RAMABAI GOVIND Vs. RAGHUNATH VASUDEO

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment of Chainani J. delivered in Second Appeals No. 608 of 1948 and 1110 of 1943 against the judgment of the lower appellate Court constituted by the learned Judge, Small Cause Court, Poona, (with appellate powers), who allowed the appeal against the decision of the learned Extra Joint Civil Judge, Poona, dismissing the plaintiff's suit with costs. The facts which led to the filing of the suit may be shortly stated as under.

(2.) One Mahadev Gadre, had two sons Balkrishna and Govind, Balkrishna was the elder son, but he was spiritually inclined and almost renounced this world. He bad a son Trimbak alias Bapurao, and Trimbak had two sons, Martand and Janardan. Govind wag a pleader. The joint family of Mahadev Gadre, Balkriehna and Govind flourished and owned large movable and immovable properties. They also carried on a money-lending business in which large capital wag invested. After the death of Mahadev Gadre, both the brothers Balkrishna and Govind continued to remain joint, but towards June-July 1894 Govind, after he returned from pilgrimage to Benares, wanted to give effect to the desire which he had entertained while at Benares to become separate from his brother Balkrishna. Govind was ailing and had not much expectation of life. He had married Ramabai but had no male issue by her. Ho therefore wanted to effectuate his desire to become separate from his brother Balkrishna and, having talked about the matter to Balkrishna who referred him to his son Trirabak and having further obtained the consent of Trimbak, came to a partition of the joint family properties. The two branches separated after mutual consent. The whole of the movable and immovable properties and the debts and outstandings in respect of the money-lending business ware divided into two equal shares and one share was taken by Govind and the other was taken by Trimbak and in this way a general division was effected, and each one became the owner of his respective half share. Govind having no male issue, desired to effect a vyavasthapatra or will in regard to the half share of the joint family properties which came to him, and he accordingly on 30th July 1894, executed a vyavasthapatra appointing as the vyavasthapaks or executors Trimbak Balkrishna, his nephew, and. after him, two other individuals Purushottam Parshuram Khare and Ramchandra Vishnu Joshi. Govind had great confidence in Trimbak. It was not possible there and then to divide the properties by metes and bounds. In fact Trimbak himself requested that the Ramabai Govind vs. Raghunath Vasudeo (12.07.1951 - BOMHC) Page 4 of 30 property should not then be divided actually into separate lots. Trimbak said to Govind that ho was willing to act according to the vyavastha which Govind might make of his share, and Govind, therefore, being sure that so long as Trimbak was alive ho would carry on the whole vyavastha after his death exactly in the same way in which Govind was doing, made a vyavastha, of the property in the terms following:--He provided for certain legacies in favour of his three daughters Manubai:--Belubai and Kashibai who were then unmarried. He provided that Re, 10,000 should be paid to his wife Ramabai as her stridhan and that she should live with Trimbak and should be permitted to use a sum of Rs. 300 per year in charity If it was not possible for Ramabai to live with Trimbak, she was to live in the half portion of the dwelling house at Poona, and Trimbak and his children were each year to pay to her during her lifetime hall the income whatever the same might come to out of the income oi the immovable properties that might be received every year. But if Trimbak paid Rs. 1,600 every year to Ramabai, she was not to ask for an account of the income. That amount was by way of the yearly maintenance of Ramabai. From the income of the money lending business appertaining to his share, Govind directed that Rs. 500 per year should be paid to Kamabai for giving in charities as she liked and the remaining income should be taken by Trimbak or his children. In regard to the principal sum employed in the money-lending business, Govind directed that out of the recoveries the debts should be paid first, and then the gifts, and the sum appertaining to his one half share from the balance should be invested in promissory notes or be deposited with some other good institution, and out of the interest that might be received, income as mentioned before should be paid to Ramabai, The original capital in respect of the money-lending business was, however, not to be spent either for paying the debts or for the gifts or for paying the amount of Rs. 600 to Ramabai. Trimbak was, during his lifetime, to carry on the whole vyavastha in the manner mentioned by Govind. Should Trimbak, however, give up to carry on the vyavastha, then Purshottam Parshuram Khare and Ramchandra Vishnu Joshi were to carry on the vyavastha, and when Trimbak gave up looking after the vyavastha, he was to explain the whole of the vyavastha to them.

