D.R. Dhanuka, J.
1. This is an appeal against decree dated 16 April, 1980 passed by the Court of the Joint Civil Judge, Senior Division, Nasik at Nasik in Special Suit No. 126 of 1975. The original appellant in this appeal was original defendant No. 1 in the suit. During pendency of the appeal, the original defendant No. 1 died. The appeal is being prosecuted by the heirs and legal representatives or original appellant. During the pendency of the appeal, the respondent No. 1 in this appeal i.e. the original plaintiff Smt. Laxmibai w/o Parashuram Ukharde also died. The heirs and legal representatives of Smt. Laxmibai are on record of this appeal as respondent Nos. 1-A and 1-B.
2. One Parashuram Ukharde was the karta of Joint Hindu Family which owned several properties. Parashuram was karta of the said family. Parashuram married one Zawarabai (nee Laxmibai) daughter of Shri Punja Jadhav. Parashuram had two sons from Zawarabai by name Baburao and Devram and two daughters by name Nanibai and one Saniyabai. Soniyabai dies. Sometimes in the year 1936, Zawarabai died. It was the case of the original plaintiffs before the trial Court in Suit No. 126 of 1975 and it is believable that soon thereafter Parashuram married one Laxmibai (the original plaintiff). Parashuram and Laxmibai resided and cohabited together as husband and wife for many years right upto the date of death of Parashuram. Purashuram died sometime in the year 1950. Parashuram had number of children from Laxmibai i.e., three daughters by name Chhayabai, Sakhubai alias Mamalabai and Haribai alias Tarabai an one son by name Kasinath. It was the case of the original plaintiff in the trial Court that after death of Parashuram, the original plaintiff by name Laxamibai started residing with his step son Baburao who took over as karta of the joint family. Baburao was elder son of Parashuram. Deoram younger son of Parashuram from his first wife Zawarabai lost his first wife soon after the marriage. Deoram had thereafter married one Yamunabai alias Renukabai (original defendant No. 2) in Suit No. 126 of 1975). On 15th November, 1962, Deoram died. After three to four months of the death of Deoram, his widow Yamunabai remarried a person by name Gotiram Ramchandra. Disputes and differences arose between Laxmibai and Baburao. Laxmibai started residing with his step daughter Nanibai and later in with her own daughter. By her advocate's letter dated 9th July, 1973 (Exh. 73), Laxmibai (the original plaintiff) served a notice in Baburao Parashuram (defendant No. 1) seeking one half share in the ancestral and other properties of Parashuram virtue of Laxmibai being lawful widow of Parashuram. By his Advocate's letter dated 17th July, 1973, (Exh. 75), the defendant No. 1 repudiated the claim of Laxmibai.
3. In this situation, on or about 2nd August, 1973, Laxmibai presented an application to sue Baburao Parashuram in forma pauperis before the Civil Judge, Senior Division, Nasik seeking partition and separation of her share in the ancestral and other properties of the deceased. At that stage, Baburao Parashuram was the only defendant in the said application. The said application was granted by the trial Court after holding of necessary enquiry. Sometime in August 1975, the application in forma pauperis was registered as a suit. On 14th December, 1978, Yamunabai alais Renukabai was impleaded as defendant No. 2 in the suit. At the stage, the plaint filed in the said suit was amended. The defendants filed their written statement in response to the original plaint and also filed additional written statements in view of the amendment of the plaint.
4. In para, 3 of the plaint, the original plaintiff had pleaded that after the death of Zawarabai within about a year's time, Laxmibai had married Shri Parashuram Ukharde according to the custom prevailing in Maratha caste by Gandharva Vibah, by performing all the recitals at Madki Jamb, Taluka Dindori. In the said para of the plaint, it was further pleaded that in this form of marriage as performed in the community to which Laxmibai and Parashuram belonged, there was no custom of performing of Saptapadi and fire lighting (Hom.). In para 2 of the plaint, the plaintiff described the properties which were subject matter of the suit for partition and separate possession. The said properties are as under :
'(a) Houses two situate in the Division Nasik Sub-Division and Taluka Diudari at Pimpalgaon-Ketki.
