Ashok Vidyarthi v. Srilekha Vidyarthi

Rakesh Sharma, J.:— Heard Sri. Ashok Vidyarthi, appellant, who has put in appearance in person and argued this Appeal.

2. As per record, the respondents are represented by their learned counsel Sarvasri, S.K Misra, R.K Awasthi, Pankaj Bhatia, S.R Pandey, B.D Tripathi, A.K Misra, Suresh Misra and A.K Pandey. The paper books filed by the appellant and the respondents are on record.

3. This is a First Appeal filed in this Court in the year 1987 and as such is one of the oldest First Appeal pending disposal in this Court. It has come up for final hearing before the Court.

4. As per the ordersheet, this case has been listed for final hearing on various dates during the last several years. An effort of reconciliation between the parties was also made on 25.4.2006 and 15.5.2006, but failed. The case was listed again on various dates, but no progress took place. However, under the orders of the Court passed on 23.1.2008, the case was to be listed amongst top five cases of the cause list. Interestingly on 31.3.2008, the learned counsel for the appellant had appeared, but no one had responded on behalf of the contesting respondents. The case was again listed for final hearing. From the order dated 12.1.2009, passed on the ordersheet, it appears that in this case three Miscellaneous Applications seeking substitution etc. were allowed and the legal heirs of respondents were brought on record. Lateron corrections were carried out accordingly. Km. Shreya Vidyarthi, said to be adopted daughter of Km. Srilekha Vidyarthi, respondent no. 1, has already been impleaded on the formal application moved by Km. Shreya Vidyarthi that she may be permitted to contest the Appeal as adopted daughter of Km. Srilekha Vidyarthi. This Application was allowed. As per order dated 18.5.2009, it appears that Km. Shreya Vidyarthi has been treated to be a major and she was permitted to contest the Appeal for her own legal right (as adopted daughter of respondent no. 1, Km. Srilekha Vidyarthi). Sri. A.K Pandey, learned counsel, had put in appearance to represent respondent no. 8, that is, Km. Shreya Vidyarthi (a major).

5. The case was takenup on 15.7.2009 in the revised list. Sri. Ashok Vidyarthi, the appellant, had put in appearance, but no one responded on behalf of the respondents. In the interest of justice, the Court had adjourned the hearing of the case for 16th July, 2009. On 16 July, 2009. Again the Court has waited for appearance of learned counsel for the respondents, but no one came forward to argue the case. It is noteworthy that the respondent nos. 1 to 4 have already died during the course of the litigation. The respondent nos. 5, 6, 7 and 8 are represented before this Court through their respective counsel. Their paper book is also available on record. This Court is dealing with this Appeal for the last 22 years whereas the original litigation, that is, Civil Suit No. 630 of 1978, Ashok Kumar Vidyarthi v. Km. Srilekha Vidyarthi was presented in the year 1978. Thus, the Court is left with no other option, but to hear the matter, conclude the arguments and deliver the judgment.

6. The Paper Book filed by the contesting respondents and their replies, counter affidavit, objections, version is on the record. These documents are being perused and considered. The written arguments have also been filed by Km. Srilekha Vidyarthi, which have been also perused and considered.

7. Km. Shreya Vidyarthi, respondent no. 8, adopted daughter of respondent no. 1, Km. Srilekha Vidyarthi, was permitted by this Court to put-forth her case through her counsel Sri. A.K Pandey, Advocate, who has also not put in appearance either on 15.7.2009 or on 16.7.2009

8. Through this Appeal, the appellant, Ashok Vidyarthi, has assailed the judgment and decree dated 19.8.1987, passed by the First Additional District Judge, Kanpur in the aforementioned Suit No. 630 of 1978. This Suit was filed in the year 1978 seeking permanent injunction against the respondents, Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi, appellant's step sisters, restraining them from ejecting him from the house/Bungalow in Suit situate at 7/89, Tilak Nagar, Kanpur. The plaintiff-appellant had also sought, in the alternative, a decree of partition to the extent of 1/10 share of plaintiff-appellant, separating his share by metes and bounds.

9. The plaintiff-appellant's case is that late Sri. Hari Shankar Vidyarthi, father of plaintiff-appellant and respondent nos. 1 and 2, Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi, had died on 14.3.1955 Late Hari Shankar Vidyarthi, after his death in 1955, had left behind him his two widows, first wife-Smt. Savitri Vidyarthi, mother of the plaintiff, Ashok Vidyarthi, second wife-Smt. Rama Vidyarthi (now deceased), that is, step mother of the plaintiff appellant and the mother of Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi, respondents herein.

