HINDU SUCCESSION ACT SEC. 14 (1) OR (2) ? = whether in the facts and circumstances of the present case, it is sub-section(1) or sub-section(2) of Section 14 of the Hindu Succession Act, 1956 (for short, 'Act') applies.

published in http://bombayhighcourt.nic.in/generatenew.php?path=./data/judgements/2013/&fname=CSA4310301.pdf&smflag=N
Bombay High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.61 OF 2002
ALONG WITH
SECOND APPEAL NO.62 OF 2002
Shri Yeshwant Maruti Lonkar, since
deceased, by his legal heirs Shri
Kalidas Yeshwant Lonkar and Ors
..Appellants/
Orig.Defendants
Vs
Smt.Anjanabai Dinkar Dhamdhere,
since deceased, through her legal
heirs:
1(a)-Rambhau Dinkar Dhamdhere
and Anr
.. Respondents/
Orig.Plaintiffs.
Mr. A. V. Anturkar, Advocate with Mr. Sandeep Pathak, Mr.
Prathamesh B. Bhargude, Mr. Sugandh Deshmukh, Advocates for
Appellants.
Mr. V. S. Kapse a/w Mr. Shailesh Chavan, Mr. Siddharth Ingale,
Advocates for respondent no.1(g),1(h), 1(i).
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. Vikram Chavan, Mr.
P.J.Throat i/b M/s YKS Legal, Advocates for Respondent no.2.
CORAM: R.G.KETKAR, J.
Reserved on : 18/04/2013
Pronounced on: 10/06/2013
JUDGMENT:
1. Heard Mr. A.V. Anturkar, learned counsel for the
appellants, Mr. V.S.Kapse, learned counsel for respondent
nos.1(g),1(h) and 1(i), Mr. A.Y.Sakhare, learned Senior Counsel
for respondent no.2 in both the Appeals at length.
2. The short question that falls for determination in these
Appeals is as to whether in the facts and circumstances of the
Tapadia RR
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present case, it is sub-section(1) or sub-section(2) of Section 14
of the Hindu Succession Act, 1956 (for short, 'Act') applies.
In
that context, it is appropriate to quote the observations made by
Honourable Mr. Justice P.N.Bhagwati (as the learned Chief
Justice of India then was) in paragraph 67 of V. Tulasamma Vs.
Sesha Reddy,
1
:-
“ …The question is of some complexity and it has
evoked wide diversity of judicial opinion not only
amongst the different High Courts but also within
some of the High Courts themselves. It is indeed
unfortunate that though it became evident as far back
as 1967 that Sub-sections (1) and (2) of Section 14
were presenting serious difficulties of construction in
cases
where property was received by a Hindu female
in lieu of maintenance and the instrument granting
such property prescribed a restricted estate for her in
the property and divergence of judicial opinion was
creating a situation which might well be described as
chaotic, robbing the law of that modicum of certainty
which it must always 'possess in order to guide the
affairs of men, the legislature, for all these years did
not care to step in to remove the constructional
dilemma facing the courts and adopted an attitude of
indifference and inaction, untroubled and unmoved by
the large number of cases on this point encumbering
the files of different courts in the country, when by
the simple expedient of an amendment, it could have
silenced judicial conflict and put an end to needless
litigation.
This is a classic instance of a statutory
provision which, by reason of its inapt draftsmanship,
has created endless confusion for litigants and proved
a paradise for lawyers.
It illustrates forcibly the need
of an authority or body to be set up by the
Government or the Legislature which would
constantly keep in touch with the adjudicators
authorities in the country as also with the legal
profession and immediately respond by making
1. (1977) 3 Supreme Court Cases 99
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recommendations for suitable amendments whenever
it is found that a particular statutory provision is, by
reason of inapt language or unhappy draftsmanship,
creating difficulty of construction or is otherwise
inadequate or defective or is not well conceived and is
consequently counter-productive of the result it was
intended to achieve. if there is a close interaction
between the adjudicators wing of the State and a
dynamic and ever-alert authority or body which
responds swiftly to the drawbacks and deficiencies in
the law in action, much of the time and money, which
is at present expended in fruitless litigation, would be
saved and law would achieve a certain amount of
clarity, certainty and simplicity which alone can make
it easily intelligible to the people.”
3. Second Appeal No.61 of 2002 is preferred by the original
defendants challenging the Judgment and decree dated
31.7.1997 passed by the learned 11th Jt. Civil Judge, Jr.Dn, Pune
in Regular Civil Suit No.943 of 1987 as also the Judgment and
decree dated 4.9.2001 passed by the learned 6th Addl. District
Judge, Pune in Civil Appeal No.911 of 1997. Regular Civil Suit
No.943 of 1987 was instituted on 2.5.1987 for rendition of
accounts of yearly income by the appellant-Yeshwant Lonkar
(Original Defendant), since deceased from the year 1946 derived
from 3/5th share out of lands bearing Survey No.31/2/8,
admeasuring 1 H. 96 R and Survey No.26/8-C+9+10
admeasuring 3 H. .08 R, situate at Mundhawa, Tq.Haveli,
District-Pune (for short, 'suit lands'). The Courts below decreed
the suit instituted by the respondents.
4. Second Appeal No.62 of 2002 is preferred by the original
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defendants challenging the Judgment and decree dated
31.7.1997 passed by the learned 11th Jt.Civil Judge, Jr Dn., Pune
in Regular Civil Suit No.1141 of 1987 as also the Judgment and
decree dated 4.9.2001 passed by the learned 6th Addl. District
Judge Pune in Civil Appeal No.912 of 1997. Regular Civil Suit
No.1141 of 1987 was instituted by the respondents on 15.6.1987
for possession of their 3/5th share in the suit lands. By these
orders, the Courts below decreed the suits by holding that the
respondents are entitled to possession of their 3/5th share in the
suit lands. In both the Appeals, the appellants are original
defendants and the respondents are original plaintiffs in both
the suits. The parties shall, hereinafter, be referred as per their
status in the trial Court. The relevant and material facts that are
necessary for disposal of the present Appeals, briefly stated, are
as under.
