SHANTABAI BABURAO KALBHOR Vs. RAMCHANDRA KHANDERAO KORHALE

JUDGEMENT

(1.) The property in dispute is a house, City Survey No. 292 of Somvar peth, Poona which was purchased by one Sonubai, wife of Narhari Kalbhor, by sale- deed, dated 21st May 1930, for Rs. 10,500. Sonubai had paid to the vendor Rs. 1000 before the date of the sale-deed and the balance of Rs. 9,500 was paid in the presence of the Sub- Registrar. After purchasing this house Sonubai let it out to tenants. Sonubai, it appears, was conducting a sweetmeat shop in City Survey No. 15 of Shukarawar Peth, Poona, and in the conduct of that business she was assisted by her son Baburao Narhari. Narhari- husband of Sonubai - it is claimed was living apart from Sonubai. Sonubai made and executed a will on 16th December 1943, by which she purported to appoint Ramchandra Khanderao Korhale, (the plaintiff) as her executor, and she made various devises thereby. She devised the property subtantially to her daughter and provided a legacy of Rs. 20 per month in favour of Shantabai - widow of her son Baburao. She also devised a legacy in favour of the plaintiff. Sonubai died on 28th December 1943. The plaintiff then applied to the District Court at Poona by Miscellaneous Application No. 49 of 1944 for probate of the will of Sonubai. Narhari - husband of Sonubai - contested the proceeding. By order, dated 28th September 1945, the District Court of Poona granted probate to the plaintiff of the will of Sonubai. Even after probate was granted to the plaintiff, in whom the estate had vested by virtue of his appointment as executor under the will of Sonubai, Shantabai, (the defendant) continued to remain in occupation of the house and declined to deliver possession to the plaintiff. The plaintiff then filed suit No. 180 of 1953 in the Court of the Joint Civil Judge, Senior Divison, Poona, against the defendant, for a decree for possession of the house and for Rs. 3,500 as mesne profits for the three years prior to the date of the suit and for an order for payment of mesne profits from the date of the suit till delivery of possession and for costs the suit. It was the plaintiff's case that the house in dispute had been purchased by sonubai with her won fund, that it was her property and she was competent to make a will of which probate was granted to the plaintiff, and that the plaintiff was entitled to obtain possession of the house from the defendant who had no title thereto. The defendant by her written statement contended inter alia that the house in dispute belonged to Sonubai's husband Narhari and it had been purchased from the joint family funds in Sonubai's name, and accordingly Sonubai had acquired no title to the house, that Sonubai was not in possession of the property, that Narhari and his son Baburao were all along in possession of the property and were managing the same, that on the death of Narhari and Baburao she - the defendant- had become the owner of the house, that Sonubai had no authority to make a will devising the house, that the defendant was in possession and management of the property as the owner and that she the defendant was receiving an income of Rs. 75 per month from the tenants occupying the house. She also contended that she was in possessio9n of the house as owner even during the life time of Sonubai and was collecting the rents from the tenants.s The trial Judge negatived the contentions raised by the defendant and decreed the plaintiff's suit for possession and directed an inquiry into mesne profits for a period of three years prior to the date of the suit under. Order 20, Rule 12, of the Civil Procedure Code and also directed ascertainment of mesne profits from the dteof the suit under Order 20, rule 12(1) (c) of the Civil Procedure Code. Against that decree the defendant has appealed to the High Court. Shah, J. (After stating the facts and, on discussion of the evidence, holding that the house in dispute belonged to Sonubai and it was acquired by her out of a fund in which Narhari and Baburao were not shown to be interested, the judgment continues as follows:) If the house was purchased from a fund acquired by Sonubai from her sweetmeat business, the house will be regarded as stridhana other than soundayika, and the question which then falls to be determined is whether that property could in law be disposed of by Sonubai by a will without the consent of her husband. A Hindu married woman's power to dispose of her stridhana depends on the character of the Stridhan. For this purpose, stridhan is divided into two classes, (1) Saudayika and (2) other kinds of stridhan. A married woman has absolute power of disposal over her saudayika stridhan. She may dispose of it by sale, gift, will, or in any other way she pleases, without the consent of her husband. Her husband has no control over it. He cannot bind her by any dealings with it. This rule is based upon Katyayana's text.

(2.) The rule is, however, subject to an exception, that where the husband and wife have drifted apart and the wife is not under the control of her husband, she is regarded as competent to dispose of her non-Saudayika stridhan without the assent of her husband. In Bhagvanlal Chunilal v. Bai Divali, 27 Bom LR 633: (AIR 1925 Bom 445) a Division Bench of this Court held that a Hindu wife, who had lived apart from her husband for nearly 30 or 40 years, was competent to dispose of by will the property which she had inherited from her father, without the consent of her husband. Sir Norman Macleod, C. J., who delivered the judgment of the Court in that case, held that the husband and wife in that case had lived apart for many years and the husband had lost al rights of control over the wife so as to lose also the right to validate any disposition which she might make by will of property inherited by her from hr paternal relations. He then observed: "We think this decision is in consonance with the views which would prevail at the present day in the community".

(3.) In the present case, the evidence of the plaintiff and of Nikam shows that Sonubai was living apart from her husband Narhari for about 35 years before her death. That evidence is supported by the admission made by the defendant that the grainration card was obtained in the name of Sonubai as the head of the family and not in the name of Narhari, and by the evidence of Godse, the photographer, who has stated that Narhari was not staying with Sonubai in 15, Shukrawar Peth, and that he had not seen him, and also by the recitals made in the will made by Sonubai in first Paragraph of which it is recited that Narhari was addicted to vices and thirty or thirty-five years before the date of the will on account of incompatibility of temperament the testatrix had separated from Narhari and had never lived with him thereafter, and that she herself had by starting a sweetmeat shop acquired the property devised thereby.