10. The plaintiff-appellant was the only son born out of the wed lock between late Hari Shankar Vidyarthi and his first wife Smt. Savitri Vidyarthi. Lateron Sri. Hari Shankar Vidyarthi had married Smt. Rama Vdiyarthi and out of this wed lock, Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi were born. For convenience, the family tree and Genealogy is being given below:-

11. This Genealogy is admitted to all the parties to the case.

12. It was submitted before the trial court and this Court that even during the life time of Sri. Hari Shankar Vidyarthi and after his death, Smt. Rama Vidyarthi, his second wife (step mother of the appellant) had dominated the affairs of the family. She won-over the confidence of Sri. Hari Shanker Vidyarthi, his first wife Smt. Savitri Vidyarthi as well as of the plaintiff-appellant, Ashok Vidyarthi. In fact, she was managing the day to day affairs of the entire family. Smt. Rama Vidyarthi was the nominee of an Insurance Policy of late Sri. Hari Shankar Vidyarthi. She was receiving a sum of Rs. 5,00/= per month on behalf of the plaintiff-appellant from ‘Pratap Press Trust, Kanpur’ of which Sri. Hari Shankar Vidyarthi, his father, was the Managing Trustee.

13. It has been argued by the appellant that Smt. Rama Vidyarthi, his step mother, had received a sum of Rs. 33,000/= out of the insurance policy of his father late Sri. Hari Shanker Vidyarthi. According to him, she was the managing coparcenery constituted of plaintiff-Smt. Savitri Vidyarthi, the first wife and second wife, Smt. Rama Vidyarthi. According to the Appellant, Smt. Rama Vidyarthi had purchased House No. 7/89, Tilak Nagar, Kanpur in the year 1961 from the joint Hindu Family funds, that is, Rs. 33,000/- out of the amount received by her as money of the Insurance policy and Rs. 15,000/= were obtained as advance of maintenance allowance at the rate of Rs. 5,00/- per month from the ‘Pratap Press Trust’. The joint family took over the possession of the house in suit as joint property and all the members of the family including the plaintiff-appellant, his mother and his two step sisters lived in the same house, that is, House No. 7/89, Tilak Nagar, Kanpur.

14. Lateron in the year 1968, the relations between the members of the family, that is, plaintiff-appellant, Ashok Vidyarthi, his real mother, Smt. Savitri Vidyarthi on one hand and Smt. Rama Vidyarthi, his step mother and her two daughters, Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi, appellant's step sisters became strained. The plaintiff and his real mother, Smt. Savitri Devi went to Allahabad and when they returned to Kanpur, the Defendants, respondents herein, Smt. Rama Devi, Km. Srilekha Vidyarthi and Km. Madhulekha Vidyarthi, Appellant's step mother and step sisters, did not allow them to enter the house. They were surprised with this changed behaviour of the Defendant-respondents. Not only this, Smt. Rama Devi, together with her above mentioned two daughters, filed a Suit No. 37 of 1969, Smt. Rama Devi v. Smt. Smt. Savitri Devi, Ashok Vidyarthi and Smt. Nirupama Vidyarthi (wife of plaintiff-appellant). This Suit was decreed on 5.2.1976 The appellant and his mother, Smt. Savitri Devi had also filed a Suit on the basis of title, but this Suit was rejected.

15. The Defendant nos. 1 and 2, respondents herein, had contested the Suit filed by the appellant by filing written statement denying the fact that there was coparcenery. According to the respondents, there was no coparcenery and joint family. According to them, the house in Suit, that is, House No. 7/89, Tilak Nagar, Kanpur, was purchased by Smt. Rama Vidyarthi, the second wife of Hari Shanker Vidyarthi, from her own funds and not from coparcenary and joint family funds. There were no such funds with the family and the respondents even denied that there was any such family as described by the appellant, Ashok Vidyarthi. According to the respondents, the appellant-plaintiff had abused the process of the court. Other technical grounds were also taken. On the pleadings of the parties, following issues were framed by the learned lower court.

“(1) Whether the suit is under valued?

(2) Whether the court fee paid is insufficient?

(3) Whether this court has no jurisdiction to try the suit?

(4) Whether the suit was not maintainable and was barred by time?

(5) Whether the house in suit belongs originally to Hari Shanker Vidyarthi the father of plaintiff?

(6) To what relief, if any, is the plaintiff entitled?

(7) Whether the house in suit belongs to Smt. Rama Vidyarthi as alleged in written statement of defendant nos. 1 and 2?

(8) Whether counter claim is under valued? If no, whether the court fee paid is insufficient?

(9) Whether the counter claim is liable to be rejected as alleged in para no. 7 and 8 of plaintiffs' replication U/o 8, Rule 6-A and its proviso?

(10) Whether the property in suit is a joint Hindu family property and purchased from joint Hindu family funds in the hands of the heirs of Hari Shanker Vidyarthi, if so, its effect?

(11) Whether Smt. Rama Vidyarthi was the managing coparcener, if so, its effect?

16. The plaintiff-appellant, Ashok Vidyarthi, had filed following documents in support of his submissions:-

(a) A certified copy of the affidavit of Smt. Rama Vidyarthi, dated 9.8.1968, in Suit NO. 147/1968, Smt. Savitri Vidyarthi v. Rama Vidyarthi-EXt.1

(b) Certified copy of order of IInd Civil Judge dated 19.10.1968 in Suit No. 147 of 1968, Savitri Vidyarthi v. Rama Vidyarthi on temporary injunction application 8-C allowing the interim injunction application 8-C Ext.2

17. Defendant nos. 1 and 2, respondents herein, now deceased, had filed following documents:-

(a) Copy of order of Munsif in O/S. No. 630/1978 on 8-C, application for interim injunction dated 15.7.78 rejecting plaintiff's application for injunction Ext.1

(b) Copy of formal order of the above original suit, Ext.A-2.