(1) Grampanchayat House No. 11 dwelling xxx house one storey having roof of tiles. Two Halls, pavement in front roofed with tiles, the south-north breadth of this is about 15 feet and east to west length about 30 feet. The four boundaries of the same are :In the East-Open land, In the South-Public Road, in the West-House of Vithal Khandekar-Ukharde and in the North-House of Sampat Chandrarao Ukharde
The house properties as described above. Price Rs 4,000/- (Rupees Four Thousand).
(2) Grampanchayat House No. 80 consisting of two khans, one sided roof, the pavement cavered with Manglore tiles. It's south-north breadth is about 10 feet and East-West length about 25 feet. The four boundaries of the same are : In the East-public Road, in the South-Rulshirao Bapu Ukharde's House, in the West and North Open Land.
Accordingly, described property price of Rs. 2,000/-
(b) The property situated in the Division of Nasik Sub-Division and Taluka Dindori.
(1) The agricultural land at village Pimpalgaon.
Gut. No. Area AssessmentH.A. Rs. Ps.63 0-41 1-6981 4-03 17-25197 1-10 1-06221 0-72 1-25227 0-25 0-1259 1-16 out of 0-50this th62 0-94 out of 0-37this th 65 1-25 do 080 7-54 out of 1-00this 1/2th-------------------------------------------------------------------------------Total 16-20 26-18-------------------------------------------------------------------------------2. Agricultural lands at village Awandkhed Gut. No. Area AssessmentH.A. Rs. Ps.191 6-07 1-71192 6-06 5-51195 2-01 1-90Total 14-14 8-12(c) Moveables :(1) Cattle - she buffaloes 2 price Rs. 1500.00(2) Cattle - Bullocks 4 price Rs. 2000.00(3) Agri. Accessories :2 ploughs, 2 Basar price Rs. 120.00(4) Pots - Pot 5, Water Carrying-Vessles 4 (Handas) Pitali2, Kavli 2, Dinner Plates 2, Rs. 400.00Small 11, Bowls 11 Rs. 100.00------------------------------------------------------------------------Total Rs. 4120.00------------------------------------------------------------------------(d) Ornaments :(1) Gold Necklace of 2 Tolas Rs. 625.00(2) Gold Necklace of 2 Tolas Rs. 500.00(3) Gold Silver Bangels 13 Tolas Rs. 395.00(4) Silver Tulbandya 100 Tolas Rs. 500.00------------------------------------------------------------------------Total Rs. 2000.00----------------------------------------------------------------------------------
5. It appears from the averments made in the plaint that the agricultural lands situate at village Pimpalgaon described in para 2 (b) of the plaint and agricultural land bearing Gut Nos. 192 and 195 situate at village Awankhed described in para 2(b) of the plaint were acquired by the Government under the Land Acquisition act, 1894. The plaintiff claimed share in the amount of compensation received or to be received by Baburao as a result of the acquisition of the said land which according to the original plaintiff belonged to the joint family of which Parashuram was the Karta during his life time and Baburao became Karta after the death of Parashuarm. In his written statement, the defendant No. 1 raised all sort of disputes. The defendant No. 1 disputed that Laxmibai was married, to his father Parashuram. The defendant No. 1 contended that in any event, the alleged marriage was not valid. The defendant No. 1 contended that the Civil Court had no jurisdiction to award share in compensation amount received or to be received by defendant No. 1 for acquisition of the agricultural lands referred to hereinabove. The defendant No. 1 contended that the only remedy available to Laxmibai was to seek apportionment in respect of the compensation amount by making the necessary application under section 18 or under section 30 of the Land Acquisition Act No. 1 of 1894 .The defendant No. 1 also raised certain other issues in the written statement which do not appear to be germane at this stage of the litigation. In his subsequent written statement, the defendant No. 1 disputed the right of defendant No. 2 to claim share in the suit properties. Deoram had married defendant No. 2 also according to Gandharva form of marriage , in light of the custom of the community.
