VITHALDAS JAGANNATH KHATRI (D) THROUGH SHAKUNTALA ALIAS SUSHMA & ORS. v. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS.

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A become a major. For the earlier year it has been noticed that the entry was Vithaldas for Shakuntala Bai. For the year 1974-1975, the next feature to be noticed is Shakuntala Bai is to shown along with her father as an occupant. However, she is so shown through her guardian who is shown as her grandfather. Taking the matter forward for the next year namely 1975-1976, the occupant is shown as Shakuntala Bai Rama B Prasad through guardian Jagannath. It is to be noted that Shakuntala Bai had much earlier become major. The name of Vithaldas which was there in the earlier year is seen removed.

97Copy pinpoint97. In the Record of Rights, produced under the law relating to consolidation in Survey No.12, Shakuntala Bai is shown as minor through C her grandfather both before and after the proceedings were conducted. In this connection as noticed by the Tribunal crops statements for the other years were not filed. They were not produced in the High Court also. No evidence has been tendered though it was open to adduce evidence as is permitted under the Act. D

98Copy pinpoint98. I would think on a conspectus of the material, I feel reinforced that the partition was indeed not only unnatural but it was not intended to have effect. THE EFFECT OF THE CROSS OBJECTION BEING E ALLOWED IN THE ABSENCE OF THE TWO ELDER DAUGHTERS TO WHOM THE PROPERTY WAS ALLOTTED IN THE PARTITION.

99Copy pinpoint99. It is undoubtedly true that the appeal before the Tribunal was filed by Late Vithaldas, his wife, son and youngest daughter. It is also true that there was no occasion for the elder daughters to challenge the order passed as the properties allotted to them in the partition deed dated 31.1.1970 stood excluded. It is in such an appeal that the Government filed a cross objection. Undoubtedly, the cross objection was maintainable both under the express provisions of Section 33 of the Act as also under Order 41 Rule 22 CPC which was also made applicable under Section 33 of the Act. In law it is true that if a cross objection is maintained, the person affected by an order in the cross objection must be on the party array. If he is not on the party array, it is incumbent upon the respondent in the appeal who seeks to maintain a cross objection against a non-party to implead such person as a party. H This is a matter on which I need not dwell further.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 1001 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

100Copy pinpoint100. The question which would however arise is, as is sought to be contended by the respondent-State the effect of the elder daughters not challenging the order of the Tribunal. The order of the Tribunal was challenged by Vithaldas and his wife only by filing a writ petition before the High Court. Appellants 3 and 4 in the appeal before the Tribunal were made respondents in such writ petition. It is true that elder daughters were also made respondents.

101Copy pinpoint101. Shri Vithaldas and his wife did not prosecute the writ petition also as representatives of the elder daughters. At least the writ petition is not produced to support such a case. It is necessary to notice that the finding regarding the partition deed and gift deed by the Tribunal impacted both Vithaldas and his wife on the one hand and also the elders daughters on the other hand [the latter as regards the partition deed]. The Ceiling Account of the family unit was determined taking into consideration the 31 and odd acres allotted to the elder daughters. Vithaldas would been affected in two different capacities. One as head of the family unit and the other as father of the elder daughters. D

102Copy pinpoint102. It is relevant to notice that under the Hindu Minority and Guardianship Act, 1956 Section 6 declares who is to be the natural guardian of a Hindu minor. It reads as under: “6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl— the mother, and after her, the father; (c) in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or H

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A sanyasi). Explanation.—In this section, the expression “father” and “mother” do not include a step-father and a step-mother.” (Emphasis supplied)

103Copy pinpoint103. A perusal of Section 6 of the Hindu Minority and B Guardianship Act would show that in the case of unmarried girl, the father and after the father the mother would be the natural guardian. This is in respect of both the person of the minor and the property of the minor. When the writ petition was filed, the eldest daughter was clearly major and married. Durga Devi was also a major. C

104Copy pinpoint104. The State would contend the partition dated 31.1.1970 was a sham and Vithaldas continued to hold the property. It is not unnatural that he would challenge the inclusion of such property in the ceiling account as property of the family unit on the basis that he continued to be the holder. Allowing the cross objection by the Tribunal if viewed in this perspective did affect Vithaldas. He could indeed question the inclusion of the lands allotted to his elder daughters in the account of the family unit. Vithaldas could support the partition deed but he could not challenge the order of the Tribunal allowing the cross objection on the ground that the cross objection was allowed without giving an opportunity to his daughters. Undoubtedly, Vithaldas was the first appellant before the Tribunal. He along with other appellants therein were heard by the Tribunal as parties before allowing the cross objection in relation to the partition. The ground that the cross objection was allowed without an opportunity to his elder daughters was not available to Vithaldas or his wife. Again, I would reiterate that the writ petition has been filed only by Vithaldas and his wife. Though the elder daughters were majors, they have not challenged the order of the Tribunal. Maybe it is true that they were respondents in the writ petition filed by their parents. Even after the learned Single Judge dismissed the writ petition, upholding the order of the Tribunal, no appeal was filed by the elder daughters.