5. It is the case of the plaintiffs that they have 3/5th share in
the suit lands. The deceased Pandu Piraji Lonkar had five sons,
namely Ganpatrao, Shripati, Bahiroba, Maruti and Rambhau @
Rama. The original defendant Yeshwant is the son of the
deceased Maruti. Deceased Rambhau had four daughters,
namely, plaintiff nos 1 and 2 – Anjanabai, Shantabai and two
other daughters Sulochana and Sushilabai, both since deceased.
The undisputed genealogy of Pandu Piraji Lonkar is as under :
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 Pandu Lonkar
___________________________|_____________________________________
 / / / | |
Ganpat Shripatrao Bahiroba Maruti Rambhau
(Dead) (Dead) | | (D.8.12.33)
 / / ______|______________ | |
Radhabai (Baburao) / / / | |
(wife) Jayant Bhagwant Ram- | |
 / chandra | |
Sonabai (Dau.) | |
(Dead) ___________________________________ |______ |
/ / / / |
Yashwant Gulab Daulat Vitthal |
(Def.) |
 ________________________________________ |___
/ / / /
Sulochana Sushila Anjana Shantabai
 Plff.No.1. Plff.No.2
One of the sons of Pandu Lonkar -Maruti instituted Regular Civil
Suit No.92 of 1911 for partition of ancestral properties. The
plaintiff's father Rambhau was defendant no.3 in that suit. On
19.12.1921 preliminary decree was passed determining the
shares of the parties. However, no partition by metes and bounds
was effected in pursuance of that preliminary decree.
Application for passing final decree was made by defendant no.2
therein – Bahiroba. another son of Pandu and uncle of the
plaintiffs and defendant no.3 Rama, father of the plaintiffs on
7.12.1932. Pending that application, Rambhau died on
8.12.1933. After his death, the plaintiffs and their two sisters, by
name Sushilabai and Sulochanbai were brought on record on
18.9.1934 as per Order below Exhibit-98. The parties entered
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into compromise on 27.2.1935.
It is their case that as per that
compromise, the plaintiffs and their two sisters were given 3/5th
share in the suit lands as heirs and legal representatives of
Rama. The suit lands were in possession of tenant by name
Shankar Hanumant Lonkar. He was giving yearly rent of Rs.250/-.
Having regard to this, it was agreed that the plaintiffs and their
two sisters would be given Rs.150/- yearly towards maintenance
from the suit lands having regard to their 3/5th share and the
remaining amount of Rs.100/- was agreed to be given to
defendant no.4 Radhabai W/o Ganpat Lonkar towards her 2/5th
share in the suit lands.
6. It is the case of the plaintiffs that defendant Yeshwant took
possession of the suit lands from tenant Shankar Hanumant
Lonkar in the year 1948. Since the plaintiffs were minors at the
relevant time they were unable to cultivate the suit lands
and,therefore, they had given the suit lands in possession of
Yeshwant. Defendant Yeshwant was cultivating the suit lands as a
trustee and was bound to give yearly income of the suit lands as
per the compromise dated 27.2.1935. Defendant Yeshwant failed
to give yearly income from the cultivation of the suit lands.
Therefore, notice was issued on 15.4.1987. Since there was no
compliance, the plaintiffs instituted two suits, one for rendition of
yearly accounts of income taken by Yeshwant from cultivation of
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the suit lands and for possession of their 3/5th share in the suit
lands.
7. The defendant Yeshwant resisted the suit by filing Written
Statements. It was denied that Rama was entitled to get share in
the suit lands in pursuance of the preliminary decree dated
19.12.1921 and compromise dated 27.2.1935. It was contended
that Rambhau had no right, title and interest in the suit lands and
he was not given any share in the suit lands. If Rama was not
given any share, the plaintiffs are obviously not entitled to claim
possession of the suit lands. It was further asserted that the
defendant is in possession of the suit lands openly and
continuously for more than 12 years and has become owner by
adverse possession.
8. The learned trial Judge framed necessary issues in both
suits. Evidence was adduced in Regular Civil Suit No.943 of 1987.
After considering the material on record, the learned trial Judge
decreed the suit for possession and held that the plaintiffs are
entitled to possession of 3/5th share in the suit lands. The
learned trial Judge also decreed the suit for rendition of accounts
and directed the defendant Yeshwant to pay Rs.450/- towards
past mesne profits.
9. Aggrieved by this decision, the defendant Yeshwant
preferred two Civil Appeals before the District Court. Both these
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Appeals were dismissed. It is against this decision, the above
Second Appeals were preferred.
10. The Appeals were admitted on 6.2.2002 by passing the
following order:
“None present for the appellant. The Appeals are
admitted on the following substantial questions of law.
1. As per the uncodified Hindu Law in 1933, when
Rambhau passed away, whether his wife and daughter
are entitled to succeed to his estate as his legal heirs
or whether the share of Rambhau by rule of Devolution
applicable to Mitakshara School of Hindu Law, will
devolve, not upon his wife and daughter, but upon his
brothers?
2. Once in RCS No.21 of 1964, the plaintiffs were
parties and issue No.30 was decided against them
holding that they fail to prove that the lands had fallen
to their share or to the share of their deceased father,
Rambhau, and when admittedly that finding is not
challenged by them, whether present suit for partition
filed by them is maintainable or whether it is barred by
Res judicata?
3. Whether the provisions of Hindu Law Inheritance
(Amendment) Act, will apply to the so-called share of
Rambhau?
 Considering the fact that some of the parties are
above the age of 65 years and oral request of the
learned Advocate for the respondent, the Second
Appeals are directed to be listed for final hearing.”