6. At the trial of the suit, the learned trial Judge framed various issues as detailed in para 4 of the judgment under appeal. The learned trial Judge framed an issue to the effect as to whether Laxmibai was widow of deceased Parashuram Khanderao Ukharde and as to whether the custom of marriage as averred in para 3 of the plaint was duly proved or not. The trial Court framed issues to the effect as to whether the defendant No. 2 was the legally married wife of deceased Deoram. A question also arose before the trial Court as to whether share in the suit properties could be awarded to defendant No. 2 even though the defendant No. 2 had remarried after 3-4 months from the date of death of Deoram. The learned trial Judge also framed an issue to the effect as to whether the trial Court had jurisdiction to award share in the compensation amount for the agricultural lands acquired by the prescribed authorities. The trial Court also raised the issue of limitation in view of the contention raised by defendant No. 1 in this behalf. The points for determination arising in this appeal are as under:
(1) Whether the original plaintiff has proved the custom of marriage as pleaded in para 3 of the plaint? If so, whether the original plaintiff was lawful widow of deceased Parashuram Khanderao at all material times and upto time of her death?
(2) Whether the Civil Court had jurisdiction to direct distribution or accounting of 'Compensation moneys' received or to be received in lieu of lands in which the parties had and have share as a part of assets to be partitioned?
(3) Whether respondent No. 2 has forfeited her share in view of her re-marriage?
(4) What are the shares of parties in the suit properties?
(5) Whether the decree of trial Court is required to be modified and remoulded and if so, to what extent.
I answer the above referred points for determination as under :
(1) Yes.
(2) Civil Court had jurisdiction.
The suit is maintainable.
(3) No.
(4) Original plaintiff 1/3(one third) now vested in her heirs, Baburao 1/3rd, (now vested in his heirs), Yamunabai 1/3rd (one third).
(5) Please see operative part of the decree.
7. At the trial of the suit, a large number of witness were examined in view of defendant No. 1 having discussed the factum of marriage of Laxmibai with Parshuram and in view of the issue having raised relating to custom of marriage according to which Laxmibai is supposed to have married Parshuram. On behalf of the plaintiff, the following witnesses were examined at the trial.
(1) Laxmibai Parshuram Ukharde (the original plaintiff)
(2) Nanibai Vithal Borabai (D.W. 2) daughter of Parshuram.
(3) Madhavrao Rakhmaji Barode (P.W. 3)
On behalf of the plaintiff, the priest by name Kisan Laxman Bairagi was examined as an additional witness on commission. On behalf of the plaintiff one Padmakar Vishnu Muley, Kamalabai Gangadhar Ugle and Bhika Nagu Patil were also examined as witnesses. The paper book filed in this case reflects certain mistake regarding numbering of the depositions of witnesses examined. The said mistake however is of no consequence. On behalf of defendant No. 1 the following witnesses were examined.
(1) Baburao Parashuram Ukharde (the defendant No. 1 himself)
(2) Khanderao Nana Borhade (D.W. 2)
(3) Eknath Kushaba Vadze (D.W. 3)
(4) Kashinath Ramaji Ukharde (D.W. 4)
(5) Balwant Ramchandra Waghale (D.W. 5)
On behalf of the defendant No. 2, the following witnesses were examined at the trial.
(1) Yamunabai Getiram Oerle
(2) Eknath Vithoba Mular.
Several documents were exhibited at the trial of the suit. Reference shall have to be made to the oral and documentary evidence in the later part of this judgment to the extent necessary for the purpose in deciding this appeal. It does not appear to be necessary to refer to the totality of the evidence led at the trial although I have gone through the entire evidence led at the trial. With the assistance of Counsel.