(c) Copy of statement dated 23.8.74, Ext.-3.

(d) Photostat copy of sale deed dated 27.9.61 in favour of Rama Vidyarthi paper no. 35-C.

(e) Copy of affidavit of Savitri Vidyarthi in suit no. 147 of 1968, Savitri Vidyarthi v. Rama Vidyarthi dated 31.7.68, Ext. A-4.

(f) Copy of written statement of Defendant no. 2 in suit no. 147/68 Ext. A-5.

(g) Copy of judgment in Suit no. 37 of 1969, Smt. Rama Vidyarthi v. Savitri Vidyarthi dated 4.2.76 whereby the suit U/s 6 of S.R Act was decreed, Ext. A-6.

(h) Copy of affidavit of Ashok Vidyarthi dated 16.5.78 in Ex. Case No. 4 of 1976 arising from O/S. No. 37/1969, Ext. A-7.

(i) Copy of affidavit of Ashok Vidyarthi in Ex. Case No. 4/76, Ext. A-8.

(j) Copy of (uncertified) of Suit NO. 21/70 of 1978, Ashok Vidyarthi v. Shri Lekha Vidyarthi in the court of Civil Judge.

18. The above documents are on record and have been perused.

19. The Defendant nos. 1 and 2 had examined Km. Shri Lekha Vidyarthi as DW-1 and the evidence was closed. The trial court had dealt with all the major issues and has held that there was no coparcenery established. There was no unity of interest in the immoveable property of the plaintiff-appellant, Ashok Vidyarthi, his first mother Smt. Savitri Vidyarthi and Smt. Rama Vidyarthi. The amount of insurance money, that is, Rs. 33,000/= belonged to the family run by Smt. Rama Vidyarthi. It was drawn by her under the authority of nomination. The plaintiff-appellant and his mother could have claimed the money of their share from Smt. Rama Vidyarthi by way of a Suit. As per the trial court, there was no “Joint Hindu Family” or “coparcenery” established in the circumstances of the case. The property was purchased by Smt. Rama Vidyarthi out of the funds gathered by her from the insurance policy amount and her other sources. According to the trial court, at the best, the purchase of the property out of insurance amount and the amount received from ‘Pratap Press Trust’ was usurpation of money by Smt. Rama Vidyarthi, but such usurpation of money does not confer any entitlement to share the property. The trial court has taken into account the fact that Ashok Vidyarthi, the appellant, had remained silent when the property was purchased in the name of Smt. Rama Vidyarthi. No suit for cancellation of sale deed was filed at the relevant time. The judgments rendered in the Civil Suit No. 37/1969 and 21/1970 etc. were taken into account and the trial court had held that the decree of Suit No. 37/1969 could be executed. The decree against the appellant was concluded. The appellant was challenging the decree passed in Suit no. 37/1969 on whatever grounds, the same could not have been challenged by bringing a separate suit. The suit itself was not maintainable. The suit brought by appellant's mother, Smt. Savitri Vidyarthi against the subject matter was dismissed in the year 1975. The relief of permanent injunction was denied. Section 41 of the Specific Relief Act bars a person from seeking injunction against a person in a judicial proceeding. According to the trial court, the plaintiff-appellant could not prove that the property in Suit was acquired by Smt. Rama Vidyarthi from joint Hindu family or coparcenery funds. No irreparable injury was to be caused to the parties. No injunction was granted by the Trial court. The trial court had referred the decisions reported in 1977 AIR SC 2069, AIR 1949, Allahabad 545, AIR 1977 SC 1724 and 1965 AIR SC 280, but did not discuss the same in the judgment. The counter claim, filed by the Defendant nos. 1 and 2, respondents herein, for use and occupation of the property in dispute was allowed by the trial court. The plaint was dismissed. The liability of payment of damages for use and occupation of the House No. 7/89, Tilak Nagar, Kanpur was also fastened on the appellant vide judgment and order dated 19.7.1987

20. The appellant, Ashok Vidyarthi, has assailed the judgment and order on several grounds. According to him, learned lower court has erred in holding that the Suit for title was barred after the decree under Section 6(1) of the Specific Relief Act was passed. It has wrongly held that the Suit under Section 6(4) of the Specific Relief Act was barred by Section 41 of the said Act. This finding of the learned lower court is against the law laid down by a Division Bench of this Court in a decision reported in AIR 1978, Allahabad, 418. The appellant has read the relevant provisions contained in the said Sections as well as the relevant paragraphs of the judgment relied upon by him. It has been submitted by the appellant that the learned lower court had erred in completely disregarding the material rule of presumption as has been laid down in AIR 1977 SC 2069 (Full Bench) read with AIR 1965 SC 289 (Full Bench).

21. The Appellant has submitted that in the present case Smt. Rama Vidyarthi, a widow covered by the Hindu Women's Rights to Property Act, 1937, was not only a coparcener, but also the House in dispute was purchased out of the joint family nucleus.

