IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 2347 OF 2013
SUIT (L) NO. 1069 OF 2013
Jayamati Narendra Shah …Deceased
Uday Narendra Shah …Applicant(Plaintiff)
In the matter between:
Uday Narendra Shah …Plaintiff
Narendra Amritlal Shah …Defendant
Mr. Ashish Kamat with Mr. Bankim Gangar
i/b. Negandhi, Shah & Himayatulla for Plaintiff
Mr. Gaurang Mehta a/w. Ms. Nikita Menon for Defendant
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Judgment: 20th December, 2013
Date of pronouncing the Judgment: 18th January, 2014
1. The plaintiff is the son of the defendant. The defendant’s wife, the plaintiff’s mother, expired on 10th June, 2013 leaving behind a registered will dated 2nd July 2011. The plaintiff has sought administration of her estate. The plaintiff has also sought disclosure of the remainder of the estate which the plaintiff has no knowledge of. The plaintiff is the sole beneficiary under the will of the deceased which has been sought to be probated. The plaintiff claims to be the owner of the properties bequeathed by the deceased to him and the usual injunction against alienation of those properties.
2. In the suit the plaintiff has claimed partition of immovable properties that have been bequeathed to him and mandatory injunction directing to handover those properties to the plaintiff and the usual permanent injunctions against alienation.
3. The defendant has filed his affidavitinreply to the notice of motion to oppose the grant of adinterim reliefs. The plaintiff has filed the rejoinder thereto.
4. For considering the properties which constituted the estate of the deceased the cases of the respective parties are required to be seen for the grant of the injunctive reliefs claimed. The plaintiff has set out the properties comprising the estate of the deceased in the list of immovable properties ExhibitC and the list of movable properties, ExhibitD to the plaint. For the purpose of notice of motion, a consideration of the immovable properties is required.
5. The plaintiff claims 1/2 undivided share which the deceased had in flat No.14, Premkunj Coop. Hsng, Society Ltd., Sion (West), Mumbai400 022. The defendant resides in that flat. The plaintiff had left that premises upon certain disputes between the parties prior to the death of the deceased. In the notice of motion the usual injunctions against sale and alienation of that property would suffice.
6. The plaintiff also claims tenancy rights in the garage No.1 in Urvashi Building, Sion(West), Mumbai400 022. It is stated to be a parking garage. It is contended that it is neither a residential nor a commercial premises. It is not covered under Section 5(11) (c ) (i) or (ii) of the Bombay Rent Act, 1947 or Section 7(15)(d) of the Maharashtra Rent Control Act, 1999. It would have to be seen in the suit whether a garage would devolve upon any member of the family of the deceased upon the death of the tenant as a statutory tenant cannot bequeath the tenancy right as held in the case of Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis 1994 Mh.L.J. 1450; However that judgment considered a commercial or a residential premises. A parking garage in which user and occupation was only parking vehicles would not be on par with a residential or commercial premises in which some of the heirs of the deceased live or carry on business along with the deceased during the life time of the deceased. The garage may revert back to the owner upon the death of the tenant or may devolve upon the heirs in equal shares. Upon such consideration of the law the title which may pass upon the bequest would be considered. Pending that the garage must be protected against alienation and sale.
7. The plaintiff has made an unusual claim upon an unusual bequest under the will of the deceased. The will, ExhibitB to the plaint, shows inter alia as one of the properties of the deceased whatever “monies” that come to “my share” in the account of Narendra Amrutlal Shah (NAS) HUF which includes 1/3 share of NAS HUF in a bungalow situate at Ashwamegh Coop. Hsng. Society in Ahmadabad. The title of the deceased to give her a right to bequeath the property would have to be seen in the monies that would come to her share in a HUF of her husband, the defendant herein. The husband was alive on the date of the will as also on the date of her death. The deceased was not a widow. The deceased did not get the share which belonged to her husband in the HUF upon her husband’s death as per Section 3 of the Hindu Women’s Right to Property Act, 1937. The deceased was not a member of any HUF which owned a bungalow in which her husband, the defendant herein, had a 1/3 share. It is argued that the deceased was a member of the joint family of her husband along with her three children, the plaintiff being one of them and the other two being his step brothers. It is, therefore, argued on behalf of the plaintiff that the deceased had a 1/5 share in the 1/3 share which her husband had in the HUF which owned a bungalow. Hence the deceased would claim to be entitled to a 20% share of the HUF properties.