11. In support of these Appeals, Mr. Anturkar strenuously
contended that the Courts below committed serious error in
decreeing the suit instituted by the plaintiffs. In the first place,
he submitted that in the facts and circumstances of the present
case, the Courts below committed serious error in holding that
Section 14(1) of the Act is applicable. Secondly, he submitted
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that perusal of the preliminary decree dated 19.12.1921 as also
the final decree in pursuance of compromise dated 27.2.1935
would indicate that Rama was not allotted any property. Rama
was not even allotted any specific share in the suit lands. He
submitted that as per the compromise dated 27.2.1935 the
income derived from the suit lands was to be divided in five
parts. Out of these five parts, three parts were to be given to the
plaintiffs and their two sisters and two parts were to be given to
defendant no.4 Radhabai. In other words, no property was
allotted to either Rama or his daughters in that suit. He heavily
relied upon Section 543 from Principles of Hindu Law by Mulla,
Twenty-first Edition.
12. He submitted that a father is bound to maintain his
unmarried daughters. On the death of the father, they are
entitled to be maintained out of his estate. A daughter on
marriage, ceases to be a member of his father's family and
becomes member of her husband's family. Henceforth, she is
entitled to be maintained by her husband, and, after his death,
out of his estate (S. 556). If the husband has left no estate, her
father-in-law, if he has got separate property of his own, is
morally, though not legally, bound to maintain her; but after his
death, she acquires her legal right to be maintained out of his
estate on the principle stated in section 541. If she is unable to
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obtain maintenance from her husband or after his death from his
family, her father, if he has got separate property of his own, is
under a moral, though not legal obligation, to maintain her. He
submitted that the Division Bench of this Court in case of Bai
Mangal Vs Bai Rukmini2
 has held that she acquires no such right.
13. He further submitted that the plaintiffs are governed by
uncodified Hindu Law.
The married Hindu daughter was not
entitled to maintenance from her father and, therefore, she did
not have any pre-existing right of maintenance. Assuming that
she is entitled to maintenance, mere entitlement is not good
enough. The basic requirement is that acknowledgement of and
in lieu of that entitlement of the pre-existing right, some property
must have been allotted to her. Perusal of the preliminary and
final decree passed in Civil Suit No.92 of 2011 would show that
the suit property was not given to either Radhabai, widow of
Ganpat or the plaintiffs. What was given to them was only right
to get maintenance and not the property. In other words, the
property was not allotted to them in lieu of any maintenance. In
support of this proposition, he relied upon the decision of the
learned Single Judge of this Court in the case of Jamunabai
Bhalchandra Bhoir Vs. Moreshwar Mukund Bhoir3
.
14. He further submitted that other requirement is that the
2 (1898) 23 Bom 291
3. 2009 (2) Bom.C.R 278
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property must be possessed by the Hindu female. In the present
case, the plaintiffs were not looking after the suit lands and the
defendant Yeshwant was looking after the suit lands. The right of
maintenance was given to the plaintiffs not in acknowledgment
of any pre-existing right but sheer out of gratis and just to help
them. No particular property was given to the plaintiffs in lieu of
maintenance. In other words, the plaintiffs were not possessed
of any property and, therefore, section 14(2) of the Act is
applicable and not Section 14(1).
15. Mr. Anturkar further submitted that in any case, the finding
recorded in Regular Civil Suit No.21 of 1964 to the effect that the
suit lands were kept for maintenance of Rambhau's daughter and
Radhabai as per final decree and the final decree did not mention
that these lands were allotted to the share of deceased Rambhau
will operate as res judicata in the present suits. Even on this
count, the Courts below committed serious error in decreeing the
suit.
16. On the other hand, Mr. Sakhare supported the impugned
orders. He submitted that Suit No.92 of 2011 was instituted by
Maruti against his brothers defendant no.1 Sripati, defendant
no.2 Bahiroba, defendant no.3 Rambhau and defendant no.4
Radhabai, widow of the fourth brother Ganpat. In that suit,
preliminary decree was passed on 19.12.1921. He invited my
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attention to the assertions made in paragraphs 2, 5 and prayer
(a) of Civil Suit No. 92 of 2011. Having regard to the prayer (a) of
that suit, the preliminary decree was passed on 19.12.1921
whereunder the properties which included the suit lands were
divided in four equal shares/parts. Out of that one share/part
was allotted to the plaintiff Maruti and the remaining three
shares/parts were allotted to the remaining three brothers in
equal shares. In other words, he submitted that at the time of
passing preliminary decree the properties including suit lands
were divided in four equal shares and one share each was
allotted to the plaintiff Maruti, defendant no.1 Shripati,
defendant no.2 Bahiroba and one share to defendant no.3 Rama.
Since the other brother Ganpat died, his widow was given
maintenance.
17. In pursuance of preliminary decree, application for passing
final decree was made by defendant no.2 Bahiroba and
defendant no.3 Rama on 7.12.1932. In that application it was
specifically set out that the plaintiff and defendant nos 1 to 3
have to pay yearly maintenance to defendant no.4 Radhabai. The
properties in the suit were to be divided in four equal parts, out
of which one was to be allotted to the plaintiff. He submitted that
on 8.12.1933 Rambhau expired and by order dated 18.9.1934
four daughters of Rambhau were brought on record. He invited
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my attention to the compromise entered into between the parties
on 27.2.1935. Paragraph 1 of the compromise terms clearly
recorded that there are four sharers of the properties in Suit
No.92 of 1911. Out of that, since defendant no.3 Rama expired,
his share is given to four daughters. The valuation of the
properties therein was approximately 12000/-. It was, therefore,
stated that Rama will get properties worth Rs.3000/- (1/4th of
Rs.12000/-) and consequently his daughters are entitled to
properties worth Rs.3000/-. Having regard to dues of Rama in
individual capacity as also the dues of joint family , Rama is liable
to pay Rs.1500/-. Having regard to marriage expenses of Rs.300/-
of Rama's daughter, Rama would be entitled to property worth
Rs.1200/-. If the property worth Rs.1200/- is distributed among
four daughters of Rama, it will serve no purpose, and daughters
will get nothing. It was, therefore, agreed that instead of
demarcating separate share of Rama, the income generated from
Survey no.26 and survey no.31 may be divided in five parts. Out
of these five parts, three parts will be allotted to the share of four
daughters of Rama and two parts will be allotted to defendant
no.4 Radhabai towards maintenance. He also invited my
attention to clause (3) thereof which provided that after the
death of Rama's daughter and defendant no.4 Radhabai and her
daughter Sonubai, the suit lands will revert to the remaining
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three sharers in equal proportion.