22. As per the appellant the House in dispute may be in the name of a member of the joint Hindu family and, thus, the House in dispute was a joint Hindu family property. The Insurance money paid to the nominee, that is, late Smt. Rama Vidyarthi was the estate of appellant's father, late Hari Shankar Vidyarthi. Its status was of joint family nucleus. After the death of late Hari Shankar Vidyarthi, a mere nomination under Section 39 of the Insurance Act did not confer any title solely upon the nominee. The law is settled in this regard. He has placed reliance on a judgment rendered by the Hon'ble Apex Court as reported in 1984 ALJ 194 (SC). The nomination in insurance policy no title. The money so received belongs to the assured person and after his death to his family. Similarly other decisions were also cited by Sri. Ashok Vidyarthi, appellant, to lay stress on his submissions.

23. It has also been submitted by the appellant that the learned lower court had failed to appreciate the admission made by Smt. Rama Vidyarthi in her affidavit dated 9.8.1968 (page 132 of the paper book). Her submissions on oath made in the affidavit were enough to establish the strong presumption that the family was living in jointness with second wife Smt. Rama Vidyarthi acting as “Manager or Karta” of the family. The relevant paragraphs of the affidavit of Smt. Rama Vidyarthi were read in the open Court. As per appellant, the admission is best and substantive evidence of an fact admitted and has relied upon the judgments reported in (1974) 1 SCC 78 and AIR 1960 SC 100 in this regard. The House was purchased out of the insurance money & other funds of the family. The legal heirs of Hari Shankar Vidyarthi and his two wives were living jointly. The appellant was educated and taken care of by his step mother, Smt. Rama Vidyarthi. By her efforts, he got married. All the arrangements of his marriage with Smt. Nirupama Vidyarthi were made by his step mother, late Smt. Rama Vidyarthi. The joint family, including step son, two sisters and wives of late Hari Shankar Vidyarthi etc. were living jointly in the same House, that is, 7/89, Tilak Nagar, Kanpur. Thus, it cannot not be said that the House in dispute was not a joint family property as has been laid down by the Hon'ble Apex Court in the judgment reported in (1973) 2 SCC 334 and AIR 1965 SC 289. It can be inferred that Smt. Rama Vidyarthi was acting as Karta and Manager of the property and the family. She could act as Manager or Karta of the jointly as mentioned under the Hindu Women's Right to Property Act, 1937. He has placed reliance on a judgment of the Hon'ble Apex Court as reported in (1977) 3 SCC 385 in support of his submission.

24. Appellant has further submitted that it is wrong to say that the House is still Smt. Rama Vidyarthi's or her daughters' property. No evidence was placed to establish this fact. Merely by receiving insurance money and purchasing the House in dispute in her name out of that money by his step mother, Smt. Rama Vidyarthi would not establish that the house in dispute was a separate and independent property. Everyone of the family, as indicated above, was enjoying use and occupation of the property.

25. As far as maintainability of the Suit is concerned, Sri. Ashok Vidyarthi, the appellant, has made submissions in the light of Section 6(4) of the Specific Relief Act and the decision reported in AIR 1972 All. 418 wherein it has been held that the suit could be filed.

26. As far as the quantum of share is concerned, the principle of sharing lies in Section 3 of the Hindu Women's Right to Property Act. The share decreases by marriage and by birth. The appellant's original half share is reduced to 1/10 now (because of is marriage and by birth of three issues). As far as Smt. Savitri Vidyarthi, the first wife of late Hari Shankar Vidyarthi and mother of Appellant and Smt. Nirupama Vidyarthi, the appellant's deceased wife, are concerned, by will they gave their shares to appellant's sons Ashish and Manish. Therefore, the appellant should get 1/10 share. The remaining shareholders, after payment of due court fee can get their shares divided by metes and bounds. The appellant cannot be ejected from the house in dispute, which belongs to the joint Hindu Family.

27. None of the counsel for the respondents (though there are several counsel) has put in appearance, but a written argument in Hindi is already on record. It was filed in the Court in April, 2008. These written arguments have been filed on behalf of Km. Shrilekha Vidyarthi and Km. Shreya Vidyarthi, through her guardian Km. Shrilekha Vidyarthi, respondent nos. 7 and 8.

28. The respondents have reiterated the submissions made before the trial court. According to Km. Shrilekha Vidyarthi, now deceased, and Km. Shreya Vidyarthi, there was “no coparcenery” and there was no “Joint Hindu Family”. The House in Suit, that is, 7/89, Tilak Nagar, Kanpur was purchased by Smt. Rama Vidyarthi from her own funds and not from coparcenery and Joint Hindu family funds. There was no such fund of any such family. According to these respondents, there did not exist such a family. The appellant did not led the decree passed in Suit No, 37 of 1969 executed by adopting one tactics or the other and has abused the process of law. The Bungalow, that is, House NO. 7/89, Tilak Nagar, Kanpur was purchased for Rs. 46,000/= out of the funds available with late Smt. Rama Vidyarthi. According to the respondents, Smt. Savitri Vidyarthi, the first wife of late Hari Shankar Vidyarthi had also shared the insurance money, which is evident from the pleadings put-forth before the trial court. The appellant has entered in the House by force. He had no right to continue in the property in dispute. The appellant was also a trustee of ‘Pratap Press Trust’. At one place, the appellant had claimed himself to be a licensee of one Goraha and on the other hand he is claiming 1/10 share in the house in dispute. This clearly shows that he had no right or claim in the property in dispute. The appellant has concealed some material facts from the court, which have been highlighted in the objections. He had not carried out the undertaking given in the court on 11.9.1978 and 4.10.1988 The whole case set up by the appellant is fabricated and manufactured. The appeal is barred by the principles of promissory estoppel. The respondents have placed reliance on following judgments:-