8. The deceased was the wife of the defendant. She was not a member of his joint Hindu family except as his wife. It is only when the defendant would constitute HUF for the purpose of his succession that his wife may be shown as the member of the HUF. The wife of a Hindu Coparcener in a HUF is not a Coparcener. She does not get any interest by virtue of her birth in her marital family. Only a person who would derive an interest by virtue of his/her birth in a family would become a Coparcener, a Coparcenery being a much narrower body than a Hindu Joint Family.
9. Counsel on behalf of the defendant has also produced the Law Lexicon page 416 showing the definition of coparceners thus : “Coparceners. Otherwise called Parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. Coparcener. One who shares (equally) with others in inheritance in the estate of a common ancestor [S. 6, expln. 1, Hindu Succession Act]”. It further shows coparcenery property thus: Coparcenary property. The expression ‘Coparcenary property’ includes property in which the deceased husband had an interest as a joint owner during his life time and, therefore, ancestral property. Coparcenary property means the property which consists of ancestral property, or of joint acquisitions, or of property thrown into the common stock and accretions to such property.”
10. The rules and existence of coparcenary or joint family properties enumerated in the case of State Bank of India Vs. Ghamandi Ram AIR 1969 SC 1330 have been considered by this Court in the case Shalini Sumant Rauth Vs. Milind Sumant Rauth by this Court in Chamber Summons No. 492 of 2012 in Suit No. 143 of 2010 which sets out in para 7 thereof the interest of a coparcener in a joint family property and the distinction between the coparcenary and a joint family property. The interest in a co parcenary is only by virtue of the birth. However some of the various rules of joint Hindu family and coparcenary property enunciated in Mulla’s Hindu Law, Twentieth Edition, VolumeI, Chapter XII set out in that judgment require enunciation:
1. Male issues acquire an interest in coparcenary property from the moment of their birth [page 357].
2. A Hindu coparcenary is a narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property are synonymous) [page 359].
3. The persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grandsons and greatgrand sons of the holder of the joint property. They become entitled to joint property upon their birth [Page 359].
4. A joint Hindu family has a common male ancestor with his lineal descendants in the male line [pages 361 & 362].
5. A female cannot be a coparcener although she may be a member of a Joint Hindu Family (the position in law has changed upon the amendment to Section 6 of the Hindu Successions Act, 1956 by the amendment of 2005. That amendment applies to daughters of a coparcener and not to a wife of a coparcener) [page 362]..
6. The ownership of a joint family property is with the coparceners consisting of the Karta and his sons. They are the coowners or coparceners (Hence the expression coowners and coparceners are synonymous) [page 364].
7. The ownership of a coparcenery is in the whole body of coparceners. (Hence it would exclude their wives. Wives cannot be coparceners in a coparcenary. Only the coparceners would be coowners. Hence a wife would not coown a share along with her husband in the HUF of the husband [page 366].
8. Coparcenery interest is fluctuating. It is enlarged by the deaths in the family; it is diminished by the births in the family. Such interest is called undivided coparcenary interest (The death of a wife of a coparcener cannot augment or diminish the share of the other coparceners or coowners) [ page 366].
9. On the death of a coparcener the others take by survivorship the share which he had in common earlier. Such share cannot entirely devolve upon the wife. Otherwise the very concept of coparcenary would be destroyed. It would tantamount to the wife succeeding to the estate of the husband in the coparcenary absolutely [page 366].
10. The interest of the deceased member passes on his death to the surviving coparcener(and not to the wife) [page 366].
11. A coparcener has joint interest or joint possession in joint family property or coparcenary property (his wife cannot have interest jointly with the other coparceners) [page 370].
12. On the death of a coparcener his interest in the coparcenary property does not pass by succession to his heirs; it passes by survivorship to the other coparceners (This was the position in old uncodified Hindu law. There was a departure therefrom under Section 6 of the Hindu Succession Act, 1956 under which a male Hindu dying intestate leaving behind female heirs or male heirs claiming other female heirs would have their share in the coparcenary property devolved by succession and not by survivorship).