18. Mr. Sakhare submitted that (i) preliminary decree dated
19.12.1921 determined separate share of the plaintiff Maruti as
also defendants-three brothers which included Rama, (ii)
disruption of joint family status was clearly recognised. He
submitted that under the final decree, maintenance was not
granted to the daughters of Rambhau till their attaining majority
or till their getting married. Compromise provided that the
daughters of Rama will succeed his share and, therefore, the
plaintiffs and their two sisters have succeeded to the separate
property of Rama. He further submitted that separate property of
Rama was recognised. The daughters were given maintenance in
lieu of the property. It was in recognition of their pre-existing
right and consequently the case is squarely covered by section
14(1) of the Act. In support of his submissions, he relied upon: (1)
R.B.S.S.Munnalal Vs. S. S. Rajkumar4
, and in particular
paragraphs 6,7,13 to 16 thereof; (2) Kalyani Vs. Narayanan5
and in particular Head Note B thereof; (3) Mangal Singh Vs.
Smt Rattno (dead)6
 , and in particular paragraph 6 thereof; (4)
V. Tulasamma (supra) and in particular paragraphs 23, 34 to 47
of the Judgment of Justice S. Murtaza Fazal Ali and paragraphs
4. AIR 1962 SC 1493
5 AIR 1980 SC 1173
6. (1967) 3 SC 1786
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62 to 64, 68 to 72 of Justice P.N.Bhagwati (as the learned C.J.I.
then was), (5) Gulwant Kaur Vs. Mohinder Singh7
 , and in
particular paragraph 8 thereof and (6) Laxmappa Vs Balawa
Kom Tirkappa Chavdi8
19. Mr. Sakhare submitted that the suits instituted by the
plaintiffs are not barred by res judicata. He submitted that no
such plea was raised in the written statement. No evidence was
adduced by defendant Yeshwant to substantiate that the suits
are hit by principles of res judicata. In other words, he
submitted that the defendant had waived that plea. He invited
my attention to paragraphs 8, 13, 23, 25, 40 and 45 of the
Judgment dated 31.8.1967 passed by the learned Jt. Civil Judge,
Jr.Dn., Pune I Regular Civil Suit No.21 of 1964. He also invited
my attention to paragraphs 19 to 21 and 24 of the Judgment
dated 7.11.1968 passed by the learned Assistant Judge, Pune in
Civil Appeal No. 850 of 1967. In support of his submissions, he
relied upon the following decisions:
(1) Wilfred Lovette Vs.Ganesh Hemraj Karmarkar9
, and in
particular paragraphs 11 to 15 thereof;
(2) V. Rajeshwari Vs. T.C.Saravanabava10 and in particular
paragraphs 11 to 14 thereof,
7. AIR 1987 SC 2251
8. (1996) 5 SCC 458.
9. 1988 (1) BCR 637
10. (2004) 1 SCC 551
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(3) Makhija construction and Engg (P) Ltd Vs Indore
Development Authority11 and in particular paragraph 16
thereof to contend that where it has been said that to apply the
rule of res judicata as between co-defendants three conditions
are requisite: (1) There must be a conflict of interest between
the defendants concerned; (2) it must be necessary to decide
this conflict in order to give the plaintiff the relief he claims and
(3) the question between the defendants must have been finally
decided. He submitted that in the facts and circumstances of the
present case, these three conditions are not fulfilled.
20. In rejoinder, Mr.Anturkar submitted that the case of the
plaintiffs is that in the preliminary decree passed on 19.12.1921
and compromise dated 27.2.1935 specific share was allotted to
Rama. In other words, Rama was allotted specific share and there
was severance of the joint family status after passing of the
preliminary decree. He relied upon Section 228 of Mulla's Hindu
Law to contend that factually preliminary decree did not give any
separate share to Rama at all. Separate share was given only to
Maruti- plaintiff in Civil Suit No.92 of 2011. Partial partition
decree, partial qua persons and/or partial qua property is legally
permissible in Hindu law. In the present case, the preliminary
decree is partial qua person, namely, qua Maruti and remaining
11. (2005) 6 SCC 304
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three shares were not allotted to anybody, namely to other
brothers of Maruti. The reference to four shares in the
preliminary decree is made only for the purpose of determining
and carving out one fourth share for giving it to Maruti, as
without identification, it would not have been possible to even
determine Maruti's share. The preliminary decree does not
indicate that any separate share is given to Rama. In support of
this proposition, he relied upon paragraph 20 of Kalyani (supra)
and S.Sai Reddy Vs. S. Narayana Reddy12 and in particular
paragraph 7 thereof wherein the Apex court has held that in a
suit for partition, a preliminary decree is passed determining
shares of the members of the family. The final decree follows,
thereafter, allotting specific properties and directing the partition
of the immovable properties by metes and bounds. Unless and
until the final decree is passed and the allottees of the shares are
put in possession of the respective property, the partition is not
complete. The preliminary decree which determines shares does
not bring about the final partition, Ganduri Koteshwaramma
Vs. Chakiri Yanadi 13 and Prema Vs.Nanje Gowda14
21. I have considered the rival submissions made by the
learned counsel appearing for the parties. I have also perused
12. (1991) 3 Supreme Court Cases 647
13. (2011) 9 Supreme Court Cases 788
14. (2011) 6 Supreme Court Cases 462
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the material on record. In order to appreciate the submissions
advanced by the learned counsel appearing for the parties, it is
necessary to find out what is the effect of preliminary decree
dated 19.12.1921 passed in Regular Civil Suit No.92 of 1911 as
also the effect of compromise dated 27.2.1935. Mr. Anturkar
submitted that under the preliminary decree as also the final
decree, no specific share or property was allotted to Rambhau.