1. (2007) 3 SCC 449

2. AIR 1994 SC 853

3. AIR 1992 Allahabad 198

4. AIR 1979 SC 621

5. AIR 1986 SC 806

6. Judgment rendered on 26.8.2004 in Writ Petition No. 32055 of 2004, Ashok Vidyarthi v. Shrilekha Vidyarthi.

29. I have heard learned counsel for the appellant, perused the pleadings of the parties, impugned judgment rendered by the trial court, written arguments, the case laws submitted by the appellant, Ashok Vidyarthi and the respondents, late Km. Shrilekha Vidyarthi and Km. Shreya Vidyarthi, through her guardian.

30. Km. Shreya Vidyarthi has now become major and by orders of the court dated 18.5.2009 She is now represented through her counsel Sri. A.K Pandey.

31. As per family tree and Genology placed before the Court late Hari Shankar Vidyarthi had adittedly died on 14.3.1955 leaving behind two wives, that is, Smt. Savitri Vidyarthi, his first wife and Smt. Rama Vidyarthi, second wife. Sri. Ashok Vidyarthi, the appellant, is the son of first wife Smt. Savitri Vidyarthi, who had lateron married to Smt. Nirupama Vidyarthi (now deceased) and has two sons Ashish and Manish and one daughter, Anupama.

32. The second wife, late Smt. Rama Vidyarthi, out of the wedlock with late Hari Shankar Vidyarthi, had two daughters, Km. Shreilekha Vidyarthi and Km. Madhulekha Vidyarthi. Now both the daughters had died. Km. Shrilekha Vidyarthi had adopted one daughter, Km. Shreya Vidyarthi, who is respondent no. 8 herein. Km. Shreya Vidyarthi has now become major.

33. At the outset this Court, after going through the pleadings of the parties and appreciating the materials on record is of the view that Km. Shreya Vidyarthi, respondent no. 8, does have a definite legal right in the property in dispute, that is, House NO. 7/89, Tilak Nagar, Kanpur. This Court recognises her legal rights as a grand daughter of late Hari Shankar Vidyarthi and daughter of late Km. Shrilekha Vidyarthi. She has a right to enjoy the benefits of the property in dispute as a shareholder to the extent of her share only.

34. After making the above declaration about the status of Km. Shreya Vidyarthi, this Court proceeds further

35. It emerges from the record that at the time of death of late Hari Shankar Vidyarthi, that is, on 14.3.1955, he was living with his two wives, Smt. Savitri Vidyarthi and Smt. Rama Vidyarthi, only son Ashok Vidyarthi, the appellant and two daughters, Km. Shrilekha Vidyarthi and Km. Madhulekha Vidyarthi. From the materials on record, the whole picture emerges of a “Joint Hindu Family”. The “Joint Hindu Family” was living together with its six members in the year 1961. Admittedly, no dispute arose in the year 1951 and 1961 and till 1968. However, the House in dispute, that is, 7/89, Tilak Nagar, Kanpur was purchased for Rs. 46,000/= in the year 1961. It is noteworthy that Smt. Savitri Vidyarthi and Smt. Rama Vidyarthi, both wives of late Hari Shankar Vidyarthi, alongwith their only son, the appellant, and two daughters were peacefully living in the said house. There is nothing to show that any litigation took place around 1961.

36. It has come on record that the appellant, Ashok Vidyarthi, got married with Smt. Nirupama Vidyarthi (now deceased) in the same house. It has also come on record that the arrangements of marriage and other related functions were organised by Smt. Rama Vidyarthi. She, from the pleadings of the parties appears, was an academician, a Lecturer in M.G Girls College, Kanpur and was taking keen interest in various social and educational activities in the Kanpur City. She was a well known figure as a member of Sri. Ganesh Shanker Vidyarthi's family. She and her step son were associated with ‘Pratap Press’ Kanpur, which was originally founded by late Sri. Ganesh Shanker Vidyarthi, a great freedom fighter, who had sacrificed his life for the freedom of India and communal harmony in the city of Kanpur. Several Institutions, in the Kanpur City, and other placed are named after him.