8. It appears from the records of the suit that a prohibitory order was issued by the trial Court on 10th August, 1983 in respect of payment of compensation amount pertaining to the acquired lands. It further appears that the trial Court directed the Special Land Acquisition Officer to release a sum of Rs. 13,000/- to Baburao (the original defendant No. 1) and directed with consent of the parties that a sum of Rs. 43,682.06 be deposited in Post Office Saving Bank Account in the joint name of Baburao and Laxmibai. It further appears that accordingly sum of Rs. 43,600/- were deposited in the joint account in the Post Office Saving Bank in name of Baburao and Laxmibai bearing No. 4508 dated 30th June, 1976 and a sum of Rs. 82.06 was deposited in name of Baburao and Laxmibai in the current account bearing No. 264564 dated 30th June, 1976, the said amount with accrued and/or accumulated interest must be lying to the credit of the said accounts and the same is available at the disposal of this Court as an appellate Court for disbursement amongst the persons who are held to be lawful sharers in the properties acquired.
9. After considering the oral and documentary evidence led at the trial, the learned trial Judge held that the custom of marriage pleaded in para 15 of the plaint was duly proved and that Laxmibai was lawful widow of Parashuram Khanderae. The trial Court further held that Yamunabai alias Renukabai (defendant No. 2) was the legally married wife of the deceased Deoram and her right to obtain share in the suit properties was not at all affected by her re-marriage with Gotiram Ramchandra, at a later date. The trial Court held that the defendant No. 1 had no intention to oust the plaintiff from the enjoyment of the joint family property during the course of years and the suit claim was not barred by limitation. The trial Court negatived all the contentions raised on behalf of defendant No. 1 and passed a preliminary decree declaring that the plaintiff and defendant Nos. 1 and 2 were each entitled to 1/3rd share to the suit properties as described in the plaint para 2-A(2) and 2-B(1)(2) subject to direction to the effect that the plaintiff and defendant No. 2 merely possessed the right of residence in the dwelling house as described in para 2-A(1) of the plaint so long as defendant No. 1 the sole surviving male heir did not claim partition. The trial Court held that in so far as the estate was assessed to payment of land revenue as described in para 2-A(2) of the plaint was concerned, (i.e. Gram Panchayat House No. 80), the plaintiff, the defendant No. 1 and defendant No. 2 were entitled to partition and separation of their share on the footing of 1/3rd share each through the Collector or any other Gazetted subordinate officer of the Collector deputed by him as contemplated under section 54 of the Code of Civil Procedure. As regards the dwelling house described in para 2-A(1) of the plaint is concerned, it was declared by the said decree that the plaintiff and defendant No. 2 being the female heirs possessed right of residence only so long as the defendant No. 1 the sole surviving male heir did not claim partition. The trial Court issued several other directions by the decree under appeal. The trial Court directed that as far as acquired lands were concerned, the compensation amount received by defendant No. 1 or which may be received hereafter will be made available to the parties as per their respective shares. The trial Court directed that the Court Commissioner shall be appointed to effect the partition in respect of House No. 80 referred to in para 2(a), (2) of the plaint and the said Commissioner shall also take accounts in respect of the compensation amount, if any, received by defendant No. 1 together with expenses incurred by defendant No. 1 with respect thereto. The trial Court also directed the defendant No. 1 to pay costs of the suit to the plaintiff.
10. The learned Counsel for the appellant has argued this appeal fairly and with moderation though he has not been able to convince the Court in respect of the correctness of the contentions urged.
11. At the outset, the learned Counsel for the appellant invited the attention of the Court to the observations made by the Supreme Court in the case of Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another : 1965CriLJ544 . The learned Counsel contended that in absence of proof of custom pleaded in the plaint, it would not be correct to assume that Saptapadi and invocation before the sacred fire were not the essential ceremonies for performance of marriage in Gandharva form. This was a case of prosecution under section 454 of Indian Penal Code. In para, 9 of the judgment, Radhubar Dayal, J., Speaking for the Apex Court held that the above referred ceremonies could not be treated as abrogated from Gandharva form of marriage unless the custom prevailing in the community abrogating these ceremonies for such form of marriage was duly proved. On this very aspect of the case, the learned Counsel for the appellant invited the attention of the Court to a passage from the Standard Work of Shri Dinsha Mulla on Hindu Law at page 553 (15th Edition) the relevant passage relied upon by the learned Counsel reads as under:
'Of the other three unapproved forms, only the Gandharva requires notice. The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste.