13. The coparceners have community of interest and unity of possession. Hence no coparcener can have exclusive possession of any part of the property (no coparcener can, therefore, also alienate or have a bequeathable interest in any specific part of the property) [page 409].
14. No coparcener can predicate at any given moment what his share in joint family property is. No member would be entitled to a definite share in joint family property or in its income [page 409].
15. Each coparcener is entitled to joint possession and in enjoyment of family property. (Since no coparcener can have any exclusivity of possession or interest, no such interest can be bequeathed or succeeded) [ page 410].
16. A coparcener excluded from joint possession is entitled to enforce his right by a suit. He is not bound to sue for partition. He is entitled to sue for joint possession and enjoyment. (Such a right is not available to a wife of a coparcener except for enjoyment and possession of a property which is her matrimonial home or shared residence) (See Section 17 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) [page 410]
17. The right to enforce a partition and the right of survivorship go hand in hand. “It is the right to partition which determines the right to take by survivorship” [See Anant Vs. Gopal (1895) 19 Bom 269].
11. The aforesaid principles of law show that in a HUF only sons (vertically) and brothers (laterally) would constitute a coparcenary in a joint Hindu family; their wives may be members of the joint Hindu family but are not coparceners. The proprietary rights are of a coparcener if the joint Hindu family owns any joint property. The wives of coparceners do not get any interest in joint property owned and held by coparceners who are coowners. The wives of the co owners do not get any interest by virtue of their birth. It is only a Hindu widow who gets the interest of her husband in the coparcenary or joint family property upon the death of her husband. That interest enables her to claim maintenance and residence. Only a widow can demand partition of the interest which her deceased husband would have been entitled.
12. The position of a wife even as regards the right of partition in Mitakshara law has been considered in Mulla’s Hindu Law, Twentieth Edition, Volume I, paragraph 314 at page 579 thus : “ 314 WIFE: (1) A wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband”.
13. Consequently a wife has no share, right, title or interest in the HUF in which her husband is a coparcener with his brothers, father or sons (and after the amendment of Section 6 of the Hindu Succession Act in 2005 with his sisters and daughters also).
14. The wife, such as the deceased, may be a member of a joint Hindu family. By virtue of being a member in the joint Hindu family she cannot get any share, right, title or interest in the joint Hindu property which that family owns. A joint Hindu family may own no property at all. If it owns property, a wife cannot demand partition unlike a daughter. She would get a share only if partition is demanded by her husband or sons and the property is actually partitioned. There has been no such demand and no consequent partition of any property. In fact there has been no partition in the HUF in which the husband is a coparcener. Hence the husband has not acquired any specific share in the coparcenary property – the bungalow in Ahmadabad – which could have become the property of his separate HUF consisting of his wife and children until the death of his wife, the deceased.
15. If there was a partition in the HUF of her husband’s father, in which he is a coparcerner, the husband would have got a share in that partition. That would have been ancestral property in his hands. That would have, therefore, been his HUF property. In that property the deceased who was a member of her husband’s (the defendant’s) HUF would have had a share. The deceased could not have demanded a partition. Had there been a partition upon the demand of the coparceners (the husband and children), she would have got a share thereunder. That share would have been her separate property bequeathable by her. She expired prior to such share being obtained. Since her husband did not expire, she would not have the rights of a widow also. Consequently she had no share and no bequeathable interest in any share which devolved upon her husband by survivorship until her death. Consequently the bequest of “my share” or the “monies” which may come to my share is wholly misconceived since her husband was alive on the date of her death and she was not a widow.