37. Late Smt. Rama Vidyarthi, had submitted an affidavit dated 9.8.1968 in Suit NO. 147 of 1968, Mrs. Savitri Vidyarthi v. Mrs. Rama Vidyarthi. The contents in the affidavit has been placed at placed at page nos. 132 to 144 of the paper book filed by the appellant. These pleadings were read in the Court by the appellant, Sri. Ashok Vidyarthi, in support of his submissions. Paragraph nos. 7 to 9 are relevant for the purposes of proper adjudication of the case, the same are being reproduced below:-

“7. That the contents of para 6 of the affidavit are not admitted. It is denied that the confidence of the plaintiff or her son was won tactfully. The deponent was a devoted Hindu wife and has a greater affection and love towards the plaintiff and her son as the deponent treated the plaintiff as her elder sister and her son as deponent's own son. The deponent was very much conscious about the family to which she belonged and the family to which she came and with a view to keep the prestige of family very high, the deponent always sacrificed her interests (whenever necessary). It was this sacrifice on the part of the deponent that maintained the family prestige and the name of the family. It is, however, incorrect that the common property was ever entrusted to the deponent. It is further denied that there is any natural aggressiveness in the deponent. The deponent not only wedded her husband but also his family traditions and his high social, moral and political principles. It was not her natural aggressiveness or her apparent behaviour that let her to wear the crown of Vidyarthi family's tradition and moral's but the deponent's deep-rooted devotion, affection and sympathy to serve the family friends and relatives of her husband. People of India wide fame of all spheres of life acknowledged her sincerity, loyalty and serviceability to the family. Shri Makhanlala Chaturvedi, Pt. Balkrishna Sharma, Shri Mathili Saran Gupta and Shri Govind Ballabh Pant always showered praise and confidence on deponent. The deponent's literary and political writings and running of daily and weekly Pratap as managing Trustee of the said paper after the death of her husband is clear proof of selfless services that she had done. It was simply by her highly cultured and emotional values that she had to carry the burden of running the institutions and family which was left orphan after the death of her husband.

8. That the contents of para 7 of the affidavit are not admitted as they stand. As far as the deponent is concerned she was an earning member at the time of her marriage, and she remained an earning member even after her marriage. Shri Ashok Vidyarthi, the son of the plaintiff, was only a minor aged about 16 years and not an earning member of the family when the deponent's husband died. A sum of Rs. 500/= was paid by the Pratap Trust for thebenefit and maintainance of Vidyarthi family. The deponent having great and natural affection for her husband remained only a guardian of the plaintiff's son in receiving the said money, though she was made the Managing Trustee and Chief Editor of the aforesaid paper as the Plaintiff had neither the capacity, nor education or confidence of the top intelligentia to bear such a big burden of the institution and the family which was left helpless by the untimely death of deponent's husband. It is denied that it was the plaintiff's son who was the earning member of the family. The said son was neither educated nor major and was not capable of shouldering such a big burden.

9. That the contents of para 8 of the affidavit are absolutely denied. The deponent's husband to safeguard the future of deponent had made the deponent the nominee of his life insurance policies in his life time and the money so received after his death was the deponent's money with which alongwith the own savings in the hands of the deponent and other gifts to her at the time of her marriage the bungalow 7/89-B, Tilak Nagar was purchased by the deponent. The house in question is the absolute property of the deponent. The deponent's husband had such a high social status that it was difficult for him to save any amount from his savings and hardly any amount worth name was saved by his earnings. As regards the plaintiff's jewellery, it had never been touched by the deponent and was never invested in purchase of aforesaid house. As far as the earnings of said Shri Ashok Vidyarthi is concerned, he was not at all making any at that time except the aforesaid Rs. 500/- which were for the maintainance of the family. But, such a small sum of money, it has always been a difficult task for the deponent to run and maintain the family but any how deponent managed and ran the family and tried her best to give the best possible education to the son and daughters of her husband.”

38. The said affidavit was filed in response to the Suit filed by Smt. Savitri Vidyarthi, the first wife of late Hari Shankar Vidyarthi. It is clear from the above submissions put-forth in the affidavit before the Second Civil Judge, Kanpur in Suit No. 147/1968, Mrs. Savitri Vidyarthi v. Mrs. Rama Vidyarthi that Smt. Rama Vidyarthi was playing a dominant role in the family. Thus, from the aforementioned averments made in the affidavit dated 9.8.1968, there appears to be substance in the submissions of the appellant, Sri. Ashok Vidyarthi, that Smt. Rama Vidyarthi was, in fact, managing the whole affairs of the family comprising of two widowed wives of late Hari Shankar Vidyarthi, a step son, Sri. Ashok Vidyarthi, Appellant and her two daughters. Admittedly, Appellant, Sri. Ashok Vidyarthi, was 16 years' of age at the time of death of his father. As has been submitted by the Appellant, Sri. Ashok Vidyarthi, he was under dominant influence of his step mother, late Smt. Rama Vidyarthi. She was in an advantageous position. How could a young boy of 16 years of age could raise an objection on his step mother's action as she purchased the House in question in the name of Smt. Rama Vidyarthi in the year 1961 for Rs. 46,000/=. It may be noted that in the year 1961, for such a family of middle class economic status where three children were being educated and had long way to go to settle in the life (as has been spelt out in the aforesaid affidavit), it was difficult to collect such a substantial/big amount. In the year 1961, the amount of Rs. 46,000/= was a big amount. Thus, the insurance money of Rs. 33,000/= received by Smt. Rama Vidyarthi appears to be a big amount and the same has been spent in purchasing the House in dispute.