The learned author has quoted the case of Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another : 1965CriLJ544 in support of this proposition. It is there are necessary to scrutinise the evidence led at the trial and decide as to whether the custom pleaded in para 3 of the plaint was duly proved by and on behalf of the plaintiff or not.
12. Witness Padmakar Vishnu Muley was examined as a witness on behalf of the plaintiff. The said witness stated that for last 20 years he was practising as a priest and he was a Sanskrit Kavyatirtha of Banaras University. The said witness stated that by the time he gave evidence before the Court i.e. 1st February, 1980 he must have been performed 400-500 Gandharva marriages. The said witness deposed to the practice followed in the Maratha community when the parties were married according to the Gandharva form of marriage in detail. Laxmibai and Parashuram belonged to Maratha community. The said witness in terms stated in his deposition as under :
'Ceremonies such as Lajahome, Saptapadi are not permitted in Gandharva.'
During the course of his cross-examination, the said witness was quite firm. The said witness stated that even if any one asked him to perform ceremonies like Lajahome, Saptapadi etc., in Gandharva form of marriage, he would not do so as per his practice these ceremonies were not necessary. The said witness admitted that no book states that these ceremonies were not necessary in case of Gandharva form of marriage. To my mind, the evidence of this witness was and is quite satisfactory and the evidence of this witness could not at all be shaken in the cross-examination.
13. One Bhika Nagu Patil (aged 70 years), was also examined at the trial as a witness on behalf of the plaintiff. The said witness was not related to either of the parties. The said witness also deposed to the manner in which Gandharva form of marriage was performed in Maratha community. The said witness belonged to Maratha community by caste. The said witness are stated in terms that Lajahome and Saptapadi were not performed during Gandharva in the community to which he belonged. During the course of his cross-examination, the said witness was equally firm. The said witness stated that he was the panch of the village and he had attended 8 to 10 Gandharva marriages, performed in the caste to which be belonged. To my mind, the evidence of this witness is equally satisfactory. I may now turn to the evidence of witness Kisan Laxman Bairagi aged 87 years examined as a witness on commission. The said witness also fully supported the case of the plaintiff. It is unfortunate that because of frivolous challenge on the part of defendant No. 1 to the marriage of Laxmibai, the plaintiff had to go through all this exercise of troubling the panch, the priest by name Muley and take trouble of proving her marriage according to the custom of the community to which she belonged. Even Deoram had married twice over and that too according to Gandharva form of marriage. It is nobody's case that Sapatapadi and Lajahome was performed at the time of the marriage of Devram. I accept the case of original plaintiff and confirm the findings of the trial Court to the effect that the custom pleaded in para 3 of the plaint was dully proved as aforesaid.
14. It is unfortunate that the defendant No. 1 not merely challenged the factum of custom pleaded in para 3 of the plaint, but challenged even the faviam of marriage itself. The defendant No. 1 ought to have done so. The challenge made by defendant No. 1 on this aspect of the case to my mind was totally frivolous. Before I refer to the evidence of witness on this aspect, I would like to remind myself of the observations made by the Supreme Court in the case of Badri Prasad v. Dy. Director of Consolidation and others : [1979]1SCR1 . It was observed by the Court that an adventurous challenge to the factum of marriage between the parties was negatived by the High Court. It was observed by the Apex Court that a strong presumption arises in favour of wedlock where the parties have lived together for a long spell as husband and wife. Law leans in favour of legitimacy and frewns upon bastardy. It was observed by the Apex Court in this case as under :
'If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed.'
I have to keep the observations made by the Supreme Court in mind before analysing the evidence on this aspect of the case.
15. Before I refer to the relevant evidence on this aspect of the case, I must refer to a comment made by the learned Counsel for the appellant to the effect that there were certain discrepancies in the evidence of witnesses regarding the year in which the marriage was performed etc. These discrepancies were bound to be there. These discrepancies support my conclusion that the witnesses examined on behalf of the plaintiff were witnesses of truth and were not tutored witnesses.