16. Counsel on behalf of the plaintiff has relied upon the judgment in the case of N.V. Narendranath Vs. Commissioner of Wealth tax, Andhra Pradesh 1969(1) SCC 748. That judgment is only in respect of the assessibility of the share of the sole surviving coparcener, his wife and daughters. If, for the purpose of taxation, the assessee has shown himself as a HUF, the incidents of HUF would follow. This case relates to the assessment filed showing the status of a HUF. That HUF consisted of the assessee and the wife and two minor daughters. The judgment considered whether showing himself as a HUF could be sustained under Section 3 of the Wealth Tax Act, 1957. It was held that a HUF was an assessable legal entity. It was further held in para 4 of the judgment that a Hindu joint family consisted of a person lineally descended from a common ancestor and includes their wives and unmarried daughters unlike a Hindu coparcenary which would be a narrower body and included only persons who acquired, by birth, interest in the joint or coparcenary property. Consequently it was observed that though a wife can be a member of the HUF, no female can be a member of a coparcenary. Even after the amendment of 2005 to Section 6 of the Hindu Succession Act a wife would not be a coparcener; only a daughter of a coparcenar would be a coparcener. The analogy in the judgment, therefore, would apply only to the extent that though a wife is a member of a HUF, she is not a member of coparcenary as she is not a coparcener. She may be assessed as such, but she cannot have any interest in the coparcenary property since it is not the HUF but the coparcenary, which is a narrower body, which would alone own and acquire interest in joint or coparcenary property.
The analogy in para 5 of the judgment itself would show that though joint property and coparcenary property is synonymous, a member of the HUF and a coparcener are not.
17. Counsel on behalf of the defendant drew my attention to two judgments of the Madras High Court which has been later followed by the Supreme Court in the cases of V.M.N. Radha Ammal, Kancheepuram Vs. The Commissioner of Incometax, Madras AIR (37) 1950 Madras 538 [C.N. 223](1) and Commr. Of Incometax, Madya Pradesh, Nagpur and Bhandara Nagpur Vs. Seth Govindram Sugar Mills AIR 1966 SC 24 (V 53 C 7) which concern management by a coparcener. The judgment considered the Hindu Women’s Right to Property Act, 1937. The effect of the act is held to be “merely” to confer upon the widow an interest in the share of the husband and the estate created in that interest as the interest of an Hindu widow. She is also entitled to claim partition without conferring upon her the status of coparcener or the right to represent other members of the family as a Karta of an HUF.
18. The right under Section 3 is, therefore, available only to widows. It is a limited right. It is a right in the share which the husband had in the coparcenary. Section 3 has been repealed by Section 14 of the Hindu Succession Act, 1956 which gives the right to a Hindu woman in lieu of her possession therein. That is an entirely different concept.
19. The claim by a wife during the life time of the husband in the share and interest which he has as a coparcener in his HUF is wholly premature and completely misconceived. Such bequest under the will does not show the title of the deceased to such property. The deceased, therefore, could not have bequeathed any “monies” as “my share” in the 1/3 share which her husband had in the HUF in which he was a coparcener along with his brothers, father and sons. Consequently the injunction in respect of such property cannot be granted as claimed.
20. The other movable estate of the deceased are shown to be certain articles and jewellery, furniture & fixtures and shares in three private family companies. It would be for the plaintiff to prove the properties claimed by the plaintiff since it is disputed. 21. The private limited companies shown by the plaintiff in which the deceased had certain equity shares are stated to be defunct. What was the worth of those companies and the shares since would have to be ascertained at the trial. Such estate of the deceased is not disputed.
22. Hence the following order:
1. The defendant shall not alienate, encumber, transfer, part with possession or otherwise create any third party rights in flat No.14, Premkunj Coop. Hsng, Society Ltd., Sion (West), Mumbai400 022 as also in the tenancy rights in the garage No.1 at Urvashi Building, Sion(West), Mumbai400 022.
2. There shall be no order in respect of the undivided 1/5 share of the deceased as a coparcener in Narendra Amritlal Shah HUF or in the land or bungalow at Ahmedabad.
3. There shall be no order with regard to the articles of jewellery or furniture & fixtures of the deceased.
4. The defendant shall not alienate, encumber, part with possession or create any third party rights in the equity shares held by the deceased in the three private limited companies shown as item No.3 in the schedule of the movable properties of the deceased, ExhibitD to the plaint.
5. The defendant shall disclose on oath the assets and properties, movable and immovable, constituting the estate of the deceased within 30 days.
6. The notice of motion is disposed of accordingly. No order as to costs.
7. The defendant has been served with the plaint and has been represented. The defendant shall file his written statement within 30 days.
(ROSHAN DALVI, J.)