39. Although the trial court has agreed that it could be a case of usurpation of money by Smt. Rama Vidyarthi for which legal action could have been taken in the year 1961, in the facts and circumstances of the case, appears to be a very difficult task for a step son who was just 21 years of age to initiate a litigation by filing a suit challenging the purchase of the house in dispute in his step mother's name. Since the family was living peacefully, it was difficult for a son to file a suit against his own mother (may be step mother) and that too while living in a joint family when the step mother was looking after all the affairs of the family according to her own version as made in the affidavit dated 9.8.1968

40. This Court has also taken note of the fact that the whole Vidyarthi family was living in the same house, that is, 7/89, Tilak Nagar after purchasing the same in the year 1961. Admittedly, differences started to crop up in the family in the year 1968, that is, seven years after the purchase of the house. The first wife, Smt. Savitry Vidyarthi, had filed a Suit. The only son, that is, Appellant, Ashok Vidyarthi had to pursue the litigation initiated by his mother against his step mother, that is, Smt. Rama Vidyarthi. During the pendency of the litigation, all the claimants to the property in dispute, that is two wives of late Hari Shankar Vidyarthi, two daughters, Km. Shrilekha Vidyarthi and Km. Madhulekha Vidyarthi had died. Now two members of this renowned family are alive, that is, real son, Sri. Ashok Vidyarthi, the appellant herein, and his three children an adopted niece Shreya Vidyarthi. He has already lost his wife Smt. Nirupama Vidyarthi. The adopted daughter of his sister, Km. Shrilekha Vidyarthi (Km. Shreya Vidyarthi) is the another beneficiary.

41. It has been admitted by Smt. Rama Vidyarthi, the second wife of late Hari Shankar Vidyarthi, and the step mother of the appellant, in her affidavit dated 9.8.1968 that she was the guardian of the son and the first wife of late Hari Shankar Vidyarthi. She ran the whole family after the death of late Hari Shankar Vidyarthi. She performed marriage of first wife's son. The House in Suit was purchased out of the insurance money of his husband of which she was the nominee. There is force in the submissions of the appellant, Sri. Ashok Vidyarthi that in the light of the above admission on oath made in an affidavit, it is amply clear that the family was living in jointness. The second wife, late Smt. Rama Vidyarthi was acting as the Manager and Karta of the family. Such admission could be best and substantive evidence of this fact. The appellant's case is covered by the judgments reported in (1974) 1 SCC 78 and AIR 1960 SC 100 cited by him.

42. As per admission of late Smt. Rama Vidyarthi that she was the nominee of the insurance policy out of which the house was purchased, this fact is proved that the purchase money belonged to the insured person, that is, late Hari Shankar Vidyarthi, after his death it will go to all his legal heirs. The law is well settled that the nomination in the insurance policy does not confer any title (Vide judgment reported in 1984 A.L.J 194 (SC) on the nominee. The legal heirs of late Hari Shankar Vidyarti were living jointly in the same house and as such the insurance money so received certainly became a joint family fund in the year 1955 at the time of death of the purchaser of the insurance policy. It was nucleus fund in the hands of such joint family and, therefore, the property purchased out of this money, as in the present case, could be treated as a joint family property (Vide judgments reported in AIR 1965 SC 289 and (1973) 2 SCC 334, Baikuntha Nath Paramanik (Dead) by his Lrs. and Heirs v. Sashi Bhusan Pramanik (Dead) By His L.Rs).

43. Now the question arises whether a woman can act as Karta or Manager of such family. Ordinarily, it is not, but a widow during the tenure of Hindu Women’ Right to Property Act, 1937, as it was in vogue between 1937 to 1956, the second wife, that is, Smt. Rama Vidyarthi, could have acted and has, in fact, acted as Karta or Manager of the joint Hindu Family, that is Vidyarthi family herein. This view finds strength from the judgment reported in (1977) 3 SCC 385, Controller Of Estate Duty, Madras v. Alladi Kuppuswamy Kuppuswamy.

44. In view of the above, it is unfounded to say that the House in dispute, that is, 7/89, Tilak Nagar, Kanpur was Smt. Ram Vidyarthi's separate property. Admittedly, the whole family was living in the same House as a joint Hindu Family. No evidence has been placed on record to establish this fact otherwise, rather the admissions made in the aforesaid affidavit, dated 9.8.1968, draw a different picture. The admission made in the said affidavit is best and substantive evidence of the fact admitted (Vide (1974) 1 SCC 78, Bishwanath Prasad v. Dwarka Prasad. The learned lower court has lost site of this important aspect while deciding the Suit. In view of the admission made by Smt. Rama Vidyarthi in her affidavit dated 9.8.1968 that she was the guardian of the appellant, Ashok Vidyarthi, son Smt. Savitri Vidyarthi, the first wife of late Hari Shankar Vidyarthi, taking his care as his own son, she ran the whole family after the death of late Hari Shankar Vidyarthi, she performed marriage of the appellant, she purchased the house in dispute out of the insurance money of her husband of which she was the nominee and the law laid down in the judgment of the Hon'ble Apex Court reported in 1984 ALJ 194 (SC), Smt. Sarbati Devi v. Smt. Usha Devi, it is settled that the nomination in insurance policies does not confer any title. In the said judgment the Hon'ble Apex Court has held that “A mere nomination made udner Section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured, in accordance with the law of succession governing them….” The money received from the insurance policy belongs to the assured person and as such after his death to his whole family. Thus, the amount so received from the insurance policy after the death of late Hari Shankar Vidyarthi was a joint nucleus fund.