16. Laxmibai herself gave evidence at the trial giving elaborate details about the factum of her marriage with Parashuram Ukharde. She stated that Banurao and Nani (step son and step daughter) had also attended the said marriage. Laxmibai stated that Madhavrao Borhade who was a close relative had also attended the said marriage. Madhavrao Borhade is the husband of younger sister of Laxmibai. It is not disputed and it is not disputable that the entire family and the persons in the community and the village treated parashuram and Laxmibai as husband and wife. It is true that Nanibai stated in her evidence dated 13th April, 1978 that she was not present at the time of marriage of Laxmibai with her father Parashuram. It was a case of mistaken memory either of Laxmibai or of Nanibai. Nanibai did state in her evidence that after her marriage Laxmibai resided and cohabited with Parashuram at Pimpalgaon. Nanibai also stated in para 5 of her testimony that Parashuram had told her that he had taken Laxmibai as his second wife and that Nanibai had seen Parashuram going in a bullock cart for his marriage. Nanibai has stated in her evidence that she was supporting the claim of Laxmibai and according to her Laxmibai must get share in the estate. It must be said to the credit of Nanibai that Nanibai did not claim any share in the estate. Witness Mahavrao Rakhmaji Borhade specifically disposed to the marriage which had taken place between Laxmibai and Parashuram at great length. Madhavrao could not be shaken in cross-examination at all. Madhavrao referred to performance of all the ceremonies attached to the marriage which had actually taken place.
17. Witness Kamalabai also supported the plaintiff's case in respect of the custom followed in the community when the parties are married according to Gandharva form of marriage. Kamalabai was also married according to Gandharva form of marriage. Kamalabai is the daughter of Laxmibai. It was not stated in cross-examination that Saptapadi and Lajahome were performed at the time of her marriage.
18. I am considerably impressed by the evidence of the above referred witnesses examined on behalf of the plaintiffs. There is nothing in the evidence of Baburao which supports the assertion of Baburao to the effect that Laxmibai was not married with Parashuram. The plea of Baburao on this aspect of the case appears to me to be false.
19. In light of the above discussion, I have reached the conclusion that the finding recorded by the trial Court on issue No. (1-A) and (1-AA) deserves to be confirmed. I accordingly confirm the said findings and held that Laxmibai was the lawful widow of deceased Parashuram.
20. The learned Counsel for appellant has not challenged the marriage of Deoram with Yamunabai at the hearing of this appeal. It must be therefore held that Yamunabai was the legally married wife of the deceased Devram.
21. The learned Counsel for the appellant submitted that the Civil Court had no jurisdiction to award share of compensation in respect of acquired lands to the plaintiff and the defendant No. 2 and the suit was not maintainable in so far as the plaintiff claimed share in compensation moneys received or to be received in lieu of acquired lands which were subject matter of the suit. The learned Counsel for the appellant relied on series of judgments on this aspect of the case. The authorities relied upon by the learned Counsel for the appellant are briefly listed as below :
(1) A.I.R. 1922 Cal. 4.
(2) : AIR1975Pat192 .
(3) A.I.R. 1957 J & K 202.
(4) A.I.R. 1960 J & K 120.
The learned Counsel for the appellant also referred to the judgment of High Court of Calcutta reported in I.L.R. Cal 470. Before I discuss some of the authorities cited at the Bar, it is necessary to make certain general observations. It was the case of the plaintiff before the trial Court and it is believable that Baburao was Karta of said joint family as the sole surviving male co-parcener after death of Parashuram. If so, it must be perused that Baburao represented or is deemed to have represented the joint family in respect of claim for acquisition pertaining to the acquired lands. In a suit for partition, all assets must be brought in for division, distribution or accounting as the case may be. This is not a case where the Land Acquisition Officer or Reference Court is required to apportion the amount of compensation between the lesser and lessee or amongst the persons having conflicting interest in the land acquired. In my opinion, it is open to a co-parcener or to a female heir filing a suit for partition to accept the award made by the Land Acquisition Officer as correct and claim share in the amount of compensation awarded by the Land Acquisition Officer. In this case, Baburao collected a sum of Rs. 32,000/- towards advance compensation towards the acquired land. It emerges from the record that the balance of the amount payable by the Land Acquisition Officer was attached by an order passed by the Civil Court and the order of attachment was later on modified by directing with consent that the amount be invested in the joint name of Baburao and Laxmibai. It appears that Baburao received not merely the sum of Rs. 32,000/- as advance compensation but also received a further sum of Rs. 13,000/- under the orders of the Court from the Land Acquisition Officer and only the balance of the amount aggregating to Rs. 43,689/- was deposited in the joint account of the parties. In my opinion, no ruling has been pointed out by the learned Counsel for the appellant which lays down that in such a case the person entitled to share in the joint family assets cannot claim share in the compensation amount paid or to be paid by the acquiring body in lieu of acquisition of some of the assets which are subject matter of the suit for partition and accounts etc. The accounts must be taken in respect of all the moneys in the hands of Karta or the coparcener concerned, or the moneys available impressed with the character of assets of the joint family.