On the other hand, Mr. Sakhare submitted that specific
share/property was allotted to Rambhau. Perusal of prayer (a) of
Regular Civil Suit No.92 of 2011 instituted by Maruti Pandu
Lonkar shows that he had prayed for effecting partition of the
properties described in Schedule A, B and C by metes and
bounds in four shares and for handing over separate possession
of his 1/4th share. The suit lands form part of Schedule “A”. On
19.12.1921 preliminary decree was passed ordering division of
four equal shares of the properties by metes and bounds
and thereafter handing over possession of one share to the
plaintiff-Maruti. I do not find substance in the submission of Mr.
Anturkar that Rama was not given any share in the preliminary
decree and that partial partition was effected qua person, namely
plaintiff Maruti, and that four parts were made only for the
purpose of determining and carving out ¼ share for giving it to
plaintiff Maruti as without identification it would not be possible
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to determine even Maruti's share. As noted earlier, Maruti had
instituted suit for partition and by preliminary decree dated
19.12.1921 the properties were ordered to be partitioned by
metes and bounds in four equal parts, out of which one was to be
allotted to Maruti and, obviously, remaining parts were to be
allotted to the defendants therein, namely defendant no.1
Shripati, defendant no.2 Bahiru, defendant no.3 Rama. In view
thereof, I am of the opinion that under the preliminary decree
share in the properties was allotted to Rama.
22. In so far as application dated 7.12.1932 made by defendant
no.2 Bahiru and defendant no.3 Rama for passing final decree is
concerned, it shows that by virtue of preliminary decree dated
19.12.1921, the plaintiff and defendant nos. 1,2 and 3 were
obliged to pay yearly maintenance to defendant no.4 Radhabai
and the properties were to be divided in four equal parts out of
which one part was to be given to the plaintiff Maruti. During the
pendency of this application, Rama died on 8.12.1933 leaving
behind plaintiffs and two daughters. The other two daughters,
viz. Sulochana and Sushilabai were married at the relevant time
and the plaintiffs were minors. Perusal of the compromise dated
27.2.1935 shows that clause (1) declared that there are four
sharers in the properties. Out of them, defendant no.3
Rama expired and his daughters succeeded his share. The
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value of all the properties was approximately Rs.12000/-. The
heirs of Rama were entitled to properties worth Rs.3000/-
(being 1/4th share of Rs.12000/-). Individually, Rama was
indebted to the tune of Rs.1200/-. The joint family was indebted
to approximately Rs.1200/-. Rama was, therefore, indebted to
Rs.1500/- (Rs.1200 individually + 1/4th of joint family debts of
Rs.1200/-, ie Rs. 300/- = Rs.1500/-). Thus, Rama was entitled
to properties worth Rs.1500/-. After deducting Rs.300/-
towards marriage expenses of his daughters, he would be
entitled to properties worth Rs.1200/-. If this property is
divided in four shares (for daughters), the said property would be
ruined and nobody will get anything. It was, therefore agreed
that instead of demarcating/separating share of Rama, his
daughters would be provided maintenance from the income of
the suit lands during their life time.
23. Perusal of clause 1 of the compromise dated 27.2.1935
shows that it was agreed that the income generated from Survey
No.26 and Survey No.31 may be divided in five parts. Out of the
five parts, three parts would be allotted to the share of four
daughters of Rama and two parts will be allotted to defendant
no.4-Radhabai. The Compromise further provided that liability of
payment of debt on the share of Rama will not be passed on his
daughters or on their share in the suit lands. The said debt was
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agreed to be repaid by the other three co-sharers. The income
from these lands will be paid to the daughters during their life
time so long as one of the daughters is alive. After the demise of
all the daughters, the income generated from the suit lands will
be distributed in three equal sharers viz. the plaintiff and
defendant nos 1 and 2.
24. Perusal of clause 2 shows that defendant no.4 would be
paid towards her food and clothing during her life time and after
her death to her widowed daughter Sonubai. After the demise of
Sonubai, the income will be distributed among the three cosharers.
25. Perusal of clause 3 of the compromise shows that after the
demise of four daughters of Rama and defendant no.4- Radhabai
and her daughter-Sonubai, the suit lands will revert to three cosharers or their heirs in equal proportion.
26. Perusal of the compromise dated 27.2.1935 read with
preliminary decree dated 19.12.1921 clearly shows : (i) that
preliminary decree determined share of the plaintiff Maruti as
also his three brothers -defendant nos. 1 to 3, which included
Rama; (ii) that disruption of joint family status was clearly
recognized (iii) that under the final decree, maintenance was not
granted to the daughters of Rambhau till their attaining majority
or till their getting married. The compromise provided that the
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daughters of Rama will succeed his share. In view thereof, I am
of the opinion that the daughters of Rama have succeeded to the
share of Rama. The allotment of share to Rama was also
recognized both under the preliminary decree and the
compromise dated 27.2.1935. Since it was not practicable to
give separate share of Rama, it was agreed that his daughters
would be provided maintenance during their life time from the
suit lands. After the death of daughters of Rama, the suit lands
were to revert to three co-sharers in equal proportion. In other
words, the daughters were given maintenance in lieu of the
property and that it was in recognition of their pre-existing right.
In my opinion, the present case is squarely covered by section
14(1) of the Act.