45. The appellant's case is covered by the judgments reported in AIR 1972 All. 167 (FB), Raja Ram v. Mata Prasad, AIR 1965 SC 289, V. Narayanaswami Iyer v. Ramakrishna, 2004 (54) ALR 709 (SC), P.S Sai Ram v. P.S Rama Rao Pisey and AIR 2000 SC 2747, Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani. In Paragraph 15 of the judgment of the Hon'ble Apex Court in the case of V. Narayanaswami Iyer v. Ramakrishna (supra), it has been observed as follows:-

“15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.”

46. In the facts and circumstances of the case as well as the law laid down by the Hon'ble Apex Court and in the light of Section 6(4) of the Specific Relief Act, taking this legal provision with the law laid down by this Court in the judgment reported in AIR 1972 All. 418, Chunni v. Sullahar, the Suit was maintainable.

47. As far as the quantum of shares are concerned, the principles of sharing have been provided in Section 3 of the Hindu Women's Right to Property Act, 1937, which reads as follows:-

“3. Devolution of property-(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall subject to the provisions of subsection (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son:

Provided further that the same provisions shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any School of Hindu law other than the Dayabhaga School or by customary law dies having at the of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this sections hall be the limited interest known as a Hindu woman's estate, provided however, that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Success Act, 1925, applies.”

48. In a Joint Hindu Family, a male has a right to claim the share in the property. This right, he gets by birth and after his death his interest is transferred to his legal heirs by way of succession. Women become members of the Joint Hindu Family. In the present case, being the sole surviving coparcener, the appellant, Ashok Vidyarthi, can claim his rights in the property after the death of his father late Sri. Hari Shankar Vidyarthi, being his only son and the only male member of the Joint Hindu Family of late Hari Shankar Vidyarthi. Thus, being the only son and male member of the Joint Hindu Family of late Hari Shankar Vidyarthi, he became entitled for half share (50%) in the House in dispute (7/89, Tilak Nagar, Kanpur). The rest half share (50%) was to be divided between two surviving wives of late Hari Shankar Vidyarthi, that is, Smt. Savitri Vidyarthi, the mother of appellant, Ashok Vidyarthi and Smt. Rama Vidyarthi. According to the Hindu Women's Rights to Property Act, 1937, which was in vogue in the year 1955, when the father of the appellant, Hari Shanker Vidyarthi, had died, the appellant, Ashok Vidyarthi became entitled for half of the share in the House in dispute. Thus, under the said Act of 1937, Smt. Savitri Vidyarthi, the mother of the appellant and Smt. Rama Vidyarthi, two wives of late Hari Shanker Vidyarthi were entitled for 25% share each in the House in dispute. Accordingly, Km. Sri. Lekha Vidyarthi and Km. Madhu Lekha Vidyarthi, two daughters of Smt. Rama Vidyarthi, became entitled for their respective shares out of 25% share of their mother Smt. Rama Vidyarthi. Both the step sisters of the appellant, Ashok Vidyarthi have now died and as such Km. Shreya Vidyarthi, adopted daughter, who is surviving and is major, will also get 25% share in the property in dispute. The Hindu Succession Act, 1956 was not applicable or available in the year 1955 when Late Hari Shankar Vidyarthi had died. The Trial court had erred in applying the Hindu Succession Act of 1956 in the present case while in the opinion of this Court, the matter ought to have been dealt with in the light of the relevant law, that is, the Hindu Women's Rights to Property Act, 1937, which was in vogue in the year 1955 and the same position continued till 1956. The Hindu Succession Act was not in existence in the year 1955, when Late Sri. Hari Shankar Vidyarthi had died leaving behind his two wives, one male member, that is, his only son, the appellant and two daughters. It has been brought on record that Smt. Savitri Vidyarthi, first wife of late Hari Shankar Vidyarthi and appellant's own mother by will had given her share to appellant's two sons, Ashish and Manish. In view of this, the appellant shall also get 25% share of his mother in the property, being the share of his two minor sons, in Suit, that is, House No. 7/89, Tilak Nagar, Kanpur.

49. In view of the discussions made above, it is declared that 3/4 share of the property in Suit, that is, House No. 7/89, Tilak Nagar, Kanpur shall be the property of Sri. Ashok Vidyarthi, the appellant and his two sons, Ashish and Manish and Km. Shreya Vidyarthi, respondent no. 8, shall be entitled for 1/4 share in the property in Suit, that is, House No. 7/89, Tilak Nagar, Kanpur.

50. In the light of the findings recorded above, the First Appeal is allowed. The Original Civil Suit No. 630 of 1978 is decreed and the judgment and order dated 19.8.1987, passed by the Ist Additional District Judge, Kanpur Nagar is set aside.

51. Consequences shall follow immediately.

52. Since the judgment has been delivered today in the open Court, let the lower court's record, which was summoned, be sent back immediately to the lower court.

53. No order as to costs.