22. In Jia Lal v. Om Prakash and others, A.I.R. 1960 J. & K. 128, cited by the learned Counsel for the appellant, it was held that in certain situations a suit could be raised for share of compensation against a person who had received the compensation from the acquiring authorities. In Sarjug Rai v. Mst. Maheshwari Devi and another : AIR1975Pat192 , the High Court of Patna made observations to the effect that the remedy of seeking reference under section 30 of the Act was optional.
23. In Rameshwar Singh v. Secretary of State for India, I.L.R. CaL 470, the High Court of Calcutta held that in certain situations a civil suit was maintainable. The said case does not appear to be relevant to the controversy which is being adjudicated upon in this appeal.
24. In Saitbesh Chandra Sarkar v. Maharajadhiraj Sir Bejoy Chand Mohatap Bahadur, A.I.R. 1922 Cal 4 the Division Bench of the High Court of Calcutta observed that the Land Acquisition Act created a special jurisdiction and it provided a civil remedy and the claimant could not file a separate suit for recovery of possession and the only remedy available to him was to seek a reference under section 18 of the Act. In my opinion, the proposition of law laid down in this case is too wide. It is not possible to agree with such a wide proposition as laid down in this case.
25. The learned Counsel for the appellant invited the attention of the Court to the statement of Laxmibai in para 12 of her deposition to the following effect :
'I have claimed half share in the compensation amount to the concerned acquisition officer by making necessary application'.
It is not known as to what was the nature of the application. It is not known as to what was the date of the application. Copy of the application made by Laxmibai was not got exhibited. Original plaintiff or her heirs cannot be non- suited in respect of the claim to got share in the compensation amount on the basis of hype technical pleas raised on behalf of the defendant No. 1 unsubstantiated in law as discussed above. I have, therefore, no hesitation in rejecting the submission of the learned Counsel for the appellant on this aspect of the appeal also. I hold that all the compensation amount received by Baburao or to be received or deposited in joint name of Baburao and Laxmibai must be distributed and accounted for in accordance with share of the parties in suit properties including the acquired lands i.e. 1/3rd each (1/3rd for heirs of original plaintiff, 1/3rd for heirs of original defendant No. 1 and 1/3rd for defendant No. 2).
26. No submission were made at the Bar on the issue of limitation and rightly so.
27. The learned Counsel for the appellant then concentrated on the question as to whether the respondents No. 2 had forfeited her right to claim share in the suit properties as awarded by the trial Court by reason of her re-marriage 3-4 months after the death of Devram. Devram was a coparcener with Parshuram and Baburao during his life time. Devram died on 15th November, 1962. The Hindu Succession Act, 1956 had already come into force with effect from 20th December, 1956.
28. Section 6 of the Hindu Succession Act, 1956 was therefore, attracted on death of Devram. Devram's share in the ancestral properties is deemed to have been separated by national partition on death of Devram in view of Devram having left his widow. It is well settled that succession never remains in abeyance. Succession to the estate of Devram opened on 15th November, 1962. Devram's share on notional partition devolved or is deemed to have devolved entirely upon his widow Yamunabai, the defendant No. 2 in the suit. Laxmibai (the original plaintiff) was not a heir of Devram and she was not the mother of Deveram. Devram having been born to Parashuram from his first wife Zavarbai. In view of the provisions contained in section 24 of the Hindu Succession Act, the share of Yamunabai in the estate to the extent of 1/3rd would not stand forfeited on her re-marriage. The defendant No. 2 was not divested of the said share which had vested in her on death of Devram merely by reason of her remarriage at a later date.