105Copy pinpoint105. If indeed the elder daughters had acquired possession and rights under the partition deed in respect of an extent of more than 31 and odd acres of land in between themselves, it passes one’s H comprehension that they would not challenge the order which purported

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 1003 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

to deprive them of their rights. This conduct on the part of the parties would appear to lend assurance to the case of the State that the partition was not a genuine transaction but a sham and the property continued with Vithaldas in which case it would be property held by Vithaldas even on the commencement date namely 2.10.1975 rendering it liable to be included in the account of the family unit. He accordingly challenged the order of the Tribunal along with his wife who was separately aggrieved by the inclusion of the property found gifted to her.

106Copy pinpoint106. It is to be noted that a writ petition is not a partition suit. In a partition suit, apart from the plaintiff, the defendants also stand in the shoes of a plaintiff. Vithaldas passed away even when the appeal was pending in the High Court. Appeal was filed before this Court originally as a special leave petition. In the Special Leave Petition, it is shown Vithaldas(now deceased) through LRs and the petitioners names are shown. No doubt their position as respondents in the High Court is also shown. The elder daughters were petitioner No.1 and 2 in the special leave petition and upon leave being granted, they are in the party array as appellants 1 and 2. But they are before this Court only as legal representatives of Vithaldas who instituted the writ petition and appeal along with his wife. Be it noted that one out of the two appellants in the High Court, namely, Vithaldas passed away. His wife has not pursued the matter before this Court and she is a proforma respondent No.4 in this appeal. The appeal is prosecuted by the present appellants in their capacity as legal representatives of Vithaldas. Contentions which were available to Vithaldas alone, would therefore be available to them. In this Court, I may refer to the judgment of this F Court reported in Jagdish Chander Chatterjee and Others v. Shri Sri Kishan and another26, reads as follows: “10. Under sub-clause (ii) of Rule 4 of Order XXII, Civil Procedure Code any person so made a party as a legal representative of the deceased, respondent was entitled to make G any defence appropriate to his character as legal representative of the deceased-respondent. In other words, the heirs and the legal representatives could urge all contentions which the

26 (1972) 2 SCC 461 H

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A deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title”. (Emphasis supplied)

107Copy pinpoint107. As has been noted by me, the contention that the Tribunal should not have allowed the cross objection without the elder daughters on the party array was not available to Vitahaldas. If that is so, his legal representatives namely, the appellants cannot take contentions which were not available to their predecessor-in-interest.

108Copy pinpoint108. It is true that this is a case where as regards the elder daughters, they were not parties in the appeal in which the cross- D objection was filed.

109Copy pinpoint109. Also, no doubt the elder daughters and others were respondents in the Writ Petition and Letter Patent Appeal. It may be true that a respondent and even a person who is not a party can with leave prefer an appeal. But when they have not challenged the order of the Tribunal and even the judgment of the learned Single Judge and as the Vithaldas had fully contested the matter and in view of my finding that the properties allotted to the elder daughters, are liable to be found held by Vithaldas, I would not be inclined to interfere, particularly, as I have noted above when the perusal of the Special Leave Petition would reveal that Vithaldas (now deceased) through the LRs-the petitioners is shown in the cause title. It must be remembered that the petitioners upon the passing away of Vithaldas during the pendency of the Latter Patent Appeal were recorded as his legal representatives.

110Copy pinpoint110. I would also, at any rate, in this regard, in this case invoke the principles laid down in Taherakhatoon (D) By Lrs. v. Salambin Mohammad27 and refuse to interfere.

111Copy pinpoint111. I would think, therefore, the appeal must fail and it stands dismissed. 27 H 1999(2) SCC 635

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA 1005 v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.

ORDER A In view of difference of opinions and the distinguishing judgments (Hon’ble Sanjay Kishan Kaul, J. allowed the appeal and Hon’ble K.M.Joseph, J. dismissed the appeal), the matter be placed before Hon’ble the Chief Justice of India for referring the matter to a Larger Bench. B

Devika Gujral Matter referred to larger Bench