(3.) This was the vyavasthapatra as executed by Govind on 30th July 1691. A short time thereafter, that is on sand August 1894, Govind died leaving him surviving his widow Ramabai and his three daughters above mentioned. Trimbak, who was hia trusted nephew and executor, carried on the management of the properties, movable and immovable, which had been the subject matter of the partition as above, without however effecting any partition thereof by metes and bounds. He thus managed the one half share of the properties belonging to the joint family, which had come to Balkrishna's branch, on his own and managed the other half share, which had come to Govind on such separation but which had been the subject-matter of the vyavasthapatra executed by Govind, in hia capacity as the executor of that vyavasthapatra. The two other persona Khare and Joshi did not take any part in the management of the properties. Trimbak died in the year 1897, and thereafter his sons Martand and Janardan entered into possession of all the properties which had been till then managed by Trimbak. Even after Trimbak's death, Khare and Josbi, the two executors who had been named in the will of Govind, did not enter upon the administration of the estate of Govind, but kept Ramabai Govind vs. Raghunath Vasudeo (12.07.1951 - BOMHC) Page 5 of 30 aloof. Martand and Janardan carried on the management of all the properties inclusive of the share of the estate of Govind therein right from 1897 (Janardan having joined in the management in 1899 onwards) and all those properties were managed as a single unit without any division made in regard to the share of Govind therein, by both these brothers Martand and Janardan. In the year 1907 Martand purchased the house in suit in his own name by a conveyance dated 17th April 1907. There were disputes between the two brothers Martand and Janardan. They were referred to arbitration and ultimately in 1916 an award decree was passed aS a result of the award made by the arbitrators, a partition was effected between Martand and Janardan. It is necessary to observe at this stage that the suit house which had been purchased by Martand in his own name in 1907 was declared to belong to Martand alone under the terms of this award decree, It appears that Khare and Joshi at that time broached the topic of the properties which would come to the share of Govind being set apart and handed over to tha parties entitled thereto, but nothing seems to have been done by Martand and Janardan in regard to the same. In fact, no concrete stops wore taken by Khare and Joshi, the surviving executors of Govind's will, to reduce the properties belonging to the estate of Govind into their possession. Martand sold the suit property to Raghunath Vasudeo Joshi on 11.4.1933, and that appears to have spurred Joshi, the surviving executor of Govind's will, into action and he started proceedings for obtaining probate of the will of Govind in the year 1934. Probate of this will was ultimately granted in the year 1937. Joshi, the proving executor, in the course of the administration of the estate of Govind, in accordance with the terms of the will, sold Govind's half share in the suit property and the 12 annas share in the Pangri village, which had been purchased in the year 1900 by Martand and Janardan, to Ramabai on 29.6.1939. Ramabai appears to have asked for her half share in the suit house from the purchaser from Marland, namely Raghunath Vasudeo Joshi, but, on her failure to recover the same, filed the suit being civil suit no. 470 of 1340 in the Court of the Extra Joint Subordinate Judge at Poona on 18-4-1940, for recovery by partition of her half share in the suit house and for mesne profits. The contest thus was between the purchaser from the executor of Govind's will and the purchaser from Martand of the suit property. The defendant contested this claim of the plaintiff, and the trial Court came to the conclusion that the defendant was a bona fide purchaser for value without notice of this property from Martand and dismissed the plaintiff's suit with costs. An appeal was filed against this decision of the trial Court in the Court of the Judge, Small Causes, Poona, (with appellate powers), and the learned Judge in appeal allowed the appeal with costs and set aside the decree of the trial Court, he being of the opinion that Mart and, who was a trustee of the estate of Govind, had mixed up the trust properties with his own properties, that Martand had failed to prove that the suit property was acquired by him out of his own monies, and that the defendant not being a bona fide purchaser for value without notice, was not protected under Section 64, Trusts Act and was bound to hand over the one half share of Govind in the suit property, as claimed by the plaintiff, to her. It was this judgment of the lower appellate Court which was appealed against by both the parties. The original defendant, against whom the suit was decreed, filed Second Appeal No. 608 of 1918 contending that he was a bona fide purchaser for value without notice and, having purchased the property in that manner from Martand who was a trustee, Ramabai Govind vs. Raghunath Vasudeo (12.07.1951 - BOMHC) Page 6 of 30 was protected under Section 64, Trusts Act. The original plaintiff filed a crossappeal being second Appeal No. 1110 of 1918, claiming certain mesne profits which had not been allowed to her by the lower appellate Court. Both these second appeals came on for hearing and final disposal before Chainani J. who heard them as a single Judge. He came to the conclusion that Martand was a trustee of Govind's estate, but there was no evidence to show that be had blended the property coming to Govind's share with his own property. Having come to that conclusion, he observed that there was no evidence to show that the suit property had been purchased by Martand out of the corpus of the estate or from the income thereof, and ho therefore non-suited the plaintiff. In the view which he took he observed that it was not necessary for him to go into two other questions which had been raised in the appeal before him by Mr. Bhalerao who appeared for the original defendant, namely (1) that Martand was, in his capacity as a trustee, competent to sell the property to the defendant and the plaintiff could not consequently challenge that transaction, and (2) that the plaintiff's suit was barred by limitation. Having, however, decided the appeal in this way, be felt that the points involved in the two appeals required further consideration and ho, therefore, granted leave to the plaintiff to file an appeal under the Letters Patent. The Letters Patent Appeal No. 38 of 1950 was accordingly filed by the original plaintiff, and that appeal has now come on for hearing and final disposal before us.