29. On this aspect of the case also the learned Counsel for the appellant has cited authorities which all appear to me to have no application to the facts of this case. Merely as a matter of respect for the research made by the learned Counsel for the appellant, I shall make a reference to the authorities cited by the learned Counsel for the appellant to some extent. I used not deal with the said authorities as the said authorities appear to have no application to the situation in this case. The learned Counsel for the appellant relied upon the case of Mst. Bhuri Bai v. Mst. Chambi Baji and another, reported in and the judgment of the Supreme court in the case of Smt. Kasturi Devi v. Deputy Director of Consolidation and others, reported in : [1977]2SCR25 . As far as the Supreme Court judgment is concerned, the Supreme Court in terms held in the above case that the mother could not be divested of her interest in the property on the ground of her subsequent remarriage. I am not able to find any specific observations in this judgment to the effect that the widow who inherited the estate of her first husband is divested of the estate so inherited on her remarriage at a later date. I have therefore no hesitation in holding that the original plaintiff now represented by her heirs, original defendant No. 1 now represented by his heirs and original defendant No. 2 are entitled to 1/3rd share in the suit properties including the amount of compensation for the acquired land already collected by Baburao and or also the amount lying deposited in the joint account of Baburao and Laxmibai as indicated below alongwith accrued interest thereon.
30. One more aspect of the appeal is required to be separately and specifically considered. The trial Court held that the original plaintiff and original defendant No. 2 both being the female heirs were merely entitled to right of residence in the dwelling house and not to partition and separation of their share therein as long as the defendant No. 1 the sole surviving male heir does not claim partition. Baburao has already died. In my opinion, Laxmibai now represented by her heirs as well as Yamunabai are entitled to enforcement of their right to partition and separate share in respect of the dwelling house also. The learned Counsel for the appellant has rightly pointed out that the said dwelling house is being used as a place of residence by the male heirs of Baburao. If that is so, said male heirs of Baburao should come forward to purchase the share of heirs of Laxmibai and Yamunabai in the dwelling house at an appropriate price either by consent or by bidding at the auction which may take place. In every case, partition need not be effected by metes and bounds. The payment of reasonable amount to the plaintiff and defendant No. 2 in lieu of their share in the dwelling house can be an equitable solution to the problem. The trial Court is authorised to issue appropriate directions in this behalf. The heirs of defendant No. 1 shall be at liberty to purchase share of original of plaintiff and share of original defendant No. 2 in the dwelling house at a reasonable valuation thereof as indicated above. In default, law must take its own course.
31. In the result, the appeal fails. The appeal is dismissed. The appellants are subject to the observations and directions contained in this judgment. The appellants are directed to pay a sum of Rs. 3,000/- towards the costs of the suit as well as appeal to the heirs of original plaintiff. The appellants are also directed to pay a sum of Rs. 3,000/- as costs of the suit as well as appeal to respondent No. 2.
32. The trial Court shall expedite the distribution of acquisition moneys lying deposited in joint account of Laxmibai and Baburao alongwith accrued interest amongst the three branches and their members. Distribution of the said amounts need not be delayed at all. Rest of the properties can be divided or sold even with later in accordance with decree of the Court and further directions which the Court may issue to effectuate the decree. The Court shall appoint a Commissioner for the purpose aforesaid and complete distribution of the said amount amongst the parties entitled thereto latest within 3 months from today. The trial Court shall issue all ancillary directions concerning implementation of the decree.
33. Liberty to the parties apply to this Court for further directions if absolutely necessary.
34. For the purpose of considering issue of consequential directions and issue of further orders whatever required, hearing of the appeal is adjourned to 12th August, 1994 at 2.45 p.m.