27. Mr. Anturkar, however, submitted that the plaintiffs were
not possessed of the property and he submitted that unless and
until the partition is effected by metes and bounds, it cannot be
said that they are “possessed” of the property. In support of this
proposition, he relied upon paragraph 20 of Kalyani's Judgment
(supra). He submitted that partition in one sense is a severance
of joint status and coparceners of a coparcenery is entitled to
claim it as a matter of his individual volition. In this narrow sense
all that is necessary to constitute partition is a definite and
unequivocal indication of his intention by a member of a joint
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family to separate himself from the family and enjoy his share in
severalty. Such an unequivocal intention to separate brings about
a disruption of joint family status, at any rate, in respect of
separating member or members and thereby puts an end to the
coparcenery with right of survivorship and such separated
member holds from the time of disruption of joint family as
tenant-in-common. Such partition has an impact on devolution of
share of such member. It goes to his heirs displacing
survivorship. Such partition irrespective of whether it is
accompanied or followed by division of properties by metes and
bounds covers both a division of right and division of property. A
disruption of joint family status by a definite and unequivocal
indication to separate implies separation in interest and in right,
although not immediately followed by a defacto actual division of
the subject-matter. This may at any time, be claimed by virtue of
the separate right. A physical and actual division of property by
metes and bounds follows from disruption of status and would be
termed partition in a broader sense.
28. In paragraph 20 of that report, it was observed that
partition can be partial qua person and property but a partition
which follows disruption of a joint family status will be amongst
those who are entitled to a share on partition. It was further
observed in that case that there was first a disruption of the joint
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family by specifying the shares in Ext.P-1. Looking to the terms of
Ext.P-1 there was a disruption of joint family status, the shares
were specified and vested, liabilities and obligations towards the
family members were defined and imbalance out of unequal
division was corrected. This certainly has effect of bringing about
disruption of joint family status and even if there was no partition
by metes and bounds and the coparceners continued to remain
under the same roof or enjoyed the property without division by
metes and bounds, they did not hold as joint tenants unless reunion is pleaded and proved. After considering paragraphs 10
and 20 of that report, I am of the opinion that the said judgment
is in favour of the plaintiffs rather than the defendant.
29. It is at this juncture relevant to note the decision of the
Apex Court in the case of S.S.Munna Lal (supra). In that case, it
was held by the Apex Court that the interest which a widow got
by declaration of her share under a preliminary decree would fall
within the ambit of section 14(1) and even though the widow
did not get actual possession of the property until the final
decree is passed, she would in law be deemed to be in
possession of the property. In that case, the High Court had held
that mere declaration of the share of the widow passed only an
inchoate interest to her and she never came to possess the share
within the meaning of Section 14 of the Act and, therefore, the
property remained joint family property. The Apex Court reversed
the Judgment of the High Court holding that once a preliminary
decree was passed in favour of the widow granting her a share in
the property she must be deemed to be in possession of the
property in question. Their Lordships emphasized that the words
“possessed by” used in Section 14(1) clearly indicated that such
a situation was envisaged by the Legislation. While interpreting
the provisions of Section 14, the Apex Court also pointed out that
the Act was a codifying enactment which has been made far
reaching changes in the structure of the Hindu society and object
was to sweep away traditional limitations placed on the rights of
the Hindu women. The Apex Court observed in that connection as
under :
“The Act is a codifying enactment, and has made farreaching changes in the structure of the Hindu Law of
inheritance and succession. The Act confers upon
Hindu females full rights of inheritance, and sweeps
away the traditional limitations on her powers of
dispositions which were regarded under the Hindu Law
as inherent in her estate.... Normally a right declared in
an estate by a preliminary decree would be regarded
as property, and there is nothing in the context in
which Section 14 occurs or in the phraseology used by
the Legislature to warrant the view that such a right
declared in relation to the estate of a joint family in
favour of a Hindu Widow is not property within the
meaning of Section 14. In the light of the scheme of
the Act and its avowed purpose it would be difficult,
without doing violence to the language used in the
enactment, to assume, that a right declared in property
in favour of a person under a decree for partition is not
a right to property. If under a preliminary decree the
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right in favour of a Hindu male be regarded as property
the right declared in favour of a Hindu female must
also be regarded as property.”
30. In view of the above decisions, I am clearly of the opinion
that (i) there was disruption of the joint family status after
passing of the preliminary decree (ii) specific property/share was
allotted to Rambhau during partition and (iii) the plaintiffs were
granted shares in the properties and, therefore, they must be
deemed to have been in possession of the suit lands.
31. Mr. Anturkar heavily relied upon Section 543 of the Hindu
Law. He contended that a father is bound to maintain his
unmarried daughters. On the death of the father, they are
entitled to be maintained out of his estate. A daughter on
marriage, ceases to be a member of her father's family, and
becomes a member of her husband's family. Henceforth, she is
entitled to be maintained by her husband, and, after his death,
out of his estate (S.556). If the husband has left no estate, her
father-in-law, if he has got separate property of his own, is
morally, though not legally, bound to maintain her; but after his
death, she acquires a legal right to be maintained out of his
estate on the principle stated in Section 541. If she is unable to
obtain maintenance from her husband, or after his death from
his family, her father if he has got separate property of his own,
is under a moral, though not legal obligation, to maintain her.
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However, it is not settled whether, after the father's death, she
acquires a legal right to be maintained by his heirs out of his
estate. In the case of Baimangal (supra), the Division Bench of
this Court held that she acquires no such right.
