. Finding on issue 3 that the plaintiff had been living in a portion of the house in dispute, the trial Court decreed the suit for possession of the part of the house proved to have been in possession of the plaintiff before he was forcibly dispossessed.
6. From the decree passed by the trial Court, defendants 1 and 2 have come up in appeal under S. 39, Punjab Courts Act. Santosh, defendant 3, has been impleaded as a respondent to this appeal.
7. Mr. Daulat Ram Manchanda, learned counsel for the appellants, contends that the finding of the trial Court that Mehta Khushi Ram and his brother Mehta Mohan Lal deceased formed a joint Hindu family and that the house in suit had been purchased from joint Hindu family funds is not sustainable on the evidence examined at the trial. He then contends that plaintiff had never been in possession of the property in suit and at any rate, the appellants had the right of residence and maintenance and that the plaintiff should not have been given an unconditional decree for possession, but should have been given a decree subject to a provision for the maintenance and residence of the defendants.
(After discussion of evidence on the first point the judgment proceeds):
8. Now, generally speaking, the normal state of every Hindu family is joint and presumably every such family is joint in food, worship and estate. Indeed, in the absence of proof of division such is the legal presumption. This joint ness is supported in the present case by entries in the bahis which show expenditure from the joint funds on the occasion of marriages of Mehta Mohan Lal deceased and his daughters. For all these reasons I am of the opinion that it has not been proved that Mehta Khushi Ram and Mehta Mohan Lal had separated at any time. Given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint and the presumption of union in the present case has not been rebutted.
9. With regard to acquisition of the house in dispute from the joint Hindu family funds, I am again of opinion that the entries in the bahis place it beyond any doubt that the purchase money was paid out of the joint funds. As I have already found that Mehta Khushi Ram and Mehta Mohan Lal formed a joint Hindu family and considering that the consideration for the purchase of the house came out of the joint funds, I find that the house was purchased by the two brothers as coparceners and not as joint tenants.
10. And this brings me to issue 3. From a consideration of the evidence examined on issue 3, I am unable to hold that the plaintiff has been in actual physical possession of the property till he was dispossessed by the defendants. The plaintiff pleaded in the plaint that he was forcibly dispossessed in May 1943. The witnesses examined by him have given conflicting evidence with regard to the time at which the plaintiff was dispossessed. On the other hand the defendant has put up a consistent case that she has been in possession of the whole of the house after the death of her husband. She stated that she was living in a part of it and had rented a portion of the house to maintain herself and her unmarried daughters. In her evidence given at the trial she stated:
Rent of the portion of the house in occupation of the tenants was wholly insufficient to maintain the defendants.
11. For the reasons given above I find that the plaintiff has failed to prove issue 3, the burden whereof lay heavily upon him.
12. Mr. Manchanda then contends that the decision of the trial Court on the preliminary issue is not sustainable. As stated above, the trial Court found on 28th June 1945 that the question of maintenance and residence could not be decided in the case out of which this appeal has arisen. Now, under Hindu law, if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased co-parceners. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. That being so, provision should be made for the maintenance and residence of the defendants before the plaintiff can be given possession of the property in suit. A similar question arose in Dhanraji Kaur v. Ram Raj A. I. R. 1942 ALL. 135 : (199 I. C. 595). In that case Verma, J. said:
Learned counsel for the defendant-appellant urges that a decree for possession should not be passed in favour of the reversioner without making provision for the maintenance of the defendant. That the defendant is entitled to be maintained out of the estate cannot be denied. The only question that has been raised is whether it would be light to pass a decree in respect of the defendant's maintenance in this suit. Learned counsel for the plaintiffs-respondents has urged that no decree can be passed in favour of the defendant in this suit and that the only course open to the Court is to leave the defendant to seek her remedy by means of a suit if the reversioner does not pay the amount found by the Court below to be the proper amount of money which she is entitled to get from the estate for her maintenance. Learned counsel for the defendant-appellant has invited my attention to the case in Yellawa v. Bhimangavda, 18 Bom. 452. That case goes the whole length of the appellants' argument. There also the question as to the maintenance of the defendant was raised for the first time in second appeal. It is true that the learned Judges referred to an earlier decision of their Court and observed that it was the settled practice of that Court not to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property. I see, however, no valid reason why this Court should not follow such a practice.
13. Now, whatever distinction on matters of detail may exist between the case reported in Dhanraji Kaur v. Ram Raj, A. I. R. 1942 ALL. 135: (199 I. C. 595) and the present case, one thing is certain that the principle underlying the case appears to be that it is in the interests of justice that the defendant should not be forced to file a separate suit for maintenance. With great respect I follow the rule laid in Dhanraji Kaur v. Ram Raj, A. I. R. 1942 ALL. 135 : (199 I. C. 595) and find that the trial Court was in error in deciding the preliminary issue against the defendants.
14. No evidence has, however, been examined to show the accommodation required for the residence of the defendants and the amount of maintenance to be paid to them. The case must, therefore, be remanded to the trial Court to determine the following issues; (1) How much maintenance are the defendants entitled to ? (2) What portion of the house in dispute would be sufficient for the residence of defendants 1 to 3 ?
15. On the above finding I allow the appeal, set aside the decree of the trial Court and remit the case to the trial Court for the determination of the issues set out in the preceding paragraph. The trial Court will now examine evidence on the two issues set out above and will then pass a decree in accordance with law.
16. Considering, however, the circumstances of the case, the parties are left to bear their own costs throughout.
J.L. Kapur, J.
17. I agree.
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