32. Mr. Anturkar submitted that in view of Section 543 of the
Hindu Law the suit instituted by the plaintiffs is liable to be
dismissed. He also heavily relied upon Section 228 of the Hindu
Law. He submitted that separate property is that property which
is obtained as his share on partition by a coparcener. Section
228 refers to separate property as “proper” and not as separate
“share”. There has to be some specific property allotted to
the coparcener and obtained by him before that property can be
described as “separate property”. Mere declaration of share
which are incapable of being fluctuated is not enough. The stage
of obtaining property can never occur at the stage of preliminary
decree where only shares are determined. He also relied upon
the decision of the Apex Court in the case of Ganduri
Koteshwaramma (supra). In the case of Laxmappa (supra) the
Apex Court considered Section 543 of Hindu Law and in
paragraph 3 observed as under :
 “The law on the subject was taken stock of by the
High Court by quoting para 546 of Mulla's book on
Hindu Law, 15th Edition, which provides that a Hindu
father is bound to maintain his unmarried daughters,
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and on the death
of the father, they are entitled to be maintained out of
his estate. The position of the married daughter is
somewhat different. It is acknowledged that if the
daughter is unable to obtain maintenance from her
husband, or, after his death, from his family, her
father, if he has got separate property of his own, is
under a moral, though not a legal, obligation to
maintain her. The High Court has concluded that it
was clear that the father was under an obligation to
maintain the plaintiff-respondent. Seemingly, the High
Court in doing so was conscious of the declaration
made in the gift deed in which she was described as a
destitute and unable to maintain herself. In that way,
the father may not have had a legal obligation to
maintain her but all the same there existed a moral
obligation. And if in acknowledgment of that moral
obligation the father had transferred property to his
daughter then it is an obligation well-fructified. In
other words, a moral obligation even though not
enforceable under the law, would by
acknowledgment, bring it to the level of a legal
obligation, for it would be perfectly legitimate for the
father to treat himself obliged out of love and
affection to maintain his destitute daughter, even
impinging to a reasonable extent on his ancestral
property. It is duly acknowledged in Hindu Law that
the Karta of the family has in some circumstances,
power to alienate ancestral property to meet an
obligation of the kind. We would rather construe the
said paragraph more liberally in the modern context
having regard to the state of law which has been
brought about in the succeeding years. Therefore, in
our view, the High Court was within its right to come
to the conclusion that there was an obligation on the
part of the father to maintain his destitute widowed
daughter.”
33. Apart from the above Judgments, Hon'ble Mr. Justice
S.M.Fazal Ali has dealt with maintenance of daughters in the case
of V. Tulasamma (supra). In paragraphs 8, 9 and 10, it was
observed as under :
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8. “Colebrooke in his "Digest of Hindu Law', Vol. II,
quotes the Mahabharata at p. 121 thus:
Where females are honoured, there the deities are
pleased; but where they are unhonoured, there all
religious acts become fruitless.
This clearly illustrates the high position which is
bestowed on Hindu women by the Shastric Law.”
9. … ….
“Sastri quotes from the original texts various extracts
regarding the nature and extent of the right of
maintenance of the Hindu woman some of which may
be extracted thus:
The support of the group of persons who should be
maintained, is the approved means of attaining heaven,
but hell is the man's portion if they suffer: therefore he
should care-fully maintain them.
The father, the mother, the Guru (an elderly relation
worthy of respect) a wife, an offspring, poor
dependants, a guest, and a religious mendicant are
declared to be the group of persons who are to
be maintained.- Manu, cited in Srikrishna's
commentary on the Dayabhaga, ii, 28.
It is declared by Manu that the aged mother and father,
the chaste wife, and an infant child must be maintained
even by doing a hundred misdeeds.- Manu cited in the
Mitakshara while dealing with gifts.
The last extract clearly shows the imperative nature of
the duty imposed on the owner of the property to
maintain wife, aged mother, father etc. even at the
cost of perpetrating a hundred misdeeds.”
10. “Similarly Sastri in his book quotes Yajnavalkya at p.
523 thus:
Property other than what is required for the
maintenance of the family may be given.
The learned author highlights the importance of the
right of maintenance as being a charge on the property
of the husband and observes as follows:
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The ancestral immovable property is the
hereditary source of maintenance of the
members of the family, and the same is
charged with the liability of supporting its
members, all of whom acquire a right to such
property from the moment they become
members of the family, by virtue of which they
are at least entitled to maintenance out of the
same. Such property cannot be sold or given
away except for the support of the family: a
small portion of the same may be alienated, if
not incompatible with the support of the
family.
There is no difference between the two
schools as regards the view that the ancestral
property is charged with the maintenance of
the members of the family, and that no
alienation can be made, which will
prejudicially affect the support of the
group of persons who ought to be
maintained. Hence heirs are bound to
maintain those whom the last holder was
bound to maintain.”
34. In view of the Judgment of the Apex Court in the case of
Laxmappa (supra), a Hindu father is bound to maintain his
married daughters, and on the death of the father they are
entitled to be maintained out of his estate. The father may not
have had a legal obligation to maintain her but, all the same,
there existed a moral obligation. And if in acknowledgment of
that moral obligation the father had transferred property to his
daughter, then it is an obligation well-fructified. In other words, a
moral obligation even though not enforceable under the law,
would, by acknowledgment, bring it to the level of a legal
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obligation. The Hindu Law also acknowledges that the Karta of
the family has, in some circumstances, power to alienate
ancestral property to meet an obligation of the kind.
35. I have already held that under the preliminary decree dated
19/12/1921, 1/4th share each was allotted to the plaintiff Maruti,
Defendant No.1, Shreepati, defendant No. 2, Bahiru and
defendant No.3, Rama. Under the compromise dated
27/02/1935, the daughters of Rama succeeded to his share. The
allotment of share in the property to Rama was recognised both
under preliminary decree and compromise dated 27/02/1935.
Since it was not practicable to divide share of Rama among his
four daughters, it was agreed that Rama's daughter would be
provided maintenance during their lifetime from the suit lands.
In other words, the daughters were given maintenance in lieu of
the property and it was in recognition of their per-existing right.
The present case is squarely covered by section 14(1) of the Act.
36. Apart from the above, perusal of paragraphs 8, 9 and 10 of
V.Tulasamma (supra) clearly shows that the ancestral
immovable property is the hereditary source of maintenance of
the members of the family, and the same is charged with the
liability of supporting its members, all of whom acquire a right to
such property from the moment they become members of the
family, by virtue of which they are at least entitled to
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maintenance out of the same. Such property cannot be sold or
given away except for the support of the family: a small portion
of the same may be alienated, if not incompatible with the
support of the family. There is no difference between the two
schools as regards the view that the ancestral property is
charged with the maintenance of the members of the family, and
that no alienation can be made, which will prejudicially affect the
support of the group of persons who ought to be maintained. The
group of persons includes the father, the mother, the Guru, a
wife, an offspring.
37. In the light of the above discussion, I summarize my
conclusions as under :
(i) On 19.12.1921, the preliminary decree was passed
ordering division of four equal shares/parts in the properties by
metes and bounds. One share each was allotted to the plaintiff
Maruti, defendant no.1-Shripati, defendant no.2-Bahiroba and
defendant no.3-Rama.
(ii) Clause (i) of the compromise dated 27.2.1935 declared
that there are four sharers in the properties. Out of them,
defendant no.3 expired and, therefore, his daughters succeeded
his share. The value of the properties was approximately 12000/-.
Heirs of Rama were entitled to the properties worth Rs.3000/-
(being 1/4th share of Rs.12000/-). Having regard to individual
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debt of Rama and joint family's debt, Rama was entitled to
property worth Rs.1500/-. After deducting Rs.300/- towards
marriage expenses, Rama would be entitled to property worth
Rs.1200/-. Thus, the compromise dated 27.2.1935 also fortifies
that Rama was allotted share in the properties and after his
death, his daughters succeeded his share. It was, however, felt
that if the property allotted to the share of Rama was to be
further divided in four equal shares for allotting it to his
daughters, the said property would be ruined and nobody would
get anything. It was, therefore, agreed that instead of
demarcating/separating the share of Rama, his daughters would
be provided maintenance from the income of the suit lands
during their life time. In other words, the daughters were given
maintenance in lieu of the property and that it was in recognition
of their pre-existing right and consequentially the present case is
squarely covered by Section 14(1) of the Act and Section 14(2) of
the Act is not applicable.
(iii) Perusal of clause (1) of the compromise dated 27.2.1935
shows that it was agreed that the income generated from Survey
nos 26 and 31 was to be divided into five parts. Out of the five
parts, three parts would be allotted to the share of four
daughters of Rama and two parts would be allotted to defendant
no.4 Radhabai towards maintenance.
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(iv) Perusal of clause (3) of the compromise shows that after
demise of four daughters of Rama and defendant no.4 Radhabai
and her daughter Sonubai, the suit lands will revert to three cosharers or their heirs in equal proportion;
(v) After passing of the preliminary decree, there was
disruption of joint family status;
(vi) Specific property/share was allotted to Rambhau during
partition;
(vii) The plaintiffs were given shares in the properties and,
therefore, they must be deemed to have been in possession of
the suit lands. I, therefore, do not find any substance in the
submissions advanced by Mr Anturkar.
38. Finally, Mr. Anturkar submitted that in any case, the
findings recorded in the earlier suit, namely, Regular Civil Suit
No.21 of 1964 will operate as res judicata in the present suit. He
submitted that in that suit, the finding recorded to the effect that
the suit lands were kept for maintenance of Rambhau's daughter
and Radhabai as per final decree and the final decree did not
mention that these lands were allotted to the share of deceased
Rambhau. On the other hand, Mr. Sakhare submitted that no such
plea was raised in the Written Statement. No evidence was
adduced by defendant Yeshwant to substantiate that the suits
are hit by principles of res judicata. In other words, he submitted
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that the defendant had waived that plea. He invited my attention
to paragraphs 8,13,23,25,40 and 45 of the decision dated
31.8.1967 in Regular Civil Suit No.21 of 1964 as also paragraphs
19 to 21 and 24 of the decision dated 6.11.1968 in Civil Appeal
No.850 of 1967. He also relied upon the decisions of (1) Wilfred
Lovette (supra), (2) V.Rajeshwari (supra), (3) Makhija
Construction and Engg.(P) Ltd (supra). In the present case,
the Courts below have concurrently found that the defendant did
not raise plea of res judicata in the Written Statement. He did not
substantiate that plea by adducing evidence.
39. In view of the Judgments in the case of Wilfred Lovette
(supra) and V.Rajeshwari (supra), it must be held that the
defendant had waived that plea. Apart from that, the present
defendant was one of the defendants and plaintiffs were also
defendants in Regular Civil Suit No.21 of 1964 and in the case of
Makhija Construction and Engg (P) Ltd (supra), it has been
held that
to apply rule of res judicata as between co-defendants,
three conditions are requisite:
(1) there must be a conflict of
interest between the defendants concerned; 
(2) it must be
necessary to decide this conflict in order to give the plaintiff the
relief he claims and 
(3) the question between the defendants
must have been finally decided. In the facts and circumstances of
the present case, in my opinion, the defendants have not fulfilled
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all the three conditions. I, therefore, do not find any substance in
the submission of Mr. Anturkar that the present suit is barred by
principles of res judicata. In the result, I do not find any merits in
the submissions advanced by Mr. Anturkar. Both the Courts
below have decreed the suit instituted by the plaintiffs. The
Courts below have rightly applied the general principles in
determining the questions as also they have correctly applied law
in the facts and circumstances of the case. The findings recorded
by the Courts below are based upon appreciation of evidence on
record. It cannot be said that the findings recorded by the Courts
below are either perverse or based upon no evidence. In the light
of the aforesaid discussions, the Appeals fail and the same are
dismissed. In the circumstances of the case, there shall,
however, be no order as to costs.
40. Before parting, I place on record the valuable assistance
rendered by Mr.A.V.Anturkar and his instructing Advocates,
appearing on behalf of the appellants, Mr. V.S.Kapse appearing on
behalf of respondent no.1(g),1(h) and 1(i) and Mr. A.Y.Sakhare
and his instructing Advocates appearing on behalf of respondent
no.2.
41. At this stage, Mr.Anturkar orally prays for continuation of
the interim order that was operating during the pendency of
these appeals for a period of 8 weeks from today.
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He further states that within 2 weeks from today, the
appellants and all adult members residing with the appellants will
give undertaking to this Court incorporating therein that 
i) they are in possession of the suit lands and nobody else is in
possession; 
ii) that they have neither created third party interests
nor parted with possession and 
iii) that they will hereafter neither create third party interest nor part with possession.
Subject to the appellants filing the undertaking in this Court
within 2 weeks from today, interim order that was operating
during the pendency of these appeals, shall remain in force for a
period of 8 weeks from today. Order accordingly.
 (R.G.KETKAR,J.)

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